Environmental protection after Brexit

16 May 2018 by Rosalind English

“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework  that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”

Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year.  This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”

The proposed Bill may not see the light of day, if today’s events are anything to go by.  This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.

However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK.
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Environmental judicial review is “prohibitively expensive”, uncertain and insufficient

31 August 2010 by David Hart KC

A Geneva-based international committee has just said (provisionally) that domestic judicial review law is in breach of international law in environmental cases. Why? And does it matter? In this post we will try and explain why, and suggest that it does matter.

On 25 August 2010, the UN-ECE Aarhus Compliance Committee issued draft rulings in two long-running environmental challenges which, if confirmed, may have wide implications for how environmental judicial reviews are conducted in the UK. A key finding was that such challenges were “prohibitively expensive” to mount and this puts the UK in breach of its “access to justice” obligations under Article 9(4) of the Aarhus Convention. In addition, the Committee ruled that the UK’s grounds for judicial review of the substantive legality of decisions were too narrow, and said that the domestic rules as to timing of these challenges were insufficiently certain.

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Privy Council rules on the constitutional status of same-sex marriage in Bermuda

6 April 2022 by Lucy McCann

Attorney General for Bermuda v Roderick Ferguson & Ors (Bermuda) [2022] UKPC 5 — Judgment here, links to hearings here. 

Chantelle Day & Anor v The Governor of the Cayman Islands & Anor (Cayman Islands) [2022] UKPC 6 –Judgment here, links to hearings here. 

The Bermuda Case

In the Bermuda case, the Attorney General of Bermuda appealed the decision of the Court of Appeal for Bermuda (decision here), which found in favour of the Respondents: a gay Bermudian, OUTBermuda (a Bermudian LGBTQ charity), a lesbian Bermudian, and three Bermudians associated with Bermudian churches, holding that s.53 of the Domestic Partnership Act 2018 (“the DPA”) of Bermuda, which confines marriage to a union between a man and a woman, was invalid under the Bermudian Constitution (“the Constitution”).

Lord Hodge and Lady Arden (Lord Reed and Dame Victoria Sharp agreeing) gave the judgment of the Board, allowing the appeal of the Attorney General. Lord Sales gave a dissenting judgment.

Background

Same-sex marriage is highly controversial in Bermuda. The political backdrop to this case is outlined at [25-30]. Importantly, following a general election in 2017 the Progressive Labour Party introduced the Domestic Partnership Bill, which was subsequently passed, in an attempt to reach a viable compromise on the issue of same-sex marriage. The DPA provides for legally recognised domestic partnerships between any two adults, but s.53 confines marriage to a union between a man and a woman.

The Legislature in Bermuda is bound by the Constitution, summarised at [7-9]. Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer a right to marry. Section 8 provides for the protection of freedom of conscience:

no person shall be hindered in the enjoyment of his freedom of conscience…the said freedom includes freedom, either alone or in the community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Although Bermuda is not in Europe, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law through declarations made by the UK pursuant to the Convention (when it was responsible for Bermudian foreign policy) and subsequently permanently renewed after Bermuda became independent. Although it does not apply in domestic Bermudian law, as one of the “antecedents” to the Constitution, it is relevant to the interpretation of constitutional rights [10-21].

Hockeysticks: Climategate Unit told by Information Commissioner to produce weather data

3 July 2011 by David Hart KC

Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.

This environmental information case is the sequel. And, as we shall see, strange is the territory into which the right to information leads us: so far I have posted on pearls and badgers and oilseed rape, bees, lettuces and mobile phone masts. Now we are into global weather data going back to 1850.

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Is the Official Secrets Act about to be used to gag journalism? – Obiter J

18 September 2011 by Guest Contributor

Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school.  She was kidnapped and murdered and her body was found in September 2002.  In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff.  When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail.  The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story. 

The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking.  There is a suggestion that the Official Secrets Act 1989 may have been breached.  The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”

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Hunting, animals, and the evolving landscape of rights

4 July 2012 by Rosalind English

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…”
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Article 11

1 June 2010 by Adam Wagner

Article 11 | Right to freedom of assembly and association

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Article 11 of the Convention provides as follows:

(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.

