Article 8


A human rights reality check for the Home Secretary – Dr Mark Elliott

18 February 2013 by

teresa mayThe Home Secretary, Theresa May, is no stranger to ill-founded outbursts concerning the evils of human rights. Against that background, her recent article in the Mail on Sunday (to which Adam Wager has already drawn attention) does not disappoint. May’s ire is drawn by certain recent judicial decisions in which the deportation of foreign criminals has been ruled unlawful on the ground that it would breach their right to respect for private and family life under Article 8 of the European Convention on Human Rights. Some of these judgments, May contends, flout instructions issued to judges by Parliament about how such cases should be decided.

Those instructions consist of new provisions inserted last year into the Immigration Rules, the intended effect of which was to make it much harder for foreign criminals to resist deportation on Article 8 grounds. The Rules – made by the executive and endorsed by Parliament, but not contained in primary legislation – provide that, where certain criteria are met, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. The assumption appeared to be that this would prevent judges – absent exceptional circumstances – from performing their normal function of determining whether deportation would be a disproportionate interference with the Article 8 right.

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Have human rights hijacked the language of morals? – and other questions: Laws

27 November 2012 by

Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here 

This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.

Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.

Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.

It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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When the UN breach human rights… who wins?

5 October 2012 by

NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment

How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.

Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).

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More from Strasbourg on possession and Article 8 – Nearly Legal

24 September 2012 by

BUCKLAND v. THE UNITED KINGDOM – 40060/08 – HEJUD [2012] ECHR 1710 – read judgment

The ECtHR’s recent decision in Buckland v UK demonstrates again how wonderfully delphic the subject of housing and Article 8 rights to private and family life has become.

In one sense, the outcome was fairly predictable because the case was determined by the UK Courts before the Supreme Court in Manchester CC v Pinnock established the principles of proportionality in possession claims.

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Police retention of photographs unlawful, High Court rules

27 June 2012 by

The Queen, on the application of (1) RMC and (2) FJ – and – Commissioner of Police of the Metropolis. Read judgment.

Liberal societies tend to view the retention of citizens’ private information by an arm of the state, without individuals’ consent, with suspicion. Last week, the High Court ruled that the automatic retention of photographs taken on arrest – even where the there is no prosecution, or the person is acquitted – for at least six years was an unlawful interference with the right to respect for private life of Article 8 of the ECHR, as enshrined in the Human Rights Act.

The case was brought by two individuals. One, known as RMC, was arrested for assault occasioning actual bodily harm after she was stopped riding a cycle on a footpath. The second, known as FJ, was arrested on suspicion of rape of his second cousin at the age of 12. In both cases, the individuals voluntarily attended the police station, where they were interviewed, fingerprinted and photographed and DNA samples were taken form them, but the CPS decided not to prosecute.

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Are some rights to private life just not cricket?

9 January 2012 by

Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision

We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.

However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.


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Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner

2 October 2011 by

Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment

In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.

The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant.  It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.

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After Winterbourne View: the untapped potential of Article 8 – Lucy Series

1 August 2011 by

Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching. 

Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities.  Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here).  In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.

The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy.  Take these finding from the report on Arden Vale, for instance:

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

16 June 2011 by

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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Control orders and human rights to family life: not always incompatible

1 June 2011 by

CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment

As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.

The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.

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Was local authority responsible for harassment campaign against vulnerable adults?

25 November 2010 by

Application no. 32666/10 by X, Y & Z against the UK, lodged on 8 June 2010 – Read statement of facts

In a potentially landmark case, the European Court has been asked to determine the extent to which a local authority is under a duty prevent a breach of a person’s rights under Articles 3 (against inhuman and degrading treatment) and 8 (home and family life) in a case where two people with learning difficulties were violently harassed and threatened by a group of teenage youths.

The case concerns vulnerable adults who rely on social services. X and Y, who are married, both have learning difficulties. Z is the mother of X, and acted as a carer and advocate for both X and Y. X and Y lived in Hounslow Borough with Y’s two young children. Three local authority departments were involved with X and Y’s family, providing for their housing needs and allocating social workers for both the adults and children. Over a period from August 1999 until November 2000, X and Y were continually harassed and threatened by a group of teenage youths, who used the flat as a general ‘doss house’, dumping stolen goods, having sex and staying overnight.

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Sexual orientation removed from UN resolution condemning executions

24 November 2010 by

The Social, Humanitarian and Cultural Affairs Commitee of the United Nations has narrowly voted to remove sexual orientation from a draft resolution against extrajudicial, summary or arbitrary executions.

In light of the guarantee of the right to life, liberty and security of person in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, the resolution condemns all extrajudicial, summary or arbitrary executions and demands that all States take effective action to prevent, combat, investigate and eliminate such executions.

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Anonymity ain’t here anymore for Take That’s Howard Donald

18 November 2010 by

Adakini Ntuli v Howard Donald [2010] EWCA Civ 1276 – Read judgment

Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”

‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.

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Rooney, Coulson and Hague scandals reveal the need for more, not less, press protection

6 September 2010 by

What does Wayne Rooney’s alleged philandering have to do with human rights? In itself, not very much. But a recent spate of exposés in and of the press has exposed more than a footballer’s indiscretions.

The starting point from a human rights perspective is the fragile relationship between two articles of the European Convention on Human Rights; namely, the right to privacy and the right to freedom of expression. Article 8 provides that everyone has the “right to respect for his private and family life, his home and his correspondence.” This right is qualified, in the sense that it is possible for a state authority to breach privacy rights if it is (amongst other things) necessary in a democratic society.

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New feature | Articles of the European Convention on Human Rights

5 June 2010 by

The European Convention - now it has its own blog page

We have added a new “ECHR” page where you can access an index of the Articles of the European Convention on Human Rights.

The page can be accessed by clicking here, or by clicking on the “ECHR” tab at the top of any page on the blog.

Each Article has its own separate page with the wording of the Article itself and a brief summary of how it works in law.

You can access this summary by clicking on the “more info” link. You can also click on the “posts” link to see all posts on the UK Human Rights Blog relating to that Article. A few articles don’t have a live link “posts” as we have not posted on it yet. We would welcome your comments on this or on any way we can make the blog better.

The index is reproduced below:
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