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R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J read judgment
An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.
Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.
Stannard (t/a Wyvern Tyres) v. Gore, Court of Appeal, 4 October 2012 read judgment
The best part of a thousand years of law has been distilled into this scholarly resolution by the CA of an age old problem. Who pays for the consequences of an accidentally caused fire – the landowner where the fire started or the neighbour who suffered the loss?
The case is a good illustration of the dangers of the incremental development of our judge-made common law – under scrutiny from time to time from Strasbourg for its lack of precision or unjustness in its wilder reaches, but which has generally passed muster from the European Court of Human Rights: see here or the famous Sunday Times thalidomide case on the then common law of contempt.
Much of the law of civil wrongs (lawyers call it tort) is decided by judges on a case by case basis. When this has gone for too long, the law gets all thickety, dominated by a lot of one-off decisions driven by their specific facts, and where the judge don’t necessarily have their eyes on the wider picture. And these decisions can get way out of date anyway. It is a bit like a student fridge – people rarely clean it out and start again. Changing the metaphor, the law is then in need of a bit of slash-and-burn, and the Law of Fire got that pretty effectively from the CA last week.
Protective Costs Orders (PCOs) are a relatively new feature on the legal landscape. The Buglife case is of general significance in relation to the procedure and approach to be adopted in relation to PCOs, and associated costs caps, as set out in the Court of Appeal’s judgment of 4 November 2008, which is reported at [2009] Env LR 18 (Buglife (1)). Separately and more specifically, the substantive claim for judicial review is also notable, as an example of the Court’s approach to a planning decision to allow a development on a site of environmental significance. This was also considered by the Court of Appeal: Buglife (2).
Faulkner, R (on the application of ) v Secretary of State for Justice and another [2013] UKSC 23 – read judgment
The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.
These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.
Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants. Continue reading →
The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.
Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.
Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.
The Foreign Secretary William Hague has sought in today’s Daily Telegraph to re-emphasise the “centrality of human rights in the core values” of UK foreign policy. On the face of it, this is a laudable aim. But does it really mean anything? And may it in fact amount to an unrealisable promise?
The editorial evokes Mr Hague’s early commitment to put human rights at the “irreducible core” of UK foreign policy. This pledge has been questioned recently due to the potential reduction in scope of the Foreign Office’s annual human rights report. Mr Hague addresses this directly, although with little new detail:
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011,
A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.
Businesses, governments and civil society descended on Geneva last week for the 2014 UN Forum on Business and Human Rights, the largest global gathering in the business and human rights field. There were lofty statements of high ambition but the pervasive tone and success of the Forum was more prosaic: nitty-gritty implementation.
It was a conference dedicated to developing and sharing the best practices capable of shifting businesses from showcase philanthropy to real accountability, from vague aspirations to measurable impacts, and from a race to the bottom to a competition to be recognised as world leading. It was a call for real action; as one panel moderator told his coffee-clutching audience early on Day 3: “I want to see dust on everybody’s shoes”.
Some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here:
New human rights body must be independent, says Law Society: The Foreign Secretary announced a new independent advisory group, including non governmental organisations and independent experts, to advise ministers on human rights issues (see our post). The Law Society says it should be on it.
Over the next year the United Nations will discuss and adopt an agenda for global development for 2015 – 2030. It will set out the aims countries should strive to achieve in order to secure economic, social and environmental development.
One of the most contentious points of debate – and one of the most important – will be what role the rule of law will occupy in the post-2015 development agenda. Its significance cannot be overstated as it reaches into the very heart of how our future will be shaped.
This year’s General Assembly meetings commence on 24 September and run until 1 October. They will be crucial in shaping the post-2015 agenda. Of the paths the GA may take, there are two main options:
in one path, the rule of law will be stated as a goal that States should strive to achieve.
in the other, it will not be.
