Category: European
20 June 2011 by David Hart KC
Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here
Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.
The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow. In 2000, the second string arrived – the coming into force of the Human Rights Act. But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.
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2 June 2011 by Rosalind English
R. and H. v. United Kingdom (no. 35348/06) – Read judgment
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
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31 May 2011 by David Hart KC
More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.
Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed – in English.
The problem arose because the EU made two directives which didn’t talk to each other.
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23 May 2011 by David Hart KC
Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment
All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.
And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.
Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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18 May 2011 by David Hart KC
The decision of the CJEU (a.k.a ECJ) in Case C-115/09 Bund Für Umwelt on 12 May goes right to the heart of environmental challenges.
Friends of the Earth wanted to challenge the grant of planning permission for a whopping new coal-fired power station in Lünen, Germany, where these carnivallers are from. The power station is destined to produce up to 1,750 MW of heat and 750 MW of electricity (to give an idea of scale, one huge offshore wind turbine might deliver 5MW when the wind is really blowing).
The case was about the adequacy of the Environmental Impact Assessment carried out on the proposed plant, not least because there were 5 Special Areas of Conservation within 8km of the site. The local court was concerned that the domestic law (including the EIA rules in the Umwelt-Rechtsbehelfgesetz) stood in the way of FoE’s challenge, because it precluded challenges unless the impugned legislative provisions conferred “individual rights”.
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9 May 2011 by Adam Wagner
A near-hysterical reaction has greeted some recent European court rulings. If you believed the coverage, you would think that unelected, underqualified and frankly bonkers judges are dictating our laws and making our Prime Minister physically ill.
With this week potentially heralding another hang-the-judges media storm over Max Mosley’s Strasbourg privacy case, it is a relief to read three sensible and balanced pieces on European courts this week, all of which highlights the courts’ shortcomings, but also the risks of a UK withdrawal.
First up is Charlemagne, the European columnist in The Economist, who finds a European court system which is “bewildering” – rightly wondering what the difference is between the European Council and the Council of Europe – and staffed by judges who “annoy most national politicians some of the time and infuriate some most of the time“.
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27 April 2011 by David Hart KC
Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment
Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.
I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.
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20 April 2011 by Rosalind English
R (on the application of K and AC Jackson and Son) v DEFRA – read judgment.
An interesting ruling in the Administrative Court this week touches on some issues fundamental to public law – the extent to which “macro” policy (such as EC law) should trump principles of good administration; the role of factual evidence in judicial review proceedings, and the connection between public law wrongs and liability in tort.
It all started with Boxster the pedigree bull and notices issued by DEFRA which sealed his fate, or at least appeared to do so when his owners received them in April and July 2010. They were directed to arrange the slaughter of the animal as a result of a positive bovine tuberculosis (bTB) test that had been carried out by DEFRA technicians earlier in the year. The notices of intended slaughter were issued under paragraph 4 of the Tuberculosis (England) Order 2007, an Order made under powers contained in the Animal Health Act 1981.
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15 April 2011 by Guest Contributor
The recent rejection, by a panel of the Grand Chamber of the European Court of Human Rights, of the British government’s attempt to overturn the ruling in Greens and MT v United Kingdom (prisoner voting) case, brings into focus the role of the Strasbourg Grand Chamber.
In this post I attempt to highlight how the idea of a Grand Chamber came about, and its role under the ECHR. Building on Adam Wagner’s earlier posts, I also offer a possible explanation as to why the panel of the Grand Chamber refused a rehearing of the Greens case.
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14 April 2011 by David Hart KC
Here we are, back with the access to environmental information question…From rape, bees and lettuces , a coda, involving a diversion via a new road scheme planned for Aberdeen taking in pearls and badgers, crossing the River Dee Special Area of Conservation.
An opponent of the project brought a claim against the UK government before the Aarhus Compliance Committee; findings of the Committee were adopted on 25 February 2011. The complaints ranged far and wide but the point of interest arose under an exemption to disclosure in Article 4 of the Aarhus Convention, namely that disclosure would adversely affect “(h) the environment to which the information relates, such as the breeding sites of rare species.” This has found its way into reg.12(5)(g) of the Environmental Information Regulations 2004/3391, shorn, in a typically English way, of the helpful explanatory words underlined. Wouldn’t want the reader to get its meaning at a glance, would one?
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13 April 2011 by Adam Wagner
The clock is ticking again on prisoner votes. The European Court of Human Rights has rejected the UK government’s latest appeal in the long-running saga.
The UK had attempted to appeal the recent decision in Greens and M.T. v. the United Kingdom. The full background can be found in my previous post, in which I predicted that the European court would find the UK’s appeal unappealing. It has, and the result is that the UK has just under six months to remove the blanket ban on prisoners voting.
Incidentally, Rosalind’s post from earlier today relates to a separate but also interesting Scottish court judgment on prisoner votes.
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13 April 2011 by David Hart KC
On 6 April 2011, the European Commission announced that it has decided to refer the UK Government to the Court of Justice of the European Communities under Article 258 TFEU, for failing to provide affordable access to justice in environmental cases.
This blog has previously charted some of the twists and turns in the process of showing that environmental challenges are currently “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention – not the least of which was a complaint to the Aarhus Compliance Committee which was upheld by that Committee in October 2010. And the underlying concern is the state of the costs rules under which a claimant may be ordered to pay tens of thousands of pounds of costs if he loses, despite the developing case law on Protective Costs Orders designed to mitigate this.
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13 April 2011 by Rosalind English
George McGeogh for Judicial Review of the Compatibility with the Petitioner’s EU law rights of the Decision of the Electoral Registration Officer , Outer House, Court of Session [2011] CSOH 65, 08 April 2011 (Lord Tyre) – Read opinion
This was an attempt by a prisoner to argue that his disenfranchisement under Section 3 of the Representation of the People Act breached his human rights, not under the ECHR, but his rights under EU law. The case illustrates the widespread (and probably correct) perception that if you can bring your claim under European law by persuading the court that one or other of its principles and freedoms are involved, you have a better chance of getting home on the rights argument than if you are restricted to the weaker authority of the Council of Europe and its Convention.
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11 April 2011 by David Hart KC
A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.
In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000.
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4 April 2011 by Graeme Hall
In an interesting post, Aidan O’Neill QC concludes that the European Court of Human Rights is “in danger of imminent collapse” due to its backlog of 140,000 applications with around 1,600 arriving every month; a conclusion compounded by inherent delays. He suggests that the way to draw back Strasbourg from the brink of judicial Armageddon is to abolish the individual right to petition Strasbourg and to introduce a referral system whereby national courts request Strasbourg’s opinion on human rights issues, akin to the Court of Justice of the European Union (CJEU).
by Graeme Hall
I must disagree. Strasbourg’s jurisdiction spreads across 47 contracting States, ranging from diverse populations such as Liechtenstein and Malta to Russia and Turkey. In turn, the Court is the guardian of the European Convention on Human Rights for over 800,000,000 individuals. The 61,300 valid applications which Strasbourg received in 2010 represent applications from 0.0077 per cent of the population to which the Convention applies. Given the importance of the Convention to the protection of fundamental human rights and freedoms, I find it surprising that Strasbourg does not receive more applications.
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Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here
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