2 February 2013 by Adam Wagner
Remember Pearl Harbour? Not the 1941 attack which propelled the USA into World War II, but the awful 2001 film starring Ben Affleck. What really sticks in the mind wasn’t the film itself, but the critical reaction. It is hard to remember a more gleeful spectacle, captured here, than reviewers falling over themselves to see who could produce the most withering response.
No doubt inspired by the Prime Minister’s own World War II analogy (on reflection, something of a hostage to fortune), legal commentators and organisations have also been falling over themselves, if not gleefully, to express their collective displeasure and disbelief at the poor quality of the Government’s proposals to reform Judicial Review.
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1 February 2013 by Rosalind English
Denise McDonagh v Ryanair Ltd [2013] EUECJ C-12/11 (31 January 2013) – read judgment
“Congratulations! You have arrived on yet another ontime Ryanair flight. Ryanair – for the lowest fares and the best ontime record. Outstanding”
… or maybe not so outstanding.
On 11 February 2010, Ms McDonagh booked a flight with Ryanair from Faro (Portugal) to Dublin (Ireland) scheduled for 17 April 2010. On 20 March 2010, the Eyjafjallajökull volcano in Iceland began to erupt. On 14 April 2010, it entered an explosive phase, casting a cloud of volcanic ash into the skies over Europe. On 15 April 2010, the competent air traffic authorities closed the airspace over a number of Member States because of the risks to aircraft. Ms McDonagh’s flight was cancelled following the closure of Irish airspace. Ryanair flights between continental Europe and Ireland resumed on 22 April 2010 and Ms McDonagh was not able to return to Dublin until 24 April 2010. In the intervening week, no efforts were made by the airline to provide Ms McDonagh with the care to which she was entitled under the relevant EU Regulation No 261/2004, providing rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
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1 February 2013 by Guest Contributor
AI v MT [2013] EWHC 100 (Fam) – Read judgment
The Times (amongst others) today deserves a spell on the legal naughty step. Its headline announces that a judge’s decision “opens way to divorces by Sharia“. One might expect therefore to find that the judgment giving rise to the headline – the decision of Baker J in the Family Court in AI v MT – was about Sharia law, or otherwise had something to do with it. In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.
The judge approved a final order in matrimonial proceedings by consent. That consent order had arisen from the Beth Din. It did not elevate the Beth Din to the status of the High Court. To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):
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30 January 2013 by David Hart KC
Bank Mellat v Council of the European Union (supported by EU Commission), EU General Court, 29 January 2013 read judgment
In October 2009, Bank Mellat, an Iranian bank, was effectively excluded from the UK financial market by an Order made by the Treasury, on the basis that it had or might provide banking services to those involved in Iran’s nuclear effort. The Bank challenged the Order, and the challenge failed in the Court of Appeal, albeit with a dissent from Elias LJ: see Rosalind English’s post and read judgment. The Bank’s appeal to the Supreme Court is due to be heard in March 2013; it raises some fascinating issues about common law unfairness, Article 6, and the right to property under A1P1 , given that the Bank was not told of the intention to make the Order prior to its making.
The current case concerns an EU set of measures initiated in 2010, which led to the freezing the Bank’s assets on essentially the same grounds, namely involvement with the Iranian nuclear effort. And the EU General Court (i.e. the first instance court) has just annulled the measures – for lack of reasons, lack of respect for the rights of the defence, and for manifest error. So keep an eye on these two parallel cases, in the Supreme Court and in the EU Court of Justice on appeal from this decision.
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30 January 2013 by Guest Contributor
The government’s Justice and Security Bill has this week entered a new phase of debate in the House of Commons as it is considered in detail by a 19-member Public Bill Committee over the next month. The critics of this Bill – and there are many – argue that it will make “secret justice” a standard part of our legal process. The latest set of amendments proposed by the government were revealed yesterday and within them lies a crucial and unjustifiable secrecy provision. The significance of the amendments becomes apparent when one looks at how the Bill has progressed so far.
In its original form the Bill said that a court “must” use closed material proceedings if there would be a disclosure of information that would harm national security interests. It would not matter how small the damage, it would not matter whether there were other public interests in disclosure of the material, and the court had no discretion.
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30 January 2013 by Rosalind English
Graiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment
The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.
In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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30 January 2013 by Rosalind English
T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice [2013] EWCA Civ 25 – read judgment
The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.
Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.
See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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29 January 2013 by Guest Contributor
Now that the idea of a new UK Bill of Rights appears to be buried, choices re-emerge. The predicted outcome of the London-based Commission’s work was finally confirmed in December. Where now for human rights?
Thinking beyond the European Convention on Human Rights was never confined to this generation or any one process. The limitations of the Convention are well known, and critical material is not lacking. Talk of next steps circles around ‘going beyond’ and ‘building on’ existing achievements in several senses. The feeling that it is possible to improve; that the world of human rights captures more than the HRA or the ECHR. The more ill-defined talk of ‘ownership’ that resembles constitutional patriotism in desperate defence of a union in transition, and the disguised nationalist/unionist positions that occasionally surface.
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27 January 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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.
Commentary on the Eweida Christian cross case continued to dominate legal commentary this week, some of it critical of the European Court of Human Rights. Bloggers have also welcomed the go-live of the Supreme Court’s online archive of judgment summaries. Some interesting cases in the courts this week this week relating to attempts to use the European Convention on Human Rights in a housing dispute, as well as (in a similar vein) a local council’s ability to withhold details of vacant properties from potential squatters. Keep an eye out next week for the publication of the Mid-Staffordshire NHS Trust Public Inquiry on 5th February.
by Daniel Isenberg
If you would like your or your organisation’s response to the Government’s Judicial Review consultation, please email it to Adam Wagner by the end of Monday.
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25 January 2013 by Rosalind English
Michael Sims v Dacorum Borough Council [2013] EWCA Civ 12 – read judgment
This was a property dispute which broke out on the marriage breakdown of two joint tenants of council property. The wife who sought termination of the periodic secure joint tenancy by unilateral notice. The husband, as the other joint tenant still living in the property, maintained that he was entitled remain there as a sole tenant.
In fact, the point had already been settled in the case of Hammersmith and Fulham LBC v. Monk [1992] AC 478 which established that at common law, a periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.
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25 January 2013 by Adam Wagner
“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.
Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:
A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.
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24 January 2013 by Rosalind English
Prudential plc and another , R (on the application of) v Special Commissioner for Income Tax and another [2013] UKSC 1 23 January 2013 – read judgment
The Supreme Court has ruled that legal advice privilege should only apply to advice given by a member of the legal profession; that this is what the common law has always meant, and that any wider interpretation would lead to uncertainty. Two strong dissents do not find any principled underpinning for the restriction of the privilege to advice from solicitors or barristers.
The following summary is based on the Supreme Court’s press release (numbers in square brackets denote paragraphs in the judgment).
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24 January 2013 by Adam Wagner
The European Court of Human Rights got off lightly in the Prime Minister’s In-Out speech yesterday, with just a single passing mention. No surprises there, as the speech was about the European Union, a separate organisation from the Council of Europe, which runs the Strasbourg court. Withdrawing from the European Union would not mean withdrawing from the European Court of Human Rights.
Yesterday was, however, an exception. Ordinarily, the European Court of Human Rights is a large presence in the in-out Europe debate. And, from the amount of coverage and political argument the court generates, you might be forgiven for thinking it rules against the UK hundreds of times per year. The Court has just released its statistics for 2012, and the figures may surprise you.
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23 January 2013 by David Hart KC
Piper v. Hales, HHJ Simon Brown QC, 18 January 2013 read judgment
Two types of readers may be interested in this case; the first, who are interested in the age-old judging problem of whom to believe when faced with a conflict of evidence, and the second (and I don’t want to do any gender-stereotyping) those who are fascinated in whether a replica Porsche 917 (think Steve McQueen in Le Mans) over-revved and blew because (a) it had a gearbox fault or (b) the Defendant driver missed a gear.
I will disappoint the second set of readers – but the judgment is short and well-written, so, chaps, read it for yourselves to find out why the gearbox was acquitted of all charges laid against it.
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22 January 2013 by Guest Contributor
Supreme Court Live in action
Following yesterday’s welcome announcement that the UK Supreme Court (UKSC) is uploading judgment summaries to YouTube (see Adam’s post), there has been some speculation as to whether the UKSC will take the next step in its embrace of digital technology and upload full hearings of trials. But could taking this step result in falling foul of the UK’s copyright law?
There are several issues to consider here. Firstly: who owns the recording? Secondly: what rights do the individuals involved in the recording have? And finally: what defences (if any) apply?
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