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Tag Archives: European Court of Human Rights

Conservatives’ Bill of Rights: suddenly they are all relativists now

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Quick, we need some long-held, deeply felt convictions – and we need them fast. You know: stuff we can bung in a written UK constitution based on centuries of history, shared values and culture – that sort of thing. Why? Because that way we can keep the European Court of Human Rights off our backs.

The Conservative Party, you see, has noticed that the Strasbourg court – known for riding roughshod over UK government actions – is sometimes willing to let countries get away with things. But only if those countries have long-held, deeply felt convictions that emerge from their history, shared values and culture – and are written into their constitution.

Britain doesn’t have a written constitution, hence a new “UK Bill of Rights” that the Conservatives favour. Dominic Raab, the Justice Secretary, has now announced just such a bill to amend the Human Rights Act.

The rationale used to justify a new Bill of Rights – that human rights are relative, not absolute – would not be out of place if uttered by a 1970s leftie lecturer at a bog-standard polytechnic. Here is arch-Tory Charlie Elphicke introducing his Bill of Rights (which Raab was involve with) in a parliamentary Private Member’s Bill in 2013:

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights.”

So Strasbourg judges have been too objective, apparently. Elphicke is wholly insistent on this subjectivity point, rejecting the principle that judges should come to decisions on a straightforward objective reading of the law. They should take account of each country’s history, shared values and culture before making decisions on their governments’ alleged breaches of human rights.

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Twitter joke and Lord Judge-made law – without the ECHR bits

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It seems that giving the European Convention on Human Rights a good kicking is all the fashion at the moment. One expects the bully-boys of the Conservative Party to give the ECHR a bit of a bashing, aided at times by members of the rival UKIP gang. But when three well-dressed mature gentlemen with fob watches and silver handled canes hoved into view, surely one might have thought the bovver boys would flee, the decent old coves pick up the poor battered fellow, dust him down, press a half crown into his begrimed palm and send him peaceably on his way.

But no. Instead Lords Judge and Sumption and Laws LJ (for it was they) launched their hand-finished Grensons in a few well-aimed kicks at the supine body of law that is Strasbourg jurisprudence then stood back to let the nasty parties finish the job.

Former Lord Chief Justice Lord Judge is latest to give his view and his UCL lecture is here: Constitutional change; unfinished business. Lord Judge’s intervention has given rise to a curious suggestion – that in at least one case, Paul Chambers v DPP, (the Twitter joke trial) barristers deliberately avoided making ECHR Article 10 (freedom of expression) points as they knew he was “unfavourable” to them. Read the rest of this entry

Von Hannover and Axel Springer: How big a victory for press freedom?

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Two cases at the European Court of Human Rights have been hailed as a victory for the press in its struggle against encroaching privacy laws – but editors would be wise to hold the order for new long lenses. Nor should footballers’ girlfriends be licking their highly glossed lips in expectation of newspaper cash taps being turned on for their kiss and tell stories.

The cases, Von Hannover v Germany (No 2) and in particular Axel Springer AG v Germany should be seen in a peculiarly German context in which “human dignity” and hence privacy, has tended to receive greater protection than in other European countries – including Britain.

It is true that the court in both cases acknowledged that readers and viewers might have a legitimate interest in public figures – but not necessarily just because they are famous. There has to be a context, described as “events of contemporary society” – a public interest reason for publication.

In the Axel Springer case reports about a TV actor arrested and prosecuted for cocaine possession had been injucted by the German courts  – a situation that would be unheard of in Britain. The judgment acknowledged a public interest in legal and judicial matters where the German courts had sought to claim no one should have an interest in the actor beyond his TV role.

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Ken Clarke defends plans for government role in judicial appointments

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The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

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Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

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One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.

Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?

But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story:  “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”

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Jemima Khan and Max Mosley in super-injunction tangle

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Warning: This post retails gutter press tittle tattle from the start. It then descends into a serious legal discussion of injunctive relief – which is not as sexy as it sounds. Sorry.

Jemima Khan has denied involvement in an act that would have brought her down in the eyes of all right-thinking individuals: seeking an injunction against the press. Max Mosley, meanwhile, has lost his attempt to force newspapers to warn people before they publish stories about their private lives. Such pre-notification might allow an errant husband to square things with his wife before the world of journalism appears at their front door. It is more likely, though, that Mr Mosley would have used this valuable time to awaken a judge from his slumbers and get him to issue a quickie super-injunction.

