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8 August 2012 by Rosalind English
In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise?
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5 October 2012 by Alasdair Henderson
NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment
How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.
Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).
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3 October 2011 by Melina Padron
Leap back
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
An eventful week in Europe
Advocate-General Trstenjak has issued her opinion in NS v SSHD, a case currently pending before the Court of Justice of the EU. As reported by Cian Murphy for the Guardian, the case involves an Afghan asylum seeker who arrived in the EU via Greece before making his way to the UK to seek refuge.
Under the Dublin regulation it is for the EU country of first entry to consider the asylum claim, so the UK sought to return the claimant to Greece. The claimant then challenged his transfer by claiming that Greece was unable to process his case and that return would violate his fundamental rights. If he is successful, no asylum seeker could be returned to Greece under current conditions. In her opinion, AG Trstenjak made recommendations on a number of points, including the following:
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8 May 2012 by Adam Wagner
Remember the far right? They are back. The ultra-nationalist Golden Dawn party has just won 7% in the Greek elections. Although it rejects “neo-Nazi” labels, its symbolism and style clearly channel fascist parties of the past. It has a Swastika-like logo and inflammatory anti-immigration policies. And for those who thought ultra-nationalism was confined to the history books, this YouTube video of leader Nikolaos Michaloliakos‘s victory speech will be particularly unsettling. To members of the audience who stayed after a black-shirted thug screamed at them to stand up for the leader’s entrance, Mr Michaloliakos made the ominous promise that “a “new golden dawn of Hellenism is rising” and for those “who betray this homeland the time has come to fear”.
The recent successes of far right parties in Europe, which have benefited from recession protest votes and anti-immigration populism, is indeed something to fear. But it also presents an opportunity to reflect on the importance of international human rights standards.
In the ongoing debate over the role of a European system of human rights law, lip service is often paid to the origins of the European Convention on Human Rights (ECHR) in post-war Europe. The rise of Fascism had killed tens of millions. The Nuremberg trials, an early experiment for international justice, had been a success. A Europe-wide system of rights protection seemed sensible. It still does.
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10 February 2014 by Celia Rooney
Welcome back to the UK Human Rights Roundup, your regular sporting extravaganza of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
Last week, the Justice Secretary published the Criminal Justice and Courts Bill. The implications of his revised proposals for judicial review reform are considered in this week’s roundup, along with controversy over gay rights at the Winter Olympics and recent trends in defamation cases before the Court of Human Rights.
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30 April 2020 by Guest Contributor
Last week on this blog we published Francis Hoar’s article which argued that the Coronavirus Regulations passed by the Government in response to the COVID-19 pandemic involve breaches of the European Convention on Human Rights, particularly in relation to the interference they create in the rights to liberty, private and family life, freedom of worship, freedom of assembly, the prohibition on discrimination, the right to property and the right to education.
In this first of two response articles, Leo Davidson, a barrister at 11KBW, argues that the Regulations do not involve any breach of human rights law, as they fall within the executive’s margin of discretion for the management of this crisis, particularly given the serious potential implications of the pandemic and the reliance that the Government has placed on scientific and medical advice.
In the second article, Dominic Ruck Keene and Henry Tufnell, of 1 Crown Office Row, will argue that the interferences in rights created by the Regulations are proportionate when taken in the context of the pandemic.
Note: This article involves examination of the legal provisions that accompany some of the restrictions on movement of individuals announced by the Government in order to protect life in the current crisis. The current Government guidance setting out these and other restrictions can be found here. Legal scrutiny is important but should not be taken to question the undeniable imperative to follow that guidance.
Introduction
With the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, the Government has imposed a number of restrictive measures, colloquially referred to as the ‘lockdown’, in an effort to hamper the spread of the coronavirus.
These restrictions are controversial, and reasonable people disagree about whether they go too far, or not far enough. As a matter of human rights law, however, they are lawful. The Government has a positive obligation under human rights law to safeguard life and health; in balancing any conflict between this objective, and other rights, the Government has a significant margin of discretion, including in the assessment of scientific evidence.
Francis Hoar argues on this blog that the lockdown disproportionately interferes with various rights under the European Convention of Human Rights (ECHR) and is therefore unlawful. The analysis is wrong, primarily because:
- It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
- In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
- The margin is particularly wide given the complex scientific evidence underlying the decision.
I address these three point in turn, below.
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25 November 2012 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The government was on the defensive this week on a number of fronts. It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill. Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications. Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.
by Daniel Isenberg
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29 April 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular potpourri of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, in order to deport Abu Qatada, there have been mumblings of a temporary departure from the ECHR. Furthermore, Justice Secretary Chris Grayling’s legal services reforms lead to a strike in the North, and the recent ECHR decision to allow the UK’s ban on political advertising continues to generate discourse.
by Sarina Kidd
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16 June 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.
Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government. Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.
