Article 6

Private nuisance – Article 6 and the costs conundrum

23 July 2014 by David Hart KC

Coventry v. Lawrence [2014] UKSC 13, 23 July 2014, read judgment and Austin v. Miller Argent [2014] EWCA Civ 1012, 21 July 2014 read judgment

Two important cases in the last few days showing how difficult it is to find a fair way to litigate private nuisance cases.  Most of these claims have a modest financial value, but may raise complex factual and expert issues, even before you get to the law. The first case I shall deal with, Coventry, shows the iniquities of the recently departed system. The second, Austin, the dangers of the new.

Coventry is the sequel to the speedway case about which I posted in March – here. The”relatively small”  local speedway business ended up being ordered to pay £640,000 by way of costs after the trial. More than half of this was no-win-no-fee uplift and insurance premium combined. Indeed, the Supreme Court was so disturbed by this that they have ordered a further hearing to decide whether such a costs bill was in breach of Article 6 of the ECHR.

Austin is a claim concerning noise and dust affecting the claimant’s house close to an open-cast mine on the edge of Merthyr Tydfil: see pic. Before I go further, I should say that I represented Mrs Austin at an earlier stage of these proceedings.

In the present hearing, she unsuccessfully sought an order limiting the costs which she might have to pay if she lost the litigation (a protective costs order or PCO).

So each case is about a costs burden, which is capable of causing injustice to one or other party.

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Retrospective legislation that interfered with judicial ruling violated the Convention and the rule of law

8 July 2014 by Rosalind English

R(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014] EWHC 2182 (Admin) – read judgment

The High Court has issued a declaration of incompatibility following a successful challenge to the Jobseekers (Back to Work Schemes) Act 2013. The regulations under the Act that sanctioned those who did not participate in unpaid “work for your benefit” schemes by depriving them of an allowance violated the rule of law protected by the Convention and this country’s unwritten constitution. However, the dispute did not engage Article 1 of the First Protocol to the ECHR.

Factual background

The claimants, Caitlin Reilly and Jonathan Hewstone (CR and JH)  had been unemployed and claimed jobseeker’s allowance. They objected to participation in schemes devised under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, in which they were required to work for no pay. As a sanction, the allowance could be withheld from those who refused to participate. CR complied with the requirement under the regulations to take unpaid work at Poundland so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums (see my previous post on her successful challenge to the scheme).  After that ruling, the regulations were amended to overcome the defects identified by the court. But the 2013 regulations, which applied prospectively, had the effect of retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be unlawful. Then the Supreme Court allowed the secretary of state’s appeal against the Court of Appeal decision on the basis that the Act was in force. But the declaration in favour of CR remained valid, following the 2013 Act and that Supreme Court judgment; indeed counsel for the Secretary of State acknowledged the fact that Ms Reilly’s position was “not affected by the 2013 Act.”

JH had not been a party to Reilly No. 1. but his position was  clearly affected by that ruling. After initial attendance on a scheme for some months, he refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. He in turn had successfully appealed against sanctions imposed by the 2013 scheme. The secretary of state’s appeal against those decisions had been stayed pending the outcome of Reilly.

The claimants submitted that the 2013 Act was incompatible with their rights under Article 6. It was an intervention in the ongoing proceedings in Reilly No. 1 which had the effect of determining the litigation in the government’s favour by retrospectively validating its unlawful acts. It thereby deprived both claimants of a fair determination of their civil rights and obligations, contrary to to the first paragraph of Article 6.  JH also relied upon Article 1 Protocol 1, claiming that by withholding his JSA, the defendant deprived him of a “possession” to which he was entitled. He submitted that the deprivation could not be justified as being in the public interest.

The court allowed the applications in respect of Article 6 but not A1P1.

Reasoning behind the judgment

Article 6 and the rule of law

CR and JH had brought proceedings against the state. The 2013 Act was directly targeted at resolving the Reilly litigation. As such, this legislative act by the government had amounted to an interference in ongoing legal proceedings: it had influenced the judicial determination in the secretary of state’s favour in Reilly and was likely to do so in JH’s appeals. Although Parliament was not precluded in civil matters from adopting retrospective provisions,  it cannot legislate so as to interfere with the courts’ handling of disputes before them:

 the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other on compelling grounds of the general interest –with the administration of justice designed to influence the judicial determination of a dispute. (Zielinski v France (2001) 31 EHRR 19)

Nor did the ruling in National & Provincial Building Society v United Kingdom (1998) 25 EHRR 127 avail the defendant, even though the Strasbourg Court ruled there that legislation to close an unforeseen tax loophole was compatible with Article 6. The government in that case, the Court concluded, had “compelling public interest motives” to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable.  By contrast, in the instant case the claimants could not have foreseen Parliament’s retrospective validation of its own unlawful act.

Although these principles emanate from decisions of the Strasbourg Court, in Lang J’s view, they also accurately reflected fundamental principles of the UK’s unwritten constitution, which enshrines the fundamental principle of the rule of law:

It requires, inter alia, that Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.

