Category: CONVENTION RIGHTS
26 April 2015 by acwessely
In the news:
“If the Conservatives come back into power it’s revolution time”. These are the words of ex-Court of Appeal judge Sir Antony Hooper at a legal aid protest rally on Thursday, as he called for lawyers to ‘walk-out’ in the event of a Conservative victory. At the same rally another senior judge, Sir Alan Moses, lamented that all political parties are ignoring “the plight of those who [cannot] afford a lawyer” – citing that only the Greens have pledged to reverse the cuts to legal aid.
However, academic Graham Gee warns against using disrespectful rhetoric when analysing the Tory manifesto. He argues people should avoid “creating an impression that [Conservative] proposals are beyond-the-pale and reflective only of short-term, self-interested calculations”.
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23 April 2015 by David Hart KC
Jetivia v. Bilta [2015] UKSC 23, 22 April 2015 – read judgment
Nigel Farage is quoted yesterday as preferring immigrants to be Australians and Indians rather than EU citizens, because they probably speak English and “understand common law.”
Nice coincidence, then, that on the same day the Supreme Court came out with a perfect illustration of the potential difficulties of the common law process. This is the latest (but unlikely to be the last) instalment from the Court going to the question as to whether some crime by a claimant ought to stop his claim in its tracks.
The issue is well demonstrated by this claim, in effect a carousel fraud (see pic and see my post here), in which a company the victim of a fraud seeks to recoup losses from the fraudsters and is met with the argument – but your directors were in on the fraud too. How does the law deal with this?
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14 April 2015 by acwessely
This week’s Round-up is brought to you by Alex Wessely.
In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
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10 April 2015 by David Hart KC
Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles J read judgment Simon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests.
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8 March 2015 by Hannah Noyce
Photo credit: The Guardian
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
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6 March 2015 by Dominic Ruck Keene
John Catt. Photo credit: The Guardian
R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
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26 February 2015 by Jim Duffy
Traveller Movement v Ofcom and Channel 4, [2015] EWHC 406 (Admin), 20 February 2015 – read judgment
One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.
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25 February 2015 by David Hart KC
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council [2015] SC 7 25 February 2015- read judgment
Late February is not necessarily the best time of year for a bit of UK sea swimming. But the Supreme Court has just come out with interesting judgments about whether there is a right to go to the beach and swim from it. For reasons I shall explain, they were anxious not to decide the point, but there are some strong hints, particularly in the judgment of Lord Carnwath as to what the right answer is, though some hesitation as to how to arrive at that answer.
It arose in a most curious setting – East Sussex’s desire to register West Beach, Newhaven as a village green under the Commons Act 2006. But a beach cannot be a village green, you may say. But it is, said the Court of Appeal (see Rosalind English’s post here), and the Supreme Court did not hear argument on that point.
Now to the background for the present decision.
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25 February 2015 by Michael Deacon
Photo via Guardian.co.uk
Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment
Adam Wagner acted for the Secretary of State in this case. He is not the author of this post.
The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.
The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights.
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19 February 2015 by David Hart KC
JX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment
Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.
For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties.
This is why the CA reached its decision.
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11 February 2015 by David Hart KC
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here
Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example.
The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.
In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly. Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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2 February 2015 by Guest Contributor
Credit: guardian.co.uk
The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.
Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.
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1 February 2015 by Jim Duffy
Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment
A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”
On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.
After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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30 January 2015 by David Hart KC
Unsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.
An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.
Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.
Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.
In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.
But Spielmann did not leave it at that, as we shall see.
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28 January 2015 by David Hart KC
R (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment here
The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR.
Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.
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