The Round-Up: Constitutional Commotions, Council Housing and Article 8, and the A6 Compatibility of ASBO Legislation

Yes campaigners react as they wait at Dublin Castle for the official result of the Irish abortion referendum

Image Credit: The Guardian

In a landmark moment for women’s rights, the Irish electorate has voted in favour of abolishing the 8th Amendment by a stunning two-thirds majority of 1,429,981 votes to 723,632.

Whilst abortion has long been illegal in Ireland under the Offences Against the Person Act 1861, the notorious 8th Amendment, which gives the foetus’ right to life absolute parity with that of the woman carrying it, was enacted after a 1983 referendum lobbied for by pro-life activists. By virtue of the amendment:

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

Lawyers for Yes emphasised that the amendment created ‘absolute legal paralysis in dealing with crisis pregnancies’ and had to be repealed if women in Ireland were to receive ‘appropriate’ and ‘compassionate’ healthcare. Also on the UKHRB, Rosalind English shares a powerful analysis of the extraordinary nature of the legal obligations imposed on women’s bodies by this provision.

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Landmark A-G opinion: EU must respect right of self-determination of Western Sahara

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here

The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this.  That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.

The opinion is complex and I summarise it in the simplest terms. But here goes.

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Does “damage” go wider than injury? Supreme Court on jurisdiction

Four Seasons Holdings v. Brownlie [2017] UKSC 80, 19 December 2017, read judgment

Professor Ian Brownlie Q.C., an eminent international lawyer, and members of his family were killed in a road accident in Egypt, when on their way to Al-Fayoum. His widow, also injured, had booked the driver through their hotel, the Four Seasons in Cairo.

The family wished to bring proceedings in the UK against the hotel in respect of the driver. However, the key defendant (Holdings) was incorporated in British Columbia, and the issue which got to the Supreme Court was the issue of jurisdiction.

The family said that there was a contract for the trip with Holdings, and further that Holdings were vicariously liable in tort for the negligence of the driver. Holdings had been less than transparent at earlier stages of the proceedings, but, after the Supreme Court required it to give a full account of itself, it emerged that it was as the name suggested – a non-trading holding company which had never operated the Cairo hotel, even though other companies in the group were involved with the hotel.

On that ground, Holdings’ appeal was allowed. The unanimous Court concluded that there was no claim in either contract or in tort. In simple terms, Holdings was nothing to do with the booking of the driver by the hotel.

But the lasting interest in the case lay in the question of whether you can establish qualifying “damage” in tort in the UK even if you are injured abroad, and on this the Court was split 3-2.

Let me set the scene for this, before telling you the result.

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Reasons and planners again: Supreme Court

13454123443_80fef9d87e_bDover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment

The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover. 

The interest is in the breadth of the decision – how far does it extend?

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Thinking about reasons again

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.

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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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