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Free Human Rights Dissertation

A critical analysis of the effect of Article 8 and Article 10 of the European Convention on Human Rights on newspapers in the UK with an emphasis on libel laws

Abstract

This dissertation is a critical analysis of the effect of both Article 8 and Article 10 of the European Convention of Human Rights on the media in the UK with a special emphasis on the press and libel which has absorbed most of the advances the Human Rights Act enshrined into UK law in 1998. The hypothesis of this study is that although both rights have been absorbed into the UK neither appeared into a vacuum and furthermore they have not been absorbed with the equality which the rhetoric of the judiciary would suggest. There is a ‘continental drift towards privacy’ clearly prevailing in the UK and the effects are being most sharply felt by the press who are so often at the vanguard of free speech for themselves and freedom of expression for all. In no area can this be demonstrated more clearly than in the area of libel which has sought to strike a balancing exercise between the two rights. The libel laws are heavily stacked towards the individual and act as an obstacle to freedom of expression. This dissertation will carry out extensive secondary case research to establish the effects of convention arguments in the courts in libel actions and attempt to divine the future direction and analyse the detailed recommendations of the Coalition Government in the Draft Defamation Bill of 2011.

Introduction

The Human Rights Act 1998, now woven into the fabric of the British legal landscape, represents a sea change in the endless dance of death between freedom of expression and the right to privacy between the state and the media, paparazzi and celebrities, journalists and editors and now even between social networking employees and employers. But just how far has the UK comeThat Britain, traditionally a country without any law of privacy[1], now has an anchor for the right to privacy and the freedom of expression in the European Convention on Human Rights can be partially attributed to a media which has, ironically, committed some of the gravest sins against privacy: for example taking pictures of the (then) retired actor Gordon Kaye in 1991 while he was recovering in hospital after sustaining severe head injuries[2]. The Court of Appeal ruled that there was no satisfactory legal remedy for what the judges admitted was a “monstrous invasion of privacy”:

“Any reasonable and fair-minded person hearing the facts which Glidewell L.J. has recited would in my judgment conclude that these defendants had wronged the plaintiff. I am therefore pleased to be persuaded that the plaintiff is able to establish, with sufficient strength to justify an interlocutory order, a cause of action against the defendants in malicious falsehood. Had he failed to establish any cause of action, we should of course have been powerless to act, however great our sympathy for the plaintiff and however strong our distaste for the defendants’ conduct. This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens.”[3]

Bingham L.J uses the settled position in Germany to contrast the tortured reasoning that the British courts have had to apply to invasions of privacy for generations. The confusion of the court in Kaye is a good example of when overlap occurs between the various actions that UK law has developed to deal with issues of privacy. The plaintiff in Kaye argued four separate ways: Libel, malicious falsehood, trespass to the person and passing off. This can be contrasted against the position in France where strong privacy laws enshrined in the constitution inhibit free speech and allowed Francois Mitterand to conceal his illegitimate daughter until she reached the age of 19[4]. On the flipside of privacy, Britain has a very self congratulatory proud tradition of extolling the merits of free speech and the freedom of the press, a freedom, as Robertson forcefully argues, which was, prior to the Human Rights Act, a hollow concept that any government could detract from at whim[5]. As a corollary, privacy could be protected indirectly through the development of laws such as trespass and official secrets while freedom of speech could be eroded indiscriminately to bolster a state that was seeking to protect its own interests. Robertson observes on this paradox:

“’Freedom of the Press’ remained a potent phrase, but the fact that it was protected by unwritten convention rather than by a constitution meant that there was no external brake to stop Parliament and the courts moving to restrict it in particular ways, as the mood and temper of the times seemed to require. Britain remained a country where ‘everything is permitted which is not specifically prohibited’ but the specific prohibitions became much more numerous, because they never had to justify themselves against the standards set by Article 10.”[6]

The final sentence of Geoffrey Robertson’s observation suggests that article 10, now widely cited in the British courts and developed by an illustrious line of European jurisprudence from Strasbourg, is now a new standard and represents a paradigm shift. Although the Human Rights Act came into force in 1998 it is 1979 which marked the turning of the intellectual tide when the European Court of Human Rights delivered a devastating judgement against the British courts’ attempts to suppress the publication of a remarkable piece of investigative journalism which exposed the harmful effects of the drug Thalidomide.[7] Although, to a greater degree than article 8[8], article 10 is qualified[9] and subject to certain restrictions there is a further section in the Human Rights Act itself which demonstrates the importance of freedom of speech and which distinguishes the right from the right to privacy:

“(4) The court must have particular regard to the importance of the Convention right to freedom of expression”.[10]

It is crucial to note that s.12(4) does not give article 10 what is called “presumptive priority”[11] over other rights, most notably privacy, despite the judicial rhetoric and that individuals cannot currently bring a free-standing cause of action based on ECHR (newspapers are private bodies) but must instead “anchor” their claim to an existing common law action, such as breach of confidence: the Human Rights principle affect has been one of absorption of convention rights into existing common law actions rather than creating a new tort of privacy[12] . This dissertation will critically assess privacy in the UK and its’ interplay with freedom of expression both before and after the passing of the Human Rights Act in the UK in 1998 through the lens of the press: are they having to yield to privacy in article 8 and has the human rights act only had a modest impactOr are they able to report fearlessly in the knowledge that article 10 will reinforce their positionThe hypothesis of this study is that the Human Rights Act has had a huge impact on the competing rights although, considering the history and the development of breach of confidence, a framework for protecting privacy at common law already existed[13] and with regard to freedom of expression there is a long line of pre Human Rights Act judicial dicta which has emphasised the importance of this right[14] although notably Robertson pours scorn on what he insists is purely rhetoric which obscures the fact there has been no generalised right of free expression since the Magna Carta[15]. In short the Human Rights Act and articles 8 and 10 did not step into a vacuum and must be analysed accordingly though it is debatable to what extent freedom of expression was protected in the UK prior to 1998. In determining how to balance the competing rights, however, the HRA has been vindicated in providing a framework although we are still a long way from a situation where the media can speak freely and in some areas, such as libel for example, the right to privacy is winning to the detriment of us all; the “chilling” effect on free speech still very much evident and there is no prospect of a thaw even with the promising Draft Defamation Bill in 2011[16].

The tortured history of privacy and free speech in the UK in chapter 1 will be analysed before examining both of the fundamental rights at stake in chapter 2. Chapter 3 will address the law of libel in the UK and secondary case research will be conducted into libel cases involving newspapers and the mediafrom 2008 to 2011. This chapter will also provide an exhaustive look at the latest case law in relation to libel including the cases of Mr.Justice Eady up to his very latest in 2011[17] as well as case studies of important libel cases including the seminal Max Mosley and the News of the World trial[18] which was Mr.Eady’s most high profile case and triggered a barrage of criticism. This chapter will conclude by determining whether the claim by Paul Dacre of the Daily Mail, that Mr.Justice Eady is responsible for eroding free speech, is true[19]. Chapter 4 looks at the position in France in order to extract any useful lessons for privacy reform in the UK while chapter 5 draws all the strands of this study together to assess the impact of the Human Rights Act, in the shape of articles 8 and 10, on privacy and free speech in the UK. The striking case of Wikileaks will also be examined in this chapter alongside the growth of the so-called “super injunction” as well as the much welcomed reforms of the coalition government[20]. Finally chapter 6 will provide recommendations for the future based on conclusions drawn from the previous five chapters. With the historic multitude of laws enhancing privacy the role of the human rights act in promoting freedom of speech is remarkably important and Robertson makes an inspired case for article 10:

“The Human Rights Act 1998…provides what previous governments, and generations of judges, have never believed politic to entrench either in statute or common law, namely a guarantee of freedom of expression, a promise that “speech” will have a presumption made in its favour by any court invited to suppress it. This covenant – which enters British law by way of the incorporation of Article 10 of the ECHR – reflects the core belief of the eighteenth century republican revolutions in France and America, adopted as an article of faith in modern Human Rights instruments, that freedom of speech is a good in itself, an essential pillar of democratic order. This is the free speech principle, which assumes that liberty is best secured by a system that protects utterances irrespective of their merit, because in a free market of ideas and opinions the good will triumph over the bad”[21].

This study will focus on the press as their struggle for free speech is a front in the battle for freedom of expression: the two are often conflated and it is the press, with its resources, who is often in the courtroom arguing for publication[22]. Thus there is no better prism through which to evaluate the impact of articles 8 and 10 of the ECHR as private individuals do not have the vast resources, since legal aid is not available, to initiate libel claims or contend with the costs of victory or defeat[23].

Chapter 1: Background and overview

A. A right to Privacy in the UK prior to 1998?

Privacy in the United Kingdom has never enjoyed the protection of statute and has remained an enigma that is referred to by convention rather than constitution[24]. Countries such as France[25], Germany[26] and America[27] have a more defined right to privacy and are often seen as providing more constitutional protection than Britain, with its’ unwritten constitution, ever has despite the levelling of the European playing field in the 21st century. The Younger Committee on Privacy met in 1972 to address this very question but the introduction of such a right was abandoned despite the committee recommending that “privacy requires additional protection”[28]. The Report followed the introduction of a Private Member’s Bill in the House of Commons that ultimately was rejected[29] and indeed there have been a few privacy Bills that have foundered in the House amid ideological ruins[30]. The influence of the report was very profound and indeed, in the words of Bradley & Ewing, was to “structure the debate for a generation”[31]. Yet it is a fallacy to say that there have been no laws that have addressed privacy to a degree. In terms of civil law: in surveillance there has been the law of trespass[32] and the regulation of interference with property[33]; in the field of private information there has been legislation to protect individual’s data[34] and also legislation for the public to have access to sensitive data held about them[35]; in the protection of trademarks, patents and copyright ideas and sensitive information are restricted from dissemination[36] as well as a whole smorgasbord of criminal laws, some ancient and obsolete[37], some common law and some statute, which have restrained newspapers[38]. The suite of laws, both criminal and civil, which enhance privacy often overlap and can influence the press although often indirectly as the anchor for a Convention Rights argument[39] which the court as a public authority under the Human Rights Act 1998 must act compatibly with[40]. The most relevant action for privacy matters in relation to the media is breach of confidence which many commentators have defined as a virtual right to privacy in all but name[41]. This equitable doctrine developed out of the case of Prince Albert v Strange[42] where the Prince had supplied various members of his family with private drawings. An employee of the prince disseminated a copy of the etchings entrusted to him to a friend. The Prince then secured an injunction against the friend and it “was held that an injunction could lie in property, trust, confidence or contract”[43]. This case is very much in keeping with the use of breach of confidence in the early half of the 20th century as a restraint on the disclosure of trade secrets[44]. Prince Albert was followed by the two cases in the 1960s that sought to clarify and define the law of breach of confidence. In Argyll v Argyll[45] confidential secrets of marriage were successfully restrained and set the benchmark for the kind of information that can be restrained even absent of a contract or a property rights violation. The classic test of breach of confidence came two years later in Coco v A N Clark (Engineers) Ltd[46] which produced the classic test, in the words of Mackenzie[47], to establish a breach of confidence: firstly that the information was of a confidential nature, secondly that it was communicated in circumstances giving rise to an obligation of confidence and finally that the information was used in an unauthorised manner[48].

This test has been gradually eroded and stripped away over the years to reveal what Mackenzie argues is a virtual right to privacy[49]. The obligation of confidence has, in particular, been relaxed from the strong bonds that were required, such as marriage[50], to mere friendship[51] sufficing to satisfy this limb of the test. In 1990 the classic case on breach of confidence arrived in the form of Attorney General v Jonathan Cape[52] which demonstrated the scope for breach of confidence to be widened to material published by the media which is in the public interest. Lord Widgery made the following observations:

“…the Attorney General has a powerful reinforcement for his argument in the developing equitable doctrine that a man shall not profit from the wrongful publication of information received by him in confidence. This doctrine, said to have its origin in Prince Albert v Strange (1849) 1 H&T.1, has been frequently recognised as a ground for restraining the unfair use of commercial secrets transmitted in confidence”[53].

The developments in the Crossman diaries saga and the Spycatcher[54] case in 1990 explicitly recognised that breach of confidence was a right to privacy in all but name but these reforms by the judiciary were halted by the Kaye case mentioned above, however, which firmly “refused to widen breach of confidence any further and reaffirmed the position that there was no law of privacy in UK law.”[55] A further dilution of the obligation of confidence occurred in Shelley Films Ltd v Rex Features Ltd[56] where, following Spycatcher and not Kaye, the concept of a reasonable man test was introduced thus making it easier to argue that the photographer in question who supplied a picture of Robert de Niro to a newspaper should have known that photography was explicitly forbidden. Five years later Laws J felt confident enough, albeit obiter dicta, to again reassert that breach of confidence was effectively a right to privacy in all but name and this was perceived to be the first signs of an emergence of breach of confidence as a right to privacy[57] two years before the Human Rights Act in 1998 came into force.

The most important case on breach of confidence so far has been Douglas v Hello! Ltd[58] which was an appeal against the decision to grant an interim injunction preventing Hello! from publishing more photographs of the Douglas’ wedding after a photographer breached the extensive security surrounding the event. The action was brought under breach of confidence coupled with a breach of privacy under Article 8 of ECHR. Although this case dragged on to 2004[59] and the Douglases’ ultimately prevailed on a breach of confidence, it is the original successful appeal against an interim injunction that prompted many commentators to proclaim a new right to privacy in the UK[60] with three of the judges in the case discussing the changing nature of breach of confidence. Sedley LJ observed:

“English law will recognise, and, where appropriate, protect, a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”.[61]

It should be pointed that Bridge L.J’s dictum[62] which effectively restricted the privacy rights of those who actively seek publicity has been distinguished recently[63] but remains a difficult authority which those seeking to establish a breach of confidence will have to hurdle if those seeking relief have themselves wanted favourable publicity Thus the almost total abandonment of the tight controls which distinguished breach of confidence is quite evident from a test which at first required a strong bond such as marriage to impart an obligation of confidence[64], then to lesser bonds sufficing such as friendship[65], to a reasonable man test[66] and finally to Sedley LJ’s observations that this limb of the test is effectively redundant[67] as the right of privacy emerges not as something which has never been recognised before like a phoenix from the flames but rather, as Mackenzie has astutely observed, recognition of the role breach of confidence has been playing since 1849[68]. Eadie J outlines the modern position:

“Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”[69]

The complementary laws outlined above such as trespass and breach of copyright all serve to augment the pivotal role of breach of confidence. The Human Rights Act did not step into a vacuum but was absorbed into existing actions such as breach of confidence: and it crucially must be analysed as such.

B. Freedom of expression and UK newspapers: last chance saloon?

The reference to the press in the UK drinking “in the last chance saloon” is derived from Sir Andrew Calcutt’s Royal Commission into the Press in 1990[70] when the then National Heritage Secretary David Mellor claimed that some parts of the media had snapped the government’s patience after numerous scandals which intruded into private grief, arguing that the media’s “sacred cash cow” of free speech should be restricted as he introduced the Royal Commission to the House of Commons[71]. Ultimately of course Calcutt came out against a new law of privacy and instead laid the foundations for the Press Complaints Commission and a code of conduct through self-regulation[72] but David Mellor’s comments deserve analysis: what was he referring to when he explicitly stated that the Press should be reined inThere is a historical common law right to freedom of expression in the UK which Laws J described as being: “…as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms”[73]. Lord Bingham of Cornhill, an eloquent defender of free speech, produced this classic observation:

“Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments…Where abuses are exposed, they can be remedied. Even where abuses have already been remedied, the public may be entitled to know that they occurred. The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one…Despite the high value placed by the common law on freedom of expression, it was not until incorporation of the European Convention into our domestic law by the Human Rights Act 1998 that this fundamental right was underpinned by statute.”[74]

Thus like privacy, freedom of expression was recognised if not eulogised long before the Human Rights Act arrived. Robertson’s criticisms of a notion of British free speech stems from successive governments introducing indirect privacy laws to curb the worst excesses of the tabloid and broadsheet press in chequebook journalism, the reporting of political scandals, undercover surveillance and entrapment[75]. There are myriad ways to hedge in what is left of free speech and the debate against the press enjoying untrammelled expression took on a life of its own in the 90s. The privacy furore in the mid 1990s reached what has been called “fever pitch”[76] after pictures of Princess Diana in 1993 working out in a gym were splashed across the front pages of the Sunday Mirror and the Mirror; a Sunday Times investigation in July 1994 uncovered two MP’s accepting cash for questions and in October 1994 the Guardian’s own investigation into allegations of sleaze in the Conservative Government led to the Guardian editor Peter Preston resigning from the PCC[77]. Throughout all of the times of crisis under both the Thatcher and Major governments the press only survived by clinging to the last vestiges of self-regulation: the Press Complaints Commission. The Commission was memorably attacked as concerned only in looking after its own: “a pact between the great and the good and the newspaper industry”[78] and Robertson further comments on the implications of a PCC ruling: “its adjudications are short and usually over simple, reflecting only on editors, who do not appear discomfited by its statements that they have breached a code of practice”[79]. The PCC produces a Code of Conduct that has, in the human rights era, been elevated by section 12 of the Human Rights Act 1998 under (4)(b) to a code with “indirect legal effect”[80] which renders its contents more important and gives some credibility to the much ridiculed notion of self-regulation. It has been observed that it now has a role to play in court cases involving the press and article 10:

“with respect to section 12(4) it may actually be the case that the press has shot itself in the foot. The section elevates the Press Complaints Commission (‘PCC’) Code of Practice to a position it has not occupied previously. This is of particular relevance in respect for private life cases where it has been held that where the Code has been flouted and no public interest claim is asserted, a claim to freedom of expression is likely to be trumped by Article 10(2)”.[81]

Under the Code of Conduct “there is a public interest in freedom of expression itself”[82]. Thus the Human Rights Act could justifiably be argued to have given some indirect teeth to the Code of Conduct, although not the PCC itself which continues to be seen as toothless[83], but the important point remains that which Lord Bingham made in Shayler; that although freedom of expression existed before the Human Rights Act it is only through human rights that it has been given a renewed emphasis albeit stopping dramatically short of a presumptive priority[84]. As will be seen in the following chapter on the European jurisprudence, there is a balancing exercise to be carried out between article 8 and article 10 which underpins the modern approach[85]. Furthermore, there are those who are extremely sceptical of the existence of free speech in Britain such as Geoffrey Robertson QC who argues passionately against Amos’ assertions that UK freedom of expression was the most highly evolved of rights in place before the Human Rights Act 1998 was passed[86]. Robertson points out that freedom of speech is too easily trampled on by the various laws that the courts have developed and highlights James v Commonwealth of Australia[87] as being reflective of the courts historical interpretation of a qualified right of free speech prior to the Human Rights Act. It was observed in that case that “free speech does not mean free speech”[88] but actually speech that is subject to the laws of, inter alia, defamation, blasphemy and sedition. It is difficult to disagree with Robertson’s viewpoint as he undertakes a look at the right from the Magna Carta up to the Human Rights Act and he points out that the only free speech right to be found in British constitutional law is in fact in the 1689 Bill of Rights but “belongs only to M.Ps and to peers, giving them absolute privilege against libel actions over allegations they make in the course of parliamentary proceedings”[89]. He concludes that:

“Although the European Convention, incorporated into British law on October 2nd, 2000 by the Human Rights Act (HRA), had been promoted by the spin doctor’s slogan “rights brought home”, article 10 (which guarantees freedom of expression) never has been at home in Britain. Although many other sections of the Convention, guaranteeing free trial and Habeus Corpeus and due process, owe their providence to English law, and…the “open justice” principle and rule against prior restraint were first formulated here, no generalised right of free expression, however common in rhetoric, entrenched itself in law.”

A free press has often been at the heart of arguments for free speech and the two have often been confused as, understandably, most cases on freedom of expression involve the press in some capacity and the two notions are inextricably woven[90]. The watchdog role of the press, lionised by newspapers for centuries as their raison d’etre[91], has been incorporated into the jurisprudence of the European Court of Human Rights as pointed out by Longmore LJ[92] and is referred to in countless judgements. The House of Lords has very recently reaffirmed the Reynolds public interest defence for journalists[93] and the protection of freedom of expression for newspapers, and by extension all of us, is gathering pace despite some worrying inroads into privacy.

Chapter 2: Article 8 and Article 10

A. Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As has been pointed out above there is a duty for the courts to act compatibly with Convention rights being as they are included under the list of public bodies under the Human Rights Act 1998: their actions would be unlawful if they did not comply with the ECHR[94]. The extension of Convention rights to private law cases was described by the court in Venables v News Group Newspapers[95] as being beyond doubt and that s.12(4), in the words of Sedley LJ in Douglas, “puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another—in the jargon, its horizontal effect”[96]. The content of the privacy right in article 8 is very broad and has been held to cover: “…a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”[97]. In reality this means private life in physical and psychological integrity[98] and even includesthe right to choose death[99] despite the memorable submissions of the Secretary of State in Pretty: “He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it.”[100] The court disagreed with the Secretary of State in this instance, holding that a blanket ban on assisted suicide could constitute an interference with article 8(1) but that the interference can be justified as safeguarding life and furthermore in accordance with the law[101].

The courts, in respect of article 8 and the media, have adopted a two stage test for article 8 which firstly asks whether there is a reasonable expectation of privacy and if there is to balance this against a countervailing public interest in interfering with the article 8 rights[102]. On the first limb of the test, which is objective[103], it needs to be established whether the activity reported on is in the public or private domains and there are several factors to be taken into account such as absence of consent and the nature of the intrusion. In Author of a Blog v Times Newspapers Ltd[104] the blogging of the detective was clearly a public activity while by contrast in Mosley v News Group Newspapers Ltd[105]the claimant did have such an expectation given the private nature of the sexual encounters. Regarding the second limb of the test the public interest, if the first limb is engaged, must be sufficient to outweigh the interference with the article 8 rights of the claimant. Again when looking at Author of a Blog the public interest is apparent in unmasking a senior police officer as the mysterious writer of a blog which had criticised the police while in Murray v Express Newspapers[106] the public interest element was very weak in taking pictures of the children of a celebrity and the fact that an ordinary, reasonable person would consider the publication of the pictures abhorrent was significant. The public interest has an explanatory definition in the PCC Editorial Code which has, in light of s.12(4)(a) of the Human Rights Act and the elevated status if the code, been approved by the courts in their attempts to capture the public interest and if the conduct complained of is disproportionate to the aim[107]. Eady J asked a simple question to demonstrate the concept:

“The question has to be asked whether it will always be an automatic defence to intrusive journalism that a crime was being committed on private property, however technical or trivial. Would it justify installing a camera in someone’s home, for example, in order to catch him or her smoking a spliffSurely not. There must be some limits and, even in more serious cases, any such intrusion should be no more than is proportionate.”[108]

B. Article 10

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The content of the right to freedom of expression is also very broad and includes not only written and oral forms of communication but also videos and internet sites[109]. Thus in the context of the press online editions are clearly included under article 10 and indisputably all printed newspapers will fall easily under article 10 which has been described as “easily engaged”[110]. The next stage in the analysis is whether there has been an interference with article 10This is also easily proved and it has been held that injunctions[111], convictions under the Official Secrets Act 1989[112] and more gravely state censorship[113] all constitute an interference with article 10. As Merris points out the situation is not always so clear cut: in the case of copyright this is but a minor interference in light of the fact that a claim under copyright which does threaten publication is not an absolute bar to publication[114].

The real hurdle in article 10 is under (2): where such an interference as found in (1) must be justified under one of the extensive grounds since almost all cases so far have proceeded with recognisable laws at common law or by statute and are prescribed by law. There are two aspects of necessity which then need to be analysed: whether the interference was “necessary in a democratic society” and whether the interference is proportionate to the legitimate aim pursued. On the both it has been observed that:

“Lord Hope in Shayler held that the restriction on the disclosure of information cannot be said to be necessary in the interests of national security unless (a) relevant and sufficient reasons are given by the national authority to justify the restriction, (b) the restriction on disclosure corresponds to a pressing social need and (c) it is proportionate to the legitimate aim pursued.”

In determining proportionality the case law has developed certain general principles which the court will pay heed to: firstly s.12 of the Human Rights Act 1998 and the importance of freedom of expression as well as the PCC Code of Practice under s.12(4), secondly the importance of the freedom of the press, thirdly the public interest and finally deference to the decision maker[115].

C. The New Methodology: Von Hannover and Campbell

Von Hannover[116]

Under s.2 of the Human Rights Act 1998 courts in the UK must take into account decisions of the European courts when considering questions of convention rights. This case marked a watershed moment in striking the correct balance between article 8 and article 10 when Princess Caroline von hannover attempted to defend her right to privacy against paparazzi and tabloid intrusions. Germany was found to be in breach of the applicant’s right to privacy under the European Convention on Human Rights by denying her a remedy in their courts for intrusive pictures taken while she was shopping[117]. A key development in this case was that aspects of von hannover’s public life were held to be under the scope of article 8 as well as a limited sphere of interaction with others. Under article 8(2) the court crucially pointed out that the right to privacy is not absolute and that in having regard to the “rights of others” included the respect for the freedom of the press. The court observed:

“Although freedom of expression extended to the publication of photographs, this was an area where the protection of the rights and reputation of others took on particular importance. The present case did not concern the dissemination of ideas but of images containing very personal or even intimate information about an individual. Furthermore photographs appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.”[118]

Thus freedom of expression is, of course, itself qualified and regard must be had to the “respect of the reputation and rights of others”[119]. In applying these tests to the current case the court observed that Princess Caroline’s role was only symbolic and not political and consequently this was not a matter to which the press could fulfil their watchdog role legitimately in contributing to a public debate[120]. The court then went on to hold that in the absence of any legitimate public concern freedom of expression would be more narrowly construed[121]. The court upheld the applicant’s right to privacy.

Campbell[122]

This case has also been remarkably influential in the debate and has been recognised judicially as marking a turning point in the application of these rights and indeed embracing a so-called “new methodology” according to Lord Steyn in In Re s (A Child)[123]. On the facts of this case the supermodel Naomi Campbell, who openly courted publicity, had volunteered false information to the newspaper, insisting that she didn’t take drugs. The newspaper then disclosed details of her addiction and obtained photos of her therapy meetings. The claimant succeeded at first instance but then the Court of Appeal overturned the decision in favour of the newspaper, ruling that publication of the photos was in the public interest. There was then an appeal to the House of Lords where their lordships by a 3-2 decision upheld her right to privacy. Lord Hoffman (dissenting) made the following observation on the unique difficulties of this case:

“The facts are unusual because the plaintiff is a public figure who had made very public false statements about a matter in respect of which even a public figure would ordinarily be entitled to privacy, namely her use of drugs. It was these falsehoods which, as was conceded, made it justifiable, for a newspaper to report the fact that she was addicted. The division of opinion is whether in doing so the newspaper went too far in publishing associated facts about her private life”.[124]

Hoffman went on to point out that the House, although divided on the law, was united on the principles to be taken from the case. A number of factors spurred the House to reason that the claimant’s right to privacy had been breached: the nature of the drug addiction meetings were akin to medical records under the Data Protection Act 1998 and so required a particularly strong justification which was lacking, persons in her position with such difficulties may encounter setbacks if their struggles with drugs are disclosed and what Lord Hope christened as a “margin of appreciation” of journalists in deciding story content had been overriden by content which infringed the claimant’s right to privacy[125]. In In Re s (A Child) the new methodology of Campbell was summarised as thus:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”[126]

Chapter 3: Libel in the UK

A. Libel and the Press: the landscape

The libel laws of the UK are so attractive to international litigants that a tourism industry has grown up around it which Parliament has now sought legislation to address[127]. But why are British libel laws so attractive to foreign companies and individualsThe simple answer is that the UK system is very heavily stacked against freedom of expression as has been very evident recently in the Trafigura affair where British newspapers and media, including the Guardian, the Independent and the BBC, were frightened off the story of Trafigura dumping illegal waste in the Cote-D’ivoire by legal threats made by the media lawyers Carter Ruck and forced to issue apologies and climb-downs[128]. Carter Ruck defends many clients’ private information and of the cases examined for the secondary research below Carter Ruck are prominent as defendants in a large number of cases[129]. Bearing in mind that Carter Ruck even threatened to gag Parliament it becomes clear that the libel laws in this country may be out of control[130] and that the Draft Defamation Bill is recognition of this.

The historical development of libel is traced by Geoffrey Robertson who asserts that the current form of libel can be traced from the Victorian Club: “The idea that large sums of money must be awarded to compensate people for words which ‘tend to lower them in the estimation of right-thinking members of society’ directly derives from an age when social, political and legal life was lived in gentlemen’s clubs in Pall Mall, an age when escutcheons could be blotted and society scandals resolved by writs and slander”[131]. Thus a system emerges which attempts to strike a balance between the right of free speech and the right of reputation with the balance leaning heavily towards the latter. From these humble beginnings the modern test of libel can be easily elicited from the dictum of Lord Atkin: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”[132].

Libel, as distinct from slander, is actionable without damage[133] and is one of the few surviving civil torts which, under the Supreme Court Act 1981[134], still has a presumption in favour of a jury should one of the parties request it[135] although this presumption will be abolished should the Draft Defamation Bill receive royal assent[136] . It was the president of the Supreme Court, Lord Philips of Worth Matravers who observed:

“Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirableThe issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury.”[137]

The consultation criticised the costs, simplification of complex legal concepts and the effect on settlements jury trials have in defamation cases[138]. Furthermore damage would have to be proved under the new draft Bill which would be an astounding departure from the past where up until now there has been a presumption that such defamatory words cause harm without the need for proof[139]. Returning to Lord Atkin’s dictum the construction of words is clearly very important in libel cases and many hearings are simply to decide precisely what words mean[140]. Subject to the claimant being identified as the object of the allegedly defamatory statement[141] and not being part of a group whose collective reputation cannot be protected[142] anyone who has been involved in the publication, from the author down to the distributor or even an Internet Service Provider[143], may be sued in libel. The Defamation Act 1996 put some of the law of libel on a statutory footing and enabled distributors who were unaware of the defamatory material to escape liability by the defence of innocent dissemination[144]. Two final but crucial points remain to be made: the multiple publication rule[145] firstly means that each “publication of a defamation gives rise to a separate cause of action”[146], being every copy of a newspaper or website hit, and secondly it is for the defendant, on a balance of probabilities, to prove one of the following defences[147]:

(a) Fair Comment: This defence actually protects what Robertson describes as “unfair comment”: an opinion, however unfair, that is honestly held on a matter of public interest. The defence only applies to comment and not to fact and is a distinction which led Eady J to err[148].

(b) Justification: If the defendant proves that the statement is true then there can be no action. The defendant need not show that the statement was in the public interest and it cannot be undone by the claimant proving malice[149]. Under the Defamation Act 1952 the defence do not have to prove the truth of each allegation[150].

(c) Absolute and qualified privilege: the Defamation Act 1996 sets out that fair and accurate reports of court proceedings and parliamentary proceedings attract absolute privilege; meaning that they comprise a complete defence regardless of any malice or truth. Qualified privilege, which can be defeated if malice is shown, attaches to all of the circumstances in schedule 1 of the 1996 Act which includes fair and accurate reports of legislatures or international organisations anywhere in the world[151].

(d) Offer of amends: S.2 of the 1996 Act contains this defence which contains three elements: a correction, an apology and compensation to the claimant. If the offer is accepted then the claimant can no longer bring an action of defamation[152] but if the offer is refused then this will form a statutory defence at the trial[153].

(e) The Reynolds duty-interest defence: This defence arose out of a case in the House of Lords[154] where their Lordships extended the defence of qualified privilege to protect the publication of material which the reporter was under a moral or social duty to publish and, as a corollary; the recipients have an interest in receiving. The House of Lords held in Reynolds that the Sunday Times could not benefit from the defence as they had acted unfairly in omitting the explanation of Albert Reynold, the ex-premier of Ireland, from their Irish edition after his resignation in 1994[155]. This defence is most relevant to the aims of this study as it strikes a balance between the protection of reputation and the freedom of expression as Lord Nicholls explains:

“My Lords, this appeal concerns the interaction between two fundamental rights: freedom of expression and protection of reputation. The context is newspaper discussion of a matter of political importance. Stated in its simplest form, the newspaper’s contention is that a libellous statement of fact made in the course of political discussion is free from liability if published in good faith. Liability arises only if the writer knew the statement was not true or if he made the statement recklessly, not caring whether it was true or false, or if he was actuated by personal spite or some other improper motive.”

Lord Nicholls goes on to set out ten factors which the court must have regard to in establishing this defence which include the gravity of the allegation, the nature of the information and its’ source, the urgency of the matter as well as any steps taken to verify the information among others[156]. There have been a lot of problems with this defence, however, and these ten factors were considered to potentially be ten obstacles by the House of Lords[157] with Lord Hoffman taking the unusual step in this case of criticising Eady J, at first instance, for his interpretation of the Reynolds privilege:

“In the hands of a judge hostile to the spirit of Reynolds , they can become ten hurdles at any of which the defence may fail. That is how Eady J treated them. The defence, he said, can be sustained only after “the closest and most rigorous scrutiny” by the application of what he called “Lord Nicholls’s ten tests”.”[158]

Commentators have also remarked on the judicial hostility to Reynolds and the uncertainty it created[159]. Clayton and Tomlinson argued that this uncertainty was a violation of article 10 in itself by restricting the use of the defence although this uncertainty has been approved as being article 10 compliant by the European Court of Human Rights in Strasbourg[160]. Thus the case of Jameel and Others v Wall Street Journal Europe Spr[161] was vital in reaffirming the Reynolds defence and this was followed by the Court of Appeal in Flood v Times Newspapers Ltd[162] where Lord Neuberger went through the classic test propounded by Lord Nicholls[163]. In the case of Jameel Lord Hoffman took the opportunity to highlight the importance of responsible journalism, a concept which Eady J had described as subjective but which Lord Hoffman defined as an objective standard all could relate to. The developments in Jameel were vital in resuscitating a defence which had been reeling in the wrong hands:

“The judgments of the Lords in Jameel strongly re-affirm the importance of Reynolds privilege – or as it may more accurately become known, Reynolds public interest defence – as a cornerstone to protect the press when responsibly informing the public on matters of public interest.”[164]

(f) Malice: As pointed out above, malice can defeat the defences of fair comment in the public interest and qualified privilege as described by Lord Diplock: “The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would have otherwise been entitled.”[165] Thus malice is “dishonest or reckless writing or reporting”[166].

B. Secondary case law research into British newspapers and libel

The “chilling effect” of libel on the media has been well documented[167] and as the authors of this study noted at the time in the introduction this is a “strangely neglected“ topic which deserves research to examine what Robertson has powerfully called “the greatest inhibition upon freedom of speech”[168] in light of recent developments with the ECHR. As noted above, it has been recognised judicially that the press have a unique watchdog role in society which legitimises a democracy and embodies a central pillar of freedom of expression in a democracy[169]. The seminal studies of Barendt et al were conducted in 1997 and research carried out for this dissertation revealed that there has not been its equal in the post human rights libel environment: their study was a one-off before courts were compelled to take into account Convention arguments[170]. Now, in 2011, the environment is especially ripe to undertake some secondary case research of libel actions, especially with the “chilling” effect of libel laws being recognised by the Justice Secretary of the Coalition Government Kenneth Clark and a Draft Defamation Bill in Parliament[171]. Taking into account accusations from the press of the judiciary creating a right to privacy via the back door crystallising in 2008[172] and the case against Dr.Singh brought by the British Chiropractic Association provoking widespread criticism in May 2009[173] it is apt to examine case law in the period from January 2008[174] up until January 2011[175]. A further reason for choosing this period is that Mr.Justice Eady stepped aside as the top libel judge in the UK on 1st October 2010 for Mr.Justice Tugendhat in a move which some commentators cautiously welcomed as being a positive one for freedom of expression[176].

The research is restricted to libel actions in Britain[177] in any court up from first instance Queen’s Division to the Supreme Court[178] and either the case or the appeal is within the period stated above: furthermore, only cases resolved in this period are covered and hearings for summary judgements (except where either party succeeds or the action is struck out) are excluded as often the case will proceed to trial which will be pending at a later date. The results are presented in graphical form and the following will be analysed: whether convention arguments were relevant or not, the frequency of libel actions and the identity of the defendants, the success or failure of the action (from the perspective of the newspaper), the effect of Mr.Justice Eady[179], the defences employed and success of interim injunctions as will be the anchoring action to which the Convention Rights are parasitic. Before embarking upon this research it is wise to recount the findings of Barendt et al:

“The law of libel exercises a chilling effect…because the defences of justification, fair comment, and privilege do not adequately safeguard the interest of the media (and the public) in freedom of expression. The media may, for instance, be unsure whether they could prove the truth of the allegations in court or…they may be concerned by the cost of defending an action bought by a wealthy and persistent litigant.”[180]

(a) Overview of the case law January 2008 – March 2011: victory and defeat

Within the specified period 35[181] libel cases against newspapers reached conclusion. Below is a graph of the cases split into the identity of the defendant along with the result for the defendant.

Comment: These seven main players in the newspaper industry account for 30 of the cases with a further five including various other newspapers as the defendants[182]. Associated Newspapers include the Daily Mail, the Mail on Sunday and the Metro[183]. News Group Newspapers includes the Sun and the News of the World[184]. Express newspapers include the Daily and Sunday Express[185]. The Guardian Media Group includes the Guardian and Observer titles[186] while the Times group owns The Times and the Sunday Times[187] under the control of News International along with the Sun and the News of the World. Finally the last two are self-explanatory: the Independent News & Media Ltd owns the Independent newspaper and the Independent on Sunday[188] and the Telegraph Media Group own the Telegraph and Sunday Telegraph[189].

