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Human Rights: A review of the year 2003

Philip Havers QC
Rosalind English


HUMAN RIGHTS: A REVIEW OF THE YEAR 2003

Philip Havers Q.C.[1] and Rosalind English[2]

 Published in European Human Rights Review Issue 6 2003 at 587

 1.                  A true human rights devotee will find relatively little by way of nourishment from the smorgasbord of cases that have been decided under the Human Rights Act 1998 over the last year.  Numerous applications for declarations of incompatibility have been turned down. The nascent tort of privacy, barely formed in Douglas [3], has been shoehorned back into commercial confidence by the Court of Appeal. Asylum seekers continue to be turned away for failing to reach the strict thresholds of proof and persecution required by the Convention. And so on.  The upshot has been that many human rights practitioners and commentators have expressed their disappointment with what they see as the failure of lawyers and judges to use the Act as it should be used.  We do not share their disappointment.  We believe that human rights law as enshrined in the Act and the Convention is slowly but insidiously seeping into our domestic legal system.  This is the way in which English lawyers tend to do these things and the common law tends to encourage it.  The reality is that, as was rightly predicted, we are all or we are all becoming human rights experts now.  Human rights points are no longer the exclusive preserve of  human rights specialists and to raise a human rights point is no longer the ?big deal? that once it was.  This development is very much supported by our review of the past year and we serve it up with some relish to those who are constitutionally doomed to disagree. 

2.                  Because, almost inevitably, practitioners, and to a lesser extent academics, focus on the case law, both domestic and in Strasbourg, it is inevitable, if unsurprising, that this is primarily a review of the case law of the past year.  However, human rights is at least as important in its influence in other fields, for example in its effect on policy, decision making and legislation. We will say something at the end of this article about this wider impact of the Act and the Convention.  Before then, we propose to look at what seem to us to be the principal trends which have emerged from both the domestic and Strasbourg Case Law. 

 

The Continuing Retreat from Osman

 

3.                   It will be remembered that in Osman, the Strasbourg Court ruled that the striking out of a claim in negligence against the police, on the grounds that it disclosed no reasonable cause of action, breached the claimants' implied right of access to court. This somewhat startling proposition soon hardened into principle and gave rise to a clutch of judgments in our domestic courts reversing strike-outs on similar grounds. However, in May 2001 Osman was  jettisoned by the court in Z v United Kingdom, and since then our domestic courts have generally resisted claims that bars and immunities breach this implied right. 

4.                   Perhaps the most striking recent example is Matthews v Ministry of Defence[4].  The claimant, who served in naval ships from 1955 until 1968, had allegedly incurred asbestos related injuries as a result of his exposure to fibres and dust working in boiler rooms. The Crown argued as a preliminary point that it was immune from liability by reason of the provisions of Section 10 of the Crown Proceedings Act 1947. The claimant contended that these provisions were incompatible with the Convention. The House of Lords ruled that Section 10 was a substantive bar to the right of servicemen to pursue actions in tort against the Crown and thus did not engage Article 6 at all. Lord Hoffman took this most recent opportunity to highlight what he saw as some of the weaknesses of Strasbourg jurisprudence: 

?some of the difficulties which have been experienced by the Strasbourg court in applying Article 6 to English tort cases have arisen from trying to use the distinction between substantive rights and procedural bars or immunities without sufficient regard to the underlying purpose for which that distinction is being used?. 

5.                   Endless debates over whether an immunity is procedural or substantive focus on the wrong issue.  The real question, for example in Osman, was why the police enjoyed immunity against actions for negligent investigation and crime prevention. The reason, of course, is that the waste of resources in lawyers and policemen investigating whether a previous investigation was conducted with reasonable care outweighs the potential unfairness to victims who cannot claim damages. As Lord Hoffman pointed out, this may be right or wrong in terms of policy; but it is not a human rights point. 

6.                   A similarly robust view was taken when deep vein thrombosis was held not to be an "accident" meriting compensation under the Warsaw Convention. In Re Deep Vein Thrombosis and Air Travel Group Litigation[5], the claimants had all suffered a DVT alleged to have been caused by cramped seating conditions and a failure to warn of the danger posed by flying or to advise as to the appropriate steps to minimize or eliminate this danger. They argued that their implied right of access to court had been breached by the exclusion clause in the Warsaw Convention. As in Matthews, Nelson J decided that the bar imposed by Article 7 of the Warsaw Convention was substantive, not procedural, and thus there was no "civil right" to which Article 6 could attach. 

