Straining out a Gnat and Swallowing a Camel: The Convention, the Charter and Mrs May

Photo credit: Guardian

By Marina Wheeler QC

In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.

It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.

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Human rights – a coat of many colours


“Roses are red.

Violets are blue.

Whatever your political colour;

Human rights should matter to you”

Some legal oratory flows into the profound, beautiful and inspiring. Most of the time when it comes to poetry – as this particularly appalling ditty is designed to demonstrate – we lawyers should stick to the day job.* 

This week human rights commentators celebrated both World Poetry Day and the launch of a new project on the conservative commitment to human rights.  Announcing a Commission made up of MPs and commentators – including Maria Miller MP, Dominic Grieve QC MP and Matthew D’Ancona – Bright Blue this week published a series of essays by Conservative leaders on a range of human rights threats; from the refugee crisis to the repeal of the Human Rights Act.

Bright Blue now joins the Labour Campaign for Human Rights in taking steps to take the current debate beyond the heat and light of party politics and into a greater conversation about how we protect the rights of the most vulnerable in our communities and about the UK’s place in the world.

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Watery rights and wrongs – and causation too

TA-ArcticCharr-002R (o.t.a Seiont, Gwyfrai and Llyfni Anglers Society) v. Natural Resources Wales [2015] EWHC 3578, Hickinbottom J, 17 December 2015, read judgment and

Chetwynd v. Tunmore [2016] EWHC 156 (QB), HHJ Reddihough, sitting as a judge of the High Court, 4 February 2016, read judgment

This is a wintry double-bill on two recently decided cases about water quality, quantity, fish – and causation.

In the first, Seiont, Snowdonian anglers complained that the Welsh water regulator (Natural Resources Wales or NRW)  had misunderstood what was required by the Environmental Liability Directive in respect of Llyn Padarn, a freshwater lake the home of the Arctic charr, Salvelinus alpinus.  So they sought judicial review of NRW’s decision.

The main legal question was – did environmental damage within the Directive include slowing down recovery from previous damage, as the anglers argued, or was it confined to deterioration from an existing state (as the regulator had decided)?

Hickinbottom J held the latter, and the claim was dismissed.

In the second case, the claimant owners of fishing lakes in Norfolk said that their neighbours, in constructing rival lakes (without planning permission) had caused water levels to fall, and hence loss of fish and consequent income. Had that been established, the claimants would have had a claim for breach of statutory duty under section 48A Water Resources Act 1991. Such a claim, the judge held, would have been a strict liability one, in which foreseeability of damage played no part.

But the claimants lost on the facts, not before the judge had given an interesting analysis of the law of causation in this field.

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Bank Mellat and disclosure in closed material proceedings

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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Western Sahara goes to Europe

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case. 

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

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ECtHR judge ponders on EU/ECtHR dogfight, and recent trends of timidity in the ECtHR

david_thor_bjorgvinssonA Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things

Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.

One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accession was concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.

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Scotland, Sewel, and the Human Rights Act

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

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