Intersectionality and equality: a view from the Constitutional Court of South Africa

26 November 2020 by Michael Rhimes

Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)

The house owner did not hear when Ms Mahlangu drowned in the family swimming pool. She was a domestic worker who had given 22 years of her life to tending to that family’s needs. Like most domestic workers in South Africa, she was a Black woman. Her daughter – Sylvia Mahlangu – sought to claim compensation from a statutory fund set up for employees who suffer injuries at work. Her claim failed because the legislation excluded domestic workers, like her mother, from the definition of ‘employee’ (see here, (xviii)(d)(v) excluding “a domestic employee employed as such in a private household” from compensation). 

The Constitutional Court of South Africa unanimously held that the exclusion of domestic workers from the statutory definition of employee breached the right to equality  (see here), and, by majority, the rights to dignity and to social security.  What I wish to focus on in this post is the diverging approaches to equality between the ‘dissenting’ judgment of Jafta J, on the one hand, and the ‘majority’ judgments of Victor AJ and Mhlantla J, on the other.  In particular, I wish to focus on the way Victor AJ and Mhlantla J relied on the concept of ‘intersectionality’ to understand what was truly constitutionally offensive about excluding domestic workers from the statutory definition of employee.  What follows is a necessarily high-level overview (at the risk, I accept, of being somewhat blunt). I hope the reader will understand that it is due to the constraints of space in a blog-post; I can only direct the interested reader to the judgments themselves. 

Convention’s prohibition on discrimination may apply to pre-Human Rights Act wills

30 March 2017 by Rosalind English

Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment

The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.

Background Facts and Law

Henry Hand died in 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.

The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The defendants argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed.
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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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Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?

30 November 2016 by Guest Contributor

Re: W (A child) [2016] EWCA Civ 1140 – read judgment

Summary

A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.

Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.

The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.

The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.

The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.

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The providers of ‘Ride Hailing apps’ and their drivers: another judgment from Amsterdam

19 March 2021 by Rosalind English

Three applicants v Ola Netherlands B.V. C/13/689705 / HA RK 20-258, District Court, Amsterdam (11 March 2021)

An Amsterdam Court has ordered Ola (a smartphone-hailing taxi organisation like Uber) to be more transparent about the data it uses as the basis for decisions on suspensions and wage penalties, in a ruling that breaks new ground on the rights of workers subject to algorithmic management.

James Farrarr and Yaseen Aslam, who won the landmark victory in the UK Supreme Court in February, led the action by a group of UK drivers and a Portuguese driver, who bought three separate cases against Ola and Uber seeking fuller access to their personal data.

The following is a summary of the case against Ola taxis. Anton Ekker (assisted by AI expert Jacob Turner, whom we interviewed on Law Pod UK here) represented the drivers. He said that this case was the first time, to his knowledge, that a court had found that workers were subject to automated decision-making (as defined in Article 22 of the GDPR) thus giving them the right to demand human intervention, express their point of view and appeal against the decision.

The Facts

Ola is a company whose parent company is based in Bangalore, India. Ola Cabs is a digital platform that pairs passengers and cab drivers through an app. The claimants are employed as ‘private hire drivers’ (“drivers”) in the United Kingdom. They use the services of Ola through the Ola Driver App and the passengers they transport rely on the Ola Cabs App.

Proceedings are pending in several countries between companies offering services through a digital platform and drivers over whether an employment relationship exists.

By separate requests dated 23 June 2020, the first two claimants requested Ola to disclose their personal data processed by Ola and make it available in a CSV file. The third claimant made an access request on 5 August 2020. Ola provided the claimants with a number of digital files and copies of documents in response to these requests.

Ola has a “Privacy Statement” in which it has included general information about data processing.

All references in this judgment is to the AVG, which is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (GDPR).

A searching question

22 November 2010 by Guest Contributor

There are now over 400 posts on the UK Human Rights Blog. This landmark provides a good opportunity to remind readers how to search the site.

The most basic search function is by entering a word into the “search” box which is always available at the top right of the screen.

You can also search by category via the blog archive or the drop down menu which is on the sidebar to the right. Each post is ‘tagged’ with:

1. A blog category (for example ‘case summary‘ or ‘in the news‘)
2. A legal category (for example, family law) and
3. An article of the European Convention on Human Rights (for example, Article 2, the right to life).

