It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.
His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.
This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.
At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.
It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.
Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refusedto circulate the text publicly.
Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.
Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
R (T) v (1) Chief Constable of Greater Manchester Police, (2) Secretary of State for the Home Department (Secretary of State for Justice an interested party)  EWHC 147 (Admin) – read judgment.
In July 2002, the Claimant was 11 years old. He received a warning (a private procedure, under the Crime and Disorder Act 1998) from Greater Manchester Police for the theft of two bicycles. His subsequent conduct was apparently exemplary. By section 113B of the Police Act 1997, Enhanced Criminal Record Certificates (ECRCs) must contain all convictions, cautions and warnings. The Claimant, a 20-year old student applying for a sports studies course, obtained his ECRC in December 2010. It contained details of the bike theft warning.
He argued that the inflexible requirement under the 1997 Act for all convictions, cautions and warnings to be disclosed in ECRCs was incompatible with Article 8 of the ECHR. Continue reading →
The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights. The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest. In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy.
The judgments demonstrate the need for a careful balancing exercise in privacy cases. Both cases involved “popular journalism” and show that, even in this area, privacy is not a “trump card”. The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.
Růžový Panter, OS v. Czech Republic (App No 20240/08) – read judgment (only available in French)
The European Court of Human Rights (Fifth Section) decided yesterday that there was no violation of Article 10 as a result of a defamation judgment against a Czech anti-corruption NGO, “Pink Panther”. The case arose out of a press release concerning a widely publicised case concerning tax evasion in relation to light heating oils (called “LTO”). The press release asked a number of questions in relation to the case. the
The press release published by the applicant was addressed to IL, the then Vice-President of the Chamber of Deputies, (later Interior Minister) and invited him to clarify his relationship with certain persons, including TP. The relevant part read as follows :
About five years ago IL took part in an expedition to Kilimanjaro where he met, according to him by coincidence, VK who sold light heating oils and who had just been sentenced for preparing a murder. Continue reading →
Coogan and Philips v News Group Newspapers  EWCA Civ 48 –read judgment
The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).
Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI. Continue reading →
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.
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.
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.
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”.
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM – 8139/09  ECHR 56 – Read judgment– updated (7/2/2012): Abu Qatada is expected to be released from Long Lartin maximum security jail within days. the special immigration appeals commission (Siac) ruled on Monday that Qatada should be freed, despite the Home Office saying he continued to pose a risk to national security.
Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.
The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.
On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.
Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing ‘obscene’ ‘gay’ DVDs, which featured fisting, urolagnia (‘watersports’) and BDSM.
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