Category: LEGAL TOPICS
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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25 February 2015 by Michael Deacon
Photo via Guardian.co.uk
Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment
Adam Wagner acted for the Secretary of State in this case. He is not the author of this post.
The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.
The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights.
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11 February 2015 by David Hart KC
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here
Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example.
The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.
In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly. Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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2 February 2015 by Guest Contributor
Credit: guardian.co.uk
The Counter-Terrorism and Security Bill begins its final stages in the House of Lords today. This blog considered the Bill on its introduction to the Lords. In the interim, both the Joint Committee on Human Rights and the Constitution Committee of the House of Lords have reported, both recommending significant amendments.
Despite repeat flurries of excitement as a coalition of Peers suggest time and again that most of the controversial Communications Data Bill – popularly known as the Snoopers’ Charter – might be a late-stage drop in; the press has, perhaps regrettably, shown little interest in the Bill.
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1 February 2015 by Jim Duffy
Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment
A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”
On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.
After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house.
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30 January 2015 by David Hart KC
Unsurprisingly, the Opinion of the EU Court (just before Christmas – my post here) that the proposed accession of the EU to the ECHR on current terms would be unlawful has not gone down well in Strasbourg.
An excellent post today by Tobias Lock on the Verfassungblog tells the story here, but these are the highlights. In short, the President of the Strasbourg Court, Dean Spielmann, added some text to his review of 2014, in a speech given yesterday, 29 January – here.
Lots of interesting stuff on the 2014 ECtHR case law (and case load), but his withering bit on the CJEU’s Opinion is worth quoting.
Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment.
In short, the CJEU is out of line with the views of the member states, and not least with the obligation in Article 6 of the Lisbon Treaty that the EU “shall” accede to the ECHR.
But Spielmann did not leave it at that, as we shall see.
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28 January 2015 by David Hart KC
R (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment here
The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR.
Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.
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23 January 2015 by David Hart KC
Last week, on 15 January 2015, TTIP was debated in the House of Commons – see here. It is important for us all, but why?
TTIP stands for the Transatlantic Trade and Investment Partnership, a proposed trade agreement between the US, the EU, and various members of the EU including the UK. A sober account of its history and scope was produced for the HoC debate (here), and a rather less polite view is here from George Monbiot.
Now, TTIP contains the usual things which one might expect to see in a trade agreement, such as the reduction or removal of tariffs between the respective trading blocs. And it comes with the usual accompanying material suggesting that all parties will benefit massively from the deal to the tune of billions of euros.
So what is there not to like?
Well, one part of the concern is that it will confer on investors (think multi-nationals) the right to sue governments for regulatory regimes causing loss of profits to those investors. This ability to sue is known as Investor-State Dispute Settlement or ISDS. And the suing does not happen in domestic courts, but in a special international law tribunal consisting of corporate lawyers drawn from the world over. I shall give some examples below of the sort of litigation engendered in the past by ISDS, so you can assess what this means in practice.
TTIP with ISDS is being enthusiastically backed by the present Government – not hitherto a fan of foreign judges taking charge of how our laws comply with external standards.
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19 January 2015 by Guest Contributor
Photo credit: guardian.co.uk
Chief Constable of Greater Manchester v Calder [2015] EWHC B11 – Read judgment
Adam Wagner represented Scott Calder in this case. He is not the writer of this post.
The Greater Manchester Police (‘GMP’) have been unsuccessful in an attempt to obtain an Injunction to Prevent Gang-Related Violence (‘IPGV’ or ‘Gangbo‘) against Scott Calder. The application was based on police intelligence and the lyrics of Mr Calder’s YouTube Grime Rap videos. On 14 January 2015, Mr Justice Blake dismissed the GMP’s appeal to the High Court, and in doing so laid out guidance on the purpose and ambit of the IPGV legislation, which is currently being substantially amended by Parliament.
The below is based on the Judge’s ex tempore judgment (i.e. given at the hearing). We will post the full judgment when it is available.
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9 January 2015 by Guest Contributor
As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.
This blog has already covered the reaction to the shootings in Paris in some detail. The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence. It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.
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8 January 2015 by Adam Wagner
Last night I tweeted that none of the UK newspapers has dared to show a single cartoon from the Charlie Hebdo satirical magazine on today’s front pages. This has been retweeted over 1,500 times and counting. For the Twitter-unitiated, that is a lot. My tweet hit a nerve and I want to explain why I think that is.
The Charlie Hebdo massacre was, for me, even more affecting that the usual indiscriminate Islamist terror attacks. The gunmen targeted political satirists and cartoonists – they killed the clowns. At base it was, as has been said a million times already, an attack on freedom.
Charlie Hebdo is a left-wing satirical magazine. Safe to say it is anti-religious, amongst other things. It has printed many cartoons of religious leaders including of Mohammed. The magazine’s offices were firebombed in 2011 after it changed its title to Charia Hebdo (a play on Sharia, the Islamic system of law). Its staff were under constant threat but remained unbowed.
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