In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.
The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.
My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” ) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.
So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.
The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at  –  distils the main elements.
Mousa & Ors, R (on the application of) v Secretary of State for Defence  EWHC 1412 (Admin) (24 May 2013) – Read judgment
Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.
Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
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.
Ms Swift lost her live-in partner in an accident at work caused by negligence. She was pregnant with her partner’s child, but had only been living with him for 6 months. Had she been with him for 2 years, she could have claimed damages for his death under section 1(3) of the Fatal Accidents Act – set out at  of the CA judgment. She would then have been a “dependant” as defined under the FAA. So she argued that her rights under Articles 8 (family) and 14 (discrimination) of the ECHR were not properly respected by the law governing damages for the death of a relative – there was no justification for this stark cut-off – 1 year 11 months no claim, 2 years a claim. The judge refused to grant a declaration of incompatibility between the ECHR and the Fatal Accidents Act, and the Court of Appeal has just upheld his decision.
A lot of money turned on the point: Had she qualified as a dependant, she would have had a claim for about £400,000.
The British Academy have today published a very interesting new report by Colm O’Cinneide considering the workings of the UK human rights law, the relationship between the ECHR, UK courts and the Parliament and the potential effect of a bill of rights.
The report (full report / executive summary) had a prestigious steering committee, including Professor Vernon Bognodor, who knows a bit about the British constitution, and Professor Conor Gearty. The conclusions represent – at least in my experience – the mainstream view amongst legal academics, lawyers and indeed judges on the human rights system. In summary, and with apologies if this is an over-simplification of the report’s detailed findings:
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.”
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.
The Queen(on the application of Tony Nicklinson) v Ministry of Justice  EWHC 2381 (Admin) – read judgment
Lord Justice Toulson, sitting with Mrs Justice Royce and Mrs Justice Macur, has handed down judgment in the case of Tony Nicklinson and that of another “locked-in” syndrome sufferer, “Martin”. On all the issues, they have deferred to parliament to take the necessary steps to address the problems created by the current law of murder and assisted suicide.
Tony Nicklinson sought a declaration of immunity from prosecution for a doctor who would give him a fatal dose of painkillers to end his life in Britain. He also sought a declaration that the current law is incompatible with his right to respect for private life under article 8, contrary to s1 and 6 of the Human Rights Act 1998, in so far as it criminalises voluntary active euthanasia and/or assisted suicide.
Martin’s claim was slightly different as his wife does not want to do anything which will hasten his death. He therefore asked for permission for volunteers to be able to help him get to the Dignitas clinic in Switzerland (under recent guidelines from the Director of Public Prosecutions only family members or close friends who are motivated by compassion are unlikely to be prosecuted for assisting a suicide). In the alternative he sought a declaration that section 2 of the Suicide Act is incompatible with the right to autonomy and private life under Article 8 of the European Convention. Continue reading →
Swift v. Secretary of State for Justice  EWHC 2000 (QB) Eady J, read judgment
This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see  of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?
Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via s.3 of the Human Rights Act (to make the FAA rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.
So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.
Updated | Mouvement Raëlien Suisse v Switzerland  ECHR 1598 (13 July 2012) – read judgment
This case concerned the Swiss authorities’ refusal to allow an association to put up posters featuring extraterrestrials and a flying saucer on the ground that it engaged in activities that were considered immoral.
The association complained it had suffered a violation of its right to freedom of expression. The Grand Chamber did not agree, ruling that the refusal had met a “pressing social need” and that the authorities had not overstepped the broad margin of appreciation given to them in view of the non-political dimension of the poster campaign.
At first blush there is nothing remarkable about this ruling. But it was a narrow majority (nine votes to eight) and a brief reading of the dissenting opinions gives pause for thought: does the slightly loony nature of a message justify its suppression? Lurking behind the authorities’ refusal to allow the association’s advertising campaign is a sense of disapproval vis a vis their anti-Christian message; one of the campaigns the association wished to conduct featured a poster stating “God does not exist”, and on another, below the association’s website, ran the message “Science at last replaces religion”. Continue reading →
Harrow Community Support Ltd v. Secretary of State for Defence  EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment
In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.
Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.
R(on the application of S and KF) v Secretary of State for Justice  EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
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