4 February 2019
The Supreme Court has upheld challenges to the legal regimes for disclosing criminal records in England and Wales, and Northern Ireland, finding them to be incompatible with Article 8 of the European Convention on Human Rights (“ECHR”).
R (P, G and W) and Anor v Secretary of State for the Home Department and Anor [2019] UKSC 3 – Read Judgment
10 October 2016
Understanding Standing: Post 3 of 3 of Article 263(4) TFEU
This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.
Part I) Effective judicial remedies.
Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows:
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)
This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection.
Continue reading →
16 April 2013
Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment
One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.
The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.
27 August 2012
Welcome back to the UK Human Rights Roundup, your weekly smörgåsbord 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.
by Wessen Jazrawi
20 April 2018
‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’
17 July 2024
The ECHR’s Additional Protocols 4, 7 and 12 have never been ratified by the UK and are not included in the schedule to the Human Rights Act 1998. This post suggests that the new government remedy this. It also sets out part of the history to the Additional Protocols, what the rights in those Protocols include, a summary of the relevant jurisprudence and a brief note of what effect they might have in the UK.
In the run up to the 1997 general election and during the drafting of the Labour Party’s policy on what was to become the Human Rights Bill there were discussions within the Shadow Cabinet about whether or not the remaining Protocols 4, 6 and 7 to the European Convention on Human Rights that, were not currently binding on the UK as a matter of international law, should be signed and ratified and, as a result, bind the UK at an international level.
At the time the Labour Government said ‘It will be possible to ratify Protocol 4 only if the potential conflicts with our domestic laws can be resolved. This remains under consideration but we do not propose to ratify Protocol 4 at present.’[1] The then government had concerns that Articles 2 and 3 of Protocol 4 may confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have a right to reside in the UK.[2] In a subsequent Joint Committee on Human Rights report, the Committee noted that the terms of Article 2 of Protocol 4 are ‘substantially similar to those of Article 12 ICCPR, which the UK has ratified subject to reservations regarding disciplinary procedures for members of the armed forces, and regarding nationals of dependent territories and the right to enter and remain in the UK and each of the dependent territories.’[3]
In contrast, it was eventually agreed by the new Labour Government that Protocol 7 should be ratified and added to Schedule 1 of the Human Rights Act:
“4.15 In general, the provisions of Protocol 7 reflect principles already inherent in our law. In view of concerns in some of these areas in recent years, the Government believes that it would be particularly helpful to give these important principles the same legal status as other rights in the Convention by ratifying and incorporating Protocol 7. There is, however, a difficulty with this because a few provisions of our domestic law, for example in relation to the property rights of spouses, could not be interpreted in a way which is compatible with Protocol 7. The Government intends to legislate to remove these inconsistencies, when a suitable opportunity occurs, and then to sign and ratify the Protocol.
4.16 The Secretary of State will be able to amend the Human Rights Act by Order so as to insert into it the rights contained in any Protocols to the Convention which the United Kingdom ratifies in future. The Order will be subject to approval by both Houses of Parliament. The Bill also enables any reservation to a Protocol to be added, but as with the existing reservation it will have to be reviewed every five years if not withdrawn earlier.”[4]
Changes which resulted in the ability to comply with the provision of equality between spouses in Article 5 of Protocol 7, were only made in 2010.[5] However, once these changes were made, the 2010 election came along and Labour was out of office. Protocol 7 remains unratified.
The Additional Rights in these Protocols
The rights in Protocol 4:
- Prohibition of imprisonment for debt
- Freedom of movement within a territory
- Freedom to leave the territory
- Prohibition of expulsion of nationals
- Prohibition of collective expulsion of aliens[6]
The rights in Protocol 7:
- Procedural safeguards relating to the expulsion of aliens
- Right of appeal in criminal matters
- Compensation for wrongful conviction
- Right not to be tried or punished twice
- Equality between spouses
The right in Protocol 12
Any right set out in law shall be secured without discrimination
Protocol 4 and 7 add rights to the ECHR, at least in part, to make up for deficiencies in the ECHR itself when compared to the United Nations International Covenant on Civil and Political Rights (ICCPR) – the UN’s equivalent of the ECHR. The UK ratified the ICCPR in 1976 (and now 172 countries across the World have ratified it).
The right to free movement and the prohibition on the collective expulsion of aliens contained in Protocol 4 are also set out in Articles 19 and 45 of the EU’s Charter of Fundamental Rights. The prohibition against double jeopardy and the equivalence between men and women contained in Protocol 7 are set out in Articles 23 and 50 of the Charter and the general prohibition against discrimination in Protocol 12 is contained in Articles 20 and 21.
