Is the European Court of Human Rights buckling under Westminister pressure?

22527865148_e67eb8c7df_bIn 2006 David Cameron said the HRA ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’. In 2014 his party published proposals to amend the HRA, and to withdraw from the Convention.

Readers of this blog won’t need reminding that the media has robustly criticized the ECtHR:

“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”[2]

In the last four years there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found.  This does not seem to be particularly (statistically) out of step with previous periods.  However do the key cases suggest the widening of the margin of appreciation for the UK?

Al-Khawaja  Continue reading

The Rule of Law and Parliament: Never the Twain Shall Meet? Brian Chang

Vintage Balance Scale

Vintage Balance Scale

In “The Ballad of East and West”, Rudyard Kipling memorably wrote

East is East, and West is West, and never the twain shall meet

Till Earth and Sky stand presently at God’s great Judgment Seat.

Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?

A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament. Continue reading

Examination of child witnesses not in violation of Article 6

blogimage1Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment

The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.

 The Facts

The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial. Continue reading

Bedroom tax challenge success

The Court of Appeal has given its judgment in a conjoined appeal of two of the latest challenges to the bedroom tax/removal of spare room subsidy (delete as you see fit), holding that it was unlawfully discriminatory in its application to:

 

 

 

  1. A female victim of serious domestic violence living in a home significantly adapted (including the provision of a “safe room”) to ensure her safety in the face of threats from her former partner; and
  2. A severely disabled 15 year old boy cared for by his grandmother and her partner, who required a carer to stay in their home two nights per week.

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Heterosexual Civil Partnership Refusal Not A Human Rights Breach

Photo: BBC News

Photo credit: BBC News

Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) – Read judgment

The High Court has ruled in the case of Steinfeld and Keidan v Secretary of State for Education, a human rights challenge to the law of Civil Partnerships. Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.

The case arises from the odd state the law was left in after same-sex couples were given the legal right to marry in 2014. Since 2005, same-sex couples had been allowed to form “Civil Partnerships”  which give them essentially the same legal rights and protections as marriage without being able to actually marry. Only same-sex couples can have a civil partnership. Civil Partnerships were a kind of half-way house; the message they sent was that the (New Labour) government wanted to give same-sex couples legal protection akin to marriage but didn’t feel that society was quite ready for full marriage equality.

Once same-sex couples were given the right to marry in 2014, the law was left in a bit of a mess. Same-sex couples have dual means of recognising their partnerships (Civil Partnerships and Marriage) whereas opposite-sex couples could only marry. This is clearly an unintended consequence of the winding route to marriage equality rather than any well-thought out plan.

In 2014, it would have been open to the government to abolish civil partnerships altogether or permit everyone to enter into them. Instead, a “wait and see” approach was adopted.

Rebecca Steinfeld and Charles Keiden (full disclosure: they are friends of mine) wanted to enter into a civil partnership but were prevented because they were not of the same sex. They brought a human rights case against the government saying they were being discriminated against by the current law.

Mrs Justice Andrews rejected their case in strong terms. You can read the full judgment here. I recommend doing so – it is tightly argued and very clear.

In cases involving the right to family and private life, there are two basic stages a judge needs to consider. First, is there an interference with the right – in other words, does the thing that is being complained about interfere with family or private life as it is defined in the European Convention and court judgments. Let’s call that Gate 1. If you get through Gate 1, you then have to get through Gate 2, which is to show that the interference was not justified with reference to proportionality (did the end justify the means?) and other balancing factors which are the text of the right itself.

The claimants here didn’t get through the first gate. Mrs Justice Andrews accepted the government’s argument that Article 8 of the European Convention on Human Rights (the right to family and private life) was not even engaged, let alone breached. Here’s a key bit of the judgment explaining why:

  1. The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same- sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 [Same-Sex Marriage] Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.

See the powerful argument on UK Human Rights Blog (written before the judgment) about why this might be problematic.

As judges usually do, Mrs Justice Andrews went on to consider “Gate 2″ anyway, in case she was wrong about Gate 1. She accepted the government’s argument that their approach to the issue (“wait and see”) had been perfectly reasonable.

Where next? Potentially an appeal. The BBC reports the couple were given permission to appeal which means they can appeal to the Court of Appeal if they choose to do so. If they do appeal, they will have to convince the Court of Appeal that there has been an interference with the right to family life (Gate 1 – certainly arguable) but also that the interference was not justified. Gate 2 will be harder.

As things stand, the law is in a mess. Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.

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An open or shut case?

Lady Hale, who delivered the court’s judgment (Photo: Guardian)

R(C) v. Secretary of State for Justice [2016] UKSC 2 – read judgment.

When is it right to keep the names of parties to litigation a secret? That was the difficult question the Supreme Court had to grapple with in this judgment, handed down on Wednesday. The decision to allow a double-murderer to remain anonymous led to outraged headlines in the tabloids. Yet the Court reached the unanimous conclusion that this was the right approach. Why?

The Facts

C, who had a long history of severe mental illness, was convicted of murdering his ex-girlfriend and her new partner in 1998 and sentenced to life imprisonment with a minimum term of 11 years before parole could be considered. The murder was described by Lady Hale as “a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families.” During his sentence C was transferred from prison to a high security psychiatric hospital. Whilst there, in 2012, C’s treating doctors applied for permission to allow him unescorted leave in the community in order to assess how well his treatment was progressing and whether he would be suitable for discharge. The Secretary of State refused to allow this.

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