7.                   A third case which in many respects mirrored the facts of Z v United Kingdom[6] was the very recent decision of the Court of Appeal in  JD and Others v East Berkshire Community Health and Others[7].  In each case parents claimed for psychological injury sustained as a result of false allegations of sexual and physical abuse which led to their temporary separation from their children.  The claims first came before the courts before  the Human Rights Act had been brought into force and again X v Bedfordshire County Council[8] was still good law. Therefore the actions were dismissed on the preliminary point that the defendants owed no duty of care. The claimants were resuscitated as a result of Osman, but this really proved to be merely temporary. In dismissing the appeals, the Court of Appeal observed that none of them concerned an area where it was difficult to draw a line between procedural and substantive rules of law. On the contrary, the cases all concerned the application of a fundamental principle of the common law of negligence, namely that in novel factual situations a duty of care could not be found to exist unless it was ?fair, just and reasonable?. No violation of Article 6 was entailed by the procedure whereby the court determined whether that test was satisfied. 

8.                   The right to a fair trial has not only proved fertile ground for litigation on the question of immunity. A similar source of litigation has been discovered - and relentlessly mined - in the division between administrative and judicial decision-making. It is unnecessary within the limited scope of this article to list the catalogue of such cases, largely because most of the uncertainties have been laid to rest by Runa Begum v Tower Hamlets London Borough Council[9].  According to the House of Lords, the ?workable test? for determining whether a particular decision-making form fulfils the requirements of Article 6 is to ask the question whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it matters not that there are many or few occasions on which they need to make findings of fact. The full panoply of due process requirements under Article 6 does not apply. Despite trends in Strasbourg to extend the scope of Article 6 to cover some administrative decision making, it was unnecessary for an ?appellate? procedure in an administrative context such as housing allocation to have full jurisdiction over the administrative decision to re-examine the merits of the case. When dealing with a welfare scheme the intensity of review for the purposes of Article 6 had to be consistent with the statutory scheme. Article 6 did not mandate a more intensive approach to judicial review of questions of fact. 

 

Judicial Deference
 

9.                   Human rights practitioners have been disappointed by what they see as the reluctance of the judges to avail themselves of the new arsenal of weapons against the executive and the legislature. Others have argued that the judges have wielded those new powers with tact and subtlety, allowing the Human Rights Act to bed down into domestic law without frightening the horses. The former probably have the edge.

10.               So, for example, attempts to persuade the courts to grant declarations of incompatibility have generally foundered on the twin bases of lack of jurisdiction and standing. Thus in Bellinger v Bellinger[10], the House of Lords ruled that the recognition of gender reassignment for the purposes of marriage was a matter for Parliament, not the courts. 

11.               An even clearer expression of judicial deference arose in Wilson v Secretary of State for Trade and Industry[11].  Quite apart from ruling that a court has no jurisdiction to make declarations of incompatibility in relation to events occurring before the Human Rights Act came into force, Lord Nichols went out of his way to emphasize that when considering the question of proportionality the courts ?should have in mind that theirs is a reviewing role.  Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate.  Assessment of the advantages and disadvantages of the various legislative alternatives is primary a matter for Parliament.  The possible existence of alternative solutions does not in itself render the contested legislation unjustified?a court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person?s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene.?[12] 

12.               It should also be noted that in this case the House of Lords deprecated the use of Hansard as a means of seeking to determine the objective of the legislation in question, especially when the legislation was enacted before the Human Rights Act came into force. 

At times, the courts' determination to square their decisions with the Convention whilst at the same time limiting the Convention?s impact has led to illogicalities. In Harrow London Borough Council v  Qazi [13]    the House of Lords concluded that a tenancy which has expired by operation of law remains a home for the purposes of Article 8, but this residual right may never be used to defeat a landlord's possessory title under the relevant landlord and tenant legislation. As the dissenting minority pointed out, these two propositions appear not to add up. Either you have a right under the Convention, and therefore there is an issue as to justification and proportionality which will always have to be tested by the courts; or you do not, in which case the relevant Article is not engaged at all. 


The Scope of Public Authority

 13.               In her article ?The Frontiers of State?, published a year before the Human Rights Act came into force[14], Professor Dawn Oliver predicted that the term ?public authority? in Section 6 of the Act would be given a wide interpretation, with the sometimes undesirable consequence that institutions and organizations caught by that definition, for example charities, universities and self-regulatory bodies, would not be able to claim the status of victim should they find themselves at the wrong end of a breach of the Convention. She recommended that the definition of ?public function? in Section 6(3)(b) should not follow the definition accepted on judicial review: 

?The courts should be wary of treating services either to the general public or to individuals as public functions unless they involve the exercise of coercive power to special authority, both because of the difficulties in defining and limiting the extent of this form of vertical effect of the Act, and because such treatment legitimates state control of many activities by private bodies, often by individuals by private bodies, often by individuals, thus rolling forward the frontiers of the state.? [15] 

