Search Results for: right to die


Whose womb is it anyway? NI Court shrinks from abortion law reform

7 July 2017 by

The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  [2017] NICA 42 (29 June 2017) – read judgment

Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times.  The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.

Let me start with a much quoted proposition derived from Strasbourg law.

when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.

Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:

the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.

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Defining “dignity” – nailing jelly to the wall?

8 August 2012 by

In his recent book Harvard philosopher Michael Rosen poses the question: what is dignity, exactly, and do we know it when we see it?  We are all familiar with the mantra that all humans are endowed with equal dignity, but do we really understand what it means?  Since it is a formulation that is increasingly advanced in justifying universal human rights, we should try to get to grips with it, rather than reversing into circularities such as defining it as an intrinsic quality from birth. What makes it intrinsic? And at what point is it acquired? And why do we owe the dead a duty of dignity when they have no rationality and make no choices, autonomous or otherwise? 
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Why EU law will not make the trains run on time

21 December 2016 by

pay-southern-rail-train-strikeGovia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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I have a right not to know Elena Ferrante’s real name* – George Szirtes

5 October 2016 by

img_11061

I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.

2
Stop telling me whatever it is you may be telling me. I have a right to tell you not to tell me.

3
I have the right and you have the right. What we have rights to may be different but let’s pool our rights and make one big right.

4
My right to have rights is being threatened by people who claim they have the right to other rights. Other people are bastards.

5
My rights are constantly threatened by people claiming to have rights. They have no right to such rights.

6
I have the right to stamp my foot. If I am not granted the right to stamp my foot I will stamp my foot. That is my right / my foot.

7
Everyone has the right to have rights. They are right to have rights. It is right to have rights. It is right to be everyone.

—–

*Article in Guardian to this effect. ‘Stop telling X what to do’ is a favourite Guardian meme to be fully explored another time.

Poem posted with permission of the author. George Szirtes is a British poet and translator from the Hungarian language into English

Transforming Strasbourg’s A1P1 right to property?

20 July 2013 by

private-property“Transforming the right to property” is the title of an interesting and controversial recent post (17 July 2013) on the Strasbourg Observers blog by Laurens Lavrysen.  He declares his position up front: 

“Reading Strasbourg case-law on a systematic basis, I always feel uncomfortable when I see the Court’s expansive protection in the field of Article 1 Protocol 1. Basically, that is because I don’t really like the idea of a human right to property for a number of reasons.”

These reasons can be summarised as (i) the right assumes the current distribution of wealth, and thus protects that status quo; (ii) the right can amount itself to a violation of other human rights – slavery being the most egregious example, though Lavrysen asserts more controversially the fact that intellectual property rights may restrict access to medicines affecting the right to health (iii) the right does not distinguish between the types of property its protects

thereby principally placing the poor man’s means of subsistence on the same footing as the millionaire’s yacht.

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“Same roof” rule excluding compensation for abuse is unlawful – Court of Appeal

31 July 2018 by

w1200_h678_fcropJT v First Tier Tribunal [2018] EWCA Civ 1735 – read judgment

Between 1968 and 1975 the appellant JT was repeatedly assaulted and raped by her stepfather in her family home. Many years later, her assailant was prosecuted for those crimes and convicted on all counts in 2012. As a victim of violent sexual crime, JT applied for compensation under the Criminal Injuries Compensation Scheme. Her application was refused on the basis of the “same roof” rule, which stated that an award would not be made in respect of a criminal injury sustained before 1 October 1979

if, at the time of the incident giving rise to that injury, the applicant and the assailant were living together as members of the same family

This criterion may sound odd to anyone with a professional or even mild interest in crime stories, where the prime suspect is considered to be a member of the family of the victim, whether of rape, abuse, or even murder. But the thinking behind the rules  – and there has to be a bright line for eligibility – was that there should be a requirement that the victim and the assailant no longer live together. This would at least suffice to ensure that the rapist or abuser would not benefit from the award accruing to his victim, and, if possible, is brought to justice.
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Court of Session rejects challenge to prosecution policy on assisted suicide

22 February 2016 by

Ross v Lord Advocate [2016] CSIH 12, 19th February 2016 – read judgment  

The Inner House of the Court of Session has rejected a reclaiming motion (appeal) from a decision of the Outer House in which it was held that the Lord Advocate’s refusal to publish specific guidance on the circumstances in which individuals would be prosecuted for assisted suicide did not violate Article 8 of the European Convention on Human Rights (ECHR).

Factual and Legal Background

The petitioner, Gordon Ross, suffers from Parkinson’s disease. He anticipates that there will come a time when he will not wish to continue living but, because of his physical state, he would require assistance to end his own life. Mr Ross was apprehensive that anyone who assisted him would be liable to criminal prosecution and therefore sought clarification from the Lord Advocate (the head of the prosecution service in Scotland) as to the factors that would be taken into account in deciding whether or not to prosecute.
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More bad news in the fight for a right to die

22 July 2015 by

281851582_1115426167001_110818righttodie-5081250R (o.t.a A.M) v. General Medical Council [2015] EWHC 2096 (Admin) Read the full judgment here

The High Court has rejected the argument made by “Martin”, a man with locked-in syndrome who is profoundly disabled and wishes to end his own life. This comes shortly after Strasbourg’s rejection of the Nicklinson and Lamb cases, for which see my post here.

