Search Results for: environmental/page/42/Freedom of information - right of access) [2015] UKUT 159 (AAC) (30 March 2015)

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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Wind and peat: another step along the reasons trail

15 March 2012 by David Hart KC

Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site.  The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity  to deal with his concerns.

So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.

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Promptness in judicial review again: Broads follows Buglife

15 July 2011 by David Hart KC

U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. Read judgment

I posted recently about a case, Buglife,  which affects the rule that judicial review must be commenced “promptly and in any event not later than 3 months.” Buglife decided that, contrary to a previous Court of Appeal case, Finn-Kelcey, a court could not bowl out certain claims if they were  commenced within those 3 months, even if not “promptly”. And the Broads case of this week reached the same conclusion. The key to these cases is that they involve challenging the application of a Euro-directive. 

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Is the New Zealand Parliament about to drop commitment to the rule of law?

31 March 2015 by Guest Contributor

The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) Sir John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.

One of the first legislative measures of the young South Pacific colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, Sir William Martin, was the creation of what is now known as the High Court of New Zealand.

That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. That Act was overseen by the country’s fourth Chief Justice, the remarkable, Shetland born, Sir Robert Stout.
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Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by Rosalind English

McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 
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Annulment: all or nothing? Walloons in a mess about muck-spreading

4 March 2012 by David Hart KC

Case C-41/11,Inter-Environnement Wallonie ASBL,Terre wallonne ASBL v Région wallonne, CJEU, 28 February 2012, read judgment

Some years ago, Belgium got itself into trouble for not properly implementing the Nitrates Directive, a measure designed to limit the amount of water pollution arising from muck-spreading and other good old-fashioned agricultural activities. And then it got itself into trouble under another Directive (the Strategic Environmental Assessment Directive) for the way that it then went about amending the law to address nitrates. So the nitrates amending law got annulled. But what to do then? Because a defective nitrates law was better than none at all. This was the conundrum which faced the CJEU in this recent case.

The latest round of this saga started when NGOs challenged the way in which the Walloon government sought to amend their water law in line with the Nitrates Directive. They went to the Conseil d’Etat to annul the amendment, because it did not comply with the SEA Directive. In 2009, the Conseil d’Etat referred the case to the CJEU, asking whether the nitrates amendment was a strategic plan or programme with the meaning of the SEA Directive. In 2010, (C-105/09) the CJEU said it was, in principle, it being for the domestic court ultimately to rule on the issue. In due course, the Conseil d’Etat confirmed this view by ruling that the nitrates amendment was in fact such a measure.

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Key Justice and Security Bill resources

29 May 2012 by Adam Wagner

The Justice and Security Bill, which proposes to introduce secret ‘Closed Material Procedure’ (CMP) hearings into civil trials, has been published. Here are some useful resources for picking your way through the controversy:

• The Bill can be found here in ‘clickable content’ format, and here as a single PDF document. You can watch the Bill wind its way through Parliament from here.

• The Ministry of Justice’s page on the Bill, including some ‘myth-busting’ (including ‘This is undermining the centuries old legal tradition’) is here.

• 84 responses to the Green Paper which led to this bill can be found here, and the Government’s response of 29 May is here.

• The Joint Committee on Human Rights’ highly critical report on the proposals is here.

• My post from last week on the key concessions made by the Government since the Green Paper is here. I commented that despite the removal of inquests from scope and the trigger for CMPs changing from “public interest” to “national security”, the key criticisms of the bill remain.

• You can access all of the UK Human Rights Blog coverage of the secret trials proposals here, including our exclusive on the Special Advocates’ opposition to the proposals, which became the most damaging aspect of the case against the Green Paper.

• Some press coverage: Government scraps ‘secret inquests’ plan (BBC), Climbdown on secret justice: Victory for the Mail’s campaign as Clarke says inquests WON’T be held behind closed doors (Daily Mail), Secret courts plan: it’s still justice in the dark (Guardian), Clarke listens to Daily Mail on secret justice proposals (Press Gazette)

• The University of Reading’s excellent resources page from its Law, Terrorism and the Right to Know team

More to come on the proposals soon…

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US court takes important step in resolving human/wildlife conflict at sea

30 September 2015 by Rosalind English

Sea Otters

California Sea Urchin Commission, et al. v Michael Bean, et al, US District Court, Central District of California (September 18 2015) – read judgment

A Californian court has upheld the protection of marine otters over the interests of commercial fishing.

Sea otters are remarkable marine mammals who live their entire lives at sea, giving birth in the water and clutching their cubs to their bellies as they float in rafts of up to a thousand, holding hands while they sleep to avoid drifting off in the ocean’s currents. But they are not just picturesque; they are essential to the health of the seas. A main component of their diet is the ubiquitous sea urchin, which feeds on kelp. As sea otters have been hunted and killed as by-catch over the centuries, their diminishing numbers have led to the proliferation of the sea urchin population and the consequent disappearance of the kelp forests on the seabed. The damage this does to the marine ecosystem has been inestimable.

This somewhat technical judgment, made on a preliminary application for summary judgment by the fishing industry, therefore marks an important step in the judicial response to marine conservation.
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President of the Supreme Court argues Human Rights Act is here to stay, perhaps [updated]

23 April 2010 by Adam Wagner

Lord Phillips

Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.

We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).

On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.

That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.

