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Author Archives: alrich

Bad for bees: FoE loses neonicotinoid pesticide case

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Environmental group Friends of the Earth (FoE) has failed in its UK High Court attempt to stop the emergency use of banned neonicotinoid pesticides, implicated in the decline of bee populations.

The use of three neonicotinoid pesticides is illegal under European Union law, though the law is due to be reviewed. The UK Department for Environment (DEFRA) authorised use of two of the pesticides for 120 days on about 5% of England’s oil seed rape crop after the National Farmers Union had made an application for their emergency use over the autumn.

The Hon Mrs Justice Patterson has now rejected an FoE challenge to the authorisation for the pesticides Modesto and Cruiser OSR, which contain neonicotinoids. In seeking a judicial review FoE claimed it had arguable cases that:

i) the UK Government did not give proper consideration to whether the risk to oilseed rape on the farms constituted an emergency;
ii) that no consideration was given to whether the risk could be contained by other means;
iii) that there was no compliance with the requirement that the authorisation should be limited and controlled.
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O’Brien loses Court of Appeal case on judicial pensions backdating

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A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

Are targeted drone killings lawful? The jury’s not yet in

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So who are they, the urbane, sophisticated sharp-suited types with a licence to kill, drafted in to the front line in the battle against Islamic terror? They are – the government lawyers. The drone killing of Reyaad Khan and Ruhul Amin, far from being a spur-of-the-moment use of pre-emptive force to ward off an imminent attack, was actually weeks in the planning – with lawyers crawling all over it.

But there’s a paradox. If so much thought and work went into the killings, (and the latest US attack on “Jihadi John” – Mohammed Emwazi) how can it be justified as a self-defence response – “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”, according to the “Caroline” test legal pundits are talking about? Were the killings an act of “instant and overwhelming necessity” against an “imminent threat” with no other means of defending Britain from them? Read the rest of this entry

Joy v Joy-Marancho divorce case: not just about the Bentley

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For the press it is all about the cars – particularly the £470,000 vintage Bentley that Nichola Joy sought to have seized from her ex-husband Clive Joy-Morancho to pay towards her legal costs in their multimillion-pound divorce proceedings.

In the latest hearing, according to the national press, Mrs Joy “lost” that battle (Businessman wins divorce spat over vintage cars: Telegraph) but the truth is rather more complex. In particular High Court judge, Sir Peter Singer, made clear his dissatisfaction with Mr Joy-Morancho’s case (a fact that went unreported by the press), calling it a “sham, a charade, bogus, spurious and contrived” – and possibly even a fraud.

Mrs Joy does not avoid a tongue lashing, either. “What she says must be subjected to close scrutiny and approached with a degree of scepticism having regard to the many extravagant and often inconsistent observations to which she committed herself.”

For judges involved in this long-running (and continuing) case it must have something of the feel of a sophisticated whodunnit involving tens of millions in assets. Whose are they? Where are they? Is anyone wilfully hiding them? For others it’s a moral tale as the super-rich and their cash are sucked into the dark vortex that is a tax-efficient financial trust. As such, the papers’ reports have missed the real story. Read the rest of this entry

Eviction without court order: irrational answer to the wrong question

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First they came for the squatters. Then they came for the illegal immigrants. Soon they will come for everyone in rented accommodation. The Government’s apparent intention in the forthcoming Immigration Bill to allow landlords (in England) to throw illegal immigrants out without a court order matters less in practical legal terms (arguably it doesn’t make that much practical difference) than in terms of incursions into the principle that courts should oversee the relationships between landlord and tenant because of their inherent inequality. 

The legislation is intended to deal with landlords who find their tenants do not have the “right to rent” (under the Immigration Act 2014) or that their perfectly legal right to remain has come to an end. Eviction would thus become a summary matter. Except that, in realistic scenarios, it wouldn’t.

The proposed legislation means that the right to evict summarily will be triggered when the Home Office issues a notice that the tenant “no longer has the right to rent in the UK”. The usual two-month notice period for an assured shorthold tenancy does not apply. 

The legislation, however, would not give landlords special powers to physically remove the occupier. They would be still governed by the Protection from Eviction Act 1977 – intended to prevent Rachman-like landlords sending round the boys. They could not forcibly remove them nor go in and change the locks.

If the occupier holds out, there will be no right to disregard the protections of the 1977 Act. The landlord must still go for a court order. So to that extent the “eviction without court order” is useless, if removing court scrutiny is the aim. The court will retain a last say – and the inadequacies of the new legislation may be put under examination and found very much wanting (as Giles Peaker notes; see reference below).

The proposed legislation is at one with the Government’s obsession with keeping interfering judges out of its business and that is where its threat lies – to the principle of the rule of law and the right to justice. If you remove these rights from vulnerable people in very difficult situations (even if they are deemed to be acting “unlawfully” by seeking to remain in the country), where would the Government stop in removing legal scrutiny?

Powers curbed
The paradox is that if the Government is determined “to crack down on rogue landlords who make money out of illegal immigration – exploiting vulnerable people and undermining our immigration system” (announcement here), powers are available that are effective in dealing with the problem – powers the Government has just watered down to protect landlords.

The Government has said: “The forthcoming [immigration] legislation will create a blacklist of persistent rogue landlords and letting agents, helping councils to focus their enforcement action on where it is most needed, and keeping track of those who have been convicted of housing offences.” Meanwhile it has blunted powers brought in by the Labour Government that had just such an effect – the exposure of rogue landlords accommodating illegal immigrants and potentially aiding people trafficking.

