What have the Inuit got to do with keeping EU law in check?

20 June 2012 by David Hart KC

In a recent post I mentioned that there has been criticism of the scope of the EU Aarhus Regulation inserting provisions about transparency, public participation and access to justice into EU processes themselves. It struck me just how confusing the whole area of EU challenges to EU measures is, so I thought I would summarise it as best I can in this and a following post. Here goes; the going may get a bit bumpy, but it is important stuff. I hope also to give some EU context to the debate about whether something is or is not a legislative act under Aarhus which I trailed in that post.

The EU signed up to the Aarhus Convention on environmental matters, as have all the member states. And the EU has made member states implement Aarhus-compliant procedures in major areas such as environmental impact assessment and industrial emissions, via the 2003 Public Participation Directive. The EU also requires member states to introduce a wide-ranging right to environmental information, transposed in the UK via the Environmental Information Regulations. The European Court has also chipped in with its own Aarhus gloss in the Slovakian Bear case; whenever a member state is considering some provision of EU environmental law, it must interpret that provision, if possible, so that it complies with Aarhus standards of public participation, even though those standards may be in the parts of the Aarhus Convention which have not received their own direct transposition into EU, let alone domestic, law.

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New Publication: ‘Justice Wide Open’ Working Papers – Judith Townend

20 June 2012 by Guest Contributor

The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.

In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.

Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.

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Judge orders that anorexic woman can be force-fed | Analysis

19 June 2012 by Richard Mumford

Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) – Read judgment

Update | In an earlier version of this post a question was raised by the author concerning the implications of funding restrictions within the department of the Official Solicitor for cases similar to E’s. The author is happy to make clear that no criticism is made of the actions of the OS in this or indeed any other case in the judgment of Peter Jackson J or in this post.

Mr Justice Jackson has ruled that it would be lawful and in the best interests of a 32 year old woman (referred to in the judgment as “E”) for her to be fed, using physical force or chemical sedation as necessary, for a period of “not less than a year”.

The judgment has sparked considerable press attention, and is also reported to have drawn criticism from Rochdale Lib Dem MEP Chris Davies. Against that background, this post intends to offer a modicum of analysis as to what was decided, why and what lessons the case holds for the future.

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Aarhus Convention trumps EU Regulation, says EU Luxembourg Court

18 June 2012 by David Hart KC

Stichting Natuur en Milieu & Pesticide Action Network Europe v. European Commission (read judgment), and Vereniging Milieudefensie & Stichting Stop Luchtverontreininging Utrecht v. European Commission (read judgment), General Court, 14 June 2012

In these two cases, the General Court in Luxembourg (successor to the Court of First Instance) has decided that the terms of the Aarhus Convention prevail over the EU’s own regulation about access to information, public participation, and access to justice within EU institutions. Therefore NGOs are entitled to an internal review of certain decisions taken by the EU Commission. A decision, it appears, of some controversy, given that the European Commission, European Council and European Council were all arguing against that result.

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Force-feeding, gay marriage and Article 8 (and a half) – The Human Rights Roundup

18 June 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord 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 news

This week has seen the Home Secretary Theresa May take on Article 8 – and the courts – with the announcement that she was seeking the backing of Parliament on the limits of Article 8, the right to private and family life, and that she would expect judges to “follow and take into account” the views of Parliament. In other news, the Church of England submitted its opposition to gay marriage in response to the Government consultation, which has now ended, a judge in the Court of Protection ordered that an anorexic woman should be force-fed, and the Supreme Court dismissed an application by Julian Assange to reopen his appeal against extradition.

by Wessen Jazrawi

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Immigration judges ‘named and shamed’ by Sunday Telegraph [updated]

17 June 2012 by Adam Wagner

Updated | Today the Sunday Telegraph (ST) has named and shamed the “three judges who allowed the most appeals” in cases involving the deportation of foreign criminals (Judges who allow foreign criminals to stay in Britain).

Apparently:

The investigation looked at all 184 appeals against deportation by foreign criminals in the 12 months up to June 1 which were brought under Article 8, in whole or in part, in the Upper Tribunal of the Immigration and Asylum Chamber.

David Barrett (who has form on this blog for poor reporting) and Josie Ensor, who wrote the piece, do not reveal the source of the investigation. Why ever not?

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There is a democratic deficit in the courts… here’s how to fill it

17 June 2012 by Adam Wagner

Church of England’s argument against gay marriage is without foundation – Paul Johnson

15 June 2012 by Guest Contributor

At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.

What exactly is canon law and how does it relate to marriage?

Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.