14.               The most recent ruling on the issue in by the House of Lords suggests that Professor Oliver?s fears have been largely unfounded. In Aston Cantlow Parochial Church Council -v- Wallbank[16], the House held that in determining whether a body is a "public authority" for the purposes of Section 6 of the Act, the factors to be taken into account included the extent to which in carrying out the relevant functions the body was publicly funded, or whether it was exercising statutory powers, or whether it was taking the place of central government or local authorities, or whether it was providing a public service. A Parochial Church Council such as Aston Cantlow was a body essentially engaged in self-governance and the promotion of its own affairs, and as such was far removed from the type of body whose acts engaged the responsibility of the state under the Convention. Indeed the House appears to have gone even further than Oliver?s recommendations since they excluded from Section 6 bodies with the coercive powers exercised by Aston Cantlow Council which, on analysis, was found to possess powers that private individuals do not possess to determine how others should act.  Be that as it may, both the approach of the House of Lords and the tenor of its judgments indicate that self-regulatory bodies in sport, charities, universities and the like have very little to worry about either by way of being targeted under the Act or by being deprived of its protection.

 

Damages for Breach of Human Rights

15.              Until recently, the courts have moved somewhat cautiously towards formulating guidelines for the quantification of section 8 damages, not least because of the total absence of any such guidance from Strasbourg in its Article 41 jurisprudence. In  R (Bernard) v London Borough of Enfield[17],  damages were awarded for breach of the claimants? rights under Article 8 (failure to provide adequate housing accommodation to a disabled woman and her carer). The judge refused to accept the defendant?s argument that Section 8 damages should be lower than an analogous award in tort, since that would diminish respect for the policy underlying the Human Rights Act.  In fact the judge took as his yardstick the tariff for awards for maladministration in local government and granted the claimants £10,000.

16.               R (KB) v South London and South and West Region Mental Health Tribunal[18] Stanley Burnton J considered the liability in damages of the defendant tribunal for the delay in arranging the review of the claimant patients? respective detentions, which he had found to have breached their rights under Article 5(4) of the Convention.[19]  All the claims were for various heads of non-pecuniary loss.   Among the many nettles the judge had to grasp were the following:

§                     should the measure of damages be a "European" measure or a domestic measure;

§                     did exemplary or aggravated damages have any role in the remedial jurisprudence of the  Human Rights Act

§                     if a domestic measure was applicable, should awards be modest and lower than in comparable English tort cases;

§                     were special principles applicable to mental health cases.

The judge held that there was nothing in the Human Rights Act to bind the court to the regime of damages followed by the Strasbourg Court.  As for exemplary damages they have no place in a compensatory system of awards. Concerning the third question, the judge followed Bernard in concluding there that was no basis for awarding less under the 1998 Act than would be awarded in respect of a comparable English tort. And there were no special legal considerations applicable only to mental health cases.

17.              The most important point in this thoroughgoing analysis of human rights damages is the judge?s finding that it would be contrary to the principles established by the Strasbourg Court to award damages on the basis of a loss of a chance; a claimant had to prove his loss on the balance of probabilities. Since by the nature of things Convention violations almost always involve loss of chance rather than present damage, this is an important pointer for future cases.

 

Immigration and Asylum Rights

18.               With only a few exceptions, the English courts have shown themselves more than ready to recognize the legitimacy of immigration concerns and the recent case law could scarcely be described as promising to would-be entrants and asylum seekers. To a certain extent this is simply a reflection of the fact that human rights values were already embedded in immigration law long before the Act came into force with the result that the Act?s impact has been modest.  We also believe that an increasing familiarity with the Convention on the part of both lawyers and judges has in fact worked somewhat to the detriment of claimants.  For example, judges are now acutely aware of the high threshold which must be met in any successful Article 3 claim.  Flimsy evidence to support such a claim will no longer suffice.  On the contrary, strong proof of both likely persecution in the destination state and family ties in the host state are now required by the courts.  There are many examples of this approach of which we give the following representative selection:

 (1)               R (Mehmet Gezer) v Secretary of State for the Home Department[20]:        Positive obligations under Article 3 to protect asylum seekers from racial attack arise only in the presence of a specific danger.

(2)                Kugathas v Immigration Appeal Tribunal[21] :  In order for an asylum seeker to claim the protection of the  "right to family life" under Article 8, he must establish a situation of genuine dependency.

(3)               R (Harrison) v Secretary of State for the Home Department[22] :         The right to be recognised as a British citizen is not a civil right within Article 6 of the Convention, nor is a decision as to such a right a ?determination? for the purposes of Article 6.

(4)                R (Mambakasa) v Secretary of State for the Home Office[23] :       Any delay in granting asylum did not automatically give rise to a right to damages under Article 8.  

