Category: Public/Private
17 October 2013 by David Hart KC
David Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1.
As Mead points out, the judge was probably wrong to do so. On the face of it, the ODA had no rights under the Convention, under A1P1 or otherwise, because it was a public authority, and was likely to be acting as such in its protester-clearing role. One can perhaps save the judge’s blushes, by a slightly different route. The right of free speech under Article 10(1) has to be balanced against the protection of the rights of others under Article 10(2), and the latter would cover the ODA’s property rights which it was enforcing.
But the more fundamental question is why public authorities (think local authorities or NHS Trusts) cannot complain that they are HRA victims. After all, they can be unfairly dumped on by central government, can be lied about, can have their finances cut, their functions or their premises taken away (hospital unit closures), can receive an unfair trial, and ultimately lose their “life” in some governmental reorganisation.
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17 September 2013 by Adam Wagner
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
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26 July 2013 by David Hart KC
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment
HS2 is the proposed high speed rail link to Birmingham and beyond. Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.
The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.
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15 March 2013 by David Hart KC
R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J – read judgment – Updated
In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond. The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.
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13 December 2012 by Adam Wagner
Don’t mention the war
The Government has revealed its plans to reform Judicial Review, and has opened a public consultation which closes on 24 January 2013.
Last month the Prime Minister promised business leaders that he would “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review (JR), the means by which individuals and organisations can challenge poor decisions by public authorities in the courts. He even, in a new twist on Goodwin’s Law, compared cutting down on court challenges to beating Hitler.
The consultation document is detailed and is worth reading. It certainly does not reflect the bombast of the Prime Minister’s statement that “We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race“. What is proposed is a fairly significant reform of the Judicial Review system, and nothing as dramatic as winning World War II. There are, however, some problems with the Government’s analysis which I will come to later.
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24 August 2012 by Guest Contributor
The interaction between the law and religion or belief is rarely out of the headlines. Debate rages about whether Article 9, the human right to freedom of thought, conscience and religion, receives sufficient – or too much – protection in the courts. There has been a considerable amount of litigation, much of it contentious (see, for example, here, here and here)
A new report for the Equality and Human Rights Commission (EHRC) by researchers at London Metropolitan University, including myself, explores these controversies. It is based largely on interviews and roundtable discussions with around 100 religion or belief groups, human rights and/or equality organisations, employers, public service staff, academics and lawyers. It is concerned as much with differing perceptions and understandings of the law as with the law itself. It also examines the practical application of the law in the workplace and public services.
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3 August 2012 by David Hart KC
A, R (o.t.a A) v. Chief Constable of B Constabulary [2012] EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment
The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.
A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.
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10 July 2012 by Rosalind English
Transpetrol v Slovakia, Application no. 28502/08 – read judgment
The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.
The applicant s a joint-stock company trading in oil. In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.
The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company. The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
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30 May 2012 by Rosalind English
R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd [2003] 1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
Background
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
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19 March 2012 by David Hart KC
Barr v. Biffa, CA, 19 March 2012, read judgment
For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill, Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.
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31 January 2012 by Guest Contributor
The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
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29 January 2012 by Rosalind English
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered.
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1 December 2011 by Adam Wagner
There is just over a month left to respond to the Government’s consultation on the Justice and Security Green Paper. Responses have to be be sent via email or post by Friday 6 January 2012.
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
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6 November 2011 by David Hart KC
Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) 3 November 2011. This significant decision of the First Tier Tribunal (FTT) is well described on 11 KBW’s Panopticon blog. So just a few thoughts on a case which has the hallmarks of going to appeal.
The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.
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4 November 2011 by Adam Wagner
JUSTICE, a law reform and human rights organisation, has today published a significant and wide-ranging critique of state surveillance powers contained in the Regulation of Investigatory Powers Act (RIPA).
The report – Freedom from Suspicion – Surveillance Reform for a Digital Age – is by Eric Metcalfe, former director of JUSTICE and recently returned to practise as a barrister. It reveals some pretty stunning statistics: for example, in total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.
The report is highly critical of the legislation, which it argues is “neither forward-looking nor human rights compliant“. Its “poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread.” Metcalfe recommends, unsurprisingly, “root-and-branch” reform.
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David Mead, in an interesting post – here – about “publicness” in section 6 of the Human Rights Act, looks at a case in which the Olympic Delivery Agency got an injunction against protesters: Olympic Delivery Authority v Persons Unknown . The ODA was a public authority, and the protesters were advancing defences under Articles 10 (freedom of expression) and 11 (freedom of association). Arnold J dismissed the defences on the basis that these rights needed to be balanced against the ODA’s rights to property under A1P1. 
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