News International: A possible reading of these results is that in the period above News International (which includes News Group and the Time Group) have been sued for libel the most (9 times) although this is perhaps not surprising given the huge circulations of the Sun, the News of the World, the Time and the Sunday Times together.

Financial Times: One conclusion from the study of Barendt et al[190] is that the Financial Times is very risk averse and was the only newspaper where the “chilling effect” was perceived to be most powerful: “On only one newspaper did a clear indication of the inhibiting effect of libel emerge. This was the Financial Times, one of whose senior editors stated flatly that, as a matter of policy, the paper did not want to get involved in libel actions”[191]. This research confirms the findings of Barendt et al and it is notable that the one case the Financial Times got involved in (and won) was one which went to the European Court of Human Right to fight an order against disclosure of sources in the UK[192].

Tabloids and broadsheets: As for the other newspapers in the UK they seem to be willing to be subject to libel in the inescapable push for stories. There does not seem to be any neat broadsheet/tabloid divide either which perhaps strengthens arguments of a blurring of the boundaries between the two[193] although clearly a paper such as the Express, which lost 100% of the libel claims against it, is more susceptible to losing libel writs with its cocktail of entertainment stories which included writing a story that Ozzy Osbourne’s wife was working him to death[194], intruding into the private grief of Matt Lucas following the death of his ex-partner[195] and reporting that Mohammed George of Eastenders was thrown out of an Eastenders party by security[196]. By way of contrast the Guardian and the Times, both considered upper market broadsheets, have a roughly equal success and loss ratio. There may be a blurring of the boundaries between tabloids and broadsheets but there is still a boundary.

Statements in open court: A striking statistic is that of all 35 cases the press was on the losing side in 20 of them. A common way of conceding defeat is via a statement in open court before trial coupled with an offer to retract, an apology and compensation[197]. Of the cases 16 of them (46%) were conceded in this fashion. Robertson points out, however, that these statements, made under considerable pressure to settle before a potentially crippling trial, “are sometimes more akin to public relations announcements than to records of truth”[198].

Pressure on early settlement: As stated above the costs of a libel action are enormous and conceding a case is often the wisest course of action. Geoffrey Robertson observes: “In the year 2001, a contested fortnight’ defamation trial – including all the applications which would proceed it – could easily cost each side ?750,000, and the loser would have to pay 75% of the winner’s costs, on top of damages which amount to six figures”[199]. So there is obviously a pressure to settle early and this is born out by the disproportionate amount of statements in open court made to settle actions as well as the somewhat traditional means of reaching an out of court settlement just before trial to make the settlement more lucrative[200].

Chilling effect: A further conclusion which might be drawn is that libel laws are stacked against newspapers who must: bear the burden of proof in rebutting the presumption that defamatory statements are false unless proved otherwise[201] and be open to libel writs without any averments of loss or damage to the claimant[202]. The onerous burden on newspapers of proving that a statement is true is one pillar of the “chilling” effect mentioned above and inhibits proper journalism.

(b) Use of convention rights in libel cases against newspapers January 2008 – March 2011

In order to properly establish whether Convention arguments are really influencing libel laws in the UK with respect to newspapers the graph below is a breakdown of cases within the period which have been determined by convention arguments:

Comment: It is fair to say that the cases in the period above, while determined by convention arguments, are not exhaustive in that many of the other cases will have featured convention arguments as a matter of course in litigation such as Lucas[203]where an article published about the claimant’s deceased ex-partner intruded into privacy in a stark manner which prompted the early settlement by statement to the court. With a statement to open court being protected by privilege[204] however, it is exceptionally difficult to divine arguments on Convention rights. As a proportion of the overall cases these numbers are very low, 6 in a total of 35, but the effects of these decisions are more profound and more far-reaching than otherwise[205]. In these cases freedom of expression under article 10 is clearly being favoured in a minority of cases isolated to their facts while the decisions of Mosley and Murray, taken together, have provoked furious criticism that article 8 is being extended in scope[206].

Mosley v News Group Newspapers Ltd[207] : This case was one of Judge Eady’s most high profile cases and ended in a judgement which held that the balance between freedom of expression and privacy lay in the protection of Mr.Mosley’s privacy where a newspaper story made allegations about his sex life[208]. He held that between consenting adults on private property sexual behaviour, however bizarre and unconventional, could attract a reasonable expectation of privacy[209]. The methods used to capture the alleged sordid activities were done by secret film which Eady said engaged the claimant’s article 8 rights: “The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified”[210]. Eady then made reference to the “ultimate balancing test” propounded by Sedley LJ in Douglas v Hello[211] and observed that: “The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.”[212] The public interest argument put forward by the newspaper was destroyed by the factual dispute over whether there was any Nazi theme at all. Ultimately Justice Eady was unconvinced by the public interest defence put forward and ruled in favour of the claimant. He was sensitive to point out that, despite ruling that article 8 prevailed in this case, “It is perhaps worth adding that there is nothing “landmark” about this decision. It is simply the application to rather unusual facts of recently developed but established principles. Nor can it seriously be suggested that the case is likely to inhibit serious investigative journalism into crime or wrongdoing, where the public interest is more genuinely engaged.”[213] There are some though who would strongly disagree and point that this decision, taken together with Murray below, is tantamount to a privacy shift towards the protection of the individual in extending the scope of article 8.[214]
Murray v Express Newspapers Plc[215]: This case was concerned with the child of J.K Rowling who appealed against the earlier decision in 2007 to strike out his claim for libel where photographs had been taken of him in a public place and published a national magazine. The judge at first instance, Patten J, had been reluctant to rule that extending article 8 rights to the case at hand would be “on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy”[216]. However Sir Anthony Clarke M.R, along with Laws L.J and Thomas L.J, took the case into that area and went as far as to observe: “[A] child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child.”[217] Thus commentators have decried the notion that a breach of privacy can occur in a public place and have observed that the extension of this rule to adults is perhaps only a matter of time given the ambiguity surrounding the fracture between Von Hannover and Campbell with the former giving an expansive interpretation to a reasonable expectation of privacy and the latter qualifying against it certain criteria[218].
Times Newspapers Ltd v United Kingdom[219]: This case was a judgement by the European Court of Human Rights who were asked to rule, in the words of Mora, “…whether the UK’s common law rule that a new cause of action in libel accrues each and every time that a defamatory article remains available on the internet constitutes an unjustifiable and disproportionate restriction on the right to freedom of expression guaranteed by art.10 of the European Convention on Human Rights (ECHR).[220] Thus the central issue was freedom of expression and whether articles retained on a large archive could be susceptible to separate libel actions even after the lapse of many years and even if a libel action had already been brought in respect of the same article in print form. This rule (internet publication) dictates that each time an article is downloaded a fresh cause in libel proceedings accrued. The Court ultimately rejected the complaint, refusing to consider what T had expressly alleged was a “chilling effect” on freedom of expression caused by this unduly onerous rule: “They argued that the internet publication rule breached art.10, pointing out that as a result of the rule newspapers which maintained internet archives were exposed to ceaseless liability for re-publication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide internet archives and would thus limit their freedom of expression.”[221] A crumb of comfort from this case is that the judgement was argued closely to its facts and if an action were to be raised in the future regarding an article from the past stored on an archive which was unknown to the newspaper or archivers then this may well be disproportionate to the complainer’s article 10 rights[222].
Author of a Blog v Times Newspapers Ltd[223]: This case concerned a serving detective constable (the blogger) who wished his identity to be restrained from publication in the Times who had, by investigations, deduced his identity. He faced disciplinary action from the police and was keen to hold onto his anonymity but the Queen’s Bench ultimately held that firstly he had no reasonable expectation of privacy as blogging was a public activity and secondly the sources used by the newspaper did not have the necessary “quality of confidence”[224]. Thus the unmasking of “Night Jack”, as the blogger was known, did not even engage his article 8 rights although it is important again to note that this judgement is tied closely to the facts and the unusual fact that the blogger was a prominent member in the police force was the catalyst for a high degree of public interest: “Reports of the death of anonymous blogging may, however, have been exaggerated.”[225]
Financial Times Ltd v United Kingdom[226]: This case brought by the FT in the European Court of Human Rights concerned a high court order obtained by I, an international drinks company, that certain newspapers would disclose the identity of a source which had leaked the details of a takeover bid in which I would purchase a brewer, SAB. The newspapers appealed but were dismissed by the Court of Appeal and then refused leave to go to the House of Lords and ultimately came to the ECHR to argue that their article 10 rights had been breached by the order compelling them to disclose the identity of anonymous sources. The court went through the article 10 analysis, holding that despite the order did not actively restrain F the potential it had to do so interfered with F’s article 10 rights. On the question on whether the interference was justified under article 10(2) the court emphasised the watchdog role which journalism has in the UK and that disclosure of such sources might inhibit the public interest in exposing wrongdoing and corruption and the court held that: “Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with art.10 unless it is justified by an overriding requirement in the public interest.”[227] The European Court here did have regard to the “chilling” aspects which it had declined to do in Times Newspapers Ltd v United Kingdom[228].
In re Guardian News and Media Ltd and others[229]: This case, in the Supreme Court of the United Kingdom, involved, much like the blogging case above, the publication by a newspaper of a story about an individual whose identity was protected: he was a suspected terrorist and the subject of an anonymity order made by the House of Lords. As was stated: “More particularly, the court is being asked, on the one hand, to give effect to the right of the press to freedom of expression and, on the other, to ensure that the press respect M’s private and family life.”[230] Ultimately the court held that balancing the two rights favoured article 10 and a necessary interference with the claimant’s article 8 rights for, inter alia, the reason that the disclosure of the name would contribute to a “debate of general interest”[231].

Comment: In the period examined, from January 2008 – March 2011, it is clear to see just how much the European Convention on Human Rights, and in particular articles 10 and 8, have permeated the fabric of UK libel law. From a free speech perspective in the UK domestic courts it is clear that the right to privacy is favouring individuals and both Mosley and Murray are incontestable evidence for a broadening of the scope of article 8 potentially into the public sphere for all[232]. The two domestic case s which favoured article 10 over article 8 are tied closely to their facts and it is submitted that their scope is limited: anonymous publishers who are not in such prominent positions nor are discovered by purely public means will enjoy the protection of article 8 in due course[233] and whether the anonymity orders ruling applies to control orders was not discussed by the Supreme Court[234]. Regarding the European Court of Human Rights the message is mixed: in Times Newspapers Ltd v United Kingdom the court chose not to examine the “chilling effect” that the internet publication rule would have on freedom of expression and accordingly dismissed the complaint while in Financial Times Ltd v United Kingdom[235] the “chilling effect” was considered in an order which forced the disclosure of anonymous sources and judgement found in favour of the FT. The domestic courts are clearly favouring privacy and crucially so too is the jurisprudence from Strasbourg:

“It is indisputable that, over the last five or six years, the English courts have been applying the law in a way that has provided ever increasing protection for individuals’ rights to privacy. One only needs to contrast the decisions in Mosley and Murray with the Court of Appeal’s decision in A v B in 2002 to appreciate the extent of the shift in the law that has occurred. However, as Mr Dacre acknowledged in his testimony to the Select Committee,the real cause of this creep towards this “Continental” level of protection for privacy, has been the ever increasing level of protection that the ECtHR is affording to art.8 rights. Far from being an unsanctioned judicial crusade against the press (as Mr Dacre might have us believe), English judges have simply been developing English privacy law in step with the Strasbourg court, as, of course, they are bound to do under the HRA.”[236]

I will christen this shadowing of European jurisprudence, enshrined in s.2(1) of the Human Rights Act 1998, a ‘continental drift towards privacy’ whichBritain, as a signatory to the Convention, can only be swept along with.

(c) Judge Eady January 2008 – March 2011 on all media cases

Eady J has had to shoulder a lot of criticism as the judge previously in charge of the High Court’s libel actions[237]. A question which arises is whether this criticism is justified and whether it is right to single out one judge, as Paul Dacre did, and say that he is introducing a privacy law by the “back door”This research has looked at all of Eady J’s judgements on the media, whether in the UK or not, during the specified period above.

Comment: It is perhaps convenient to single out Eady J’s significant judgements which have been averse to journalists[238] or the scientific community[239] but on reflection of the cases he has handled in the last three years it is evident that it is a fallacy to generalise in saying that he is against the media or single-handedly responsible for judicial activism[240], conspiring to bring a law of privacy in through the back door although it is correct to say two key decisions were devastating to free speech:

Statements: In 32 cases the striking statistic is that 20 were conceded by statement in open court, unreported[241] and in light of Robertson’s comments to the effect that these are more like “public relations exercises” coupled with the privilege which attaches to them, it is difficult to say the real reasons why they were settled. The concession of these cases would at the very least indicate that the laws of libel do not operate in favour of the media and at the most that many were resigned to losing under Justice Eady.
Favourable to press: The most notable case in which the freedom of the press was protected by Eady J was Author of a Blog v Times Newspapers Ltd[242] , a case which protected the article 10 rights of journalists above the article 8 rights of an anonymous blogger by allowing them to publish the identity of the blogger. Given the unusual facts however, with “night jack” being a prominent detective and his identity being of a strong public interest, it has been argued that this decision does not advance the article 10 cause much but is instead an example of applying the iniquitous law meticulously[243]. Other favourable judgements are not remarkable: extending absolute privilege to the reporting of previous court events[244], refusing to grant an interim injunction where neither the interests of justice nor urgency required it[245], striking out a claim where the claimant in a libel action had no reputation to protect[246] and making use of the new offer to make amends procedure under the Defamation Act 1996 s.2 to reduce the compensation a publisher had to pay[247].
Unfavourable judgements: The Mosley case and the Singh case are inescapable in providing an analysis of Mr.Eady’s decision-making in the specified period but it is also inescapable to acknowledge that his legal career as a judge does not turn on two cases. The real scope of the Mosley decision alone, since Singh was overturned on appeal[248], will be known when Mosley is heard before the European Court of Human Rights and challenges the UK privacy laws as affording too little protection to individuals. A defence of prior notification may emerge as will be discussed later but that will be the decision of the European Court and not Justice Eadie. That Eadie was just applying the iniquitous law in the fashion of a legal positivist is a convincing argument and discredits Paul Dacre’s accusations to an extent:

“Lord Falconer, the former Lord Chancellor and one of the architects of the Human Rights Act 1998 (“HRA”), has said that Eady J.: “[I]s unquestionably applying the law as it comes from Parliament, as interpreted by the senior courts, the Court of Appeal and the House of Lords.” This is a view shared by four of the country’s most eminent media law Queen’s Counsel and a number of other senior media lawyers and commentators”.[249]

This argument has some force but the Court of Appeal in Singh certainly didn’t think that Eady J had mechanically applied the law and neither did Lord Hoffman in Jameel[250]. He had erred, in the opinion of Lord Judge in Singh, in two respects: firstly he conflated opinion with fact and secondly treated the former as something which needed to be proved by the defamer and thus placed an impossible burden upon him and by so doing extended libel laws irrationally:

“The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth”.[251]

Chapter 4: France and privacy

A. Declaration of the Rights of Man and the tort of privacy

France’s privacy laws have a heritage which has grown to be formidable despite the blood spilled in the 1789 revolution and the enshrinement of free speech in the Declaration on the Rights of Man and the Citizen:

“No-one is to be disquieted because of his opinions …Free communication of ideas and opinions is one of the most precious rights of man”[252]

These bold proclamations did not stop France developing a law of privacy which, as Delany and Murphy point out, is traditionally seen as being at the opposite end of the spectrum from the UK which has no precise tort of privacy[253]. It soon emerged that France would not tolerate invasions of privacy on a scale that to a lesser extent Britain, and to a much larger extent America, would[254] with “causes of action to protect privacy rights”[255] common since the 19th Century. In terms of the modern position the law of 1970 amended both the Civil and Criminal codes with article 9 of the Civil Code being the cornerstone of a tort of privacy which states in no uncertain terms[256] that “Everyone has the right to respect for his private life.” A crucial distinction is made in France, as Helen Trouille points out, between a person’s private life and the more intimate aspects of a person’s private life with only the latter attracting the most severe sanctions such as the potential seizure of printing presses[257]. There is a certain sphere of protection for individuals which the law keeps sacrosanct[258] and the image of the individual is considered to be their own[259] and even an extension of property[260]. Trouille interestingly points out that Bill Clinton might well have been saved from the Kenneth Starr treatment had America a similar system of protecting privacy. The criminal code was also amended by the Act of 1970 and now provides under Chapter VI and Offences Against Personality:

“A penalty of one year’s imprisonment and a fine of ˆ45,000 is incurred for any wilful violation of the intimacy of the private life of other persons by resorting to any means of:

1° intercepting, recording or transmitting words uttered in confidential or private circumstances, without the consent of their speaker;

2° taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned.

Where the offences referred to by the present article were performed in the sight and with the knowledge of the persons concerned without their objection, although they were in a position to do so, their consent is presumed.”[261]

The inquisitorial procedure of France applies these laws strictly although as Troille observes there a certain element of discretion in the search for the truth[262]. The press are indeed mentioned throughout the criminal civil code in relation to a number of offences with the qualification that the law will punish only those responsible: in bringing certain recordings or documents to the knowledge of third parties[263], misuse of people’s images without their express consent[264], messages bearing a pornographic or violent nature which violates “human dignity” where the message may have been viewed by a child[265], incitement of endangering minors[266] and even incitement to rise up in arms against the state[267]. On top of all these laws is the adoption of the European Convention on Human Rights articles 8 and 10 upon ratification of the Convention in 1974[268] which, much unlike the UK courts their sudden conversion to adopting the balancing approach, have undergone a slow dance of death in which the right to privacy has been gradually eroded until in 2001 the Cour de Cassation found, in a case involving the publication of an image without consent, that the strict application of the image right and the absolutist approach were no longer appropriate in the 21st century where freedom of expression is recognised and the watchdog role of the press in a democracy is beyond dispute:

“this judgment probably marks the last stage in the transformation process which the right over one’s image has been undergoing for several years … and which is resulting in the gradual replacement of the absolutist concept of the right over one’s image by a more balanced approach, more commensurate with the need to keep citizens informed”.[269]

B. France and the UK: a comparison in Human Rights

It has been commented that Britain and France, traditionally so alienated towards each other regarding privacy, are currently evolving towards a common set of principles under the shadow of the ECHR[270]. In France, as noted above, the absolutist approach has been incrementally eroded to reveal a judiciary which has started to use language similar to the European Court of Human Rights in Strasbourg. In a famous case[271] brought by the current president of France, Nicholas Sarkozy, article 9 was invoked in alleging that the newspaper le matin had breached his privacy in publishing a whole series of reports of his apparent marital problems. Incredibly the court at first instance found there was no breach of privacy as there was a legitimate interest in the stories for the people of France. Some of the articles did breach the privacy laws but the difficult question the court faced was how to reconcile the absolutist privacy laws with a President who had clearly put himself in the public eye[272]. The judge in this case acknowledged the influence of Strasbourg jurisprudence on the decision:

“The judge, in assessing the invasion of privacy in that case, noted that the European Court of Human Rights requires a balancing of the privacy rights of the individual with the right to freedom of expression by determining whether the information in question contributes to a debate of public interest, or whether it solely concerns the private life of the individual in question”[273].

The balancing requirement has been transposed into UK law[274] who, in a miracle of adoption given that the Human Rights Act 1998 only came into force 13 years ago, now conduct the very exercise that France is starting to embrace in 30 years after they ratified the Convention. The omission of article 8 from the French cases on ECHR applicable law is striking however and it has been noted that they have not sought to distinguish it from Article 9 of the Civil Code although in truth the differences between the two are marginal. Delany and Murphy argue that it is in the concept of public interest where the UK and France differ markedly, with France being more closely aligned to Strasbourg than the UK: “The general right of the public to be informed is subject to the legitimacy of the information in question”[275].

They further comment that while the concept of reasonable expectation of privacy is used as a threshold test in the UK with caveats including what the person was actually doing etc it is used more expansively in Strasbourg. Whether Franceand the UKare evolving towards a point of common principle may depend upon the extent to which France, like the UKhas done in a continental drift towards privacy[276], will allow itself to be swept up in the full implications of von hannover[277]. Recent developments in France, which have included successfully taking Google to court over mistaken data gathering in order to establish Street View with a fine of 100,000 Euros[278] and introducing a tough new law on privacy in the digital age[279] only confirm that Britain and France remain polar opposites and that, as Berlins comments, although “the door has been left ajar for the French media to start behaving like their British counterparts,” [280] the more likely reality is that the door will be closed soon enough.

Chapter 5: The effect of Articles 8 and 10 and the future

A. Has the Human Rights Act changed the media law landscape?

Articles 8 and 10 of the ECHR, by virtue of the Human Rights Act 1998, which incorporated all of the articles of the ECHR into UK law, have undoubtedly changed the media law landscape. The question is, to what extentBy section 6 of the Act UK courts are, as we have seen, obliged to take into account Convention Rights as public bodies and furthermore obliged to take into account the jurisprudence of Strasbourg under section 2 whenever a question of Convention Rights arises in a UK court. This permeation of the courts by these articles has reinvigorated the right to privacy, unwritten and supplemented by a grotesque menagerie of laws both civil and criminal[281], and the right to freedom of expression, held up by centuries of rhetoric but little substance[282], although to varying and dramatic effects. With respect to libel law and the media the secondary case research conducted in chapter 3 revealed that there is a continental drift towards privacy[283] which, if left unchecked, will rein in what advances of freedom of expression[284] the courts have enabled in the 13 years since 1998. The cases looked at in 2008 – 2011 which advanced freedom of expression were confined to their facts[285] and, with respect, limited in their outlook while the cases on privacy and most notably Murray, could potentially broaden the scope of privacy to all individuals in public life even if taking an innocuous walk down the street. There is undoubtedly confusion over the application of these Convention rights which does not help when assessing their impact as the fracture between Campbell and von hannover demonstrates[286]. Bearing in mind that the law of breach of confidence has evolved into a right of privacy in all but name[287] then it is clear that the impact of articles 10 and 8 can only be analysed with this in mind.

It is the contention of this study that the impact of the two rights has been imbalanced: the continental drift towards privacy has taken the UK with it while leaving unchanged those aspects of UK libel law which render the system so stacked against individuals and curtail freedom of expression: such as the multiple publication rule and the burden of proof being on the defence to prove the truth of the claim. Both of these aspects have been challenged in Strasbourg and both have been dismissed[288] even under the shadow of the Human Rights Act. The influence of Justice Eady has been a factor in moving the goalposts towards privacy, most notably in Singh, but although he has not been applying law like a legal positivist, neither can it truly be said that he has been imposing his own moral judgements upon cases: it is the system which predominantly produces the iniquitous results not the judges. Furthermore, the absence of legal aid is surely an issue under article 6 in providing those involved in libel trials with an “equality of arms”[289] but this has also has been held to be ECHR compliant in McVicar. The British law of libel is a powerful restraint on the press and still exerts a chilling grip in 2011. From the case research conducted 46% of cases settled in 2008-2011 were conceded by statement to open court and under obvious pressure to settle early and avoid not only the crippling costs but also the onerous burden of proof. It wasn’t for nothing that the US Supreme Court recognised long ago that the UK system of libel was incompatible with the first amendment to the US constitution due to the placing of burden on the defender whereas in America the onus is on the defamed party to prove the falsity of the statement[290]

B. The Draft Defamation Bill 2011

Kenneth Clarke’s assertions upon the unveiling of this Bill, that the libel laws of the UK were damaging free debate, have been much welcomed by those seeking reform: “In recent years, though, the increased threat of costly libel actions has begun to have a chilling effect on scientific and academic debate and investigative journalism.”[291] Eight key proposals outline the draft bill which include the end of the presumption in favour of jury trials in libel cases[292], abolition of the presumption that a defamatory statement causes harm[293], attempts to limit libel tourism by giving the courts broad discretion to decide whether the courts of England and Wales are the most appropriate jurisdiction[294], abolition of the multiple publication rule and replacement with a single publication rule[295] as well as introducing new defences: “truth” will replace justification, “honest opinion” will replace fair comment and “responsible publication of a matter in the public interest” will codify the rule in Reynolds[296].

It is important to acknowledge that these proposals are exactly that at this stage and one needs only to reflect upon another cornerstone of the freedom of expression, the Freedom of Information Bill, being sabotaged by the Labour Government in their final draft by inserting the notoriously vague “formulation of government policy” to prevent real access and produce what the great liberal journalist Hugo Young described as “one catch-all annihilation of freedom of information”[297] Despite this the proposals have been attacked as not going far enough in reforming libel laws with one notable omission being a limitation on powerful corporate entities’ ability to sue individuals[298]. This is really another side of article 6 and the equality of arms debate, inspired by Mcdonalds suing two environmentalists in the 1990s[299].

C. The future: Max Mosley and prior notification

Max Mosley, emboldened by his triumph over the News of the World, has lodged a petition with the European Court of Human Rights at Strasbourg to challenge UK law regarding the lodging of interim injunctions. He argues that in the absence of a system of “prior notification”, there is no opportunity for those in the potentially defamatory story to restrain publication and thus this is a breach of his article 8 rights[300] under which the state is under a positive obligation to safeguard the private lives of its’ citizens. The proposed system would allow the individual at the heart of the story a grace period in which to reflect upon whether an interim injunction should be sought and if the story is deemed not to be permissible then publication should be restrained until trial[301]. The applicability of this is obvious to Mosley who ultimately had to resign from his position following the story which played on his father’s fascist roots and exploited them with some creative guesswork[302]. But would this justify a system which militates against the rule against prior restrain in UK law[303]The Mosley case is certainly extreme but does not justify such a curtailment in freedom of expression and surely such a system would be immediately upon to a counterattack based upon article 10The Supreme Court of America has said:

“Any system of prior restraint on expression comes to this court bearing a heavy presumption against its constitutional validity. The only effective restraint upon executive policy and power in the areas of national defence and international affairs may be an enlightened citizenry – informed and critical public opinion which alone can here protect the values of democratic government. For without an informed and free press there cannot be an enlightened people”.

Unfortunately Britain doesn’t have a constitution but effectively created this rule in the Duke of Wellington’ famous phrase “publish and be damned”[304] but have long recognised an exception in the form of an interim injunction in an action for breach of confidence which is now under the Human Rights Act: “No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”[305] If Mosley were to win in Strasbourg, and this is quite unlikely, then one of Britain’s most telling contributions to free speech, taken up and adopted in America to an honourable extent, would be irrevocably lost and the freedom of speech tradition further undermined.

Chapter 6: Recommendations

A. The recommendations of Kenneth Clarke

All of the recommendations contained in the Draft Defamation Bill are welcome and no single clause should be dropped during the consultation. Of particular importance is the requirement to demonstrate harm which single-handedly dispatches of a rule which produced a ridiculous distinction between slander and libel where only the latter, where the statement complained of is in writing or in some permanent form, could sue even though they have suffered no financial loss while the former would have to be proved in monetary terms[306]. The extension of this to libel will prevent many needless actions and free up the courts. Another noteworthy advance is the abolition of the presumption for jury trials (though the judge will still retain a discretion) in libel cases which somewhat destroys Dicey’s age old adage that a jury trial is the guarantor of free speech[307]. Codifying the defences of fair comment, justification and the Reynolds defence is also welcome to avoid confusion given that the Times itself tried to challenge Reynolds’ itself in Strasbourg[308] and give a statutory footing to journalist’s often underused defences.

B. Reforming self-regulation

The Press Complaints Commission is widely recognised to be without teeth[309] in enforcing disputes against newspapers and self-regulation, although the better option than a law of privacy, needs to be reformed in light of it receiving several thousand complaints per year but only adjudicating on a select number[310] and even then only able to request corrections with no question of costs, expenses or compensation. The PCC is still seen as being in bed with the very journalists it purports, weakly, to hold to account. Although the PCC code has been given indirect legal effect by s.12(4) of the Human Rights Act, the regulation of the press should either go to OFCOM, whose objectivity would improve, or remain in the PCC albeit within a more independent framework that has the power to monitor compliance and enforce compensation: a quasi-judicial body. As such a body they would be, under s.6, compelled to take into account convention arguments as well under Article 8 and Article 10.

C. Article 6 and the equality of arms: legal aid and costs

It is perhaps stating the obvious that libel law is seen as a rich man’s preserve with the top QC’s costing around ?400 an hour and cases being well in excess of ?750,000 for each side regardless of victory or defeat. The level of legal fees deters all but wealthiest or principled and can only serve as a curb on free speech. As can be seen from the secondary research, 46% of cases against the press were conceded by statement to open court which demonstrates the inability of newspapers to fight for what they believe in. The inhibitive costs will be reduced by the presumption in favour of a jury trial being abolished but more could be done to provide access to justice: legal aid. If legal aid, perhaps unlikely in the current economic climate, were to be extended to certain individuals and organisations then perhaps the bankrupting of individuals and the closure of small businesses, such as happened to Living Marxism in 1999 when faced with a ?350,000 libel compensation[311], would be avoided and the principle behind article 6 would be reinforced. To prevent vexatious litigants from abusing this process there could be a simple test to establish the merits of the claim prior to the award of any legal aid. The complexities of the law are also contributing and any measures which reduce the amount of pre-trial hearings to deduce the minute meanings of words would be welcomed.

D. Switching the burden of proof

One matter which is not addressed at all in the Draft Bill is the burden of proof which rests on the defender. Quite simply this burden should be switched to the American system where it is up to the defamed person to prove the falsity of the alleged statement. By placing a burden on the defendant to prove what they are saying puts an onerous exercise of calling witnesses (which increases costs) onto the party which is least able to verify the exact truth of the matter: the knowledge of the statement is surely within the exclusive and undisputed mind of the claimant and accordingly the burden of proof should reflect this.

E. Lessons from France

France maintains an interesting distinction between two spheres of privacy which British libel law could learn a lot from. The inner sphere, intimate relations, attracts heavy punishment when breached and would cover many of the stories which developed the law so far including Mosley and which have been the subject of vociferous criticism. If the media knew that such intimate parts of a person’s life were out of bounds then perhaps the investigative journalism on real issues of public interest would return and the watchdog role of journalism would be further legitimised instead of being undermined by prurient sex scandals. Either way, a definition of what is private and what is not is vital after the decision of Murray and private inroads into public space.

Conclusion

In conclusion the effect that both Article 8 and Article 10 have had on the British legal landscape and the media has been profound but not as much as some would argue. Neither right stepped into a vacuum and it can be argued that the law of breach of confidence was already a right of privacy in all but name long before Britain adopted Convention Rights in the Human Rights Act 1998. Freedom of speech, on the other hand, was a powerful rhetorical tool which has had too much style and too little substance to be considered to be dominant even before the Human Rights Act came along. However, rather than redress this historical imbalance which has curiously been created by the lack of a constitution and a dizzying array of laws that encroach upon privacy, the HRA has swept Britain along with a continental drift towards privacy which has seen the private sphere enter the public and the role of investigative journalism undermined by the iniquitous libel laws which refuse to move on from a Victorian era when reputations were guarded fiercely. No one judge has undermined the system: it is the system itself which, when the Defamation Act of 2012 hopefully passes, will hopefully take a step towards true equality between Article 10 and Article 8 and compliant with Article 6 in reducing the horrendous costs and providing legal aid. Neither right deserves to be in the ascendant but the rhetoric up to now has been misleading us all: privacy is on the march across Europe and Britain must for now march in step. The press have committed the gravest sins of all but are also at the vanguard of free speech and have enriched the UK. It should always be remembered that one of the greatest moments in the history of investigative journalism, the Times investigation of thalidomide which won compensation through the law for endless victims for the parents and families of babies born with deformities after taking the drug, was obtained through “chequebook journalism”[312].

BIBLIOGRAPHY

I. Books



Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide;

Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York

Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide

Bromley, Michael & Stephenson (eds) (1998) Sex, Lies and Democracy: the press and the public Longman

Clayton and Tomlinson (200) The Law of Human Rights Oxford University Press

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Fowler, Andrew (2011) The Most Dangerous Man in the World Melbourne University Press: Melbourne

Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

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Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101

Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763

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Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6

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III. Websites Visited


Associated Newspapers home page: available from http://www.associatednewspapers.com/ accessed on 5th April 2011
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Express Newspapers home page: available from http://www.express.co.uk/home accessed on 5th April 2011[1] http://www.gmgplc.co.uk/ accessed on 7th April 2011
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IV. Cases Cited


A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

Abramovich v Gruppo Editoriale L’Espresso SPA unreported 18th March 2010

Argyll v Argyll [1967] 1 QB 349

Ash v Mckennit [2008] Q.B. 73

Attorney General v Jonathan Cape [1976] 1 QB 752 [Crossman Diaries]

Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109

Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22

Bari v BBC unreported 16th July 2009

Baturina v Times Newspapers [2011] EWCA Civ 308

Berezovky v Forbe Inc (No.2) [2001] EMLR 48, CA

Bowman v MGN Ltd [2010] EWHC 895 (QB)

British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

Buxton v MGN Ltd unreported 10th December 2009,

Campbell v MGN Ltd [2004] UKHL 22

Coco v A N Clark (Engineers) Ltd[1969] RPC 31

Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)

Curran v Scottish Daily Record and Sunday Mail Ltd[2010] CSOH 44,

Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div) at p.1001

Douglas v Hello! (no.9) [2004] EWHC 63 (Ch)

Duke of Brunswick v Harmer (1849) 14 Q.B. 185 (QB)

Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB)

Entick v Carrington (1765) 19 St Tr 1030

Ewing v News International Ltd [2008] EWHC 1390 (QB)

Farage v Times Newspapers unreported 11th June 2008

Financial Times Ltd v United Kingdom (821/03) (2010) 50 E.H.R.R. 46

Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21 at p.1172

Gascoigne v News Group Newspapers Ltd unreported 7th May 2010

George v Express Newspapers unreported 19th July 2010

Godfrey v Demon Internet [1999] EMLR 542

George v MGN Ltd unreported 14th May 2010,

31.Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804

Hewitt v Express Newspapers unreported 22nd July 2010

33.Horrocks v Lowe [1975] AC 135 at 150

34.Hudson v Associated Newspapers Ltd unreported 4th March 2009

35.Hulton v Jones [1910] AC 20

36.Imutran Ltd v Uncaged Campaigns Ltd [2001] E.C.D.R. 16

37.In re Guardian News and Media Ltd and others [2010] 2 A.C. 697

38.Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB),

39.Jeynes v News Magazines Ltd [2008] EWCA Civ 130

James v Commonwealth of Australia [1936] A.C. 578

Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

Jones v Telegraph Media Group Ltd unreported 23rd June 2009,

Kaye v Robertson [1991] F.S.R. 62

Lait v Evening Standard Ltd [2010] EWHC 3239 (QB)

Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB)

Lucas v Express Newspapers unreported 25th May 2010

Margolis v Independent News & Media Ltd unreported 21st May 2010

Marshall v Express Newspapers unreported 29th January 2009

Martin v Channel Four Television Corp [2009] EWHC 2788 (QB)

McGill v 365 Media Group Plc unreported 31st July 2008

McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22

Mottley v IPC Media Ltd unreported 7th October 2008

Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)

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Murat v Associated Newspapers Ltd unreported 16th July 2008,

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Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006.

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Osbourne v Express Newspapers Unreported 5th June 2008

Perry v UK (2004) 39 EHRR 76

Pretty v UK (2002) 35 EHRR 1

Prince Albert v Strange (1849) 1 Mac & G 25

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67.Regina (Prolife Alliance) v British Broadcasting Corporation [2004] 1 A.C. 185

68.Regina v Shayler [2003] 1 A.C. 247 at p.266

69.Regina v Advertising Standards Authority Ltd Ex p.Vernons Organisation [1992] 1 W.L.R. 1289

70.Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

71.Re s (A Child) [2004] UKHL 47 at para 23

72.Sim v Stretch [1936] 2 All ER 1237 at 1240

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Shaffer v Associated Newspapers Ltd Unreported 13th February 2008

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Stephens v Avery [1988] Ch 449

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Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009,

Venables v News Group Newspapers [2001] Fam 430

Von Hannover v Germany [2004] E.M.L.R. 21

X and Y v. Netherlands (1985) 8 E.H.R.R. 235

Zola v BBC unreported 12th May 2009

Zuma v Guardian News & Media Ltd unreported 30th July 2009, ,

V. Legislation

Human Rights Act 1998

Declaration of the Rights of Man and of the Citizen

Bill of Rights

Regulation of Investigatory Powers Act 2000

Data Protection Act 1998

Freedom of Information Act 2000

Obscene Publications Act 1959 and 1964

Official Secrets Act 1911 & 1989

Public Order Act 1986

European Convention on Human Rights

VI. Other materials

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Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) Retrieved 2011.4.1 and available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats

Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

English translation of the Civil Code of France]: http://195.83.177.9/upl/pdf/code_22.pdf

ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

APPENDIX A:

Every libel action involving a newspaper between January 2008 and March 2011. The analysis of cases was obtained from www.westlaw.co.uk

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1. Jeynes v News Magazines Ltd Court of Appeal (Civil Division) reported on 31 January 2008, [2008] EWCA Civ 130;

Case Analysis

An issue of “love it!” magazine had featured on its front cover a photograph of J together with the words “BB’s Lisa ‘The Geezer’ – My fake boobs fell out on date with James Hewitt!”. That was a trailer for an article within the magazine concerning J’s account of her date. A newspaper later carried an advertisement for the magazine showing its front cover. J issued a libel action against N, who were the publishers of the magazine and newspaper respectively. She contended that the words on the front cover bore the natural and ordinary, alternatively the inferential, meaning that she was either a man posing as a woman, or that she was a transgendered or transsexual person who had been born a man but had become a woman.(Unsuccessful appeal against claim being struck out at first instance).

Judge: Sir Anthony Clarke, M.R.; Tuckey, L.J.; Jacob, L.J.

