Category: LEGAL TOPICS
13 September 2013 by David Hart KC
Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here
“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that).
Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape – see my post), and now this case saying that the UK has a systemic problem with excessive costs.
But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.
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9 September 2013 by Rosalind English
Re A (a child) [2013] EWCA Civ 1104 – read judgment
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”
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9 September 2013 by Adam Wagner
The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.
“Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of Lord Chancellor “exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case in such a nakedly political and incendiary way.
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7 September 2013 by David Hart KC
ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here
Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.
The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.
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7 September 2013 by Rosalind English
CM, Re Judicial Review [2013] CSOH 143 – read judgment
The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.
The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds. He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.
The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him.
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4 September 2013 by Guest Contributor
Cross-government coordination on an issue that affects trade, international development, foreign affairs, business activity and human rights is remarkable, especially at such a difficult economic time. So the UK’s Action Plan on Business and Human Rights, which is the government’s long-awaited strategy for implementing the 2011 UN Guiding Principles on Business and Human Rights, is to be applauded for this achievement. Yet, while the Plan establishes clear expectations that UK companies should respect human rights, there are no effective legal requirements placed on them to do so.
In issuing this Plan, the Foreign Secretary and the Business Secretary reinforce the business case for respecting human rights, which includes reputational, legal and investment risk issues, and consumer expectation reasons. They also note that protection of human rights is good for business and communities, as “the thread of safeguards running through society that are good for human rights – democratic freedoms, good governance, the rule of law, property rights, civil society – also create fertile conditions for private sector led growth”. Adam Smith thought that this was required over two and a half centuries ago.
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4 September 2013 by Guest Contributor
Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.
At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” – politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.
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28 August 2013 by Rosalind English
Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment
In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.
The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.
Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.
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26 August 2013 by Adam Wagner
As the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.
The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.
Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:
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20 August 2013 by Adam Wagner
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
But we know , somewhere in the back of our minds, that we are being fooled.
As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.
That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.
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14 August 2013 by Guest Contributor
The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007. The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now. The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department.
The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself. Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.
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12 August 2013 by David Hart KC
C-501/11P Schindler v. European Commission, CJEU, 18 July 2013 – read judgment
Two things of general interest to the human rights lawyer in this unsuccessful attempt by Schindler to challenge a fine of a mere €143 million for anti-competitive behaviour before the EU’s top court.
The first is that the Commission’s role as investigator, prosecutor and enforcer was not found to be in breach of Article 6(1) – because its decisions were subject to “full review” by the EU judges. The second is the remark in the CJEU’s judgment that the EU status of Article 6 ECHR will change when the EU accedes to the ECHR – I shall look at whether this change will be formal or substantive, given the presence of an equivalent right in the EU Charter, within Article 47.
Like a lot of decisions involving issues of high principle, the underlying facts do not reflect well on the offending company, in this case Schindler. It, with three other companies (Kone, Otis and ThyssenKrupp), stitched up the lift and escalator markets in Belgium, Germany, Luxembourg and the Netherlands. Somebody tipped off the Commission, who conducted a massive investigation, and fined all these companies. As is standard, the process of investigation did not involve any oral hearing, with some limitations on the access by the accused companies to all the material which the Commission received.
As my image shows, cartel fines by the Commission involve big big money, and I dare say they dwarf any fines levied by member states on “true” criminals.
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2 August 2013 by Guest Contributor
Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment
The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?
The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.
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1 August 2013 by Alasdair Henderson
Sindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.
The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).
The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.
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30 July 2013 by Guest Contributor
According to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:
We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.
This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.
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Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 
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