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You live very close to an airport. The airport expands without carrying out an Environmental Impact Assessment as required by the EIADirective. You want to sue the state for loss in value of your property. Can you claim? This is the strikingly simple question the subject of this judgment of the Court of Justice of the EU. And on the day the HS2 ruling came out (post to follow shortly, but compensation consultation unlawful) it is an interesting question to look at.
Eon v France, no. 26118/10 14 March 2013- read judgment (in French only)
The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.
During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan. Continue reading →
David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported.
TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable: Continue reading →
Today, the Scottish Government have introduced the “paving Bill” to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.
Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.
R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment
This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.
Background
In August 2012, the defendant received a request from the Criminal Records Bureau for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism. Continue reading →
Meiklejohn v St George’s Healthcare Trust [2013] EWHC 469 (QB) – read judgment
Richard Booth of 1 Crown Office Row acted for the claimant in this case. He is not the author of this post.
There is no doubt that medical diagnosis and therapy are struggling to keep pace with the genetic information pouring out of the laboratories and sequencing centres. And the issue of medical liability is being stretched on the rack between conventional treatment and the potential for personalised therapy. Treatment of disease often turns out to be different, depending on which gene mutation has triggered the disorder. However fine tuned the diagnosis, it may turn out to be profoundly wrong in the light of subsequent discoveries.
This is perhaps an oversimplified characterisation of what happened in this case, but it exemplifies the difficulties facing clinicians and the courts where things go wrong, against the backdrop of this fast-moving field of scientific endeavour. Continue reading →
The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.
Tesla Motors Ltd and another v British Broadcasting Corporation [2013] EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience. Continue reading →
In a rare public intervention Lord Neuberger, President of the UK Supreme Court, has flagged three important issues that should be of concern to us all.
Firstly, Lord Neuberger has quite rightly criticised the cuts to the Legal Aid budget. Denying litigants a chance to go to court will create ‘frustration and a lack of confidence in the system’, or people will be tempted to ‘take the law into their own hands.’ Lord Neuberger observed that “as one of the three remaining articles of the Magna Carta (1297) says “to no man shall we deny justice”, nowadays “to no man and no woman shall we deny justice”, and we are at risk of going back on that.’
Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment
There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.
Today’s Mail on Sunday reports that the Home Secretary is to announce “soon” that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights if the party obtains an overall majority.
I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not “veer right” and also “stick to the course we are on“. Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the Court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.
While the press (and the rest of us) were preoccupied by the debate on equal marriage and the public dissection of the Huhne marriage, the Justice and Security Bill completed its next stage of passage through the Parliamentary process. Largely unwatched, a slim majority of Conservative members supported by Ian Paisley Jr., reversed each change made to the Bill by the House of Lords restoring the Government’s original vision: a brave new world where secret pleadings, hearings and judgments become the norm when a Minister claims national security may be harmed in civil litigation.
The Bill will return to the Commons for its crucial final stages on Monday. In anticipation of the debate, the Joint Committee on Human Rights (JCHR) has published a third damning critique of the Government’s proposals. The cross-party Committee was unimpressed by the Government rewrite of the Lords amendments. Most of Westminster was busy in Eastleigh and few political commentators flinched.
The Justice and Security Bill, which will allow secret ‘closed material’ hearings to take place in civil trials, has been quietly (almost too quietly) making its way through Parliament. The Bill will allow judges to exclude lawyers, press, the public and even litigants in their own cases from civil hearings which involve national security.
Kafkaesque is a term used in almost every critical article about law ever written. But I have read The Trial (I really have!), and the effect of these proposals is not too far from that.
The key development is that many of the amendments forced through in the House of Lords under the leadership of Lord Pannick have been reversed by the Government. We have a full update coming later on the progress of the Bill, but I thought that in the mean time I would highlight a few up to date resources and developments:
Baroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, not have there ever been.
How did this happen? The answer is we don’t know and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – Read judgment
The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.
The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.
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Leth v. Austria, CJEU, 14 March 2013 read judgment
David Anderson QC, the
Today, the Scottish Government have introduced 
R (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – 
The 
Tesla Motors Ltd and another v British Broadcasting Corporation [2013] EWCA Civ 152 – 
In a rare public intervention Lord Neuberger, President of the UK Supreme Court, has flagged three important issues that should be of concern to us all.
Today’s 
While the press (and the rest of us) were preoccupied by the 
Baroness Helena Kennedy
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD [2013] ECHR 148 (19 February 2013) – 
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