Will Article 6 come to the rescue after the legal aid reforms? – Guy Mansfield QC

26 June 2013 by Guest Contributor

Tan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow

The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time.  The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR). 

The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.

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The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – Karon Monaghan QC

27 February 2020 by Guest Contributor

This article was  first published here on the UK Labour Law Blog on 19th February 2020 and is reproduced with the author’s kind permission.

There are several problems with the judgment in Forstater v CGD Europe and Ors (case no 2200909/2019) (“Forstater”). Some of these have been highlighted by Amir Paz-Fuch in his recent analysis on this blog, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace’. In this blog post, I look more at the specific findings of the Employment Tribunal and whether they are sustainable. I shall consider this issue in light, in particular, of the holdings of the High Court in R (Miller) v College of Policing and A’or[2020] EWHC 225 (Admin).

Parliament Square protesters evicted: analysis of judgment

30 June 2010 by Adam Wagner

The Mayor of London v Hall & Ors [2010] EWHC 1613 (QB) (29 June 2010) – Read judgment

The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.

The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July

As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.

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Censure of councillor for “sarcastic, lampooning and disrespectful” blog breached his free speech rights

7 May 2012 by Rachit Buch

Calver, R (on the application of) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) – Read judgment

The decision to censure a Welsh councillor for comments on his blog was a disproportionate interference with his right to freedom of expression, the High Court has ruled. This right requires a broad interpretation of what counts as “political speech” – even when the speech is sarcastic and mocking.

Lewis Malcolm Calver is a councillor on the Manorbier Community Council and Pembrokeshire County Council and the owner/writer of the at www.manorbier.com blog. These proceedings arose when Mr Calver was censured by the Standards Committee for Pembrokeshire County Council for comments or articles on his blog, which criticised the running of Manorbier Council.

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Senior judges speak out on EU and rights law

17 December 2013 by Rosalind English

Following David Hart’s highly popular review of  Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst”  (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers?
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The “gay marriage” case that never was: Three thoughts on Coman, Part 2 – Michael Rhimes

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:

1. 1. At least one of the parties to the marriage must be a Union national;
   2. 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)
   3. 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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Round Up- Fried eggs, Facebook, and the right to choose one’s counsel

26 March 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

The consultancy company Cambridge Analytica has come under fierce criticism for its treatment of Facebook users’ data. A whistle-blower, Christopher Wylie, alleged that Cambridge Analytica had gathered large amounts of data through a personality quiz, posted in Facebook, called ‘This is Your Digital Life’. Users were told the quiz was collecting data for research.
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No protection for Indy Camp under Articles 10 and 11

23 August 2016 by David Scott

Petition of the Scottish Parliamentary Corporate Body for an Order under Section 46 of the Court of Session Act 1988 [2016] CSOH 113 – read the judgment here

The Court of Session recently ruled in favour of the eviction of the Indy Camp outside Edinburgh Parliament.

by David Scott

Background

Since November 2015, the foot of Arthur’s Seat has been home to a continuous encampment, known as Indy Camp, promising to remain stationed until a second referendum on Scottish independence is called.  In December 2015 the Scottish Parliamentary Corporate Body brought proceedings seeking the eviction of the camp, as it encroached on the property of the Parliament.

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Freedom of expression and offensive political Emails: an important assertion of a fundamental right

8 February 2024 by Guest Contributor

In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.

Article 14

1 June 2010 by Adam Wagner

Article 14 | Anti-discrimination

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Article 14 of the European Convention on Human Rights provides:

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This right is parasitic; it is of no use to someone wishing to complain of discrimination who cannot establish that another free-standing Convention right is engaged. As with the other Convention rights it is only actionable against the State and public authorities as defined by the Human Rights Act 1998.

So, Article 14 must be pleaded in relation to some other substantive right in the Convention. It is not necessary to establish an actual violation of another Article; if the claim comes within the ambit of another protected right then it is possible for the applicant to succeed on discrimination alone, even if the primary violation has not been established, or the Member State’s action has been found to come within one of the permissible exceptions to that right (Belgian Linguistic Case (1967) 1 EHRR 252).

A good example of this is to be found in the sex discrimination case, (1) Abdulaziz (2) Cabales (3) Balkandali v United Kingdom (1985) 7 EHRR 471 ). The European Court of Human Rights stated here that:

Although the application of Article 14 does not necessarily presuppose a breach [of the substantive provisions of the Convention and its Protocols] – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms.

Equally, even if the right does not itself arise directly out of one of the Convention provisions – the right to have a system of appeal courts, for example, is not implicit in the fair trial provisions of Article 6 – once a signatory State has put such an appellate system into place, it cannot operate it in a discriminatory fashion since Article 14 prohibits discrimination in access to courts throughout the whole judicial system.

In cases where the Court finds a violation of a substantive right, it is still theoretically possible to obtain a ruling that Article 14 has been infringed as well. In Marckx v Belgium (1979) 2 EHRR 330, the Court concluded that the unfavourable treatment of illegitimate children under Belgian inheritance laws violated their right to a family life under Article 8, and breached the requirement under Article 14 that Convention rights should be secured without discrimination. On the other hand, in (1) Lustig-Prean (2) Beckett v United Kingdom : (1) Smith (2) Grady v United Kingdom (1999) 29 EHRR 449 the Court held that the investigations into and subsequent dismissal of several members of the armed forces on grounds of their sexual orientation amounted to a breach of their right to a private life under Article 8. The applicants contended that they had also been discriminated against in the enjoyment of their Convention rights, but the Court held that this contention did not give rise to any issue separate to that already considered under Article 8.