The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Strasbourg Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.

The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies. States are also under a positive obligation to provide legal safeguards for employees against actions taken by private employers. In one case a private company dismissed the applicant who was a candidate for the British National Party, because he might allegedly have offended clients of ethnic origin if they discovered his leanings. The Strasbourg Court upheld his complaint under Article 11, concluding that his right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs: Redfearn v United Kingdom, 6 November 2012.

Freedom of assembly is often in the news as demonstrations, sit-ins, staged occupations and other forms of protest are part and parcel of the public life of a liberal democracy.   We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 here.

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Government acted unlawfully in assisting USA to prosecute IS fighter — an extended look

14 April 2020 by Sapan Maini-Thompson

To what extent can the government be held liable for facilitating the imposition of the death penalty in a foreign state?

Since signing the Sixth Protocol to the European Convention in 1999, the UK has refused to extradite or deport persons to countries where they are facing criminal charges that carry the death penalty.

There is no judicial precedent, however, which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country. Therefore, in Elgizouli v Secretary of State for the Home Department [2020] UKSC 10, there were two questions before the Supreme Court:

1. Whether it is unlawful at common law for the Secretary of State to provide mutual legal assistance (in the form of evidence) that will facilitate the death penalty in a foreign state against the individual in respect of whom the evidence is sought; and

2. Whether and in what circumstances it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in light of relevant provisions of European Union data protection law, for law enforcement authorities in the UK to transfer “personal data” to law enforcement authorities abroad for use in capital criminal proceedings.

In a judgment which showed tremendous sensitivity to the primacy of the legislature, a majority of the Supreme Court (with Lord Kerr dissenting) held the provision of mutual legal assistance (MLA) was not unlawful under the common law.

Nonetheless, the Court unanimously allowed the appeal on the second ground under Part 3 of the DPA 2018, overturning the ruling of the Divisional Court.

School did not breach suspended pupil’s Convention rights, says Supreme Court

29 June 2010 by Isabel McArdle

In the matter of an application by ‘JR17’ for Judicial Review (Northern Ireland) [2010] UKSC 27

The Supreme Court found that there was no breach of a pupil’s right to education, where he was unlawfully suspended from school but was provided with work to do and home tutoring – read judgment

A pupil was suspended from school after a complaint from a female pupil about the pupil’s alleged misconduct in school. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The principal purported to suspend the pupil in accordance with the Scheme but in fact failed to comply with its requirements. The pupil brought proceedings for judicial review, claiming that the suspension was unlawful and breached his right to education pursuant to Article 2 of the First Protocol of the European Convention on Human Rights, which the Human Rights Act 1998 protects. The Article provides:

No person shall be denied the right to education…

The Court of Appeal made a finding that, although the Scheme had not been complied with, the principal had lawfully exercised a common law power to suspend the appellant.The Supreme Court found that there was no such common law power but that the pupil’s right to education had not been breached by the suspension. During his suspension, work was provided to the boy to do at home and home tuition was arranged.

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When does a case become “prohibitively expensive”?

24 October 2012 by David Hart KC

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

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Anemometers and wind farms once more: PINS now win the day

22 May 2012 by David Hart KC

DCLG v. Information Commissioner & WR [2012] UKUT 

I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.

Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer  appealed.  There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that.  PINS said no; no complex issues arose for which a public inquiry was necessary.

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Judge strikes down Facebook page “Keeping our Kids Safe From Predators”

5 December 2012 by Rosalind English

X v Facebook Ireland Ltd [2012]   NIQB 96 (30 November 2012)   – read judgment

This fascinating case comes to light in the midst of general astonishment at the minimal attention paid in the Leveson Report to the  “wild west” of the internet and the question of social media regulation.

This short  judgement demonstrates that a careful step by step judicial approach – with the cooperation of the defendant of course – may be the route to a range of common law tools that protect individuals from the internet’s incursions in a way which no rigidly formulated statute is capable of doing. As the judge observed mildly,

The law develops incrementally and, as it does so, parallels may foreseeably materialise in factually different contexts.