19.               The past year has also seen considerable litigation arising from the recent legislation requiring asylum seekers to apply for asylum as soon as they have arrived.  The decision of the Court of Appeal in R (Q) v Secretary of State for the Home Department[26] was broadly proclaimed by the media as a triumph of asylum rights over the government's weasel ways of discouraging asylum seekers from coming to the UK. Quite how this spin came to be put on the decision is unclear. What the Court of Appeal in fact decided was that the requirement that asylum seekers claim asylum ?as soon as reasonably practicable after entering the UK? did not breach Articles 3 or 8. The way in which the Secretary of State had operated this policy in relation to the particular asylum seekers before the court may have been unfair, as the court held, but once those deficiencies and procedure had been remedied, there was no reason why the policy should not operate effectively.  

20.               All this indicates that the Courts do not for one moment consider that government?s attempts to control immigration and asylum are doomed to failure under the Convention. The same point was made more forcibly in the more recent case of R (S) and Others v Secretary of State for the Home Department[27].  The Court of Appeal ruled that where an asylum seeker had shelter, sanitary facilities and some money for food, even though he was not entirely well physically, it was impossible to find that his treatment verged on the inhuman or the degrading so as to reach the high threshold of Article 3. The Court specifically accepted the Secretary of State's submission that it is incumbent on asylum seekers to establish, by medical and other evidence, that their condition has reached the threshold necessary to trigger the positive obligations inherent in Article 3. The Court noted in particular that were the asylum seekers to be correct in arguing that they should not be required themselves to discharge this burden by reason of their poor English and lack of contacts in a strange country, then the state would be under a greater obligation to asylum seekers than to other needy members of the community. 

 

Territoriality

 21.               There are two recent decisions of considerable interest as to the territorial reach of the Convention.  First, in R (Farrakhan) v Secretary of State for the Home Department[28] the Court of Appeal held that Mr Farrakhan enjoyed the benefit of Article 10 notwithstanding that he was living in the USA, outside the territorial jurisdiction of the Convention, and had been refused a right to enter the United Kingdom.  In R (Ullah) v Special Adjudicator[29] the Court of Appeal held that a decision to remove an alien to a country which did not respect the right to freedom of religion would not infringe the Human Rights Act where the nature of the anticipated interference with that right in the receiving state fell short of ill-treatment for the purposes of Article 3.  However, as the Court recognized, its decision has wider implications by reason of the reasoning which underpinned it.  In short, the effect of the decision is that where the Convention is invoked on the basis that an alien, refused the right to enter or remain, is likely to suffer interference with his Convention rights other than Article 3, the English Courts are not required to recognize that those other Convention rights are or maybe engaged.  This decision has attracted considerable comment and much unease, not least because the Strasbourg Court has never excluded the possibility that a Convention right other than Article 3 can be engaged in cases where a removal decision has been made.  However, leave to appeal to the House of Lords has been granted. 

 

Environmental Rights

 22.               Somewhat unpredictably, environmental rights have fared rather better domestically than they have in Strasbourg, despite the initial promise of  Lopez Ostra v Spain[30] and Guerra v Italy[31]. It will be recalled that in Lopez Ostra  the Strasbourg Court decided, for the first time, that Article 8 could be violated by ?severe environmental pollution?. In Guerra the Court went even further by finding a breach of Article 8 when the local council failed to inform the residents of a village of the dangers of pollution arising from a nearby chemical plant. 

23.              However, the dramatic contrast in the two main air noise cases decided during the past year show that the Strasbourg Court appears now to regret the encouragement which it gave to environmental claims, whereas our domestic courts seem minded to foster the development of an environmental tort out of the fertile soil of Article 8. So, in  Dennis v. Ministry of Defence[32], Buckley J ruled that the MoD (acting on behalf of RAF Wittering) was liable both in nuisance and under Articles 8 and 1 of the First Protocol to the owners of a nearby stately home.  However, shortly afterwards the Grand Chamber of the Strasbourg Court decided in Hatton v United Kingdom[33] that the applicants? Article 8 rights had not been infringed as a result of the implementation of a new night flight scheme at Heathrow in 1993 which the applicants complained had led to an increase in nighttime aircraft noise.  Indeed, the judgment of the Grand Chamber goes much wider than its decision on the facts of the case and seems to us to be of the greatest importance for the future of environmental human rights generally.  Not only did the Court go out of its way to reiterate  ?the fundamentally subsidiary role of the Convention? and to stress that ?in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight?, it also stated that although environmental protection should be taken into consideration by Governments in acting within their wide margin of appreciation and by the Court in its review of that margin ?it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights?.  And the Court went on ?whilst the state is required to give due consideration to the particular interests the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left to choose between different ways and means in meeting this obligation.  The Court?s supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.? 