Philip Havers QC, of 1COR, acted for Martin, and has played no part in the writing of this post. 

Martin would like to travel to a Swiss clinic to end his life, but wishes to obtain a medical report, from a doctor, to assist. He would also like to take medical advice on methods of suicide.

There is no dispute that a doctor advising him in this way will likely break the law, by committing the crime of assisting suicide. However, Martin argued that in practice, the Director of Public Prosecutions (DPP) has relaxed guidelines on when it is in the public interest to bring a prosecution against a doctor in these circumstances.

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Strasbourg rejects right to die cases

20 July 2015 by

Paul LambThe European Court of Human Rights has ruled that the applications to the ECtHR in Nicklinson and Lamb v UK, cases concerning assisted suicide and voluntary euthanasia, are inadmissible.

This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here  and the full decision here.
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Right to Die, Grayling v Legal Aid and Abu Qatada Finally Off (?) – The Human Rights Roundup

13 May 2013 by

Christian rights case rulingWelcome back to the UK Human Rights Roundup, your regular chocolate selection gift box of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

This week, the Government announced plans to curb Article 8 of the ECHR, Grayling continues to cause controversy with his reforms of both the Criminal Justice System and of judicial review, and Qatada may soon be leaving us for pastures new.

by Sarina Kidd


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Human rights in some but not all disciplinary hearings at work, rules Supreme Court

29 June 2011 by

R (on the application of G) (Respondent) v The Governors of X School (Appellant) [2011] UKSC 30 – Read judgment / press summary

The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.

However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.

As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.

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‘Fairness’ in an unfair world

15 April 2011 by

Andrew Crosbie v Secretary of State for Defence [2011] EWHC 879 (Admin) – Read judgment

The Administrative Court has ruled that the employment of an army chaplain involves a “a special bond of trust and loyalty” between employee and state such that the full panoply of fair trial rights under Article 6 could not apply.

This interesting judgment by Nicol J provides an illuminating analysis of the role of Article 6 in military employment disputes, exploring the scope of the “civil rights” concept for the purposes of that provision, and the extent to which these kinds of disputes are excluded from its purview by Strasbourg case law.

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Challenge to prosecution policy on assisted suicide in Scotland fails – Fraser Simpson

10 September 2015 by

Holyrood-GettyRoss, Re Judicial Review, [2015] CSOH 123 – read judgment

The Outer of House of the Court of Session has refused an individual’s request for clarification of the prosecution policy relating to assisted suicide in Scotland.

by Fraser Simpson

Factual Background

The Petitioner, Mr Ross, suffers from Parkinson’s disease and currently resides in a care home due to his dependence on others. Although not wishing to currently end his life, Mr Ross anticipates that in the future he will wish to do so and will require assistance.

In July 2014, the Petitioner requested from the Lord Advocate – the head of the prosecution service in Scotland – guidance on the prosecution of individuals who assist others to commit suicide. The Lord Advocate replied that such cases would be referred to the Procurator Fiscal – the Scottish public prosecutor – and dealt with under the law of homicide. The Lord Advocate further stated that decisions regarding whether prosecution would be in the public interest would be taken in line with the published Crown Office and Procurator Fiscal Service Prosecution Code (“COPFS Code”). However, he admitted that it would often be in the public interest to prosecute such serious crimes as homicide.
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Toppled, choked and locked in: where are human rights when you need them

13 March 2012 by

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.

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Article 9

1 June 2010 by

Article 9 | Right to freedom of thought, conscience and religion

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Article 9 of the Convention provides as follows:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 of the EU Charter corresponds to Art.9 ECHR and is subject to the limitations set out in 9(2). This means, in effect, that where Member States are adopting Directives prohibiting discrimination or implementing EU working time rules, they are bound to respect the religious beliefs and activities of their citizens. This also authorises the slaughter of animals without pre stunning to satisfy the demands of Halaal consumers despite the provisions of Directive 93/104/EC on the protection of animals at the time of slaughter. The right to freedom of religion is also associated with the particularly highly protected EU right for individual to move across borders to join religious groups, preach etc.

Art.9 covers the sphere of private, personal beliefs and religious creeds. The Strasbourg authorities emphasise the democratic importance of an open forum of beliefs and opinions; atheists and agnostics may therefore claim the protection of this right (Kokkinakis v Greece (1993)17 EHRR 397).

The Strasbourg Court has accepted the following views and positions as beliefs  under Art.9 :

(1) Veganism: United Kingdom Application No.00018187/91 (1993) Unreported.

(2) Scientology: Sweden Application No.0007805/77 (1979) 16 DR 68.

