ECHR

Locals’ Olympic missile site challenge rejected

13 July 2012 by David Hart KC

Harrow Community Support Ltd v. Secretary of State for Defence [2012] EWHC 1921 (Admin), Haddon-Cave J, 10 July 2012, read judgment

In 776BC, the Olympics consisted of one day’s running and wrestling. A hundred years later, chariots and single horses arrived, thanks to the influence of Phaidon of Argos (a big shot in seventh-century Greece), and I dare say the civic pride which each participating Greek city-state brought to the Games was already running high. But I don’t suppose either Phaidon or Baron de Coubertin would have predicted the move which triggered this piece of litigation. The MoD decided to site a missile launcher and military personnel on the roof of a Council tower block in Leytonstone during the Olympics. Like all military hardware, it has a nice acronym, GBAD, being a Ground Based Air Defence system.

Anyway, a residents’ association formed by residents of Fred Wigg Tower, 15 storeys and containing 117 flats, decided to challenge the MoD. As their petition put it, “We, the undersigned residents of FWT, Montague Road, Leytonstone E11 3 EP, do not want explosive missile systems placed on the roof of our home”. Nor, I suppose, do any of us, but some of us may want someone else to have missile launchers on their roofs.

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When is the ECHR going to start watching the EU?

20 June 2012 by David Hart KC

In my post of today about checks on EU legality, I made the point that no institution formally monitors the EU apart from EU institutions. Moves are afoot to change that, though not in a form that diehard Eurosceptics are likely to relish. Article 6 of the Lisbon Treaty of European Union says that the EU shall accede to the ECHR. As and when that occurs, the European Court of Human Rights will assume a formal role in adjudicating upon the legality of EU measures. The details of accession could not be settled by the purely EU Treaty of Lisbon, hence the ongoing negotiations.

 However, things have been happening very recently. Yesterday, 19 June, a joint informal body of members of the European Parliament and Council of Europe parliamentarians welcomed the prospect of talks resuming on EU accession to the European Convention on Human Rights, and, last week, the Committee of Ministers of the Council of Europe decided to pursue negotiations with the European Union with a view to finalising the legal instruments setting out the way in which the EU would accede to the ECHR.

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UK passes ‘human rights exam’, but with room to improve

6 June 2012 by Rachit Buch

Last week the UN Human Rights Commissioner published the draft report of the second Universal Periodic Review (UPR) of the UK’s human rights record (draft report here,  webcast of the UPR session here). The UPR involves delegations from UN member states asking questions and make recommendations to the UK government on the protection of human rights, which the government will consider before providing its response. The report is extremely wide-ranging, perhaps to its detriment, though many valuable and interesting insights are provided.

The UPR process was established in 2006. It involves a review of all 192 UN member states once every four years. As readers of this blog will know, the protection of human rights has a troubled recent history in the UK, with newspaper campaigns against “the hated Human Rights Act” providing the background to government pronouncements on human rights that veer from the sensible to the ridiculous. In this context, the UPR provides a valuable attempt at a serious assessment of human rights in this country.

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The case for letting prisoners vote – Reuven Ziegler

24 May 2012 by Guest Contributor

Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment  reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

Adam Wagner has compared  the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK.  Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.

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Greek far right win is a reminder of why we need European human rights standards

8 May 2012 by Adam Wagner

Remember the far right? They are back. The ultra-nationalist Golden Dawn party has just won 7% in the Greek elections. Although it rejects “neo-Nazi” labels, its symbolism and style clearly channel fascist parties of the past. It has a Swastika-like logo and inflammatory anti-immigration policies. And for those who thought ultra-nationalism was confined to the history books, this YouTube video of leader Nikolaos Michaloliakos‘s victory speech will be particularly unsettling. To members of the audience who stayed after a black-shirted thug screamed at them to stand up for the leader’s entrance, Mr Michaloliakos made the ominous promise that “a “new golden dawn of Hellenism is rising” and for those “who betray this homeland the time has come to fear”. 

The recent successes of far right parties in Europe, which have benefited from recession protest votes and anti-immigration populism, is indeed something to fear. But it also presents an opportunity to reflect on the importance of international human rights standards.

In the ongoing debate over the role of a European system of human rights law, lip service is often paid to the origins of the European Convention on Human Rights (ECHR) in post-war Europe. The rise of Fascism had killed tens of millions. The Nuremberg trials, an early experiment for international justice, had been a success. A Europe-wide system of rights protection seemed sensible. It still does.

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From County Court Strike Out to Strasbourg Success

30 March 2012 by Matthew Hill

Reynolds v United Kingdom [2012] ECHR 437 – read judgment

What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.

This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
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Draft declaration on British ECHR reform plans leaked – Antoine Buyse

29 February 2012 by Guest Contributor

Updated | The French translation of the draft of the so-called ‘Brighton Declaration’ (the seaside city where state parties to the ECHR will meet in April to discuss reforms of the Court and the Convention) has been leaked after the UK government refused to circulate the text publicly.