The secretary of state submitted that there had been compelling public interest grounds for the retrospective legislation. Lang J acknowledged that it was understandable that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them. But it was apparent from Strasbourg’s judgments, such as Scordino and Zielinkski, that financial loss alone was not a sufficiently “compelling reason in the public interest”. If it were, then retrospective legislation of this kind would be commonplace.” (para 107).

Not only was there insufficient public interest to justify the retrospective legislation but the government had been aware of the concerns about the legality of the statute because it had been brought to the attention of its proposer by the report of the Constitution Committee. One of its members, Lord Pannick, told the House:

this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes – Parliament is sovereign – but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.

Whilst judicial review is more properly concerned with the substance of the legislation, not the reasons for it, Lang J wryly observes that the absence of any consultation with representative organisations, and the lack of scrutiny by the relevant parliamentary committees, “may have contributed to some misconceptions about the legal justification for the retrospective legislation.” (para 96). The government’s statement to Parliament explaining why the 2013 Act would be Convention compatible had not explained that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling public interest reasons. Further, the statement had erred in concluding that the case was comparable to National & Provincial as the legislation would be closing a loophole. It was not accurate to characterise the flaws in the 2011 Regulations as a loophole. The 2013 Regulations had remedied the technical defect identified by the court in the original Reilly litigation, but that did not mean there were compelling grounds to justify the interference with CR and JH’s rights under Article 6 to a judicial determination of their claims. The 2013 Act therefore violated Article 6(1) in relation to those who had pursued claims in the courts or tribunals.

Article 1 Protocol 1: had the Second Claimant been “deprived” of his “possessions”?

JH failed in his claim that he had suffered a violation of the right to respect for peaceful enjoyment of possessions. This was not because he had succeeded under Article 6 –  the rights protected by the respective provisions were different (AXA General Insurance Ltd, Petitioners [2011] UKSC 46).  Lang J accepted the claimants’ argument that a wholly state-funded non-contributory benefit could constitute a possession under A1P1, but JH’s right to the allowance depended on whether he met the conditions for receipt of the benefit. He had not met the conditions for future payment. He had not been deprived of an existing possession because there was no revocation of benefits previously received. This was made clear in Moskal v Poland, where the Strasbourg Court observed that

Art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. ((2010) 50 EHRR 22)

It was clear from this statement of principle that, in order to establish a property right, the applicant must fulfill the requirements for receipt of the benefit at the relevant time.  Nor did he have a reasonable expectation that the allowance would be paid if his legal claim was successful. His claim was not an “asset” within A1P1.  His only reasonable expectation had been that his appeal would be determined in accordance with the law as it stood from time to time.

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Closed material in UK proceedings cannot be disclosed in Strasbourg

28 April 2014 by Rosalind English

Wang Yam v Attorney General [2014] EW Misc 10 (CCrimC) 27 February 2014 – read judgment

It is for the UK government to decide whether to vary an order preventing publication of material heard in private in a murder trial, if the offender goes on to petition the European Court of Human Rights. It is not for the Strasbourg Court to determine whether the right to a fair trial should outweigh the risks to UK national security reasons.

The question regarding a state’s obligation not to impede the right of individual petition to Strasbourg arose where the applicant offender applied for an order permitting him to refer to material, which had been restricted on national security grounds during his murder trial, in an application to the European Court of Human Rights.
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European Commission fines and their compliance with Article 6

12 August 2013 by David Hart KC

C-501/11P Schindler v. European Commission, CJEU, 18 July 2013 – read judgment

Two things of general interest to the human rights lawyer in this unsuccessful attempt by Schindler to challenge a fine of a mere €143 million for anti-competitive behaviour before the EU’s top court.

The first is that the Commission’s role as investigator, prosecutor and enforcer was not found to be in breach of Article 6(1) – because its decisions were subject to “full review” by the EU judges. The second is the remark in the CJEU’s judgment that the EU status of Article 6 ECHR will change when the EU accedes to the ECHR – I shall look at whether this change will be formal or substantive, given the presence of an equivalent right in the EU Charter, within Article 47.

Like a lot of decisions involving issues of high principle, the underlying facts do not reflect well on the offending company, in this case Schindler. It, with three other companies (Kone, Otis and ThyssenKrupp), stitched up the lift and escalator markets in Belgium, Germany, Luxembourg and the Netherlands. Somebody tipped off the Commission, who conducted a massive investigation, and fined all these companies. As is standard, the process of investigation did not involve any oral hearing, with some limitations on the access by the accused companies to all the material which the Commission received.

As my image shows, cartel fines by the Commission involve big big money, and I dare say they dwarf any fines levied by member states on “true” criminals.

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Will Article 6 come to the rescue after the legal aid reforms? – Guy Mansfield QC

26 June 2013 by Guest Contributor

Tan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow

The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time.  The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR). 

The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.

