When the court should look over the shoulder of a decision-maker


NO2_PicR (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J,
21 November 2016, transcript awaited

A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes. 

This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest. 

The parties had already agreed that it was unnecessary  to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.

This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.

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Court says – again – UK must comply with EU air pollution law


NO2_PicR (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 2 November 2016, judgment here

This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year. 

The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J. 

The short version is this.

The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.

The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.

In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.

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A new animation about the birth of the European Convention on Human Rights

Almost six years ago, not long after this blog started, we published a lovely post by Tom Blackmore, the grandson of David Maxwell Fyfe. Maxwell Fyfe was a Conservative lawyer and politician who went from being the British Deputy Chief Prosecutor at the Nuremberg War Crimes trials to being instrumental in drafting the European Convention on Human Rights.

Since then, I have been trying to find an opportunity to bring this fascinating story to life. So I am delighted to share this short film which RightsInfo, along with the Met Film School, have just released to mark the 70th anniversary of the end of the Nuremberg Trials. Please share widely and enjoy! If you are looking for a subtitled version, click here.

 

  • Read more about David Maxwell Fyfe here
  • Read Tom Blackmore’s original post here

Developments in the oversight of British Troops abroad – the Roundup

 

https://i.guim.co.uk/img/media/d19fc6a2d0ce552588dcf4b500c2116063496673/0_0_2048_1229/master/2048.jpg?w=620&q=55&auto=format&usm=12&fit=max&s=2218b555706e0d1886885f1f8dc47f0e

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

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Hard cases need better reasons

13454123443_80fef9d87e_bR (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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The Environmental Law Foundation

elf_mainMany 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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How will human rights fare under new PM Theresa May? – the Round-up

In the news

Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.

The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.

Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.

In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.

On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.

Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.

In other news:

The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here.  The UK Constitutional Law Association Blog provides  extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.

Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.

BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.

Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.

In the courts:

Taddeucci and McCall v Italy (judgment in French only)

This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).

Buzadji v the Republic of Moldova

This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.

On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).

UK HRB posts

Whose fair trial prevails? – David Hart QC

Justice for everyone: another Grayling reform bites the dust – Gideon Barth

Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon

The Chilcot Report – an Illegal War? – Dominic Ruck Keene

Another door closes for the Chagossians – Dominic Ruck Keene

Get out the back, Jack? make a new plan, Stan? – Rosalind English