You can read more about the individual rights on our ECHR page, which is also in a tab above. The full list of categories is reproduced below:

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Police powers under Welsh COVID Regulations

18 January 2022 by crashwigley

The pandemic has had a knock-on effect of increasing awareness of devolution. The governments of Northern Ireland, Scotland and Wales have been responsible for navigating the pandemic in their own countries, and the approaches taken have sometimes significantly diverged. With the COVID Regulations affecting the essentials of our daily lives, public attention across the UK has been drawn to the powers of devolved governments to govern differently from Westminster.

One surprising difference between the Welsh and UK Governments – and one that has evaded much public scrutiny – is that the Welsh Regulations created a new power of entry which allows police officers to enter people’s homes in certain circumstances to investigate breaches of the COVID Regulations. No such power has ever been included in the English Regulations, and the power of English police officers to enter people’s homes is more restricted, governed by the provisions of the Police and Criminal Evidence Act 1984 (‘PACE’) and the common law rules for dealing with breaches of the peace.

The practical issues around the Welsh police power of entry to people’s homes have fallen into the background in recent months, because it mainly arises when there is or has been a suspected unlawful gathering in someone’s home. (Although on 26 December 2021, a new restriction was introduced banning gatherings of more than 30 in homes.) With restrictions hopefully easing again, reflecting on this regulation raises broader questions about human rights and legal scrutiny in Wales.

Article 5

1 June 2010 by Adam Wagner

Article 5 | Right to liberty and security of the person

Read posts on this Article

Art.5 of the European Convention on Human Rights provides as follows:

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The corresponding provision in the EU charter, Article 6, is much shorter:

Everyone has the right to liberty and security of the person.

The explanatory notes on the Charter state that the rights in Article 6 have the same meaning and scope as Article 5 ECHR. The limitations which may be imposed on them may not exceed those permitted by the ECHR.  The liberty of the subject is within the competence of the EU institutions and engages EU law ever since immigration and aspects of criminal justice have come within the jurisdiction of the European Court of Justice. Furthermore, member states may also arrest and detain persons pursuant to EU law, most often in the fields of immigration and asylum and cross-border cooperation in criminal proceedings. Any domestic proceedings under the European Arrest Warrant will necessarily engage the Charter and its rights.

The right to liberty cannot be absolute and although most of this Article is dedicated to a list of conditions under which a person’s liberty can lawfully be curtailed, each of these permissible forms of detention depends for its legitimacy on the availability of review. In other words, there must be periodic scrutiny of the legality of the detention by an independent court or tribunal. It is important to note that this list is exhaustive, i.e. there are no other permissible derogations to the right to liberty of the person.

The first part of Art.5 governs all situations where people are deprived of their physical liberty; this can extend from detention for less that two hours for the purpose of deportation (X & Y v Sweden Application No.00007376/76) to the holding of a patient in an open ward of a mental hospital (Ashingdane v United Kingdom (1985) 7 EHRR 528), as well as the more obvious situations involving arrest for criminal offences. As far as detention of people of “unsound mind” is concerned (Article 5(1) (e)), proof of an established mental disorder is not required at the initial taking into detention. For an initial period of assessment, it may be enough that there is some medical evidence, and genuine concern that the person is of risk to themselves or others (SR v Netherlands, Application no. 13837/07) 28 December 2012).  Detention for unsound mind will only be lawful under Article 5(1)(e) if effected in a hospital, clinic or other appropriate institution (Aerts v Belgium, 1998 29 EHRR 58).

Those parts of Article 5(1)(d) – (f) that deal with types of administration detention that do not follow a court order, makes it all the more important that the individual has a right to examine the legality of that detention under Article 5(4). Note however that the Strasbourg Court has held that Article 5(1)(f) is distinct from the other forms of detention permitted under (a) – (e) in that detention may not be “necessary” or “proportionate” to secure the deportation or extradition of someone detained in a signatory state, nor to prevent their illegal entry (Chahal v United Kingdom (1997)). The Court needs to retain its legitimacy in the eyes of signatory states by respecting their sovereign right to control their borders and refuse aliens the same general rights to liberty enjoyed by their citizens (Saadi v United Kingdom 2008).

The reference to the “liberty and security of the person” means simply that the arrest must not be arbitrary; individuals should be “secure” from the unexplained and unlawful actions of the State: Bozano v France (1986) 9 EHRR 297.