In most cases, however, the Court will content itself with a finding that a substantive right has been breached. In another case involving Article 8, the applicant challenged laws criminalising homosexual behaviour in Northern Ireland (Dudgeon v United Kingdom (1981) 4 EHRR 149). The Court, having found a violation of Article 8, left it at that, without going on to consider the applicant’s claim that the imposition of these laws in Northern Ireland and not in the rest of the United Kingdom was a breach of Article 14.

According to Karen Reid in The Practitioner’s Guide to The European Convention on Human Rights (Sweet and Maxwell, 2015), there has been a recent emphasis on the condemnation of racism and ethnic hatred with corresponding positive obligations on the state to maintain the confidence of minorities in the ability of the authorities to protect them from racist violence, and to investigate properly incidents of racial hatred (Menson v United Kingdom, App No 47916/99) ECHR 2003). Indirect discrimination may disclose a violation of Article 14; in other words where a neutral measure has a disproportionate effect on a group it is not necessary to show that there is any discriminatory intent; the burden shifts on to the Government to show that the difference in impact of the legislation or the or measure was the result of objective factors unrelated to ethnic origin: DH v Czech Republic, where statistics showed that Roma children were being grouped into special schools (13 November 2007). Although this could have been done with the best possible intention of providing educational support, the Court criticised the way that in practice these became ways of excluding the Roma children from mainstream schooling, without effective procedural safeguards. The fact that the parents themselves had consented to the placements was not a defence. The Court stated that no waiver of the right not to be subjected to racial discrimination could be accepted.

The list of grounds on which a person must not be discriminated against is not exhaustive under Article 14. The provision refers to “any ground” and concludes with a reference to “other status” and has been applied, interestingly, to different treatment on the basis of a genetic disease: GN v Italy, 1 December 2009.  In another example the Court found it unjustified to refuse a residence permit to the Uzbek husband and father of Russian citizens on the ground that he had HIV (Kiyutin v Russia, 10 March 2011). The Court comes particularly hard down on cases of discrimination on the basis of sex, observing frequently that advancement of equality of the sexes is a major goal of the Council of Europe and its contracting states. The same can be said of the importance of combatting racism.

In domestic terms, the Equality Act 2010 is designed to express most of the principles explicit or implicit in Article 14 in statutory terms.  For public authorities at least there is a duty to consider equality in all decision making processes: see  s.149 of the Act , containing the public sector equality duty).

• Return to Incorporated Rights Index
• Introduction to the Human Rights Act 1998

Supreme Court of Canada upholds physician-assisted dying

9 February 2015 by Rosalind English

Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII) 6 February 2015 – read judgment

The Supreme Court of Canada has upheld a challenge to the constitutionality of the prohibition on assisted dying, saying that since they last ruled on this issue in the 1993 case of Rodriguez (where a “slim majority” upheld the prohibition), there had been a change in the circumstances which “fundamentally shifted the parameters” of this debate.

The Court issued a declaration of invalidity relating to those provisions in the Canadian criminal code that prohibit physician assisted dying for competent adults who seek such assistance as a result of a “grievous and irremediable” medical condition that causes “endurable and intolerable” suffering. These laws should be struck down as depriving those adults of their right to life, liberty and security of the person under Section 7 of the Canadian Charter of Rights (The Constitution Act 1982)

Importantly, the court recognised what has long been proposed by campaigners on both sides of the Atlantic, that the prohibition deprives some individuals of life, as it has the effect of forcing people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.
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Safeguards for suspects and accused persons in criminal proceedings in the EU – Jodie Blackstock

24 August 2021 by Guest Contributor

The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?

Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance. 

The Coronavirus lockdown does not breach human rights (Part One) — Leo Davidson

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:

1. It ignores the human rights implications of the pandemic itself, which must be balanced against the effects of the responsive measures.
2. In the circumstances, the Government has a wide margin of discretion when balancing competing rights and interests.
3. The margin is particularly wide given the complex scientific evidence underlying the decision.

I address these three point in turn, below.

Conscientious objection to abortion: Catholic midwives win appeal

3 May 2013 by Alasdair Henderson

Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here

The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions. 

The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.

The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.

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Will the Sex Offenders’ Register “Review Mechanism” breach human rights law?

12 July 2011 by Graeme Hall

Updated | In 2010, the Supreme Court ruled that a mechanism should be put in place to review whether convicted sex offenders should remain liable after their release from prison to notify the police of where they live or plans to travel abroad. In June 2011, the government published draft legislation to “ensure that strict rules are put in place for considering whether individuals should ever be removed from the register.” However, it is possible that the “strict rules” leave the government vulnerable to further legal challenges.

To recap (see also Adam Wagner’s post), section 82 of the Sexual Offences Act 2003 places those convicted of a sexual offence and imprisoned for at least 30 months under a life-long obligation once released from prison to notify the police when changing address and travelling abroad (“the notification requirements”). The Supreme Court ruled that the notification requirements violated sex offenders’ Article 8 rights to a private life and issued a declaration of incompatibility.

by Graeme Hall

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