Counsel: For the appellant: Adrian Davies, S Hastie. For the respondents: Andrew Caldecott QC, Alexandra Marzec.

Solicitor: For the appellant: Osmond & Osmond. For the respondents: Farrer & Co.

2. Shaffer v Associated Newspapers Ltd Unreported Queen’s Bench Division

13 February 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

3. Mosley v News Group Newspapers Ltd [Convention rights arguments]

Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

4. Curistan v Times Newspapers Ltd Court of Appeal (Civil Division) [appeal]

30 April 2008

Case Analysis

Summary: In the circumstances passages in a newspaper article, which were a fair and accurate report of proceedings in Parliament, were protected by qualified privilege and did not lose that privilege by reason of the comments added by the newspaper to those passages. The meaning that the newspaper had to defend was the meaning to be attached to those portions of the article that were additional to those protected by privilege, and that meaning was that there were grounds to suspect that the allegations made were true rather than that they were true. [appeal refused –

The appellant (C) appealed against a decision ( [2007] EWHC 926 (QB), [2008] 1 W.L.R. 126 ) on a trial of preliminary issues that passages in an allegedly defamatory article in the newspaper published by the respondent (T) were protected by qualified privilege, and T cross-appealed against the judge’s finding on the article’s defamatory meaning

Judge: Lord Philips, L.C.J.; Laws, L.J.; Arden, L.J.

Counsel: For the appellant: Richard Parkes QC, Matthew Nicklin. For the respondent: Victoria Sharp QC, Alexandra Marzec.

Solicitor: For the appellant: Schillings. For the respondent: In-house solicitor.

5. Murray v Express Newspapers Plc [Convention right argument] [appeal] Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division)

07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed. (1) In deciding whether there had been an infringement of art.8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If there was found to be a reasonable expectation of privacy, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered. (2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting [2005] 1 N.Z.L.R. 1 for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered. (3) There may well be circumstances, even after Hannover , in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Judge: Sir Anthony Clarke, M.R.; Laws, L.J.; Thomas, L.J.

Counsel: For the appellant: Richard Spearman QC, Godwin Busuttil. For the respondent: Mark Warby QC, Jonathan Barnes.

Solicitor: For the appellant: Schillings. For the respondent: Solomon Taylor & Shaw.

6. Osbourne v Express Newspapers Unreported Queen’s Bench Division

05 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings

7. Farage v Times Newspapers unreported Queen’s Bench Division

11 June 2008

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

8. Murat v Associated Newspapers Ltd Queen’s Bench Division

16 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

9. Ewing v News International Ltd Queen’s Bench Division 22 July 2008

[2008] EWHC 1390 (QB);

Case Analysis:

Vexatious litigant and s.42(3) of the Supreme court act 1981] Application refused. (1) The test under s.42(3) should be exercised with due care and caution or carefully and sparingly Becker v Teale [1971] 1 W.L.R. 1475 and Attorney General v Jones (Marcus David) [1990] 1 W.L.R. 859 applied. An applicant had to show that there were reasonable grounds for bringing a claim and, when considering whether there were reasonable grounds, the court normally had to consider whether or not that claim had a real prospect of success.

10. Tesco Stores Ltd v Guardian News & Media Ltd Queen’s Bench Division

29 July 2008 [2009] E.M.L.R. 5; (2008) 105(34) L.S.G. 24; (2008) 152(34) S.J.L.B. 29

Case Analysis:

Summary: It was not possible for a claimant indefinitely to elect neither to accept nor to reject an offer of amends made in defamation proceedings. To do so would undermine the statutory regime under the Defamation Act 1996 and make a nonsense of Parliament’s intention in introducing the offer of amends defence.

Abstract: The court was required to determine whether the claimant supermarket chain (T) was entitled neither to accept nor to reject an offer of amends proffered by the respondent newspaper (G) following G’s publication of defamatory statements. G had published allegations that T had engaged in a scheme designed to avoid corporation tax, and T instigated a libel action against G and a claim for malicious falsehood. G admitted the falsehood of its principal allegation, namely that the particular scheme in question did not involve the avoidance of corporation tax. G also admitted that the meanings pleaded by T were defamatory. G published a retraction of its principal allegation, stating that T had not been involved in the avoidance of corporation tax but rather an avoidance of stamp duty land tax. G served its defence 21 minutes after making an offer of amends pursuant to the Defamation Act 1996 s.2. T neither accepted nor rejected that offer. The issue for determination was whether T should be compelled to elect either to accept or to reject the offer of amends, and whether its malicious falsehood claim should be stayed as serving no useful purpose. G submitted that there was no head of damages recoverable in malicious falsehood that T could not recover in the defamation claim and that the malicious falsehood claim was only extant for tactical reasons. T argued that, even if it accepted the offer of amends and obtained an apology and damages under the statutory scheme, it could go on and obtain a decision on the malicious falsehood issue so as to have the court’s finding in relation to malice.

Judgment accordingly. (1) The philosophy underlying Parliament’s introduction of the offer of amends regime contained in the Defamation Act 1996 was to enable parties in defamation proceedings, or even prior to the issue of proceedings, to achieve a relatively speedy and inexpensive disposal of a complaint of injury of reputation where the defendant was prepared to acknowledge that it had published defamatory allegations that were essentially inaccurate. It would make a nonsense of that underlying policy if it were possible for a claimant to go ahead with proving malice whilst keeping an offer of amends available until the conclusion, or throughout the duration, of the trial, Express Newspapers Plc v News (UK) Ltd [1990] 1 W.L.R. 1320 applied. T had to accept the offer of amends or else take on the risk of overcoming the statutory defence by proving malice at trial. Furthermore, there was no legitimate reason why T should be allowed to pursue a claim for malicious falsehood. It would not afford any substantive remedy in respect of reputation, and any damages to which T might be entitled as a result of G’s publications could be recovered in defamation, Burstein v Times Newspapers Ltd [2001] 1 W.L.R. 579, Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 and Warren v Random House Group Ltd [2008] EWCA Civ 834, [2009] Q.B. 600 considered. Accordingly, the malicious falsehood claim would be stayed. (2) Finally, G would be allowed to amend its pleadings to include a proposal that T had been avoiding stamp duty land tax as opposed to corporation tax, Birchwood Homes Ltd v Robertson [2003] EWHC 293 (QB) considered.

Judge: Eady, J.

Counsel: For the claimant: A Page QC, J Rushbrooke. For the defendant: A Caldecott QC, C Evans.

11. John v Guardian News and Media Ltd Queen’s Bench Division

12 December 2008 [2008] EWHC 3066 (QB); Official Transcript

Case Analysis

Summary: In context, the words complained of in a libel action were not capable of bearing the meaning attached to them by the claimant. No reasonable reader of the publication would have understood the words complained of as containing serious allegations about the claimant and his charitable donations.

Abstract: The applicant media corporation (G) applied to strike out a libel claim brought against it by the respondent musician (J). G had published what purported to be an extract of J’s diary in a supplemental newspaper magazine called the “Weekend”. The extract included statements of purported fact and opinion that were attributed to J. In particular, the extract referred to an annual ball that was hosted by J for the purpose of raising money for a charity (C). The article stated that once the costs of hosting the event had been deducted from the proceeds, any remaining money was given to C. J issued a libel claim against G on the basis that (i) by their natural and ordinary meaning, the words complained of suggested that J was insincere about his commitment to C’s aims and objectives; (ii) by way of innuendo the same words also suggested that he dishonestly or falsely claimed that all money raised during the event went to C, when only the balance of money raised at the event, subtracting the costs of hosting the event, was made available to C. G submitted that no reasonable reader would have sensibly thought that the words complained of meant that the money raised by the ball was used to cover the costs of the event and that, thereafter, only a small proportion of the remaining money was made available for charitable objectives.

Appeal allowed. The designation of the supplement, in which the words complained of were contained, assisted in understanding the extent to which the words could be understood to be factual or not. On the basis that the “Weekend” supplement was not part of the news section of the paper, the words complained of would not have been understood by a reasonable reader as containing a serious allegation of fact. If such an allegation was being made, a reasonable reader would have expected it to have been made without humour and to have been written explicitly in the part of the newspaper devoted to news. Unless a reader was exceptionally suspicious or naive, he would be bound to understand that the words complained of were not to be understood as a factual statement as to how the money raised at the ball was spent. Thus, the words complained of were not capable of bearing the meanings attributed to them by J and consequently, his claim fell to be struck out. Furthermore, J’s associated plea of malice fell to be struck out since it was dependent on the court endorsing J’s view of the meaning behind the words complained of.

Judge: Tugendhat, J.

Counsel: For the claimant: William McCormick. For the defendant: Gavin Millar QC, Anthony Hudson.

Solicitor: For the claimant: Carter Ruck. For the defendant: Isobel Griffiths.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Helen Morris. For the defendant: Kate Wilson.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15.Hudson v Associated Newspapers Ltd Queen’s Bench Division

04 March 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication and broadcast of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (H) against the defendant newspaper publishers and broadcaster (N). N had published articles in their newspapers, on their websites and broadcast items that made various allegations relating to the 16th birthday party of H’s daughter at her home. The overall impression was that H allegedly had failed to exercise proper parental supervision over the party. In fact, all the allegations were false. There was no basis to accuse H of failing to exercise proper supervision. N apologised for publishing the false allegations and had published apologies in their respective newspapers or on their websites. N also agreed to pay H substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Sir Charles Gray

16. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009 [2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis:

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis:

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

18. Jones v Telegraph Media Group Ltd Queen’s Bench Division

23 June 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

Solicitor: For the claimant: Carter-Ruck.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division

30 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20 .Ecclestone v Telegraph Media Group Ltd Queen’s Bench Division

06 November 2009 [2009] EWHC 2779 (QB);

Case Analysis:

Summary: An item in a newspaper diary column, which quoted the claimant as saying that she was not a vegetarian and “did not have much time for people like the McCartneys and Annie Lennox”, was not capable of bearing the defamatory meaning that she contended it did. The ordinary reasonable reader would see the words as nothing more than the expression of a permissible view.

Abstract: The applicant newspaper publisher (T) applied for a ruling that the words complained of by the respondent fashion designer (E) in her libel action were not capable of being defamatory. T published an item in a diary column about E, in which she was quoted as having said, “I am not a veggie and I don’t have much time for people like the McCartneys and Annie Lennox.” She denied saying that, and claimed that in their natural and ordinary or inferential meaning the words meant and were understood to mean that she was disrespectful and dismissive of the McCartneys and Annie Lennox to the point of being willing to disparage them publicly for promoting vegetarianism. T submitted that the real focus of E’s complaint, the phrase “haven’t much time for”, was commonly used and a perfectly acceptable way of expressing a difference of opinion or preference. If the opinion of the speaker was acceptable the phrase did not necessarily impute a dislike or disparagement of a person holding a contrary view. T submitted that even if the phrase connoted such an imputation, that in itself would not make the item defamatory. [action struck out]

21. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis:

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

22. Guardian News & Media Ltd, Re Also known as: HM Treasury v Youssef

al-Ghabra v HM Treasury Ahmed v HM Treasury Supreme Court

27 January 2010 [2010] UKSC 1; [2010] 2 A.C. 697; [2010] 2 W.L.R. 325; [2010] 2 All E.R. 799; [2010] E.M.L.R. 15; [2010] H.R.L.R. 14; [2010] U.K.H.R.R. 181; (2010) 107(6) L.S.G. 18; (2010) 154(4) S.J.L.B. 29; [2010] N.P.C. 8; Times, January 28, 2010;

Case Analysis:

In the circumstances, there was a powerful general public interest in identifying M which justified curtailment of his art 8 rights. M’s argument really amounted to saying that the press should be prevented from printing what was true for fear that some of those reading the reports might misinterpret them and act inappropriately. [Convention arguments]

23. Ali v Associated Newspapers Ltd Queen’s Bench Division

27 January 2010 [2010] EWHC 100 (QB);

Case Analysis:

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

24. Curran v Scottish Daily Record and Sunday Mail Ltd Court of Session (Outer House) 26 March 2010 [2010] CSOH 44; 2010 S.L.T. 377; 2010 G.W.D. 11-191; Official Transcript

Case Analysis:

Summary: A newspaper article did not amount to defamation where, having regard to its timing and context, its contents could be characterised as fair retort, and qualified privilege therefore attached.

Abstract: A member of the Scottish Parliament (C) sought damages from a newspaper company (D) in respect of alleged defamatory comments contained within articles based on interviews with another member of the Scottish Parliament (S) who had previously belonged to the same political party as C. C and other MSPs had released a press statement immediately following S’s success in a defamation action against a newspaper group, stating that S had lied during the court case. The articles complained of were published three days later, and referred to C as a “scab” or a “political scab” and included her photograph with the word superimposed upon it. D moved for dismissal, submitting that (1) criticism by one MSP of another did not amount to defamation because of the permitted latitude in criticising those who hold public office and the article had to be read as a whole, the test being whether the words used in it tended to lower the pursuer in the estimation of right thinking members of society generally; (2) in any event, the comments made in the article were protected by qualified privilege in the form of fair retort to the attack made upon S by C and her colleagues.

25. Dee v Telegraph Media Group Ltd Queen’s Bench Division

28 April 2010 [2010] EWHC 924 (QB); [2010] E.M.L.R. 20; (2010) 160 N.L.J. 653; Official Transcript

Case Analysis:

Summary: It was arguable that a professional sportsman could be libelled by suggestions that he lacked skill or was incompetent. However, on the facts of the instant case a newspaper article which highlighted a professional tennis player’s 54 consecutive defeats on the international tennis circuit was not defamatory as the publisher could rely on the defence of justification and/or fair comment.

Any application for summary judgment in a libel case is difficult – because any seriously disputed issues of fact or meaning have to be left to the jury – nevertheless, the case is a remarkable one and it is not surprising that an application was made.

26. Gascoigne v News Group Newspapers Ltd Queen’s Bench Division 07 May 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher (N). N had published an article that reported on the reaction of G’s ex-husband, an ex-England footballer, to an interview given by G in relation to her autobiography. The article falsely alleged that G had lied in both her book and the interview about her ex-husband forcing himself upon her sexually and acting violently towards her. In fact, the allegations were entirely untrue. N apologised and agreed to pay G damages along with her legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: Roderick Chisholm-Batten. For the defendant: Patrick Callaghan.

27. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

28. Lucas v Express Newspapers Queen’s Bench Division 25 May 2010

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (L) against the defendant newspaper publisher (E). E had published articles in its newspaper concerning L’s state of being following the death of his ex-partner. E did not provide L with any warning that it intended to publish the articles, or any indication of their contents. The statements were false and caused L considerable upset and distress. E accepted that the articles constituted an unlawful intrusion into L’s grief and suffering and that the statements therein were false and should not have been published. E retracted the allegations, agreed not to republish the articles and apologised to L. E also agreed to pay L substantial damages and his legal costs.

Judge: Tugendhat, J.

Counsel: For the claimant: John Kelly.

Solicitor: For the claimant: Schillings.

29. Thornton v Telegraph Media Group Ltd Queen’s Bench Division

16 June 2010 [2010] EWHC 1414 (QB); [2010] E.M.L.R. 25;

Case Analysis

Summary: In the context of defamation, the position of professional writers could be compared to the position of professional sportsmen in Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB), [2010] E.M.L.R. 20; writers were free to direct different products to different readerships or markets. As long as the true position was made clear by the writer to the prospective reading public, the standards to which a writer wrote were simply a matter of choice of one product over another and therefore to impute to a writer that they wrote to one standard rather than another could not of itself be defamatory.

Abstract: The applicant newspaper (X) applied for summary judgment of an action for libel commenced by the respondent book author (T). Whilst researching her book, T had conducted several interviews. X had published an unfavourable review of the book, in which it stated among other things that T had given her interviewees the right to read what she proposed to say about them and alter it, which was known by journalists as “copy approval” and very much disapproved of. T considered X’s statement to have a defamatory meaning. She maintained in her particulars of claim that the statement also suggested a second defamatory meaning, namely that she had shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer. The court was required to determine, for the purposes of both CPR r.24.2 and CPR PD 53 4.1(2) whether T had a real prospect of establishing that the relevant words were defamatory of her. X submitted that in order to be actionable as business defamation and defeat defences of justification and fair comment, words had to do more than injure a claimant in the way of their office, profession or trade. X contended that as copy approval was not illegal or contrary to any professional code, the allegation did not amount to business libel because it was not serious enough to pass the required threshold of seriousness. T argued that the allegation was business or professional libel because it undermined her integrity as a professional writer and that to impute incompetence in a claimant’s profession was sufficient to constitute defamation. (summary judgement granted for paper)

30. Flood v Times Newspapers Ltd Court of Appeal (Civil Division)

13 July 2010 [2010] EWCA Civ 804; [2011] 1 W.L.R. 153; [2010] E.M.L.R. 26; [2010] H.R.L.R. 30; Times, July 27, 2010;

Case Analysis:

Summary: The inquiry involved in deciding whether the Reynolds defence applied to a defamatory statement was a matter of judgment which raised a question of law to which there was only one right answer. It was not an exercise of discretion, and could therefore be a matter for an appellate court. [appeal allowed against newspaper]

31. George v Express Newspapers Queen’s Bench Division 19 July 2010

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant actor and DJ (G) against the defendant publisher (E). E had published an article in one of its newspapers that falsely suggested that G had been drunk and intent on causing trouble at a party and that, as a result, he had been removed from the party by security guards. In fact, the allegations were entirely false. E accepted that the allegations were untrue and should not have been published. It apologised for the damage to G’s reputation and for the distress and embarrassment which the publication caused. E agreed to pay G damages and his legal costs. Leave to withdraw the record was requested.

Judge: Tugendhat, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Kate Wilson.

32. Hewitt v Express Newspapers Queen’s Bench Division 22 July 201 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

Counsel: For the claimants: Luke Staiano.

Solicitor: For the claimants: Carter-Ruck.

33. Ronaldo v Telegraph Media Group Ltd Queen’s Bench Division

27 October 2010 [2010] EWHC 2710 (QB);

Case Analysis:

Summary: Whilst it was an abuse of process for defamation proceedings to be pursued that were not serving the legitimate purpose of protecting the claimant’s reputation, the claimant’s vindication in the settlement of his claim against one publisher did not mean that his continuing claim against a second publisher was an abuse.

Abstract: The applicant newspaper publisher (T) applied for a libel action by the respondent footballer (R) to be stayed as an abuse of the process of the court. R was claiming that an article published by T falsely stated he had drunk lots of champagne and danced at a nightclub shortly after an ankle operation, thereby suggesting he was unprofessional and reckless. In the meantime, another newspaper publisher (M) which had published a similar article had reached a settlement with R. In a statement in open court, it was said that M accepted the allegations it had published were untrue, R had been paid substantial damages and he considered himself to be fully vindicated. T submitted that following the vindication of R in his action against M, his instant claim no longer served the legitimate purpose of protecting his reputation.

Judge: Sharp, J.

Counsel: For the claimant: James Price QC, Adam Speker. For the defendant: David Price.

Solicitor: For the claimant: Schillings. For the defendant: David Price.

34. Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) Queen’s Bench Division 08 November 2010 [2010] EWHC 2819 (QB);

Case Analysis:

Subject: Defamation Other related subjects: Media and entertainment; Civil procedure

Keywords: Libel; Newspapers; Nightclubs; Statements of case

Summary: Libel proceedings against a local newspaper publisher were struck out on the basis that the claimant’s fifth attempt to draft a statement of case was still deficient for the purposes of CPR r.3.4(2)(a) and (b).

Abstract: The applicant nightclub owner (X) applied to set aside an order staying libel proceedings brought against the respondent newspaper publisher (Y) and Y cross-applied to strike out the claim. X owned a nightclub that had had its alcohol licence revoked by the relevant local authority after the police discovered evidence of illegal activities on the premises. Y had published a series of articles that referred to the nightclub’s closure and the surrounding circumstances. X commenced libel proceedings against Y. The principle meaning complained of was that words used in the articles suggested that X had been involved in criminal activity. X’s statement of claim was deficient in a number of regards. A master determined that X had failed to provide necessary details to support his claim pursuant to CPR r.3.4(2)(a) and, so far as he was seeking general damages, the action was worth no more than a nominal amount, if anything at all. Consequently, the master determined that the case, as formulated, infringed r.3.4(2)(b). X’s final draft statement of case was his fifth attempt to comply with the CPR.

Application refused, cross-application granted. The master was entitled to form the view that X’s statement of case was deficient and contrary to r.3.4(2)(a) and (b). His claim for damages bore no relation whatever, either to the law or reality. The master was entitled to conclude that the action was in fact worth no more than a nominal amount if anything at all. X’s claim was without merit and his calculations of loss entirely imaginary. Even if X were given another opportunity to put his claim in proper form, and if he limited his claim to general damages, it would, on its merits, have no real prospect of success (see paras 32 -34 of judgment).

Judge: Tugendhat, J.

Counsel: For the applicant: In person. For the respondent: Richard Munden.

Solicitor: For the respondent: Reynolds Porter Chamberlain.

35. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed. [judgement for newspaper – references to pilot scheme?]

Judge: Eady, J.

Counsel: For the claimant: Richard Rampton QC, Ian Helme. For the defendant: Mark Warby QC, Victoria Jolliffe.

Solicitor: For the claimant: Carter-Ruck. For the defendant: Taylor Wessing LLP.

APPENDIX B

Every Libel Case Mr Justice Eady was involved in between February 2008 and March 2011.The analysis of cases was obtained from www.westlaw.co.uk

1. Shaffer v Associated Newspapers Ltd Queen’s Bench Division 13 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the administration of the estate of the claimant’s brother.

Abstract: A statement in open court was made in a libel action brought by the claimant (S) against the defendant newspaper publisher (N). N had published an article wrongly alleging that S had thwarted his late brother’s testamentary wishes resulting in his nieces being improperly deprived of their inheritance. In fact, S had acted at all times on legal advice and in accordance with the provisions of his late brother’s will and had administered the estate properly. N acknowledged that the allegations were untrue and agreed to withdraw publicly the false allegations and apologise to S for the hurt and distress caused by the publication.

Judge: Eady, J.

Counsel: For the claimant: Hanna Basha. For the defendant: Nick Braithwaite.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

2. Smith v World Entertainment News Network Ltd Queen’s Bench Division

22 February 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article about the claimant actor.

Abstract: A statement in open court was made in a libel action brought by the claimant actor (S) against the defendant news network (W). W had published an article which falsely claimed that S had declared in an interview that Nazi dictator Adolf Hitler was a good person. The allegation was false and without any foundation. In fact, S believed that Hitler was a vile and heinous man. W agreed to apologise for the distress and embarrassment caused by the allegations, which it acknowledged were false. W also agreed to pay an amount of damages to S for the libel. S intended to donate the award of damages to charity. W agreed to pay S’s legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Rachel Atkins. For the defendant: Marvin Simons.

Solicitor: For the claimant: Schillings. For the defendant: Seddons.

3 .Osbourne v Express Newspapers Queen’s Bench Division 05 June 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article concerning a musician.

Abstract: A statement in open court was made in a libel action brought by the claimant musician (O) against the defendant newspaper publishers (E). O had hosted a prestigious music awards ceremony with his wife and two children. The following day, E published an article falsely alleging that O had thrown the ceremony into chaos after he suffered a health scare. The article falsely reported that as a result of his health scare, O had to be ferried around the ceremony in an electric buggy. The article was republished on E’s website, where it was also falsely claimed that O and his wife sat on thrones when they were not speaking as O insisted on having a place to sit in case he got tired. In fact, O was fit and well at the time of the awards and none of the allegations were true. E accepted that the allegations were untrue and ought never to have been published. E agreed to set the record straight publicly, retract the libels and undertake never to republish the libels. E agreed to publish an apology and pay O substantial undisclosed damages and his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Kate Wilson.

Solicitor: For the claimant: Schillings.

4. Farage v Times Newspapers Queen’s Bench Division 11 June 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article concerning the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant politician (F) against the defendant newspapers (T). T had published an article wrongly alleging that F had employed his son (Y) to work as his assistant, paying him out of taxpayers’ money whilst Y was in full-time education. T accepted that there was in fact no foundation to the allegation and agreed to publish an apology in the Sunday Times. T undertook not to repeat the allegation and agreed to pay F damages and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Andrew Stephenson. For the defendant: Gillian Phillips.

Solicitor: For the claimant: Carter-Ruck. For the defendant: In-house solicitor.

5. Murat v Associated Newspapers Ltd Queen’s Bench Division 16 July 2008

Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a number of articles regarding the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimants (R) a businessman, (M) a translator and (S) an IT consultant against the defendant publishers. The defendants had published numerous articles in their respective newspapers and websites covering the Madeleine McCann story, wrongly alleging that R, M and S all played a part in the abduction. In relation to R, the defendants wrongly suggested in numerous articles that not only had R abducted Madeleine, but that he had lied to the police, had obstructed their investigation and had paedophilic tendencies. The defendants wrongly alleged that M had been cast out of her church, that she had lied to the police about her whereabouts when Madeleine was abducted and that she was part of a paedophile ring. It was also alleged in some of the papers that S, along with R, had been involved in the abduction of Madeleine, that S had convictions for sex offences and was interested in child pornography. In fact, R had helped the police with their investigations by becoming a volunteer translator, M was never suspected or accused of any involvement with the abduction of Madeleine McCann and S was not guilty of any sexual misconduct and had no criminal convictions. The defendants accepted that none of the claimants had played any part whatsoever in Madeleine’s abduction, and that the allegations made were wholly false. They withdrew the statements from the newspapers’ websites. The defendants apologised for the false defamatory allegations published, agreed to publish apologies and paid substantial damages to the claimants as well as covering their legal costs.

Judge: Eady, J.

Solicitor: For the claimant: Simons Muirhead & Burton. For the defendants: Reynolds Porter Chamberlain LLP.

6. Mosley v News Group Newspapers Ltd Queen’s Bench Division, 24 July 2008

[2008] EWHC 1777 (QB); [2008] E.M.L.R. 20; (2008) 158 N.L.J. 1112; Times, July 30, 2008;

Case Analysis

Summary: There was a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The exposure by a national newspaper of sado-masochistic and some sexual activities and role play between the claimant and other consenting adult participants could not be justified on grounds of public interest and had been in breach of confidence and the claimant’s rights under the European Convention on Human Rights 1950 art.8 .

Abstract: The claimant (M) sought damages from the defendant newspaper publisher (N) for breach of confidence and the unauthorised disclosure of personal information which infringed his rights of privacy as protected by the European Convention on Human Rights 1950 art.8 . M was the President of the FIA. One of N’s newspapers had published an article under the heading “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” , accompanied by a number of captioned images, which concerned an event attended by M and five women involving sado-masochistic and some sexual activities and role play. The same information and images were published on N’s website, which contained video footage relating to the same event. The articles alleged that the sessions had a Nazi theme and mocked the way that Holocaust victims had been treated in concentration camps. A “follow up” article was published a week later, headed “EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS”, which consisted of a purported interview with one of the women (E) who had been present at the event in question and had filmed what took place clandestinely with a hidden camera supplied by N. M contended that the content of the published material was inherently private in nature and that there had also been a pre-existing relationship of confidentiality between the participants as they had all known each other for some time and had taken part in their activities on the understanding that they would be private and that none of them would reveal what had taken place. M alleged that E had breached that trust. N contended that M had no reasonable expectation of privacy in relation to the information or images concerning the event, or alternatively that M’s right to privacy under art.8 of the Convention was outweighed by a greater public interest in the disclosure, such that its right to freedom of expression under art.10 of the Convention should, in the circumstances, be allowed to prevail. N submitted that, because of M’s role as president of the FIA, the public had a right to know about the nature of the sexual activities that he indulged in. M denied that the event had had any Nazi theme or anything to do with concentration camps.

Judgment for claimant. (1) The law now afforded protection to information in respect of which there was a reasonable expectation of privacy, even in circumstances where there was no pre-existing relationship giving rise of itself to an enforceable duty of confidence, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 considered. M had a reasonable expectation of privacy in relation to sexual activities, albeit unconventional, carried on between consenting adults on private property. The clandestine recording of sexual activity on private property engaged the rights protected by art.8 of the Convention, and serious reasons had to exist before interferences with it could be justified, Dudgeon v United Kingdom (A/45) (1982) 4 E.H.R.R. 149 considered. It had to be determined whether the degree of intrusion into a claimant’s privacy was proportionate to the public interest supposedly served by it, Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 applied. Moreover, E had owed a duty of confidence to M and the other participants. Those who participated in sexual or personal relationships might be expected not to reveal private conversations or activities. It was highly questionable whether, in modern society, the concept that “there is no confidence in iniquity” could be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private. E had, therefore, committed a breach of confidence as well as a violation of the art.8 rights of all those involved. (2) There was no evidence that the event attended by M and the other participants was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes, and nor had it been so in fact. There was no genuine basis at all for the suggestion that the participants had mocked the victims of the Holocaust. Whilst there had been bondage, beating and domination typical of sado-masochistic behaviour, there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of video extracts on the website, all of which had been done on a massive scale. Although such behaviour was viewed by some people with distaste and moral disapproval, in the light of modern rights-based jurisprudence that had not provided any justification for the intrusion on the personal privacy of M. (3) It was necessary to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and the distress caused. However, it was not right to extend the application of exemplary or punitive damages into the field of the right to privacy or to include an additional element specifically directed towards deterrence. That was not a legitimate exercise in awarding compensatory damages. No amount of damages could fully compensate M for the damage done to him and what could be achieved by a monetary award in the circumstances was limited. Any award had to be proportionate and avoid the appearance of arbitrariness. The right award, taking those considerations into account, was one of ?60,000.

Judge: Eady, J.

Counsel: For the claimant: James Price QC, David Sherborne. For the defendant: Mark Warby QC, Anthony Hudson.

Solicitor: For the claimant: Steeles. For the defendant: Farrer & Co.

7. McGill v 365 Media Group Plc Queen’s Bench Division 31 July 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant football agent (C) against the defendant publisher (D). D had published a story on its transfer gossip website alleging that C had invited a Celtic player to visit Villa Park to watch Aston Villa play, the implication of which was that C, in breach of the rules of football’s regulatory bodies, was trying to induce the player to break his contract and join Aston Villa without the permission of Celtic, thus making C guilty of “tapping up”. In fact, C had advised the player to sign his current contract and stay at Celtic. D also alleged that C had set up deals that took other Celtic players to the Midlands. D accepted that all of the allegations made were totally without foundation and should not have been published. D published an apology and withdrawal on its website, paid C substantial damages and covered his legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Paul Hackney.

Solicitor: For the claimant: Geldards LLP (Derby).

8. Mottley v IPC Media Ltd Queen’s Bench Division 07 October 2008 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of an article that referred to the claimant member of the Barbados Parliament.

Abstract: A statement in open court was made in a libel action brought by the claimant member of the Barbados Parliament (M) against the defendant publisher (P). P had published an article in one of its magazines in which reference was made to a Barbadian calypso song that suggested M had assaulted another woman. In fact, M had never assaulted anyone in the manner described in the article or at all. Further, the suggestion of assault in the song was based on a totally unfounded rumour. P apologised for publishing the article and agreed to cover M’s legal costs as well as paying a substantial sum in damages. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: David Price (Solicitor Advocate). For the defendant: Paul Fox.

9. Murat (Robert) v British Sky Broadcasting Ltd Queen’s Bench Division 14 November 2008 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article that referred to the claimant.

Abstract: A statement in open court was made in an action for libel brought by the claimant (M) against the defendant publishers (B). B had published an article to its website covering the Madeleine McCann story together with a video entitled “It reminded me of Soham”. Both the video and the article falsely alleged that there were strong grounds to believe that M, who was resident in the area when Madeleine disappeared, was guilty of abducting her. The article and video went further and likened M’s behaviour, in the days after Madeleine’s disappearance, to that of a notorious child murderer. They also falsely suggested that M deliberately tried to mislead journalists by pretending to be acting in an official capacity for the police. In fact, M was heavily involved in the search for Madeleine after her disappearance and was recruited by the police to act in an official capacity as an interpreter. B acknowledged that the allegations made were entirely false and that M played no part in the abduction of Madeleine. B also acknowledged that M did not behave like a child murderer nor did he try to mislead or lie to journalists. B agreed to publish an apology on its website for a period of 12 months and to pay substantial damages to M as well as covering his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Louis Charalambous. For the defendant: Victoria Shore.

Solicitor: For the claimant: Simons Muirhead & Burton.

10. Crossley v Newsquest (Midlands South) Ltd Queen’s Bench Division

11 December 2008 [2008] EWHC 3054 (QB);

Case Analysis:

Summary: Absolute privilege under the Defamation Act 1996 s.14 extended to the reporting of previous court hearings, insofar as it was reasonably necessary to give context to a contemporaneous report of a court hearing.

Abstract: The appellants (C) appealed against a decision of a master to strike out their libel claim against the respondent newspaper publisher (N). Three days after a final county court hearing about a nuisance action brought against C by their neighbours, N had published an article about the hearing. The article also referred to court hearings that had taken place a few months previously. The nuisance action related to the effectiveness of a sewage system discharging sewage from C’s property. A photograph appeared in the article accompanied by a caption. C alleged that the caption contained an emotive phrase which was not an accurate representation of the findings of the county court judge. The master concluded that C’s claim was bound to fail because N could rely on the defences of privilege and that C’s plea of malice could not be supported. He also found that no reasonable jury could come to a finding other than the words were substantially true and the plea of justification was bound to succeed. Appeal dismissed. (1) The master was correct in concluding that absolute privilege would attach to parts of the article reporting on the county court hearing as that reporting would constitute a contemporaneous report of court proceedings for the purposes of the Defamation Act 1996 s.14 and there was little doubt that a report published three days after a court hearing would be so classified. Absolute privilege would also extend to the reporting of the earlier hearings at least insofar as it was reasonably necessary to give context to what took place at the county court hearing and to enable readers to understand the contemporaneous report of the court hearing. In other words, that coverage should be construed as forming an integral part of the contemporaneous report. The offending caption to the photograph would also be treated as part of the attempt to report, fairly and accurately, the outcome of the trial and would, therefore, attract qualified privilege. (2) The master was also correct in concluding that there was no realistic prospect of C establishing malice and there was nothing to support a plea of malice in the criticisms which were made of N’s phraseology. In particular, the caption to the photograph should be read in the context of the article as a whole; it was not appropriate to interpret headlines or captions as though they stood on their own, Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65 applied. (3) N was also entitled to rely on the defence of fair comment and there was no reason to suppose that the opinions expressed by the commentator in the article were not honestly held by him, Tse Wai Chun Paul v Cheng [2001] E.M.L.R. 31 considered. (4) The conclusions reached by the master on privilege, malice and fair comment were such as to entitle N to the relief sought. It was therefore strictly not necessary for him to go on to address the matter of justification. However, he was entitled to reach the conclusion that the plea of justification was bound to succeed. (5) The master was also entitled to reach the conclusion that the libel proceedings were an obvious attempt to re-litigate issues which had already been determined in earlier hearings and therefore constituted an abuse of process, Johnson v Gore Wood & Co (No.1) [2002] 2 A.C. 1 and Hunter v Chief Constable of the West Midlands [1982] A.C. 529 considered. (6) The master was also right to refuse C’s application to amend to add causes of action founded upon privacy and confidentiality as the hearing had taken place in open court and anything said in open court could be reported, R. v Arundel Justices Ex p. Westminster Press [1986] 1 W.L.R. 676 considered.

Judge: Eady, J.

Counsel: For the appellants: In Person. For the respondent: Alexandra Marzec.

Solicitor: For the respondent: Farrer & Co.

11. Mardas v New York Times Co, Mardas v International Herald Tribune SAS

Queen’s Bench Division 17 December 2008 [2008] EWHC 3135 (QB); [2009] E.M.L.R. 8;

Case Analysis

Summary: A judge had erred in striking out a claim for libel as an abuse of process. He had wrongly made findings of fact which should have been left to trial after full disclosure had occurred.

Abstract: The appellant (M) appealed against a decision to strike out his claim for libel made against the defendant foreign newspapers (N and H) as an abuse of process. N and H had published an article which referred to M concerning events which had taken place approximately 40 years earlier. M had claimed that the article had been published in the jurisdiction of England and Wales and he issued libel proceedings. However, the parties disputed the extent and forms of publication that had allegedly occurred. N and H applied for the proceedings to be struck out. The judge found that M stood no real prospect of establishing that there had been a hard copy publication by H. In allowing the applications, he considered the costs, resources and time that would be involved in the claims going to trial, that the article concerned matters that had happened 40 years ago and found that there had been publication to, at the most, two hundred people. M submitted that it would only rarely be appropriate to strike out an action as an abuse because a claimant’s reputation had suffered only minimal damage or there had been no real and substantial tort within the jurisdiction. M further contended that the judge had been too ready to make findings of fact on contested evidence and to conclude that there had been no real or substantial tort.

Appeals allowed. It was inappropriate for a finding of fact to be made about the scale of publication on the basis of incomplete evidence. The finding of fact was a matter which should have been left to trial. Furthermore, even if there had been publication to the number of people N alleged, there was no basis for concluding that there was no real and substantial tort. M wished to have the benefit of full disclosure and such further information as might be appropriate to disprove H’s contention that the article had not been published anywhere in printed form. The court could not refuse that opportunity. The number of times the internet article had been looked at via H’s website also could not be resolved until at least disclosure had taken place. Investigating the scale of publication further could be very expensive. If that had to be carried out and yielded no evidence of a wider readership that N and H currently admitted, it might be that M would have to bear the cost of such investigations which would almost certainly exceed any sum awarded in damages. However, that was a risk that M would have to take. The allegations made could not be dismissed as trivial. Moreover, even if defamatory allegations related to events of long ago, that could not be a ground in itself for refusing access to justice, Polanski v Conde Nast Publications Ltd [2005] UKHL 10, [2005] 1 W.L.R. 637 considered. It was desirable that some sensible accommodation should be reached so as to avoid a time-consuming and expensive trial but that was for the parties to deal with, Aldi Stores Ltd v WSP Group Plc [2007] EWCA Civ 1260, [2008] 1 W.L.R. 748 considered. The circumstances could not be characterised as an abuse of process.