Last week, the draft was presented to the Ministers’ deputies of the Council of Europe. Amongst other, the draft suggests to include the principle of subsidiarity and the margin of appreciation explicitly in the Convention text – I am not sure what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation.

Also, the time to lodge complaints after all domestic remedies have been exhausted would possible be reduced from the current six months to two, three or four months. One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, according to BBC reporting, “”unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention” according to the Open Society Institute. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.

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The democratic legitimacy of human rights

28 February 2012 by Rachit Buch

Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.

The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.

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Italy lose in Europe over asylum seeker boat interception – Henry Oliver

26 February 2012 by Henry Oliver

Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment

The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and  Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.

The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6^th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.

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Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court

8 February 2012 by Adam Wagner

This post originally displayed an image of a sign at Stepping Hill Hospital, including reference to Stockport NHS Foundation Trust. The case did not involve Stockport NHSFT so I have removed the image: my apologies for any confusion caused. In the absence of any interesting images of Pennine Care NHS Trust, who were the Respondent, I have replaced this with an image of the snowy Pennines.

Rabone and another (Appellants) v Pennine Care NHS Trust (Respondent) [2012] UKSC 2 – Read judgment / press summary

The Supreme Court has ruled unanimously that a mental health hospital had an “operational” obligation under article 2 of the European Court of Human Rights (the right to life) to protect a voluntary patient from suicide. This is the first time the reach of the article 2 obligation to protect life has been expanded to a voluntary patient; that is, a patient who was not detained under the Mental Health Act.

My initial thoughts are that this is potentially very important, and follows on from Savage in gradually expanding the reach of Article 2, and therefore the liability of mental health hospitals to patients and (as was crucial in this case) their families. The court observed that Ms. Rabone, who committed suicide after being granted 2-days of home leave by the hospital, could have been detained under the MHA in any event, so the distinction between a voluntary and detained patient was of form rather than substance.

Nonetheless, the decision appears to endorse an “each case on its own facts” approach, and will affect human rights damages claims and arguably so-called article 2 inquests too. Here is a particularly quotable line from Lady Hale at paragraph [92]:

“There is no warrant, in the jurisprudence or in humanity, for the distinction between the two duties drawn by Lord Scott in Savage…”

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Is internet access a human right?

11 January 2012 by Adam Wagner

A recent United Nations Human Rights Council report examined the important question of whether internet access is a human right.  

Whilst the Special Rapporteur’s conclusions are nuanced in respect of blocking sites or providing limited access, he is clear that restricting access completely will always be a breach of article 19 of the International Covenant on Civil and Political Rights, the right to freedom of expression.

But not everyone agrees with the United Nations’ conclusion. Vinton Cerf, a so-called “father of the internet” and a Vice-President at Google, argued in a New York Times editorial that internet access is not a human right:

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Why Stephen Lawrence killers were sentenced as juveniles and under old law

4 January 2012 by Adam Wagner

Updated | Two of Stephen Lawrence’s killers Gary Dobson and David Norris have been sentenced to minimum life terms “at her Her Majesty’s Pleasure” of 15 years 2 months and and 14 years 3 months respectively.

There has been surprise, from the Daily Mail amongst others that Dobson and Norris, now in their mid-30s, were sentenced as juveniles. Curiously, they have also been sentenced under historic law dating back to around 1993, which means they cannot be sentenced under harsh new guidance for racially aggrevated crimes.

This may all sound a bit strange, but as readers of this blog will know, the sentencing of criminals convicted in “cold cases” which have heated up can be much more complicated than if the crime happened a short while before trial. This may upset Daily Mail readers, but the reason is partly the European Convention on Human Rights. As Alasdair Henderson posted last month, Article 7 prohibits retrospective punishment, that is punishment using law which was not applicable at the time of the crime:

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Terrorist asset-freezing: an intrusion too far – Dr Cian Murphy

21 December 2011 by Guest Contributor

Freezing

One could be forgiven, amidst the furore over the European Court of Human Rights’ Al-Khawaja judgment last Thursday, for missing the first report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorist Asset-Freezing etc Act 2010. The Report runs to over 100 pages and is the most comprehensive account of UK terrorist asset freezing in print.

It is the third report of the current Independent Reviewer, David Anderson Q.C., since he took up the post in February. Asset freezing is something of a speciality of his, as he has appeared in litigation in both EU and UK courts on the matter. It is therefore unsurprising that the Report exhibits the same attention to detail that made the Anderson’s previous two efforts essential reading.

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Can Britain “ignore Europe on human rights”?

23 October 2011 by Adam Wagner

Headlines are important. They catch the eye and can be the only reason a person decides to read an article or, in the case of a front page headline, buy a newspaper. On Thursday The Times’ front page headline was “Britain can ignore Europe on human rights: top judge”.

But can it? And did Lord Judge, the Lord Chief Justice, really say that?

To paraphrase another blog, no and no. The headline, which I am fairly sure was not written by Frances Gibb, the Times’ excellent legal correspondent and writer of the article itself, bears no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.

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

16 June 2011 by Alasdair Henderson

Neary and his father

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

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

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

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