ECHR

Why the Court is in Strasbourg – and other things

1 January 2015 by David Hart KC

Like lots of things to do with the ECHR, the idea seems to have been British. As Simpson put it in his magnificent history of the Convention, Human Rights and the End of Empire (OUP, 2001), Our Man (Jebb), in early 1949, appears to have suggested the site of the Council of Europe should be Strasbourg 

not for its architectural or gastronomic qualities, much less for its geese, but because of its symbolic significance for Franco-German reconciliation

Quite obvious, when you think about it. I was spurred into this by my winter festival reading, Neil MacGregor’s Germany.

Strasbourg commands a chapter, Floating City. Floating, because it swapped between Germany and France regularly, with increasing rapidity in the run up to the ECHR in 1950.  Formerly known as Strassburg, it had been emphatically part of the Holy Roman Empire, an Imperial city, a bishopric and German-speaking, until Louis XIV nicked it in 1681 – in war. The French were wise enough to administer it with a light touch – German remaining the predominant language – so it remained nominally French until 1871. Indeed, Goethe (and Metternich) studied there, and Goethe lauded the Gothic mediaeval cathedral (see pics) as reflecting supremely German architecture (Von Deutscher Baukunst) –  which of course it wasn’t, given that Gothic architecture derives from France.
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EU judges oppose accession of EU to ECHR

22 December 2014 by David Hart KC

Opinion of CJEU, 18 December 2014 – read Opinion

Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.

Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation  that the EU

“shall accede to the ECHR”.

Nice and simple then? No, not exactly, when you look at the extremely complex  Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.

One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.

The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.

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Law of armed conflict means that anti-detention provision in ECHR may be disapplied re Iraqi detainee

16 September 2014 by Rosalind English

Hassan v. the United Kingdom (application no. 29750/09) ECHR 936 (16 September 2014) – read judgment

This case concerned the capture of an Iraqi national, Tarek Hassan, by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The complaint was brought by his brother, who claimed that Tarek had been under the control of British forces, and that his dead body was subsequently found bearing marks of torture and execution.  In essence, the case raised issues concerning the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. This was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law, which allows the internment of prisoners of war at times of international conflict.

The Grand Chamber held that although Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops until the moment of his release; there had been no violation of Article 5(1), (2), (3) or (4) (right to liberty and security) of the European Convention on Human Rights as concerned his actual capture and detention. The European Convention had to be interpreted in parallel with international instruments which applied in time of war. Four out of the seventeen judges dissented on this point.
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Retrospective legislation that interfered with judicial ruling violated the Convention and the rule of law

8 July 2014 by Rosalind English

R(on the application of Reilly (No. 2) and another) v Secretary of State for Work and Pensions, [2014] EWHC 2182 (Admin) – read judgment

The High Court has issued a declaration of incompatibility following a successful challenge to the Jobseekers (Back to Work Schemes) Act 2013. The regulations under the Act that sanctioned those who did not participate in unpaid “work for your benefit” schemes by depriving them of an allowance violated the rule of law protected by the Convention and this country’s unwritten constitution. However, the dispute did not engage Article 1 of the First Protocol to the ECHR.

Factual background

The claimants, Caitlin Reilly and Jonathan Hewstone (CR and JH)  had been unemployed and claimed jobseeker’s allowance. They objected to participation in schemes devised under the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, in which they were required to work for no pay. As a sanction, the allowance could be withheld from those who refused to participate. CR complied with the requirement under the regulations to take unpaid work at Poundland so did not suffer any sanction. However, attendance on the scheme meant she was unable to continue her voluntary work in a museum, which she hoped would lead to a career in museums (see my previous post on her successful challenge to the scheme).  After that ruling, the regulations were amended to overcome the defects identified by the court. But the 2013 regulations, which applied prospectively, had the effect of retrospectively validating the 2011 Regulations, which the Court of Appeal had held to be unlawful. Then the Supreme Court allowed the secretary of state’s appeal against the Court of Appeal decision on the basis that the Act was in force. But the declaration in favour of CR remained valid, following the 2013 Act and that Supreme Court judgment; indeed counsel for the Secretary of State acknowledged the fact that Ms Reilly’s position was “not affected by the 2013 Act.”

JH had not been a party to Reilly No. 1. but his position was  clearly affected by that ruling. After initial attendance on a scheme for some months, he refused to participate further, and so his JSA payments were stopped for four specified periods by way of sanction. He in turn had successfully appealed against sanctions imposed by the 2013 scheme. The secretary of state’s appeal against those decisions had been stayed pending the outcome of Reilly.

The claimants submitted that the 2013 Act was incompatible with their rights under Article 6. It was an intervention in the ongoing proceedings in Reilly No. 1 which had the effect of determining the litigation in the government’s favour by retrospectively validating its unlawful acts. It thereby deprived both claimants of a fair determination of their civil rights and obligations, contrary to to the first paragraph of Article 6.  JH also relied upon Article 1 Protocol 1, claiming that by withholding his JSA, the defendant deprived him of a “possession” to which he was entitled. He submitted that the deprivation could not be justified as being in the public interest.

