The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
Philip Havers QC of 1 Crown Office Row is representing Martin in the judicial review proceedings. He is not the author of this post.
Albert Camus famously wrote: ‘there is but one truly serious philosophical problem and that is suicide.’ However profound a philosophical problem, the question of suicide or, more precisely, assisted suicide is proving quite a legal conundrum.
It is a well-known fact that, at present, it is lawful in England and Wales to commit (or to attempt to commit) suicide but unlawful to help someone else to do so. Encouraging or assisting suicide is an offence under section 2 of the Suicide Act 1961, carrying a maximum penalty of 14 years’ imprisonment. On a literal reading of the Act, even obtaining information about euthanasia for someone who plans to commit suicide could constitute a breach of section 2.
The Prime Minister’s speech at the Council of Europe (see our coverage here) has attracted significant press attention over the past week – ranging from flag-waving, sabre-rattling support to criticism from Sir Nicholas Bratza (the British President of the Court).
Hot on the heels of Cameron’s address on Wednesday, the Attorney-General Dominic Grieve gave a speech on Thursday which set out in further detail the Government’s plans for reform of the European Court of Human Rights and the incorporation of human rights into UK law.
The full text of the Attorney-General’s speech is not yet available (although a similar speech he gave last year and his own speech to the Council of Europe can be found here). However, it was interesting to compare his comments with those of David Cameron just a day before.
A child learns early that if you don’t have anything nice to say, don’t say it. Thankfully that principle does not apply to Government consultations and this is aptly demonstrated by a group of responses to the consultation into whether “closed material” (secret evidence) procedures should be extended to civil trials.
Of the responses that I have read, there is very little support for the proposals as they stand and, as journalist Joshua Rozenberg has pointed out, the most damning criticism has come from the very lawyers who are currently involved in “closed” proceedings.
If you are interested in the issue, the Joint Committee on Human Rights is hearing evidence on it today from two special advocates, including my co-editor Angus McCullough QC (see his post on the topic), as well as the current and former independent reviewers of terrorism legislation. The session begins at 2:20pm and can be watched live here.
As I did with the Bill of Rights Commission consultation, I asked people to send me their consultation responses. What follows is a wholly unscientific summary of the ones I received:
Updated | Welcome back to the human rights roundup, your regular human rights bullet. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
Mr Cameron goes to Strasbourg
This week, the European Court of Human Rights released its 2011 annual report and Prime Minister David Cameron paid Strasbourg a visit, where (amongst other things) he accused the Court of having become a “small claims court”.
Unsurprisingly, this has been heavily commented on in the press. Adam Wagner posted on the build-up, Professor Francesca Klug minced no words in the follow-up and Joshua Rozenberg reported on the ensuing discussion between Cameron and the secretary-general of the Council of Europe – see also Deciding the future of human rights court … in Brighton. Also worth reading is The Small Places heartfelt and insightful defence of human rights, Obiter J’s excellent post and Beyond Abu Qatada: Why The UK Shouldn’t Split From the European Court of Human Rights in the Huffington Post (UK edition).
Dr John Sentamu, the Archbishop of York, has thrown a firecracker into the consultation on gay marriage, which is about to begin in March. In an interview with the Daily Telegraph he declared that he did not agree that it was the role of the state to define what marriage is. “It is set in tradition and history and you can’t just [change it] overnight, no matter how powerful you are”.
Gay rights campaigners have poured scorn on this pronouncement, calling the Archbishop a “religious authoritarian” who wants to “impose his personal opposition to same-sex marriage on the rest of society.” But this outbreak of bad temper – not unpredictable, given the skirmishing over the consultation on the same issue which took place in Scotland last year – raises the wider issue of the role and influence of church leaders in the process of legal change.
In a secular society, the participation of clerics in the House of Lords is grudgingly accepted as part of an ancient tradition. And on this issue at least, the general view seems to be that the Church has grounds for complaint. The current system recognises gay partnerships under the Civil Partnership Act 2004 (CPA). But the main change is to alter the Equality Act so as to allow such partnerships to take place on religious premises, and it is that which is being so bitterly opposed, apparently because it brings the matter within the church’s bailiwick. But even if it does, we have to ask what it is that privileges Sentamu’s voice over any others in the debate over whether gay and heterosexual partnerships should be on an equal footing in all respects, including the place where they are registered. Continue reading
Two recent posts on this blog have brought deserved attention to the question of the European Court’s handling of admissibility decisions. In the course of criticising the substantial misrepresentation of the statistics for UK petitions to the European Court, Andrew Tickell’s piece highlighted the significant contribution of “highly discretionary concepts” in the filtering of the Court’s caseload.
Alongside clearer procedural hurdles such as the six month time bar and exhaustion of domestic remedies, the “manifestly ill-founded” criterion may be a clear and meaningful legal term but certainly isn’t manifest exactly what obstacle it sets.
The Queen on the Application of Medical Justice v Secretary of State for the Home Department  EWCA Civ 1710 - read judgment
People who make unsuccessful claims to enter or remain in the United Kingdom cannot be removed without being given sufficient time for a lawyer to prepare a proper challenge to their claim. The government has failed in its appeal against the Administrative Court’s finding that government policy unlawfully provided for expedited removal procedures in certain pressing circumstances – for example where there was a risk that the person concerned, if given advanced notification of his removal, might attempt to frustrate those measures of removal. The policy was quashed because it interfered with people’s right of access to a lawyer.