Judge: Eady, J.

12. Osbourne v News Group Newspapers Ltd Queen’s Bench Division

15 January 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (O), a successful music manager, promoter and television presenter, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website wrongly suggesting that the claimant had put her musician husband’s life at risk by working him too hard at the cost of his health. N also falsely suggested her motivation for doing so was to fund her exorbitant spending. The allegations were entirely without foundation. N apologised for publishing the false and defamatory allegations and offered to publish an apology. N also agreed to pay O substantial damages and her legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: John Kelly.

13. Marshall v Express Newspapers Queen’s Bench Division 29 January 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), an 18 year old student, against the defendant newspaper publisher (N). N had published articles falsely alleging that the day after the conviction of a man (B) for the murder of an 11 year old boy, M had publicly praised him in a television interview as a hero. The articles also wrongly alleged that M was B’s girlfriend, was a member of a criminal gang and that she had declared a pledge of loyalty to the gang following B’s conviction. In fact M did not make any public statement following B’s conviction, did not regard him as a hero and had not made such a claim or sought publicity for it in the aftermath of B’s conviction for such an appalling murder. M was not nor had ever been a member of a criminal gang and had never been B’s girlfriend. N agreed to pay M a substantial sum in damages which she intended to donate to the Rhys Jones Memorial Trust. Permission to withdraw the record was requested.

Judge: Eady, J.

14. Raulynaitis v News Group Newspapers Ltd Queen’s Bench Division

26 February 2009 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a newspaper article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (R) against the defendant newspaper publishers (N). N had published an article in its newspaper and to its website wrongly alleging that R had ordered passengers off of his bus in order for him to pray. The article suggested that R was arrogant, unprofessional and contemptuous of the passengers. The article further alleged that the passengers later refused to re-board the bus as they spotted a rucksack and feared R was a fanatic. In fact, R had prayed on the bus during his statutory break and no passenger was inconvenienced. N accepted the allegations were false and published an apology. N paid R a sum in damages and covered his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Stephen Loughrey. For the defendant: Patrick Callaghan.

Solicitor: For the claimant: Carter-Ruck.

15. Zola v BBC Queen’s Bench Division 12 May 2009 Unreported

Case Analysis

Summary: A joint statement in open court was made in proceedings for defamation following a radio broadcast that referred to the claimants.

Abstract: A joint statement in open court was made in a libel action brought by the claimant West Ham United Football Club manager (Z) and coach (C) against the defendant BBC. The BBC had broadcast a radio breakfast show that featured a contribution from a sports journalist (H). H wrongly alleged that Z and C had attended an interview for management positions at an alternative football club, which would have constituted a breach of their contracts of employment and, in the case of Z, breach of FA Premier League rules. In fact, the allegations were completely untrue. The BBC apologised for the false allegations and agreed to pay Z and C damages and their legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the applicants: James Quatermaine.

16. Jones v Telegraph Media Group Ltd Queen’s Bench Division 23 June 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (J) against the defendant newspaper publisher (T). J was the United Kingdom’s most senior intelligence expert on weapons of mass destruction in the period leading up to the Iraq war. T had published an article in its newspaper and on its website which falsely alleged that J had leaked information to the media before the Iraq war. In fact, J had been singled out by the Chairman of the House of Commons Select Committee investigating leaks in Whitehall as someone who did not, and would not, leak information. T accepted that the allegation was untrue and published an apology to J as well as agreeing to pay damages and J’s legal costs.

Judge: Eady, J.

Counsel: For the claimant: Luke Staiano.

17. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division

16 June 2009

Case Analysis

Summary: The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity.

18. Bari v BBC Queen’s Bench Division 16 July 2009 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the broadcast of a programme which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (B) against the defendant BBC. The BBC had broadcast a programme in which a panellist alleged that the leadership of a Muslim organisation, of which B was leader and chief spokesperson, had failed to condemn the kidnapping and killing of British soldiers and thereby implicitly condoned such acts. The panellist further alleged that B believed the kidnapping and killing of British soldiers to be a good and Islamic thing. In fact, B did not condone the kidnapping and killing of British soldiers and did not believe this would be a good or Islamic thing to do, and in 2007 B had said publicly that the killing of British troops in Iraq was unacceptable. The BBC apologised for the false allegations. It also agreed to pay B substantial damages, which he would donate to a charity, and his legal costs.

Judge: Eady, J.

19. Zuma v Guardian News & Media Ltd Queen’s Bench Division 30 July 2009

Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (Z) against the defendant newspaper publisher (G). Z was the President of South Africa. G had published an article in an edition of its newspaper and on its website which falsely alleged that Z was guilty of various crimes. Z issued libel proceedings and G subsequently published an apology accepting that Z was acquitted of one of the offences and the others were dropped by the South African National Prosecuting Authority. Z did not consider that the apology adequately dealt with his complaint. The apology was said to be published far less prominently in the newspaper and on the website than the article complained of. Additionally, the apology was initially unavailable online when a search was made using Z’s name. G then made an offer of amends. In light of the fact that G was willing to pay very substantial damages to Z and it had publically apologised to Z, Z considered his reputation in the matter had been entirely vindicated and he was prepared not to proceed any further in his action against G. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Jenny Afia.

Solicitor: For the claimant: Schillings.

20. Andre v MGN Ltd Queen’s Bench Division 31 July 2009 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article by a newspaper which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (P) against the defendant newspaper publisher (M). M had published an article in an edition of its newspaper and on its website which alleged that P had made inappropriate advances towards a woman in a night club whilst he was still together with his wife. In fact, as M accepted, the allegations were untrue. All that happened was that P was introduced to the woman and a photograph was taken of them together. P spoke to the woman very briefly. M apologised for the hurt and damage suffered by P as a result of the publication of the article. M agreed to pay a substantial sum by way of damages, together with P’s legal costs, and agreed not to repeat the allegations. Leave to withdraw the record was requested.

Judge: Eady, J.

21. Karim v Newsquest Media Group Ltd Queen’s Bench Division 27 October 2009

Case Analysis

Summary: A website article summarising a hearing in the Solicitors Disciplinary Tribunal was absolutely privileged, being a fair, accurate and contemporaneous report of legal proceedings. The Electronic Commerce (EC Directive) Regulations 2002 reg.19 also provided a defence in relation to comments published on the site from site users because N had no actual knowledge of unlawful activity and had removed the article and comments as soon as complaint was made.

Judge: Eady, J.

Counsel: For the applicant: Mr Vassall-Adams. For the respondent: No appearance or representation.

22. Martin v Channel Four Television Corp Queen’s Bench Division 06 November 2009

Case Analysis

Summary: The court had no jurisdiction to grant an interim injunction prior to the issue of proceedings to prevent the broadcast of a television documentary where the application was neither urgent nor in the interests of justice. The application could not be described as urgent where the broadcasters had already agreed not to show the documentary.

23. Williams v MGN Ltd Queen’s Bench Division 02 December 2009

Case Analysis

Subject: Defamation Other related subjects: Media and entertainment; Torts

Keywords: Abuse of process; Defamatory meaning; Libel; Newspapers; Reputation

Summary: Where the claimant in a libel action had a background of serious criminal convictions, he had no reputation capable of protection and his claim had to be struck out under CPR r.3.4(2)(b) as an abuse of the court’s process as it was clear that no real or substantial tort had been committed.

24. Buxton v MGN Ltd Queen’s Bench Division 10 December 2009

Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant property developer (B) against the defendant publisher (M). M had published an article in its newspaper and on its website that suggested that B had viciously attacked a female model (X) to such an extent that injuries to her face were so severe that her career as a model was almost certainly over. In fact, the allegations were entirely false. M apologised for publishing the false and defamatory allegations and accepted that B had neither attacked X nor caused any injuries to her face. M agreed not to republish the allegations, and agreed to pay B substantial damages and to pay his legal costs. Leave to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Mark Thomson. For the defendant: Lindsay Hodgkinson.

Solicitor: For the claimant: Atkins Thomson. For the defendant: Reynolds Porter Chamberlain.

25. Ali v Associated Newspapers Ltd Queen’s Bench Division 27 January 2010

Case Analysis

Summary: Summary judgment was granted to a defendant newspaper publisher in a claim for libel on the basis of justification.

Abstract: The applicant newspaper publisher (N) sought summary judgment on a libel claim brought by the respondent (X). X was a civil servant employed by the Treasury. N published the fact that X had been suspended from his employment following the posting of remarks on his personal blog. Passages from X’s blog were published by N. X pleaded that the publications had the defamatory meaning that X was a hardline Islamic extremist who supported the killing of British and American soldiers in Iraq by fellow Muslims as justified. N submitted that X’s claim was bound to fail as X’s observations on his blog advocated a form of jihad which could only be understood as justifying the killing of British and American troops in Iraq. N argued that a jury would be perverse not to hold that the blogs in question justified the inference against X. X submitted that he should be permitted to adduce evidence of his background and other blogs to demonstrate that he was not hardline or extremist.

Application granted. It was necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences, Bataille v Newland [2002] EWHC 1692 (QB) applied. On reflection, N’s submissions were correct on the very unusual facts in the instant case. X had taken the position that the killing of American and British troops in Iraq would be justified by his interpretation of jihad. As it was a matter of construing plain language in its overall context, it would be perverse to take a contrary view. In those circumstances the claim could legitimately be categorised as bound to fail. Nothing would be gained by investigating X’s other blogs or his background. Such an exercise could not change or qualify the plain meaning of the blog in question.

Judge: Eady, J.

Counsel: For the applicant: David Hirst. For the respondent: David Glen.

Solicitor: For the applicant: Farooq Bajwa & Co. For the respondent: Reynolds Porter Chamberlain LLP.

26. Berezovsky v Russian Television and Radio Broadcasting Co Also known as: Terluk v Berezovsky Queen’s Bench Division 10 March 2010

Case Analysis

Summary: The court awarded damages for defamation to a Russian businessman and politician who had been accused, in a television programme broadcast by a state-owned Russian television company, of involvement in the murder of the former Russian security agent, Alexander Litvinenko.

27. Abramovich v Gruppo Editoriale L’Espresso SPA Queen’s Bench Division

18 March 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant businessman (R) against the defendant newspaper publisher (G). G had published in its newspaper and on its website false allegations about R that he had suffered a heavy loss in a poker game and had been forced to hand over a luxury yacht to cover his gambling debt. The article also falsely alleged that R’s gambling had caused problems in his relationship with his partner. G accepted that the allegations were wholly unfounded and untrue and apologised to R for the distress and embarrassment caused to him. G agreed to publish a correction and pay R substantial damages, which he intended to donate to charity, and his legal costs.

Judge: Eady, J.

Counsel: For the claimant: John Kelly. For the defendant: Sarah Toolan.

Solicitor: For the claimant: Schillings. For the defendant: Davenport Lyons

28. Bowman v MGN Ltd Queen’s Bench Division 26 April 2010 [2010] EWHC 895 (QB);

Case Analysis

Summary: Following the publication on a newspaper’s website of an article wrongly claiming that the claimant was romantically involved with an actress, the court assessed compensation for the defamation in the sum of ?4,250 having regard to the newspaper’s early apology, quick removal of the offending article and early use of the offer to amends procedure in the Defamation Act 1996 s.2.

Abstract: The court was required to determine the amount of compensation to be paid to the claimant actor (B) in respect of distress caused to him by a defamatory article published by the defendant (M). M had published an article on its website about B, suggesting that he had been romantically involved with an actress. B complained that the article was untrue and that he was in a serious relationship with another person. The article was removed from M’s website almost immediately, having remained on there for some 27 hours. M published an apology soon after. Prior to the issue of proceedings, M made an unqualified offer of amends pursuant to the Defamation Act 1996 s.2 to s.4, which B accepted.
Compensation assessed. When determining appropriate compensation the courts had adopted a two-stage process: first, to determine the figure which would have been awarded after trial and, second, to decide to what extent that figure should be discounted to give effect to any mitigation, Duncan & Neill on Defamation, 3rd edn (LexisNexis, 2009) para.19.12, Nail v News Group Newspapers Ltd [2004] EWCA Civ 1708, [2005] 1 All E.R. 1040 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540, [2006] 1 W.L.R. 3469 applied. There was no evidence about the number of readers who would have understood the article in a defamatory sense, but it was reasonable to assume that the scale of publication would be much lower than in the case of a natural and ordinary defamatory meaning published in a national newspaper, so it would be right to take a conservative approach. It was of fundamental importance that the article had been removed as soon as B’s complaint was received, and that it amounted to no more than a bit of celebrity gossip. As libel cases went, it was at the less serious end of the scale. The hurt that could be caused by a false allegation of adultery, however, should not be discounted, and there was no doubt that B had taken the suggestion seriously and incurred embarrassment and some genuine distress. Yet the libel was short-lived and the court had seen no hard evidence that his reputation had actually suffered. Choosing the right bracket or figure for compensation was largely a matter of impression and personal evaluation, although it was legitimate to take into account personal injury awards for pain, suffering and loss of amenity. Bearing in mind the temporary nature of M’s allegations and their impact, even on B, who was rather sensitive, it did not equate even closely to physical pain or long-term loss of amenity. An appropriate starting figure would be ?8,500. That then had to be discounted to recognise the deflationary or mitigating effect of M’s conduct, in particular its early resort to the offer of amends procedure. That would have signalled to B that he had effectively “won” from that moment onwards and his stress and anxiety should have been correspondingly reduced, Nail applied. Thus, because of the early apology, the willingness to remove the offending words immediately, and the very prompt reliance on the offer of amends regime, B’s award should be reduced by 50 per cent to ?4,250.

Judge: Eady, J.

Counsel: For the claimant: David Sherborne. For the defendant: Alexandra Marzec.

Solicitor: For the claimant: Schillings. For the defendant: In-house solicitor.

29. George v MGN Ltd Queen’s Bench Division 14 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in an action for defamation following the publication of articles which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (G) against the defendant newspaper publisher, newspaper editor and assistant editor (M). M had published articles in their newspapers and on their websites that falsely suggested that G had harassed and stalked a nurse; had become obsessed with a TV presenter and said that he loved her; had become obsessed with another TV presenter and threatened to pester and harass her; and had illegally attempted to obtain drugs from a hospital. In fact, the allegations were entirely false. M apologised for publishing the false allegations and agreed to withdraw them. M also agreed to pay G substantial damages and to pay his legal costs.

Judge: Eady, J.

Counsel: For the claimant: Gordon Bishop. For the defendant: Emily Barber.

30. Margolis v Independent News & Media Ltd Queen’s Bench Division 21 May 2010 Unreported

Case Analysis

Summary: A statement in open court was made in proceedings for defamation following the publication of a headline which referred to the claimant.

Abstract: A statement in open court was made in a libel action brought by the claimant (M), a writer and feminist, against the defendant newspaper publisher (N). N had published an article in its newspaper and on its website that was written by M, however the headline inserted by N falsely alleged that M had been a prostitute or had otherwise been involved in the sex industry. The allegations were completely untrue. N published an apology in the newspaper and online. N agreed to pay M damages along with legal costs. Permission to withdraw the record was requested.

Judge: Eady, J.

Counsel: For the claimant: Lucy Moorman. For the defendant: Victoria Shore

31. Hewitt v Express Newspapers Queen’s Bench Division 22 July 2010 Unreported

Case Analysis:

Summary: A statement in open court was made in an action for defamation following the publication of an article which referred to the claimants.

Abstract: A statement in open court was made in a libel action brought by the claimant trustees (T) of a charity against the defendant newspaper publisher (E). E had published an article on its website about a terrorist attempt to blow up an aeroplane. The article falsely suggested that the Palestinian Relief and Development Fund, commonly known as Interpal, a charity registered in the United Kingdom of which T were trustees, was Hamas supporting, notwithstanding that Hamas was deemed a terrorist organisation under UK anti-terrorism legislation, and thereby wrongly suggested that T aided terrorism. E apologised for publishing the false and defamatory allegations and accepted that they should never have been published. E agreed to pay T substantial damages and their legal costs.

Judge: Eady, J.

32. Lait v Evening Standard Ltd Queen’s Bench Division 09 December 2010

[2010] EWHC 3239 (QB);

Case Analysis:

Summary: A former member of Parliament was not entitled to summary judgment on her claim alleging defamation by a newspaper in respect of an article which bore the meaning that she had milked the Parliamentary expenses system and that her criticism of a proposed reform to the expenses regime was apt, rightly, to provoke public anger. The newspaper’s defence of fair comment was bound to succeed.

APPENDIX C

Libel claims determined by convention arguments.The analysis of cases was obtained from www.westlaw.co.uk


1. Mosley v News Group Newspapers Ltd [Convention rights arguments] Queen’s Bench Division [application for interim injunction] 09 April 2008

[2008] EWHC 687 (QB);

Case Analysis

Application refused Video footage of a known figure engaging in sexual activities with prostitutes had entered the public domain and therefore, although the material was intrusive and demeaning and there was no legitimate interest in its further publication, an injunction prohibiting its further publication on a newspaper website was not appropriate and would serve no practical purpose. [reasonable expectation of privacy]

Judge: Eady, J.

Counsel: For the applicant: James Price QC, David Sherborne. For the respondent: Gavin Millar QC, Anthony Hudson.

Solicitor: For the applicant: Steeles Law. For the respondent: Farrer & Co.

2. Murray v Express Newspapers Plc Also known as: Murray v Big Pictures (UK) Ltd Court of Appeal (Civil Division) 07 May 2008 [2008] EWCA Civ 446; [2009] Ch. 481; [2008] 3 W.L.R. 1360; [2008] E.C.D.R. 12; [2008] E.M.L.R. 12; [2008] 2 F.L.R. 599; [2008] 3 F.C.R. 661; [2008] H.R.L.R. 33; [2008] U.K.H.R.R. 736; [2008] Fam. Law 732; (2008) 105(20) L.S.G. 23; (2008) 158 N.L.J. 706; (2008) 152(19) S.J.L.B. 31;

Case Analysis

Summary: Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child’s behalf.

Abstract: The appellant (M), acting through his parents, appealed against the striking out ( [2007] EWHC 1908 (Ch), [2007] E.C.D.R. 20 ) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art.8 . M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that even if the decision in Von Hannover v Germany (59320/00) [2004] E.M.L.R. 21 had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 A.C. 457 , he was bound to follow Campbell in preference. The issue was whether the judge was right so to have concluded.

Appeal allowed.

3. Times Newspapers Ltd v United Kingdom (3002/03) Times Newspapers Ltd v United Kingdom (23676/03) European Court of Human Rights 10 March 2009[2009] E.M.L.R. 14; Times, March 11, 2009;

Case Analysis

Summary: Where a newspaper had published, in its print publication, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper’s website, it was not a disproportionate interference with the right to freedom of expression to require that the newspaper publish an appropriate qualification to the internet version of the article. [convention arguments]

[multiple publication rule – each new reproduction was a fresh libel]

4. Author of a Blog v Times Newspapers Ltd Queen’s Bench Division 16 June 2009 [2009] EWHC 1358 (QB); [2009] E.M.L.R. 22; (2009) 106(26) L.S.G. 18; (2009) 159 N.L.J. 924; (2009) 153(24) S.J.L.B. 33;

Case Analysis

The court declined to restrain a newspaper from revealing the identity of a blogger, which it had deduced from publicly available sources, because that information did not have about it the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity. [convention arguments]

5. Financial Times Ltd v United Kingdom (821/03) European Court of Human Rights 15 December 2009 [2010] E.M.L.R. 21; (2010) 50 E.H.R.R. 46; 28 B.H.R.C. 616; Times, December 16, 2009

Case Analysis

Summary: An order requiring that certain newspapers disclose to a brewing company documents that could lead to the identification of journalistic sources who had leaked information about a takeover bid violated the European Convention on Human Rights 1950 art.10. The public interest in the protection of journalistic sources was not outweighed by the company’s arguments that the institution of proceedings against the sources would eliminate the threat of damage by any future dissemination of confidential information and would compensate it for past breaches of confidence.

[convention arguments] success of article 10 here

[1] Reed & Murdoch A Guide to Human Rights Law in Scotland Tottel: Edinburgh (2008); Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide; Lustgarten et al (1997) Libel and the Media Oxford University Press: Oxford

[2] Kaye v Robertson [1991] F.S.R. 62

[3] Kaye v Robertson [1991] F.S.R. 62 at page 68 per Bingham L.J.

[4] Article 9 of the Civil code in France simply says: “Everyone has the right to privacy”.

[5] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 1

[6] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[7] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[8] Article 8(2) provides: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[9] Article 10(2) provides: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

[10] Human Rights Act s.12(4)

[11] Douglas v. Hello! Ltd [2001] 2 W.L.R. 992 at para. 135, per Sedley L.J. and para. 150, per Keene L.J.

[12] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[13] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[14] Imutran Ltd v Uncaged Campaigns Ltd [2001] E.C.D.R. 16 per Sir Andrew Morritt VC at p.198

[15] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide p.2

[16] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[17] Baturina v Times Newspapers [2011] EWCA Civ 308

[18] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[19] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats Retrieved 2011.4.1

[20] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[21] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction xii

[22] Ibid

[23] Ibid p.76

[24] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide

Turpin & Tomkins (2009) British Government and the Constitution (6th ed) Cambridge: Cambridge, New York , Melbourne , Madrid

[25] Article 11 of the Declaration of the Rights of Man and of the Citizen

[26] Professor Markesinis (1990) The German Law of Torts 2nd ed

[27] Bill of Rights 1st, 3rd, 4th amendments

[28] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[29] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[30] HL Deb 06 June 1973 vol 343 cc104-78

[31] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.513

[32] Entick v Carrington (1765) 19 St Tr 1030

[33] Regulation of Investigatory Powers Act 2000 Parts I and II

[34] Data Protection Act 1998

[35] Freedom of Information Act 2000

[36] Intellectual property law

[37] Such as the common law offence of sedition: See Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[38] Examples include the Obscene Publications Act 1959 and 1964, Official Secrets Act 1911 & 1989, the Public Order Act 1986 and trespass as demonstrated by Entick v Carrington

[39] Philipson, Gavin (2003) ‘The Human Rights Act, ‘Horizontal Effect’ and the

Common Law: a Bang or a Whimper?’ in Modern Law Review vol.62 issue 6 pp 824-849

[40] S.6(3)

[41] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[42] (1849) 1 Mac & G 25

[43] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.533

[44] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.389

[45] [1967] 1 QB 349

[46] [1969] RPC 31

[47] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[48] Ibid p. 99

[49] Ibid

[50] Argyll v Argyll [1967] 1 QB 349

[51] Stephens v Avery [1988] Ch 449

[52] [1976] 1 QB 752 [Crossman Diaries]

[53] Attorney General v Jonathan Cape [1976] 1 QB 752 at p.769-770

[54] Where the Government unsuccessfully attempted to restrain the memoirs of a retired secret service agent: Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109

[55] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 99

[56] [1994] EMPLR 134

[57] Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at p.807 and see Loon, Wee (1996) ‘The Emergence of a right to privacy within the law of confidence?” in European Intellectual Property Review vol.18(5) at p.312

[58] (no.1) [2001] Q.B. 967 (CA (Civ Div)

[59] Douglas v Hello! (no.9) [2004] EWHC 63 (Ch)

[60] Kearns, Paul (2001) ‘Privacy and the Human Rights Act 1998’ in New Law Journal vol.151 p.377, Carey, Peter (2001) ‘Hello to Privacy?’ in Entertainment Law Review vol.12(4) pp120-123, Grundberg, Peter (2001) ‘The “new” Right to Privacy’ in Intellectual Property Lawyer vol 9 (Feb) pp12-13

[61] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div) at p.1001

[62] “It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of the invasion of their privacy by publicity that shows them in an unfavourable light”. [1977] 1 W.L.R. 760 Per Bridge L.J at p.765

[63] Ash v Mckennit [2008] Q.B. 73

[64] Argyll v Argyll [1967] 1 QB 349

[65] Stephens v Avery [1988] Ch 449

[66] Shelley Films Ltd v Rex Features Ltd [1994] EMPLR 134

[67] Douglas v Hello! (no.1) [2001] Q.B. 967 (CA (Civ Div)

[68] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 p.100

[69] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.686 per Eadie J

[70] (1990) Cm 1102

[71] O’Malley, Tom & Soley, Clive (2000) Regulating the Press Pluto Press: London

[72] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[73] Regina v Advertising Standards Authority Ltd Ex p.Vernons Organisation [1992] 1 W.L.R. 1289 per Laws J at p.1292

[74] Regina v Shayler [2003] 1 A.C. 247 at p.266

[75] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[76] Leigh, David & Vulliamy, Ed (1997) Sleaze: Corruption in Tory Britain Fourth Estate

[77] Keeble, Richard (2006) The Newspapers Handbook Routledge: London & New York (4th ed)

[78] Bromley, Michael & Stephenson (eds) (1998) Sex, Lies and Democracy: the press and the public Longman

[79] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.709

[80] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.547

[81] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[82] Press Complaints Commission (January 2011) Editors Code of Conduct public interests s.2 accessed on 1st April 2011 and available from: http://www.pcc.org.uk/cop/practice.html

[83] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[84] Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[85] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[86] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[87] [1936] A.C. 578

[88] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.3

[89] ibid p.2

[90] Merris, Amos (2002) ‘Can we speak freely nowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol. 6 at p.755

[91] Moore, Roy.L & Murray, Michael.D (2007) Media Law and Ethics Taylor & Francis Group: New York

[92] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[93] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[94] Human Rights Act 1998 s.6(1)

[95] [2001] Fam 430

[96] Douglas v Hello! (no.1) [2001] Q.B. 967 at para 133 per Sedley LJ

[97] Perry v UK (2004) 39 EHRR 76

[98] X and Y v. Netherlands (1985) 8 E.H.R.R. 235

[99] Pretty v UK (2002) 35 EHRR 1

[100] Ibid at p.14

[101] Article 8(2) of the ECHR

[102] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 and see Murray v Express Newspapers

Plc [2008] EWCA Civ 446

[103] Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 W.L.R. 934

[104] [2009] E.M.L.R. 22

[105] [2008] EWHC 687 (QB)

[106] Plc [2008] EWCA Civ 446

[107] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at para 110 per Eadie J

[108] Ibid at para 111

[109] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[110] Ibid

[111] Sunday Times v United Kingdom (A/30) European Court of Human Rights, 26 April 1979

[112] R. v. Shayler [2002] 2 W.L.R. 754.

[113] Regina (Prolife Alliance) v British Broadcasting Corporation [2004] 1 A.C. 185

[114] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[115] Merris, Amos (2002) ‘Can We Speak Freely NowFreedom of Expression under the Human Rights Act’ in European Human Rights Law Review vol.6 pp750-763 and see chapter 3

[116] Von Hannover v Germany [2004] E.M.L.R. 21

[117] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[118] [2004] E.M.L.R. 21 at p.381

[119] Article 10(2)

[120] Rudolf, Beate (2006) ‘Council of Europe: Von hannover v Germany’ in International Journal of Constitutional Law

[121] Rudolf (2006) argues this is simply a matter of less weight.

[122] Campbell v MGN Ltd [2004] UKHL 22

[123] [2004] UKHL 47 at para 23

[124] Campbell v MGN Ltd [2004] UKHL 22 per Lord Hoffman at para 36

[125] Ibid per Lord Hope at para 112

[126] [2004] UKHL 47 per Lord Steyn at para 17

[127] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 7

[128] Press standards, privacy and libel: second report of session 2009 Volume 2 By Great Britain: Parliament: House of Commons: Culture, Media and Sport Committee

[129] Farage v Times Newspapers unreported 11th June 2008, Raulynaitis v News Group Newspapers Ltd 26th February 2009, Jones v Telegraph Media Group Ltd 23rd June 2009, Hewitt v Express Newspapers unreported 22nd July 2010 , Lait v Evening Standard Ltd unreported 9th December 2010

[130] Fowler, Andrew (2011) The Most Dangerous Man in the World Melbourne University Press: Melbourne

[131] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[132] Sim v Stretch [1936] 2 All ER 1237 at 1240

[133] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.563

[134] S.69

[135] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.562

[136] Draft Defamation Bill 2011 accessed on 11th April 2011 and available from http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf clause 8

[137] Ibid page 36

[138] Ibid

[139] Ibid clause 1

[140] Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB)

[141] Hulton v Jones [1910] AC 20

[142] For example “all lawyers” or “all politicians” and not “the lawyers from matrix chambers”.

[143] Godfrey v Demon Internet [1999] EMLR 542

[144] S.1 of the 1996 Act

[145] Duke of Brunswick v Harmer (1849) 14 Q.B. 185 (QB)

[146] Dunlop, Rory (2006) ‘Article 10, the Reynolds test and the rule in the Duke of Brunswick’s case – the decision in Times Newspapers Ltd v United Kingdom’ in European Human Rights Law Review 3, 327-339

[147] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.9

[148] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[149] Barendt & Hitchens (2000) Media Law: Cases and Materials Pearson Longman: worldwide

[150] S.5

[151] Bradley & Ewing (2007) Constitutional and Administrative Law (14th ed) Pearson Longman: Worldwide p.564

[152] Barendt & Hitchens (2000) Media Law: Cases and Materials Longman: worldwide p.375

[153] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.74

[154] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[155] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[156] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 per Lord Nicholls at p.205

[157] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44

[158] Ibid at para 57 per Lord Hoffman

[159] R. Clayton and H. Tomlinson, The Law of Human Rights (Oxford University Press, 2000), para.15.249.

[160] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[161] [2006] UKHL 44

[162] [2010] EWCA Civ 804

[163] Ibid at paras 67 – 76

[164] Joyce, Andrew (2006) ‘The Reynolds Public Interest Defence’ The IT Law Community accessed on 1st April 2011 and available from: http://www.scl.org/site.aspx?i=ed920

[165] Horrocks v Lowe [1975] AC 135 at 150

[166] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.110

[167] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York

[168] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.72

[169] R. (On the application of Telegraph Group plc) vs Sherwood [2001] 1 W.L.R. 1983 per Longmore LJ at p.1986

[170] Human Rights Act 1998 s.6

[171] Bentham, Martin (2011) ‘Ken Clarke unveils libel law reform to strengthen free speech’ in London Evening Standard online edition accessed on 1st April 2011 and available from: http://www.thisislondon.co.uk/standard/article-23932236-ken-clarke-unveils-libel-law-reform-to-strengthen-free-speech.do

[172] Dacre, Paul (2008-11-10). “The threat to our press”. The Guardian (Online) Retrieved 2011.4.1 and available from: http://www.guardian.co.uk/media/2008/nov/10/paul-dacre-press-threats

[173] [2009] EWHC 1101 (QB)

[174] Jeynes v News Magazines Ltd [2008] EWCA Civ 130

[175] Lait v Evening Standard Ltd [2010] EWHC 3239 (QB)

[176] Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[177] Against either British publishers or newspapers directly.

[178] Includes both reported and unreported cases.

[179] It is perhaps too early to analyse the impact Mr.Justice Tugendhat has had as the top libel judge given that he was appointed on 1st October 2010.

[180] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York p.190

[181] See Appendix A for a full breakdown of all the cases within this period.

[182] Jeynes v News Magazines Ltd [2008] EWCA Civ 130, Curran v Scottish Daily Record and Sunday Mail Ltd

[2010] CSOH 44, Ifedha v Archant Regional Ltd (sued as Kilburn Times North West London Newspapers) [2010] EWHC 2819 (QB), Lait v Evening Standard Ltd [2010] EWHC 3239 (QB) Ewing v News International Ltd [2008] EWHC 1390 (QB)

[183] http://www.associatednewspapers.com/ accessed on 5th April 2011

[184] http://www.newsinternational.co.uk/ accessed on 5th April 2011

[185] http://www.express.co.uk/home accessed on 5th April 2011[under the ownership of Northern & Shell]

[186] http://www.gmgplc.co.uk/ accessed on 7th April 2011

[187] http://www.newsinternational.co.uk/ accessed on 8th April 2011

[188] http://www.inmplc.com/ accessed on 5th April 2011

[189] http://www.telegraph.co.uk/ accessed on 4th April 2011

[190] Barendt, Lustgarten, Norrie & Stephenson (1997) Libel and the Media: the Chilling Effect Oxford Uni Press: Oxford, New York .64

[191] Ibid

[192] Financial Times Ltd v United Kingdom (821/03) (2010) 50 E.H.R.R. 46

[193] Franklin, Bob (1999) Social Policy, the Media and Misrepresentation Routledge: London and New York

[194] Osbourne v Express Newspapers Unreported 5th June 2008

[195] Lucas v Express Newspapers unreported 25th May 2010

[196] George v Express Newspapers unreported 19th July 2010

[197] Shaffer v Associated Newspapers Ltd Unreported 13th February 2008, Osbourne v Express Newspapers Unreported 5th June 2008 , Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, Tesco Stores Ltd v Guardian News &Media Ltd [2009] E.M.L.R. 5; Osbourne v News Group Newspapers Ltd unreported 12th January 2009, Marshall v Express Newspapers unreported 29th January 2009, Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Hudson v Associated Newspapers Ltd unreported 4th March 2009, Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Zuma v Guardian News & Media Ltd unreported 30th July 2009, Gascoigne v News Group Newspapers Ltd unreported 7th May 2010 Margolis v Independent News & Media Ltd unreported 21st May 2010, Lucas v Express Newspapers unreported 25th May 2010, George v Express Newspapers unreported 19th July 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[198] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 100

[199] Ibid p.76

[200] Ashley Cole is a recent example of this in relation to his extra-marital infidelities: see Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[201] Berezovky v Forbe Inc (No.2) [2001] EMLR 48, CA

[202] Draft Defamation Bill clause: 1 “Libel is currently actionable without proof of actual damage” accessed on 14th March 2011 and available from: http://www.justice.gov.uk/docs/draft-defamation-bill-consultation.pdf

[203] Lucas v Express Newspapers unreported 25th May 2010

[204] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 99

[205] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), Murray v Express Newspapers Plc [2008] EWCA Civ 446, Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14, Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22, Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21, In re Guardian News and Media Ltd and others [2010] 2 A.C. 697

[206] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-89

[207] [2008] EWHC 687 (QB)

[208] “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS”

[209] See chapter 2

[210] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[211] Douglas v Hello! Ltd (No.1) [2001] Q.B. 967 at para 137

[212] Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at p.681

[213] Ibid at p.737

[214] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[215] [2008] EWCA Civ 446

[216] Murray v Express Newspapers Plc [2008] EWCA analysis of case

[217] Ibid para 57 per Sir Anthony Clarke MR

[218] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.86

[219] (3002/03) [2009] E.M.L.R. 14

[220] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 226

[221] Times Newspapers Ltd v United Kingdom (3002/03) [2009] E.M.L.R. 14 at p.259

[222] Mora, David Paul (2009) ‘The compatibility with art.10 ECHR of the continued publication of a libel on the Internet: Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom’ in Entertainment Law Review vol. 20(6) pp 226-228 at 228

[223] [2009] E.M.L.R. 22

[224] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22 at p.412 per Eady J.

[225] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[226] (821/03) [2010] E.M.L.R. 21

[227] Financial Times Ltd v United Kingdom (821/03) [2010] E.M.L.R. 21 at p.1172

[228] (3002/03) [2009] E.M.L.R. 14

[229] [2010] 2 A.C. 697

[230] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 43 per Lord Rodger

[231] Ibid para 75 per Lord Rodger

[232] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) pp78-79

[233] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[234] In re Guardian News and Media Ltd and others [2010] 2 A.C. 697 para 78

[235] (821/03) [2010] E.M.L.R. 21

[236] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[237] As of October 2010 the mantle has been taken by Tugendhat J see Preston, Peter (2010) ‘Mr. Justice Tugendhat the libel judge of our dreamsLet’s wait and see’ in Guardian Media Online accessed on 2nd April 2011 and available from: http://www.guardian.co.uk/media/2010/sep/19/michael-tugendhat-libel-judge

[238] Mosley v News Group Newspapers Ltd [2008] EWHC 687

[239] British Chiropractic Association v Singh [2009] EWHC 1101 (QB)

[240] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[241] Shaffer v Associated Newspapers Ltd Unreported 13 February 2008, Smith v World Entertainment News Network Ltd unreported 22nd February 2008, Osbourne v Express Newspapers unreported 5th June 2008 [cont next page]

Farage v Times Newspapers unreported 11th June 2008, Murat v Associated Newspapers Ltd unreported 16th July 2008, McGill v 365 Media Group Plc unreported 31st July 2008, Mottley v IPC Media Ltd unreported 7th October 2008

Murat (Robert) v British Sky Broadcasting Ltd unreported 14th November 2008, Osbourne v News Group Newspapers Ltd unreported 15th January 2009, Marshall v Express Newspapers unreported 29th January 2009

Raulynaitis v News Group Newspapers Ltd unreported 26th February 2009, Zola v BBC unreported 12th May 2009

Jones v Telegraph Media Group Ltd unreported 23rd June 2009, Bari v BBC unreported 16th July 2009

Zuma v Guardian News & Media Ltd unreported 30th July 2009, Andre v MGN Ltd unreported 31st July 2009

Buxton v MGN Ltd unreported 10th December 2009, Abramovich v Gruppo Editoriale L’Espresso SPA unreported 18th March 2010, George v MGN Ltd unreported 14th May 2010, Margolis v Independent News & Media Ltd unreported 21st May 2010, Hewitt v Express Newspapers unreported 22nd July 2010

[242] [2009] E.M.L.R. 22

[243] Brimsted, Kate (2009) ‘Author of a Blog v Times Newspapers Ltd: privacy – blogging and anonymity’ in European Intellectual Property Review vol. 31(12) pp.86-87

[244] Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)

[245] Martin v Channel Four Television Corp [2009] EWHC 2788 (QB);

[246] Williams v MGN Ltd [2009] EWHC 3150 (QB)

[247] Bowman v MGN Ltd [2010] EWHC 895 (QB)

[248] British Chiropractic Association v Singh [2011] 1 W.L.R. 133

[249] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[250] Jameel and Others v Wall Street Journal Europe Sprl [2006] UKHL 44 per Lord Hoffman at para 57 ; chapter 3A

[251] British Chiropractic Association v Singh [2011] 1 W.L.R. 133 para 23

[252] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 5

[253] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 568

[254] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) pp 199-208

[255] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 575

[256] (Act no 70-643 of 17 July 1970)

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order” retrieved on 3rd April 2011 and available from [English translation of the Civil Code of France]: http://195.83.177.9/upl/pdf/code_22.pdf

[257] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 202

[258] “la sphere secrete ou l’individu aura le droit d’etre laisse tranquille”

[259] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 575

[260] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 204

[261] “ARTICLE 226-1 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[262] Trouille, Helen (2000) ‘Private Life and Public Image: Privacy Legislation in France’ in International & Comparative Law Quarterly vol 49(1) p 203

[263] ARTICLE 226-2 retrieved on 3rd April 2011 and available from [English translation of the Criminal Code of France]: http://195.83.177.9/upl/pdf/code_33.pdf

[264] Ibid ARTICLE 226-8

[265] Ibid ARTICLE 227-24

[266] Ibid ARTICLE 227-28

[267] Ibid ARTICLE 412-8

[268] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 pp 568 – 582

[269] Bigot, Dalloz (2002) quoted from Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[270] Ibid

[271] Nicolas S. v Journal Le Matin TGI Thonon des Bains, December 22, 2006.

