Monday 10 September 2012

Human Rights ~ recent news

Updated 11th September

The European Court of Human Rights - based at Strasbourg - has announced that from 1st November 2012 its President will be Dean Spielmann from Luxembourg.  He will replace the current President - Sir Nicolas Bratza.  Mr Spielmann was born in 1962 and obtained his Bachelor's law degree at the Catholic University of Louvain and went on to obtain a Master of Laws at Cambridge in 1990.  He was a member of the Luxembourg Bar from 1989 to 2004, a member of Luxembourg's Advisory Human Rights Commission (2000-04) and a Member of the European Union Network of Independent Experts in Fundamental Rights (2002-04).  In June 2004 he became a Judge of the European Court of Human Rights.

The Christianity Cases:

At the court, the United Kingdom is now engaged in a number of important cases - see Hudoc.   The cases are Chaplin v UK; Eweida v UK; Ladele v UK; and McFarlane v UK.  The four cases are brought by practising Christians who complain the the law in the UK  does not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.  The hearing at the court held on 4th September was to consider the admissibility of the cases and the merits.  The court's decision will be announced later. 

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.

A considerable number of bodies and individuals have been permitted to intervene including in the Ladele case a former Archbishop of Canterbury (Lord Carey):

in all cases: Equality and Human Rights Commission, The National Secular Society, Dr Jan Camogursky and The Alliance Defense Fund;

in Eweida and Chaplin v. the United Kingdom: Bishop Michael Nazir-Ali, The Premier Christian Media Trust, The Right Reverend Dr Peter Forster, Bishop of Chester, and The Right Reverend Nicholas Reade, Bishop of Blackburn, Associazone "Giuseppi Dossetti: i Valori", Observatory on Intolerance and Discrimination against Christians in Europe;

in Ladele and McFarlane v. the United Kingdom: Liberty, The Clapham Institute and KLM, The European Centre for Law and Justice, The Right Reverend and Right Honourable The Lord Carey of Clifton, The Fédération Internationale des ligues des Droits de l’Homme (FIDH, ICJ, ILGA-Europe).

Caedmon's Cross
I recently stood by Caedmon's Cross in the Churchyard at Whitby.  It was at Whitby Abbey that the Synod of 664 was held which is considered to be a step in the Romanisation of the Church in England.  (The Reformation came to England almost 900 years later).  I could not help but think that it is a pity that rights in relation to religious belief continue to be hard fought so many years later in our generally very tolerant country where, at least historically, Christianity has been deeply rooted.  Though, having said that, there are some signs of increasing intolerance.  I have not particularly formed views as to the rights and wrongs of these individual cases but cannot help but wonder why the particular problems could not have been solved in a better way without recourse to law.  Nevertheless, it is clear that strong and entrenched views abound.  A very good, detailed and interesting post on the cases is at UK Human Rights blog- Rosalind English - Are Christians really marginalised in this country?

See also Joshua Rozenberg's article on the Ladele case - Religious beliefs should be respected when rights are not impeded.  A further good post is to be found at Law and Religion UK - Marginalised Christians?  Chaplin, Eweida, McFarlane and Ladele - again.

The Court of Appeal (Civil Division) judgments are:

Ladele v London Borough of Islington [2009] EWCA Civ 1357 - Lord Neuberger MR, Dyson and Smith LJJ

Eweida v British Airways  [2010] EWCA Civ 80 - Sedley, Carnwath and Smith LJJ.

Neither case was heard by the Supreme Court.  The Supreme Court refused leave to appeal in Ladele's case on 4th March 2010 (application considered by Lord Phillips, Lady Hale and Lord Kerr) and Eweida's case on 26th May 2010 (application considered by Lords Saville, Walker and Kerr).  The Supreme Court website does not offer any reasons for the refusals - it merely states REFUSED.  (More recently, the court's website gives short statements about refusal - e.g. here).

A Bluffer's Guide:

David Hart QC has offered a Bluffer's Guide to Human Rights Courts - see UK Human Rights Blog 10th September.

New judges at Strasbourg:

See the earlier post - New "elected" judges at Strasbourg  Mr Paul Mahoney from the UK takes up his post on 1st November 2012.

