Category: Protocol 1 Art. 1 | Peaceful enjoyment of property


The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by eleanorleydon

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

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Bank Mellat and disclosure in closed material proceedings

28 October 2015 by David Hart QC

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Supreme Court on EU and ECHR proportionality – back to basics

27 June 2015 by David Hart QC

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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Supreme Court: the common law working out illegality defence

23 April 2015 by David Hart QC

_41773060_mtic_carousel416x302Jetivia 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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Supreme Court – the right to be on the beach

25 February 2015 by David Hart QC

_50586770__49414358_2b0a52bb-7425-4bca-b5ff-2253df1dc7fa-1The 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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Supreme Court says Welsh NHS charges Bill in breach of A1P1

11 February 2015 by David Hart QC

Asbestos-588x340Recovery 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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Consultation again – this time for dentists

19 December 2014 by David Hart QC

simple-consultation-y200British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED

Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.

The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.

Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.

As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.

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Housing, Article 8 and A1P1 in the Supreme Court

14 November 2014 by David Hart QC

mapmainSims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and

R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014

A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.

The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.

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Letting in a chink of light to closed material cases : Bank Mellat again

5 November 2014 by David Hart QC

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 –  read judgment UPDATED POST

Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.

Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it.  The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court:  see judgment. I  did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall. 

However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.

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Consultation duty gets to the Supreme Court

29 October 2014 by David Hart QC

NL33293-039Moseley R (ota) v. London Borough of Haringey [2014] UK 56  – read judgment

Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.

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Consultation process not unfair after all, says Court of Appeal

12 October 2014 by David Hart QC


Aluminum-Warehouse21United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust  [2014] EWCA 1271 (Civ) – read 
judgment

Deciding whether a given consultation process conducted prior to some administrative decision was or was not sufficiently unfair to warrant  challenge is not an easy task. Three connected problems commonly arise:

(1) did the public body provide adequate information to enable properly informed consultation 

(2) was the consultation at a formative stage of the decision-making process, so it was a real rather than sham process?

(3) did the consultation encompass sufficient alternatives?

In this case, the judge said (see my post here) that consultees were missing important information under (1), and, on the particular facts of the case ,it should have consulted on an option which it had rejected, and so found a breach of (3).

The Court of Appeal disagreed. Both findings were wrong. The consultation process was not unfair.

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Strasbourg and why you must give reasons on domestic appeals

6 October 2014 by David Hart QC

MO201110701289983ARHansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.


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Supreme Court revises confiscation order via A1P1

18 June 2014 by David Hart QC

_41773060_mtic_carousel416x302R v Ahmad and others [2014] UKSC 36, 18 June 2014 – read judgment

A bit of a familiar refrain in which A1P1, the right to property, comes in and stops an order being made which would otherwise be lawful under statute: see my recent post here on the Eastenders case.

The case concerns confiscation proceedings following the conviction of two sets of defendants for carousel fraud.  A carousel fraud involves setting up a whole series of paper transactions to generate an apparent entitlement to reclaim VAT from the tax man: see the pic for an example. The VAT is repaid, at which point the money, and the fraudsters, disappear into the dust. But in these cases, they were found, prosecuted and confiscation orders made against the individuals to try and get the money back.

In the first case, the Ahmad defendants ran a company MST, and took £12.6m (£16.1m uprated for inflation) off the taxman. In the second, the Fields defendants got £1.6m (including inflation) via their company, MDL.

In each case, the order was made in those sums against each individual defendant. So each Ahmad defendant was ordered to pay £16.1m, even if some of that £16.1m was thereafter repaid by another defendant. It was this element of the order which the Supreme Court revised.

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Seizure of worker’s wages breached Convention right – Strasbourg

20 May 2014 by Rosalind English

proceeds-of-crimePaulet v United Kingdom Paulet (application no. 6219/08) – read judgment

The Strasbourg Court has declared, by five votes to one, that the UK authorities had acted unlawfully by seizing the wages of an Ivorian worker who used a false passport to gain employment. The majority ruled that the UK courts should have balanced individual property rights against interests of the general public.

This case on the confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds and the distribution of the burden of proof in establishing this link. Mr Paulet complained that the confiscation order against him had been disproportionate as it amounted to the confiscation of his entire savings over nearly four years of genuine work, without any distinction being made between his case and those involving more serious criminal offences such as drug trafficking or organised crime. The Court found that the UK courts’ scope of review of Mr Paulet’s case had been too narrow. The majority objected to the fact that the domestic courts had simply found that the confiscation order against Mr Paulet had been in the public interest, without balancing that conclusion against his right to peaceful enjoyment of his possessions as required under the European Convention.
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Eastenders in Supreme Court: A1P1 filling in the gaps

15 May 2014 by David Hart QC


EastEnders_TitleBarnes v. The Eastenders Group [2014] UKSC 26 read judgment

Not Albert Square, but it could be. The Crown Prosecution Service suspect two individuals of a massive duty/VAT fraud in their cash and carry businesses. The CPS go to the Crown Court (in the absence of the individuals) and get an order to appoint a receiver (i.e. a paid manager) to run the affairs of companies (Eastenders) in which the individuals are involved, as well as a restraint order against the individuals. Both receivership and restraint orders are set aside some months later by the Court of Appeal, on the basis that the HMRC investigator’s statements were largely “broad and unsupported assertions”. Problem: by then the receiver had run up £772,547 in fees.

Simple issue. Who bears those fees? The receiver, the CPS or the companies against whom the order was made? And A1P1 (the right to possessions) made the difference.

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