Category: In the news

Air quality: whose job is it anyway to decide?

17 October 2011 by David Hart KC

Cornwall Waste Forum, St Dennis Branch v Secretary of State for Communities and Local Government (2011) QBD (Admin, CO/6088/2011), Collins J, 13 October 2011

An interesting case about who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants – that choice of terminology depends on whether you are objecting to or applying for permission to construct. Because the judgment is extempore, it is very shortly reported at the moment (on Lawtel for those who have access to this subscription service), though some extracts are to be found on the claimants’ website.
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2-day seminar on economic and social rights in the age of austerity

14 October 2011 by Adam Wagner

A quick note to highlight an excellent 2-day seminar on Economic and Social Rights in the Age of Austerity at The Law Society’s annual human rights symposium. It is on 21-22 October. All details are here.

For more on economic and social rights – which are a newish frontier in the human rights world and very controversial – see Rosalind English’s posts here and here.

A host of high profile speakers will lead discussion at the event, which is to be held at the Law Society’s headquarters on Chancery Lane, London. Here are some of the speakers

• Andy Slaughter MP (Labour MP and Shadow Justice Minister),
  
• Justice Albie Sachs – former Justice of the South African Constitutional Court
• Lady Justice Arden – Lady Justice of the Court of Appeal of England and Wales
• Kate Green MP – Labour MP, chair of the All Party Parliamentary Group on Poverty and member of the Work and Pensions Committee
• Professor Francesca Klug OBE – director, Human Rights Futures Project, LSE
• Baroness Walmsley – patron, CRAE, co-chair Liberal Democrat Parliamentary Policy Committee on Education, Families and Young People and sponsor of the 2009 ROCK Children’s Rights Bill
• Professor Emeritus Richard Wilkinson – director, Equality Trust and author of The Spirit Level Background

Insurers’ human right not to pay for putting asbestos in employees’ lungs?

13 October 2011 by David Hart KC

AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 (12 October 2011

When you breathed in asbestos fibres from your dusty shipbuilding job on the River Clyde in the 1950s and 1960s, some of those fibres stuck around in the lungs. Some may cause the pleural plaques seen on my image, some may cause asbestosis, and some may lead to the highly malignant mesothelioma.

So your doctor (20+ years later when these diseases manifest themselves) would X-ray you and tell you what form of the disease you had. If he told you you had pleural plaques, you would, at first, breathe a huge sigh of relief that it was not mesothelioma. Because pleural plaques are almost invariably asymptomatic and harmless.

But on second thoughts, now you know you have indeed been exposed to asbestos such that you might develop mesothelioma – and you have seen colleagues die a miserable death from that disease. So, when you leave your chest physician’s room, you are worried, not about what you have, but about what you might get. Do you get damages for this? And anyway, where do the human rights in my title – those under Article 1 of Protocol 1 to ECHR, or the right to peaceful enjoyment of possessions – come into this story?
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Why have a European Court of Human Rights? – Dr Ed Bates

13 October 2011 by Guest Contributor

At last week’s Inner Temple hall event, ‘Strasbourg and the UK: Dialogue or Conflict’, Lord Justice Laws asked some provocative questions: 

why should judges decide matters of social policy [thrown up by human rights cases] at all? The political rights, Article 8 – 12, with the right set out in the first part and the derogation in the second, create a structure which means that a very large number of legal debates is about how the balance between private right and public interest should be struck. But what authority, expertise, do lawyers have to strike that balance, that is special to them? Why are lawyers any better qualified to assess family ties in foreign criminal questions?

When the floor was opened to questions I suggested that these comments could be extended out more broadly: what was the proper role and function of the Strasbourg Court? This question, I suggest, lies at the heart of much of the recent controversy surrounding the influence of the European Court of Human Rights, especially in the context of the disagreement over whether prisoners should be able to vote.

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National security concerns do trump human rights, sometimes

12 October 2011 by Alasdair Henderson

AM v. Secretary of State for the Home Department [2011] EWHC 2486  – read judgment 

The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.

Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.

There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.

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Greenhouse gases 1, US airlines 0: but only half-time in Europe

10 October 2011 by David Hart KC

Case C-366/10 The Air Transport Association of America and Others, CJEU, 6 October 2011, Opinion of Advocate-General Kokott

In a recent post on US climate change litigation, I said that, by contrast with the US Courts, there was relatively little such strategic litigation in the UK and the EU.

But that all changes when the US lawyers come over here – exactly the issue in this case. US airlines said to the EU Court that their rights under international aviation law have been infringed by a European Directive on greenhouse gas emissions from airlines. This EU Court Opinion goes right to the heart of how two systems of supra-national law fit together. EU law hits International Law. And, unsurprisingly, an EU lawyer thinks that EU law wins – so far, anyway, before the full EU Court of Justice decides the case.

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Big Brother or crime fighting? DNA evidence under the microscope

10 October 2011 by Isabel McArdle

A proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.

