Category: In the news
22 September 2016 by Guest Contributor
Understanding Standing: Post 1 of 3
Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.
Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.
Introduction
Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.
The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.
- The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
- The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
- The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.
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21 September 2016 by Rosalind English
Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) – read judgment
Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.
The issues before the Court
The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners.
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20 September 2016 by Dominic Ruck Keene
Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.
This is the third in a series of posts on the Court of Appeal’s recent judgment. The full background to the case can be found in my earlier post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here, and Alistair Henderson’s analysis of whether the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings here.
This post concerns the extent of any obligations imposed on the UK to investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose from two individuals whom had been captured by British forces in Iraq claimed they were transferred to American custody and subsequently ill-treated. The Article 5 issue arose from the detention by British forces in Iraq of several individuals who claimed to have had their Article 5 rights violated whilst in British custody.
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19 September 2016 by David Scott
Ibra
him and others v United Kingdom [GC], App nos. 50541/08, 50571/08, 50573/08, and 40351/09 – read the judgment here
The Grand Chamber has found a violation of Article 6(1) and 6(3)(c) in relation to one of the four applicants before it, partially overturning the earlier decision of the Chamber and providing much food for thought on the future of Article 6.
by David Scott. Many thanks to my colleagues at University of Zurich for comments on earlier drafts of this piece. Any mistakes are undoubtedly my own.
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16 September 2016 by David Hart KC
R (o.t.a. CPRE Kent) v. Dover District Council [2016] EWCA Civ 936, 14 September 2016, read judgment
The Court of Appeal has just given us a robust vindication of the importance of giving proper reasons when granting planning permission, by way of a healthy antidote to any suggestion that this is not really needed as part of fairness.
It is, as we shall see, very context-specific, and Laws LJ, giving the main judgment, was careful not to give the green light to floods of reasons challenges – common enough as they are in planning judicial reviews. Nonetheless it is a decision of significance.
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15 September 2016 by Fraser Simpson
Photo credit: the Guardian
V.M. v. the United Kingdom, Application no. 49734/12, 1 September 2016: read judgment.
The European Court of Human Rights has ruled that part of an individual’s detention pending deportation violated the right to liberty protected by Article 5, ECHR. This judgment is the second recent ruling to find a lack of “due diligence” on behalf of UK authorities following the Court’s judgment in J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 (see my previous UKHRB post here).
by Fraser Simpson
Background
The applicant, VM, entered the UK illegally on 18 November 2003 with her son (S). Soon after, her son became the subject of an interim care order and the applicant was charged with child cruelty under the relevant legislation. Following an unsuccessful application for asylum due to fears for her life back in Nigeria, VM pleaded guilty to the child cruelty charges in August 2004. However, following the granting of bail pending the next hearing in February 2005, VM absconded for a period of over two years.
In September 2007 the applicant was again arrested, this time on charges relating to possession of false documentation with intent to commit fraud. Following conviction she was sentenced to nine months in prison. The applicant was also eventually convicted of the child cruelty charges in April 2008. Before sentencing, a psychological report was produced that indicated the applicant suffered from depressive and psychotic symptoms. However, such symptoms were being adequately managed through therapy and medication. Accordingly, there was no need to consider specialised treatment in a hospital or prison healthcare wing under the Mental Health Act 1983. The applicant was therefore sentenced to twelve months imprisonment, with an additional three months due to the failure to surrender to bail, in July 2008. At this point, due to the severity of the offences, the domestic judge recommended that the applicant be deported.
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14 September 2016 by Alasdair Henderson
Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.
This is the second in a series of posts on a very important judgment on the human rights obligations imposed on the British Armed Forces when operating abroad. The background to the case can be found in Dominic Ruck Keene’s post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here.
This short post looks at the third question raised in this judgment, namely whether or not the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings.
As well as being a fascinating question itself, this is part of a wider issue about the use of international law in the domestic courts. Countries are usually divided into ‘monist’ and ‘dualist’ legal systems. In a monist system international law is automatically included into domestic law. However, in a dualist system like the UK the general principle has always been that international treaties must be explicitly incorporated into UK domestic law by Parliament before they can be applied to an individual case.
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11 September 2016 by David Hart KC
Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment
This is an extremely important judgment from the Court of Appeal on the reach of the ECHR into war zones, in this case Iraq. The CA, with the only judgment given by Lloyd Jones LJ, disagreed in part with Leggatt J – for whose judgment see Dominic Ruck Keene’s post here.
3 main points arose on appeal.
