Category: European
21 January 2011 by Rosalind English
Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment
We cannot drive a coach-and-horses through natural habitats without a bit of soul-searching, says the Supreme Court .
The UK has conservation obligations under EU law to avoid the deterioration of natural habitats and this goes beyond holding back only those developments that threaten significant disturbance to species. Detailed consideration must be given to the specific risks to the species in question. But this consideration can be left to the quangos; planning committees are not obliged to make their own enquiries.
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18 January 2011 by Adam Wagner
MGN Limited v The United Kingdom – (Application no. 39401/04) Read judgment / press release / our analysis
The European Court of Human Rights has ruled that the UK’s controversial no-win-no-fee costs system violated the Daily Mirror’s freedom of expression rights after it was forced to pay model Naomi Campbell’s legal fees after a 2004 House of Lords judgment.
The European Court attacked the present costs system, and in particular success fees, using the findings of the recent review by Lord Justice Jackson, which the government intends to mostly implement. It held that the costs system often amounted to the “blackmail” of defendants, and has had an unjustified chilling effect on the press.
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14 January 2011 by Guest Contributor
The European Court of Human Rights has handed down judgment in Ali v United Kingdom (Application no. 40385/06, 11 January 2011). The decision is the final instalment of the litigation which culminated at the domestic level in the judgment of the House of Lords in Ali v Lord Grey School [2006] UKHL 14.
Perhaps unsurprisingly, the ECtHR has upheld the conclusion of the HoL (Baroness Hale dissenting in part) that no violation of the A2P1 right to education occurred. However, in certain significant respects the reasoning of the ECtHR diverges from that of the HoL. In particular, it provides important guidance on: (i) the circumstances in which school exclusions are compatible with A2P1 rights; and (ii) the content of the right to education.
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12 January 2011 by Rosalind English
C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment
The German system of judicial review involves a “careful and detailed” scrutiny of administrative decisions. However, admissibility criteria are such that few are able to access this system, particularly groups bringing actions alleging environmental harm.
At the centre of this case is the highly topical matter, relevant to one of the discussion threads on this site, of the trend towards a new system of environmental justice, heralded by Aarhus and the accompanying EU Directives, where national courts to are required to recognise claims brought by pressure groups alleging infringement of environmental provisions, even where there is no individual legal interest involved. The Trianel case puts into sharp focus the debate as to whether the environment should be protected not as an expression of an individual’s interest, but as a general public interest, enforceable in the courts.
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7 January 2011 by Rosalind English
[Updated] In the spirit of our coverage of environmental activism in one form or another, here is the website strapline for the Campaign for Real Farming, which sets out to
achieve nothing less than the people’s takeover of the food supply
Some of the initiatives for that takeover were being aired at the CRF’s “fringe” farming conference which took place in Oxford this week, voicing polite but forceful protest against the high production objectives of the mainstream Farming Conference in the Examination Schools next door.
According to CRF founder Colin Tudge, if we are serious about feeding 9 bn people in a few decades’ time, the current food production system, which is designed to make money, has to be dismantled in favour of small scale, labour intensive farming, which is designed to feed people. Like any reform movement, this “agrarian renaissance” is about wresting power away from existing authorities and it has set its sights on, amongst other things, the constellation of laws and regulations governing the cultivation of food.
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21 December 2010 by David Hart KC
Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment
Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.
The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water.
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20 December 2010 by Rosalind English
R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment
The development of the principles of access to justice in environmental cases moves on apace.
This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.
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20 December 2010 by Adam Wagner
Updated | Following the US Senate’s vote to repeal the ban on gay soldiers serving in the US military, it is interesting to compare the situation in the British Army, where gay soldiers have been allowed to serve since 2000.
The UK government was in fact forced to change its policy following a series of court rulings, as the US government might have been if the “don’t ask, don’t tell” policy had made it to the Supreme Court, which was looking inevitable before the Senate vote.
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17 December 2010 by Adam Wagner
Chester v Secretary of State for Justice & Anor [2010] EWCA Civ 1439 (17 December 2010) – Read judgment
The Court of Appeal has rejected a claim by a man convicted of raping and murdering a seven-year-old girl that the court should grant him the right to vote. Meanwhile, following the judgment the government has announced that it plans to allow all prisoners less than four years to vote.
Mr Chester’s case is interesting from a constitutional perspective, although the decision is not too surprising, as I will explain. But it does highlight the complex and sometimes unsatisfactory manner in which human rights are protected in the UK.
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16 December 2010 by Adam Wagner
CASE OF A, B AND C v. IRELAND (Application no. 25579/05) – Read judgment / press release
The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.
The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.
Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.
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16 December 2010 by Rosalind English
O’Donoghue and Others v. the United Kingdom(application no. 34848/07):
The government’s system for preventing sham marriages as an entry ploy for immigrants breached the right to marry and was discriminatory – read judgment.
By the time this case was lodged the Certificate of Approval Scheme had been much diluted by a series of amendments, but even so the Court found itself to be “gravely concerned” with the policy. This, along with the surprisingly lenient approach to the applicants’ failure to exhaust local remedies, suggests that the Court was anxious to address what it sees as endemic problems in the UK’s border control policy. If states want to use impediments to marriage as an entry deterrent, it says, then they must face being rapped with the Article 12 stick.
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15 December 2010 by Caroline Cross
PF and EF v UK (Application No. 28326/09) – Read judgment
The European Court of Human Rights has dismissed an application brought against the police in Northern Ireland by a mother and her daughter who argued the police had failed to take sufficient action to protect them from loyalist riots on their route to primary school.
The court held that the police must be afforded a degree of discretion in taking operational decisions, and that in this case the police took all “reasonable steps” to protect the applicants.
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8 December 2010 by Rosalind English
This time two years ago two obscure environmental groups, Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.
They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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6 December 2010 by Rosalind English
This morning we reported on the case of Sinclair Collis Ltd v Secretary of State for Health & Anor [2010] EWHC 3112 (Admin) – see Isabel McArdle’s post on the case. Rosalind English analyses the implications of the High Court’s decision.
Hard on the heels of Petsafe, the administrative court has been asked once again to give close attention to Article 36 TFEU and member states’ scope for imposing restrictions to free movement of goods (see our post on the “health of animals” derogation). It seems that human health is such a core value of the common market that any reference to it by way of justifying a ban or restriction on goods or services is very hard to resist, particularly when the step is one taken by the legislature rather than the executive.
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6 December 2010 by Isabel McArdle
Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health [2010] EWHC 3112 (Admin) – Read judgment or Rosalind English’s analysis of the decision
The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.
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Morge (FC) (Appellant) v Hampshire County Council (Respondent) on appeal from [2010] EWCA Civ 608- Read judgment
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