Adoption,Homosexuality and the European Convention on Human Rights: Gas and Dubois v France

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same‐sex and opposite‐sex couples in respect of the adoption of a child. 1 The Court held that excluding same‐sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite‐sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.     

O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education

In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.     

Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?

In Animal Defenders International v United Kingdom a majority of the Grand Chamber of the European Court of Human Rights held that the UK's statutory broadcasting ban on political advertisements under the Communications Act 2003 did not breach the right to freedom of expression under Article 10 of the European Convention on Human Rights. The judgment departs from the Court's established case law and, it is argued, raises several issues of concern both with regard to freedom of expression, and for human rights adjudication more generally. In particular, the Court's use of a doctrine of ‘general measures’ led it to place a great deal of reliance on the quality and quantity of legislative debate that preceded the UK ban, rather than its actual impact upon the applicant.     

Redfearn v UK: Political Association and Dismissal

In Redfearn v UK the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights. The Court endorsed a strong commitment to multi‐party democracy and protection of employees against the domination of the employers. This note discusses the judgment and its implications for UK law, looking at three key issues: first, whether the law of unfair dismissal provides effective protection against action that poses a threat to the enjoyment of Convention rights; second, the grounds under which an employer may justify the lawfulness of a dismissal that interferes with a Convention right; third, the available remedies against the employer when there is a breach of a Convention right.     

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.     

Confronting Religion: Veiled Witnesses,the Right to a Fair Trial and the Supreme Court of Canada's Judgment in R v N.S.

The Supreme Court of Canada's decision in R v N.S. is significant because the majority seems to endorse an understanding of confrontation that assumes a defendant's right to a fair trial is imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest because it permits reflection upon the interrelationship between the right to a fair trial and the right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights. Given that the European Court of Human Rights conceptualises confrontation in epistemic terms, it is argued that it would be unlikely to find that a conviction based upon evidence from a niqab‐wearing witness would infringe the right to a fair trial. This note examines the value of demeanour evidence and whether the majority in R v N.S. was correct that the abrogation of the ability to assess demeanour evidence necessarily undermines trial fairness.     

Unblocking the Digital Economy Act 2010; human rights issues in the UK

Through an example of a study utilizing the case-law research method, this paper critically assesses whether taking into account both the findings of Mr La Rue (the United Nations Rapporteur on Human Rights) as well as some Court of Justice of the European Union's (CJEU) case-law, website blocking could be implemented in a way which is compatible with the European Convention on Human Rights (ECHR), in particular, with Article 10. Drawing upon, inter alia, Ofcom site blocking review, sections 17 and 18 of the Digital Economy Act 2010 (DEA), section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), and some independent expert evidence, this paper's major argument is that in view of the CJEU SABAM v Scarlet and SABAM v Netlog, the UK government's decision to repeal the website blocking provisions of the DEA appears appropriate. The paper examines the findings of Fox v BT. It contrasts such findings with the CJEU's case-law and in light of the incompatibility of any website blocking measure with the cumulative three-part test set out in the United Nations Rapporteur on Human Rights discusses a number of implications. It concludes that given that the implementation of content blocking systems, such as Cleanfeed is likely to result in general monitoring being carried out; the UK government could possibly be in breach of EU law, namely, Article 15(1) of Directive 2000/31.     

Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.     

Accommodating Religious Beliefs: Harm,Clothing or Symbols,and Refusals to Serve Others

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti‐discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non‐accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case‐by‐case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms

The Miller case concerned the constitutional requirements for the UK to give notice of its intention to withdraw from the EU pursuant to Article 50 of the Treaty on European Union. The parties made submissions in terms of two competing syllogisms. The Government argued that ministers, exercising Crown prerogative, had the power to give notice without statutory authorisation. The Applicants argued that the process required authorisation by Act of Parliament because the UK's withdrawal would deprive people of rights arising under EU law. However, a majority of the Supreme Court decided in favour of the Applicants based on a third and significantly different syllogism, based on the proposition that the European Communities Act had established EU law‐making and law‐interpreting institutions as new ‘sources of law’. This note assesses the three competing syllogisms and examines the constitutional significance of the majority's proposition that these new EU sources of law were integrated into UK domestic law without disrupting the principle of parliamentary sovereignty.     