(3) Kosher diet: United Kingdom Application No.0008231/78 65 DR 245.

(4) Jehovah’s Witness: Kokkinakis v Greece (1993).

The right to freedom of conscience was argued in the right to die cases R v DPP ex parte Pretty  and Pretty v UK following  Sanles v. Spain [2001] EHRLR 348. The argument in both cases was that one’s own freedom to choose the manner and timing of one’s death should not be restricted by legislation fuelled by religious sensitivities. The argument was rejected in Strasbourg: see Pretty (2) for a critique of this element of the judgment. In general, positions taken in relation to politics and ideology do not qualify for Article 9 protection. There is no right, for example, under Article 9 to conscientious objection: Application No.0007705/76 (1977) 9 DR 196. Art.9 only protects actions and gestures that are intimately connected with a creed or belief. In Arrowsmith v United Kingdom (1978) 19 DR 5 the Commission rejected a complaint that the prosecution of the applicant for handing out leaflets to soldiers urging them not to serve in Northern Ireland breached her rights under Article 9. This was a specific action and not a general expression of her pacifist ideals. However the explicit exclusion of non-theistic belief systems by the Court may have to be reviewed in the light of the current inflamed debate about the impact of religion on various freedoms, such as the freedom to marry according to one’s choice, and of course the general freedom of expression.

There is some scepticism about an express right to respect for religion in a largely secular society and recent cases upholding the right to religious practices have attracted strong criticism. When the High Court ruled in May 2011 that a Muslim prisoner could not be disciplined for refusing to give urine for a drugs test because he was in the midst of a voluntary fast  the general view was that the courts were once again cravenly giving way to abusive reliance on human rights by unsavoury characters: see the comments on our report of the case.

Furthermore, the idea that freedom of speech must give way to religious sensitivities under the increasing cloud of offence is becoming a highly contentious issue, made more so by the tensions surrounding Islamic extremism and the murderous attacks in Europe of those deemed offensive to the religion.

Article 9 does not impose a positive obligation on the State to introduce legislation to criminalise blasphemy or, where blasphemy laws are present, there is no duty on public authorities to bring proceedings against publishers of works that offend the sensitivities of any individual or group: Choudhury v United Kingdom Application No.00017439/90 (1991). States which impose conscription will not therefore be in breach of Article 9 if they sanction such objections.

Churches and associations with religious and philosophical objects are capable of exercising Article 9 rights. Profit-making corporations on the other hand cannot rely on Article 9 rights. In Refah Partisi v Turkey  (2003)the Court held that the dissolution of a political party that was held to desire to establish a theocracy was consistent with the ECHR on the grounds that theocracy flew in the face of the liberal and democratic principles of the Convention.

Article 9 does not require active facilitation of religious beliefs in the workplace (Stedman v United Kingdom (1997) 23 EHRR CD 168, although the Strasbourg Court has adopted a more generous approach in Eweida and Others v United Kingdom (2013) by concluding that the applicant’s employer had breached her Article 9 rights by refusing to allow her to wear a crucifix. This was a minor victory however since the Court also decided that a policy requiring employees  to serve all customers irrespective of sexual orientation was a legitimate restriction on religious freedom (this part of the case involved a Christian registrar disciplined for refusing to register same-sex couples and a second involving a marriage therapist dismissed for refusing to counsel same-sex couples). The Strasbourg Court is generally unsympathetic to individual claims for exemption on religious grounds to generally applicable laws; thus, in Pichon and Sajous v France (an inadmissibility ruling of 2001), the conviction of pharmacists who refused on religious grounds to supply contraceptives that had been lawfully prescribed was upheld on the basis of the need to take account of both health policy and the rights and freedoms of others. In Dahlab v Switzerland (2001) the Court upheld the refusal by the authorities to allow a teacher to wear a headscarf, on the basis that the state was entitled to seek to ensure the neutrality of the education system. Beyond the private sphere, therefore, states have a broad margin of discretion in deciding what religious actions and symbols to restrict.

Section 13 Human Rights Act 1998 provides that if a court’s determination of any question might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion under Art.9 , the court must have particular regard to the importance of that right. See Alison Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375 for judicial discussion of the practical effect of this section. However see comments by Laws LJ on the proposal to accord special treatment in the courts to claimants or defendants relying on supernatural backing for their behaviour: McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010)

The freedom of religion also includes a negative aspect, including the rigth not having to manifest one’s religion or beliefs. In the case of Sinan Isik v. Turkey the Strasbourg Court ruled that it was an interference with Art.9 to require a citizen to indicate his religion in his application for an ID card or formally ask for the religion box to be left empty. That in itself, in the Court’s view, violated the Convention.  This presumably covers all forms of state-sanctioned identification documents or registers.

The Human Rights Act 1998 also provides that priests, ministers and officials of any church are excluded from liability under s.6 where they refuse to administer a marriage “contrary to [their] religious doctrines or convictions”.

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