Environment


The Chagossian Wikileaks cable judgment, fishing rights and a dose of EU law

11 June 2013 by

330px-ChagosmapBancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment

The Divisional Court has now dismissed  the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished. 

Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.

The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s,  on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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Who “holds” the working papers of the Climategate inquiry?

7 May 2013 by

emailgate_mockup_k_SMLHolland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013  – read judgment

In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.

UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER  concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information. 

This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them.  UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.

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Supreme Court refers air pollution case to the EU Court

1 May 2013 by


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs  [2013] UKSC 25, Supreme Court, 1 May 2013 – read judgment

on appeal against Court of Appeal 30 May 2012 read CA judgment

The Supreme Court has taken the UK’s lack of compliance  with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air)  much more seriously than the courts below.  It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings.

This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.

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Chagossians: Wikileaks cables not admissible in court

28 April 2013 by

9780199275670Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment   UPDATED

A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.

I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses

18 April 2013 by

shell460US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment 

In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices. 

The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag.  The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).


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Habitats: the CJEU’s judgment in Sweetman

11 April 2013 by

Sweetman v. An Bord Pleanala, CJEU, 11 April 2013, read judgment

I posted back in November 2012 on Advocate-General Sharpston’s  opinion in this important case concerning the Habitats Directive

John Jolliffe from 1COR will be covering the judgment of the CJEU soon, but in the interim it may be worth setting out key passages from the judgment. As will be seen from them, the Court broadly followed the approach taken by the AG – though any first-time student of this area of law would do better to start with the AG’s opinion, rather than with the rather bland text of the judgment.

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HS2 challenges fail, except “unlawful” consultation on compensation

15 March 2013 by

_65547471_65547470R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J  – read judgment – Updated

In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond.  The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and  – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.

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EU claims for damages because no environmental assessment

15 March 2013 by


715fe4f7980414b6f0287ee346131a95_MLeth v. Austria,  CJEU, 14 March 2013  read judgment

You live very close to an airport. The airport expands without carrying out an Environmental Impact Assessment as required by the EIA Directive.  You want to sue the state for loss in value of your property. Can you claim? This is the strikingly simple question the subject of this judgment of the Court of Justice of the EU. And on the day the HS2 ruling came out (post to follow shortly, but compensation consultation unlawful) it is an interesting question to look at.

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Eating horse – and where our language comes from

18 February 2013 by

11184_10151497198469853_1198844440_nIt may be a little early to predict the lasting impact of the horsemeat to-do on the law. But one might make a lunge at the following : (i) contractual claims by supermarkets professing outrage, cascading further and further through supplier and sub-supplier until they end up with some far-flung abattoir in Romania, (ii) the odd trading standards prosecution, (iii) a chancy group action by those who say they were horrified at the thought that they might have let horse pass their lips; and (iv) the Horsemeat (It Will Never Happen Again) Regulations 2013 SI 9999/2013 (no link yet available). It is perhaps as well to rein in too much speculation at that point.

But it is timely to say something about when and how much horse our linguistic ancestors ate. By a curious coincidence, I am at the moment reading a book which tells us all about that and lots of other things.

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Triumph for canal boat litigant in person

15 February 2013 by

 KF2-2002Moore v British Waterways Board [2013] EWCA Civ 73 – read judgment

A boat owner has won his appeal against the British Waterways Board preventing him from mooring his boats alongside his land on a tidal stretch of the Grand Canal.  Although he had no common law right to permanently moor the boats, he had committed no actionable wrong in doing so, and they were therefore not moored “without lawful authority” within the meaning of the British Waterways Act 1983. This judgment is an interesting and important endorsement of the principle in English law that everything is permitted except what is expressly forbidden. 

This key “rule of law” principle applies as much to the BWB as it does to the police and other law enforcement agencies.
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Lost renewables subsidies successfully claimed as human rights damages

13 February 2013 by


gascollection-labeled
Ofgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA  Civ 70, Court of Appeal 13 Feburary 2013 read judgmenton appeal from decision of Lindblom J Read judgment and my previous post

This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document.  It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.

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Inuit, standing and the gates to the Luxembourg Court

20 January 2013 by

flagInuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it

The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.

But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.

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Human rights claims against undercover police to be heard in secret – Simon McKay

18 January 2013 by

Mark Kennedy

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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The polluted air that we breathe: Supreme Court to hear case

15 January 2013 by


NO2_PicR (Clientearth) v Secretary of State for Environment, Food &  Rural Affairs, forthcoming Supreme Court appeal against Court of Appeal 30 May 2012 read CA judgment Updated

Back in the late spring, it seemed as if ClientEarth’s claim against Defra in respect of air pollution had run into the buffers. It had been refused by the Court of Appeal, in reasons given extempore: see my earlier post before Bailii received the judgment. Not many such refused cases make it to the Supreme Court, but this one has.

The Supreme Court lets appeals within its doors or denies them in an inscrutable way – it says yea, or, more commonly, nay, with no reasons. But the Justices thought that there was more to this case than had met the eye of the Court of Appeal. Anyway, hearing on March 7 2013, as the excellent Supreme Court website tells us. I am also told that the Court granted ClientEarth a Protective Costs Order.

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Habitats: how to stop death by a thousand cuts

27 November 2012 by

Sweetman v. An Bord Pleanala, CJEU, Advocate-General Sharpston, 22 November 2012 read opinion 

In May 2012 the Habitats Directive celebrated its 20th birthday. It has been under a good deal of flak over the years, particularly from business interests both in and out of government. The reason is plain. The Directive has made member states identify important sites in their territories to the EU (with a certain amount of prodding on the way). It then tells them to keep those sites unaffected by development save in exceptional cases, where there is overriding public interest in the project, there is no alternative solution and, further, that there can be full compensation for the losses caused by the development.

So a member state cannot routinely fudge things against protected habitats in favour of whatever other public interest may be uppermost at the time – wind farms, or supermarkets or chemical works or residential newbuild on greenbelt, for instance. In all but exceptional cases (see here for my post on a proposal which was said to be exceptional), you must not adversely affect the site.

Now for this powerful system of protection in practice, thanks to a tour d’horizon (and de force) by the Advocate-General.

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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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