1 December 2017 by David Hart KC
Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment
A vignette of where
(1) Trinidad and Tobago is,
(2) the EU/UK is,
(3) where Michael Gove may wish us to be post-Brexit,
on the Polluter Pays Principle (PPP), a key environmental principle.
As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).
Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.
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1 December 2017 by Jonathan Metzer
On 29th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.
These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.
Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.
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1 December 2017 by Dominic Ruck Keene
Ratko Mladić was one of the most notorious figures of the war in Bosnia.
He was Commander of the Main Staff of the Bosnian Serb Army between 1992 and 1995. He was indicted in 1996, arrested in 2011 and tried between 2012 and 2016.
Last week the International Criminal Tribunal for the former Yugoslavia delivered its judgement. Mladic was found guilty of genocide in Srebrenica, crimes against humanity for ethnic cleansing of Bosnian towns and the siege of Sarajevo, and war crimes for the hostage taking of UN staff to stop NATO intervention.
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30 November 2017 by Guest Contributor
Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916 – read judgment
In a landmark decision handed down on 28th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.
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30 November 2017 by Rosalind English
Updated: Brexit, Article 13, and “animal sentience” in law (28 November 2017) – Animal Law’s Expert Briefing Note
In November 2017 a vote took place in the House of Commons on a proposed amendment to the EU (Withdrawal) Bill. The Commons Library briefing paper was published on 7 December: Animal Sentience and Brexit. The amendment sought to incorporate into UK law a provision in the European treaty that stated the EU and its member States “shall, since animals are sentient beings, pay full regard to the welfare requirements of animals” when formulating and implementing the EU’s policies. The vote was defeated by 313 to 295 votes.
The story of this debate has prompted a great deal of comment in newspapers and on social media, mostly critical of the UK Government’s position. The coverage reflects much of the prejudice and confusion attaching to animals reared for our use, be it for medical therapy, food or companionship. That is to be expected. But what is less excusable is that most of the coverage was based on misunderstandings of both the Treaty Article and other EU provisions relating to animals.
So may I put in a plea for anyone who is interested to read the clear and balanced account of this issue set out by the UK Centre for Animal Law in their Briefing Note, which I will attempt to summarise here. I do urge reading the original document, which is an excellent summary of the legal and factual issues involved.
A quick reminder
When the Brexit vote came in, I wrote a post under the heading of One Trade Freedom We can Do Without. Maybe not tactful timing then, but this question is now ripe for consideration, with DEFRA secretary Michael Gove promising better protections for animals raised for food, and even for companion animals such as dogs and horses, once they are no longer trapped in the imperative of free movement of goods under the EU Treaty provisions.
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30 November 2017 by Rajkiran Barhey
Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al Hijrah School [2017] EWCA Civ 1426 – read judgment
Update: Listen to the Law Pod UK podcast episode 20, available for free download from iTunes or from Audioboom here.
This fascinating judgment, delivered by the Court of Appeal on 13 October 2017, found that a policy of gender segregation in a co-educational school amounted to unlawful gender discrimination.
Background
Al-Hijrah School taught children from ages 4-16 according to an Islamic ethos. At age 9, children were segregated completely by gender in lessons, breaks, school trips, clubs etc. Following an inspection in June 2016, Ofsted published a report criticising segregation as gender discrimination.
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28 November 2017 by Rosalind English
MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment
Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?
The claimant sought damages arising out of the wrongful birth of her son Adejuwon. She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000.
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28 November 2017 by Rosalind English
If you download Episodes 17 and 18 from iTunes or Audioboom, you will hear Jim Duffy discussing the proposed inquiry into the contaminated blood scandal which took place during the eighties and nineties. Episode 18 features a discussion between former historians now barristers Matthew Hill and Gideon Barth on inquiries in general, particularly ones that have been set up to investigate events which took place in the distant past.
Law Pod UK Episode 7: Prospects for the Tainted Blood Inquiry
Law Pod UK Episode 8: Do Judge Led Inquiries Work?
Related Posts:
Law Pod UK is available for free download on iTunes, Audioboom, Stitcher or wherever you get your podcasts. If you like what you hear, please subscribe, rate and leave a review to support our podcast.
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28 November 2017 by Charlotte Gilmartin
R (on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC [2017] EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge read judgment
Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here
The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.
This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.