24.              Our view is that the decision in Hatton represents something of a body blow for those who advocate human rights law as an effective vehicle for challenging environmentally controversial government policy and decisions.  In going out of its way to stress that environmental rights have no special status and are not deserving of any special protection, it seems to us that the Court was intending to sound a clear message as to how Strasbourg would and should assess such cases in the future.  Although, of course, it is open to domestic courts to provide more environmental human rights protection than that afforded by the Court in Hatton, we would be surprised were they to do so given that environmental decisions so often engage what domestic courts have described as the discretionary area of judgment which, since the incorporation of the Convention, our courts have been increasingly inclined to acknowledge.  In short, the decision seems to us to be a serious set back for those who would wish to see the courts intervene more actively to protect and vindicate environmental human rights.  

 

The Development  of a Privacy Right

 25.               Here, the situation is reversed.  Whilst our domestic courts appear to be unwilling to recognize a free standing privacy right actionable under Article 8, such a right continues to flourish in Strasbourg, which was driven to criticize the lack of protection in the United Kingdom for privacy rights in Peck v United Kingdom[34]. It will be recalled that the Strasbourg Court concluded that the remedies available in English law for breach of privacy, including the remedial powers of the press watchdogs, fell far short of the requirements of Articles 8 and 13. Admittedly, the case related to the law before the Human Rights Act came into force, but despite the initial hopes of the pro-privacy lobby, and corresponding fears of the media, the landscape has changed very little since Mr Peck found his CCTV image splashed all over the tabloid media. 

26.               The potential right to privacy, of course, had a bright start, notably in the hands of Sedley LJ,  when the Court of Appeal decided as a preliminary issue in Douglas v Hello! Ltd[35]  that rights of privacy and freedom of expression may be relied upon by parties in private litigation. However, as we pointed out in the introduction, the tort of privacy, which for some years now has been hyped up almost as much as the wedding couple themselves, was put very firmly back in its box when the case came to be decided on its merits and the Chancery Division found that the unauthorized photographs taken at their wedding did not breach their right to privacy but did amount to a breach of commercial confidentiality.[36] 

27.               This decision has been followed by two cases, unrelated on the facts, but each signalling a bleak future for the right to privacy in the UK. In Jones v University of Warwick[37], the Court of Appeal decided that covert filming of a personal injury claimant by the insurer's enquiry agent did not breach Article 8 (or Article 6).  This was followed by Maddock v Devon County Council[38] in which the judge found that no breach of confidence arose where a local authority disclosed information in the claimant's family social work files to a university at which the claimant had obtained a place to study to become a social worker. 

28.              It is ironic that a month before Maddock was decided, the Strasbourg Court was developing the scope of the privacy right under Article 8 to increase the state?s responsibility for keeping confidential records as they are meant to be kept, namely confidential. In Craxi v Italy[39] the Court ruled that the Italian state had failed to fulfill its positive obligations under Article 8 to prevent unauthorized access to confidential files containing recordings of intercepted phone calls by the applicant, with the result that the subsequent publication of these calls in the press could be laid directly at the door of the Italian state.  Indeed, the Court not only found that it was incumbent on the respondent state to prevent access to this information but went on to find that when unauthorised disclosure has taken place, the positive obligation inherent in the effective respect for private life implies an obligation to carry out effective inquiries into such interference with private life in order, so far as was possible, to rectify the position.  This seems to us to be a profoundly important step for the Court to have taken in developing the scope of privacy protection under the Convention.  It has given to Article 8 the adjectival duty to carry out effective investigations similar to the adjectival duty which arises under Article 2.

 

The Reach of the Convention into Medical Law

 29.               In the wake of R (Pretty) v DPP[40] and Pretty v UK[41], various shibboleths of medical law have been tested for their compatibility with the Convention. Although the number of medical cases decided on Convention points is modest, there is no doubt that the Convention is leaving its mark on many areas of medical law, whether it is immunization, issues of consent, the applicability of the Bolam test or disputes arising out of artificial methods of reproduction; fertile ground, as it were, for the Convention.  A glimpse at some of the recent cases will suffice. 

30.               In Re C and F (Children) (Immunisation) the Court was asked to determine whether two girls (one aged four and the other ten) should be immunized against childhood diseases.  The children?s mother opposed immunization, their father supported it.  Both children lived with their mother but their father had parental responsibility. Sumner J held that immunization was in the best interests of the children notwithstanding the mother?s objections and in doing so he held that under Article 8 ?the court may interfere with the rights of both parents and children where to do so is to protect the health of a child?.  His decision was recently upheld by the Court of Appeal. 