Out of Many,One? Strasbourg's Ibrahim Decision on Article 6

This case comment considers the European Court of Human Rights decision of Ibrahim v United Kingdom on 13 September 2016. Relying on Salduz v Turkey, the applicants claimed, largely unsuccessfully, that denial of access to a lawyer during police questioning, and subsequent admission into evidence of statements made in the course of that questioning, violated fair trial rights protected by Article 6 of the European Convention on Human Rights. The comment suggests that the decision's unusually emphatic statements about Article 6's ‘internal structure’ have consequences for assessing violations in future applications. Further, the decision creates greater room for public interest balancing in Article 6 cases. The decision may thus undermine the Article 6 guarantees.     

Unravelling Osman

The judgment of the European Court of Human Rights in Osman v United Kingdom , decided in October 1998, has proved very controversial. Its implications for the UK law of negligence appear to be immense. Not the least of the complexities associated with the decision is the widespread perception that the reasoning of the Court is extremely difficult to understand, indeed, that it is at times contradictory. This article subjects the Osman judgment to close analysis. It explains the Court's approach to Article 6(1) by reference to the way in which the Strasbourg court has over many years developed its case law on this provision. The article includes an overview of the way in which, so far, the decision has been deployed in UK law. The author suggests that, whatever about the actual result of the case, the reasoning of the European Court in Osman is deeply flawed, and that the UK judiciary should be mindful of this fact when considering its deployment in domestic law.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

UK Abortion Law: Reform Proposals,Private Members’ Bills,Devolution and the Role of the Courts

UK abortion law remains unsettled, and subject to on‐going controversy and reform. This article offers a comprehensive critique of all reforms implemented or proposed since 2016. It examines reforms proposed in both Houses of Parliament and contextualises them within a public law analysis, showing both that the complex parliamentary processes relating to Private Members’ Bills have frustrated reform attempts, and that these attempts have been contradictory in their aims between the two Houses. Secondly, it examines the unique positions of Northern Ireland, Scotland and Wales to show the extent to which devolutionary settlements have influenced both reforms and executive involvement. Finally, it examines the potential impact of the courts on abortion law following Re Northern Ireland Human Rights Commission's Application for Judicial Review, showing that the Supreme Court's reframing of the debate in human rights terms is likely to affect abortion law, not only in Northern Ireland, but in the whole of the UK.     

Girls and Boys

Law and Critique - Transsexuality recently burst once more upon the legal scene when the European Court of Human Rights found UK law denying transsexuals a new `gender re-aligned' birth...     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

A Negligent Blow to Children at Risk: MAK and RK v United Kingdom (European Court of Human Rights)

In MAK and RK v United Kingdom the European Court found that the absence of a common law duty of care owed to parents by doctors falsely suspecting them of their child's abuse violated the European Convention on Human Rights. This appears to be so even where the suspicion is a reasonable and blameless one to make, all things considered. In such circumstances, the court's decision to find that a parents' Convention rights had been unjustifiably infringed, and to order compensation accordingly, is likely to have the effect of frustrating the effective protection of children genuinely at risk of abuse.     

Inhuman and Degrading Punishment,Dignity, and the Limits of Retribution

The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Vinter and others v United Kingdom provides a much needed clarification of the parameters of the prohibition on inhuman and degrading punishment under Article 3 of the European Convention on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory life sentences – essentially, life imprisonment without parole. The Grand Chamber's judgment refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This article considers the judgment's profound significance in relation to both human rights and penology.     

Workplace Monitoring and the Right to Private Life at Work

In Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. The decision establishes that there is an irreducible core to the right to private life at work that does not depend on an employee's reasonable expectations of privacy, and sets out clear principles for striking a fair balance between Article 8 and the employer's interests in the context of workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.