Category: LEGAL TOPICS
21 May 2015 by Alasdair Henderson
Gareth Lee v. Ashers Baking Co Ltd, Colin McArthur and Karen McArthur [2015] NICty 2 – read judgment here.
In a claim popularly dubbed the ‘gay cake’ case, which has attracted international attention, District Judge Brownlie of the Northern Ireland County Court held yesterday that it was unlawful direct discrimination on grounds of sexual orientation for a bakery owned by two Christians to refuse to bake a cake which had printed on it a picture of ‘Bert and Ernie’ and the caption ‘Support Gay Marriage’ .
The parties approached the claim from very different standpoints. The Plaintiff, Mr Lee, argued that Mr and Mrs McArthur refused to bake the cake because he was gay. The Defendants argued that they did not know what Mr Lee’s sexual orientation was and it would have made no difference if they had. They would have happily served him a cake of any kind. Rather, they objected to the message on the cake because they felt they would be promoting or supporting a cause which they disagreed with, going against their consciences. They would have refused to bake the same cake for a customer of any sexual orientation.
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17 May 2015 by acwessely
In the news
“We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:
So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.
Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”).
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14 May 2015 by Adam Wagner
As I am sure will not have escaped you, these are interesting times for human rights. We still await the detailed Conservative proposals for replacing the Human Rights Act with a Bill of Rights, so it is difficult with any certainty what will happen.
I wanted to gather together a few pieces of commentary and media appearances I have done in the past week, so here they are. We will, of course, be following closely what comes next.
There has been a huge amount more already. Some illuminating pieces (certainly not comprehensive):
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9 May 2015 by David Hart KC
Bank Mellat v HM Treasury [2015] EWHC 1258 (Comm), Flaux J, 6 May 2015, read judgment
Two recent judgments underscoring the potential high cost of the UK getting it wrong in its dealing with businesses and hence being liable to pay damages under the Human Rights Act for breach of its A1P1 obligations. Regular readers will know that A1P1 is the ECHR right to peaceful enjoyment of property.
The first case was the photovoltaics case of Breyer, all about reducing renewables subsidies unfairly: see my post of last week here. The second, this case, involves a much more direct form of impact, namely the Treasury’s direction under the Counter-Terrorism Act 2008 that no-one else should have any commercial dealings with Bank Mellat, because, the Treasury said, the Bank had connections with Iran’s nuclear and ballistic missile programme.
Bank Mellat’s challenge got to the Supreme Court: see judgment and my post. The Court (a damn’d close run thing – 5:4) concluded that the direction was arbitrary and irrational and procedurally unfair. The nub of the complaint is that there were other Iranian banks against whom this very draconian measure was not taken, and that there was nothing specific about the Bank which made it more implicated than the rest of the banking system.
The Supreme Court remitted the case for trial as to HRA damages.
The current judgment of Flaux J is the first stage in that trial process. As we will see, Bank Mellat are distinct winners at this stage.
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7 May 2015 by David Hart KC
Midcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here
Out of what some may think to be an everyday spat between the Co-Op (existing supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.
A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.
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4 May 2015 by David Hart KC
Department of Energy and Climate Change v. Breyer Group plc and others [2015] EWCA Civ 408, 28 April 2015 read judgment
In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies.
This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims. The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA.
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30 April 2015 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Supreme Court, 29 April 2015, judgment here
Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide to refer various issues to the CJEU in Luxembourg. In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.
The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings. The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.
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28 April 2015 by Thomas Raine
Mirza v The Secretary of State for the Home Department [2015] CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
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26 April 2015 by acwessely
In the news:
“If the Conservatives come back into power it’s revolution time”. These are the words of ex-Court of Appeal judge Sir Antony Hooper at a legal aid protest rally on Thursday, as he called for lawyers to ‘walk-out’ in the event of a Conservative victory. At the same rally another senior judge, Sir Alan Moses, lamented that all political parties are ignoring “the plight of those who [cannot] afford a lawyer” – citing that only the Greens have pledged to reverse the cuts to legal aid.
However, academic Graham Gee warns against using disrespectful rhetoric when analysing the Tory manifesto. He argues people should avoid “creating an impression that [Conservative] proposals are beyond-the-pale and reflective only of short-term, self-interested calculations”.
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23 April 2015 by David Hart KC
Jetivia v. Bilta [2015] UKSC 23, 22 April 2015 – read judgment
Nigel Farage is quoted yesterday as preferring immigrants to be Australians and Indians rather than EU citizens, because they probably speak English and “understand common law.”
Nice coincidence, then, that on the same day the Supreme Court came out with a perfect illustration of the potential difficulties of the common law process. This is the latest (but unlikely to be the last) instalment from the Court going to the question as to whether some crime by a claimant ought to stop his claim in its tracks.
The issue is well demonstrated by this claim, in effect a carousel fraud (see pic and see my post here), in which a company the victim of a fraud seeks to recoup losses from the fraudsters and is met with the argument – but your directors were in on the fraud too. How does the law deal with this?
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14 April 2015 by acwessely
This week’s Round-up is brought to you by Alex Wessely.
In the news:
Military chiefs have criticised the influence of Human Rights law in a report published this week, arguing that the “need to arrest and detain enemy combatants in a conflict zone should not be expected to comply with peace-time standards”. This follows a series of cases over the years which found the Ministry of Defence liable for human rights violations abroad, culminating in allegations of unlawful killing in the Al-Sweady Inquiry that were judged “wholly without foundation” in December.
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10 April 2015 by David Hart KC
Department of Health v. Information Commissioner et al [2015] UKUT 159, 30 March 2015, Charles J read judgment Simon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests.
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22 March 2015 by David Hart KC
Delaney v. Secretary of State for Transport, Court of Appeal, 9 March 2015 – read judgment
The Court of Appeal has recently upheld the decision of Jay J here that a drug-dealer was entitled to compensation against the Government for injuries in a car accident, even though at the time he and the negligent driver both had drugs on them.
The Government was involved because the driver’s insurance was invalidated because of his cannabis use, and because the Government had not made provision for these liabilities to be picked up by either by insurers or the Motor Insurers Bureau (MIB), as it should have done under EU Law.
Mr Delaney therefore recovered state liability damages – which lawyers know as Francovich damages – from the Government.
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8 March 2015 by Hannah Noyce
Photo credit: The Guardian
A number of campaigning groups were recently informed by the Metropolitan Police that Scotland Yard would no longer provide traffic management at their planned demonstrations. Instead, these groups would be required to devise their own road closure plans and to pay a private security firm to carry out the task.
One of the groups, the organisers of the Million Women Rise rally, estimated that this would cost them around £10,000. The groups refused, arguing that this would amount to a breach of their right to protest.
The Met ultimately backed down – but what if it hadn’t? What is the legal position?
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6 March 2015 by Dominic Ruck Keene
John Catt. Photo credit: The Guardian
R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9
A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.
However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.
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Gareth Lee v. Ashers Baking Co Ltd, Colin McArthur and Karen McArthur [2015] NICty 2 – read judgment here.
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