[272] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[272] Ibid

[273] Ibid p.578

[274] A v B Plc [2002] EWCA Civ 337; [2003] Q.B. 195 (CA (Civ Div))

[275] Ibid p.578

[276] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) p 86

[277] Von Hannover v Germany [2004] E.M.L.R. 21

[278] BBC News 21st March 2011 ‘ France fines Google over Street View Data Blunder’ retrieved on 2nd April 2011 and accessed at: http://www.bbc.co.uk/news/technology-12809076

[279] Cousin & Sordet (2009) ‘France: Radical Thoughts on how to Enhance Right to Privacy’ in Privacy Laws & Business International Newsletter vol.101 pp 6-7

[280] Berlins, Marcel (2008) ‘Publicity-mad Sarkozy leads fight for privacy’ in Guardian online accessed 9th April 2011 and available from: http://www.guardian.co.uk/world/2008/feb/04/france.comment

[281] See chapter 2

[282] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[283] Murray v Express Newspapers Plc [2008] EWCA; Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[284] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[285] Author of a Blog v Times Newspapers Ltd [2009] E.M.L.R. 22

[286] Delany, Hilary & Murphy, Cliodna (2007) ‘Towards Common Principles Relating to the Protection of Privacy RightsAn analysis of recent developments in England and France and before the European Court of Human Rights’ in European Human Rights Law Review volume 5 p 577

[287] Mackenzie, Andrew.P (2002) ‘Privacy – A New Right in UK Law?’ In Scots Law Times vol 12 pp 98-101 and see Mackey, Claire & McLean, Angus (2007) ‘Is There a New Law of Privacy in the UKA Consideration of Recent Legal Developments’ European Intellectual Property Review vol 29(9) pp 389-395

[288] McVicar v United Kingdom (46311/99) (2002) 35 E.H.R.R. 22 and Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[289] Merrills, J.G (1993) The Development of International Law by the European Court of Human Rights Manchester Univerity Press: Manchester at p.185

[290] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide page 2

[291] Plunkett, John (2011) ‘Government unveils libel law reforms’ from Guardian online retrieved 28th March 2011 and available from: http://www.guardian.co.uk/media/2011/mar/15/libel-law-reforms

[292] Clause 8 of the Draft Defamation Bill

[293] Clause 1 Ibid

[294] Clause 7 Ibid

[295] Clause 6 Ibid

[296] Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127

[297] Young, Hugo (2003) Supping with the Devils Atlantic Books: London

[298] Rozenberg, Joshua (2011) ‘The Libel Reforms are a Step in the Right Direction: But do they go far enough?’ Guardian online retrieved on 1st April 2011 and available from: http://www.guardian.co.uk/law/2011/mar/15/libel-reforms-step-campaigners-satisfied

[299] Ibid

[300] Phillipson, Gavin (2009) ‘Max Mosley Goes to Strasbourg: Article 8, claimant notification and interim injunctions’

[301] Mclean & Mackey (2010) ‘Mosley v News Group Newspapers Ltd: how sadomasochism changed the face of privacy law: a consideration of the Max Mosley case and other recent developments in privacy law in England and Wales’ in European Intellectual Property Review vol.32(2) at p.89

[302] Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

[303] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[304] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.19

[305] S.12(3)

[306] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.87

[307] A.V.Dicey (1888) An Introduction to the Study of the Law of the Constitution (10th ed) Macmillan p246

[308] Times Newspapers Ltd v United Kingdom (23676/03) (Unreported, October 11, 2005) (ECHR)

[309] Lord Ashcroft KCMG v Stephen Foley, Independent News & Media Limited, Roger Alton [2011] EWHC 292 (QB) per Justice Eady at para 69

[310] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.682

[311] Robertson, Geoffrey & Nicol, Andrew (2003) Media Law Penguin Books: worldwide Introduction p.76

[312] Knightley, Phillip (1997) ‘The thalidomide Scandal: Where we went Wrong’ in Pilger, John (ed) Tell Me No Lies Jonathan Cape: London

Categories
Free Essays

intellectual property rights uk

Intellectual Property Dissertation Guide on Trade Marks and Domain Names Under the Dilution Perspective

The following guide could be used by a PhD or Master Level Law student looking to write a dissertation or thesis on intellectual property, particularly trade marks and domain names under the dilution perspective. The guide has been written by a our site writer and is a detailed overview of how the work should be structured.

1.0 My understanding of the topic

The “dilution” perspective, as you rightly point out, is a concept which has been neglected and particularly so in the UK where, in comparison with the USA at least where the first dilution statute was enacted in Massachusetts in 1947, this concept has only recently found its way into the Trade Mark Act 1994[1] and then only by the confined path of implementing the trade mark directive[2]. The Trade Mark Act 1994 is now, by all accounts, dated and it is obvious that it is not sufficient to provide the kind of advanced protection which the USA offers. The tort of passing off has been traditionally used for dilution procedures and this is clearly inadequate, leading to, in the words of Colston & Middleton, “strained interpretation designed to accommodate remedies for domain name disputes”[3]. Any discussion of the dilution perspective must begin naturally with Frank Schechter’s arguments from 1927 who wanted a greater scope of protection for trade marks[4]. Schechter pointed out:

“…the real injury in all such cases…is the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name by its use upon non-competing goods. The more distinctive or unique the mark, the deeper its impress upon the public consciousness, and the greater its need for its protection against vitiation or dissociation from the particular product in connection with which it has been used”.[5]

Schechter’s views are acknowledged as a talisman for those who advocate greater expansion and protection for trade marks and are the theoretical base of the dilution perspective. Consequently his views must be the theoretical underpinning for this PHD study – you are arguing though for an extension of the protection past that which currently prevails. The hypothesis which I would propose is that the current response to domain names is woefully inadequate: there either needs to be a new trademark and domain names Act complete with duties, rights and remedies or a dispute resolution process in theUKto catch up with the rapidly changing world of technology and domain names. The ECJ considered dilution for the first time very recently but disappointed those who advocated a move beyond even dilution:

“Some have gone further to argue that such protection should be not just against a dilution of the distinctiveness of such a mark, but also against any appropriation of the mark’s value by a third party, even if it does not damage the mark itself. From this point of view, the ECJ judgement in Intel will be disappointing” [6]

Thus with a theoretical underpinning and a hypothesis established what are the problems with the current national and international setup and what causes the conflict between domain names and trade mark lawFirstly the demand for domain names exceeds the supply and this will inevitably cause friction between those who want to muscle in on established territory. Secondly trade marks confer only national, or at most, regional, protection while a domain name has global application. Thirdly the registration system does not confer a trade mark as such immediately and the rules for registration of a domain name are a matter of contract between the applicant and the registry. It should also be noted that registries do not undertake trade mark searches which increase the likelihood of abuse and conflict[7]. The problems with the systems are also well documented and it has, for example, been argued that the UDRP is too biased in favour of trade mark owners as well as allegations of the stifling of freedom of expression[8].

The next part will deal with the proposed structure of the PHD based on the observations above and also the aims and objectives which were set out originally. The final part will be some comments upon the research and recommendations I propose.

2.0 Proposed structure of the PHD

Declaration

Title page

Abstract

Acknowledgments

Table of contents

Table of Cases

Table of Statutes

Abbreviations

Chapter 1: Introduction

Chapter 2: The background of Trademark protection in the UK

I. The Trademark Act 1994
II. The tort of passing off
III. The European Dimension
IV. The European Court of Justice in 2008
V. The Confusion basis of protection
VI. Dilution and the economic value of trade marks
VII. Hypothesis of the PHD

Chapter 3: Theoretical underpinnings of the study

I. Schechter and the increased protection thesis
II.The theories of less protection
III. Do trade mark owners dilute their own marksS.Stadler

Chapter 4: The concept of dilution

I. The Conditions for protection
II.Similarity of Mark and Sign
III.Reputation
IV. Similar products
V.Unfair Advantage

Chapter 5: Domain names and the unique challenge to trade marks

I.What is a domain name
II. Domain Names and search engines, cybersquatting and ‘typo-squatters’
III.Reverse domain name hijacking
IV.The role of technology: web 2.0, 3.0 and 4.0
V. New frontiers: metatags, pop-ups and banner ads
VI.Does the Trade Mark Act 1994 afford sufficient protection against domain names
VII. Nominet’s dispute resolution procedure
VIII.Conclusion on chapter 4

Chapter 6: Case studies on the concept of dilution and domain names

I.Premier Brands UK Ltd v Typhoon Europe Ltd (2000)
II. Adidas-Salomon AG v Adidas Benelux (2003)
III.L’Oreal SA v Bellure NV [2007] (Civ Div))
IV.One in a Million (1999)

Chapter 7: Flaws with the current system at a national and international level

I.The national level
II. The international environment: ICANN
III.WIPO
IV.The UDRP system
V. The American system
VI.Benelux Law
VII. Other Jurisdictions

Chapter 8: The approach in other jurisdictions

I.Germany
II. France
III.Canada
IV.USA
V. Conclusions of the approach in other jurisdictions

Chapter 9: Secondary research

I.Empirical analysis of the economic value of domain names
II.Case Law from 2000-2011
III. Case study of Google
IV. Trends in WIPO decisions 2000 – 2011
V.Conclusions on secondary research

Chapter 10: Recommendations for systems and remedies

I.A single dispute resolution procedure
II. The UK Trademark and Domains Names Act 2015
III.The UN global domain name convention
IV.Remoulding the domain name system
V. Additional remedies to help the protection of trade marks
VI.Adopting approaches from USA, Germany and Canada

Chapter 11: Conclusions

Bibliography

Appendix A

Appendix B

Appendix C

3.0 Additional Comments

It is of course vital to note that this structure above is only a draft one and subject to changes. As you will note having a look at the proposed structure there are a few things which I have included which deserve to be commented upon.

Firstly the research section: for a dissertation I wrote on the WTO I did something very similar where simple research is conducted, empirically, on all Dispute resolution cases involving African countries within a certain period. My idea is to conduct research on all WIPO panel cases involving UKbrands from the period 2000 – 2011 to attempt to identify any trends or patterns[9]. This would, in my opinion, make the study even more original which is only a good thing.

My other idea was to attempt to put some kind of economic value upon certain trade marks: can this be quantified in some mannerIt would be a highly sophisticated study which is able to, say, put an economic value on brands such as google.co.uk or apple.com. Related to this I thought about a case study on google.co.uk and to attempt to contemplate their business from the perspective of the IP lawyer: how much is their trade mark worthAre they victims of cyber squattingHow many cases have they been involved in at the international and national arbitration?

Finally my recommendations are based both upon systems and remedies. Perhaps as the centrepiece of this study an Act can be created from scratch (!!) which I have tentatively called the UK Trademark and Domain Names Act 2015[10]. The full “Act” could be recreated in an appendix and could be an attempt by the author to advocate a solution which is tangible and bold. A complete abolition of the Trade Mark Act 1994 is what I would actually propose – and in a PHD fortune favours the brave.

[1] Directive 89/104 on trade marks art.4

[2] Colson, Catherine & Middleton, Kirsty (2005 2nd ed) Modern Intellectual Property Law Cavendish: London

[3] Colson, Catherine & Middleton, Kirsty (2005 2nd ed) Modern Intellectual Property Law Cavendish: London p.421

[4] Schechter, Frank (1927) ‘The Rational Basis of Trade Mark Protection’ Harvard Law Review 40 p.813

[5] Quoted in Bently, Lionel & Sherman, Brad (2009 3rd) Intellectual Property Law Oxford Uni Press: worldwide p.715

[6] Davis, Jennifer (2009) ‘The European Court of Justice Considers Trade Mark Dilution’ Cambridge Law Journal 68(2) pp290-292

[7] Colson, Catherine & Middleton, Kirsty (2005 2nd ed) Modern Intellectual Property Law Cavendish: London p.421

[8] Schiavetta, S and Komaitis, K (2003) ‘ICANN’s Role in Controlling Information on the Internet International Review of Law Computers & Technology 17(3)

[9] http://arbiter.wipo.int/domains/search/overview/index.html

[10] So called to allow it’s undoubtedly tortuous passage through White Papers, Green Papers and then both Houses of Parliament!

Categories
Free Essays

A citizen, rights and responsibilities and antisocial behaviour

Introduction

The term ‘citizen’ may literally be used to refer to any person who has acquired or has the status of citizenship. The acquired status is used when the person that is conferred with the citizenship is not originally a citizen of the sovereign nation while, in effect the citizenship has to be earned through set of rules that govern the society. According to Hardy (1997) “the status of citizen is used to denote the link between an individual and a State, a form of political organization with territorial boundaries which may encompass more than one nation”. Citizenship is defined by Lewis (2004, p 9) as “a legal status conferred by an internationally recognised nation – state. This status accords a nationality and the right to make claims against the state and receive a share of the public goods”. Therefore, it can be seen that when an individual has the status of a citizenship, such individual has formed a relationship with the State and this relationship is guided and strengthened by the citizen knowing his/her rights from the State and responsibilities to the State, community and entire neighbourhood.

This project focuses on the rights and responsibilities of a citizen with respect to tenancy and how these relate to existing government policies on anti social behaviour. The project will attempt to achieve this focus by fully describing the rights of a citizen from the State and the responsibilities of that citizen to the State, community and entire neighbourhood. Secondly the project will carry out a review of the current government policies on anti social behaviour and how these policies relate to the rights and responsibilities of a citizen. Thirdly, the project will conclude with summary of the overall work.

Rights of a citizen

When a person has the status of a citizenship, Blackburn (1994) argues that a relationship has been formed with the state which gives the citizen certain rights. However, Marshal (1992, cited in Lewis, 2004) viewed citizenship as a relationship between the individual and a state which gives rise to 3 basic elements of rights – civil, political and social.

Civil rights

The civil right of a citizen represents the right to freedom of speech, expression, thought and faith and to conclude valid contracts. When a person becomes a citizen, such person has by virtue of the citizenship status acquired the right to freely express him/herself and to put forward opinions about issues affecting the that nation. In addition, the citizenship status comes with the right to equal opportunities and social justice in that society.

Political rights

The political right of a citizen is the rights that allow the person to vote. The right to vote is an opportunity to demonstrate one’s democratic rights and this is important in a democratic society. The political right also includes the chance to participate in political process such as contesting for electoral positions and being duly elected in the political office.

Social rights

The social element of the right of a citizen is the right to economic welfare and to fully share the social heritages within the society. One of the social heritages in a society is housing. Blackburn (1994) viewed the right to housing and be housed as one of the idealistic rights of a citizen.

Within the context of this project, the housing right (social right) of a citizen will be the subject for main focus.

Housing right

The citizen has the right to housing (Cowan and Marsh, 2001 and Blackburn, 1994). There are two main sectors in the housing market for a citizen – the owner occupied and the rented sector. The owner occupied housing sector includes the individuals that have undertaken to purchase a property through mortgage and who live in the house by themselves. The house that is purchased may be a leasehold or freehold, but, in either case, the government usually supports the citizens through varying the interest rates and stamp duties. Other form of support by the government is through consultation with the mortgage lenders in reducing the amount of deposit required for the citizens to purchase their own owner occupied houses. These supports are to enable the citizen enforce their rights of housing. The rented housing sector includes the private and public. Private rented sector refers to those that rent out their house through short hold tenancies while the public sector is the assured short hold tenancy. The providers of housing to citizens in the public sector include housing associations and local authorities. The local authorities invest in houses and allocate them to citizens on the basis of ‘first come first served’ but attention is given to those with extra-ordinary circumstance or great urgency. The housing associations are not for profit making organisations who provide house to citizens based on their criteria and in view of the nature of the associations, they do not share profits but re-invest them into the activities of the housing.

Responsibilities of a citizen

The basic right of housing for a citizen is further broken down in the tenancy agreement the citizen enters into with the landlord which states the conditions of the tenancy. The Housing Act 1988 with amendments up to 2004 and the Landlord and Tenant Act 1985 protect the citizen from undue harassment, unfair charges and fraudulent practices and also ensure that the property is in good condition for occupancy and illegal evictions. However, in order to fully enjoy the right to housing and the protection as contained in the Tenancy Agreement and the relevant Housing Acts, the citizen is required to fulfill some basic obligations. The citizen has the obligation to act within the law by not engaging in criminal or immoral activities and also to behave in such manners that may not be regarded are against socially accepted corms within the neighbourhood or wider social environment. Therefore, it can be said that one of the rights of a citizen is the right to housing and also that one of the major responsibilities of the citizen is to carry on his/her daily activities of living in such a manner as to show behaviours that are against the neighbourhood in which he/she resides. The term neighbourhood is described by Power (2007, p 17) as “local areas within towns and cities recognized by people who live there as distinct places, with their own character and approximate boundaries”. The citizen is a member of the neighbourhood and his or her actions will impact all the members of the neighbourhood either directly or indirectly, in effect, the citizen is expected to maintain a pattern of behaviour for the interest of the general neighbourhood. A pattern of behaviour that is not in line with the acceptable behaviours within a neighbourhood is known as anti social behaviour. According to Rose (1996) citizens are considered to be responsible when they play their roles but in a situation that the moral lifestyle of such person is contrary, such person is considered a threat or reproach to the community. According to Cowan and Marsh (2001, p 168) “the role of the law relevant here is through seeking to uphold particular standards of behaviour”. In the UK, the law that seeks to uphold the standards of behaviours within the neighbourhood is the anti social behaviour contained in the Crime and Disorder Act (1996, 1998) and Ant Social Behaviour Act (2003).

Anti Social Behaviours

The Good Practice Unite of the Chartered Institute of Housing (CIH 1995, p3) defined antisocial behaviour as “behaviour that opposes society’s norms and accepted standards of behaviour”. Also the Crime and Disorder Act (1998) described antisocial behaviour as acting “in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household”. The Anti Social Behaviour Act (2003) identified various forms of behaviours found to be common and these include: noise nuisance; intimidation and/or harassments, littering and graffiti; being violent against neighbours and properties; hate behviours that target an ethnic or gender groups; and use of the property for unlawful business or other purposes.

Causes

Several reasons have been given by different researchers and organisations as to the reasons that lead to anti social behaviours. Notable among the researchers are Hawkins, Catalano and Miller (1992) who identified risk factors and protective factors.The risk factors involves certain issues of life that have the potential of making people act against the society such as poverty, family problems and problems that arise in the school. The protective factors refer to the presence of some features that may discourage the individual from acting against the society such as bonding and community involvement. The issues of risk and protective factors were further highlighted by the argument of Miller (2005) that neighbourhoods with high crime rate in most cases are traceable to poverty, deprivation and lack of involvement in the community in which the offender resides.

Impacts

Anti social behaviours has the likelihood of impacting on the members of the neighbourhood, properties and the individual that carries out the behaviour. One of the impacts of antisocial behaviour on the neighbourhood is that it can make withdraw from public places within the area for fear of the safety of their lives thereby and also crumble the service provisions in that area (Rogers and Coaffee, 2005). The Policy Action Team of the Social Exclusion Unit (SEU, 1998, p11) argued that “if housing is poorly managed or unlettable, or crime and anti social behaviour are not tackled, community support systems can easily crumble”. Secondly, there is the possibility of reducing house prices in the area and increased cost of repairs and cleaning of graffiti as a result of vandalism (Brand and Price, 2000).

Also, an area that is notorious for behaviours seen to be contrary to the accepted standards in the society may have a stigma which may make residents decide to relocate or prevent new ones moving in. This problem of stigma was emphasised by Harworth and Manzi (1999, p 163) that there is “the stigma attached to public rented houses” and that this is the result of behaviours that are usually not in conformity with the accepted norms in the wider society. In order to tackle the problem of anti social behaviour and reduce or eliminate its impacts on the neighbourhood and properties, Cowan and Marsh (2001) suggested the use of basic strategies such as housing management, legal tools and partnering with Social Exclusion Unit.

Tackling Anti Social Behaviour in Housing

Housing Management

Cowan and Marsh (2001) suggested that in order to control the activities of those that perpetrate anti social behaviours, Landlords should control the access to houses by such individuals through the use of housing register. This suggestion implies that those noted for their anti social behaviours should be excluded from having access to houses as a deterrent to others that would want to follow their bad examples. The power for landlords to exclude those whose behaviours are deemed to be against the norms of the society in which they reside (anti social behaviour) is contained in the Part VI of the Housing Act (1996) and research by Smith (2001) found that this exclusion has reduced the rate of antisocial behaviours in most estates.

In addition to the use of exclusion as a house management tool for deterrent and preventive measure for dealing with anti social behaviours, Landlords were empowered by the Housing Acts 1996 to adjust the tenancy agreement indicate repossession of properties. In effect, the tenancy agreement fully describes the rights and responsibilities of both parties with particular respect to anti social behaviours and that the Landlord has the right of repossession if the tenant receives anti social behavioural order – an order for carrying out anti social behaviours. On the effectiveness of the use of repossession as a deterrent, the Social Exclusion Unit (SEU, 2000, p 4) argued that “evicting anti social people does not mea that the problem will go away. Some people will be deterred from future ant social behaviour by the experience of eviction or exclusion from the housing register”.

Legal Tools

The 1996 Housing Act further gave powers to Landlords (both Local Authorizes and Social Registered Landlords) to deal with their own tenants with respect to anti social behaviours. This Act made individuals responsible for their own actions, those of their households and those of their visitors and empowered landlords to take possession of their properties in the event of anti social behaviour. In applying this power, certain behaviours were banned by Landlords and where the tenant goes against those behaviours, a housing injunction is obtained from the court to arrest the offender. Also the 1998 Housing Act introduced the use of Anti Social Behavioural Order (ASBO) by the police or landlords against offenders as long as they are above the age of 10. Other legal tools include the use of 1996 Noise Act and 1990 Environmental Protection for noisy tenants and those houses not maintained by the tenants.

Social Exclusion Unit Partnership

While applying both the managerial and legal tools, Cowan and Marsh (2001) further suggested the use of partnership initiatives with the social exclusion unit by landlords and local authorities. The Social Exclusion Unit works with communities, individuals and families to make sure that anti social behaviours are not breached and that to a greater extent avoid repeat or re – offending (SEU, 2000c). Rather than punish those whose behaviours are anti social, through exclusion, repossession or injunction, the social exclusion unit partners with other relevant agencies to produce strategies in the forms of projects that to support the circumstances of the offender. This process involves having a one to one meeting with the offender to identify the causes of the anti social behaviour and the outcome of the discussion forms the basis for suggesting possible support programs to assist the offender where appropriate. The partnership with the social exclusion unit has additional advantage of making sure that those who are reacting as a result of their extra ordinary circumstances beyond their control are supported in overcoming such circumstances.

Conclusion

This project sought to find out about a citizen and how the rights and responsibilities of ‘a citizen’ relate with the current government policies on anti social behaviours. During the course of the project, it was found that citizen describes a person who has the status or acquired the status of citizenship that is, having a form of relationship with the State. Such relationships with the nation that has accorded that person the citizenship status usually comes with political, civil and social rights. The social right of the citizen which formed the basic focus of this project includes the right to housing and being housed. The right of the citizen to be provided with housing protects the citizen from being harassed, unfairly charged or exploited by landlords. However, the right of the citizen to housing requires that the citizen keeps to the conditions of the tenancy agreement among which includes a condition not to act in a manner that will above other things constitute not conform to the norms of the society/neighbourhood – that is ant social.

Furthermore, the project found that where the citizen acts anti social, it may result in crumbling of the service provisions within the neighbourhood (SEU, 1998), reducing house prices as the result of the stigma of crime and violence (Harworth and Manzi, 1999) and increasing cost of repairs and maintenance by the local authorities in cleaning graffiti. In order to tackle the problem of antisocial behaviour, the project found 3 basic strategies as suggested by Cowan and Marsh (2001) and these include housing management, legal tools and partnership with the social exclusion unit. Housing management uses seeks to exclude citizens with anti social behaviours from having access to housing and also repossessing their properties while the legal tool uses injunction. The partnership with the social exclusion unit aims to address the circumstances that create the anti social behaviours of a citizen.

Based on the findings during the course of this project, it can be seen that a citizen has a right to housing and that this right comes with responsibilities not to act anti social. Therefore, the current government policy of anti social behaviour seeks to ensure that a citizen, enjoying the right to housing, complies with the responsibilities that come with the right to the housing being enjoyed. The rights are received by the citizen; the responsibilities are the conditions for the rights and the anti social behavior policies ensure that the conditions are kept by the citizen.

References

Blackburn, R. (1994). Rights of Citizenship. London. Mansell Publishing Ltd

Catalano, R.F., & Hawkins, J.D. (1996). The Social Development Model: A theory of antisocial behavior. In J.D. Hawkins (Ed.), Delinquency and Crime: Current Theories (pp. 149-197) New York: Cambridge

CIH (1995). Housing management standards manual. Coventry. CIH

Cowan, D. and Marsh, A. (2001). Two steps forward: Housing policy into the new millennium. UK. Polity Press

Hardy, H. (1997) ‘Citizenship and the Right to Vote’, 17 Oxford J Legal Stud 76 (1997).

Hawkins J.D., Catalano R. F., & Miller J. Y. (1992). Risk and protective factors for alcohol and other drug problems in adolescence and early adulthood: Implications for substance abuse prevention. Psychological Bulletin, 112, 64-105.

Lewis, G. (2004). Citizenship Lives Social Policy. UK. The polity Press

Millie, A., Jacobson, J., Hough, M. and Paraskevopoulou, A. (2005a) Anti-social behaviour in London – Setting the context for the London Anti-Social Behaviour Strategy, London: GLA

Power, Anne (2007a) City Survivors. Bringing up children in disadvantaged neighbourhoods. Bristol: The Policy Press.

Rogers, P. and Coaffee, J. (2005) ‘Moral panics and urban renaissance: Policy, tactics and youth in public space’, City, 9(3) 321-340.

Rose, N. (1996). The death of the social Refiguring the territory of government, Economy and Society, vol 25, no 3, pp 282-99.

Social Exclusion Unit (1998). Bringing Britain together: A national strategy for neighbourhood renewal, Cm 4045, London: The stationery Office.

Social Exclusion Unit (2000a) Leaflet, London: Cabinet Office

Smith, R., Stirling, T. Papps, P., Evans, A. and Rowlands, R. (2001). Allocation and Exclusion: The impact of new approach to allocating social housing, London: Shelter.

The 1998 Crime and Disorder Act

The 1996 Housing Act

Categories
Free Essays

Natural Law and Human Rights

Introduction

Human rights have roots deep in the mists of time yet the term itself dates back barely sixty years to the international discussions preceding the founding of the United Nations. Since 1945, the scope of human rights has been elaborated and the concept now permeates the fabric of international society.

Although human rights issues continue to be debated and contested, the longer history of human rights is often unexamined and even forgotten. Human rights, rather than being a 20th century phenomenon, marks both a culmination of and a transition from the Western natural law and natural rights traditions.

Human rights are rights possessed by people simply as, and because they are human beings. The term has only come into common currency during the 20th century. Rights are not the same thing as standards of behaviour punishable or required by rules, which can be fundamentally unfair to individuals, or used to oppress minority interests.

Human rights are rights and freedomsto which all humans are entitled. Proponents of the concept usually assert that everyone is endowed with certain entitlements merely by

reason of being human. Human rights are thus conceived in a universalist and egalitarian fashion. However, there is no consensus as to the precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism.

Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.

Donald looks at the meaning of natural law from four perspectives. The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, in the absence of better methods, by individual unorganised violence, in particular the law that historically existed, in so far as any law existed, during the dark ages among the mingled barbarians that overran the Roman Empire. The medieval / philosophical definition: Natural law is that law, which it is

proper to uphold by unorganised individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. The scientific/ socio-biological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganised violence to prevent such conduct, or, in the absence of orderly society, use individual unorganised violence to punish such conduct, then such violence would not indicate that the person using such violence, is a danger to a reasonable man.

The concept of natural rights arises from the belief that there is an instinctive human ability to distinguish right from wrong. Hugo Grotius believed that people have a ‘right reason’ for doing things. Thomas Hobbes, John Locke and Immanuel Kant were supporters of natural rights theories, suggesting that we have basic fundamental rights because we are born human. Natural law thinkers see rights as universal and inalienable. Natural rights theories have been the inspiration behind ideas and democratic struggles, forcing politics to protect the rights of citizens. Natural rights theories imply that all human beings are equal and should be treated equally. The demand for equality before the law in individual states is synonymous with the development of international human rights law.It is therefore correct assertion to point out to the fact that human rights have evolved from natural rights as depicted by natural law theories.

This paper will trace the changes and continuities of debates and claims about rights throughout the late medieval and early modern periods in order to explore how rights

are historically asserted, justified, and defended. It will also delve into the transformation of rights, from natural to human.

Human Rights and the Legal Theories

The origins of international human rights lie in philosophical discussions evolved through the centuries.

The theories of both Locke and Rousseau suffer from their failure to explain how the supreme right of the majority can go together with the inalienable rights of the individual. (Read the fact that legal theories fail to come down on the side of either democratic or autocratic principles of the government.)

Historically, the assertion of natural rights has often been linked with a revolt against state, authority and a humanitarian belief in the equality and dignity of all men. This is true of the legal philosophy of Stoics or of Kant. (The idea of equality of men often causes democrats to be internationalists.)

The history of natural law is a tale of the search of mankind for absolute justice and of its failure. Again and again, in its course of the last 2500 years, the idea of natural law has appeared, in some form of the other, as an expression of the search for an ideal higher than positive law after having been rejected and derided in the interval. With changing social and political conditions the notions about natural law have changed. The only thing that has remained constant is the appeal to something higher than

positive law. The object of that appeal has been as often the justification of existing authority as a revolt against it.

Natural law has fulfilled many functions. It has been the principle instrument in the transformation of the old civil law of the Romans into a broad and cosmopolitan system; it has been a weapon used by both sides in the fight between the medieval church and the German emperors; in its name the validity of international law has been asserted, and the appeal for freedom of the individual against absolutism launched. Again it was by appeal to principles of natural law that American judges, professing to interpret the constitution, resisted the attempt of state legislation to modify and restrict the unfettered economic freedom of the individual.

Natural law has, at different times, been used to support almost any ideology; but the most important and lasting theories of natural law have undoubtedly been inspired by the two ideas, of a universal order governing all men, and the inalienable rights of the individual.

Greeks

Greeks were more interested in the philosophical foundations of law rather than its technical development. Though there were bodies of fundamental laws in the classical period, little attention was paid to the idea of universal law. Plato laid the foundations for much of subsequent speculation on natural law though he had nothing to say as such on natural law. His republic was based on substitution for law of the philosopher-king

which partook of the divine wisdom but remained uncommunicable to lesser mortals. Aristotle was also not interested in natural law. Natural law as a universal system in Greek World came into the fore with the decline of the city state and the rise of large empires and kingdoms. For this stoic philosophers were responsible. They stressed the ideas of individual worth, moral duty and universal brotherhood Stoicism passed over and influenced over to and influenced Roman thought especially Cicero who defined natural (true) law as “right reason in agreement with nature”.

Medieval Period

The existence of a body of basic rights can be traced back to the early thirteenth century in Europe and has featured predominantly in different schools of thought since then. Its origins basically lie in the philosophical discourse with concepts such as liberty and even “rights”.

This was a period when theology of the Catholic Church set the tone and pattern of all speculative thought. The theology was bedevilled by the notion that law and human domination were rooted in sin until Aquinas in the 13thCentury. Aquinas admits that human law, which derives its validity from natural law changes with human circumstances and human reason.

Human rights are linked to the rule of law, a concept that imposes inherent limitations on the exercise of absolute power by a sovereign. The rule of law in turn links to the theories of natural law and to an extent religious doctrines.

The right to expect rulers to be fair and reasonable, with limited authority in respect to the private lives and of their subjects, translating to the rule of law was first enshrined in paper in England in what is referred to as the Magna Carta of 1215. It enshrined a number of principles which now fall within the broad ambit of human rights, including the principle of equality before the law, a right to property and an element of religious freedom, albeit such rights extended only to nobles.

The Declaration of Arbroath in Scotland in 132o, unlike the Magna Carta spoke of the profound right to liberty, rating it above glory, honour, and riches.

Renaissance, Reformation and Counter-Reformation

The renaissance led to an emphasis on the individual and free will and human liberty and a rejection of the universal collective society of medieval Europe in favour of independent national states, and, where the reformation followed, separate national churches. The 16th century also saw the revival of Thomism, a revival of crucial importance for the development of modern natural law theory of the state led by Victoria and Suarez. They took their way of thinking from Aquinas; it was not possible to neglect the law of nature since all men from beginning of creation have been subject to it.

The social contract ideologies associated with Hobbes, Locke, and Rousseau are also traced to the 16th century.

Secularisation of Natural Law

The secularisation of natural law is usually held to begin with Grotius. He inaugurated a new era in natural law thinking by his assertion that natural law would subsist even if God did not exist.His main concern was to establish a system of international law to regulate the affairs and warfare of the rising nation states.

Natural Law and Social Contract

In Hobbes, the social contract is used in defence of absolutism while in Locke in support of limited constitutionalism. Natural law does not loom large in Hobbe’s thinking, except for the fact that he expressed the main precept of natural law in terms of man’s right to self preservation. To Locke the state of nature that preceded the social contact was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the fall. Rousseau’s political theory has weak links to natural law. The general will has come almost to replace the higher law standard that natural law has typically represented.

The emergence of human rights as part of modern domestic law therefore dates back at least to John Locke’s Two Treatises on Civil Government. In 1690, Locke argued that governments were bound in a covenant with the governed to protect an individual’s natural rights to life, liberty, and property.

The 1688 Bill of Rights of England and Wales

In 1688, the Bill of Rights of England and Wales mentioned minimal rights though with little substance. Whatever the case, these early documents connect as to the evolution of human rights. They show that the thinking of the masses then was directed towards human rights as much as ours is today.

The 18th & 19th Centuries: Revolutions and Rights

Though Vico, Herder and Montesquieu, refuted the idea of a universal natural law common to all mankind due to increase in secularism and rationalism, it is during these two centuries that many philosophers and thinkers focussed on the idea of natural rights, rights which should be enjoyed by all humans. A corpus of basic rights to be afforded to all mankind was an obvious result of such thinking. That corpus found legal expression at the close of the 18th Century. The United States and France adopted statements on rights when proclaiming the independence of the former British North American colonies and when establishing the first French Republic following the 1789 revolution.

The United States Declaration of Independence and Bill of Rights, the first ten amendments which were ratified on December 1791, were a big leap into realisation of human rights. The American Bill of Rights refers to freedom of religion, due process and fair trial,and freedom of person and property.

The French Declaration was inspired by the United States Declaration of Independence, though predates the Bill of Rights. It begins by stating that me nare born free and are equal in rights. Liberty is defined as being able to do anything that does not harm others. It also touches on rule of law issues such as a fair trial process.Others to be expounded are right to free communication and taxation issues.

The rights enumerated by the American Bill of Rights and the French Declaration have modern equivalents in human rights instruments. This was another major step in conversion of human rights from theories and thoughts into real legal instruments that could be enforced and followed.

It is arguable that 18th century developments as pertains development of human rights were better those of the 19thcentury where the influential theory of positivism meant that only states had rights in the international arena because of their legal status as subjects of international law rather than individuals whowere viewed as objects of international law.

Challenges of Universality of Human Rights

How can different countries and cultures have the same problems and valuesThis is the main contention to opponents of universality of human rights.
The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to demonstrate that all human beings share certain characteristics. But finding those that constitute the “essence” of being human and are of sufficient import to serve as a rationale for rights is a bit harder.

Universality is one of the key essentials of human rights. All human beings are holders of human rights, independent from what they do, where they come from, where they live and from their inter alia, national citizenship, and their community. The universality of human rights is embedded in and also influenced by the other characteristics of human rights: human rights are categorical, egalitarian, individual, fundamental and indivisible.

