No standing for the Inuit in Luxembourg

12 October 2013 by David Hart KC

Inuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post

This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.

The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]

Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.

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Aarhus for real beginners

12 October 2013 by David Hart KC

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

• Access to environmental information
• public participation in environmental decision-making, and
• access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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Deportation of foreign criminals: the new immigration rules are a “complete code”

9 October 2013 by Rosalind English

MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment

In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A  were introduced into the Immigration Rules HC 395.  I have posted previously on the interpretation of these rules here and here.

The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and  the individual right to family life:

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Why Mrs Litvinenko did not get her PCO – but what if it had been an environmental claim?

9 October 2013 by David Hart KC

R (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin)  4 October 2013, judgment behind Lawtel paywall       UPDATED x 2 

An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.

Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.

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In or Out, JR Standing and Challenging PRISM – The Human Rights Roundup

6 October 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.

Following the Tory Conference, commentators postulated on the topography of the human rights landscape in 2015.  Meanwhile, more looming concerns have been raised about proposed reform of judicial review, while challenges have been raised to the bedroom tax, as well as the UK’s involvement in PRISM.

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Mousa – a costly costs quirk

3 October 2013 by David Hart KC

Mousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment

A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue. 

What then to do about costs? And why is that interesting – promise you, it is important.

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Further guidance on the conduct of Iraqi death inquiries – High Court

3 October 2013 by Rosalind English

Mousa and others, R(on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment

Earlier this year, the High Court ordered that an approach based upon a coroner’s inquest would be the most appropriate form of inquiry under Article 2 EHCR  into claims of ill treatment or killings of civilians by the British armed forces in Iraq (see Adam Wagner’s post on this decision). Here the President of the Queen’s Bench sets out the Court’s views as to the form such inquiries  should take.

1.  A designated Judge, Leggatt J, has been appointed to oversee the conduct of the inquiry.
2. An inquiry ought to be commenced as soon as it is clear that there will be no prosecution in cases to which the Article 2 obligation to hold an inquiry attaches
3. To ensure that the Inspector is able to determine how each death occurred, it should be open to the inquiry to have powers of compulsion over military personnel to give evidence and produce documents.
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Challenging adoption order using human rights

2 October 2013 by Martin Downs

The recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.

In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.

However, the Court also dealt with the issue which had concerned Lord Justice McFarlane  when he gave permission to appeal  namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?

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Surrogacy and maternity rights

2 October 2013 by Rosalind English

C-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion

Case C‑167/12 : C.D. v S.T. – read AG Kokott’s opinion 

Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy.  AG Kokott (female)  concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy.  These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.

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When adoption without parental consent breaches human rights

1 October 2013 by Martin Downs

Re B-S (Children) [2013] EWCA Civ 1146 – Read judgment 

is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (see comment by Rosalind English here)

It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.

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Five posts on why we shouldn’t leave the European Convention on Human Rights

29 September 2013 by Adam Wagner

The Conservative Party Conference began today. As has been the case in past years, human rights policy will have a prominent role to play, but much of which is said will be bluster. The Prime Minister has already said that all options are on the table, including withdrawal from the European Convention on Human Rights (ECHR). Expect more tomorrow when Lord Chancellor Chris Grayling and Home Secretary Theresa May step up to the podium from 2:30pm to 4pm.

Judging from the Prime Minister’s comments as well as Chris Grayling’s in the Spectator, it appears likely that this party conference will be similar to previous ones. Government ministers will promise that a majority Conservative government will replace “Labour’s” Human Rights Act with a Bill of Rights – a longstanding Tory policy which also featured in the party’s 2010 manifesto (at p.79). The promise was scuppered after the 2010 election due to demands from coalition partners, the Liberal Democrats. And, the Tories will continue to make vague threats that “people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg” (Grayling, a self-described “staunch Eurosceptic”) and that ECHR withdrawal “may be… where we end up” (Cameron).

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Tory ECHR Withdrawal, Prisoner Cold Turkey & Niqabs Again – The Human Rights Roundup

29 September 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.

This week the Conservative Party Conference  is likely to generate human rights headlines. Meanwhile,  previous controversies still bubble away. Chris Grayling, taking a break from legal aid cuts, offered his opinion on the Europe debate. Meanwhile, others considered the role of transparency, demeanour, religious freedom and niqabs in the courts, and, with the proposed smoking ban in prisons, smokers may have found another reason not to break the law.

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Aarhus, the A-G, and why the rules on interim remedies need to change

27 September 2013 by David Hart KC

Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

I did an initial post here summarising this opinion from the A-G to the CJEU saying that the UK was in breach of two EU Directives about environmental assessment and pollution control – the breaches concerned our system for litigation costs. It struck me that there was a lot in the opinion, and after some re-reads, I continue to think so. So I will deal in this post with one aspect, namely the finding that the UK is in breach, in requiring an undertaking as to damages by the claimant to back up the claimant’s interim injunction – in the jargon, a cross-undertaking. 

We are back on the well-trodden path of the UN-ECE Aarhus Convention to which the EU has subscribed. Article 9(4) requires that there be review procedures in environmental cases which shall provide “adequate and effective remedies including injunctive relief as appropriate, and be fair, timely and not prohibitively expensive.” And a requirement for a cross-undertaking, the A-G concluded, infringed that provision.

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General Medical Council too late with child sex abuse complaint, rules High Court – Robert Kellar

26 September 2013 by Guest Contributor

Robert Kellar appeared for D in these proceedings

D, R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) – Read judgment

The High Court has strongly affirmed the prohibition against the pursuit of long delayed complaints against doctors in regulatory proceedings. The prohibition arose from the General Medical Council’s own procedural rules. It applied even where the allegations were of the most serious kind, including sexual misconduct, and could only be waived in exceptional circumstances and where the public interest demanded. The burden was upon the GMC to establish a sufficiently compelling public interest where allegations had already been thoroughly investigated by the competent authorities such as the police and social services.

Although the Court’s robust approach is to be welcomed, an opportunity to clarify the relevance of Article 6 ECHR in this context was not taken. The author suggests that Article 6 ECHR has an important part to play in protecting the rights of practitioners facing long delayed complaints.

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Denial of contact with father too “draconian” – Court of Appeal

26 September 2013 by Rosalind English

M (Children) [2013] EWCA Civ 1147,  20 September 2013 – read judgement

The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under  Article 8.

The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge.  She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father.  When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
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