31.               The adequacy or otherwise of medical treatment usually arises in prisoner cases, and in April this year the Strasbourg Court decided that  there had been a violation of Article 3 (the ?degrading treatment? limb) where the prison authorities had failed to take appropriate steps to prevent the collapse and subsequent death of an asthmatic heroin addict in custody.[42]

 32.               In the more widely publicised case where a mother had been impregnated with sperm not from her husband but from an unintended doner as a result of a hospital?s mix-up (Leeds Teaching Hospital NHS Trust v A and Others[43]), the President of the Family Division held that the biological father rather than the husband of the mother was the legal father of the twins who were conceived.  Although this was by no means central to the decision, the President had the unusual task of establishing or disentangling family ties under Article 8 as between the four adults involved, depending on how biologically close were their respective relationships with the twins.  The architects of the Convention could scarcely have foreseen that Article 8 would play a role in embryo implantation but then they may not have foreseen embryo implantation itself.  

33.               This very subject has given rise recently to litigation under the Human Fertilisation and Embryology Act 1990.  In Evans v Human Fertilisation and Embryology Authority [44], The claimant had undergone IVF treatment with a partner from whom she had subsequently become estranged. She wished to remove the embryos from storage in order to have the embryos implanted with a view to becoming pregnant, and sought a declaration that such use would be lawful, as well as an injunction requiring her former partner (one of the defendants) to consent to the use of the embryos. The former partner argued that the 1990 Act gave him an unqualified right to withdraw his consent before any embryo was used. Withdrawal of consent meant that the embryos would be destroyed.  Both claimant and defendant invoked Article 8. The Court acknowledged that both sides could lay claim to Article 8, but rejected the claimant?s argument, holding that the interference with her Article 8 rights was both necessary for the protection of the rights of all four parties and proportionate. It was entirely appropriate for the State to require that couples embarking on IVF treatment should all consent and should be able to withdraw that consent individually at any time before the embryos created in the process were used by being transferred into the woman. There was therefore no breach of Article 8. The court also rejected the claimants? submissions under Article 2 ? an embryo is not recognized as a human life; under Article 14 ? no discrimination against women undergoing IVF treatment and no breach of Article 12 was found. 

 This last case demonstrates that ? as with many Article 8 cases ? what is sauce for the goose is sauce for the gander. When family rights are invoked under the Convention, the court is normally called upon to balance equally forceful claims on those rights from either side of the case. The Strasbourg Court has recently faced a similar dilemma in the form of an application from an adoptive child who invoked Article 8 in support of her wish to establish the identity of her biological mother.[45] The Court assessed the applicant?s vital interest in her personal development versus the mother?s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions. Whilst these interests were clearly not easy to reconcile, the Court decided on balance that the mother?s rights justified the infringement of the applicant?s. 

Coroners

 34.               Closely related to the above is the impact of Article 2 on coronial law. Because of the adjectival duty under Article 2 which imposes on the state an obligation to carry out an effective investigation into deaths which occur when the deceased was in the care of the state and/or where it is alleged that the death arose as a result of the acts or omissions of agents of the state[46], a number of cases have arisen, following R (Amin) v Secretary of State for the Home Department and R (Middleton) v West Somerset Coroner[47].  It will be recalled that the Court of Appeal there held that what is required to satisfy the duty will vary with the circumstances of each particular case but those requirements may include that the investigation is not only effective but also independent, that it is prompt, that it must be capable of leading to a determination of state responsibility, that there must be a sufficient element of public scrutiny to ensure effective accountability and that the next-of-kin must have an adequate opportunity to participate.  In Khan v Secretary of State for Health,[48], the family of the deceased fell just outside the financial limits for legal aid but could not conceivably afford to fund legal representation at what is to be a 5 day inquest in which no less than 17 doctors and nurses, including various experts, are to be called to give evidence.  However, Silber J held that although adequate family participation was required, neither the Secretary of State for Health nor the state more generally was required to fund the family?s legal representation at the inquest in order to ensure that the family was able to participate. [49]  

 

The Onward March of Article 14

 35.               Even though this right is, of course, parasitic on other substantive Convention rights it has made considerable inroads into both legislation and the common law in Strasbourg and domestically. So successful has this provision been that it is easy to lose sight of the fact that it is, in fact, meant to go hand in hand with one of the other substantive Convention rights.  However, the Strasbourg Court has become increasingly oblivious to this requirement and it seems at present that a mere reference to one or more other Convention rights is enough to engage Article 14. 

36.               Domestically, there are two areas where Article 14 has featured prominently.  The first is in the realm of landlord and tenant, specifically the issue of tenancy succession where the putative heir to the tenancy was the same sex partner of the deceased tenant.  In Mendoza v Ghaidan[50], the Court of Appeal held that a gay couple should be treated in the same way as a heterosexual couple for the purposes of succession rights under the Rent Act 1977.  In doing so, the Court placed significant reliance on Article 14 and the decision seems to highlight the broad sweep of the anti-discrimination provisions now held to be available under the Convention and thus under the Act.  