Kirchschlaeger,asserts that human rights struggle with particular interests. States claim the priority of their sovereignty over the universality of human rights and the private sector claims self-regulating approaches and uses this to define its sphere ofinfluence within certain limits. This challenge is part of the political and legal dimension of human rights and as a consequence of the moral dimension of human rights as well. In this regard, one can recognize a positive tendency of acceptance of human rights by states, a growth of an international institutionalization for the protection of human rights and a progress of the mechanisms for monitoring human rights performances by states to respect the universality of human rights and some small steps by the corporate world. At the same time, it has to be stated that the implementation of human rights is not yet there where it should be, and that the vast majority of human beings are still victims of violations of their human rights. The universality is still a claim, not reality.

Human rights are challenged by cultural diversity as well. This challenge is taking place in the moral dimension of human rights. Although the UN Conference in Vienna 1993 reconfirmed the validity of the universality of human rights, the universality faced critics from different quarters because of its alleged western origin.

Countries like China, Venezuela and those in the Arab world human rights as too westernized. Currently, an ongoing case against some Kenyan politicians at the International Criminal Court has added to the rant. In seeking a referral of the case by the Security Council, Kenya has the Support of China, Russia and the African countries but the US, UK and France who wield veto powers do not support the bid. This has been seen as a western effort to intrude into Kenyan sovereignty using human rights as a disguise.

Religions, cultures, traditions, world views and beliefs benefit indirectly from the human right to freedom of religions and belief. This right enables and enhances the authentic practice of an individual and so the peaceful coexistence of religions, cultures, traditions and world views and the dialogue between them. It is an achievement of humanity to protect this variety. A show of universality of human rights was when the UN Security Council, announced a no flying zone in Libya and with the support of the Arab League, France, US and the UK moved to avert deaths of Libyan civilians by bombing strategic points to immobilize Gaddafi troops.

Nickel, observes that the achievements of the human rights movement in have shown both that the optimistic beliefs of proponents of universality were not entirely without foundation and how difficult it is to create genuine international agreement about how governments should behave. Globalization promotes joint ventures between people from different and sharing of ideas or views, thus promoting the development of shared standards.

Toespraak views the criticism of universality with skeptism. He argues that although sometimes the concerns are sincere, sometimes they are simply being abused to hide domestic shortcomings or they serve opportunistic political agendas. Recent initiatives at the UN, both in the General Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on interreligious dialogue, are slow but inhis view sure attempts to weaken the fundaments of universal rights. Some states have argued for a classification based on differences in culture, religion and development In the Universal Periodic Review process. This is all reason for growing concern according to him

Period after World War II and Development of International Law

World War II gave impetus to the modern development of basic principles of human rights and to the general acceptance of the idea that the human rights practices of individual countries toward their own citizens are legitimate matters of international concern. The 1945 United Nations Charter included a general commitment to respect for human rights, but it was the Universal Declaration of Human Rights, 1948 that provided the basic statement of what have become widely accepted international human rights standards.[2]

After World War II, the term human rights came into wide use replacing the earlier phrase “natural rights,” which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.

Modern international conceptions of human rights can be traced to the aftermath of World War II and the foundation of the United Nations. [1]The rights espoused in the UN charter would be codified in the International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights

The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights and another on social, economic, and cultural rights, due to questions about the relevance and propriety of economic and social provisions in covenants on human rights. The covenants provide for the right to self-determination and to sovereignty over natural resources.

The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were also proposed. The disagreement over which rights were basic human rights resulted in there being two covenants. The debate was whether economic and social rights are aspirational, as contrasted with basic human rights which all people possess purely by being human, because economic and social rights depend on wealth and the availability of resources. In addition, which social and economic rights should be recognised depends on ideology or economic theories, in contrast to basic human rights, which are defined purely by the nature (mental and physical abilities) of human beings. It was debated whether economic rights were appropriate subjects for binding obligations and whether the lack of consensus over such rights would dilute the strength of political-civil

rights. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.

From what I have discussed above, we can say that human rights have been classified historically in terms of the notion of three “generations” of human rights. The first generation of civil and political rights, associated with the Enlightenment and the English, American, and French revolutions, includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social, and cultural rights, associated with revolts against the predations of unregulated capitalism from the mid-19th century, includes the right to work and the right to an education. Finally, the third generation of solidarity rights, associated with the political and economic aspirations of developing and newly decolonized countries after World War II, includes the collective rights to political self-determination and economic development.

Since then numerous other treaties have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:

Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Discrimination Against Women
United Nations Convention Against Torture
Convention on the Rights of the Child
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

There are also regional human rights instruments such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention on Human Rights.

Human rights principles, policy, and practices became an increased focus of popular and public attention during the last quarter of the twentieth century. Several influential nongovernmental organizations were formed during this period to monitor and report on human rights matters.

In the late 20th century ad hoc international criminal tribunals were convened to prosecute serious human rights violations and other crimes in the former Yugoslavia and Rwanda. The International Criminal Court, which came into existence in 2002, is empowered to prosecute crimes against humanity, crimes of genocide, and war crimes.[1]

Conclusion

From the foregoing, it can be concluded that, Human laws are subordinate to natural law; some need more guidance to achieve a virtuous life than others; these people can only be compelled to behave well through human law; reason can be good, but it may be used to exploit base desires and cruelty – linking human law to natural law and natural law is used as a set of general first principles under which human law is made using reason. Using natural reason leads to creation of good human law to deal with the needs of practical situations not expressly covered by natural law.

Human rights have come a long way to not only receive recognition by individual states, but also at the international arena .Universal validity of human rights norms under the current state of international law, does not permit a denial of the universal character of the human rights laws. When implementing human rights, within the context of the principle of universality, there is room for interpretation. The international community should define the scope or variations. Supervision of the implementation of human rights should be conducted by impartial, independent international bodies and not by individual states, as each state has its own particular views on fundamental rights and freedoms which are shaped by different historical developments.

Another major development in the field of human rights is the general acceptance of the principle that human rights are no longer an exclusive domestic affair of states but a legitimate concern of the international community. This principle also reinforces the principle of universality. It is incorporated in the Declaration of the Vienna Conference which was adopted by consensus.

With the 21st century bringing in more in the spheres of technological developments and unified world, we can only wait and see to what level human rights can be pushed.

As Haule puts it, although human rights have their origin from natural law, it took a system of positive law to provide a definite and systematic statement of the actual rights which people possessed.

Bibliography
Rhona K.M. Smith, Textbook on International Human Rights, 2004, Oxford University Press, 2nd Ed.
W.Friedman, Legal Theory, 2008,Universal Law Publishing Co. 5th Ed.
Freeman, Introduction to Jurisprudence, (2008) Sweet & Maxwell, 8th Ed.
Finer, V Bogdanor and B Rudden, Comparing Constitutions, (1995).
Hegarty & Leonard, Human Rights, An Agenda for the 21st Century, (1999) Cavendish Publishing.
History of Universal Human Rights – Up to WW2 Article by Moira Rayner, appearing on http://www.universalrights.net/main/history.htm, accessed on 4th March, 2011.
Human Rights, Wikipedia, Accessed 4

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March 2011, http://en.wikipedia.org/wiki/Right.
Natural Law and Natural Rights, paper byJames A Donald, sourced from [email protected], accessed on 4

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March 2011.
Australian Human Rights Commission, Human Rights Theories, Fact Sheet 3, 2009, accessed on 4th March 2010.
Mark W Janis, sourced from http://law.jrank.org/pages/18657/Human-Rights-International-Law.html, accessed on 22nd March 2011.
The Origin of Human Rights and the Challenge of Universality, excerpted from the book, Tainted Legacy 9/11 and the Ruin of Human Rights by William Schulz Thunder’s Mouth Press, 2003, paper. Sourced from http://www.thirdworldtraveler.com/Human_Rights/Origin_Human%20Rights_TL.html, accessed on 21st March 2011.
Peter Kirchschlaeger, Universality of Human Rights.
James Nickel, Human Rights and Globalisation, sourced from http://ivr-enc.info/index.php?title=Human_Rights_and_Globalization#Challenges_to_Universality, accessed on 21st March 2011.
Toespraak, On the Universality of Human Rights in a Changing World, sourced from http://www.rijksoverheid.nl/documenten-en-publicaties/toespraken/2010/05/03/on-the-universality-of-human-rights-in-a-changing-world.html, accessed on 21st March 2011.
Romuald R Haule, Some Reflections on the Foundations of Human Rights, Max Planck UNYN, 10 (2006).

Categories
Free Essays

Examine the links between human rights and different models of disability in education

Introduction

“No person shall be denied the right to education”

(European Convention 1950, First protocol Article 2)

“Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person”

“States parties recognize the right of persons with disabilities to education” (Article 26)

(Convention on the Rights of Persons with Disabilities 2006)

Education must be for all, without exceptions. The last years, the issue of disability and the different ways in which different communities try to approach it, have started to interest science and especially social sciences. Eventually, four models of disability were created and each one of them has an effect on both the public opinion and the legislation. Thus, human rights in education and special education were affected, when they were formed, by one or more models of disability. In this essay, I will try to show the way in which human rights are linked to the models of disability. Firstly, I will examine and analyze each one of the models and their origins, and parallel to this, there will be a brief comparison between some issues of some specific models. Secondly, I will analyze and connect the terms of citizenship and inclusive education. Thirdly, I will discuss disability and special education. And finally, in the first part I will discuss the Salamanca statement and framework for action on special needs education and with which model of disability it is connected. In the second part I will refer to how things are in Greece as far as special education is concerned, according to the ministry of education and based on my personal experience.

What is Disability?

According to the WHO (World Health Organization)which has been used as the basis for two national studies of disability in Britain (Harris, 1971; Martin, Meltzer and Eliot, 1988), the definition of impairment is: in the context of health experience, an impairment is any loss or abnormality of psychological, physiological or anatomical structure or function. Moreover, the definition of disability is: in the context of health experience, disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range which is considered normal for a human being. On the other hand, the definition that DPI (Disabled People’s International) gives for impairment is: impairment is the functional limitation within the individual caused by physical, mental or sensory impairment. And the definition for disability is: the loss or limitation of opportunities to take part in the normal life of the community on an equal level with others due to physical and social barriers (DPI, 1982).

In today’s world, that we are living, disability has begun to be considered as something universal, a global experience. Through disability, we study especially the values and the position of the people towards disability, and as a consequence, we study how each society treats its members, including disabled people.

The interest for disabilities is a combination of the academic interest, in explaining what disability truly is and its effects on all the fields of society, of the activists and the universal character that disability takes (Chard et al. 1999; Blendon and Benson, 2001)

Disability is a usual term, but practically it refers to people with some kind of bodily or mental-intellectual incapacity and because of that they cannot participate in sundry activities. There are people who claim that this inability of disabled people to participate is a consequence of the barriers which are raised by the majority of “normal” people. It is a socially constructed attitude towards people with impairments. However, disability is not just attitudes which result in discrimination, but also institutionalized practices. What is considered to be “normal” for abled-bodied is not for disabled one, such as the capacity to walk up and down stairs or to cross the road.

Disability does not only concern the person itself who is disabled but it affects the whole world too, and it also has economic, cultural and political ramifications to each society. With the interference of disabled activists and organizations, in the 60’s a lot of national governments included policies in legislation through which the rights of disabled people are protected and secured. A big change was made back in 1981 by the United Nations where the responsibility of the government to provide equal rights to people with any kind of disability was recognized. In 1980 the majority of the academics were interested almost entirely in the medical explanation of disability (Barnes, Oliver, Barton, 2002). A very obvious example was Talcott Parsons (1951) who applied sociological methods and concepts to the understanding of health and illness, and medicine in general, in their social context.

Medical model

The medical model of disability focuses on the groups that are formed, the disabled and the non-disabled. Someone’s disability is his personal problem that requires a medical solution and there are not any problems or any barriers which are caused by society. The focus is not on the integration of the disabled person, but on the disability of the person and either the cure (if there is one), or a specific assistance to overcome the effects of that impairment (Indiana Law Journal, vol 83).

For Parsons every form of sickness diverges from the norm. In the upcoming decades, there was a major concentration on ‘mental illness’ through the sociological perspective (Journal of Health and Social Behavior, vol 17). Additionally, Foucault (1975, 1979) argued that mental illness and all the forms of acts that diverge are something more than the social constructs made by the dominant group.

All studies relevant to mental illness refer to economic or social problems and their consequences but neither of them really look into the meaning of what is called “individual” or “medical” as a form of disability. No one extended the theories from mental illness to any other physical disability or other impairments, and as a consequence, disabled people were socially and economically deprived (Segall, A. 1976)

Charity model

The second model of disability is the “charity model”. In this model we examine the voluntary agencies. There are organizations that have been shaped for people who are disabled and they are run by “normal” people and these organizations are completely different from the organizations of disabled people (which are run by the disabled people) (Barton, 1996).

The tradition of charities is very old and particularly for Britain it goes back into the Industrial Revolution. These charities had a wide range of occupations and they were present in a lot of social activities such as religion, entertainment, education and many more. Our concern focuses there, where the charities assumed the role of social welfare; when they had transformed their interests according to the different forms of diseases. As far as Britain is concerned, disabled people started to be gradually excluded from work, when the time of industrialization and the machinery came. This happened because the work was made for able-bodied people and as a result of this, disabled people were condemned to depend on others to make a living (Finkelstein, 1981b).

At first, church and poorhouses where those who were helping disabled people to live and after a while the organized charity was added as well. But progressively, as the state took the role of the social welfare, disabled people began to have some economic benefits from the social system and additionally we have the creation of some centers where they could stay, such as day centers (Barnes, 1990; Brenton, 1985; Handy, 1988).

The flourish of charities was in the twentieth century. There were many people who were occupied there, some of them were volunteers and some others were salaried staff of professionals (Brandon, 1988). In fact, even though some agencies occupied volunteers and called themselves as voluntary, they were not, actually they were non-governmental and they did not have any profit from the charity and their only aim was to help (Drake, 1994). Most of the charities endorsed the medical model and they emphasized on the treatment of the individual (example: the cure) or they intervened in some other ways, for example, since they knew that the use of public transportation was too difficult for the disabled people, they provided minibuses to those who needed it. But the most fascinating thing was that the disabled people did not prefer this means of transportation because of the fact that they were only for disabled andthis was exactly the ‘problem’. It was something that made a distinction between the able-bodied and the disabled. Here lies the difference between the organizations which are run by the disabled people; their focus was on campaigns and proposals for redesigning the form of public vehicles. The society of the disabled criticized the traditional charities mostly because of their philosophy, which did not unite them with the majority but separated them (Barton, 1996).

Administrative model

The third model of disability is the administrative model. Finkelstein, one of the founders of the social model, criticizes the explanatory ability of the social model as far as the position of disabled people in modern societies is concerned. He argues (1993) that the administrative model of disability is the only model which combines all the forms that a helping service can take, even if they come from the state or from voluntaries. “The cure and the care forms of intervention are administered within the rehabilitation and personal-care services respectively” (Finkelstein, 1993:37). The administrative model is some kind of dichotomous and it has some impact on the legislation. This model refers to specific fields such as education. An aspect of this model is that if someone ‘deserves’, depending on one’s impairment, to be called disabled he has, as a result of this, access to some benefits. It is a sad fact that disabled people have to pass specific tests in order to “prove” their impairment. In fact, there have been some cases of people with severe disabilities who although they deserved the benefits, they were deprived of them, for the reason that they did not fit into the “boxes” which are provided by the administrative model. So, sometimes it seems to be unfair towards a specific group of disabled people, if they do not fulfill the conditions which are set legally (French, 1994).

Social model

The fourth and last model is the social. Back to the nineteenth century we have the rising of activist organizations motivated by people with disabilities. There have been many protests in many countries such as the U.S. and Canada, for the discrimination that they have encountered. But the case of Britain was something special and important, because a new and more radical approach was embedded to theories, so now they refer to, as “the social model of disability”.

The organizations run by disabled people (for example the Upias) made the ground fertile for many disabled activists to rethink the whole idea around disability. By contrast, the social interpretation of disability argues that people with accredited or perceived impairments, regardless of the cause, are disabled by society’s failure to accommodate their needs. The social model concentrates on the social inability to incorporate the disabled with whichever disability that they might have. Because disability does not connote someone’s failure; this approach focuses on the various obstacles like social, economic or political created against impairment.

Disability studies were initially approached by medical sociology and some perspectives were raised. There has been a lot of research motivated by practical medical and other services of health concerns. For example, in Britain, despite the sociological aspects of the social model, it was a team from the Open University (1975), which developed the first studies for disability. This course was developed with the aid of a South African clinical psychologist named Vic Finkelstein and a lot of people from the U.K. who were either disabled or disadvantaged by the educational system, were attracted. Through this course, named “The Handicapped Person in the Community”, people focused on the improvement of their skills, so as to help in a better way the handicapped people to do their best help in a better way, as far as their autonomy is concerned.

The social model of disability offered the “big idea” (Hasler, 1993), to people who were disabled. But it took some time before it found acceptance from the universities of the UK, as far as sociology departments are concerned. By contrast, in the U.S. and Canada disability entered the universities in the ‘70s. And again we have a combination of activism and academy as well.

During the last years we have a more radical perspective, in which supporters were a small group of disabled scholars who were related to cultural or human studies, especially in Australasia and North America. As a consequence of that, there was a development of a more critical field of research focused on the link between socio-political position and the approach of the social model (Rioux and Bach, 1994; Davis, 1995; Linton, 1998; Albrecht et al., 2001). All of these premises created a common interest between research and academic studies and at the same time signified the rising of the interest in socio-political approach, where British writers first shed light on.

In 1970, in Britain, the term “disability” began to change from a purely medical point of view to a more sociological perspective, because people began to see disability as a form of social segregation and exclusion. There was an organization which followed this movement, the UPIAS (Union of the Physically Impaired Against Segregation), for which disability is seen as an obstacle that social organizations put to people with any kind of impairment, excluding them from some social activities. Thomas Carol argues that UPIAS statement is that disability comes into light when activities of disabled people are restricted by specific social structures. So disability, he claims, is not synonym to the restriction or the lack of activity as it is in the ICIDH argument. It is not that impairment does not go with limitations of activities, but this does not constitute disability (Thomas, 1999).

According to the disability movement which included the organizations that were run by disabled people argues that for disabled people, reconstruction of the society can be the cure for their disability problems. This movement dissociates itself from the mental model and it has to do with the social model (Cole, 2000)

By contrast to the social model, in biomedicine the focus is on the deviations of the bodies and minds from the social norms of each individual. This “medical model” relies on the fast growing genetic science, to eradicate the diseases. So, according to this model, disability is equated with impairment.

From the perspective of rehabilitation science, the focus shifts to a different area, it seems to be very important to help the disabled to adapt and adjust a more “normal” life. It’s a strong belief that a lot of difficulties are caused inevitably by the impairment. And this combination of belief, that on the one hand, exclusions and limitations in different forms of activities are caused by impairment and on the other hand the social barriers that are raised against disability, turns into ICIDH (International Classification of Impairments Disabilities and Handicaps). In 1970, we have the development of an organization the ICIDH, organized by Philip Wood, Elizabeth Bradley and Mike Bury. ICIDH, wanted to move further, so it tried to explain what disability is but not from a purely bio-medical perspective. For ICIDH, disability is any kind of deficiency or restriction of ability to do an activity in a specific way which is considered normal for a human being. So, ICIDH does not equate disability with impairment, there is a serious possibility that some social factors can influence some restrictions of activities (Bury, 1997, 2000).

Citizenship

An additional term that I would like to add because it is important to examine, is the term of citizenship. It is a definition which according to Barbalet (1988:1) defines who is and who is not a member of society. To be called citizen, it means the ability to participate in the decisions that frame his/her society. Additionally, it is the ability of someone to have access to work, travel, leisure, and generally, it is the political, civil and social rights of people (Marshall, 1950).So we must consider in what way we “see” and approach disabled people.

In my opinion, education is a fundamental human right. Education can set an individual free and give him/her power. However, there are a lot of people (adults and children) who are deprived of education, and one of the many reasons can be some particular special need that an individual may have.

Disability and special education

In the 19th[?1] century, we had schools in which elementary education was provided for all. The system, on which schools based their education, was not very helpful for disabled children, because it was based on memory tests and learning by heart. This was a very negative factor for children who lacked specific abilities. As a result, it began to be clear that the degree of difficulty was increased as much as the growing inability of the child was increased too (Cole, 2000). It was only after 1921 and after a lot of pressure that some categories of impairment were recognized as such (epilepsy, deafness, blindness, mental defectiveness and physical defectiveness). So, creating special schools or special classes within regular schools began to be considered and children who were labeled as disabled could go and be educated there. Gradually, more categories were added in the term of disablement. After 1950, a lot of special schools were created and children, who were labeled as ineducable, according to Mental Deficiency Act (1913), had the right to be educated in those schools (Cole, 2000). In my opinion, this was a very cruel way of discrimination against those children who were labeled as ineducable and it was something that followed them throughout their life.

After 1975, the idea of a more inclusive education entered the stage. Despite the economic cost, many regular schools were forced to accept disabled children in an effort to integrate them. But still, there are many problems in regular schools that make the life of disabled children difficult. As long as there are special schools, regular schools will not change their strategies dramatically so as to integrate children with impairment (Collin, 2000).

Salamanca Statement

There have been a lot of efforts to support inclusive education. One of these efforts is the “Salamanca statement and framework for action” (1994), which took place in Spain and it was organized by UNESCO and the Spanish government, in which 92 governments took part and they tried to find policies which promote inclusive education and prepare all the schools to embrace all the individuals no matter what impairment is and to support their right to learn. Special education must be included in the mainstream schools and not be considered as an isolated issue (Salamanca, 1994). “The challenge confronting the inclusive school is that of developing a child- centred pedagogy capable of successfully educating all children, including those who have serious disadvantages and disabilities” (Salamanca,1991:6). As we can assume after reading the Salamanca statement, the policies are based on the social model. Because after understanding the several social barriers which exist, there is an effort to bring those barriers down through some policies and cooperation from all (governments-schools-citizens). For example, in the statement it is referred that “ we believe and proclaim that: “… education systems should be designed and educational programs implemented to take into account the wide diversity of these characteristics and needs… those with special educational needs must have access to regular schools which accommodate them within a child-centred pedagogy capable of meeting these needs” (2004:viii). And “we call upon all governments and urge them to: give the highest policy and budgetary priority to improve their education systems to enable them to include all children regardless of individual differences or difficulties…encourage and facilitate the participation of parents, communities and organization of persons with disabilities in the planning and decision-making processes concerning provision for special educational needs…invest greater effort in early identification and intervention strategies, as well as in vocational aspects of inclusive education” (2004:ix). We can assume that the statement forces the states to do whatever it takes so as to integrate all the disabled people in the educational system. They seek to have regular schools but with inclusive orientation so as not to have discrimination between humans.

Inclusive education

Inclusive education is when all children no matter what kind of impairment they have, are able to go to their local schools to be educated, and, for local schools to be able and appropriately prepared to provide all the facilities that children may need. There has to be a transformation of the curriculum in that way, so all children can be educated in the same way, without some pupils having special benefits against others. It is also important, through collaborative learning or through specific reading books or images to aid children without disabilities to learn how to coexist and cooperate with disabled children. This is a process which is helpful and all the children can learn and benefit from it. The learning support in each classroom, it would be very effective. Generally, we have to create activities which promote the collaboration of all children, to give opportunity to all disabled children to present themselves and to build up their self-esteem. Additionally, parental consulting is promoted, because it is good for children to be encouraged by their parents to feel more independent. There are a lot of other school policies which are based on the social model of disability (CSIE, 1996, 2000).

About Greece

In Greece, the education is compulsory and provides primary and secondary education and there is post-compulsory secondary education. According to the reform of 1997, it consists of two types of schools: the unified upper secondary schools and the technical vocational educational schools. Together with the mainstream schools, we also have special schools of all the educational stages, which admit students with special educational needs, such as special school for deaf people or special school for blind people. A child can go to a mainstream school which has integration classes or can go to a special school, depending on the impairment that the child may have. The decision, on which school a child will go to, is made through special education advisers and the Center of Diagnostic Evaluation and support, so as to diagnose the educational special needs of the child. Then, they choose the most appropriate school unit that will contribute to the better integration of the child. The progress of the child is evaluated from time to time. From the division of Special Education and the proceedings report of 2004-2007 we can see that a great amount of integration classes were created in the mainstream schools at all levels of the educational system (http://www.ypepth.gr/el_ec_page119.htm , in Greek 20/03/11). On the one hand, there are some special schools for example, for deaf or blind children and there is still no policy to include those children in the mainstream schools, so as not to create any kind of discrimination. But on the other hand, those schools specialize in some specific impairments, so they can focus only on those children with the specific disability. The right of education for all and inclusive education is a little bit contradictory in that case, because the mainstream schools in Greece, for example, cannot admit deaf children in the same class with children who can hear.

In Greece, there is an effort to include children with specific impairments, such as learning difficulties or mild forms of mental retardation, by educating the teachers to be able to deal with those children’s requirements. A very interesting thing is that, even though the curriculum is the same for all the children whichever the school is and focuses on the equality of learning, if someone does not speak the same language there will be a serious problem because he will not be able to keep up with the rest of the students. So, there are some predetermined qualifications for someone to be able to have the same education with the others. In some circumstances, such as the immigrant’s children, if they do not know the language at all, it will be very difficult for them to catch up with the rest of the students, and maybe those children will be excluded because they do not fit in this model of requirements. But even though, there are some multicultural schools (http://www.ypepth.gr/el_ec_page200.htm on 25/03/11), which are very helpful for children who do not know the language very well. As far as special education is concerned, the special schools are based on the segregation of the children and their base is the medical model of disability, because they categorize children on the basis of their impairment, however, their disability does not make impossible for people to learn and be educated, so it is sort of coming into the social model.

All kinds of children, either the disabled or the immigrants, require a specific kind of education. At this time, Greece is not ready to include all the children in a mainstream school. It would be perfect if we could have a mainstream school which could admit all the children no matter their impairment or their lack, but this is a project which requires a lot of time. And after all, this is the direction that we should all be oriented to.

Conclusion
To sum up, in this essay we examined the four models of disability and how they consider impairment and disability. Each one of these has its own point of view as far as disability and treatment of disabled people are concerned. All of the models have those who support their theories and those who criticize them. And through this process we can examine the weaknesses of each one. Basically, the human rights, in the last years, are based on the social model of disability, because they declare that everyone has the right to be educated no matter what impairment they may have, and taking into consideration the several social barriers that exist in the societies, they try to resolve the problems and through some new policies on schools to integrate all the children. Additionally, about the different legislations that societies have, we can note that they may have been affected by more than one models of disability. For example, in Greece, disabled people still have some economic benefits from the welfare state (which is a characteristic of the charity model). Furthermore, the administrative model has some impacts on the legislation, because, for example entering a special school or attending integration classes, the child has to pass through some tests which are predetermined and if the child fits in the characteristics that the legislation has given about disability or special needs. Then the child can officially go to a special school or to integrate in a mainstream school and attend integration classes. Moreover, the social model has its effects on the legislations, because there is an effort to recreate schools by embedding several policies in a way to integrate all children, as human rights declare. As far as special schools and mainstream schools are concerned, in my view, it would be perfect if we had one school so well prepared that could accept any child, regardless of its impairment. This would be done in an effort to achieve inclusive education. Special schools are not necessarily negative, but I think that these schools must accept only some very severely disabled children, that may be dangerous for the rest of the pupils. Any less severe impairment, with the appropriate preparation from the side of schools, would be good to be included in mainstream schools.

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Understanding human rights

Introduction

Human rights are defined as those inalienable and universal rights and freedoms which all individuals enjoy simply because they are human, they are entitlements which we all share regardless of age, gender, race, sexuality, class or culture (Henry 2009: 1). Human right are rights inherent to all human beings, irrespective of the nationality, place of resident, sex, national or ethnic origin, colour, religion, language, or any other status.

Human rights are entitlement gotten outside/without discrimination. these rights are all interrelated, interdependent and indivisible in the sense that most states have the same human right laws that govern the security of individual and group with brings about equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to development and self-determination.

Most human rights are expressed and supported by law, in terms of treaties, customary international law, general principles and other sources of international law. infact, these human right laws lay down obligations of Governments to act in certain way in order to promot and protect human rights.

Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.

Universal Declaration on human rights in 1948 contains 30 articles. but the most important of these are considered as follows:

the right to life, liberty, property and security of person,

the right to an education,

the right to employemtn, paid holidays, protection against unemployment and social security,

the right to participate fully in cultural life

freedome from torture or cruel, inhumane treatement or punishment,

freedome of expression and opinion

freedom of thought, conscience and religion.

Vienna World conference on human rights 1993 noted that ‘it is the duty of states to promoted and protect all human rights and fundamental freedoms, regardless of their politica, economic and cultural systems.

Human Rights Act in the UK

“The Human Rights Act was brought about as a result of the European Convention on Human Rights, which was set up by the Council of Europe. This was to ensure that the violations of human rights under the reign of Hitler during the Second World War, would not be able to happen again. The act however, was only passed into UK law in October 2000. individual now have the right to seek redress in a UK court instead of having to visit the European Court of Human Rights in Strasbourg, which covered the act of: the right to life, prohibition of torture, inhuman and degrading treatment, Freedom from forced labour, Right to liberty, Right to a fair trial, Retrospective penalties, Right to respect for private and family life, Freedom of thought, conscience and religion, Freedom of expression, Freedom of assembly and association, Right to marry, Prohibition of discrimination”.

The Human Rights Act 1998, has affected the lives of British Citizens, for example recently a law allowing terror suspects to be detained for up to 90 days without charge, but this was dropped as it was deemed to breach the rights of those being detained for such a long period of time.

Importance of human rights

Human rights help everyone to have a secured and safe life. it educates people to be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

Criticisms against human rights

Human rights as a principle is always positive. They should be the basis for evaluating any regime, aid program, etc. The criticism can arise when human rights are written down as laws, as they are almost impossible to police and there can be very blurry edges when defining everyday practicalities, such as a bill of rights.

Some sociologists also see a problem with western countries defining human rights in a way that makes sense to westerners, yet is at odds with another culture. An example is child education. we see it as a human right and wish to enforce it globally. Many poor countries depend on working children in order for the family to eat and survive. When the child is forced to go to school, they lose a breadwinner, and a parent can also be forced to cease work in order to now attend to a child who is not working at home like they used to. Costs are also astronomical in developing countries to school a single child, and many families are large. end result is deepening of impoverishment before the fruits of the child’s education kick in decades later. So is this still an easily recognisable human right?

“Human Rights” is a much used and abused term today, and is used extensively for political gain. The term is used to defend Human freedom as well as destroy it. People tend to attach importance to particular human rights issue according to ideology and political convenience. if a man is not to have recourse or rebellion against tyranny and oppression, taking law into their own hands,”Human Rights” should be built into the society as a natural rule. As a last resort only, law should be applied as a protection.

Desite the fact human right laws are in existence, there is still racism and discrimination which has criticised human right in a way that it can no longer make any impact to individual in some societies.

Conclusion

Human rights are the rights of individual men and women to basic freedoms such as freedome of association, freedom speech, etc.

one should note that ‘the improvement fo one right facilitates advancement fo the others, likewise, the deprivation of one right adversely affects the others.

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The purpose of the Act is to incorporate into UK domestic law certain provisions of the European Convention on Human Rights made in 1950

1. Introduction

The purpose of the Act is to incorporate into UK domestic law certain provisions of the European Convention on Human Rights made in 1950. The intent is to give the major rights and freedoms in the Convention direct effect in the public law field and possibly in the field of private rights and obligations. A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.

So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.

This project will focus on the impact, benefits and contributions of the Human Rights Act of 1998 in relation to employment law with a view to evaluate its positive contributions in the area of the private sector employer and employees. It will research the achievements and the change brought into the United Kingdom legislation.

Taking into consideration many legal commentaries regarding the introduction of the Human Rights Act 1998 in the area of employment law; it is to be noted that a general consensus is the Act has given much leeway to employee rights. Those employers constantly face litigation over issues not previously covered by domestic laws. The incorporation into UK laws of certain rights and freedoms as set out in the European convention of human rights has afforded employees rights to challenge issues relating to dismissal, sexual orientation, discrimination, equality and numerous others. ‘The Convention has not so far been recognised as a direct source of law by UK courts although, when interpreting ambiguous statutes, courts have sometimes had regard to Convention provisions’

The expectations from several commentators that the Act’s broad scope would significantly impact upon the disciplinary/grievance hearings, employment tribunals, trade union right and other aspects relating to employment. After nearly a decade of its introduction I propose to evaluate the impact on important employment law cases brought under the Act. The project will also raise questions about what is the status of the Human Right Act 1998 on the rights of an individual law in England and Wales.

How the relevant provisions of the convention articles do help us to understand the decisions reached by the employment tribunals or English courts with regards to the UK national lawsHow the European convention principles have been given effect in UK law and if domestic courts have applied convention principles in case lawHow human rights are protected in the UK courtsHow does the court address similar disputes involving public authority in relation to the breach of the convention articles of the Human Rights Act 1998 and those of the private individual in the private sectorTo what extent if any has the domestic human rights protection being enhanced by the Act?

2. How the HRA 1998 introduces convention rights and
relevant convention Articles which could create impact into
employment law.

2.1 Statutory interpretation:

Since the HRA 1998 came into force on 2nd October 2000 claimants have been able to assert their convention rights in the United Kingdom Courts and Employment Tribunals, thus avoiding huge cost and delay of taking cases to European Courts of Human Rights in Strasbourg. The Act gives effect to the provision of the European Convention on Human Rights (ECHR). Much speculation existed about the effect that the Act would have on employment law in the UK.

‘Parliament remains free to legislate in a manner incompatible with the Convention right which become part of municipal law under the Act’.

In an attempt to discuss the impact on the individual employment law would depend on how these rights are enforced as this is dependent on whether the individual as an employee or worker who is employed or works in the public or private sector.

The public sector employees and workers can assert their convention rights by bringing direct claim against their employers in the employment tribunal and courts by virtue of Section 7 of the HRA 1998. While the private sector employees cannot assert their convention rights through this route; instead they can rely on ss. 2,3, and 6 of the Act which places a statutory duty in employment tribunal and the courts to interpret domestic legislation in a way that gives effect to convention rights, and Strasbourg jurisprudence, as section 2 of the HRA 1998 provides ‘(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights…’. Section 3 of the HRA1998 states that ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’.

Section 6 provides:

‘(1) It is unlawful for a public body to act in a way which is incompatible with a Convention right’. Section 6(3) provides that court and tribunals are included in the definition of public authority.

2.2 The Convention Rights:

Section 1 of and Schedule 1 to, the Act set out those rights under the ECHR which are to be part of municipal law ‘Convention rights’. Section 1 (1) defines the term ‘Convention rights’ as the rights and fundamental freedoms set out in the various articles of “Convention”, which is defined in turn in section21(1) as the ECHR “as it has effect for the time being in relation to the UK”. ‘This makes it clear that the rights are those which operate in international law in relation to the UK’.[3] The current list of rights appears enormous but for the benefit of this task I will focus on the Convention rights that have had most impact on employment law. These are:

Article 4, which prohibits forced labour

Article 6, which provides for the right to a fair trial

Article 8, protects private and family life

Article 9, which protects freedom of thought, conscience and religion

Article 10, protects freedom of expression

Article 11, which guarantees the rights to freedom of association and assembly

Article 14, provides that there shall be no discrimination in respect of the enjoyment of any Convention right.

The above rights which are relevant to employment law from the wordings of the Articles are not expressed in absolute terms and are therefore subject to certain restrictions. The Courts will employ extra measure in the process of interpreting statutes with Convention rights ensuring that a balance result is produced, that which is compatible with the rights. This is regarded as the ‘principle of proportionality’; finding a balance between the protection of the individual rights and to those that are of communal interest.

Article 8 contains both negative and positive obligations. The state is under a negative obligation not to interfere with privacy rights, but in addition Strasbourg case law has also extended Art.8 to impose a positive duty to take measures to prevent private parties from interfering with these rights: (1) X (2) Y v the Netherlands (1985)8 EHRR 235.

There are four protected interests under Article 8:

(1) private life;
(2) home;
(3) family;
(4) correspondence.

Most actions have been decided under the right to respect for private life, although they may involve incidental claims to respect for home, family or correspondence.

Like Articles 9, 10 and 11 Article 8 (2) contains specific exceptions to the right guaranteed in the first paragraph. These limitations may only be justified if they are “in accordance with the law” (Artciles 9,10 & 11 require measures to be “prescribed by law”) and, in all cases, “necessary in a democratic society”. The following analysis of these qualifications will apply equally to Articles 9 10 and 11 to follow.
In Accordance with the/Prescribed by law

This means three things:

(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied Malone v United Kingdom

Necessary in a Democratic Society

Even if a measure has been taken in pursuit of one of the legitimate interests listed in the second paragraph of Articles 8, 9 10 or 11, the measure must be tested for “necessity.” The Court has held that the notion of necessity implies two things:

(1) that an interference corresponds to a pressing social need;
(2) that it is proportionate to the legitimate aim pursued.

The Doctrine of Proportionality

In order for a measure to be “necessary in a democratic society”, it must respond to a “pressing social need” The Sunday Times v United Kingdom this involves the test of proportionality. If a measure has been adopted which infringes an individual’s Convention right in some way, it will not be considered disproportionate if it is restricted in its application and effect, and is duly attended by safeguards in national law so that the individual is not subject to arbitrary treatment (MS v Sweden (1997) 3 BHRC 248). The Court held that, ‘the domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8’

Margin of Appreciation

Depending on the aim pursued, the Court grants Signatory States a certain leeway in adopting the measures it considers most appropriate to pursue that aim. In the area of public morals, for example, State authorities have been considered to be in a better position than the Court itself to determine for instance the restrictions on the sale of pornography Handyside v United Kingdom.or the legal recognition of transsexuals Rees v United Kingdom.

