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Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 – read judgment
Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see here, here, here and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.
There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review
(i) its decision in favour of a Marine Protected Area was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;
(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and
(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.
I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.
Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Court of Appeal, 7 May 2014 read judgment
The Court of Appeal has reversed the robustly expressed view of Haddon-Cave J (see my post here) that the grant of planning permission to a proposed “exclusive” golf club in Surrey should be quashed.
The local planning authority had originally granted permission by the barest of majorities – 10-9, and against its planning officer’s recommendation. The judge had thought that the authority’s decision was irrational, and had misinterpreted or misapplied the concept of “need” in the applicable planning policies.
The Court of Appeal roundly disagreed with these and the other grounds on which the judge quashed the decision.
Barnes v. The Eastenders Group [2014] UKSC 26 read judgment
Not Albert Square, but it could be. The Crown Prosecution Service suspect two individuals of a massive duty/VAT fraud in their cash and carry businesses. The CPS go to the Crown Court (in the absence of the individuals) and get an order to appoint a receiver (i.e. a paid manager) to run the affairs of companies (Eastenders) in which the individuals are involved, as well as a restraint order against the individuals. Both receivership and restraint orders are set aside some months later by the Court of Appeal, on the basis that the HMRC investigator’s statements were largely “broad and unsupported assertions”. Problem: by then the receiver had run up £772,547 in fees.
Simple issue. Who bears those fees? The receiver, the CPS or the companies against whom the order was made? And A1P1 (the right to possessions) made the difference.
A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here. You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.
A number of themes emerge.
The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.
The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.
On 28 April 2014 I debated Dr Lee Rotherham of the Taxpayers’ Alliance at NYU London. The motion was: This House believes the human rights agenda is promoting unfairness in the UK. I was against the motion (as you may have guessed).
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).
Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system. Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.
A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts.
Mr Dhahbi lives in Italy. He was of Tunisian origin, and was not at the time of this case an Italian citizen. He applied for and was refused a household allowance on the sole ground of nationality. He relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement). The Italian court refused his application to have the case determined by the CJEU in Luxembourg.
Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.
Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 472, 15 April 2014 – read judgment
This judgment is a neat illustration of how important it is to keep the concepts of public law and private law unlawfulness separate – they do not necessarily have the same legal consequences.
It arose thus. The Tchenguiz brothers are high-profile businessmen, and they did not take kindly to being arrested and bailed on charges of fraud at the behest of the SFO. They sought judicial review of the search and arrest warrants. In due course, the Divisional Court ([2012] EWHC 2254 (Admin)) held that the SFO had made material non-disclosure and factual misrepresentations to the judge which vitiated the grant of the warrants, and the brothers have brought a substantial follow-on claim for damages – £300 million according to another recent judgement here.
So the Tchenguiz brothers have established unlawfulness, but, as we shall see, this does not automatically entitles them to damages.
A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean.
Here are the headlines, with a reminder of what these cases are about:
First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area.
Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.
Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.
LH, R (o.t.a) v. Shropshire Council [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014 – read judgment
Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of ex parte Baker, there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.
In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness.
The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.
United Company Rusal Plc (R, o.t.a of) v. London Metal Exchange Trust [2014] EWHC 890 (Admin), Phillips J, 27 March 2014 –read judgment
Public law principles allow you to challenge a decision of a public authority if the consultation process preceding it was unfair. Unfairness comes in many shapes and sizes, but the commonest one alleged is that it was not carried out at the formative stage. The authority had already made up enough of its mind so the consultation process ceased to mean anything – it was just going through the motions.
The law is equally clear that an authority does not have to consult on every conceivable option. Indeed it can just consult on its preferred option.
But this decision shows that if it does so it has to be wary, because on the particular facts that may be unfair.
Enter our cast, challenger in the form of Rusal (proprietor one Oleg Deripaska), and the defendant, the London Metal Exchange.
As MPs and Peers consider the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and the Criminal Justice and Courts Bill, Angela Patrick, Director of Human Rights Policy at JUSTICE considers the Lord Chancellor’s view that proposed judicial review changes do not restrict access to judicial review remedies or restrict the rule of law.
Tomorrow (Thursday), MPs will consider a series of detailed amendments to the Government’s proposed changes to judicial review in the Criminal Justice and Courts Bill. The proposed changes to legal aid for judicial review are not up for debate. The Regulations, which will restrict legal aid to only those cases granted permission, are already made and due to come into force on 22 April. There will be no debate on those changes, unless MPs and Peers demand one.
Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment
In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.
The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.
R (o.t.a Rob Evans) v. Attorney-General, Information Commissioner Interested Party, 12 March 2014 – read judgment
The Court of Appeal (reversing a strong court including the former Lord Chief Justice – see my previous post) has decided that correspondence between the Prince of Wales and various government departments should be released. A Guardian journalist had made a request under the Freedom of Information Act and the Environmental Information Regulations to see these documents. The Upper Tribunal had agreed that they should be disclosed.
At that point, the Attorney-General intervened and signed a certificate saying “no”.
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – Read judgment / court summary
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
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Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 – read judgment
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) – 
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