Category: LEGAL TOPICS
4 December 2014 by Adam Wagner
Dominic Grieve QC was appointed as the Coalition Government’s Attorney General in May 2010. He remained in post until July 2014 when he was sacked. He said he would “happily” have stayed on, but the reality was that he could not support the Conservative Party’s radical plans to reform UK human rights law.
Since then he has become a fierce and impassioned critic of the Tory plans, somewhat surprisingly given his public persona which is otherwise calm and lawyerly. He has produced two detailed, and devastating, critiques: the first in Prospect Magazine and then last night in a lecture at University College London. Both are highly recommended as measured and unarguably correct analyses of the Tory plan.
To my mind, Dominic Grieve QC is a bit of a hero. He has stood up for principle at the expense of his political career. He did not just resign in disgust, he then made it his business to explain to people – and particularly those on the Right – why the Tory plans would be “devastating both for ourselves domestically as it will be for the future of the Convention” (p.24).
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1 December 2014 by David Hart KC
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
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1 December 2014 by Martin Downs
Photo credit: guardian.co.uk
Over the last month Mr Justice Keehan has made a series of injunctions at the behest of Birmingham City Council designed to protect a vulnerable child in care from being groomed. It seems that the Orders are of such breadth that they are believed to have entered uncharted territory but there are questions whether there is any authority for this development.
Much attention has been given to a series of hearings in October and November during which the press have having been permitted to name six of the men (in the teeth of opposition from West Midlands Police) subject of these injunctions. However, no Judgment has yet been placed in the public domain. On that basis, there appears no choice but to try and piece together what has occurred from the media coverage.
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27 November 2014 by Guest Contributor
Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment
The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.
Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.
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25 November 2014 by David Hart KC
Islamic Investment Co v. Symphony Gems & Mehta, 19 November 2014, Hamblen J – judgment here
Hamblen J observed that “the facts…are so extraordinary that they could have come from one of A.P. Herbert’s “Misleading Cases”. Yes indeed. A solicitor decided to make up three years of litigation, writing some fake judgments, pretending to instruct barristers, and churning out fictitious correspondence.
Why? It is not clear from the judgment, though one or two clues are given.
The fraud surfaced in a long-running dispute between a claimant finance company seeking repayment of a loan, and the first defendant, diamond traders, and the second and third defendant guarantors. The defendants now owe the claimant $14m. The defendants do not want to pay $14m, and have taken every point in resisting the claimant’s attempts to secure its money – so much so that in October 2010 David Steel J decided that the second defendant, Mr Rajesh Mehta go to prison for his refusal to explain where his assets were, by activating a previously suspended committal order.
The current application was Mr Mehta’s application to set aside all adverse court orders. His reasons – my solicitor had acted against me, and was deliberately trying to prejudice me in my affairs in making up all this litigation.
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23 November 2014 by David Hart KC
Magna Carta Uncovered, Hart Publishing, October 2014 – details here
Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over the European Convention versus “rights brought home”.
The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since.
Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.
We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.
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19 November 2014 by David Hart KC
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs , CJEU, 19 November 2014 – read C404-13
In May 2013, the UK Supreme Court (here) was sufficiently concerned about the UK’s lack of compliance with EU legislation, Directive 2008/50 (nitrogen dioxide etc in air) to refer various issues to the CJEU in Luxembourg.
The UK has been in breach of Article 13 the Directive since 1 January 2010, because 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and, given the admission, the first instance judge and the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings. And those lower courts disagreed with ClientEarth’s interpretation of the Directive, which, as we shall see, has now for the first time been upheld by the CJEU.
The Supreme Court went rather further; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning of the Directive to the CJEU.
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19 November 2014 by Guest Contributor
This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.
There is currently a vigorous debate in the UK on the status and future of the European Convention on Human Rights in national law and also on the relationship between my Court, the Strasbourg Court (ECtHR), the UK Parliament and the domestic judiciary.
In principle, democratic debates on such fundamental issues should always be welcome. Indeed, discussions on the role and functions of institutions of public power lie at the core of the democratic concept. It is therefore essential for the Court and its judges to engage in reasoned and informed debate about their work and its wider European implications.
How Does the ECtHR Discharge Its Mandate?
I have been asked to discuss the question of how the Strasbourg Court discharges its mandate. To give an answer, one must first respond to the fundamental question: What is the Court‘s mandate?
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14 November 2014 by David Hart KC
Sims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and
R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014
A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.
The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.
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7 November 2014 by David Hart KC
R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J read judgment
An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.
Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.
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7 November 2014 by Michael Deacon
R (on the application of FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 – read judgment
The Court of Appeal has held that the physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state’s obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.
FI was restrained by detainee custody officers during an attempt to remove her from the UK in 2011, though the issues on this appeal did not turn on the specific circumstances of her case. In issue was the sufficiency of the framework of safeguards on the use of such restraint as contained predominantly within the Use of Force Training Manual (the “Manual”).
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5 November 2014 by David Hart KC
Bank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 – read judgment UPDATED POST
Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.
Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it. The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court: see judgment. I did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall.
However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.
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29 October 2014 by David Hart KC
Moseley R (ota) v. London Borough of Haringey [2014] UK 56 – read judgment
Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?
The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.
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28 October 2014 by Guest Contributor
Lords Pannick and Faulks
Last night saw the important Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill in the House of Lords. Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary.
Widely – and quickly – reported as a “crushing” or an “emphatic” defeat – in a rare turn – the Government was last night defeated in three consecutive votes on its proposals to restrict access to judicial review. With a ‘hat-trick’ of blows, on three crucial issues, votes on amendments tabled by Lords Pannick, Woolf, Carlile and Beecham were decisive. On the proposal to amend the materiality test – the Government lost by 66. On the compulsory disclosure of financial information for all judicial review applicants, and again on the costs rules applicable to interveners, the Government lost by margins on both counts by 33. A fourth amendment to the Government proposals on Protective Costs Orders – which would maintain the ability of the Court to make costs capping orders before permission is granted – was called after the dinner break, and lost.
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24 October 2014 by Adam Wagner
Photo credit: Guardian.co.uk
It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.
This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.
Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving 1,200 dead and 600,000 displaced.
He has recently stepped down in order to face the charges. He made a speech to the Kenyan Parliament (PDF) on 6 October strongly asserting Kenya’s “sovereignty”, and in doing so he said this:
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Dominic Grieve QC was appointed as the Coalition Government’s Attorney General in May 2010. He remained in post until July 2014 when he was sacked. He said he would “happily” have stayed on, but the reality was that he could not support the Conservative Party’s radical plans to reform UK human rights law. 
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