The deadline approaches:

The Commission on a British Bill of Rights second consultation draws to a close on 30th September - see the earlier post.  The foreword to the second consultation paper (pdf - 30 pages) states that no decisions have yet been reached by the Commission on the key question of whether to recommend a UK Bill of Rights.  The paper also asks whether additional rights should be introduced such as rights to equality, trial by jury, rights for victims etc.  The paper concludes by setting out a set of 15 questions upon which views are sought.

The deadline for responses is 30th September 2012.  They may be sent to the Commission by email or by post at the address here.  

The Human Rights Tour:

Out of concern for the future of human rights protection in the UK, the  British Institute of Human Rights has organised a tour of the U.K. in the period from 17th September to 12th December 2012.  The Institute states that:

Human Rights are for everyone.

Human Rights are the result of centuries of struggle, by groups and individuals who suffered persecution or neglect at the hands of an often all too powerful state.

Human Rights became international law after the horrors of World War II when, thanks to the advocacy of civil society, the international community adopted the Universal Declaration of Human Rights.

Human Rights are under attack. Too many of our political leaders and some sections of the media want to go backwards, not forwards. Join the fight back at the BIHR 2012 Human Rights Tour – coming soon to a city near you!

Human Rights go to the heart of the kind of society we want to be. Learn more, and get involved, at the 2012 Human Rights Tour.


  1. 10 September 2012
    I am fascinated to read this blog about Human Rights as the UK seems to be in a dither as to whether or not we should actually have them or not.
    Habeas Corpus is still used but for how much longer?
    Will a Bill of Rights be superior to any EU legislation?
    Will Luxemburg trump London?
    Will the individual nations of Northern Ireland, Wales, Scotland and England have different and separate Rights?
    What happens if Scotland becomes Devolution Max?
    What happens if Scotland gains full independence?
    Whose rights prevail when there are competing interests such as people who are deemed to be mentally incapacitous?
    Whose rights prevail when there are competing interests such as people who are deemed to have mental health problems – and don’t forget that the Department of Health has stated that a quarter of the population at some point in their
    lives has mental health problems/illness.
    Can it ever be justified under Article 8 of the Human Rights Act to detain a person on grounds of “health and safety” when the person him or herself wishes NOT to be placed in detention regardless of what anyone else says?
    This is the root problem in my opinion of Mental Health and Mental Capacity legislation that it is the “Nanny knows best” mentality that removes
    individual freedom of liberty, freedom of expression, freedom of thought and freedom to make choices.
    In effect, I hope that the Mental Health Act 2007 and Mental Capacity Act 2005 are demolished by the Human Rights legislation.
    Rosemary Cantwell
    law student

  2. Anonymous - So many points! There are certainly politicians in the UK would wish to curtail "human rights" and, in particular, access to the European Court of Human Rights. These politicians are backed up by elements in the popular media but the latter will be screaming about their rights if and when Lord Justice Leveson recommends a statutory regulation.

    Habeas Corpus exists and I have not heard of any attempt to replace it but recourse to it is rarely needed today since other procedures exist.

    You now begin to mix the EU and Human Rights. The European Convention on Human Rights is a product of the Council of Europe and not the EU. However, the EU does not ignore the Convention and work continues towards the EU itself being directly subjected to the European Convention on Human Rights.

    EU law has a supremacy over national laws. A complex topic here which covers a considerable number of pages in the textbooks.

    It is possible the separate parts of the UK could end up with separate rights. For example, there are a number of issues peculiar to Northern Ireland. If Scotland goes independent then it will no doubt do its own thing and would (I think) have to sign up separately to the European Convention on HR. However, whatever happens internally, the UK (or what remains of it) would be bound by the European Convention.

    Mental Health is another major topic. Many of the legal questions which arise in this area of the law are dealt with by the Mental Capacity Act and by the Court of Protection in the event of disputes. I doubt that the existing legislation in the mental capacity area will be demolished by any form of human rights legislation. Legislation in the UK is generally well compatible with the European Convention. Only in quite a small number of cases have UK courts made declarations of incompatibility. The UK has been found wanting in many areas by the European Court of HR but this tends to be in areas where older legislation or common law prevailed. The UK has generally modified its law so as to comply with the Convention.