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Why we would be mad to leave our European Convention on Human Rights

3 September 2013 by Adam Wagner

Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015.  In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.

That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.

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Cohabiting partners should have same rights as spouses to claim bereavement damages — Lucy Eastwood

30 November 2017 by Guest Contributor

Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916 – read judgment

In a landmark decision handed down on 28^th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.

 
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Acronym Redux: JSA, IPPs and GCSEs – The Human Rights Roundup

18 February 2013 by Sam Murrant

Welcome back to the UK Human Rights Roundup, your regular booster shot 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.

In the news

Survey on LASPO impact

ilegal founders Patrick Torsney and Colin Henderson have launched a survey in collaboration with Centre for Human Rights in Practice researchers at the University of Warwick, focused on discerning the impact of LASPO legal aid cuts to professionals working in relevant sectors and their clients. Participation has been encouraged by both the Legal Voice and Pink Tape blogs, and the survey itself may be found here.

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The recent disorder: bail and sentencing – Obiter J

21 August 2011 by Guest Contributor

Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder.  Many cases have already been sentenced either in the Magistrates’ Court.  A lesser number of cases have been dealt with by the Crown Court.  (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).

In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts).  The use of “lay benches” has been very much the exception.  The reason for that is not entirely clear at this time.

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Cavalier with our Constitution: a Charter too far.

9 February 2016 by Guest Contributor

Photo credit: Guardian

Marina Wheeler

Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.

My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.

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Denouncing Human Rights, Legal Aid Woes and Animal Rights Advertising – The Human Rights Round

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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Press restrictions may continue after trial in the interests of national security

11 February 2016 by Guest Contributor

Photo credit: Guardian

HH Keith Hollis discusses the Judgment of the Court of Appeal in Guardian News and Media Ltd v R & Erol Incedal

Terrorism has brought many changes in the ways in which we go about our lives. Many of these are quite minor, irritating but generally sensible. The holding of trials where much of the evidence is kept secret is not minor, and in principle must be considered an outrage rather than an irritant. But there are clearly occasions when this has to happen, and it is a great challenge to those who on the one hand have responsibility for preventing terrorism and those on the other hand responsible for ensuring that justice has been done. 

The Lord Chief Justice, supported by Lady Justice Hallett and Lady Justice Sharp, supported Mr Justice Nicol’s dismissal of applications made by The Guardian and other media organisations that reporting restrictions applied during the trial of Erol Incedal be varied so as to permit the publication of reports of most, if not all, of what took place during hearings held in private, but in the presence of accredited journalists.

Readers may recall that Mr. Incedal had been subject to two trials on charges relating to terrorism. He was convicted at the first trial on one count (possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000), but acquitted of a more serious count following a retrial. He was sentenced to 42 months imprisonment.

There had been reporting restrictions from the outset. After a pre-trial hearing, a differently constituted Court of Appeal had directed that the trial should have three elements: part would be open; part could be attended by nominated and approved journalists, but without taking notes (and indeed significant steps taken to ensure that there were none); and finally part in camera). Nicol J, who now found himself with the burden of actually conducting such a trial, had originally ordered that the whole trial should be in camera.

The first point of note is the nature of the appeal (and indeed the earlier appeal). As the Lord Chief Justice made clear, referring to Ex p The Telegraph Group, “it is the duty of an appeal court, when considering issues relating to open justice as an appellate court, not simply to review the decision of the judge, but to come to its own independent decision.”

The presently constituted Court of Appeal was concerned about the nature of the earlier decision of the Appeal Court. They paid “an especial tribute to the way in which this trial was managed by the trial judge in consequence of the order” and his making of “the very difficult decisions which arose with conspicuous skill and ability”, coming to “the firm conclusion that a court should hesitate long and hard before it makes an order similar to that made by this court on 4 June 2014, given the unexpected effect it had on the conduct of the trial”. As it happened significantly more evidence was given in open hearings than had been anticipated, and without the need for judicial intervention. An indication of the professionalism and concern of the advocates and those instructing them.

The present appeal was dismissed as, having read the relevant evidence, the Court was “quite satisfied….. for reasons which we can only provide in a closed annex to this judgment that a departure from the principles of open justice was strictly necessary if justice was to be done” and that “because of the nature of that evidence those reasons continue to necessitate a departure from the principle of open justice after the conclusion of the trial and at the present time”.

The judgment acknowledges the loss of the “watchdog function” of the press, and says that public accountability now has to be left to the Intelligence and Security Committee of Parliament. To which it could be added that the relevant material has now been considered by the two relevant Secretaries of State, the DPP, the trial Judge, and it seems six Court of Appeal judges, including the Lord Chief Justice, who have all, albeit with different roles, come to the same regrettable conclusion as to the nature of the material that remains unreported. Indeed even the media seems to have accepted that some of the material at least should be kept out of the public domain.

Much of the real interest in this judgment will be in the analysis of the different constitutional responsibilities respectively of the executive in the form of the relevant Secretaries of State, the DPP, and of course the roles of Counsel and the trial judge.

