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Welcome back to the UK Human Rights Roundup, your regular heat wave of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
A fairly quiet week in terms of volume, but nevertheless some notable issues. Of note are plans to restrict judicial review, the ‘bedroom tax’ judgment, and a key decision in the ongoing debate on assisted suicide.
Welcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) – read judgment
The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack. Continue reading →
NHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 –read judgment
For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.
The NHS Foundation Trust made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability. After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.
But things changed dramatically for the worst in 2009, when PQ became pregnant and had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.” Continue reading →
But what happened in the courts? Oh what an adventure it has been, dear reader. Strap on your seat belts and join me as we take a whistle-stop tour through 10 of the biggest legal battles of the last year.
S.H. and Others v. Austria (Application no. 57813/00), 3 November 2011 – read judgment
The Grand Chamber of the Strasbourg Court has rejected complaints from two infertile couples that the Austrian prohibition on using medically-assisted procreation techniques did not breach their right to respect for family life under Article 8 or the right to found a family under Article 12. The choices the legislature had made reflected the then current state of medical science and the consensus in society and it had therefore not overstepped its (wide) margin of appreciation in this area.
This refusal to allow infertile couples the protection of the Convention against restrictive state legislation comes as some surprise in the light of Strasbourg’s readiness to insist that governments should allow prisoners access to artificial insemination (AI): Dickson v United Kingdom (2006). Why should infertile couples be denied the anxious scrutiny accorded to those behind bars? This giving with one hand and taking with another simply confirms the cynic’s view of the court as being deeply partisan in its approach. And it is far from clear why governments should be allowed such leeway in an area so central to the ECHR’s concerns: the Court itself has said that where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State would normally be severely restricted. The matter of procreation and the genetic relatedness of one’s offspring must surely belong to this “core” area of life. Continue reading →
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here
The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions.
The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.
The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.
In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield.
The first part explored whether coroners should have jurisdiction to investigate stillbirths.
This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?
For a brief introduction to Aisha Cleary’s case, please see Part 1.
Article 2 ECHR rights in utero
Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.[2]
Art.2 European Convention on Human Rights provides as follows:
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is necessary:
(a) in defence of any person from unlawful violence.
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
The corresponding provision in the EU Charter is also Art.2 which reads:
(1) Everyone has the right to life.
(2) No one shall be condemned to the death penalty, or executed.
The right to life is not absolute, although the limitation carved out in the first paragraph of the ECHR provision ceases to apply now that the UK has ratified Protocol 6, in pursuit of its undertaking so to do in the Human Rights Act 1998 , and the death sentence has been abolished altogether from the statute books. The UK cannot now reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war.
Art.2 is relevant to several aspects of State power:
The use of lethal force by the State through the mobilisation of its police and armed forces to combat terrorism, fight crime and quell civil unrest;
The prevention and prosecution of homicide
Legislation relating to abortion; and
The supply of medical services and the allocation of healthcare resources.
The right to respect for life, following the case of Diane Pretty v United Kingdom, does not include the right to die with dignity, although this element is considered in this context together with the right to physical integrity and privacy under Article 8. This extended implied right under Article 2 does not oblige the state however 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).
While special duties are owed by the authorities to protect the lives of prisoners from harm, including suicide, the Court has observed that the measures imposed should take into account principles of dignity and self-determination, indicating that oppressive security measures may go too far. In Keenan v UK ECHR 2001, where the applicant’s son committed suicide in his cell, the Court found that the prison authorities were aware of his mental problems but had taken reasonable steps by placing him in prison hospital care and under close watch when he showed signs of suicidal tendencies. There had been no reason on the day of the incident for the authorities to suspect that an attempt was likely.