The Home Secretary is responsible for granting or refusing leave to remain in the United Kingdom for those who do not have the right of abode in this country in accordance with the Immigration Rules. It is an important aspect of maintaining immigration control that a credible enforcement process is in force and that those with no right to remain in the United Kingdom are removed from the jurisdiction while not infringing the accepted rights of those about to be removed. Continue reading
Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment
So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)
The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011 and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.
Andrew Tickell in his recent post (Is the European Court of Human Rights obsessively interventionist?) makes a number of important points about the European Court of Human Rights’ approach to admissibility, in particular the application of the manifestly ill-founded criterion. Perhaps understandably, the majority of legal scholars have preferred to focus on the more substantive aspects of the Court’s work and its leading judgments.
However, Tickell’s analysis, and his other efforts to ensure that the less glamorous work of the Court on admissibility are not overlooked, must be welcomed, both as redressing that balance and informing the wider debate on the proper role of the Court. This post seeks to build on his contribution by providing an overview of the Court’s approach to admissibility in applications brought against the United Kingdom.
Updated | In the 1939 film Mr. Smith Goes to Washington, James Stewart plays a local Boy Rangers leader who becomes a US Senator and, against all odds, triumphs agains the corrupt bureaucrats in Washington. Tomorrow, according to The Sun, “battling” Prime Minister David Cameron will be travelling to Strasbourg in, it would seem, similar style to “tell Euro judges to stop meddling in British justice”.
Meanwhile, back in London, the British president of the European Court of Human Rights launched a preemptive strike on Mr Cameron’s speech in today’s Independent, arguing that the criticism from “senior British politicians” relating to the court’s interference is “simply not borne out by the facts“.
Bratza is right that the us-vs-them narrative is partly the result of mischievous human rights reporting by the press. Recent examples are the Daily Mail’s extravagant claim that the UK loses 3 out of 4 cases in Strasbourg, resting on a partial reading of the court’s statistics, and the Telegraph’s seemingly endless run of articles based on low-level immigration decisions, the latest being: Bigamist wins ‘family life’ human rights case. In that case, the original tribunal knew nothing about his alleged other marriages, so it is hard to see what it shows about human rights defences to deportation decisions, except that a claimant possibly lied in court, was found out and will probably now be deported.
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
First, a plea from the Pink Tape family law blog to donate to BAILII, particularly if you run a blog that links to BAILII or if you are a lawyer who relies on BAILII for transcripts, or to simply do their online survey: BAILII – Pink Tape. This blog would not exist without the excellent service provided by BAILII – please help them by donating and doing the survey.
The report from the Wilton Park conference, where the good and great of Europe met to discuss the future of the European Court of Human Rights, has been published. Suggestions included requiring individuals to show that non-examination of the case would cause a “significant disadvantage” and introducing a “universal periodic review” procedure, such as that used by the UN. It was recognised that national implementation was by far the biggest challenge that the system faced. The full report can be found here.
Associated Newspapers Ltd, R (on the application of) v Rt Hon Lord Justice Leveson  EWHC 57 – Read judgment
On Friday 20 January 2012 the Administrative Court dismissed the second application for judicial review of the Leveson Inquiry. The Court dismissed an application by Associated Newspapers (supported by the Daily Telegraph) to quash the decision of the Chairman, Lord Justice Leveson. decision to admit evidence from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.
Lord Justice Toulson commented “that the issues being investigated by the Inquiry affect the population as a whole. I would be very reluctant to place any fetter on the Chairman pursuing his terms of reference as widely and deeply as he considers necessary”.
Marie-Bénédicte Dembour calls them ‘forgotten cases’. As Adam Wagner demonstrated in a blog post of last week, Eurosceptic newspapers have a particular interest in overlooking the European Court of Human Right’s decisions of inadmissibility, seeking to buttress claims that the Court is wildly interventionist, imposing alien “European” logics on Britain with gleeful abandon.
Both the Telegraph and Daily Mail covered the findings of a report commissioned by backbench Tory MPs critical of the Court’s jurisdiction, both simply replicating its astonishingly misleading content. The papers contended that the UK was defeated in three in four cases brought against it, with violations of the Convention being found in 75% of human right petitions to Strasbourg.
Standard Verlags GmbH v. Austria (no. 3) (no. 34702/07) – read judgment
On the face of it this judgment is no more than a run of the mill case ( in a line running from Bladet Tromso through Fressoz and Roire to Flinkkilä and Others) concerning freedom of speech in one of the Convention signatory states where media controls are a great deal more stringent than they are here. However with the ongoing Leveson inquiry and speculations about its future recommendations occupying many column inches in the UK media it is instructive to see how other countries apply their press restrictions and indeed how Strasbourg approaches any challenge brought against them.
The applicant company, Standard Verlags GmbH, owns the Vienna daily newspaper Der Standard. The case concerned an article it published in April 2006 reporting on enormous speculation losses incurred by a state-backed bank, and the ensuing criminal investigation for embezzlement brought against the bank’s senior management. The article identified a member of the bank’s treasury department as Christian Rauscher, the son of a former regional government member with responsibility for finance. The article reported that in 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known. But it made it clear that the losses had thus been incurred under his responsibility. Continue reading