The right to review of detention under Article 5(4) was held not to have been breached by the UK government in having so called “closed” procedures when information about a terrorist suspect is not available either to the individual concerned or their lawyers. The special advocate performed “an important role” in counterbalancing the lack of full disclosure and the lack of an open adversarial by putting arguments on behalf of the detainee in the closed hearings. Although in the same case (A v United Kingdom (2009) No. 3455/05) the Grand Chamber found, in respect of some of the applicants, that the closed procedure could not be fair when decisive evidence was contained in the closed material that they had no chance to challenge.

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Article 8

1 June 2010 by Adam Wagner

Article 8 | Right to private and family life

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Article 8 of the European Convention on Human Rights provides as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The corresponding provision in the EU Charter, Article 7, is essentially the same as Article 8 ECHR except that “correspondence” has been changed to “communications” to take account of changing technology in this area. Although it does not set out the clawback provisions in the way that Article 8 ECHR does, the explanatory note to the text of Article 7 of the Charter makes it clear that the rights it lays out are intended to be subject to the limitations set out in Article 8(2) ECHR.

Article 8 is one of the most open-ended of the Convention rights, covering a growing number of issues and extending to protect a range of interests that do not fit into other Convention categories. This is partly because neither the Commission, when it was still in existence, nor the Court in its present incarnation, have attempted any comprehensive definition of Article 8 interests, adapting them to meet changing times.

Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Article 8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985) 8 EHRR 235.

There are four express protected interests under Article 8:

(1) private life;
(2) home;
(3) family;
(4) correspondence.

Most actions have been decided under the right to respect for private life, although they may involve incidental claims to respect for home, family or correspondence.  The requirement to provide “respect” for all four interests has reinforced the positive obligations on states, rather than simply requiring them to refrain from interfering with these interests. Thus it is that in recent years increasing attempts have been made to spread Article 8’s remit to social and economic claims on the welfare, like access to medical treatment and drugs; it is fair to say that the courts have, in general, resisted such claims by repeatedly holding  that Article 8 is simply not engaged (that is, cannot be invoked) in relation to the provision of medical resources.

Nor does the State had a “positive obligation” under Article 8 to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011), an application which was made following the success of the Diane Pretty case under Article 2 (see our repost on this case).

A far more effective series of claims have been made under Article 8 to overcome immigration controls when children are involved in removal or deportation decisions; see our posts on children in detention centres, in deportation decisions and the effect of this particular aspect of Article 8 in immigration matters generally. The European Court of Justice has weighed in with its own application of Article 8 ECHR to stress the obligation on national authorities to take into account the right to respect for family life in immigration matters:see C-127/08 Metock v Minister for Justice, Equality and Law Reform [2008] ECHR I-6241.

Due to changing mores and advances in reproductive technology, the concept of “family” has changed dramatically since Article 8 was first drafted. Ties between family members need no longer be biological, and biological ties themselves can emerge from the laboratory . Same sex parents, surrogate versus birth mothers, carers rather than parents should all theoretically, lay claim to family bonds under Article 8. But the Strasbourg Court has shrunk from extending the scope of Article 8 to protecting the right of transsexuals to adopt (Frette v France (2004) 38 EHRR 21; although see EB v France, 22 January 2008, where the Grand Chamber ruled that Article 14 had been breached in conjunction with Article 8 when the government refused authorisation for adoption to the lesbian applicant ).

The privileging of marriage as part of the right to family life has been a source of great misery as human traffickers have sought to profit from the loophole in immigration controls by importing potential “wives” into the United Kingdom. Efforts by the government to eradicate the practice of forced marriage by refusing to grant visas to non-resident spouses under a certain age have been frustrated by the courts upholding Article 8 (see R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department [2011] UKSC 45 and our post on the matter ). In May 2016 the Grand Chamber the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 in conjunction with Article 8, overruling its previous position if there is any lack of obstacle to spouses living elsewhere, the state refusing entry is not in breach of Article 8: see Biao v Denmark [2016].

Like Articles 9, 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are “in accordance with the law” (Artciles 9,10 & 11 require measures to be “prescribed by law”) and, in all cases, “necessary in a democratic society”. The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.

In Accordance with the/Prescribed by law

This means three things:

(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14).

Necessary in a Democratic Society

Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for “necessity.” The Court has held that the notion of necessity implies two things:

(1) that an interference corresponds to a pressing social need;
(2) that it is proportionate to the legitimate aim pursued.