In addition to the express obligation on states to respect the right to life, the Strasbourg Court has developed an implied duty on states to investigate suspicious deaths or disappearances. Critics suggest that this maneouvre was motivated by the court’s desire to avoid having to delve into “complicated and murky factual assessments” in the proliferating case law involving Turkish violations of Kurdish rights:
Extending human rights to create additional procedural obligations on states served as a cost-efficient substitute for a lack of evidence to deal with a growing docket of cases. The court has legislated its way out of its own internal problems. (Dominic Raab, The Assault on Liberty, Fourth Estate, London 2009)
Be that as it may, the domestic courts have not been slow to respond to Strasbourg expansionist tendencies in the interpretation of Article 2. The right to life now engages the responsibility of the government for the deaths of soldiers in combat, whether they have been killed by enemy troops or illness if their demise is due to inadequate equipment or medical care (Smith v Secretary of State for Defence, [2010] UKSC 29).
Article 2 applies in countries where the Convention theoretically has no reach. In Al-Skeini v UK (2012) the Court said that the killing of Iraqi civilians by British troops during the British occupation of the Basra region fell within the United Kingdom’s jurisdiction because Her Majesty’s army was exercising authority and control there.
More recently however, the Divisional Court has strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin (R(Long) v Secretary of State for Defence [2015] EWCA Civ 770.
As far as the Strasbourg Court is concerned, there is no right to life that can be asserted in opposition to abortion; a foetus is not protected under Article 2. However, in Vo v France [2004] ECHR 326, (2005) 40 EHRR 12 , where the mother lost the foetus due to a mistake by a doctor, the Court considered that it was neither appropriate nor desirable to decide whether the unborn child was a person for the purposes of Article 2. In Calvelli and Ciglio v Italy, where the applicant complained that the state had failed to prosecute a doctor whose negligence allegedly caused the death of his baby, the Court held that the state’s positive obligation under Article 2 to protect life required regulations in place to safeguard patients’ lives and to provide an independent judicial system which can determine the cause of death of patients in the care of the medical profession. The provision of a civil remedy which could allocate responsibility and award damages fulfilled this obligation on the state.
The failure to provide an effective examination of the circumstances of the death of the applicant’s wife in childbirth disclosed a breach of Article 2: Bryzkowski v Poland, 27 June 2006.
The International Court of Justice has given a near-unanimous opinion that the separation in 1965 of the Chagos Archipelago from the then British colony of Mauritius was contrary to the right of self determination, and that accordingly the de-colonisation of Mauritius by the United Kingdom had not been in accordance with international law. The ICJ held that Britain’s continued administration of the islands was an internationally wrongful act, which should cease as soon as possible.
This is the latest in a long series of cases concerning the Chagossian islanders, the last domestic one being Hoareau last month, which summarises decisions so far. Also see [120]-[130] of the ICJ’s opinion for the back-story.
Background
The Chagos Archipelago consists of a number of islands and atolls in the Indian Ocean. The largest island is Diego Garcia, which accounts for more than half of the archipelago’s total land area.
Mauritius is located about 2,200 km south-west of the Chagos Archipelago. Between 1814 and 1965, the islands were administered by the United Kingdom as a dependency of the colony of Mauritius. In 1964, there were discussions between America and Britain regarding the use by the United States of certain British-owned islands in the Indian Ocean, in particular in establishing an American base on Diego Garcia.
(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police, or of the administration of the State.
The right to freedom of assembly covers peaceful protests and demonstrations. Public and private meetings are protected under this Article. These may be limited mainly on the grounds of public order. In most cases Article 11 rights are considered together with the right to freedom of expression under Article 10 and sometimes the right to a fair trial under Article 6. The Strasbourg Court will only reach a ruling under Article 11 if it considers that this is the lex specialis to be applied in a given case, in other words whether its provisions are more relevant to the facts than those in Article 10.