Background to the case

The plaintiff  (XY) sought an injunction requiring Facebook to remove from its site the page entitled “Keeping Our Kids Safe from Predators”, alternatively requiring Facebook to monitor the contents of the aforementioned page in order to prevent recurrence of publication of any further material relating to the Plaintiff and to remove such content from publication forthwith. 
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New feature | Articles of the European Convention on Human Rights

5 June 2010 by Guest Contributor

The European Convention - now it has its own blog page

We have added a new “ECHR” page where you can access an index of the Articles of the European Convention on Human Rights.

The page can be accessed by clicking here, or by clicking on the “ECHR” tab at the top of any page on the blog.

Each Article has its own separate page with the wording of the Article itself and a brief summary of how it works in law.

You can access this summary by clicking on the “more info” link. You can also click on the “posts” link to see all posts on the UK Human Rights Blog relating to that Article. A few articles don’t have a live link “posts” as we have not posted on it yet. We would welcome your comments on this or on any way we can make the blog better.

The index is reproduced below:
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R. v. Foster: Reigniting the UK Abortion Law Debate

17 July 2023 by Guest Contributor

Last month marked one year since the startling repeal of Roe v Wade on the 24^th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.

Article 10

1 June 2010 by Adam Wagner

Article 10 | Right to freedom of expression

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Article 10 of the Convention provides:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Perhaps unsurprisingly this provision is almost constantly in the news since it involves the core interests of the media, outraged by the development of the so-called “super-injunction” to prevent the reporting of “kiss-and-tell” stories in the celebrity sphere, the main source of profit for the printed press. The current headache for lawmakers and enforcers is how to regulate the dissemination of this kind of information on the internet, particularly social network sites such as Twitter. See our discussions on these issues here, here, here and here.

Although Article 10 guarantees the right to “receive information”, this Article does not require the State to provide access to information which is not already available (Leander v Sweden (1987)9 EHRR 433), although a relatively recent case suggests that the Strasbourg Court may be sympathetic to Article 10 challenges where a government has refused to provide information; in Matky v Czech Republic, application no. 19101/03, the Fifth Section of the Court suggested that an ecological NGO was entitled to access to information about nuclear power stations under Article 10. However this application was ultimately found to be manifestly ill-founded as declared the application manifestly ill-founded, as in the Court’s opinion the interference satisfied the requirements set forth in paragraph 2 of Article 2.

As we see, there are a number of permissible exceptions set out in this Article. Note that no measures in pursuit of these legitimate aims will be justified unless the interference with the individual’s freedom of expression has been “prescribed by law”, and the interfering measure is “proportionate” (see our discussion of these terms in the Article 8 section. Measures can be taken to limit freedom of expression in the interests of the following:

(1)  National security, territorial integrity, public safety, the prevention of public disorder and crime ;

(2)  The impartiality of the judiciary;

(3) The protection of health and morals;

(4) The protection of the reputation and rights of others

(5) The licensing of broadcasting enterprises.

Section 12 Human Rights Act 1998 provides that special regard is to be had to the right of freedom of expression in any case where it is in issue, and the public interest in disclosure of material which has journalistic, literary or artistic merit is to be considered. See Cream Holdings and Imutran v Uncaged Campaigns Limited [2001] EMLR 563 for Section 12 in application.

No interim order may be made that would infringe free speech rights without the respondent being present unless the applicant is able to furnish “compelling reasons” as to why the respondent should not be notified. The full impact of this section in injunction hearings was considered by the Court of Appeal in Douglas and Zeta Jones v Hello! Magazine, 8 May 2005 .

It is important to remember when considering the scope of Article 10 that Article 16 of the Convention also incorporated with the Human Rights Act provides:

Nothing in Articles Article 10, Article 11, and Article 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.

The usefulness of this provision should not be forgotten and it could in theory be used by the government to buttress the measures it wishes to take to combat incitement to arms, religious hatred etc.

Article 16 expressly authorises restrictions on the political activities of aliens even though they interfere with freedom of expression under Article 10 and other freedoms under the Convention.

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