What path should the UN take? And what path will it take? Continue reading →
Gladman Developments v. SoS for Communities and Local Government, Interested Party:CPRE [2017] EWHC 2768 (Admin) 6 November 2017 – read judgment
An interesting example of how our planners must take air pollution concerns far more seriously in the light of the long-running ClientEarth litigation.
The developers wanted to build a total of 470 dwellings and 60 care units in Newington, Kent. Their application went to appeal before a Planning Inspector, and they lost on air quality grounds. They unsuccessfully sought judicial review of his decision.
An Extinction Rebellion protester is removed by police in central London. Credit: The Guardian.
As the general election campaign accelerated this week, the political fall out from the publication of the Grenfell Tower Inquiry contributed to some awkward headlines for both politicians and lawmakers. However, this was by no means the only legal news of the week…
The case turned on the lawfulness of the exercise of powers by the police under section 14(1) of the Public Order Act 1986 to ban XR’s protests earlier this month.
The court ruled that in exercising section 14 powers, the police were required to identify a location to be covered by the powers conferred by the Act. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, were not held to be one public assembly within the meaning of section 14(1). Consequently, the decision of the police to impose the condition across a wide area of London for several days was unlawful, being outwith the powers conferred by section 14(1).
Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment
The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions, the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.
Background
In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…” Continue reading →
At present, the lockdown continues. Image: The Guardian
Previously on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights.
In the first of two response articles, Leo Davidson argued that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis.
In this article, Dominic Ruck Keeneand Henry Tufnell argue that the challengers to the legislation have not shown that the measures adopted by theGovernment are disproportionate in the circumstances of the pandemic.
This is a summary of a paper published here and inevitably simplifies the detailed arguments and considerations within it. The article represents the views of the authors alone.
Note:This post involves examination of the legal provisions that accompany the restrictions on movement of individuals announced by the Government. Legal scrutiny is important but should not be taken to question the requirement to follow the Regulations.
Introduction
The inevitable has finally happened – a letter before action has been sent to the Health Secretary challenging the legality of the various restrictions that cumulatively make up the current Covid-19 lockdown within the UK through the mechanism of the Health Protection (Coronavirus) (England) Regulations 2020 (as amended) (‘the Regulations‘). The letter before action builds on the opinions previously outlined by Francis Hoar both on the UK Human Rights Blog and in a previous paper concerning the compatibility of the ‘lockdown’ with the ECHR. This post seeks to develop Leo Davidson’s earlier analysis of those arguments.
Here, we make the argument that there has not been a breach of all or any of the relevant ECHR rights, namely Articles 5 (right to liberty), 8 (right to private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 14 (prohibition on discrimination) and by Articles 1 (protection of property) and 2 (right to an education) of Protocol 1. Further, that there is in fact no deprivation of liberty under Article 5.
AJA and others v Commissioner of Police for the Metropolis [2013] EWCA Civ 1342 – read judgment
The words “personal or other relationship” in the section 26(8)(a) Regulation of Investigatory Powers Act 2000 included intimate sexual relationships so that the Investigatory Powers Tribunal had jurisdiction to hear the appellants’ claims that their human rights had been violated by undercover police officers who had allegedly had sexual relationships with them
There were two groups of claimants in this case. The first three were represented by Birnberg Pierce & Partners (referred to as “the Birnberg claimants”). The second three were represented by Tuckers (referred to as “the Tuckers claimants”). Both groups alleged that they had suffered violations of their rights under Articles 3 and 5 by the officers for whom the respondents were responsible and that such conduct was contrary to the Human Rights Act 1998 s.6(1). They appealed against a decision that the Investigatory Powers Tribunal had jurisdiction to decide their human rights claims and that High Court proceedings should be stayed pending the IPT’s determination. Continue reading →
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The Foreign Secretary William Hague 
Businesses, governments and civil society descended on Geneva last week for the 
Herrmann v Germany (Application no. 9300/07) 26 June 2012 – 
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