Currently, Protocol 4 of the ECHR has been signed and ratified by all bar four of the 46 Member States of the Council of Europe (Greece, Switzerland, Turkey and the UK have not ratified the Protocol). Protocol 7 has been signed and ratified by every one of the 46 Member States except for Germany, Netherlands and UK. If ratified, art.4 of Protocol 4 could be an important tool in challenging the effects of the Nationality and Borders Act 2022 and Illegal Migration Act 2023 domestically and in Strasbourg. Despite inconsistent applications of art.4 of Protocol 4, the Court’s jurisprudence is one of the few legal protections against European externalisation policies and a way for those affected to challenge domestic decisions.
Protocol 12, the general anti-discrimination provision, is also a right already contained in the ICCPR[7] but is missing from the main body of the ECHR itself. Article 14, in the main Convention, only prohibits discrimination where this relates directly to the other rights in the Convention. Protocol 12 is, however, a ‘stand-alone’ provision and has a much wider remit. Protocol 12 has been ratified by twenty Member States although it only came into force in 2005. It is accepted that it would have been more difficult for the UK to ratify in 2005. Concerns were raised regarding its potential breadth, though the Joint Committee on Human Rights considered that these concerns were unwarranted.[8] In addition, the Labour Government’s Equality Act of 2010 has now resolved many of any remaining difficulties with compliance. As a signatory to a wide variety of international human rights instruments concerning equality and non-discrimination, the United Kingdom has already accepted the main principles enshrined in Protocol 12.
As with all the Convention Rights, these rights come with protections and caveats to protect the wider public interest and the interests of society more generally. This is already clear from the fact that they are all tried and tested by being part of the ICCPR, ratified across the World and by the fact that so many countries in Europe have agreed to be bound by them.
It is also clear that, all these rights are all already largely protected by provisions of domestic law. Further, to assuage concerns regarding overreach, many of the rights in these Protocols are subject to limitations or restriction. For example, restrictions which:
“are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“may … be … imposed in accordance with law and justified by the public interest in a democratic society.”
“[are] necessary in the interests of public order or is grounded on reasons of national security.”
“shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
Many of the provisions impose important but relatively restricted ‘due process’ rights – rights to a fair procedure which is already largely set out in UK law or provided by the common law created, in large measure, by judicial review.
In relation to Protocol 12, the prohibition of discrimination, consistently with the Equality Act 2010, “distinctions for which an objective and reasonable justification exist do not constitute discrimination.”
Conclusion
The focus of protecting human rights in the UK must, at the very least, be the preservation of the Human Rights Act without any erosion of either the rights or the remedies it provides. Nevertheless, the threat to the Act will hopefully disappear now that the Labour Party is in government. It is, therefore, an important step to consider adding the further protections that are set out in Protocols 4, 7 and 12 and to bring the UK in line with most of the rest of 46 countries of the Council of Europe and the 172 countries that have ratified the ICCPR.
In the context of more the authoritarian rhetoric in politics[9] and, particularly, the regressive steps taken by the previous Government towards those seeking asylum and refuge in the UK and increasing isolation from Europe, the new Government should, at least, send a clear signal that there is a new approach being developed and indicate this by ratifying Protocols 4, 7 and 12. This will hopefully provide a way to rectify some of the damage done by recent legislation and pre-empt further attacks on human rights.
John Wadham is Human Rights Advisor to the Northern Ireland Policing Board
Fiona Byrne is an Independent Human Rights Consultant and previously Human Rights Officer at the Northern Ireland Policing Board
The views expressed are those of the authors alone.
[1] Rights Brought Home, October 1997, CM 3782, para 4.11
[2] Department of Constitutional Affairs, Report of the Outcome of an Interdepartmental Review Conducted by the Department of Constitutional Affairs, July 2004, p. 40
[3] Joint Committee on Human Rights, Review of International Human Rights Instruments, Seventeenth Report of Session 2004-05, para 38
[4] Rights Brought Home, October 1997, CM 3782, paras 4.15 and 4.16
[5] By sections 198 to 201 of the Equality Act 2010.
[6] For more detailed analysis of this provision and the applicability on legislation such as the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, see John Wadham, Fiona Byrne, More Human Rights: Protocols 4, 7 and 12 of the European Convention on Human Rights and the Human Rights Act 1998, European Human Rights Law Review 2023, Issue 6.
[7] Article 26.