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4 December 2014 by Guest Contributor
The parliamentary Joint Committee on Human Rights this week published a report of its inquiry into whether the UK should ratify Protocol 15 of the European Convention on Human Rights. As the report states, Protocol 15 is the culmination of the UK Government’s contribution to the process of reform of the European Court of Human Rights, which was the UK’s top priority during its Chairmanship of the inter-governmental arm of the Council of Europe, the Committee of Ministers, in the first half of 2012.
The JCHR identifies as the most significant aspect of Protocol 15 the addition to the Preamble of the Convention of an express reference to the principle of ‘subsidiarity’ and the doctrine of ‘the margin of appreciation’. The Committee welcomes this amendment and recommends that the UK should ratify the Protocol – but only after it has been debated in both Houses as a means of raising members’ awareness of its significance.
This post focuses on the implications of Protocol 15 for the UK’s increasingly turbulent relationship with the Convention system, and for the wider debate about the purported ‘democratic deficit’ created by supranational judicial supervision of domestic democratically-accountable authority.
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24 October 2014 by Guest Contributor
Photo credit: Guardian.co.uk
The Conservative Party’s proposals to introduce a British Bill of Rights and Responsibilities that would weaken the UK’s obligations under the European Convention on Human Rights (ECHR) – and the legal chaos that would ensue if it was ever enacted – have been hotly debated. The proposal makes clear that if the Council of Europe was to reject the UK’s unilateral move, as it would be bound to, the UK ‘would be left with no alternative but to withdraw’ from the Convention.
The policy is highly isolationist. The brief section on the ‘international implications’ of the plan does not pause to consider the impact of withdrawal on the other 46 states on the Council of Europe or the Convention system as a whole. Nor does it address the implications for the UK’s ability to promote human rights and the rule of law in countries with significantly worse human rights records.
This is despite the evident risk of contagion to newer Council of Europe states. The Council of Europe Commissioner for Human Rights, Nils Muižnieks, has argued that if the UK persists in its disrespect for the Strasbourg Court, exemplified by its protracted non-compliance with the judgment on prisoners’ voting rights, this would
… send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system.
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17 September 2013 by Adam Wagner
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
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21 July 2010 by Adam Wagner
The deputy leader of the Liberal Democrats has said that gay couples are likely to gain full rights to marriage under the current Parliament. This would represent a revolution for gay rights, but there is still a long way to go before same-sex couples achieve full rights to marriage as they are arguably entitled to under human rights law.
Simon Hughes MP has told Yoost.com, a question and answer website, that Liberal Democrat MPs would be consulted on the rights of gay couples. He said “I don’t know the answer because we haven’t had the discussion“, but that
I see absolutely no reason why we shouldn’t all be able to support what Nick Clegg said, which is that it would be appropriate in Britain in 2010-11 for there to be the ability to have civil marriage for straight people and gay people equally.
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6 June 2018 by Guest Contributor
Michael Rhimes is the fourth référendaire to Judge Vajda at the Court of Justice of the European Union. He was not involved in the Coman case. This blog post is written in a purely personal capacity and reflects only the author’s views.
I have three points on the judgment, which is summarised in part 1.
1. A narrow judgment: A free movement case, not a gay marriage one.
The judgment is a narrow one. On a basic level, for the “Coman” rule to be engaged, a number of conditions must be satisfied:
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- At least one of the parties to the marriage must be a Union national;
- One of the Union nationals in question must have exercised their free movement rights (otherwise Article 21 TFEU will not be engaged, see C-434/09 McCarthy, paras 49 to 55)
- The couple must be married in a Member State that solemnises same-sex marriage.
In addition, the reasoning of the Court focuses on the right to free movement in Article 21 TFEU. The Coman judgment is not one that is predicated upon the growing recognition of same-sex marriage within the EU (on this, see my third comment, and para 56 to 58 of the Opinion) or, indeed, on fundamental rights (on this, see my second comment). Member States have to recognise the third country same-sex spouse of a Union citizen, but only so that Union citizen may freely exercise their free movement rights.
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4 June 2020 by Rosalind English
Reyno Dawid De Beer and Liberty Fighters Network (Applicants), Hola Ben Renaissance Foundation (Amicus Curiae) v The Minister of Cooperative Government and Traditional Affairs (Respondent) – Case No. 21542/2020 High Court of South Africa (Gauteng Division, Pretoria)
2 June 2020
“One need only to think about the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes “
Update: see my post on a ruling by the New Zealand High Court on the illegality of restrictive measures imposed by the government in the early days of lockdown.
A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on “human dignity, equality and freedom as contemplated in Section 36 of the Constitution.”
He drew “clear inference” from the evidence, that once the government had declared a national state of disaster, the goal was to flatten the curve by way of retarding or limiting the spread of the virus (“all very commendable and necessary objectives”). However, “little or in fact no regard” was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.
His criticism was not that the government should have done nothing in the face of the epidemic, but that they took a cartwheel to crush a butterfly.
The starting point was not “how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of south Africa, may exercise”.
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In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it? We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means? Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? 
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