The court allowed the applications in respect of Article 6 but not A1P1.

Reasoning behind the judgment

Article 6 and the rule of law

CR and JH had brought proceedings against the state. The 2013 Act was directly targeted at resolving the Reilly litigation. As such, this legislative act by the government had amounted to an interference in ongoing legal proceedings: it had influenced the judicial determination in the secretary of state’s favour in Reilly and was likely to do so in JH’s appeals. Although Parliament was not precluded in civil matters from adopting retrospective provisions,  it cannot legislate so as to interfere with the courts’ handling of disputes before them:

 the principle of the rule of law and the notion of a fair trial contained in Article 6 preclude any interference by the legislature–other on compelling grounds of the general interest –with the administration of justice designed to influence the judicial determination of a dispute. (Zielinski v France (2001) 31 EHRR 19)

Nor did the ruling in National & Provincial Building Society v United Kingdom (1998) 25 EHRR 127 avail the defendant, even though the Strasbourg Court ruled there that legislation to close an unforeseen tax loophole was compatible with Article 6. The government in that case, the Court concluded, had “compelling public interest motives” to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable.  By contrast, in the instant case the claimants could not have foreseen Parliament’s retrospective validation of its own unlawful act.

Although these principles emanate from decisions of the Strasbourg Court, in Lang J’s view, they also accurately reflected fundamental principles of the UK’s unwritten constitution, which enshrines the fundamental principle of the rule of law:

It requires, inter alia, that Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.

The secretary of state submitted that there had been compelling public interest grounds for the retrospective legislation. Lang J acknowledged that it was understandable that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them. But it was apparent from Strasbourg’s judgments, such as Scordino and Zielinkski, that financial loss alone was not a sufficiently “compelling reason in the public interest”. If it were, then retrospective legislation of this kind would be commonplace.” (para 107).

Not only was there insufficient public interest to justify the retrospective legislation but the government had been aware of the concerns about the legality of the statute because it had been brought to the attention of its proposer by the report of the Constitution Committee. One of its members, Lord Pannick, told the House:

this Bill contravenes two fundamental constitutional principles. First, it is being fast-tracked through Parliament when there is no justification whatever for doing so. Secondly, the Bill breaches the fundamental constitutional principle that penalties should not be imposed on persons by reason of conduct that was lawful at the time of their action. Of course, Parliament may do whatever it likes – Parliament is sovereign – but the Bill is, I regret to say, an abuse of power that brings no credit whatever on this Government.

Whilst judicial review is more properly concerned with the substance of the legislation, not the reasons for it, Lang J wryly observes that the absence of any consultation with representative organisations, and the lack of scrutiny by the relevant parliamentary committees, “may have contributed to some misconceptions about the legal justification for the retrospective legislation.” (para 96). The government’s statement to Parliament explaining why the 2013 Act would be Convention compatible had not explained that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling public interest reasons. Further, the statement had erred in concluding that the case was comparable to National & Provincial as the legislation would be closing a loophole. It was not accurate to characterise the flaws in the 2011 Regulations as a loophole. The 2013 Regulations had remedied the technical defect identified by the court in the original Reilly litigation, but that did not mean there were compelling grounds to justify the interference with CR and JH’s rights under Article 6 to a judicial determination of their claims. The 2013 Act therefore violated Article 6(1) in relation to those who had pursued claims in the courts or tribunals.

Article 1 Protocol 1: had the Second Claimant been “deprived” of his “possessions”?

JH failed in his claim that he had suffered a violation of the right to respect for peaceful enjoyment of possessions. This was not because he had succeeded under Article 6 –  the rights protected by the respective provisions were different (AXA General Insurance Ltd, Petitioners [2011] UKSC 46).  Lang J accepted the claimants’ argument that a wholly state-funded non-contributory benefit could constitute a possession under A1P1, but JH’s right to the allowance depended on whether he met the conditions for receipt of the benefit. He had not met the conditions for future payment. He had not been deprived of an existing possession because there was no revocation of benefits previously received. This was made clear in Moskal v Poland, where the Strasbourg Court observed that

Art. 1 of Protocol No. 1 does not create a right to acquire property. This provision places no restriction on the contracting state’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. ((2010) 50 EHRR 22)

It was clear from this statement of principle that, in order to establish a property right, the applicant must fulfill the requirements for receipt of the benefit at the relevant time.  Nor did he have a reasonable expectation that the allowance would be paid if his legal claim was successful. His claim was not an “asset” within A1P1.  His only reasonable expectation had been that his appeal would be determined in accordance with the law as it stood from time to time.

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GCHQ Surveillance, Tory Bill of Rights and Anti-Semitism – the Human Rights Roundup

2 February 2014 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza 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 Sarina Kidd. 