The right to freedom of association guarantees the capacity of all persons to join with others to attain a particular objective. Freedom of association also implies a negative right for individuals who may not be compelled to join an association: (1) Young (2) James (3) Webster v United Kingdom (1981) 4 EHRR 38 (a case concerning closed shop agreements) and Sigurdur A Sigurjonsson v Iceland (1993) 16 EHRR 462 (compulsory membership of a taxi association breached the applicant’s right to freedom of association). In addition to this in the recent case of Demir & Baykara v. Turkey (10 November 2008), the Grand Chamber held that the right to bargain collectively had become one of the essential or core elements of the right to join and form trade unions, something of a departure from the case law on this particular element of trades unionism in the seventies. States are also under a positive obligation to provide legal safeguards for employees against actions taken by private employers. In one case a private company dismissed the applicant who was a candidate for the British National Party, because he might allegedly have offended clients of ethnic origin if they discovered his leanings. The Strasbourg Court upheld his complaint under Article 11, concluding that his right to freedom of association has been infringed and violated, because the qualifying period of one year for unfair dismissal left no room for a claim that he was discriminated against on grounds of his political beliefs: Redfearn v United Kingdom, 6 November 2012.
Freedom of assembly is often in the news as demonstrations, sit-ins, staged occupations and other forms of protest are part and parcel of the public life of a liberal democracy. We discuss the application of domestic public order laws and the extent to which they can be mitigated by Article 11 here.
Article 14 of the European Convention on Human Rights provides:
The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
This right is parasitic; it is of no use to someone wishing to complain of discrimination who cannot establish that another free-standing Convention right is engaged. As with the other Convention rights it is only actionable against the State and public authorities as defined by the Human Rights Act 1998.
So, Article 14 must be pleaded in relation to some other substantive right in the Convention. It is not necessary to establish an actual violation of another Article; if the claim comes within the ambit of another protected right then it is possible for the applicant to succeed on discrimination alone, even if the primary violation has not been established, or the Member State’s action has been found to come within one of the permissible exceptions to that right (Belgian Linguistic Case (1967) 1 EHRR 252).
A good example of this is to be found in the sex discrimination case, (1) Abdulaziz (2) Cabales (3) Balkandali v United Kingdom (1985) 7 EHRR 471 ). The European Court of Human Rights stated here that:
Although the application of Article 14 does not necessarily presuppose a breach [of the substantive provisions of the Convention and its Protocols] – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms.
Equally, even if the right does not itself arise directly out of one of the Convention provisions – the right to have a system of appeal courts, for example, is not implicit in the fair trial provisions of Article 6 – once a signatory State has put such an appellate system into place, it cannot operate it in a discriminatory fashion since Article 14 prohibits discrimination in access to courts throughout the whole judicial system.
In cases where the Court finds a violation of a substantive right, it is still theoretically possible to obtain a ruling that Article 14 has been infringed as well. In Marckx v Belgium (1979) 2 EHRR 330, the Court concluded that the unfavourable treatment of illegitimate children under Belgian inheritance laws violated their right to a family life under Article 8, and breached the requirement under Article 14 that Convention rights should be secured without discrimination. On the other hand, in (1) Lustig-Prean (2) Beckett v United Kingdom : (1) Smith (2) Grady v United Kingdom (1999) 29 EHRR 449 the Court held that the investigations into and subsequent dismissal of several members of the armed forces on grounds of their sexual orientation amounted to a breach of their right to a private life under Article 8. The applicants contended that they had also been discriminated against in the enjoyment of their Convention rights, but the Court held that this contention did not give rise to any issue separate to that already considered under Article 8.
In most cases, however, the Court will content itself with a finding that a substantive right has been breached. In another case involving Article 8, the applicant challenged laws criminalising homosexual behaviour in Northern Ireland (Dudgeon v United Kingdom (1981) 4 EHRR 149). The Court, having found a violation of Article 8, left it at that, without going on to consider the applicant’s claim that the imposition of these laws in Northern Ireland and not in the rest of the United Kingdom was a breach of Article 14.
