Category: European
28 March 2011 by Guest Contributor
The coalition Government has appointed an independent Commission to investigate the case for a UK Bill of Rights. This Commission has also been tasked with providing advice to the Government on the possible reform of the European Court of Human Rights – as part of on the ongoing Interlaken process – ahead of and following the UK’s coming Chairmanship of the Council of Europe.
One does not have to be human rights sceptic to accept that there is an unequivocal case for further reform of the Strasbourg Court because, unless something is done, the current system for human rights protection at a European level is in danger of imminent collapse.
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25 March 2011 by Rosalind English
The case of Patmainiece v Secretary of State for Work and Pensions was reported in an earlier post. Here we discuss the underlying rationale for the decision and ask whether the finding that the nationality requirement amounted to mere indirect discrimination was a correct “fit” with EU principles of free movement.
Article 18 (now article 21 TFEU) provides:
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States
However a different regime applies to non-economic actors as opposed to workers. Free movement of workers is one of the fundamental underpinnings of the internal market on which the EU is based. The main EU Directives and Regulations giving effect to the right to free movement of workers are Regulation No 1612/68 on freedom of movement for workers within the Community (as amended by Directive 2004/38/EC) and Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the member states. But the rights of those who are economically inactive to reside for more than three months in other member states is subject to certain conditions, set out in the 2004 Directive; they must
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16 March 2011 by Adam Wagner
Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2011] UKSC 11 – Read judgment / press summary
The Supreme Court has ruled that pensioners from other European Union states should not have the right to claim pension credits in the UK. Although the current ban on claiming these benefits is indirectly discriminatory, the discrimination is a justified response to the legitimate aim of protecting the public purse.
The 4-1 majority ruling (Lord Walker dissented) is likely to calm fears of “benefit tourism” and will probably be wrongly reported as a victory of sensible limits on public finances over human rights. For the record, the appeal was based squarely on EU freedom of movement law and had very little, if anything, to do with human rights.
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16 March 2011 by Rosalind English
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
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10 March 2011 by Adam Wagner
Lord Anthony Lester, Helena Kennedy QC and Martin Howe QC are to sit on the upcoming commission on human rights reform, the press are reporting this morning.
Lester and Kennedy are both well-known human rights experts. Howe has long-standing proponent of replacing of the Human Rights Act with a bill of rights.
According to The Sun, which says the “probe on how to tackle power-crazy Euro judges is being held up by bickering Tories and Lib Dems“, the 7-strong commission will also include another Liberal Democrat nominee (in addition to Lester), two more members appointed by the Tories and a senior Ministry of Justice civil servant. It will have to report by December 2012.
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9 March 2011 by Guest Contributor
At the end of the Wizard of Oz Dorothy manages to find her way back from the land of Oz to her farmstead in Kansas by closing her eyes, clicking the heels of her ruby-red slippers together, and repeatedly murmuring the incantation “There’s no place like home; there’s no place like home …”.
In his Bringing Rights back home: making human rights compatible with parliamentary democracy in the UK (Policy Exchange, 2011) the political scientist Dr. Michael Pinto-Duschinsky attempts a similar feat, seeking to bring human rights back from the Land of Stras(bourg).
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1 March 2011 by Adam Wagner
Updated | Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v Conseil des ministres, Case C‑236/09 – Read judgment / press release
The Court of Justice of the European Union (CJEU) has ruled that from December 2012, insurers will be prevented from charging different premiums on the basis of an insured person’s gender. A partner at a leading commercial law firm called September’s preemptive preliminary opinion “completely bonkers”. Can the same be said about the latest decision?
Coverage of the decision has already been largely negative. As well as involving Europe’s increasingly unpopular and possibly unelected judges, the ruling affects an interest group – insurance companies – with deep pockets and who are capable of sophisticated lobbying. And nobody wants to see their insurance premiums go up, if that is indeed to be the outcome of this ruling, something which is by no means clear. So expect to see plenty of critical articles. The Telegraph website is already sporting an unchallenged article/press release from Esure, including a video interview which begins with an advert for ESure’s “Sheila’s Wheels”.
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1 March 2011 by Rosalind English
Like many points of European law, the question whether the UK and Polish protocol to the EU Charter of Fundamental Rights amounts to a full opt-out is mired in confusion and political prejudice.
Its characterisation as an opt out or a mere “clarification” depends on where one stands on the eurosceptic/europhile spectrum. So where do we find a practical rather than an ideological answer to this important question? Certainly not in the political or academic record.