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4 slaughterhouses hit high fives: Article 6(1) breaches found

6 April 2013 by David Hart KC

Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment

These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.

Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.

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Chakrabarti debates Clarke on secret courts bill

7 March 2013 by Isabel McArdle

The Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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Does the state owe a duty to inform the wronged? And Ullah revisited

10 February 2013 by David Hart KC

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment 

The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest: 

1. is there a duty on the state to tell someone of their legal rights against the state?

2.  should domestic human rights case law ever go wider than its Strasbourg equivalent?

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Chagossians hit the buffers in Strasbourg – but not over yet

22 December 2012 by David Hart KC

Chagos Islanders v. United Kingdom, ECtHR 4th Section, 11 December 2012 read admissibility decision

The set of injustices which led to these claims is well known – and see my posts here and here. For the uninitiated, in the 1960s, the US wanted Diego Garcia (one of the Chagos Islands) as a major air base. It spoke nicely to the UK, its owners, who consequently evicted and banned all the inhabitants from it and the neighbouring islands. The constitutional arrangements were apparently decorous. A new UK colony was established (the British Indian Ocean Territory or BIOT) with a Commissioner to make laws for the peace, order and good government of the Territory.

The UN was told that the population consisted of migrant workers, their position had been fully protected, and they had been consulted in the process – none of this in fact happened. Those evicted mainly went to Mauritius and the Seychelles. So the peace, order and good government in fact forthcoming from the UK amounted to total depopulation for military objectives.

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Can a judgment in default of defence be in breach of Article 6?

7 September 2012 by David Hart KC

C-619/10, Trade Agency Ltd v. Seramico Investments Ltd, CJEU, 6 September 2012

This case in the EU Court of Justice may sound rather abstruse, but is actually quite important. When someone starts a claim in the English courts for, say, a debt owed, and the defendant does not put in a defence, the claimant can simply ask the court to enter judgment for the sum claimed, and can bring enforcement proceedings based upon that judgment. In this procedure, the court is acting administratively, and typically no judge will be involved in the process. All very simple then.

But that is not what happened in this case. The complication was that  the claimant wished to enforce the English judgment in Latvia. It could do this using an EU Regulation about the enforcement of judgments. But the Latvian court was concerned by two aspects of the case, firstly that, according to the debtor, it had not been informed of the commencement of the English proceedings, and secondly that the default judgment gave no reasons. So they asked the EU Court for its guidance. Hence this judgment of today.

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Can a state-owned company be a “victim” of human rights violations?

10 July 2012 by Rosalind English

Transpetrol v Slovakia, Application no. 28502/08 – read judgment

The facts of this case can be stated very briefly, since the main (and most interesting) question before the Curt was whether the applicant company constituted a “victim” of a human rights violation under the Convention.

The applicant s a joint-stock company trading in oil.  In the past, including at the time of the contested judgment of the Constitutional Court, the state owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. At present all of the shares in the company are owned by the state.

The application before the Court concerned the fairness of proceedings before the Constitutional Court regarding the ownership of shares in the company.  The applicant company complained that the proceedings were contrary to its rights under Article 6(1) (fair trial) of the Convention and Article 1 of Protocol No. 1 (peaceful enjoyment of possessions). The complaint was dismissed under Article 34 as being inadmissible (incompatible ratione personae, i.e. the status of the applicant). For the purposes of clarity, here is the relevant text of Article 34:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. 
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Can UK courts pass judgment on due process in other Convention countries?

5 March 2012 by Rosalind English

Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment

The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.

In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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Majority court martial verdict not breach of right to fair trial

11 January 2011 by Isabel McArdle

Twaite, Re Appeal against conviction [2010] EWCA Crim 2973 – Read judgment

In an interesting decision on fair trial rights under article 6 of the European Convention, the Court of Appeal been ruled that a court martial conviction by majority neither not inherently unsafe or in breach of human rights.

Mr Twaite had been accused fraud while serving in the armed forces. He and his fiancée had been given particular military accommodation on the basis that they were getting married on 28 August 2008. In a form which Mr Twaite submitted he had allegedly been dishonest by stating that he was getting married on that date. In fact he did not marry until a year later.

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New feature | Articles of the European Convention on Human Rights

5 June 2010 by Guest Contributor

The European Convention - now it has its own blog page

We have added a new “ECHR” page where you can access an index of the Articles of the European Convention on Human Rights.

The page can be accessed by clicking here, or by clicking on the “ECHR” tab at the top of any page on the blog.

Each Article has its own separate page with the wording of the Article itself and a brief summary of how it works in law.

You can access this summary by clicking on the “more info” link. You can also click on the “posts” link to see all posts on the UK Human Rights Blog relating to that Article. A few articles don’t have a live link “posts” as we have not posted on it yet. We would welcome your comments on this or on any way we can make the blog better.

The index is reproduced below:
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The increasing role of human rights law in extradition and deportation cases

25 May 2010 by Adam Wagner

Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.

There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.

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