37.               Interestingly, the Strasbourg Court has been so anxious to eradicate Article 14 incompatibilities in Contracting States that it was prepared to adjudicate on a Mendoza type application where the applicant himself was dead, there were no heirs with any residual interest in the property, and thus no-one who could conceivably qualify as a ?victim? for the purposes of Article 34: see the decision of the First Section in Karner v Ausria[51] (but note the robust dissent by Judge Grabenwarter). 

38.               The other important area in which Article 14 has had a significant impact has been in the regime of benefits and pensions payable to widowers under various social security acts which have now been declared incompatible with the Convention: see R (Hooper and Others) v Secretary of State for Work and Pensions[52] where the Court of Appeal ruled, unsurprisingly, that the non availability of widows' benefits for widowers under the Social Security Contributions and Benefits Act 1992 was contrary to Articles 14 and 8.

 

Other Developments

 39.               It is impossible within the confines of this Article to refer to all the developments which have taken place other than in our domestic courts and in Strasbourg but the following represents our selection of those of which we are aware which seem to us to be of particular interest. 

 40.               The first is the recent publication of the draft EU Constitution which, first, seeks to incorporate the European Union Charter on Fundamental Rights into the EU Treaties which would make the Charter legally enforceable and, secondly, would require the EU itself to accede to the Convention thereby obliging the EU institutions themselves to act compatibly with the Convention.  The proposals have not met with unanimous approval since the Charter goes much further than the Convention in terms of the rights which it protects, specifically economic, social and cultural rights which some believe are much too open-ended, not to say controversial, to merit legal enforceability by the Courts.  However, whatever the merits of that argument, it may be only a matter of time before, one way or another, the Charter becomes incorporated into our domestic law, even if this is only through the route of the ECJ.

 41.               Secondly, the Act and the Convention continue to impact on policy, decision-making and legislation.  It is, of course, difficult for practitioners and academics to assess just how extensive and effective this impact is but at a recent ALBA meeting the Attorney General assured us that the Act was having what he described as a real impact on policy makers, decision makers and the promoters of legislation.  The importance of the Act in this sphere should not be underestimated.  Indeed, it seems to us to be at least as important as the decisions of the Courts.

 42.               Thirdly, a decision is awaited as to whether England and Wales are to have their own Human Rights Commission.  It is recalled that Northern Ireland already has its own Commission and it seems that Scotland is to get one too.  It would be strange indeed were England and Wales to be left on the sidelines. 

 43.               Finally, on 1 July 2003 Protocol No 13 to the Convention came into force.  This bars the death penalty in all circumstances, including crimes committed in times of war and imminent threat of war.  A development of some significance, perhaps, given the times in which we live.

 Conclusion
 

44.               It is hardly surprising that human rights cases have attained the prominent place that they occupy in the British media.  The blend of soft philosophy and sob story, plus an occasional welcome poke in the eye for politicians, is the very stuff of journalese.  However, the fact that human rights cases form a relatively novel legal category should strengthen not undermine the desire to take them seriously.  For this reason we welcome the relative austerity of the past year?s jurisprudence; weighty and enlightening judgments such as those of Lord Hoffman in Begum and Stanley Burnton J in KB will ensure that human rights decisions, like other precedents, are coherent enough to demand respect.

Postscript

Damages

In three conjoined appeals, Anufrijeva v Southwark LBC; R (On the application of M) v Secretary of State for the Home Department; R (on the Application of N) v Secretary of State for the Home Department [53] the Court of Appeal has taken the opportunity to formulate clear guidance on when a failure in the provision of welfare services should be said to engage Art. 8; and, where Art. 8 is infringed, whether damages should be the appropriate remedy. The basic rationale for any approach to these "maladministration" cases should be that an Art.8 interference does not arise unless the state's failure to provide is obviously culpable and there must be evidence that the claimant's family was at risk, particularly where children are involved. the decision not only impacts upon allocation of resources in housing cases  but also on asylum cases (as in Mambakasa and N), since the Court went out of its way to stress that the demands on resources would be significantly increased if states were to be faced with claims for breaches of Art. 8 simply on grounds of administrative delays in granting asylum this judgment goes much wider than the decision on the various facts of these appeals in reminding all and sundry of the rationale for remedies for human rights breaches; that in most cases it is the cessation of the infringement that is the primary concern and any question of compensation will be of secondary, if any, importance. Alternative remedies including, of course, the traditional prerogative orders, should be considered in most cases before damages.

 

Privacy

A recent ruling by the House of Lords in Secretary of State for the Home Office v Wrainwright [54] is the latest setback in this area. Their Lordships rejected the claimants' argument that trespass should be used as a vehicle fore an Art.8 privacy action to challenge overzealous prison searches. Even Peck seems to have provided no incentive to allow sufficient definition to the legal principle of privacy to ground legal actions in our courts; indeed, the House of Lords seemed content to view Peck purely in the light of its specific facts, suggesting that all the Strasbourg Court was calling for was a remedy available for the unauthorised use of CCTV material.