Update 27/04/10

• The UK Supreme Court Blog  has posted on the speech, comments extracted after the page break below.
• Qudsi Rasheed, legal officer at Justice, writes in The Guardian that the Tories’ human rights proposal is unclear and contradictory

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Book Review – Marshall Hall: A Law Unto Himself by Sally Smith

2 July 2016 by Guest Contributor

Owain Thomas QC reviews this new book by 1 Crown Office Row’s own Sally Smith QC.

Sally Smith’s wonderful new biography of the great Edwardian advocate Edward Marshall Hall is the first reappraisal of his life and career since the celebrated biography by Marjoribanks, published only two years after his death. Since then the worlds of law, journalism, celebrity, and crime have become intertwined in so many complex ways, but Smith charts in this book the quite remarkable public life of the era’s most sought after barrister. He attained celebrity beyond the dreams of even the most fervent publicity hungry barrister. His cases were regularly front page news. Because of the deliciously lurid subject matter some might have got there anyway, but his name added a lustre and whetted the public appetite for the scandal to come with the promise of a coup de théâtre. Thousands waited for the verdicts outside the Old Bailey.
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Too little too late as Daily Mail “corrects” bogus human rights splash

12 November 2013 by Adam Wagner

The Daily Mail has belatedly “corrected” its front page story on human rights damages, over a month after it appeared on 7 October 2013. Early last month I blogged on  the original bogus article, which was so poor it generated a response from the ordinarily placid Council of Europe.

I have quote-pincered “corrected” as despite the newspaper’s actions, the damage is already done. A month has passed, which in social media time might as well be million years. People have moved on. Another human rights myth is implanted in the collective consciousness, and no sad little correction is going to dislodge a front page headline.

And to make things worse, the story was amplified by a whole host of other newspapers which picked it up without bothering to check the facts, including the Telegraph (corrected) and Daily Star (as yet uncorrected).

What really rankles about this story is how wrong it was.

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Rose Slowe: Article 50 Notice and Implied Conditionality

7 April 2017 by Guest Contributor

More substantive than the 137 word EU (Notification of Withdrawal) Act 2017 (‘Notification Act’), which was passed by Parliament on 13 March, the Prime Minister’s 6 page letter of notice, issued under Article 50 TEU, is lacking in one crucial respect. This post asserts that, as a matter of UK constitutional law and in accordance with the EU Treaties as well as customary international law, conditionality should be inferred into this notice. Such conditionality manifests in the requirement of domestic Parliamentary approval at the end of the Article 50 negotiation process.

On Wednesday 29 March, shortly after the UK’s Article 50 notice had been delivered to Donald Tusk, Theresa May told the House of Commons that it was a ‘historic moment from which there can be no turning back’.

That premise is disputed. As a matter of law, it is far from certain that notice issued under Article 50(2) is indeed irrevocable. Further, there are compelling legal arguments as to why such notice can be unilaterally withdrawn once given. The arguments in favour of revocability are difficult to dispute, finding their basis in the UK constitution, EU Treaties and international law.

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Job opportunity at the Human Rights Lawyers’ Association

2 February 2011 by Adam Wagner

Updated | The Human Rights Lawyers’ Association, of which I am a committee member, is recruiting a part-time administrator.

Full details of the post, which is for up to 10 hours per week and offers remuneration of £10,000 inclusive of VAT, can be found after the page break.

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Suing the corporate soul; parent company down for asbestosis

4 May 2012 by David Hart KC

Chandler v. Cape Plc, Court of Appeal, 25 April 2012, read judgment.

This may sound like a rather dreary topic, but the problem is vitally important for the proper reach of environmental and personal injury law. Some may have seen from my post on the Erika disaster the difficult issues which can arise when a multi–national (in that case, Total) does business through a number of corporate entities, particularly where they are domiciled in different countries. But the present case is a good example where liabilities are not confined to the party directly responsible for the injury or disaster. Good thing, too, for this claimant, who stood to gain nothing from his former employer, a company now dissolved, or indeed its insurers.

In the late 1950s and early 1960s Mr Chandler worked for a Cape company, Cape Products, loading bricks. Asbestos was also  produced at his workplace, and dust from that part of the works was allowed to blow around the works. Mr Chandler recently contracted asbestosis, and wanted to claim for the admitted negligence of Cape Products. But Cape Products was no more, and there had been excluded from its employers liability insurance any cover for pneumoconiosis. So that led nowhere. Hence this claim against Cape Plc, its parent company, on the basis that Cape Plc had “assumed” responsibility for the health of its subsidiary’s employees.

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Spiritual Injury voids Mayor’s Election

3 May 2015 by Martin Downs

Erlam et al v. Rahman et al, Richard Mawrey QC, April 2015, judgment here

The Guardian has reported that Lutfur Rahman, the former directly elected mayor of Tower Hamlets is “exploring the possibility” of judicially reviewing the judgment of the Election Commissioner, Richard Mawrey QC declaring his 2014 election void and barring him from standing in the mandated repeat of the poll.

The only surprise is the qualified nature of the statement as his website had already announced his decision to appeal two days before. This site also directs readers to a petition which describes the case as, “a politically-charged stitch up and an anti-democratic coup.” The Guardian quotes the Head of the Tower Hamlets branch of UNITE as describing the judgment as “an undemocratic assault on the people of Tower Hamlets” which was both “racist” and “Islamophobic”.

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