Category: In the news

The UK and Strasbourg: a victim fantasy

19 September 2012 by Andrew Tickell

Brought to you by Andrew Tickell

Rhubarb, rhubarb. Another defeat for the United Kingdom in Strasbourg yesterday. In James, Wells and Lee v. the United Kingdom, a chamber of the Court’s Fourth Section held that indeterminate sentences of imprisonment for public protection infringed Article 5 of the Convention.  At his first Justice Questions in the House of Commons yesterday, our fresh-minted Conservative Lord Chancellor and Justice Secretary, Chris Grayling, advised MPs that:

“I’m very disappointed with the ECHR decision this morning.  I have to say, it is not an area where I welcome the Court, seeking to make rulings.  It is something we intend to appeal.”

One wonders which areas Mr Grayling would welcome the Court’s jurisdiction, but all in all, a somewhat tepid response from a man whose appointment was greeted by the Daily Mail with the enthusiastic suggestion that Grayling…

“… unlike his predecessor Ken Clarke, will have no truck with the cardboard judges at the European Court of Human Rights.”

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Strasbourg applications: some aspects of the “six months” rule

18 September 2012 by Rosalind English

Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.

The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.

Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).

1. No waiver

It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):

The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay
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How do you “exhaust local remedies” for the purpose of applying to Strasbourg?

17 September 2012 by Rosalind English

Following David Hart’s guide to taking a human rights point in local and regional courts, here is an attempt to explain what is meant by the requirement set out in Article 35 of the Convention, that any petitioner before the court has to “exhaust” their local remedies before their complaint will be considered.

The rule of exhaustion of local remedies started as an international law principle relating to diplomatic protection.  The idea was that a measure of respect should be accorded to the respondent state and its legal rules. In human rights law, the rule of local remedies is based on the principle that states should be primary enforcers of Convention rights.  But very soon after the Convention went into operation,  certain limitations grew up around the rule as a result of the consideration of the interests of the individual. It was felt that unlike diplomatic procedures, the application of the rule should conform to fairness and not cause the individual undue hardship in securing a reasonably quick resolution in Strasbourg.  In effect, petitioners are not prevented from bringing cases straight to the Strasbourg Court without first going through the national authorities, it is simply that if they do so, it is open to the respondent state to assert inadmissibility based on non-exhaustion. In practice this means that when the respondent state is formally informed of the petition and requested to submit observations, it must satisfy the court that remedies have been available and sufficient at the relevant time. Once this is established the burden passes to the petitioner to prove that local remedies have been exhausted.

Of course if the government fails to assert non-exhaustion under Article 35 prior to the Court’s decision on admissibility the matter will proceed to an examination on the merits by default; the government is effectively estopped by its own delay from protesting the point.
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Can morality be explained by science? Do human rights = echr1(hra − 1) + echr2(hra − 2)

14 September 2012 by Rosalind English

As scientists gather more and more information about the very large and the very small, where will they stop? Put another way, if ethics and religion can’t deliver, do we look to science for an answer?

The novelist Ian McEwan has no hesitation in incorporating the latest discoveries in physics and neuroscience in the messy psychological drama that constitutes a novel; in his latest bestseller  he investigates the possibility of embedding a mathematical problem within an ethical one which drives along the story within the story. And last week the Guardian hosted a debate between physicist Lawrence Krauss and Julian Baggini on whether science can provide better answers to the big questions of morality than any of the canons of philosophy; now we have a report from the USA in which a Georgia Tech professor has hypothesized lethal weapons systems that are ethically superior to human soldiers on the battlefield (by substituting for the unreliable human hairbreadth trigger robots that are programmed to comply with international rules of war).

 our understanding of neurobiology and evolutionary biology and psychology will reduce our understanding of morality to some well-defined biological constructs.
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Mere faults in prison investigation does not breach Article 3 rules Court of Appeal

14 September 2012 by Rosalind English

R (NM) Secretary v of State for Justice [2012] EWCA Civ 1182 – read judgment

The Court of Appeal has ruled that a prison had conducted an adequate investigation into a sexual assault on a prisoner with learning disabilities and this complied with the prison’s investigative obligation under Article 3  of the European Convention on Human Rights. See our post on the decision below here for the background facts.

Briefly, instead of a formal investigation, the matter was investigated by prison officers under the prison’s violence reduction strategy. The other prisoner (F) admitted assaulting the appellant. But the Secretary of State refused a PSO 1300 formal investigation, asserting that a sufficient investigation had taken place. Judicial review of this refusal was dismissed, although the judge noted that the appellant’s disability had been overlooked as the investigating officers were unaware of it and that the prison’s disability policy should have led to the appointment of an appropriate adult for him. Nevertheless HHJ Mackie QC concluded that the investigation had been reasonable and did not breach Article 3 or PSO 1300.

In this appeal it was submitted that the judge erred in concluding that the prison’s investigation complied with Article 3.
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Is the UK listening to the European Court of Human Rights?

12 September 2012 by Adam Wagner

The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.