This week, a group of MPs investigating drones were advised that large amounts of GCHQ surveillance is likely to be illegal, and the Conservatives continued their push for a Bill of Rights. Meanwhile, the Council of Europe Commissioner for Human Rights argued that anti-Semitism is alive and well in Europe.

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Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

9 January 2014 by Guest Contributor

The glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

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Lawyers Protest Cuts, Constitutional Nihilism and Libel Liberalisation – the Human Rights Roundup

6 January 2014 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular wholesome takeaway 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 Sarina Kidd. 

Welcome to 2014 and Santa has brought us the Defamation Act 2013, which aims to reduce the ‘chilling effect’ of previous libel laws . But as we enter 2014, not all is new. The Conservative Party continues to complain about European human rights. They seek to challenge the ECtHR ban on prison life sentences. How to deal with this? With hundreds of years of imprisonment instead. Meanwhile, today criminal lawyers will refuse to appear at court in order to protest against legal aid and criminal barrister fee cuts.

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European Commission fines and their compliance with Article 6

12 August 2013 by David Hart KC

C-501/11P Schindler v. European Commission, CJEU, 18 July 2013 – read judgment

Two things of general interest to the human rights lawyer in this unsuccessful attempt by Schindler to challenge a fine of a mere €143 million for anti-competitive behaviour before the EU’s top court.

The first is that the Commission’s role as investigator, prosecutor and enforcer was not found to be in breach of Article 6(1) – because its decisions were subject to “full review” by the EU judges. The second is the remark in the CJEU’s judgment that the EU status of Article 6 ECHR will change when the EU accedes to the ECHR – I shall look at whether this change will be formal or substantive, given the presence of an equivalent right in the EU Charter, within Article 47.

Like a lot of decisions involving issues of high principle, the underlying facts do not reflect well on the offending company, in this case Schindler. It, with three other companies (Kone, Otis and ThyssenKrupp), stitched up the lift and escalator markets in Belgium, Germany, Luxembourg and the Netherlands. Somebody tipped off the Commission, who conducted a massive investigation, and fined all these companies. As is standard, the process of investigation did not involve any oral hearing, with some limitations on the access by the accused companies to all the material which the Commission received.

As my image shows, cartel fines by the Commission involve big big money, and I dare say they dwarf any fines levied by member states on “true” criminals.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

11 July 2013 by David Hart KC

The UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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Public interest environmental litigation in Strasbourg

7 July 2013 by David Hart KC

Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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Keep calm and apply the European Convention on Human Rights – Paul Harvey

4 June 2013 by Guest Contributor

The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.

It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously.  He would, no doubt, be surprised at the evolution of the Convention into the system it is today.  But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.

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The Tallinn Bronze Soldier riots – and why Russia was in Strasbourg

14 April 2013 by David Hart KC

Korobov and others v. Estonia, 28 March 2013, ECtHR read judgment

At one level, this is a story of Estonian police over-reaction to major disturbances on the streets of Tallinn, which will be found reproduced in various incidents throughout ECHR countries at various times of civil strife. But a good deal of history and politics lies behind it, and Russia’s intervention in Strasbourg, in support of the applicants’ claims under Article 3 (excessive force) and 5(1) (unlawful detention) against Estonia is of some interest. 

The Bronze Soldier, originally named “Monument to the Liberators of Tallinn” was unveiled there on 22 September 1947, on the third anniversary of that “liberation” in 1944. Not all – including ethnic Estonians – saw it as a liberation. The Germans had retreated before the Red Army arrived, and on 18 September 1944 the Provisional Estonian government had declared independence – short-lived as Estonia was rapidly incorporated into the Eastern bloc courtesy of the Red Army. So “takeover” might be a term closer to Estonians’ hearts.

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Hot off the press: how the ECtHR is indeed going to watch the EU

8 April 2013 by David Hart KC

Updated

Last Friday, 5 April, saw a break-through in negotiations as to how the EU is to accede to the ECHR – see the Draft Agreement on Accession of the European Union to the European Convention on Human Rights. There has been a lot of speculation (e.g.  my post of June 2012) about how the roles of the EU Court (the CJEU) and the Strasbourg Court might be fitted together.  Now at least we have some of the proposed answers, though there are a number of formal steps to be undergone before it comes into law.

The move is a culmination of a process trailed as long ago as the 1970s, though kick-started more recently by  Article 6 of the Lisbon Treaty of European Union. This entered into force in 2009, and says that the EU “shall” accede to the ECHR. Negotiations started in earnest in 2009/10, initially with negotiators from 14 Convention countries (7 in the EU, 7 ECHR but non-EU members) who met with members of the European Commission, and latterly involving all 47 Council of Europe countries. Those negotiators have now reached agreement.

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Last week not a good one for Theresa May: not just Abu Qatada

31 March 2013 by David Hart KC

J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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Court of Appeal rejects latest attempt to deport Abu Qatada

28 March 2013 by Jim Duffy

Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment

The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”.  Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May. 

In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”.  Read my post on that decision here.  Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.

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