The private individual has no direct obligation under the Convention rights however s 3 of the HRA 1998 requires that, ‘so far as it is possible to do so, primary and subordinate legislation must read and given effect in a way which is compatible with the Convention rights’. This inference is that the courts or tribunals must read and give effect to legislation in a way which is compatible with such rights taking into account Strasbourg jurisprudence. The Act does not create any ‘free –standing’ rights for employees there must be in existence the right which has to be interpreted in line with the Convention rights.

The Court of Appeal has consistently reiterated that the Human Rights Act remains relevant to decisions taken by employment tribunals considering for instance in a claim of unfair dismissal made against a private employer recommended the following five point approach which might aid tribunals in other unfair dismissal cases between private individuals relating to Convention rights issues. The five point approach suggested in the case of X v Y [2004] EWCA Civ 662

is as follows:

(1) Do the circumstances of the dismissal fall within the ambit of one or more of the Arts of the Convention?

(2) If so, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons?

(3) If it does, is the interference with the employee’s Convention right by dismissal justifiedIf it is, proceed to (5) below.

(4) If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996 (ERA), which does not involve unjustified interference with a Convention rightIf there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5) If there was, is the dismissal fair, tested by the provisions
of s98 of the ERA, reading and giving effect to them under s3
of the HRA so as to be compatible with the Convention right?

Considering the case of private employers section 3 appears more appropriate than section 6 of the HRA 1998 which explicitly applies merely to cases relating to public authority.

The requirement under section 3 of the HRA implies that the courts and employment tribunal, so far as it is possible to do so, be obliged to read and give effect to section 98 of the Employment Rights Act 1996 and other related provisions in the ERA in a way which is compatible with the Convention rights. The requisite of section 3 of the HRA applies to both primary legislation and secondary legislation; the ERA and the rules of procedure in the Employment Tribunal Regulations 2001. The ERA applies to all matters relating to employment rights disputes that exist between private sector employer and employee, unfair dismissal claims between public sector employer and employees. Invoking Section 98 of the ERA draws no distinction between an employer in the private sector and a public authority employer. In line with his leading judgement, Mummery LJ said, ‘in the case of such a basic employment right there would normally be no sensible grounds for treating public and private employees differently in respect of unfair dismissal, especially in these times of widespread contracting out by public authorities to private contractors…’[9]

Under Section 3 of the HRA it is the tribunal’s or Court duty to interpret S.98 (4) in a way compatible with Convention rights as was determined in the case of X v Y [2004].

An analysis of case law alleging breaches of convention rights and incompatibility of UK legislation.

The vast majority of employment cases to date have related to Article 6, the right to fair trial, Article 8, the right to respect for private and family life, Article 4, prohibition of slavery and forced labour, Article 9, the right to freedom of thought, conscience and religion, Article 10, the right to freedom of expression, Article 11, the right to freedom of association and assembly. Below I will attempt to set out the main cases brought under these Convention Articles.

Article 8- the right to private and family life in Art8 (1) is subject to a number of restrictions in Art (2) restrictions which have in many cases proved deficient in the ability of claimants to bring successful claims under this Article. The tribunals and courts are required to regard the “principle of proportionality” when considering restriction on the exercise of a Convention right; which involves finding the right balance between the protection of the individual’s right and the interest of the state at large.

In X v Y , the Court of Appeal cautiously asked whether the tribunal should have taken an employee’s right to private life under Article 8 into account when determining the fairness of his dismissal in accordance with S.98 (4) of the Employment Rights Act 1996. The employee was dismissed after his employers found out that he had earlier received a police caution over some sexual activity in the toilet which he has failed to disclose when seeking employment as required by his employers. The Court of Appeal upheld the tribunal decision that since the activity took place in public his Article 8 right to respect for private life and his right under Article 14 not to suffer discrimination had not been engaged.

In Pay v Lancashire Probation Service, A Probation officer was dismissed when his employer’s discovered his links to a business involving sadomasochistic activities. The employee sought to argue that, in accordance with S.3 of HRA, his right not to be fairly dismissed should be interpreted in the light of Articles 8 and 10. The tribunal held that the dismissal had been effected for ‘some other substantial reason’ within S.98 (1) and that his employer’s decision to dismiss him was fair for the purposes of S. 98(4). Again the tribunal concluded that the employee’s activities were conducted in public and could not be accepted as such being part of this private life. The tribunal also addressed the issue relating to Article 10 that this Convention right was not infringed and concluded that the employer’s decision to dismiss was justified under Article 10(2) which restricts the right to freedom of expression; taking into consideration that the employee’s activities would pose a risk to the reputation of the employer. The EAT while upholding the decision of the tribunal rejected the employee’s argument that the tribunal had erred in its approach by considering first the issue of fairness before considering whether Conventions rights were engaged and, if they have been breached. They argue that the consideration was injected into S.98 (4) test and that ‘interpretative obligation’ were met.

In another development regarding the claim which breaches Article 8, employers have the right to undertake random drug, or alcohol test on employees. The was challenged in the case of Whitefield v General Medical Council [12] a medical doctor appealed against the condition placed on his registration by the General Medical Council requiring his abstinence from alcohol and submitting to random blood and breath test. He relied on Article 8 arguing that the conditions deprived him from consuming alcohol during family and social gatherings, therefore violated his rights under Article 8. However the Privy Council rejected his claim that restriction was for public safety in the course of his employment as this would have serious consequences on his practice and that testing for safety reasons would seem proportionate. They also suggested that he can still enjoy drinking with friends and family and could opt for soft drinks instead.

In the McGowan case, the Article 8 right was considered when a public sector employee who was dismissed after his employer obtained evidence through covert surveillance of his house that proved he was falsifying records of time sheets. However the EAT accepted the covert surveillance that the employer’s action was necessary to protect its assets and also investigation a criminal activity, despite the acceptance of the fact that tracking the movements of all inhabitants abode the house ‘raises…a strong presumption that the right to have one’s private life respected is being infringed’

The issue that has arisen between the right to privacy and freedom from intrusion into one’s personal life and relationship conflict with the right to fair trial has led the courts to demonstrate where appropriate the willingness to prioritise the right to a fair trial under Article 6 over Article 8 privacy rights. This was illustrated in the case of Jones v University of Warwick an enquiry agent obtained access and information from the employee of the company he was representing by posing as a market researcher, filmed her using a hidden camera. The employee had proceeded to make a claim against her employer alleging significant disability and claimed substantial damages. The employer then introduced the video footage as evidence of the employee recovery, the Court of Appeal accepted the video footage despite admitting that this act was a violation of employee’s Article 8 rights but states that ‘the significance of the evidence weighed against the gravity of the Article 8 breach’.

In contrast to the decision in Jones, the Court of Appeal in XXX v YYYoverturned the decision of EAT who earlier admitted the evidence of a nanny who had submitted a recorded video footage in support of her claim of sex discrimination; that the employment tribunal who had seen the footage had concluded that it did not assist the employee’s case, therefore in its view was irrelevant and did not affect the balance struck between Articles 8 and 6 respectively.

The EAT, in the case of De Keyser Ltd v Wilson made a general comment on the relationship between the two convention rights (Article 8 and 6) that ‘where an individual institutes proceedings, his or her right to privacy under Article 8 (1) will be qualified by Article 8(2) so far as is necessary to protect the right of the litigating parties to a fair trial under Article 6’.

Article 6 guarantees the right to ‘fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

An evaluation of the impact of the HRA 1998 on the law of private employer and employee.

In his April 2009 report, Professor Ruggie of the UN Secretary General’s

Special Representative on human rights and transnational corporations and other business entities, explained:

‘states are not held responsible for corporate-related human rights abuse per se, but

may be considered in breach of their obligations where they fail to take appropriate

steps to prevent it and to investigate, punish and redress it when it occurs. Within

these parameters, states have discretion as to how to fulfil their duty. The main

human right treaties generally contemplate legislative, administrative and judicial measures’[17]

SUMMARY OF EFFECTS

(i) HRA makes it unlawful for any Authority to act incompatibly with convention rights. However if the Authority is complying with its own primary legislation it will not have acted illegally.

(ii) HRA requires all legislation to be interpreted and given effect (as far as possible) to be compatible with convention rights.

(iii) The principle of proportionality is crucial so that say an authority in trying to prevent crime adopts a policy contrary to convention rights it must still show that the action was proportioned and not excessive.

(iv) Only a victim or someone potentially at risk of being affected by a measure can bring proceedings under the HRA

5. Conclusion

The Human Rights Act 1998 may be relevant to a dispute between private parties in the following ways:

oThe horizontal effect of the Act
oThe interpretative obligation on the Court; or
oThe positive obligations placed on public authorities by the Act.

However, none of the above makes the Human Rights Act enforceable directly against private individuals or companies.

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which the “war on terrorism” has been waged threatens to undermine the international human rights framework so painstakingly built since World War II

Introduction

The way in which the “war on terrorism” has been waged threatens to undermine the international human rights framework so painstakingly built since World War II. This essay argues that abandoning human rights in times of crisis is short-sighted and self-defeating. A “war on terrorism” waged without respect for the rule of law undermines the very values that it presumes to protect. A balance between liberty and security must therefore be restored by reasserting the human rights framework, which provides for legitimate and effective efforts to respond to terrorist attacks.

The United States–led “war on terrorism” is premised on the notion that the events of September 11 should be seen as a wake-up call that the world has changed. The international community necessitates new tools and strategies, perhaps a new normative structure, to deal with these dire threats to the world’s security. In the absence of international agreement about the new tools, strategies, and norms, the “war on terrorism” is being waged on its own imperatives regardless of existing norms. The way in which this “war” was waged is itself a threat to human security. Since the September 11 attacks, the United States, with the support of many governments, has waged a “war on terrorism.”This “war” places the human rights gains of the last several decades and the international human rights framework at risk. Some methods used in detaining and interrogating suspects violate international human rights and humanitarian norms in the name of security.Throughout the world, governments have used the post–September 11 antiterrorism campaign to crack down on dissidents and to suppress human rights.

Efforts to define terrorism are fraught with political consequence and disagreement. The controversy is often captured in the phrase “one person’s terrorist is another person’s

freedom fighter.” The Special Rapporteur notes that it is difficult to distinguish between

internal armed conflict and terrorism. Should state-sponsored terrorism be included in this discussionHow about sub-state terrorismIs there a difference between the terrorism of the past and the new threat of non-state-actor super-terrorism with the potential for catastrophic use of weapons of mass destruction?

There is already some agreement about prohibiting certain acts the international community condemns as terrorist acts.The definition adopted in this essay is that attacks on the World Trade Centre, in London and Madrid constitute crimes against humanity in that they are, especially taken with other attacks by the same actors, part of a widespread or systematic attack on civilian populations. This view was expressed by the UN High Commissioner for Human Rights Mary Robinson in the immediate aftermath of the September 11 attacks.

Another aspect of the problem of definition is that in many of the antiterrorism measures taken since September 11, 2001, governments have used vague and overbroad definitions of terrorism. Such definitions run the risk of sweeping peaceful, expressive activity into the definition of terrorism and can be the basis for repressive regimes attacking political opponents or other pre-textual uses of antiterrorism campaigns. Such antiterrorist laws violate the principle of legality and provide a basis for governments to label political opponents or human rights defenders as “terrorists.”In addition, it can subject them to

exceptional security measures that would not be tolerated in other contexts. Below we look at how human rights has been a casualty on the war on terrorism.

At the heart of the challenge to the human rights framework is the question of whether the “war on terrorism” is a “war,” and if so, what sort of a war it is. To date, one of the characteristics of the “war on terrorism” is a refusal to accept that any body of law applies to the way this “war” is waged. Central to the human rights framework is the idea that there are no “human rights free zones” in the world, and that human beings possess fundamental

human rights by virtue of their humanity alone. In addition, there is no gap between human

rights law and humanitarian law in which a “war on terrorism” may be waged, free from the constraints of international law. The essence of the rule of law requires that executive action be constrained by law. The refusal to accept that the rule of law governs the conduct of the

“war on terrorism” has created tremendous uncertainty and has also led to the erosion of individual rights. For example, in April 2003 the United States took the position, in response to questions posed by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions about the November 2002 killing of six men in Yemen by a missile shot from an

unmanned drone, that this attack was against enemy combatants in a military operation and, thus, was beyond the competence of the Special Rapporteur and the UN Human Rights Commission.

By defining the “war on terrorism” as a “war,” the United States and cooperating governments conveniently eliminate all of the protections of human rights law, even in circumstances in which international humanitarian law does apply. It is not clear why this

precedent would not be applicable to any government seeking to target dissidents, national liberation movements, or anyone opposed to a regime as being a “terrorist” and an appropriate military threat in this global “war.” The concept of “terrorism” put forward is any act perceived as a threat by those waging the war against it. The battlefield is the entire planet, regardless of borders and sovereignty. The “war on terrorism” might continue in perpetuity, and it is unclear who is authorised to declare it over. Human rights protections simply do not exist when they conflict with the imperatives of the “war on terrorism.” One such case is that of Guantanamo.

The continuing detention of more than 600 alleged “terrorists” at a military base in Guantanamo has become the most visible symbol of the threat to the human rights framework posed by the “war on terrorism.”The Guantanamo detainees essentially have been transported to a “human rights free zone” or “legal black hole,” where only visits by the International Committee of the Red Cross (ICRC) stands between them and the arbitrary,

unreviewable exercise of executive power. The detainees are beyond the reach of any body of law and receive the treatment that their captors deem reasonable in the circumstances. The US states the detainees are to be treated consistent with the laws of war. Yet, they are denied hearings required by Article 5 of the Third Geneva Convention before a “competent tribunal” to determine whether they are prisoners of war, as the ICRC presumptively believes them to be. In the eyes of their captors, they are conclusively determined to be “enemy combatants” or “enemy aliens,” who may be tried before military commissions and

detained indefinitely regardless of whether they are convicted by those commissions.

The Military Order authorizes the detention and trial of “terrorists” and uses a broad definition of “individuals subject to this order.”Thus, US authorities may take any person in the world they believe fits this broad definition and transport them to the “human rights free zone” in Guantanamo. There the US is not subject to judicial oversight by domestic or international authorities, and the detainees can be treated in any manner until they are tried, released, or held in these conditions indefinitely.

The Military Order applies only to noncitizens, leading to a stark double standard between the treatment of US citizens accused of being involved in terrorist activity and noncitizens, who are not entitled to the panoply of rights accused US “terrorists” will receive.

The idea that noncitizens are not entitled to international fair trial standards because they are

unworthy “terrorists” is at odds with international antidiscrimination and fair trial norms as well as the presumption of innocence. Trials before the military commissions, established pursuant to the November 2001 order, will not comply with essential international fair trial

safeguards or guarantees of an independent judiciary. Indeed, the proceedings appear to be no different from military tribunals the international community has criticized in many other settings as a violation of international human rights standards.

The availability of the death penalty in these military commissions undermines the human rights goal of eventual abolition of the death penalty; especially in light of the important strides the international community has made toward abolition of the death penalty in the Rome Statute and elsewhere, for even the most egregious crimes. These commissions

also inhibit international cooperation to combat terrorism given the strong views of many states that abolition of the death penalty is a fundamental human rights issue.

There is more to say about the conditions of confinement in Guantanamo Bay (cramped cells, lack of exercise, torture), especially after recent revelations about the widespread abuse of prisoners in Iraq and elsewhere. The central challenge it presents to the human rights framework is that the detainees are left without the protection of law or judicial or international oversight. Although the ICRC is allowed to visit the detainees, the United States does not agree that the detainees are prisoners of war or even entitled to the full protections of international humanitarian or human rights law. The United States has labeled the detainees as “enemy combatants,” but this label cannot avoid the requirement of a determination of every detainee’s status by a “competent tribunal.” Humanitarian law requires that such determinations be made by tribunals and under procedures that guarantee fair treatment, protect vulnerable detainees, and restrain the detaining power. Instead, the detainees, like the six men killed in Yemen, are subject only to the discretion of an unrestrained executive authority. Fundamental human rights norms require that detentions be subject to judicial oversight. As the UN Working Group on Arbitrary Detention

stated in December 2002, if prisoner of war status is not recognized by a competent tribunal,[T]he situation of detainees would be governed by the relevant provisions of the [International Covenant on Civil and Political Rights] and in particular by articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial.

The United States has rejected the UN’s position and every other form of international oversight of these detentions. As a result, the identity of the detainees are secret, and there is no international or domestic oversight of the detentions. There is no way of ascertaining whether there is any basis for the continued detention of particular detainees, which includes children as young as thirteen. Over time, a number of detainees have been released, and so far the released detainees have not been charged with any criminal offense. Thus, raising substantial questions about the grounds for their detention in the first place and even more concern about the length of the detentions. Despite assurances by United States officials, there are examples of mistakes coming to light. One such discrepancy concerns refugee law and discrimination.

Almost all of the detainees have been held on minor immigration law violations, which ordinarily would not warrant detention or deportation. One commentator reports that only three of the estimated 5,000 noncitizens detained by these efforts have been charged with any offense remotely related to terrorism, indicating the ineffectiveness of such strategies.

These transgressions on immigrant communities are just a part of the “collateral damage” of the “war on terrorism.” International norms clearly prohibit discrimination on the basis of ethnicity, nationality, or religion. There is a growing recognition of the harms caused by discrimination in the social fabric of our communities. By targeting immigrant communities, the government fosters the discrimination and exclusion that human rights law has struggled so hard to eradicate, making it all the more difficult to engender understanding and cooperation between communities in the fight against terrorism. Below we evaluate the significance of a human rights framework response to terrorism.

For the most part, the international community has responded to the events of September 11 and their aftermath with an insistence that the response to terrorism must unfold within basic standards of human rights and international law. For example, the United Nations Security Council in Resolution 1456 (2003) insisted that any measure taken to combat terrorism must comply with international law obligations, “in particular international

human rights law, refugee, and humanitarian law.” The question remains whether these norms will actually govern the conduct of states and what the international community will do if they do not. The detainees in Guantanamo are in a “human rights free zone” with the active cooperation of many governments and the absence of an adequate response by the international community as a whole.

Even if one contends that the detainees are not covered by international humanitarian law, the international human rights framework still requires they be tried for a recognizable criminal offense and be granted the internationally recognized guarantees of a fair trial. The United States had no difficulty complying with these requirements in response to the first

World Trade Center bombing, showing it is possible for governments to create special procedures for handling classified or sensitive evidence in such trials in accordance with their legal systems. Many countries have experience trying alleged terrorists in ordinary courts under procedures that comply, or at least arguably comply, with international standards. There can be increased cooperation at every level of government within a human rights framework. Many human rights standards, beginning with Article 29 of the Universal Declaration of Human Rights, explicitly recognize limitations based on the requirements of public order or security. There is a substantial body of international, regional, and domestic jurisprudence in balancing liberty and security in a wide variety of specific contexts. These standards should be respected and enforced, not ignored. International human rights law also explicitly recognizes that there may be emergencies that justify suspension of some international human rights. If deemed prisoners of war then there is a well-defined regime of humanitarian law under which the detainees must be treated.

In conclusion this essay addressed one aspect of the ongoing debate about terrorism and

human rights. While urging adherence to existing human rights and humanitarian standards in the fight against terrorism and raising the alarm about how the “war on terrorism” is being waged, one should not ignore the challenges posed by transnational networks of persons willing to engage in acts of mass destruction. There are opportunities for cooperative, multilateral approaches to this challenge: Expanding the jurisdiction of the International Criminal Court to cover a broader range of attacks on civilians would be a positive development and one fully consistent with the rule of law.

BIBLIOGRAPHY:

Amnesty International, Rights at Risk: Amnesty International’s Concern Regarding Security and Law enforcement Measures (2002), ACT 30/001/2001 available at www.amnestyusa.org/waronterror/rightsatrisk.pdf.

Amnesty International, United States of America: Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay (2002), AMR 51/053/2002, available at web.amnesty.org/library/Index/ENGAMR510532002.

Amnesty International, United States of America: Restoring the Rule of Law. The Right of Guantanamo Detainees to Judicial Review of the Lawfulness of Their Detention (2004)AMR 51/0931/2004, available at web.amnesty.org/library/Index/ENGAMR510932004?open&of=ENG-USA.

Chinlund, C. Who Should Wear the “Terrorist” Label?, Boston Globe , 8 Sept. 2003, at A15, available at www.boston.com/news/globe/editorial_opinion/editorials/articles/

Civil and Political Rights, Including the Question of Torture and Detention: Report of the Working Group on Arbitrary Detention, Louis Joinet Chairperson-Rapporteur, Executive Summary, U.N. ESCOR, Comm’n on Hum. Rts., 59th Sess., Agenda Item 11(a), U.N. Doc. E/CN.4/2003/8 (2002), available at www.hri.ca/fortherecord2003/documentation/commission/e-cn4-2003-8.htm.

Cole, D. (2003) Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism at 188.

European Parliament Resolution on EU Judicial Co-operation with the United States in combating terrorism, B5-0813/2001 (11 Dec. 2001), available at www.epp-ed.org/Activities/doc/b5-813en.doc

Fitzpatrick, J. (1994) The International System for Protecting Rights during States of Emergency.

Procedural Aspects of International Law Series: V. 19) 1994, p. 70-71.

Fitzpatrick, J. (2002) Sovereignty, Territoriality, and the Rule of Law, 25 Hastings International & Comparative Law Review at 303

Geneva Convention (III) Relative to the Treatment of Prisoners of War (Geneva III), 1949

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004).

Human Rights First, Ending Secret Detentions (2004)available at www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_web.pdf.

Human Rights Watch, Human Rights Watch Briefing Paer on U.S. Military Commissions (2003), available at www.hrw.org/backgrounder/usa/military-commissions.pdf.

Jakob Kellenberger speech on 17 March 2004 to the

UN Commission on Human Rights during the 60th Annual Session of the UN Commission on Human Rights—

Statement by the President of the ICRC (17 Mar. 2004), available at www.icrc.org/Web/

Eng/siteeng0.nsf/htmlall/5X6MY5?OpenDocument&style=custo_print.

Kalliopi, K.K, U.M. Special Rapporteur. Preliminary Report: Terrorism and Human Rights, U.N. Doc. E/CN.4/Sub.2/1999/27 (1999), available at www.un.org/documents/ ecosoc/cn4/sub2/e-cn4sub2_99_27.pdf.at 8–21.

Military Order, of November 13, 2001—Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terror, at Section 2.

Press Release, The White House, Statement by the President in His Address to the Nation (11 Sept. 2001), available at www.whitehouse.gov/news/releases/2001/09/20010911-16.html.

Robinson, P, The Missing Crimes, in The Rome Statute for an International Criminal Court pp 510 – 521. (Antonio Cassese et al. eds., 2002).

S.C. Res. 1456, U.N. SCOR, 58th Sess., 4688th mtg., para 6, U.N. Doc. S/RES/1456 (2003), available at www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/S.RES.1456+(2003).En?Opendocument.

The Queen on the Application of Abbasi and Another v. Sec’y of State for Foreign and Commonwealth Affairs, EWCA Civ 1598, para 64 (U.K.) Sup. Ct. Judicature, (C.A.) (6 Nov, 2002), available at www.courtservice.gov.uk/judgmentsfiles/j1354/abassi_judgment.htm.

United States v. Yousef, 327 F.3d 56 (2d Cir. 2003).

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Assess the role of ella baker in the civil rights movement

Introduction

Men and their reputations are well known throughout the civil rights movement. McNair-Barnett conducted a study with interviewees from her research in to the movement and asked them who they considered to be the top ten important individual leaders in the movement. 81 individuals were names, 27.2 per cent were women compared to 72.8 per cent of men (McNair Barnett, 1993). It is clear that men were also more focused on in terms of the press and people in the movement. There are many different reasons that could possibly account for this. The women’s liberation movement did not begin in American until the late 1960’s; therefore it was hard for women to have a role in the civil rights movement as an established leader. Also, at the time of the movement, men would have had to lead due to gender bias’ at the time for he movement to have made progress and begin to generate change. As a product of time, men were at he forefront whilst women were more of than not behind the scenes.

Typically, men tended to front organisations such as The Congress of Racial Equality and the Nation Association for The Advancement of Coloured People. Men in these roles often controlled meetings and made decisions over policies and movement strategies. Women however, were not in such high profile roles and tended to stay behind the scenes as found by Sacks study (Barnett, 1997). Women typically organised events, and worked in clerical and secretarial roles in order for the movement organisations to run as smoothly as possible.

As a result, women have often not been given the recognition that they deserve. Ella Baker in particular has not been recognised for her tireless efforts throughout the civil rights movement. She has been described as “a largely unsung hero of the Civil Rights Freedom Movement who inspired and guided emerging leaders” (ellabakercenter.org). Baker also acquired the nickname ‘Fundi’ from her time as an activist. ‘Fundi’ is a Swahili word meaning a person who teaches a craft to the next generation (REF), giving a slight indication as to how important her role in the civil rights movement was.

Ella Josephine baker was born on December 13th 1903, in Raleigh, North Carolina. She grew up listening to her grandmother’s experiences growing up on slave plantations. Ella Baker attended Shaw University, Raleigh, North Carolina and regularly challenged university policies that she thought were unfair, she graduated as class valedictorian in 1927. After graduating, Baker worked in editorial roles, particularly for the American West Indian News from 1928-1930 and the Negro National News in 1932. Baker had befriended George Schulyer, who founded the Young Negroes Cooperative League together with Baker in 1931, and became its national director (Mueller in Crawford, 1993). This led to her employment with New Deals Works Progress Association bringing people together through collective buying. It was during her time with New Deals Works Progress that Baker was exposed to newer radical ideas surrounding social change. (Ella baker quote in Mueller in Crawford about time in NY)

In 1938 Baker joined the National Association for the Advancement of Coloured People and stressed the importance of young people and women in the organisation. However, it has been suggested that Baker was against the NAACP’s traditional strategy of appealing to the professional ranks in society to lead the masses (Elliot, 1996). Elliot believes that Ella Bakers philosophy was “power to the people” (Elliot, 1996). Baker believed that people had to help themselves in order to discover solutions to their problems, she believed that “oppressed people, whatever their level of formal education have the ability to understand and interpret the world around them, to see the world for what it is, and move to transform it” (www.ellabakercenter.org). by 1941, Baker had become an assistant field secretary of the NAACP. Whilst with the NAACP, baker helped to organise voter registration drives, and actively campaigned for school desegregation and was against police brutality issues. In the late 1940’s Baker had become a field secretary for the New York Branch of the NAACP and had become “the NAACP’s most effective organiser” (www.blackpast.org). Ella Baker in an interview with Gerda Lerner, a historian, described her role in the NAACP; “you would deal with whatever the local problem was and on the basis of the needs of the people you would try to organise them in the NAACP” (Lerner, 1972, p.347).

Baker worked well in the NAACP, hence her reputation. She believed that “you relationships to human beings was more important than your relationship to the amount of money you made” (Cantarow and Omally, p.60). It was perhaps this belief that made her such a central organiser within the NAACP, as she had a very down to earth view of the world and equality, and as a result, was able to work with all people from different walks of life when travelling through the south as a field secretary for the NAACP. Baker left her role as field secretary in 1946 to care for her niece in New York but remained a volunteer, she became its president in 1952 but resigned in 1953 to run for the New York City Council, but it was unsuccessful (Ransby, 2003, p.14).

In 1955, Ella Baker, along with Bayard Rustin and Stanley Levison co founded the organisation ‘In Friendship’ to raise money to fight against Jim Crow laws in the south (Payne, 1989). However, it was not until 1957 when she became involved with another prominent organisation in the movement. Baker moved to Atlanta, to help organise the Southern Christian Leadership Conference with Martin Luther King. Baker was the associate director of the SCLC (Elliot, 1996) and was involved with the day to day running of the organisation and the office. Ella Baker later became the SCLC’s Acting Executive Director. The Civil Rights Movement was a largely church based movement and as a result, Baker was never considered a legitimate leader, as she had not descended from clergy or church hierarchy; she was Acting Executive Director until a suitable leader was found. Mueller suggests, “her policy suggestions for greater emphasis on local organising and the inclusion of Women and youth were largely ignored” (Mueller in Crawford, 1993, p.62).

Ella Baker was aware of this discrimination in the SCLC though when she was asked why she decided to leave the SCLC she replied; “in the first place, I had known, number one that there would never be any role for me in a leadership capacity with the SCLC. WhyFirst I’m a woman. Also, I’m not a minister” (Robnett, 1996). Female status in the movement was gained through acts of courage and positions of power were through community work or extraordinary activism, not through church hierarchy, the way men gained leadership was more often than not through church hierarchy in terms of the clergy.

There is plenty of evidence to suggest that women weren’t aware of their positions as secondary to the roles of men. Victoria Gray recalls “there are just so few places where historically the black male could have any authority, if you will. That is not an accident, I assure you. Where that was possible the community supported that” (Robnett, 1997, p.41). Gray suggests that women supported men in positions of power, despite that often meaning that women would come secondary to them. Bernice Johnson Reagon claims “as an empowered human being I never experienced being held back” (Robnett, 1997, p.37). Whilst these women appear to be unaware of the gender bias at the time, there were women in the spotlight who were aware of the constraints of both race and gender. Dorothy Height, a well known woman in the movement, said the main downside to being a female leader amongst men, was that it was “sometimes hard for them to realise the importance of women’s rights”(www.onlinenewshour.com)

Martin Luther King Jr acknowledged “women, while capable of leadership, did not and should not exercise this ability by choice” (Robnett, 1996). It was difficult for women to hold positions of power during the movement, as women’s liberation had not yet begun. However, Dorothy Cotton an activist in the movement recalls; “Men were programmed to be chauvinistic, but we allowed it too, women deferred to their husbands” (Robnett, 1997, p.43), indicating that a separation of male and female roles in the movement was a product of the time. The post-war era continued the public and private sphere ideology; men and women had their separate roles in separate aspects of life. It is important to realise that men had found themselves in a position of power after so long of having no access to any form of power and therefore the chance to lead was an opportunity that was too good to turn down. Clyde Franklin believes a reason for this is that “in America, black males have only been ‘men’ for about twenty years” (Ling, YR. p.6).

After the Greensboro Sit-Ins in 1960, where black members of society sat in segregated white areas in Woolworth stores across America, two months in to the sit-ins, they had spread to 54 cities in 9 states (www.sitins.org). By July 1960, Woolworth stores had agreed to integrate the lunch counter at the Greensboro store. It was after this that Baker realised people were determined to make a change, and called together 300 students for the South wide Student Leadership Conference on Non-violent Resistance to Segregation, which later changed it’s name to Student Non-violent Coordinating Committee. Elliot suggests that students of the SNCC trusted Ella Baker because of instead of dictating policy she guided students to solutions (Elliot, 1996). This could, however, be due to her time spent at The Highlander Folk School. The Highlander Folk School was geared towards teaching African-Americans how to read in order to enable them to progress and to empower black communities to further develop more local leaders. Mueller believed that is was Bakers aim to “help local leaders develop their own leadership potential” (Mueller in Crawford, 1993, p.58).

In Bakers time with the SNCC, she had an active role in coordinating the nationwide freedom rides of 1961, where blacks were to ride busses in to southern states sat in areas of the public busses that had previously been reserved for white passengers (Carson). In 1964, Baker also helped to organise the Mississippi Freedom Democratic Party. The party was not seated with delegation but held an influence over the Democratic Party to elect black leaders in Mississippi, which forced a rule change to allow women and minorities to sit as delegates at the Democratic National Convention (FIND REF). Whilst working with the SNCC Baker also worked o the staff of the Southern Conference Education Fund from 1962-1967, which aimed to bring black ad white people together to work for social justice. In her time on the staff of the SCEF, Baker took part in a speaker tour to reunite black and whites and co-hosted important meetings on the links of civil rights and civil liberties (Ransby, 2003).

Ella Baker was a strong advocate of Participatory Democracy that was popular during the 1960’s. Participatory Democracy had three main aims focused on participation. The first was an appeal for the grass roots involvement of those in society over decisions that control their own lives. The next step is to minimize hierarchy and emphasis on expertise and professionalism as a basis for the election of a leader. The third main emphasis was to call for direct action as an answer to fear, alienation, and intellectual detachments. Mueller notes, “participatory democracy legitimized an active public voice” (Mueller in Crawford, 1993, p.52). Participatory democracy is evident in Bakers style of activism; particularly through the way in which she encouraged members of the SNCC to find solutions to their problems rather than to dictate the solutions to them. Baker believed that “the major job was getting people to understand that they had something in their power that they could use, and it could be used if they understood what was happening and how group actions count counter violence” (www.ellabakercenter.org) showing how focused she was on the grass roots involvement of people in the movement.

Ella Bakers role in the Civil Rights Movement was essential. Her behind the scenes activism challenged and helped to change the society of America. By Helping to organise voter registration drives she enabled black people of America to have the right to vote in elections, and her role as field secretary of the NAACP helping southern states through the organisation to solve local issues in order to unite a front against national issues. Her co-founding of ‘In Friendship’ also geared towards those in the Jim Crow stricken states in the south where systematic segregation and racism was often stronger than in the northern states. Her organisation of the SNCC was groundbreaking; changing the way people though out solutions to their problems. It was perhaps her role in the SNCC where her strong advocacy for participatory democracy shines through, as she aimed to guide rather than dictate. Shyrlee Dallard sums up the effort of Ella Baker, writing “for Ella Baker, organising was more than a job” (Dallard, 1990, p.6). Baker put her heart and soul in to organising events and organisations geared towards changing American society in to an equal society.

The Ella Baker Center is dedicated to leading in the way that Ella Baker did, to encourage people to work towards professional opportunities in order to better themselves and their local communities through the running of various campaigns. The Heal the Streets Campaign trains people to act against violence in Oakland, Illinois. The center is dedicated towards the following of Ella Baker’s philosophy, ‘Power to The People”.

Bibliography

Cantarow, E. O’Mally, S. (1980) Moving the Mountain: Women working for Social Change. Old Westbury. Feminist Press.

Dallard, S. (1990) Ella Baker: A Leader Behind The Scenes. New Jersey, Silver Burdett Press.

Elliot, A. (1996) Ella Baker: Free Agent in the Civil Rights Movement. Journal of Black Studies Vol, 26. No.5. pp.593-603 [JSTOR]

Lerner, G. (1972) Developing Community Leadership in Black Women in White America. Pantheon, New York.

Ling, J.P. Monteith, S. (2004) Gender and The Cvil Rights Movement. Rutgers: University Press

McNair-Barnett, B. (1993) Invisible Southern Black Women Leaders in the Civil Rights Movement: The Triple Constraints of Gender Race and Class. Gender and Society. Vol, 7. No.2 pp.162-182

Mueller, C. Ella Baker and the origins of ‘Participatory Democracy’ in Crawford, V. (1993) Women in the Civil Rights Movement Trailblazers and Torchbearers 1941-1965. Indiana University Press. Indiana.

Payne, C. (1989) Ella Baker and Models of Social Change. Signs. Vol, 14. No.4.

Ransby, B. (2003) Ella Baker and The Black Freedom Movement: A Radical Democratic Vision. University of North Carolina Press.

Robnett, B. (1996) African American Women in The Civil Rights Movement 1954-65 Gender Leadership and Micro Mobilisation. AJS Vol,1. No.6. pp.1661-1693

Robnett, B. (1997) 1st edn. How LongHow LongAfrican American Women in the Struggle for Civil Rights. Oxford. Oxford University Press.

www.ellabakercenter.org [accessed april 10th 2011]

www.sitins.com [accessed april 12th 2011]

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Free Essays

How can coherence between the european convention on human rights and community law be achieved by the European union?

Introduction
Essentially there can be no doubt as to the significance that Member States and the Treaties attach to fundamental rights. It is declared that the Union is founded inter alia on “the respect for human rights and fundamental freedoms”. It also provides that the Union must respect fundamental rights, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States. They are general principles of Community law. Under Article 7, a “serious and persistent breach” of fundamental rights by a Member State may result in the suspension of rights derived from the Treaty, including voting rights. In practice, the pursuit of respect for fundamental rights in the context of the Union has far-reaching internal and external dimensions and concerns. This essay seeks to demonstrate that concerns only reinforce the undeniable necessity for a consummated policy of human rights protection within the EU. A stronger commitment to safeguard respect for fundamental human rights would provide the EU with the ethical foundations which have accrued due to its origins as a common market. This is reinforced on the grounds that the 2007 Reform Treaty confers legally binding status to the Charter of Fundamental Rights and authorises the EU to acquire international legal personality. This allows for EU accession to the ECHR, which would ensure consistency in the interpretation and application of human rights, whilst strengthening and legitimising their place within EU law.

The European Court of Justice (ECJ) has progressively developed unwritten general principles of Community law regarding human rights. In Internationale Handelsgesellschaft, the ECJ declared that respect for fundamental rights forms an integral part of the general principles of law protected by the Court, and that this protection must be ensured within the framework of the structure and objectives of the Community. In Nold v Commission this notion was extended by maintaining that, in safeguarding fundamental rights, it would be inspired by the constitutional traditions common to the Member States as well as the guidelines provided by international treaties for the protection of human rights. Therefore, rights prescribed in treaties such as the ECHR would be considered as part of the general principles of EC law.