Among various dodgy documents and devices the outgoing Coalition Government passed with minimal oversight during the dying days of the 2014-15 parliamentary session was a subtle change to local authorities’ powers to license private lettings in designated areas. (Selective Licensing of Houses (Additional Conditions) (England) Order 2015

It was announced by Brandon Lewis, the Minister of State for Housing, but largely unnoticed – except by landlords, who were cock-a-hoop. “Rogue landlords” must have been even more cockahoop. Selective licensing was a power given to local authorities under Sections 79, 80 and 81 of Labour’s Housing Act 2004 to require landlords in designated areas be licensed. The intention was to allow local authorities to improve areas suffering poor quality privately rented housing – meaning badly managed accommodation suffering criminality or anti-social behaviour.

The licensing could be imposed if it would “contribute to the improvement of the social or economic conditions in the area” or “that the area is experiencing a significant and persistent problem caused by anti-social behaviour” which could be improved by landlords taking action – or not encouraging it in the first place. Local residents, landlords and tenants must be consulted if a licensing scheme is introduced in a particular area.

It was a triumph of localism, targeted wherever  local councils thought it should be but not mandated if they thought it shouldn’t. And it was also useful because often those areas (officially of “low housing demand”) were also the areas concealing those very undocumented people the Government now seeks to root out.

The London borough of Newham, for example was the first to include the whole borough in its scheme. This allows officials to visit unlicensed premises based on intelligence gathering (ie to show they aren’t owner occupied and hence should be licensed). It is said they take along immigration officers on some of these visits for the very good reason that this is the sort of low quality accommodation that “rogue landlords” offer to undocumented people – and which they want to keep well below the radar of the authorities. It’s also a useful way of discovering health and safety hazards.

With its deregulating hat on, the Government seeks to curb this sort of power for local authorities, deeming it too bureaucratic an imposition on landlords – yet in another part of the Government forest, it is imposing absurdly bureaucratic duties on every landlord to check the immigration status of their tenants. Selective licensing would be an ideal way of dealing with the problem of illegal immigration. Left hand, right hand – not quite meeting in the middle where the brain is.

Twitter: alrich0660

Note: The Government has added “large amounts of inward migration” to its list of criteria for licensing areas as well as poor property and deprivation (extending the original criteria from low demand and antisocial behaviour. This does not, of course, necessarily mean foreign immigration. Despite the success of Newham’s scheme (in general in improving housing, not simply in the area of illegal immigration), the Government has made it more difficult for local authorities to go down Newham’s route. So councils must seek ministerial permission for “any selective licensing scheme which would cover more than 20% of their geographical area or would affect more than 20% of privately rented homes in the local authority area”. The contradictions of government policy are pointed up in this piece on the Shelter website.

Here Giles Peaker of Nearly Legal considers the likely proposals in the Immigration Bill and says: “And there I collapse, it is impossible to satirise, or even mock, such a catatonically dim-witted, legally illiterate, wholly unnecessary, thoughtless proposal.”  

Also See Philippa Graham here for background on the likely Bill.

Selective licensing explained: House of Commons Briefing
Delegated Legislation Committee 23 March 2015: Brandon Lewis announces changes
The Housing (Wales) Act 2014 introduced phased licensing throughout the principality

Judge criticises Home Office after failure to deport Jamaican drug dealer

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A UK Court of Appeal judge has criticised the Home Office for delays in dealing with the expulsion of a convicted Jamaican drug dealer which could increase his chance of staying in Britain. A decision to deport the man, known as KD, was made in 2007 after he served a five-year sentence for dealing in class A drugs. But failings by the Home Office mean he is still in the UK with an improved chance of remaining as time passes.

The Upper Tribunal (Immigration and Asylum) had ruled that his deportation would breach his Article 8 family rights because he had had a relationship with a British woman since 2001 and they had three children. Now Lord Justice Richards in the Court of Appeal has granted the Government a right to appeal against that judgment – but said “the passage of time is likely to strengthen rather than weaken the respondent’s Article 8 claim in the event that the matter falls to be decided afresh”.

Problems in the procedure started because the Home Office failed to serve the deportation order on KD in 2007. The Secretary of State had treated KD’s Article 8 application for leave to remain as if it was an application to revoke the non-existent deportation order – and had rejected it.
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Criminal Court Charges: a return to pre-Victorian values

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We need a tougher justice regime in these austere times – so why not bring back Dickensian-style debtors’ prisons? We’re not there yet, but we’re several steps along the way thanks to the UK Government’s Criminal Court Charges.

Magistrates have become concerned that they are obliged to impose these new charges – and potentially to jail offenders if they fail to pay them. In contrast to imprisonment for defaulting on fines, the Criminal Court Charges are not discharged by serving time in jail. There are set maximum levels for time in jail according to the amounts outstanding. So, if the Charge comes on top of other fines and payments, it can mean longer periods in jail for each defaulter.

The Debtors Act 1869 abolished imprisonment for contractual debt in England and Wales. Parts of the Act are still in force and make clear imprisonment is still available for “Default in payment of any sum recoverable summarily before a justice or justices of the peace” meaning fines, compensation and costs. The Government has in effect created a new category of imprisonable debt. Prison may be used only when the individual is “guilty of wilful refusal or culpable neglect” in failing to pay – the same wording used in guidance regarding the Criminal Court Charge. The potential term of imprisonment depends on the level of the amounts due (See Schedule 4 to the Magistrates Courts Act and notes below). The failure to pay the maximum £1,200 Criminal Court Charge could be penalised by up to 45 days in prison – at a cost of about £90 a day – more than three times the Charge itself.
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