[8] Joint Committee on Human Rights, 17th Report (2005–2006), HL 99, para 33
[9] For example, in 2023, the UK has been downgraded from ‘narrowed’ to ‘obstructed’ civic freedoms in a new report by the CIVICUS Monitor, a global research collaboration that rates and tracks fundamental freedoms in 197 countries and territories: https://monitor.civicus.org/country-rating-changes/uk/
24 July 2015
Laura Profumo delivers the latest human rights happenings.
In the News:
Right to die campaigners have sustained yet another setback, following the judgment of R (AM) v General Medical Council last week.
18 September 2018
In a landmark judgment on 6 September 2018, the Supreme Court of India decriminalised homosexuality.The decision in Navtej Johar v Union of India was the culmination of years of tireless campaigning by LGBT rights activists in India. This article seeks to provide an overview of the road to that led to this judgment, alongside some interesting themes emerging from the decision of the Supreme Court.
Background: The Indian Penal Code of 1860
There is a widely-held view that, prior to the colonisation of India, same-sex relationships were not frowned upon. The source of the prohibition on homosexuality is the Indian Penal Code, enacted in the 1860s by the government of the British Raj. It is thought that the ban enacted by the British represented an attempt to ‘civilise’ the Indian population through the imposition of Victorian standards of morality
The provision in question, section 377, simply states:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Indian Constitution
Following independence in 1947, the Constitution of India became effective in 1950. It created a system in which laws deemed to be incompatible with the Constitution could be struck down by the Supreme Court. In this sense, the Indian Constitution is similar to the US Constitution, and differs from the UK constitutional model.
14 January 2018
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here
The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this. That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.
The opinion is complex and I summarise it in the simplest terms. But here goes.
21 June 2012
Lee Carter, Hollis Johnson, Dr. William Shoichet, The British Columbia Civil Liberties Association and Gloria Taylor v Attorney General of Canada (2012 BCSC 886) 15 June 2012 – read judgment
Interest in the “locked-in syndrome” cases currently before the High Court runs high. We posted here on the permission granted to locked-in sufferer Tony Nicklinson to seek an advance order from the court that would allow doctors to assist him to die under the common law defence of necessity.
He is also arguing that the current law criminalising assisted suicide is incompatible with his Article 8 rights of autonomy and dignity. The other case before the three judge court involves another stroke victim who is unable to move, is able to communicate only by moving his eyes, requires constant care and is entirely dependent on others for every aspect of his life. (Philip Havers QC of 1 Crown Office Row is acting for him)
8 June 2010
Prime Minister David Cameron has been busy preparing the country for “painful” cuts to pensions, pay and benefits. In a recent Guardian Article, The changing face of human rights, Afua Hirsch comments with approval on the 2008 recommendation by the Joint Committee on Human Rights that a new UK bill of rights should include the rights to health, education, housing and an adequate standard of living. Rosalind English asks whether the time has indeed come for “economic” human rights.
Ms Hirsch cites a number of examples around the world where such “social and economic rights” have been used successfully to challenge government policy on the distribution of healthcare, housing and benefits. Why, then, she asks, is such an extension of our existing rights so strenuously resisted in this country?
24 November 2013
Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment
The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.
The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.
This case dealt with a specific and rather technical variation on that theme.
13 March 2012
Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment
Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.
This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.
Continue reading →
16 June 2013
The Queen (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and Newhaven Town Council (Interested Party) [2013] EWCA Civ 673, 276, 14 June 2013 read judgment
This case came before the Court of Appeal earlier this year (read judgment of April 2013, and Rosalind English’s earlier post giving the background), when the landowner Port’s attempts to exclude members of the public from West Beach, Newhaven were unsuccessful. They were defeated by the beach being registered as a “village green” – improbable though that description may sound to those not versed in this arcane bit of the law. The lawfulness of this registration in turn depended on it being established that members of the public had used the beach for at least 20 years “as of right” – i.e. “without force, without stealth and without permission” – an age-old lawyers’ mantra that has mercifully been translated from the original Latin in recent times.
But the earlier hearing before the CA left over for determination one issue, the Port’s contention that they had been deprived of property rights in breach of Article 1 of Protocol 1 (A1P1) of ECHR, because of a retrospective change of the law adverse to them. This is what last week’s decision is about.
9 December 2010
The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions(Appellant) [2010] UKSC 54 – Read judgment / press release
The Supreme Court has ruled that where benefits are overpaid as a result of a mistaken calculation, the department responsible cannot claim these amounts back via the common law route of restitution; the Secretary of State’s only recourse is via Section 71 of the Social Security Administration Act.
The following summary is taken from the Supreme Court site’s Press Release, with my comment below:
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Administration Act 1992 (the “1992 Act”) provides the only route to recovery (nb. the Supreme Court press summary wrongly refers to the Social Security Benefits Act 1992).
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