The first was the jurisdictional question under Art.1 of the Convention – were Iraqi civilians killed or injured by British servicemen covered by the ECHR?
The second is the extent to which the UK is under a duty to investigate ECHR violations alleged by Iraqis, under Arts 3 (torture) and 5 (unlawful detention).
And the third is the question of whether the UN Torture Convention could be relied upon in domestic law proceedings.
I shall cover the first point in this post. The blog will cover the other points shortly. The points arose by way of preliminary legal issues in various test cases drawn from the 2,000 or so Iraqi claimants.
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11 September 2016 by Rosalind English
Shortly after the Brexit referendum, the President of the EU Commission Jean-Claude Juncker declared that he had
forbidden Commissioners from holding discussions with representatives from the British government — by presidential order.
In effect, he has prohibited any executives in the EU Commission from embarking on negotiations with British government representatives before the government triggers the exit process under Article 50. Now a legal challenge is being proposed to the legality of Mr Juncker’s declaration. There is no basis for this so-called “presidential order”, say the challengers, a group of British expats seeking to protect their interests in the negotiations over the UK’s exit.
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25 August 2016 by Guest Contributor
Photo credit: the Guardian
No, said the Supreme Court in McDonald v McDonald [2016] UKSC 28 – read judgment.
Facts
Fiona McDonald was a private sector tenant. The landlords were her parents who had purchased the property by obtaining a secured loan from a private company. They fell into arrears of the monthly payments, and the company sought possession pursuant to a s.21(4) Housing Act 1988 (‘HA 1988’) notice. The arrears were not substantial, but they had persisted for some time.
An Article 8 defence was raised as Fiona had mental health problems in the form of psychiatric and behavioural issues.
The Supreme Court rejected her defence for the following reasons.
No Article 8 assessment
The appellant argued that the court, as a public authority under s.6(1) of the Human Rights Act 1998 (‘HRA 1998’), was required to carry out an Article 8 assessment in such circumstances.
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23 August 2016 by David Scott
Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here
The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.
by David Scott
Background
Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called. In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.
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22 August 2016 by Guest Contributor
By Pritesh Rathod
RT v (1) The First-Tier Tribunal (Social Entitlement Chamber) and (2) Criminal Injuries Compensation Authority [2016] UKUT 0306 (AAC) – read judgment.
The Upper Tribunal has ruled that, in deciding whether or not an applicant has cooperated with the prosecution of her assailant where she made and later retracted an allegation of rape, it was necessary to see why that retraction was made and whether it was done truly voluntarily, rather than simply assessing whether she was responsible for the retraction.
Background facts
The Applicant (“RT”) was married to H and had four children with him between 2001 and 2008. From 2004, she was subject to physical and mental abuse by H, culminating in three incidents of rape. What followed was a somewhat protracted and complicated course of events relating to H’s prosecution.
Initially, H was arrested and charged with six counts of rape. He was bailed subject to certain conditions. While H was in custody, RT wrote to him saying that she missed him and wanted him back home. Over Christmas 2009, H returned home and he and RT had “something of a reconciliation”, including having consensual sexual intercourse.
By January 2010, RT sought to withdraw the complaint (she had commenced divorce proceedings against him). In February 2010, RT telephoned the police to ask what would happen if she had lied about the rapes. Later that month, she retracted her allegations, saying that all of them were untrue. H appeared at the Crown Court and was acquitted after the prosecution offered no evidence.
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15 August 2016 by Paul Reynolds
National Aids Trust v National Health Service Commissioning Board (NHS England) [2016] EWHC 2005 (Admin) (Local Government Association intervening)
Summary
In this case NHS England argued it lacked the power to commission (and be responsible for paying for) preventative HIV drugs. It said this was solely the responsibility of local authorities and, in so doing, disavowed any responsibility for preventative medicine.
The High Court rejected this. It undertook a purposive interpretation of the legislation and found that NHS England had broad and wide-ranging powers of commissioning, and could commission preventative HIV drugs. NHS England is appealing.
The interest in this case extends beyond Mr Justice Green’s interpretation of the particular provisions. The judge was ready to find that the provisions were to be interpreted purposively, and was then very ready to look to the overall objectives and duties of the NHS as expressed in other parts of the relevant legislation, and in the NHS Constitution and Mandate.
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9 August 2016 by David Hart KC
C (a child) [2016] EWCA Civ 798 read judgment
This is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie.
Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.
C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.
Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.
The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.
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8 August 2016 by David Hart KC
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
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