Independence is the watchword. The DPP has to be independent of the executive so that she can exercise her own judgement firstly as to whether or not to bring a prosecution, and secondly whether or not to bring an application to the Court for the openness of the proceedings to be limited in some way (normally in camera).

But it is for the Court to “determine whether the evidence in issue should be heard in camera by consideration of the nature of the evidence”. The matter cannot be determined on the basis of an implicit threat not to prosecute: “the proper approach of the court is to examine the nature of the evidence and to determine the effect of hearing it in public. Deciding the issue on the basis that the DPP might not continue with the prosecution does not satisfy the test of necessity. In effect, it transfers the decision on whether to depart from the principle of open justice to the DPP”.

If the court rejects a submission for the withholding of material, and the DPP decides that the trial should still go ahead, the Court stressed that:

“the Executive cannot then refuse to provide the evidence required by the DPP on the basis that it perceives that it is not in the interests of national security to provide it. The court has made its decision and the Executive must abide by it… If the DPP decides on continuation, then the Executive must give the prosecution its full cooperation and assistance”.

Two procedural matters are of interest. Firstly a recommendation that Judges in such cases involving national security may on occasion need to be provided with the assistance of independent counsel if requested. The other is in a concluding observation that there was no mechanism for retention of closed Judgments, and that there should be. An obvious point perhaps, but one that raises interesting issues as to how such closed Judgments are later accessed, or even known about.

At the end of the day Mr. Incedal was acquitted of the more serious charge. There was a judge, a jury, counsel and solicitors, a number of observing, albeit constrained, journalists, an appeal procedure, and doubtless a recording of the proceedings. In respect of the reporting restrictions, these were considered twice by the Court of Appeal. It would be too easy, and inaccurate, just to dismiss this as “secret” justice.

Who should have the final word on human rights? – Dr Ed Bates

6 March 2012 by hrupdateadmin

This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.

A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).

The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.

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European Court of Human Rights rules that climate change mitigation is an actionable right under Article 8 ECHR

11 June 2024 by Rosalind English

This article was first published in Edition 33 of the Journal of Environmental Law and Management. It is reproduced here with the kind permission of the editors at Lawtext Publishing Limited

On Monday 9 April 2024 the Strasbourg Court handed down judgment in three cases involving climate change: Carême v France (ECHR no 7189/21), Duarte Agostinho v Portugal and 32 others ( ECHR no 39371/20), and Verein Klimaseniorinnen v Switzerland [2024] ECHR 304, no 53600/20.

Interestingly, shortly before the Strasbourg judges had reached their decision in these three cases, the New Zealand Supreme Court considered an application for strike-out of a challenge to a number of carbon-emitting businesses based on the tort of public nuisance as well as a new form of action, that involved a duty to cease materially contributing damage to the climate system: Michael John Smith (appellant) v Fronterra Co-operative group Ltd and Others [2024] NZSC 5. I will come back to this judgment later in this article.

First, we turn to the more recent Strasbourg cases. Each of these cases was examined by the same composition of the Grand Chamber, and each raised unprecedented issues before the Court.The particular nature of the problems arising from climate change in terms of the Convention issues has not so far been addressed in the Court’s case law. I will concentrate on the one successful application, Verein Klimaseniorinnen v Switzerland. Both Carême and Duarte Agostinho failed with their applications on procedural grounds; most notably, the Duarte Agostinho application was dismissed due to a failure to exhaust domestic remedies.

In Verein Klimaseniorinnen, some female senior citizens and a representative organisation (Klimaseniorinnen) argued that the impact of global warming on their health breached a number of Articles of the ECHR. The Strasbourg Court was satisfied in this instance that they had exhausted their local remedies, although it found that the individual applicants had not satisfied ‘victim status’ for the purposes of Article 34 ECHR; they had failed to demonstrate the existence of a sufficient link between the harm they had allegedly suffered (or would suffer in the future) and climate change. But the Court held, by 16 votes to one, that the applicant association did have locus standi in the present proceedings and that its com- plaint should be examined under Article 8 of the Convention.

Having admitted the association’s complaint, the Grand Chamber found that states are under a positive obligation under Article 8 to provide effective protection from ‘serious adverse effects of climate change on their life, health, well-being and quality of life’. In order to achieve this, states must enforce regulations that are capable of mitigating current and future impacts of climate change by having in place a plan for the reduction of greenhouse gas (‘GHG’) emissions and achieving carbon neutrality over the decades leading to 2050. Switzerland had failed in this in that it had not quantified a carbon budget, nor had it set limits on greenhouse gas emissions. It had also exceeded its previous GHG emission reduction targets, which resulted in a violation of Article 8. There was ‘no doubt’, said the Court, that climate change-induced heatwaves had caused, were causing and would cause further deaths and illnesses to older people and particularly women (represented by the Klimaseniorinnen association).

There was one sole dissent from the majority’s findings on admissibility and the merits. Further on in this article I will explore the different opinion of the British representative on the panel, Judge Eicke. Before that, we will look at the main arguments before the Court.