The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.

On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.

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CATGATE! And some other things that happened last week

10 October 2011 by Melina Padron

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

In the news

Hissing “Catgate” / “Catflap”

As you will probably know, the Home Secretary Theresa May has been criticised for erroneously claiming that an illegal immigrant avoided deportation because of his pet cat. The episode came to be known as “Catgate”/”Catflap”* and was widely covered both in the mainstream press and the legal blogs; our blog in particular posted four articles. Here are just some of the many articles about the incident (or related to it):

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Gay marriage on the way… but not quite yet

10 October 2011 by Adam Wagner

In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?

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Self-incrimination and the fruit of the poisonous tree: the Cadder rule

7 October 2011 by Rosalind English

Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment

Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.

The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case,  Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that  the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.
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The cat paradox

5 October 2011 by Rosalind English

Schrödinger would be rolling in his grave. The nation is abuzz with talk of a cat. A cat that is simultaneously there or not there. The speakers at yesterday’s seminar at Inner Temple hall on Strasbourg and the UK: Dialogue or Conflict, felt it incumbent to start each of their talks with a Cat Joke. But behind all this mirth about a supposedly “ridiculous” Article 8 decision, lie three serious points, some of which were touched on during the seminar though perhaps not with the detail they deserved.

First, it is not the cat that has toxified the debate about Article 8 and the vexed question of deportation. The right to respect under Article 8 is not only to family ties – however absurdly extended – but to private life itself.  Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual’s social identity, (Niemietz v Germany (1992)). Therefore if a court wants to prevent the what it perceives as the unjust deportation of the individual before it, it has a much wider constellation of interests to turn to than the family circle, whether or not that involves companion animals. Some might even take the view that attachment to such an animal may evince a more genuine emotional tie than many that have been advanced to claim the protection of Article 8.
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The lessons of shaggy dogs and Catgate

5 October 2011 by Adam Wagner

Updated x 2 | What can we learn from yesterday’s gaff by the Home Secretary Theresa May involving Maya the cat?

First, when referring to a legal judgment in a speech make sure you get the outcome right. Particularly when prefaced by “I am not making this up”. Secondly, if said speech is being broadcast live, there are plenty of lawyers on Twitter who will enjoy nothing more than tracking down the judgment, reading it and exposing the fact that you have got it wrong.

These lessons are important. But they relate to any amusing but forgettable political gaff. There is, however, a third lesson. There has been for a number of years a trend of wilfully or recklessly misreporting human rights cases. This trend is not just mischievous; it threatens to do real damage to our legal system.

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Cat had nothing to do with failure to deport man

4 October 2011 by Adam Wagner

Updated | Today the Home Secretary Theresa May gave a speech to the Conservative Party Conference in which she announced new immigration rules which would make it easier to deport foreign criminals.

May also gave three examples in support of the view that the Human Rights Act “has to go”:

We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.

The most startling of those examples is of course the final one, that an illegal immigrant could not be deported because he “had a pet cat”. As regular readers of this blog will know, there are plenty of mythical examples regularly peddled in order to criticise human rights law. Is the cat deportation one of them?

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Benefits tourism – an EU/UK dust-up

3 October 2011 by Rosalind English

A niggle has broken into a very public row between the British government and the European Commission which may yet become a bare-knuckle fight – not over the Eurozone crisis or bailouts or anything in the headlines, but over the availability or not of certain classes of benefits to EU claimants who do not satisfy this country’s “right to reside” test.

British social welfare arrangments provide for a class of non-means tested benefits such as Child Benefit and Income-based Employment Allowance that are only available to people who have resided legally in the UK for five years.  The European Commission has declared this fencing-off to be in breach of EU law since it indirectly discriminates non-UK nationals coming from other EU Member States.  EU rules on the social security coordination (EC Regulation EC 883/2004) allow the UK to grant social benefits to those persons who habitually reside in the UK; this EU test is satisfied by those who have been resident in the UK for two years or less. It is a common law test – a question of fact on the balance of probabilities, to be determined by looking at all the circumstances in each case. But those who pass this latter qualification can only claim means-tested benefits.

Confusing? Yes, and it gets worse.
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Seminar today – Strasbourg and the UK: Dialogue or Conflict?

3 October 2011 by Adam Wagner

A quick note to highlight this very interesting looking seminar entitled Strasbourg and the UK: Dialogue or Conflict? It is tonight (Tuesday 4 October) at Inner Temple Hall 17:45-19:15.

The stellar speakers will be Lord Justice Laws, Lord Pannick QC and Professor Philip Leach. The event is open to all, no pre-registration required.

The seminar is jointly hosted by the Constitutional and Administrative Bar Association (ALBA) and the new Bingham Centre for the Rule of Law. 1.5 CPD points have been applied for.

For those who cannot make it, we will of course be posting on the event. I will try to live tweet too – hashtag #ALBAevent