The Doctrine of Proportionality

In order for a measure to be “necessary in a democratic society”, it must respond to a “pressing social need” (The Sunday Times v United Kingdom (1979) 2 EHRR 245). This involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248).

Margin of Appreciation

Depending on the aim pursued, the Court grants Signatory States a certain leeway in adopting the measures it considers most appropriate to pursue that aim. In the area of public morals, for example, State authorities have been considered to be in a better position than the Court itself to determine restrictions on the sale of pornography (Handyside v United Kingdom (1976) 1 EHRR 737) or the legal recognition of transsexuals (Rees v United Kingdom (1986) 9 EHRR 56).

It was been asserted by some commentators in the United Kingdom before incorporation of the Convention that the doctrine was simply an interpretative tool specific to the international supervision of human rights and had no place in domestic arrangements for the protection of human rights. Others argue that it is analogous to the doctrines of justiciability that limit domestic adjudication of policy matters or decisions relating to allocation of scarce public resources, and that the adoption of a margin of appreciation doctrine is merely a change in form rather than substance. Such an approach has received the support of the House of Lords, in the words of Lord Hope in R v Director of Public Prosecutions, ex parte (1) Sofiane Kebeline (2) Ferine Boukemiche (3) Sofiane Souidi [1999] 3 WLR 175 :

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.

See however the analysis of a similar principle – “deference” – in R(N) v Home Secretary (March 2003) and Lord Sumption’s eloquent attack on it in his 1914 lecture to the Administrative Bar Association.

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10 cases that defined 2019

19 December 2019 by Jonathan Metzer

And so, we reach the end of another year. And what a year it has been. As well perhaps the most tumultuous period in British politics for decades, this year saw the first ever image taken of a black hole, a victory for the England men’s cricket team at the World Cup, the discovery of a new species of prehistoric small-bodied human in the Philippines and signs that humpback whale numbers in the South Atlantic have bounced back thanks to intensive conservation efforts.

And the law? Well, rather a lot has happened really. As the festive season draws near, what better way is there to celebrate than to rewind the clock and relive the 10 cases which have defined 2019?

Rights of people with disabilities under the spotlight – the Roundup

21 November 2016 by Thomas Beamont

In the news

The rights of people with disabilities in the UK have come under scrutiny recently by both the Supreme Court and a UN Committee. On 9^th November, the Supreme Court handed down judgment in a case concerning the ‘bedroom tax’. This judgment comes days after the UN Committee on Rights of Persons with Disabilities criticised the UK’s treatment of people with disabilities under recent welfare reforms, finding “grave and systematic violations of the rights of persons with disabilities.”

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A young autistic man, Magna Carta, human rights and unlawful detention

16 June 2011 by Alasdair Henderson

Neary and his father

London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.

The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result. 

Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.

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“Locked-in” sufferer’s challenge to ban on voluntary euthanasia fails in the high court

16 August 2012 by Rosalind English

The Queen(on the application of Tony Nicklinson) v Ministry of Justice [2012] 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.

Philip Havers QC  of 1 Crown Office represented Martin in this case. 

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. 
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Guest Post: Assisted Suicide on the NHS would breach the ECHR 

1 November 2024 by Guest Contributor

In this guest post, Rajiv Shah argues that the provision of assisted suicide in the England and Wales via the NHS would constitute a substantive breach of the negative obligation imposed on the State under Article 2 of the ECHR.

Introduction

Article 2 of the ECHR protects the right to life. That article contains two distinct substantive obligations: “the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions.” (Boso v Italy, at [1])

That first obligation is a positive one and requires States to take steps to protect life from third parties and even from individuals themselves. The precise content of that obligation is necessarily nebulous and the Court affords States a margin of appreciation in deciding what that obligation requires, and how it is to be fulfilled. So, in two recent Chamber decisions – Mortier v Belgium and Karsai v Hungary – the Strasbourg Court held that this positive obligation does not require States to forbid assisted suicide and euthanasia, but that if it does want to allow it, it must create legal safeguards to ensure that the decision of individuals to end their own life/or be killed by third parties is freely taken. 

Autonomy and the role of the Official Solicitor – whose interests are really being represented?

10 October 2012 by Rosalind English

R.P. and others v United Kingdom (9 October 2012) – read judgment

The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.

The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether

the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court.
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