The Swiss Government argued that global warming had not reached the necessary level to create a tangible effect on the private and family life of the individual applicants under Article 8, including on their mental well-being.

The respondent state party also maintained that the Court should not allow the applicant association to circumvent the mechanism established under the Paris Agreement by seeking to establish, under the Convention, an international judicial control mechanism to review the measures to limit GHG emissions.

Various other governments intervened in this application to say, in effect, that the response to climate change should be an effective global response and that the Court should not, indeed could not, engage in a form of law- making and regulation which would bypass the role of the democratic process and institutions in the response to climate change.

The Swiss Federation also had quite a forceful argument on the in limine question of jurisdiction: it submitted that GHG emissions generated abroad could not be considered as attracting the responsibility of Switzerland as those emissions could not be directly linked to any alleged omissions on the part of Switzerland, whose authorities did not have direct control over the sources of emissions. Moreover, the whole system established by the UNFCCC, the Kyoto Protocol and the Paris Agreement was based on the principle of territoriality and the responsibility of states for emissions on their territory.Thus, said the respondent, the applicants could not complain about certain imports containing ‘embedded emissions’ from other jurisdictions. The Court did not agree. Although ‘embedded emissions’ contained an extraterritorial aspect, it did not raise an issue of Switzerland’s jurisdiction in respect of the applicants, but rather one of Switzerland’s responsibility for the alleged effects of the ‘embedded emissions’ on the applicants’ Convention rights.

Eight Trends and Eight Challenges to the European Court of Human Rights – Paul Harvey

16 February 2016 by Guest Contributor

Introduction

The opening of the Strasbourg Court’s judicial year every January always provides an opportunity for reflection on the themes and challenges which will define the Court’s jurisprudence for the coming year. This year, the theme of the seminar held at the Court to mark that opening was “International and national courts confronting large-scale violations of human rights””. I should like to offer eight predictions as to the other themes which will define the work of the Strasbourg Court this year. Given the Court’s pending caseload is still over 64,000 cases, these predictions are necessarily impressionistic. It will be for readers to judge whether, by this time next year, they have proven accurate.

(1) Security

The Court will continue to grapple with the security situation in Eastern Europe. Foremost on its docket are the inter-state cases involving Russia and Ukraine, but the Grand Chamber will also return to the issue of jurisdiction in Transdniestria in Mozer v. Moldova and Russia, in which it held a hearing on 4 February 2015.

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Holden v Ministry of Defence and the Police Service of Northern Ireland: accountability and the Northern Ireland conflict 

9 August 2023 by anuragdeb

In the early hours of 24 March 1922, a group of men, of whom most were in police uniform, broke into the North Belfast home of prominent Catholic businessman Owen McMahon and shot him dead, along with four of his sons and a male employee. Between 1920 and 1922, hundreds of people were killed, and thousands forced out of their homes, particularly in Belfast and the surrounding townlands. These grizzly events marked the birth of Northern Ireland. 

UK courts are bound by UK rulings, not Strasbourg decisions, says Admin Court – Leanne Woods

19 June 2015 by Guest Contributor

R (Victor Nealon) v Secretary of State for Justice : R (Sam Hallam) v Secretary of State for Justice [2015] EWHC 1565 (Admin), 8 June 2015 –  read judgment 

As Michael Gove contemplates the future of the Human Rights Act 1998, the High Court has considered how far the presumption of innocence in Article 6(2) ECHR spreads into decisions on payment of compensation for a miscarriage of justice. In doing so, Burnett LJ also managed to find some less than complimentary sentiments about the Strasbourg court’s decision-making.

Sam Hallam was convicted of murder in 2011. Victor Nealon was convicted of rape in 1997. Both successfully appealed against their convictions and then applied to the Secretary of State (‘SoS’) for compensation under s133 of the Criminal Justice Act 1988 (the ‘1988 Act’’), as amended by the Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘2014 Act’). Both men were refused compensation on the basis that their circumstances did not meet the s133 statutory test (as amended).
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Human Rights in the Supreme Court in 2020 – Lewis Graham

12 February 2020 by Guest Contributor

It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year. 

1. Article 3 and deportation

In the case of AM (Zimbabwe) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will have an opportunity to re-assess its approach to how Article 3 should apply in deportation cases.

It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment. 

The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition. 

Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.

Coroner defeated over controversial ‘cab-rank’ burial policy

1 May 2018 by Shaheen Rahman

Shaheen Rahman QC is a barrister at One Crown Office Row

R ((1) Adath Yisroel Buriel Society (2) Ita Cymerman) v HM Senior Coroner For Inner North London (Defendant) & Chief Coroner of England & Wales (Interested Party)  [2018] EWHC 969 (Admin)

The Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs.  The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).

The policy at the heart of this highly publicised battle between the coroner and faith groups has drawn criticism from across the political spectrum.  It is to the effect that

No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.

It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of death. Such requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.

 
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More major rule of law changes, more dodgy statistics used to justify them

5 May 2013 by Adam Wagner

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