Factual Background
In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.
The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area.
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26 November 2017 by Adam Wagner
I wanted to alert you to a campaign RightsInfo has been running called #FightHateWithRights.
It’s about fighting the rise of extremism by standing up for human rights. Because social breakdown and even genocide don’t happen overnight – they are the result of the steady denial of rights over months or years. By protecting human rights, we also protect against the small cuts to liberty which can lead to far worse.
You can see all of the videos and resources here.
I have posted some of the key video content below the break, including a film featuring three genocide survivors spanning 70 years, a film featuring Professor Philippe Sands and a short video where I sum up the points of the campaign.
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25 November 2017 by David Hart KC
Privacy International v. Investigatory Powers Tribunal [2017] EWHC EWCA Civ 1868, Court of Appeal, 23 November 2017
Introduction
As all lawyers know, the great case about courts confronting a no-go area for them is the late 1960’s case of Anisminic.
A statutory Commission was given the job of deciding whether compensation should be awarded for property sequestrated, in the particular case as a result of the 1956 Suez crisis. The Act empowering it said that the
determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.
The House of Lords, blasting aside arcane distinctions, said that this provision was not enough to oust judicial review for error of law.
Fast forward 50 years, and another Act which says
determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.
The Court of Appeal has just decided that, unlike Anisminic, this Act does exclude any judicial review.
Why?
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24 November 2017 by David Hart KC
We are delighted to announce that Jonathan Metzer has been appointed the new Commissioning Editor of the UK Human Rights Blog.
Jonathan practises across a range of human rights-related areas, including public law, immigration, inquests and public inquiries. He will develop the work of the existing and previous editorial team in ensuring that the Blog remains one of the go-to resources for any reader interested in the latest developments in human rights law.
We thank the outgoing editors Michael Deacon and Hannah Noyce for their excellent work over the last 12 months.
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21 November 2017 by Guest Contributor
Ratzenböck and Seydl v Austria (ECtHR) 26 October 2017 – read judgment
Equal civil partnerships divide opinions. For their proponents, access to such a status, and the legal benefits that follow, allows couples critical of marriage – whether same or different-sex – the ability to express their relationship through (in their view) a more appropriate, modern and egalitarian legal institution. Opponents question such a need in light of the availability of civil marriage, which has over centuries evolved and may not now necessarily be perceived as embodying the patriarchal or heteronormative values that its critics challenge. Calls for allowing different-sex as well as same-sex couples to enter civil partnerships in England and Wales have grown louder recently following the failed Equal Love case (Ferguson v UK), the production of several Private Members Bills and the on-going litigation in Steinfeld and Keidan v Secretary of State for Education, due to be heard by the Supreme Court in Spring 2018. The desire, however, for different-sex civil partnerships is not limited to this jurisdiction, and was recently explored for the first time by the Strasbourg court in Ratzenböck and Seydl v Austria. After exploring the background to this legal challenge, this post will critically analyse the reasoning of the Strasbourg Court and assess its implications for the challenge in Steinfeld.
The key argument this piece puts forward is that states should not maintain asymmetry of access to formal relationship statuses based on sexual orientation: if a state has introduced registered (civil) partnerships it should open them to both different and same-sex couples, an argument that also applies to marriage. The term ‘asymmetry of access’ will be used to cover: offering access to marriage for different-sex couples and no such access to same-sex ones who also cannot access any registered partnership scheme; offering access to marriage to different-sex couples and access to such a scheme to same-sex ones; offering access to either of two formalised relationship statuses to one group of couples, based on gender and sexual orientation, and access to only one such form to the other group.
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17 November 2017 by Rosalind English
Scotch Whisky Association v Lord Advocate and Another (Scotland) [2017] UKSC 76 – read judgment
The Supreme Court has ruled that the introduction of minimum pricing into the sales of alcohol in Scotland will not constitute a disproportionate measure interfering with the free movement of goods and competition in the EU. The initial legislation that paved the way for minimum pricing was approved by the Scottish parliament five years ago but has been under legal challenge since. The Scottish Parliament had decided to address the health and social consequences arising from the consumption of cheap alcohol by a minimum pricing regime. They did this by inserting in the Scottish licensing legislation an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation. The current proposal is 50 pence per unit of alcohol.
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13 November 2017 by David Hart KC
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.
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