The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:

• There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.

• The UK currently has 24 cases before the Committee of Ministers, which means that  they have not been implemented.

• The UK paid out €454,457  [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.

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A new president, a blog and a talk

11 September 2012 by Adam Wagner

Three quick, unrelated things.

First, the European Court of Human Rights elected a new President yesterday to replace Sir Nicolas Bratza. Dean Spielman (pictured), from Luxembourg, was elected by secret ballot and will succeed Sir Nicolas on 1 November 2012. He is only 49 so unlike the outspoken Bratza he will not be forced to retire before the end of his 3-year tenure (Bratza is now 67 and served for just under a year). Judge Spielman’s C.V. is here (point of interest: he studied at Cambridge). The Court’s press release here.

Secondly, there is a new human rights blog in town, the New Zealand Human Rights Blog. It looks good, and from the initial posts appears to be taking an interest in UK human rights law too.

Thirdly, the Criminal Bar Association and Law Reform Committee of the Bar Council are putting on an interesting debate next Thursday 20 September, 6-8pm: ‘Protecting free speech: A public interest defence for the media?’. All details are here – you will need to download the form in order to book. The event costs £10 in advance or £15 on the door.

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A bluffer’s guide to human rights courts

10 September 2012 by David Hart KC

Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?

Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.

If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.

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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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Are Christians really marginalised in this country?

7 September 2012 by Rosalind English

We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.

Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.

The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15

The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]

(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.)
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So long, Ken, noble scourge of imaginary cats [updated – and hello Mr Grayling]

4 September 2012 by Adam Wagner

Updated | As has been widely reported, Ken Clarke has left his post as Justice Secretary and Lord Chancellor following a cabinet reshuffle.

The former-Justice Secretary has had an eventful time in his two years and three months in post. He has overseen enormous cuts to legal aid for which some will never forgive him, introduced a bill which will increase secret trials in the civil justice system, got into trouble over his comments on rape and ushered in a significant reform programme at the European Court of Human Rights.

But he will probably best be remembered, certainly by this blog, for an interview he gave following a speech by Home Secretary Theresa May at the Conservative Party Conference. You may remember it. It was about a cat. Which was apparently (but not really) responsible for a court’s failure to deport a man from the UK. Immediately following the speech, Ken Clarke told the Nottingham Post what he thought about May’s comments:

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Religious freedom in UK to be considered by Strasbourg Court

3 September 2012 by Rosalind English

Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release

Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.

All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.  Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.

The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed  intervening submissions under Rule 44 §3 of the Rules of the Court.

Equality, human rights and religion or belief: time to get out of the courtroom? – Alice Donald

24 August 2012 by Guest Contributor

The interaction between the law and religion or belief is rarely out of the headlines. Debate rages about whether Article 9, the human right to freedom of thought, conscience and religion, receives sufficient – or too much – protection in the courts.  There has been a considerable amount of litigation, much of it contentious (see, for example, here, here and here) 

A new report for the Equality and Human Rights Commission (EHRC) by researchers at London Metropolitan University, including myself, explores these controversies. It is based largely on interviews and roundtable discussions with around 100 religion or belief groups, human rights and/or equality organisations, employers, public service staff, academics and lawyers. It is concerned as much with differing perceptions and understandings of the law as with the law itself. It also examines the practical application of the law in the workplace and public services.

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Is compulsory regulation of the print media compatible with Article 10 ECHR? – Hugh Tomlinson QC

22 August 2012 by Guest Contributor

One of the possibilities being considered by Lord Justice Leveson as he writes the Report for Part 1 of his Inquiry is whether there should be compulsory regulation of the print media.   One, widely discussed possibility is a statutory framework which would require any publisher with turnover or readership above a set threshold to join a “regulatory body”: compulsory regulation for large publishers. 

The Assange Reality Distortion Field

21 August 2012 by Adam Wagner

It was once said of Apple’s Steve Jobs that he could convince himself and others to believe almost anything with a mix of charm, charisma, bravado, hyperbole, marketing, and persistence. Following Jobs’ untimely death, Wikileaks founder Julian Assange has taken over the mantle of his patented Reality Distortion Field.

It would seem (on Twitter at least) that you are now either with Assange or against him. To be with him is to believe that he is in the throes of an international conspiracy involving, but not limited to, the British Government, courts, the Swedish Government, his rape (not bad sexual etiquette) accusers, of course the Americans and possibly the saucer people too. To be in the other (artificially exaggerated) camp is to not automatically believe that his Swedish accusers have been concocted by a dastardly international conspiracy, but rather that their accusations should be met with (whisper it) due process. Moreover, Assange has had his days in court, all the way to the UK Supreme Court, and now must face his accusers.

Since Assange happens to be in the UK (well, technically in Ecuador I suppose), the UK legal blogging community has taken it upon itself to bring reality back into line. Not since the Freemen of the Land has a legal issue generated a series of counter-woo posts of such quality, and after this rather lengthy introduction, all I seek to do is link to them with approval:

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