First, a reminder of what the Charter is all about. From the very early days of the European Community the Court of Justice (ECJ) has relied on fundamental principles of human rights as an interpretative tool, and the key provisions of the Charter are derived from the ECHR, which is uncontroversial enough. However a large number are drawn from the Community Social Charter 1989 and the Council of Europe’s Social Charter 1961. These are the so-called “social and economic rights” which appear to transform aspirational norms into judicially enforceable ones, like the right to work or healthcare. These “rights” are largely to be found in the “Solidarity Title” of the Charter, and it is to this part of the Treaty that the UK secured an opt out at the European Council in 2007.
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28 February 2011 by Adam Wagner
Peter Sutcliffe
Three convicted murderers are challenging their sentences in the European Court of Human Rights. They claim that the rare “whole life” tariffs which have been imposed in their cases is contrary to their human rights.
Jeremy Bamber, Peter Moore and Douglas Vinter were all convicted for murder and therefore sentenced to life imprisonment, which is the mandatory sentence for the crime. It has been so since death penalty was abolished in 1969. However, as is well-known, life does not always mean life, and when a judge passes sentence he also sets a tariff, which is the number of years before which the prisoner will be eligible to be considered for early release on licence. The rules have already been altered to make them compatible with fair trial rights. Will they have to be altered again?
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23 February 2011 by Adam Wagner
Garry Norman MANN v Portugual and the United Kingdom – 360/10 [2011] ECHR 337 (1 February 2011) – Read judgment
Garry Mann, a football fan who was convicted to two years in a Portuguese jail for rioting after an England match in 2004, has lost his appeal to the European Court of Human Rights against his conviction and extradition.
Mann has always denied taking part in the riot. The full background to the case is set out here. The case has been subject to a number of court hearings in the UK, including two judicial review hearings against his proposed extradition to Portugal to serve his prison sentence. He has also already had a claim in the European court rejected.
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16 February 2011 by Rosalind English
The latest episode in the soap concerning our relationship with Strasbourg may end in a fizzle rather than a cliffhanger, but it has provoked some useful soul-searching about the vision of the good embodied in the ECHR, and its monopoly on the right to govern social life.
Derogating from the ECHR or even pulling out of Strasbourg altogether have ceased to be taboo subjects for discussion, but the fear seems to be that the consequence of such defection would mean reversion to selfish nationalism. Is this a bad thing?
This question is not as facetious as it seems and answering it is central to the long term maintenance of a set of principles by which states agree to live.
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10 February 2011 by Adam Wagner
Updated | Parliament is currently debating on whether prisoners should be given the vote. The motion can be found here and you can watch the debate on Parliament TV.
A Washington Post correspondent recently said US President Barack Obama had been “bounding around like a ping-pong ball in a wind tunnel” on to the situation in Egypt. In many ways, the UK government has been doing the same on the 5-year-old judgment in Hirst v UK, in which, as has been endlessly repeated in the media, the European Court of Human Rights’ grand chamber ruled that the indiscriminate ban on prisoners voting breached Article 1 of Protocol 3 of the European Convention on Human Rights.
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9 February 2011 by Rosalind English
Bringing Rights Back Home is the latest policy document to address the tension between judges and politicians over public policy with human rights implications.
Within hours of publication of the report, a hard-hitting academic paper put together by the political scientist Michael Pinto-Duschinsky, criticism started pouring in, and there will be no doubt more huffing and puffing to come.
But before these lofty admonitions stifle them, it is worth considering some of the paper’s objections and proposals. These are legitimate points made in a political debate which has been masquerading for years as a legal one. The document is essentially uncontroversial, in legal terms.
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8 February 2011 by Adam Wagner
Mustafa Kamal MUSTAFA (ABU HAMZA) (No. 1) v the United Kingdom – 31411/07 [2011] ECHR 211 (18 January 2011) – Read judgment
The European Court of Human Rights has rejected radical preacher Abu Hamza’s claim that his 2005-6 trial, at which he was convicted of soliciting to murder, inciting racial hatred and terrorism charges, was unfair. He claimed that a virulent media campaign against him and the events of 9/11 made it impossible for the jury to be impartial.
Abu Hamza has lived in the UK since 1979. from 1997-2003 was Imam at the Finsbury Park Mosque, London. Between 1996 and 2000 he delivered a number of sermons and speeches which later formed the basis for charges of soliciting to murder, using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, possessing a document or recording with the same intent.
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28 January 2011 by Isabel McArdle
X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment
The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.
In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:
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The coalition Government has appointed an independent Commission to investigate the case for a UK Bill of Rights. This Commission has also been tasked with providing advice to the Government on the possible reform of the European Court of Human Rights – as part of on the ongoing Interlaken process – ahead of and following the UK’s coming Chairmanship of the Council of Europe. 
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