According to Karen Reid in The Practitioner’s Guide to The European Convention on Human Rights (Sweet and Maxwell, 2015), there has been a recent emphasis on the condemnation of racism and ethnic hatred with corresponding positive obligations on the state to maintain the confidence of minorities in the ability of the authorities to protect them from racist violence, and to investigate properly incidents of racial hatred (Menson v United Kingdom, App No 47916/99) ECHR 2003). Indirect discrimination may disclose a violation of Article 14; in other words where a neutral measure has a disproportionate effect on a group it is not necessary to show that there is any discriminatory intent; the burden shifts on to the Government to show that the difference in impact of the legislation or the or measure was the result of objective factors unrelated to ethnic origin: DH v Czech Republic, where statistics showed that Roma children were being grouped into special schools (13 November 2007). Although this could have been done with the best possible intention of providing educational support, the Court criticised the way that in practice these became ways of excluding the Roma children from mainstream schooling, without effective procedural safeguards. The fact that the parents themselves had consented to the placements was not a defence. The Court stated that no waiver of the right not to be subjected to racial discrimination could be accepted.
The list of grounds on which a person must not be discriminated against is not exhaustive under Article 14. The provision refers to “any ground” and concludes with a reference to “other status” and has been applied, interestingly, to different treatment on the basis of a genetic disease: GN v Italy, 1 December 2009. In another example the Court found it unjustified to refuse a residence permit to the Uzbek husband and father of Russian citizens on the ground that he had HIV (Kiyutin v Russia, 10 March 2011). The Court comes particularly hard down on cases of discrimination on the basis of sex, observing frequently that advancement of equality of the sexes is a major goal of the Council of Europe and its contracting states. The same can be said of the importance of combatting racism.
In domestic terms, the Equality Act 2010 is designed to express most of the principles explicit or implicit in Article 14 in statutory terms. For public authorities at least there is a duty to consider equality in all decision making processes: see s.149 of the Act , containing the public sector equality duty).
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Although this Article is incorporated into national law by the Human Rights Act 1998, the United Kingdom has filed a reservation in respect of the Protocol 1 Article 2 which applies to domestic interpretation of the right as well as to this country’s obligations under the Convention at international level. The reservation accepts the principle of education in conformity with parent’s religious and philosophical convictions “only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.
The leading case on Protocol 1 Article 2 is Belgian Linguistic (1968) 1 EHRR 252 in which the European Court of Human Rights stated that the rights protected in that Article are:
a right to access to educational institutions existing at a given time;
a right to an effective education;
a right to official recognition of the studies a student has successfully completed;
However, this right does not impose on States an obligation to establish at their own expense, or to subsidise, education of any particular type or at any particular level. Nor does it entail a right for aliens to remain in the State of entry to take advantage of the local education system: (1) Henry Holub (2) Eva Holub v Secretary of State for the Home Department [2001] 1 WLR 1359. Nor does this article impede the power of local education authorities to refuse grants for certain vocational courses (R v Birmingham City Council, ex parte Jacob Youngson (2001) LGR 218).
This right has been invoked by pupils who have been excluded from schools for disruptive behaviour, however these kinds of challenges rarely succeed. Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they will not be found by the domestic courts or Strasbourg to be in breach of A2P1: see Ali v United Kingdom (2011) ECHR 17 and Joe Barrett’s discussion of the case here.
It is arguable that parents may claim a right under this Article to start and run a private school: see European Commission of Human Rights decision in Ingrid Jordebo Foundation of Christian Schools Ingrid Jordebo v Sweden (1987) 51 DR 125 and the State may not use its regulatory power to make it impossible to establish private schools.
Finally, it is important to note that the “right” to an education is not a “civil right” to which the fair trial guarantees of Article 6 may apply: see R v Richmond-Upon-Thames London Borough Council ex parte JC (A Child) (2001) LGR 146.
This is a short version of an article on the subject to be published by John Edwards, Professor Emeritus of Human Rights at London University
There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance. Continue reading →
Last month marked one year since the startling repeal of Roe v Wade on the 24th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.
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Welcome back to the UK Human Rights Roundup, your regular heat wave of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Sarina Kidd.
Welcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found 
Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment 
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