Coronial Powers

The UK courts have attached considerable significance to the requirement that Art.2 is not complied with unless the investigation adequately involves the victims' family members. This requirement was first ventured by the Strasbourg Court in a case that involved death by state negligence (rather than as a direct result of action by state agents) in Edwards v United Kingdom [55]. As a result of this case, two appeals have succeeded in the higher courts. In R (On the Application of Amin) v Secretary of State for the Home Department [56] the House of Lords have ruled that this duty, when carried out in the form of an inquiry, is not fulfilled unless accompanied by the appropriate publicity and involvement of the next of kin. And in Khan [57] the Court of Appeal decided that Silber J had been wrong to hold that the State's Art. 2 obligation to investigate the death of the applicant's daughter as a result of alleged medical negligence had been fulfilled by the combination of the police investigation and the hospital's own inquiries. The more serious the events, the more intensive the process of scrutiny had to be. The natural occasion for the effective judicial inquiry into the cause of death which Art. 2 required was the forthcoming coroner's inquest. Nor would such an inquest be an effective one unless the deceased's family could play an effective part in it.

 

 

 

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[1]               1 Crown Office Row, Temple.

[2]               Academic Consultant to 1 Crown Office Row, Temple.

[3]               Douglas v Hello! Ltd [2001] QB 967.

[4]               [2003] 1 AC 1163.

[5]               [2003] 1 All ER 935.

[6]               Application No.: 00029392/95(2002) 34 EHRR 3

[7]               CA (Lord Phillips MR, Hale LJ, Latham LJ) 31/7/2003

[8]               [1995] 2 AC 633.

[9]               [2003] 2 WLR 388.

[10]             [2003] 2 WLR 1174.

[11]            [2003] 3 WLR 568

[12]             Para 70.

[13]            TLR 1/8/2003

[14]             Public Law Autumn 2000 476.

[15]            (p 492)

[16]            [2003] 3 WLR 283

[17]           (2003) UKHRR 148

[18]             [2003] 3 WLR 185

[19]            R on the application of KB and ors v Mental Health Review Tribunal [2002] EWHC 639 (Admin)

[20]            QBD Administrative Court (Moses J) April 14 2003

[21]            (2003) ACD 131

[22]          CA (May LJ, Arden LJ, Keene LJ) March 13 2003

[23]            QBD Administrative Court (Richards J) March 3 2003

[24]            Administrative Court (Silber J) February 14 2003 [2003] EWHC 207

[25]            (1995) Application No 00026373/95

[26]             [2003] 3 WLR 365.

[27]            CA (Kennedy LJ, Peter Gibson LJ, Sedley LJ)  September 23 2003

[28]             [2002] 3 WLR 481.

[29]             [2003] 1 WLR 770.

[30]             (1994) 20 EHRR 277.

[31]             (1998) 26 EHRR 357.

[32]             [2003] EWHC 793.

[33]             Application No 36022/97, July 8 2003.

[34]             Application 44647/98.

[35]             [2001] QB 967.

[36]             [2003] 1 All ER 1087.

[37]             [2003] 1 WLR 954.

[38]            QBD (HH Judge Reid QC) August 13 2003

[39]            (Application No 25337/94)First Section, 17 July 2003

[40]             [2002] 1 AC 800.

[41]             (2002) 12 BHRC 149.

[42]            McGlinchey and Others v  United Kingdom April 29 2003 Application No.: 00050390/99

[43]             (2003) Lloyd's Rep Med 151

[44]            Evans v The Human Fertilisation & Embryology Authority and others   October 1 2003 [2003] EWHC 2161 (Fam) (Wall J)

[45]              Odičvre v France Application No.: 00042326/98 February 13 2003

[46]            The Strasbourg Court recently gave this duty fresh emphasis in Finucane v United Kingdom, Application No. 00029178/95 July 1 2003

[47]             [2002] 3 WLR 505.

[48]        (2003) EWHC 1414 Admin

[49]           The appeals in both Amin and Middleton have now been heard by the House of Lords and the judgment in Amin, as well as Khan, are dealt with in  the  postscript below. 

[50]             [2002] 4 All ER 1162.

[51]             Application No 40016/98, First Section, July 24 2003.

[52]           (CA) June 18 2003 [2002] EWCA Civ 813

[53]            Court of Appeal October 16 2003; [2003] EWCA Civ 1406

[54]            Secretary of State for the Home Department v Wainwright [2003] UKHL 53

[55]            (2002) 35 EHRR 487

[56]            [2003] UKHL 51

[57]            [2003] EWCA Civ 1129

[e]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Related links

Author(s):

Rosalind English
Philip Havers QC

 

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