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Government has still not made case for “inherently unfair” secret trials, say Special Advocates

14 June 2012 by Adam Wagner

Angus McCullough QC and Jeremy Johnson QC at the JCHR

The overwhelming majority of Special Advocates have responded to the Justice and Security Bill by stating that the case has still not been made by the Government for the introduction of closed material procedures  in other types of civil litigation. The full response is available here (PDF).

Fifty Special Advocates have signed the response. This represents an overwhelming consensus of those with substantial experience of the current system of secret hearings.

They accept that the new restriction to national security cases is an improvement, but retain the view expressed in their initial response to the Green Paper consultation, that:

CMPs are inherently unfair and contrary to the common law tradition; that the Government would have to show the most compelling reasons to justify their introduction; that no such reasons have been advanced; and that, in our view, none exists.

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Article 8 and a half – wider than thought, but will it work?

13 June 2012 by Adam Wagner

The Home Office has released its Statement of Intent on Family Migration, which, amongst other things, makes the position a little clearer on its plans for Article 8 of the European Convention on Human Rights, as discussed in my earlier post (thank you to Obiter J for linking to the document in his post).

In short, the changes are much wider than initially thought. The plan is not to simply ask Parliament to approve a declaration of intent on Article 8 as some suspected, but rather to ask Parliament to approve amended Immigration Rules which will set out an extensive, codified definition of the Article 8 balancing factors, in order to:

unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.

The plans, which are set out from paragraph 27 of the report, are therefore more significant than I and others had been speculating, in that they will apply not just to the deportation of foreign criminals as was the focus of the press coverage and Home Secretary Theresa May’s statement to Parliament, but to the whole of immigration law. They also set out the legal reasoning as to why this is expected to bind judges, which appears to originate from an obiter comment in paragraph 17 of the 2007 House of Lords case of Huang.
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Down on the farm: subsidy fraud let off the hook?

12 June 2012 by Rosalind English

Preliminary reference in the case of  Łukasz Marcin Bonda – Case C-489/10 – read judgment

Fraud is wrong, right? In most countries with more or less sophisticated criminal codes, it is an offence to obtain money by false representations, just as it is to thump an old lady over her head and grab her handbag.

In law, these two somewhat disparate actions add up to the same thing: theft, punishable by fines or imprisonment. It is not sufficient, in the latter case to return the poor old party’s handbag, even with the wallet intact. There has to be something more to discourage privateering of this sort. Punitive measures usually follow restitution in such cases.  So why is Luxembourg telling us that theft  in the form of subsidy fraud is an administrative matter, not a criminal one? And if it isn’t criminal, why don’t we all do it (those of us with sufficient agricultural land to qualify, that is)

This was a reference from the national court to the Court of European Union (CJEU) for a preliminary reference in relation to criminal proceedings against Mr Bonda for fraud in his declaration of the agricultural area eligible for the single area payment.
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Will the European Court force churches to perform gay marriages?

12 June 2012 by Adam Wagner

The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”

The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.

Let’s consider the argument. The Church puts a number of propositions. First,

It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.

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Driving disqualification and the limits of EU rights

11 June 2012 by Rosalind English

Vinkov v Nachalnik Administrativno-nakazatelna deynost, Case C-27/11 – read judgment

Buried in the somewhat obscure details of this reference for a preliminary ruling is a hint of how the Court of Justice of the European Union (CJEU) is approaching arguments based on human rights principles as reflected in the Charter of Fundamental Rights of the European Union (‘the Charter’). Put briefly, there has to be a very clear involvement of EU law before a case can be made out under any of its human rights provisions or principles.

The Bulgarian Court of Appeal referred to the CJEU a question for a preliminary ruling arising out of a dispute over penalty points which triggered automatic disqualification from driving under Bulgarian law.
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Article 8 tweaked, human rights exam passed – the Human Rights Roundup

11 June 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your 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.

Thanks to the Jubilee, it was a short week for most of us but there was still plenty happening in the world of human rights. Hot topics included the criminalisation of forced marriage and the UK’s second UPR, and as usual the debate surrounding the Justice and Security Bill rages on. And, today the Home Secretary will unveil her plans to persuade judges to alter how they interpret Article 8 of the European Convention on Human Rights.

by Wessen Jazrawi

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Article 8 and a half

10 June 2012 by Adam Wagner

Tomorrow, the Home Secretary will announce to Parliament plans to give judges guidance on how to interpret Article 8 ECHR (the right to private and family life) in foreign criminal deportation cases. There has been already significant speculation as to whether the long-heralded changes will make much or even any difference.

It is not yet clear whether the Home Secretary intends to restrict the use of Article 8 in foreign deportation cases completely, as suggested here, or rather attempt to tweak the way it is applied by judges. The latter is more likely.

We will report in full when the proposals are revealed. But in the meantime, a quick comment on the slightly odd coverage of the story in the press. For example, the BBC reports:

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