Straining out a Gnat and Swallowing a Camel: The Convention, the Charter and Mrs May

Photo credit: Guardian

By Marina Wheeler QC

In a speech about Brexit last week, the Home Secretary shared what she called her “hard-headed analysis”: membership of an unreformed EU makes us safer, but – beware the non-sequitur – we must withdraw from the European Convention on Human Rights, which does not.

It is surely time for some clearer Government thinking about these questions. If politicians could put politics to one side, they might recognise that the Convention and the Strasbourg court are not enemies of our sovereignty, but there are aspects of EU law as applied by the Court of Justice in Luxembourg which are.

Continue reading

UK Government tells High Court: Same-sex couples may be shut out of Article 14

Special Guest Post by Professor Robert Wintemute

Professor-Robert-WintemuteOn 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the judicial review of the ban on different-sex civil partnerships brought by Rebecca Steinfeld and Charles Keidan. It was argued on behalf of the supposedly LGBTI-friendly UK Government (represented by Nicky Morgan, the Secretary of State for Education and Minister for Women and Equalities) that the High Court should follow two anti-LGBTI decisions from 2006. Continue reading

Surveillance of Internet usage in the workplace

Social Media button on a keyboard with speech bubbles.

Social Media button on a keyboard with speech bubbles.

Barbulescu v Romania, 12 January 2016 – read judgment

In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national’s appeal against his employer’s decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.

Mr Barbulescu contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right. The Court found that there had been no such violation because the monitoring of the account by his employer had been limited and proportionate.

Background facts

Mr Barbulescu’s employers asked him to create a Yahoo Messenger account for responding to client enquiries and informed him that these communications had been monitored. The records showed that he had used the Internet for personal purposes, contrary to internal regulations. The employer’s regulations explicitly prohibited all personal use of company facilities, including computers and Internet access. The employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages. Continue reading

Court of Appeal: immigration age assessments and Merton

Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin). Continue reading

More bad news in the fight for a right to die

281851582_1115426167001_110818righttodie-5081250R (o.t.a A.M) v. General Medical Council [2015] EWHC 2096 (Admin) Read the full judgment here

The High Court has rejected the argument made by “Martin”, a man with locked-in syndrome who is profoundly disabled and wishes to end his own life. This comes shortly after Strasbourg’s rejection of the Nicklinson and Lamb cases, for which see my post here.

Philip Havers QC, of 1COR, acted for Martin, and has played no part in the writing of this post. 

Martin would like to travel to a Swiss clinic to end his life, but wishes to obtain a medical report, from a doctor, to assist. He would also like to take medical advice on methods of suicide.

There is no dispute that a doctor advising him in this way will likely break the law, by committing the crime of assisting suicide. However, Martin argued that in practice, the Director of Public Prosecutions (DPP) has relaxed guidelines on when it is in the public interest to bring a prosecution against a doctor in these circumstances.

Continue reading

Strasbourg rejects right to die cases

Paul LambThe European Court of Human Rights has ruled that the applications to the ECtHR in Nicklinson and Lamb v UK, cases concerning assisted suicide and voluntary euthanasia, are inadmissible.

This is the latest development in a long running series of decisions concerning various challenges to the UK’s law and prosecutorial guidelines on assisted suicide and voluntary euthanasia. You can read the press release here  and the full decision here. Continue reading

Scotland, Sewel, and the Human Rights Act

Photo credit: Guardian

Photo credit: Guardian

The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK. 

Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side. 

But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?

Sort of (not really).

Continue reading