There used to be a simple legal principle: if something is true, you can say it (subject to various issues such as confidentiality). In the weird and wacky world of the super-injunction (or even the ordinary bog-standard injunction) if people say it, even if it’s true, “they should  expect a knock at the door in the next 48 hours and they should take their toothbrush to court, because they can expect to spend a very long time in Pentonville,” as media lawyer Mark Stephens at Finers Stephens Innocent put it. This even as a result of a little Twitter chitter-chatter.

It sounds pretty draconian. Oh, all right; Stephens is exaggerating a little, but breach of an injunction is a contempt of court. This allows a judge to punish the offender summarily on his own judgment (juries don’t come into it) and choose from a range of penalties including large fines or imprisonment for up to two years. So, actually, it is pretty draconian. Best to pack a few toothbrushes.

The judge can do all this even though there has been no full hearing of the case that lies behind the injunction. In other words the issues have not been tried and it may well be that, ultimately, the applicant has no case, even under the European Convention on Human Rights Article 8 (Everyone has the right to respect for his private and family life, his home and his correspondence).

Misdeeds

An interim injunction is intended to halt, say, a newspaper’s publication of a star’s sexual misdeeds. It is given pending a full hearing of the substantive case. The injunction may be issued without the newspaper’s lawyers even having an opportunity to put in a defence (ex parte in the old jargon, now known as an injunction without notice). The judge simply has to decide whether, if the newspaper published but then lost the (later) substantive case, the loss to the star would have been so great that it could not be remedied by damages. And the judge is always going to decide, yes, publication now cannot be undone later, so it is better, on balance, to ban publication now.

It is true that the judge must also have the Convention open at Article 10 (Everyone has the right to freedom of expression) and the Human Rights Act 1998 S. 12 when he makes the order and hence “be satisfied that the applicant is likely to establish that the publication should not be allowed” – in other words that there is a good case for a ban and that the case is likely to be sustained in the substantive trial of the issues.

Doubtless the learned judge will never have heard of half the stars who appear in front of him in these sad circumstances since he will be no avid reader of the yellow press (“Who, might I ask, is Mr X?” “He is a popular televisual entertainer, m’Lud”). But it is very likely that, without a full examination of the implications of Article 8, he will plump on the side of caution and give the injunction.

The problem, for freedom of the press, is that once the applicant has the interim injunction, he has no incentive to move to the substantive case. It would be costly, long drawn-out and, in particular, he might get the wrong result since, once the arguments have been put in full, the judge might decide there is no good reason to continue to ban publication.

Consequences

So the issue remains in limbo but with the threat of terrible consequences if someone lets the cat out of the bag. It is very difficult to challenge interim injunctions since the judge has a broad measure of discretion in issuing them. As long as his thought processes are as outlined above, he has acted wholly correctly.

Perhaps, as time passes and the star fails to bring his case to court, a challenge could be made. Perhaps the paper could claim the star had no intention of bringing a case; he just wanted the injunction. He would have breached rules of equity (since injunction is an equitable remedy) in making the claim. He who comes to equity must come with clean hands (ie with honest intentions) and not hands behind his back and fingers crossed as he addresses the judge.

But the fact is that these cases often remain in limbo, the case never heard, the chance to assert the legal right of freedom of the press never offered. This is the concern of the Liberal Democrat MP for Birmingham Yardley, John Hemming, who said in Parliament: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” He noted too that the matter, while in this limbo, also remained apparently sub judice so the legal issues cannot be discussed even though there may be no intention by the plaintiff to bring the matter before a judge again.

The use of injunctions in this way clearly has implications for  freedom of the press, but there is another issue at stake. If we are to allow judges to make privacy law (David Cameron has said he doesn’t want to, but has offered no alternative) then they are making it in a scrappy, partial way. The important cases are not coming to court, the issues are not being raised, the principles not being enunciated. We just know we can’t say things that are true without knowing quite why.

A discussion on the Lord Neuberger superinjunction report and Hemming’s naming of a famous footballer is here

The Max Mosley case in the context of Leveson Inquiry and privacy law is discussed here

The Max Mosley European Court judgment is here

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