One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
[Updated] In the spirit of our coverage of environmental activism in one form or another, here is the website strapline for the Campaign for Real Farming, which sets out to
achieve nothing less than the people’s takeover of the food supply
Some of the initiatives for that takeover were being aired at the CRF’s “fringe” farming conference which took place in Oxford this week, voicing polite but forceful protest against the high production objectives of the mainstream Farming Conference in the Examination Schools next door.
According to CRF founder Colin Tudge, if we are serious about feeding 9 bn people in a few decades’ time, the current food production system, which is designed to make money, has to be dismantled in favour of small scale, labour intensive farming, which is designed to feed people. Like any reform movement, this “agrarian renaissance” is about wresting power away from existing authorities and it has set its sights on, amongst other things, the constellation of laws and regulations governing the cultivation of food. Continue reading →
The ‘second wave’ of UK coronavirus cases is continuing to surge. The government’s scientific experts have warned that we are at a ‘critical moment’ for handling the pandemic, after daily case numbers doubled this week. In anticipation of a difficult winter, the provisions of the Coronavirus Act 2020 have been renewed for another 6 months; local lockdowns continue in Scotland and in large parts of Wales and the North of England; and Chancellor of the Exchequer Rishi Sunak has set out a rescue package for businesses, under which the government will cover 2/3 of salary payments for businesses forced to close.
Meanwhile, we may finally be about to see the contents of Operation Cygnus, the influenza pandemic readiness exercise undertaken by the government in 2016. NHS doctor Moosa Qureshi made a freedom of information request to see the report more than 6 months ago. Following the government’s delays in responding, the Information Commissioner has now taken a dramatic step in ordering the Department of Health and Social Care to provide the document, or explain its reasons for refusing to do so, by 23rd October.
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.
Four and a half years after Britain voted to leave the EU, and 12 months after Boris Johnson was elected Prime Minister with his ‘oven-ready’ Brexit deal, the UK and European Union finally concluded a trade agreement on Christmas Eve. The deal, yet to be ratified by Parliament, is expected to gain approval without difficulty on 30th December, with the Leader of the Opposition, Keir Starmer, whipping his MPs to approve it. So did this deal supply the Christmas joy we’ve been missing in 2020? What does the deal contain?
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The suggestion that a future Conservative government might withdraw from the ECHR and repeal the Human Rights Act dominated this week’s headlines, with much commentary noting that such measures are likely to have only minimal practical effects on our courts. Lord Neuberger also used his first interview as President of the Supreme Court to speak his mind on a number of issues of human rights concerns; and the Justice and Security Bill continues its passage through Parliament.
Department of Health v. Information Commissioner et al  UKUT 159, 30 March 2015, Charles Jread judgmentSimon Lewis requested that the Department of Health supply him with copies of the ministerial diary of Andrew Lansley from May 2010 until April 2011, via a Freedom of Information request. Mr Lewis’s interest in all this is not revealed in the judgment, but I dare say included seeing whether the Minister was being lobbied by private companies eager to muscle in on the NHS in this critical period. But such is the nature of FOIA litigation that it does not really look at the motive of the requester – and this case does not tell us what the diary showed. Indeed by the time of this appeal, Lewis was untraceable, and the burden of the argument in favour of disclosure was taken up by the Information Commissioner. The real interest in this decision is in Charles J’s robust agreement with the First Tier Tribunal that the information should be disclosed. In so doing, he fully endorsed the criticisms made by the FTT of the eminent civil servants who gave evidence before the FTT – in trenchant terms, as we shall see. He also gave an interesting account of how the public interest qualification should be applied in response to FOIA requests. Continue reading →
The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view.
Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’.
Dobson and others v Thames Water Utilities Ltd  EWHC 3253 – read judgment
David Hart QC acted for the defendants in this case. He has played no part in the writing of this post.
An operator carrying out activities authorised by legislation is immune from common law nuisance liability unless the claimant can prove negligence. Any damages for such a nuisance will constitute “sufficient just satisfaction” for the purpose of the Human Rights Act; even if breach of a Convention right is proved, no further remedy will be available.
It has been a long established canon of common law that no action will lie in nuisance against a body whose operation interferes in one way or another with neighbouring land, where Parliament has authorised the construction and use of an undertaking or works, and there is a statutory scheme in existence which is inconsistent with such liability.
Southern Gas Networks Plc v Thames Water Utilities Ltd  EWCA Civ 33, 25 January 2018 – read judgment
When the supply of gas to your house fails, you are entitled to compensation from the gas undertaker for the inconvenience. If that failure has been caused by another utility’s burst water main, the gas undertaker may seek to recoup its expenses for repair to its own infrastructure and the compensation it has had to pay out to consumers. A simple enough picture.
But behind this straightforward seeming network of liabilities is a labyrinth of common law and statutory relationships whose exploration is not for the faint hearted. As society’s dependence on the provision of energy, water and sewage services grew, during the Industrial Revolution and beyond, parliament had to think of ways to level the playing field between these increasingly centralised powers. This is not a trend that will go away, as the gas, electricity and fibre optic cables become ever more essential to the way we live our lives. Continue reading →
On 1 January 2012, the EU Emissions Trading Scheme started applying to airlines for real. So it was perhaps no coincidence that just before Christmas, and rather more speedily than usual, the EU Court (the CJEU) effectively threw out a challenge by US airlines to the scheme brought in the UK Courts which was referred to the CJEU. The airlines had said that a raft of international rules and conventions were inconsistent with the scheme. The UK denied the unlawfulness; it said, if you want to land in the EU, you have to obey EU rules. I posted on the Advocate-General’s opinion, and the Court has come to the same conclusion albeit by a slightly different route. But, first, what are these emissions trading schemes about?
To celebrate reaching 200,000 listens, and in the event that any of our listeners wish to keep their grey matter ticking over during the heatwave/whilst sipping poolside pina coladas, we have prepared a Summer “Greatest Hits” playlist of our most popular episodes of 2019 so far. We hope you enjoy it, and wish all of our listeners a relaxing summer break.
A veritable powerhouse panel respond to Lord Sumption’s 2019 Reith lectures, as part of the Constitutional and Administrative Bar Association’s summer conference featuring Lord Dyson, Sir Stephen Laws, Professor Vernon Bogdanor, Professor Meg Russell, Lord Falconer and Chaired by Mrs Justice Thornton. This episode is followed by a conversation between Lord Sumption and Lord Justice Singh, responding to the panel. Enjoy!
2. Consent and Causation with Robert Kellar QC (Episode 70)
Emma-Louise Fenelon talks to Robert Kellar about consent and causation, discussing the development of the law since Chester v Afshar through to Khan v MNX.
I am in the middle of a series of posts about the way in which the EU institutions can be kept in check by individuals, including looking at challenges to EU measures (see my Inuit post) and the specifics of seeking an internal review of EU implementing Regulations via the EU Aarhus Regulation 1367/2006 (see my post on the pesticides and air quality challenges). So it was a happy coincidence that last Thursday, the CJEU allowed an appeal in a case concerning documents sought by an NGO from the Commission. We are here in the territory of all EU institutions and all EU issues, not simply environmental questions arising under the Aarhus Convention, though, as we shall see, this is an environmental case.
ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.
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