ECtHR
24 September 2012 by Guest Contributor
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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18 September 2012 by Rosalind English
Another brief guide to the admissibility conditions to the Strasbourg Court. This one is on the “six months rule” laid down in paragraph 1 of Article 35.
The Court may only deal with the matter … within a period of six months from the date on which the final decision was taken.
Easy enough to state; the difficulty lies in identifying the “final decision”, in other words the point at which the six months starts to run. Here are the broad guidelines to be identified from the case law (and for this I am indebted to Karen Reid’s excellent and detailed Practitioner’s Guide (Third Edition 2008 Sweet & Maxwell).
1. No waiver
It is worth mentioning at the outset that the six month rule is imposed irrespective of the wishes of the parties or court; the rule cannot be waived (X v France (1982):
The Contracting States cannot, on their own authority, put aside the rule of compliance with the six-months time limit. The deposit bv a State of a declaration made under Article 25[now 35] of the Convention does not affect the running of this delay
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10 September 2012 by David Hart KC
Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?
Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.
If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.
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7 September 2012 by Rosalind English
We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.
Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.
The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School [2006] UKHL 15
The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]
(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.)
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3 September 2012 by Rosalind English
Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release
Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.
All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.
The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed intervening submissions under Rule 44 §3 of the Rules of the Court.
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6 July 2012 by Rosalind English
R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
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4 July 2012 by Rosalind English
Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment
The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions, the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.
Background
In 2002 the Federal Constitutional Court in Germany ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
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22 April 2012 by hrupdateadmin
The Brighton Declaration is the latest Declaration (see previously the Interlaken and Izmir Declarations) on the future (and reform) of the European Court of Human Rights made on behalf of the 47 member States to the Council of Europe, the parent organisation for the ECHR. Brighton was the venue, the United Kingdom having taken up the six month Chairmanship of the Committee of Ministers of the Council of Europe late last year.
The workload problem
So what was agreed? A nine page, highly influential Declaration, building on Interlaken and Izmir, which is primarily concerned with trying to make the Court system sustainable, since it is overwhelmed by the number of applications reaching it. Over 150,000 applications are currently pending before the Court.
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20 April 2012 by Guest Contributor
The Abu Qatada deadline debacle has once again thrust the European Court of Human Rights – and in particular, its relationship with the UK – into unwanted controversy just as European representatives gathered in Brighton to debate the Court’s future. This new fracas over the deportation of Abu Qatada has acted as a lightning rod for well-rehearsed criticisms of the Strasbourg Court – that it is a ‘meddling pseudo-judiciary’ and the enforcer of a villains’ charter.
A new report for the Equality and Human Rights Commission by researchers at London Metropolitan University and LSE, including myself, addresses these critiques as part of a broad analysis of the relationship between the UK and Strasbourg.
Among those interviewed for the report were the President of the European Court, Sir Nicolas Bratza; the outgoing Council of Europe Commissioner for Human Rights, Thomas Hammarberg; and, in the UK, Baroness Hale, Sir John Laws and Jack Straw, along with two members of the Commission on a Bill of Rights, Lord Lester QC and Anthony Speaight QC. The report also conducts a thematic analysis of case law, as well as examining wider literature and the voluminous statistics produced by the Court.
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18 April 2012 by Adam Wagner
As the last hurrah of its Chairmanship of the Council of Europe, beginning today the United Kingdom is hosting the High Level Conference on the Future of the European Court of Human Rights in Brighton. As delegates settle into their Eurostar seats on the way over, here are a few useful tips:
1. If you have forgotten sun cream, don’t worry! The weather forecast is terrible.
2. All of the important documents are on the Conference website, including the Conference Programme and the declarations from the last two such conferences: Izmir (2011) and Interlaken (2010). There is also a CoE press release. In case you need to refresh yourself on the CoE itself, the BBC has this useful profile.
3. The most important document is the draft Declaration which you are being asked to approve. The document has been the subject of frantic negotiations and you will no doubt receive an up to date version. In the meantime, here is a slightly out-of-date version which even has useful track changes to show what has changed since the UK’s first draft. The somewhat ugly buzz-word for the Conference will be subsidiarity.
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17 April 2012 by Guest Contributor
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the European Court of Human Rights (ECtHR) is taking an approach that looks like one of appeasement of certain signatory states.
Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconcilable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
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10 April 2012 by Isabel McArdle
BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release
The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.
They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.
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13 March 2012 by Guest Contributor
This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.
His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.
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9 March 2012 by Guest Contributor
The European Convention (via CoE)
This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.
At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.
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6 March 2012 by hrupdateadmin
This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.
Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.
A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).
The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.
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