The ECJ’s developments in the sphere of human rights were bolstered by the amendments introduced by the Treaty of Maastricht and the Treaty of Amsterdam. This is demonstrated by Article 6(2) TEU, which provided that the Union would respect the fundamental rights guaranteed by the ECHR and by national constitutional traditions. The Amsterdam Treaty went further to affirm that the Union is founded on the principles of liberty, democracy, and respect for human rights and fundamental freedoms. Furthermore, the new Article 7 allowed the Council to suspend some of the rights of a Member State responsible for a serious and continual breach of the fundamental principles of Article 6. These treaty developments irrefutably signified an important political shift for the EU in order to institute the role of fundamental human rights within the Union.

Although promulgated in order to give greater visibility to the protection of fundamental rights, the Charter of Fundamental Rights includes several innovations, such as the prohibition on reproductive human cloning, guarantees on data protection and on good and transparent administration.As with the ECHR, the Charter contains civil and political rights, but it also includes economic and social rights and certain third generation rights. The Charter has acutely drawn inspiration from the ECHR, yet it has attempted to modify the ECHR with the intention of rendering it simpler, more up-to-date, and expansive. The scope of the protection to be afforded by the Charter is therefore not entirely equal to that afforded by the Convention.

Although the protection of fundamental human rights has occupied a progressively notable status within the European Union, its development within the framework of EU law has been subject to a number of criticisms. Firstly there are two significant gaps which against that background are consternating and which need to be filled. The first is the absence of enumeration of fundamental rights in the Treaties even though the Treaties themselves have, in the words of the ECJ, acquired the status of a “constitutional charter”. The second is the fact that neither the EU nor the Communities are party to the ECHR or to any other international human rights instrument. The proposal for a Charter of Fundamental Rights underscores both these anomalies. A degree of scepticism exists regarding the European Court of Justice’s capability to implement an acceptable system of human rights protection within an entity primarily established as an economic institution. The ECJ has been condemned for attempting to act as another Human Rights Court, when the Strasbourg Court was already created with an express human rights jurisdiction. Similarly, it is contended that the ECJ has attempted to widen Community competences “through the back-door” by manipulating the rhetorical force of human rights to advance the commercial goals of the common market.

A shared dedication to human rights is a potentially unifying force and can provide a common foundation for the EU legal system. In Bosphorus v Ireland, the Strasbourg Court analysed the system of protection of fundamental rights within the EU and was satisfied with the system of observance of Convention rights under EC law. The Court held that State action taken in compliance with the obligations flowing from membership of an international institution is justified “as long as” fundamental rights are protected in the spirit at least equivalent to that for which the Convention itself provides. In this way, although its objectives came into existence from considerations of economic integration, the development of the Community demonstrates the existence of moral and social considerations that extend beyond their economic significance. The Lisbon Treaty aims to implement the reforms necessary to bring the EU closer to this ideal, by giving legally binding status to the Charter, as well as allowing the EU to acquire legal personality so that it can become a signatory to the ECHR. It follows that the EU’s accession to the Convention is of a high political and legal significance.

From the perspective of the citizens, accession will guarantee that any person claiming to be a victim of a violation of the Convention by an institution or body of the Union can bring a complaint against the Union before the Strasbourg Court under the same conditions as those applying to complaints brought against Member State In political terms, accession signifies that the European Union reasserts the pivotal role played by the Convention system for the protection of human rights in Europe, beyond the borders of the 27 Member States. By acceding to the Convention, the European Union itself embeds its weight behind the Strasbourg system of external judicial control in the area of fundamental rights by integrating its legal order absolutely and formally to that control system. This will amplify the credibility both internally and externally of the EU’s strong commitment to fundamental rights.

Concern has been expressed that the Charter contributes to conflicts in the Courts’ interpretations, and thus subverts existing protection by creating the risk of inconsistency and arbitrariness. The legal advantage of accession will be important in three respects: First, it complements the introduction of a legally binding Charter of Fundamental rights. Accession to the Convention will warrant that the case-law of both Courts i.e. the Court in Strasbourg and our own “Constitutional Court” in Luxembourg, evolves in stride. It is therefore an opportunity to develop a coherent system of fundamental rights protection throughout the continent, with a robust assurance for a Europe truly united by law and values. Subsequently, it is argued that an effective way of reconciling the issues regarding fundamental human rights within the EU would be the accession of the Union to the ECHR.

Accession has been titled as “the key” to securing the requisite consistency in the interpretation and application of human rights, as it would provide a clearly defined constitutional bedrock for the protection of those rights. Article 52(3) deals with the potential overlap of rights by providing that where rights in the Charter correspond to rights in the Convention, the meaning and scope of those rights shall be uniform to those entrenched in the ECHR. However, this does not guarantee that the Charter will not oppose the jurisprudence of the ECtHR. Even when the wording of the Charter and the Convention is indistinguishable, it is possible that the two Courts may interpret the same right divergently. This concern is further reinforced in that the new Treaty of Lisbon explicitly recognises the legal value of the Charter.

Accession by the Union and Communities would thus render their institutions and activities subject to the same degree of administration as those of the Member States. This would have the undeniable capacity to fill the substantive gap in the protection of fundamental rights. There would no longer be a need, where an individual sought to rely on a provision of the ECHR before the Community Courts, to depend on the “prediction” of fundamental rights as “general principles” of Community law. Accession to the ECHR would contribute to the further advantage that the Strasbourg Court would be commissioned to act as an external control on the jurisprudence of ECJ, as it already does in the case of the Member States. This would guarantee the status of the ECHR as the primary medium for the protection of human rights in Europe.Furthermore, if the Treaty is ratified, the acts of the institutions of the EU and of Member States would now be susceptible to judicial review by the ECJ for compatibility with the legally binding Charter. If a divergence in interpretation between the ECJ and the ECtHR were to emerge, Member States would face a conflict between complying with their obligations under EU law, as well as those under the ECHR.

As a result, the suitability of a parallel jurisdiction being exercised by the ECJ is called into question by the very existence of the Strasbourg Court because it administers a system which is specifically tailored to the protection of human rights. As Von Bogdandyobserves, “There are doubts whether the Union’s institutions are deeply enough embedded in the public discourses, and whether they wield enough political and moral clout in order to devise and implement such policies”. The ECJ and the ECtHR share no formal link to ensure corresponding interpretations. The ECtHR interprets and applies the Convention with the sole consideration of human rights, whereas, the ECJ, in furthering the objectives of the Community, interprets fundamental rights in conjunction with largely economic considerations. Consequently, the same issue may appear before both courts, but their respective approaches and objectives may result in different conclusions.

This point is aptly demonstrated by the cases of Grogan and Open Doors. The cases appeared simultaneously before the ECJ and the ECtHR respectively, and concerned the publication and distribution of information about the availability of legal abortions in the United Kingdom. The ECJ addressed the issue in relation to the economic freedom to provide services under Article 49 TEU, and, as a result, the ruling was narrowly based on the fact that there was no commercial link between the providers of the abortion service in one Member State and the providers of the information in the other Member State. Therefore, the ECJ simply could not address the issues of freedom of expression and the freedom to receive and impart information. Conversely, the ECtHR considered that there had been a violation of Article 10 ECHR as the absolute nature of the injunction was disproportionate.

Coppel and O’Neill have severely criticised the ECJ’s approach in Grogan: “The high rhetoric of human rights protection can be seen as no more than a vehicle for the court to extend the scope and impact of European law”, displaying a clear bias towards market rights instead of ensuring the protection of fundamental human rights. As a result, there is concern that human rights protection within the EU entails the extension of Community competences over areas which should remain the privilege of the Member States. Maduro contends that the Charter reflects diametrically opposing perspectives: for some, it reinforces limits on the power of the EU and reasserts the control of States; while for others, the Charter is the starting point of a “truly constitutional deliberative process and the construction of a European political identity”. The original declaration of the Charter outside the framework of the Treaties reflected this tension as to the role of human rights in the Union legal order. While there is a general consensus among Member States on core human rights, there is disparity on certain areas. With the rapid geographical expansion of the Union to include countries without well-evolved internal human rights protection, the EU faces an obstinate challenge in imposing uniformity of human rights standards across Member States, particularly given their political, cultural, and ideological diversity.

The consequence of accession is that the ECJ would therefore have an external scrutiny in the field of fundamental human rights. Thus if the ECJ unsatisfactorily interpreted the Convention or avoided a particular human rights issue, the ECtHR could find a violation and give a correct interpretation of the Convention. Accession would therefore underpin the achievements of the ECtHR, whilst strengthening the system of human rights protection within the EU, and preventing inconsistencies in the substance and interpretation of rights.

These concerns nevertheless only reinforce the notion that a solid commitment to the protection of fundamental human rights is essential within the framework of EU law. Far beyond accumulating the power of the Union and the ECJ, a codified, fully-fledged human rights policy could potentially act as a constraint on that power. The uncertainty of the EU’s human rights standards and the open-ended competences of the ECJ could be significantly constrained by a coherent system of human rights protection within the EU.

Secondly, accession gives leeway to the Strasbourg Court to attribute acts adopted by the institutions or bodies of the Union directly to the Union instead of attributing them, albeit implicitly, to 27 Member States collectively. The Union’s specificity as a distinct legal entity vested with autonomous powers will then be adequately reflected in proceedings before the Strasbourg Court.

Thirdly, the Union will have at its disposal all rights that the Convention awards to the Contracting Parties to defend the human rights conformity of its acts before the Strasbourg Court. The Union will also be able to be represented in the Strasbourg Court with an EU judge.

Protocol Nr. 8 to the Lisbon Treaty requires a certain number of substantive guarantees necessary in an agreement relating to the accession so that the specific characteristics of EU law will be preserved. The Recommendation to the Council, which the European Commission adopted, takes these requirements into full account. Two have been reflected in the draft report of the Honourable Member of Parliament Mr Ramon Jauregui:

It is clear that the Union’s competences and the powers of its institutions as defined in the Treaties may not be affected by the accession. A provision in the accession agreement will reaffirm this. Likewise the accession of the European Union may not affect either the situation of individual Member States in relation to the ECHR, to the Protocols thereto and to reservations. The negotiations should therefore ensure that the Accession Agreement creates obligations under the substantive provisions of the Convention only with regard to acts and measures adopted by institutions or bodies of the Union.

This essay has sought to demonstrate that the EU has evolved into a sophisticated legal and political entity of which human and social rights protection is an essential element. A firm dedication to the protection of fundamental rights has provided the EU with the ethical basis it initially lacked, allowing the ECJ to work towards uniting not only our common economic interest, but also our common humanity. Accession to the ECHR would be a crucial step towards this unity, strengthening and legitimising EU human rights protection, whilst resolving any potential conflict with the ECtHR. However, accession should not be seen as the final step – the protection of human rights within the EU will inevitably continue to be a topic of live debate and discussion, and it is certain that the Lisbon Treaty will only further reinforce the development of a fully-fledged human rights policy within the framework of EU law.

BIBLIOGRAPHY:

Bosphorus v Ireland App. 45036/98.

Coppel, J. and O’Neill, A. (1992) The European Court of Justice: Taking Rights Seriously 29 C.M.L.Rev. 669.

De Witte, B. (2009). The Lisbon Treaty and National Constitutions. More or Less EuropeanisationIn C. Closa (ed) The Lisbon Treaty and National Constitutions Europeanisation and Democratic implications. Blindern: ARENA Report Series.

Fundamental Charter of Human Rights 2000.

Goldsmith, L. (2001), A charter of rights, freedoms and principles. 38 CMLRev, pp 1201 et seqq.

Herm.-J, Blanke. (2006) Protection of Fundamental Rights Afforded by the European Court of Justice in Luxembourg in Governing Europe Under a constitution. Heidelberg: Springer, pp 265 – 278.

House of Lords: European Union – Eighth Report

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldselect/ldeucom/67/6707.htm

Internationale Handelsgesellschaft v Einfuhr Case 11/70 [1970] ECR 1125.

Kuhnert, K., (2006) Bosphorous – Double standards in European Human Rights ProtectionUtrecht Law Review, pp 178 – 189.

Maduro, J. E.L. Rev. 2004, 29(2), 282-283.

Miller, V., (2011), EU accession to the European Convention on Human Rights, House of Commons. www.parliament.uk/briefing-papers/SN05914.pdf

Nold v Commission Case 4/73 [1974] ECR 491.

Open Door Counselling and Dublin Well Woman v Ireland (1993) 15 EHRR 244.

Opinion 1/91 [1991] ECR I-6079.

SPUC v Grogan, Case C-159/90 [1991] ECR I-4685.

Treaty of the European Union 1992.

Why the EU should accede to the European Convention on Human Rights, http://www.euractiv.com/en/future-eu/eu-accede-european-convention-human-rights/article-117174

Von Bogdandy, A. (2000) The European Union as a Human Rights OrganisationHuman Rights and the Core of the European Union (2000) 37 CMLRev. 1307 at 1317.

Categories
Free Essays

The Journey of asylum seekers and their rights to education, employment, welfare benefits, housing, health and social services in the UK

Introduction

In the essay, I will be focusing on the asylum seekers in the UK. The focus of this essay is to see how their rights to education, employment, welfare benefits, housing, health and social services are exercised in the British society. I will start by defining what an asylum seeker is. The journey will consist of different stages which are first of all seeking asylum and the rights that they get with the status. The second stage will be to see how the rights change when they are granted refugee status. And the last stage will be to examine what they need to achieve in order to become British citizen.

An asylum seeker is person who has submitted an application for protection under the Geneva Convention and is waiting for the claim to be decided by the Home Office (2011). Asylum seekers should have the right to live in safety which is ultimately more important than the right to remain in one’s own community or country. When strategies have failed, and when people have developed a well-founded fear of being killed, injured or abused, they must have the option to escape from the danger which is threatening them.

The UK has an obligation under international law to protect people fleeing persecution. The UK has committed itself to the principles of universal declaration of human rights (1948) which includes the rights to seek and enjoy asylum in other countries. As signatory to the convention, the UK is responsible for guarantying that those with refugee status enjoy equal rights to the UK citizens (UNHCR, United Nations High Commissioner For Refugees, 1951).

Each individual will have his own reasons of seeking asylum. It could be that they are facing persecution for reasons of race, religion, nationality, sexual orientation, membership of a particular social group, or political opinion. In too many cases and in too many countries, people who have succeeded in fleeing from violations of human rights in their own homeland are confronted with further threats in the country where they have sought asylum.

While refugees are technically the beneficiaries of international protection, they may in practice be at constant risk of intimidation or assault, either from members of the host community or their own compatriots. Also refugee women and girls are confronted with specific protection problems, especially in the situations where established social structures and values have broken down, and where the local authorities lack the capacity to enforce law and order. Sexual violence and exploitations are some major issues, which have only recently started to attract systematic international attention (Helton, 1994). I will also illustrate an example of sexual exclusion, two gay men who said they faced persecution in their home countries have the right to asylum in the UK, the Supreme Court has ruled. Homosexuals are as much entitled to freedom of association with others who are of the same sexual orientation as people who are straight (BBC, 2010).

Asylum seekers don’t have many rights in the UK. The Reception Directive defines an asylum seeker as a non-EU national who has made an application for asylum in respect of which a final decision has not yet been taken. In the UK, eligibility for support under the Asylum Support Regulations and Interim Provisions Regulations starts when a claim for asylum under the Refugee Convention or a claim under Article 3 of the European Convention on Human Rights (‘ECHR’) has been recorded by the Secretary of State but not determined. In practice, therefore, asylum seekers who fulfil the eligibility criteria may be left without support due to delays in recording a claim or where it is disputed that a claim has been brought forward. The Home Office may in fact decide not to record an asylum claim if it is a second claim that does not disclose new evidence. Although, following a High Court judgment, the Home Office has extended section 4 (hard cases) support to such cases, it is arguable that the domestic requirement that a claim must be recorded to trigger entitlement to support is unlawful under the Directive (Justice, 2005). They have access to free health care from the NHS (National Health Service), if you receive asylum support from the UK Border Agency you may qualify for extra free healthcare such as NHS prescriptions, dental care, sight tests and vouchers to help you buy glasses.

To get this you need to obtain an HC2 certificate, which is issued by the UK Border Agency on behalf of the Department of Health and is evidence that you cannot afford to pay for these things yourself. The certificate is for you and any dependants you have. It is valid for six months. They also have the right to support and accommodation if they meet the requirements for it. They will not be provided housing in London. Very limited housing may be available in the south-east of England. While they are providing their housing, they must stay at the address they are given unless if they are given permission to move.

The UK Border Agency provides different housing at different stages of an application process. If an asylum seeker qualifies for housing when they first make an asylum application, the UK Border Agency will place them in what they call initial accommodation, which gives them somewhere to live for the first two or three weeks.

After this they will usually move to a different housing facility. It will normally be in the same region of the country as the initial accommodation, and in the region where their case owner works. Asylum seekers will not be able to choose where they want to live if they are provided housing facilities by the UK Border Agency (Home Office 2011).

Asylum seekers can practice their own religion, and are expected to show respect for people of other faiths. They are treated fairly and lawfully regardless of their race, age, religion, sexual orientation or any disability. The children of asylum seekers applicants have the same right to education as all other children (5-16) in the UK (Home office 2011). Schools commit much time, effort and resources to integrating the asylum-seeker pupils in a positive and supportive manner. Several schools have well-established and effective arrangements for the admission and induction of the newly arrived pupils and provide sound teaching support. Unfortunately, not all schools are well informed about basic procedures and guidance on the education of asylum-seeker pupils (Ofsted, Office for Standards in Education).

Asylum seekers will not normally be allowed to work while the Home Office is considering their asylum application, except in very limited circumstances. In this paragraph, it will be noted what those circumstances are. The majority of asylum applicants are not permitted to work while the Home Office considers their application. This is because entering the country for economic reasons is not the same as seeking asylum, and it is important to maintain a distinction between the two. However, if an asylum seeker has waited longer than 12 months for a decision to be made on their asylum application; under strict circumstances, the Home Office may grant them with a temporary work permit.

Currently, most new asylum applications receive a decision within 30 days. However, if an application has been rejected, the applicant may request permission to work if they have made asylum-based further submissions which have been outstanding for more than 12 months. This will primarily affect people who have already made further submissions. Anyone making further submissions now is unlikely to be become eligible to apply for permission to work (Home Office 2011).

Since 1980, 6000-7000 asylum applications per annum, by people originating from countries such as Iran, Iraq, Ghana, Democratic Republic of Congo, Ethiopia, Poland, Afghanistan, Sri Lanka (Crisp and Nettleton,1984). In 2007, 19 of every 100 people who applied for asylum were recognised as refugees and given asylum. Another 9 of every 100 who applied for asylum did not qualify for refugee status but were given permission to stay for humanitarian or other reasons (when these figures were published, 17 of every 100 applications had not yet resulted in a final decision).

In some cases, individuals are forced to remain in detention centres while the decisions are being made. Those removal centres are used for temporary detention, in situations where people have no legal right to be in the UK but have refused to leave voluntarily. Some of those detained in any of these centres can leave at any time to return to their home country. If the Home Office has refused to give a given asylum seeker the permission to stay in the UK and their appeals (if any) against the decision have failed, they must return to the country that they come from. If those asylum seekers do not return voluntarily, Home Office will enforce their removal and they may detain them until they return them to the homeland.

If asylum seekers decide that they want to return to their home country, they can do so at any stage of their application for asylum. They must tell their case owner if they decide to go. Asylum seekers should also tell their legal representative, if they have one (Home Office, 2011).

Asylum seekers also have the right to appeal which is usually called fresh claim. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeals relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, they will then determine whether they can result to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that had previously been considered. The submissions will only be significantly different if the content had not already been considered; and taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection (Home Office, 2011).

A question that arises is whether the UK would have to change the practice of detention of asylum seekers in accommodation centres (such as Oakington and Harmondsworth) in the light of the Reception Directive. Article 7(2) allows Member States to ‘decide on the residence of the asylum seeker’ for reasons of public order, public interest or ‘where necessary, for the swift processing and effective monitoring of applications’. This provision seems to address the Oakington justification, but it does not seem to cover detention. The provision covering detention, on the other hand (Article 7(3) in combination with Article 2, allows for confinement to a particular place ‘when it proves necessary, for example for legal reasons or reasons of public order’. There is no specific reference to the swift processing of applications. However, the provision is deliberately open-ended and non-exhaustive. The UK Government argues that domestic practice is not affected, while JUSTICE, on the other hand, argues that the provision must be interpreted very restrictively.

Those detainees can be family, single mothers, single person, foreign national prisoners who have completed prison terms for serious crime but who then refuse to comply with the law by leaving the UK (Home office 2011).

There are at least 280,000 people living in poverty in Britain after having their leave to remain refused. Some of them are appealing those decisions. Some just go completely underground, taking their chances on the streets of the UK with no money or shelter (Independent news, 2007).

The second stage will be to receive refugee status if the application is successful. From there, they will have the rights to work, to education (included university access), health, travel but they are not allowed to go their home countries until they are granted British citizen. A convention travel document issued to an adult will usually be valid for 10 years if they have permission to stay in the United Kingdom permanently (known as ‘indefinite leave to remain‘). Indefinite leave to remain (ILR) is an immigration status granted to a person who does not hold right of abode in the United Kingdom (UK), but who has been admitted to the UK without any time limit on his or her stay and who is free to take up employment or study, without restriction. When indefinite leave is granted to persons outside the United Kingdom it is known as indefinite leave to enter (ILE). If they have temporary permission to stay in the United Kingdom (known as ‘limited leave to remain‘). Limited leave to remain (LLR) is an immigration status which will allow a person to stay in the United Kingdom for a period of two or five years according each individual’s case, their convention travel document will usually be valid for the same period as your permission to stay here, up to a maximum of five years ( Home Office, 2010). Under the terms of the 1951 UN Refugee Convention, a state has the right to withdraw refugee status from any individual once it is safe for that person to return to their homeland ( Human Rights Watch,1995).

There is a waiting period before applying for the citizenship which is normally five years. They also require evidence to cover the relevant five- year period, because they will to see if you were in the country. The document which they require can be P60 tax certificates; or; an employer’s letter confirming employment; or a benefits letter confirming job seekers’ allowance claimed; or a benefits letter confirming incapacity benefit claimed; or documentary evidence confirming pension received.

If they commit an offence for example drink driving, being involved in any kind of criminal activities, the waiting period can increase to ten years.

There is a fee which must be paid in full according to the status. If you are single person and want to apply for naturalisation the fee is ?836 and for couple, its ?1294 (Home Office 2011).

There is a written test which is required before applying called evidence of knowledge of English and life in the United Kingdom and there is charge of ?35. The next step will be to attend the nationality checking service which cost ?60 for single and ?90 for couple, and can be different depending on which county council you decide to go to (Home Office, 2010). The nationality checking service is provided by local authorities (for example your county council or city council)

A local authority can accept and forward your application to us. They will ensure that your form is correctly completed, and they will copy your documents and return them to you. They will ensure that your application is validly submitted and that the unavailable requirements for citizenship are met. However, they will not give you nationality advice.

All applications for citizenship are subject to enquiries to ensure that the statutory requirements have been satisfied. Because of these enquires, we anticipate that applications may take up to six months to complete. Some applications may be dealt with more quickly and some may take longer, depending on the nature of the enquiries to be carried out.

To conclude this essay, I would to say that my view on the asylum seekers has changed. First of all, the government should change some policies about the asylum seekers because the UK is a country which respects human rights. My main concern was the way detention operates in case of an asylum case being refused. Children should not be in the detention centre. Child asylum and the detention of children for immigration purposes has been the subject of widespread media attention, and Channel 4’s Dispatches programme on Monday 29 November discussed 3 cases (Home Office, 2010). The government should make an end to the detention of children for immigration purposes, and should work with a number of charities representing children and asylum seekers to achieve this end.

My other issue is that the government should let those people who want to work while they are waiting for decision on their immigration to be made because the state losses by having to support them financially. For example, by issuing a temporary work permit, because some of these asylum seekers are intellectuals and the fact they forced to rely on benefit might create a level of low self-esteem. Citizenship’s fees should be revised as in my opinion, they are in elevation. There have undoubtedly been positives (as well as, presumably, negatives) from past patterns of immigration.

Now, however, they must focus, without the left/right prisms, on agreeing future economic migration policy. Politicians, in preparing the ground for debate, must put aside party politics.

They need to assess how many people can live sustainably in the UK, and turn our conclusions into policy. They have a finite resource: land. It is about that, and about housing, infrastructure, public services, water, and the effects of climate change, communities and government’s responsibilities to its citizens (Guardian, 2011).

References
BBC (2010) asylum seekers [online] available from bbc.co.uk/news/10180564.stm> [ 7 July 2010]

Guardian(2010) immigration [online] available from http://www.guardian.co.uk/uk/2011/apr/18/david-cameron-opening-door-immigration-debate [18 April 2011]
Helton, A, ‘ Refugees and human rights’, In Defense of the alien 1994, New York, 1994
Human Rights Watch, return to Tajikistan: Continued Regional and Ethnic Tensions, New York, 1995.
Independent news (2007) starving asylum seekers [online] available from < http://independent.co.uk/news/uk/home-news/asylum seekers are-left-to starve -in-britain-397576.html> [22 October 2007]
J. Crisp and C. Nettleton, Refugee Report. British Refugee Council, 1994.
Immigration and Asylum Act 1999, s 103(1). New appeal rights were introduced by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in two circumstances: (a) for failed asylum-seeking families refused support on the ground that they failed to leave the UK voluntarily (s 9); and (b) in relation to the withdrawal or refusal of section 4 (hard cases) support (s 10).
OFSETD (2003) asylum education [online] available from < http://ofsted.gov.uk> [October 2003]
Home Office( 2010) asylum and immigration [online] available from [ April 2010]

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Incompatible legislation and Human Rights in the UK

Introduction

First of all, much debate in the United Kingdom amongst commentators and some judges in relation to the human rights are currently being generated.

The amalgamation of the European convention on human rights was introduced by Tony Blair (prime minister of the United Kingdom from the 2nd of May to the 27th June 2007) who led the government in 1998, and more importantly it was known as Human Right Act 1998.

The EuropeanCourtofHumanRightsin Strasbourg is a national court, formed by the European Convention on Human Rights, which provides legal remedy of final alternative for persons who feel that their human rights have been desecrated by a contracting party to the Convention.

In addition, I would like to state that it is against the law for public authorities to act contrary to the convention rights. Parliamentary Sovereignty which has however been elemental to the constitution of England and Wales since the 17th century had an important role when it came to the realization of the incorporation of the European Court of Human Right (ECHR) into the United Kingdom law but the convention rights come into force through an Act of Parliament.

Second of all, The Human Right Act section 6 also states that public authorities including courts must take actions attuned with definite Convention Rights as enforced in the European Court of Human Rights (ECHR). Meanwhile, the Human Rights Act empowers the judiciary courts to interpret both delegated and primary legislations which is very well incompatible with the Convention Rights.

Incompatibility under section 4 of the European Court of Human Right only comes in place when the domestic legislation is in conflict with the ECHR, interestingly it does not affect the validity of the legislation and the right to legislate contrary to the human rights are kept because no one can override any law at all which is made by the parliament, for an incompatible legislation to be set aside and stop to exist some amendments have to e made by the parliament.

Incompatible legislation will have to go through the parliament for amendment and scrutiny. There would have been a massive entrenchment on the citizens’ individual human rights because protective mechanism would not have taken place within this period as was in the case of GC & C v Commissioner of Police for Metropolis. This is an arbitrary policy which fails to permit consideration of personal factors and it as well permits imprecise custody of samples received in state of affairs where neither of the claimants have been accused of any offence or convicted of any offence.

Although section 54 of the Police and Criminal Justice Act 2001 Section 82, which was amended states that fingerprints and DNA samples can be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting persecutions.

Furthermore, Public authorities have a defence if legislation requires them to act the way they did in section 6(2), this was shown in the GC & C v Commissioner of Police for the Metropolis [2010] EWHC 2225, through the policy which the Chief Constable of police officers adopted, in cognizance to retain biometric samples, DNA and fingerprints for an unlimited period like was explained above, and it infringes individual rights.

Lastly, the introduction of the Human Rights Act is a development which is very well welcome because of its protection of individual convention rights. European Court of Human Right laws are not merged automatically into the United Kingdoms’ law simply because the United Kingdom is a dualist state unlike many continental European countries, which are ‘monist’. In dualist states a treaty ratified by the Government does not change the laws of the state except and until it is incorporated into national law by legislation. Until incorporating legislation is put to force, the national courts have no authority to put into effect treaty rights and obligations both on behalf of the Government or a private human being.

Parties agree to secure these rights and freedoms to everyone within their jurisdiction. The Convention also establishes international enforcement machinery. To ensure the observance of the activities undertaken by the Parties, the European Court of Human Rights in Strasbourg has been set up; it deals with individual and inter-State petitions. At the demand of the Committee of Ministers of the Council of Europe, the Court may also give advisory opinions with reference to or pertaining the interpretation of the Conventions and the protocols thereto.

Under the European Communities Act 1972 (ECA) Parliament willingly gave effect to the United Kingdoms’ obligations and duties under the previous Community and now European Union Treaties in national law. The European Community Act (ECA) defines the legitimately certified or legal relationship amid the two if not separate spheres of law, and exclusive of it European Union law could not become part of national law.

Most of the Contracting Parties to the European Convention on Human Rights have included the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision. Coupled with the access of force of Protocol No. 11, has radically improved the status of Convention rights, and the impact of the case law of European Court of Human Rights.

In conclusion, the laws cannot be changed because of GC & C v Commissioner of Police for Metropolis because a law made is a law to be kept and followed. It cannot be made flexible or easily amended at any given time because if it did there would not be any respect for the law and that would make the law be easily influenced which is not good for a country or state.

Human Rights in the United Kingdom are not being fully protected but despite that fact the court has however being able to protect individual rights just like in the case of R v The Head Teacher and Governors of Denbigh High School [2006] UKHL 15, where the Court of Appeal and the House of Lords was In favour with shabina Begum.

Bibliography:

Le Sueur, A., Sunkin, M., Murkens, J.E.K., ‘Public Law: Text, Cases and Materials’, (Oxford University Press: New York 2010)

Le Sueur, A. & Sunkin, M., ‘Public Law’, (Addison Wesley Longman Limited: New York, 1997)

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‘The Human Rights Act 1998 does not go far enough to protect the rights of individuals in the UK.’ Do you agree with this statement? Why?

Abstract

This essay examines whether the Human Rights Act 1998 sufficiently protects individuals’ rights in the UK. The essay considers the declaration of incompatibility as a major limitation of the Human Rights Act using the Belmarsh detention case. Despite this limitation, I argue that based on the overall case law and reports on the Human Rights Act, it is overwhelming apparent that the Act goes far enough to provide individuals in the UK with protection of their rights.

Introduction

The Human Rights Act 1998 (HRA), in force from 2 October 2000, has incorporated civil rights of the European Convention of Human Rights (ECHR) into UK law. As the first legislation attempting to protect human rights at home, it is important to explore its success in the last decade. In order to assess whether the HRA sufficiently protects individuals’ rights in the UK, this essay will consider the objective of the HRA and then analyse the case of A and Others v. Secretary of State for the Home Department (2004) to demonstrate the caveat of declarations of incompatibility. This case has particularly posed a challenge to the effectiveness of the HRA in upholding rights as fundamental. However, successes of the HRA provide overwhelming evidence that the HRA does go far enough to protect the rights of individuals in the UK.

Bringing Rights Home

The purpose of the HRA was to allow UK courts to provide a remedy to violations of rights in the ECHR and thereby avoid the cost of lengthy court cases at the European Court of Human Rights in Strasbourg. Not only did the HRA allow UK courts to consider relevant jurisprudence in Strasbourg (s2), but the Act also imposed obligations on public authorities to uphold Convention Rights (s6). The HRA is thus a domestic check of rights that links into the global human rights movement. Gearty argues that the language of civil liberties is more vulnerable than the language of human rights due to no requirement to be compatible (2005, pp. 27). Consequently, to use the phrase of the White Paper published in precedence of the HRA, it appears that the HRA has made an attempt at “bringing rights home” (Home Office, 1997).

Declarations of Incompatibility

Yet one of the limitations of the HRA can be clearly demonstrated particularly through the case of A and others v. Secretary of State for the Home Department (2004). While it held that indefinite detention of foreign prisoners in Belmarsh without trial was incompatible with Article 5(1) of ECHR because it was discriminatory on the grounds of nationality, this decision was only a declaration of incompatibility (s4). With just the ability to put political pressure on producing legislation compatible with human rights law, the judgement had no legal effect as the HRA (s4 (6a)) does not grant courts the power to invalidate Acts of Parliament. Furthermore, Lord Hoffman dissented with the opinion that the case overall was incompatible because the precondition of a ‘threat to the life of the nation’ was not present. It should also be noted that Article 6 of the ECHR outlining the right to a fair trial within ‘reasonable time’ was not considered in the judgement. This suggests that the courts only have an interpretative obligation allowing Parliament to remain supreme. The effectiveness of declarations of incompatibility is additionally questioned as the government replaced the Anti-Terrorism Crime and Security Act 2001 with the Prevention of Terrorism Act 2005, introducing ‘control orders’ that apply to both Britons and non-nationals. Fenwick claims that due to lack of judicial power, the government are able to pass such legislation restricting civil rights without fear of the law being struck down (2002, pp.194). The case at hand seemingly supports this perspective that rights can still be restricted, bringing into question of whether the HRA is committed to the idea of human rights as absolute.

Successes through the HRA

However, other cases have proved to be far more successful in deeming the HRA as effective in protecting individuals’ rights in the UK. Although Parliament is free to ignore Declarations of Incompatibility, Klug (2009) observes that Parliament has responded to all 18 Declarations of Incompatibility that have been made and not been overturned on appeal. For example, in Bellinger v. Bellinger (2003), the courts declared that not recognising gender change of post-operative transsexuals in marriage law is incompatible with Articles 8 and 12 of ECHR. This resulted in Parliament in passing the Gender Recognition Act 2004. Likewise, using the right to private and family life, Diane Blood won her case to have her children’s father recognised legally despite being conceived after his death (O’Loan, 2009: 78). The result was a change in the Human Fertilisation and Embryology Act 1990, which may have impacted approximately 50 families (Dyer, 2003). This demonstrates the ‘dialogue’ encouraged by the HRA between the courts and Parliament is sufficiently balanced where the HRA is properly implemented and does not fall victim to the will of politicians. This is supported by Gearty (2006) who states that cases such as the Belmarsh case as discussed previously indicates the balance is perfect because the strength is that judges are ‘part of a discussion’ rather than overriding legislation. In this sense, there is sufficient scope for the HRA to safeguard rights of individuals as fundamental and absolute.

On a similar note, Mathews et al. (2008) found numerous individuals, from all walks of life, have used the language of the HRA to improve the experience of public services without any direct remedy from the courts. The Equality and Human Rights Commission’s Inquiry also ascertained that the Human Rights Act has provided a rights-based framework for public services including in the NHS (O’Loan, 2009: 38). While Gearty (2006) suggests the possibility of a social and economic bill of rights similar to the HRA in the future, it seems there may not be a need given that the reach of the HRA is extensive.

Conclusion

To conclude, on the whole, the HRA has gone far as possible to protect the rights of individuals in the UK because it is overwhelmingly evident that the HRA is central to Britain’s human rights culture. It is used as a tool to protect individuals’ rights both in the courts and in wider society. The HRA has no doubt been challenged by cases such as those involving terrorist suspects as discussed in this essay. The power of courts to issue a declaration of incompatibility merely appears to be of a political nature. However, this has not been abused by the government by ignoring such declarations. Although the legal changes enacted as a result of the Belmarsh case had little effect in guaranteeing civil rights, other case law surrounding the HRA shows that Parliament has responded effectively to make legislation compatible with the rights in the ECHR.

Bibliography

A and Others v. Secretary of State for the Home Department (2004) UKHL 45. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2007/45.html [Accessed: 04/01/2013].
Bellinger v. Bellinger (2003) UKHL 21. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2003/21.html [Accessed: 04/01/2013].
Dyer, C. (19 September 2003) Diane Blood Law Victory gives her Sons their ‘Legal’ Father. [Internet] Available from: http://www.guardian.co.uk/science/2003/sep/19/genetics.uknews [Accessed: 04/01/2013].
European Convention of Human Rights (1950) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 268-277.
Fenwick, H. (2002) Civil Liberties and Human Rights. 3rd Edition. London: Cavendish Publishing.
Gearty, C. (2005) “11 September 2001, Counter-Terrorism, and the Human Rights Act” in Journal of Law and Society. Vol. 32, No. 1. pp. 18-33.
Gearty, C. (2006) Language of Fear is Difficult to Beat. [Internet] Available from: http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/SocialistLawyer.pdf [Accessed: 02/01/2013].
Home Office (1997) Rights Brought Home: The Human Rights Bill. The Stationary Office.
Human Rights Act (1998) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 489-501.
Klug, F. (10 December 2009) Promoting and Protecting Human Rights. University of Westminster Law School.
Matthews, L. et al. (2008) The Human Rights Act – Changing Lives. 2nd Edition. London: The British Institute of Human Rights.
O’Loan, D. N. (2009) Human Rights Inquiry: The Report of the Equality and Human Rights Commission. Equality and Human Rights Commission

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The Human Rights Act 1998

Abstract

This essay will outline the main attributes of the Human Rights Act 1998 and seek to argue that it does not go far enough to protect an individual’s rights. It will explain the difference between the procedural and substantive protection on offer to an individual and will show that whilst on a procedural level the rights appear to be protected, this is in fact not the case. The diversity of academic commentary on this topic will be explained to further enhance the essay’s argument that more is required in order to adequately protect an individual’s rights.

Introduction

The majority of the Human Rights Act 1998 (HRA) came into force in the UK on 2 October 2000 and enabled individuals to rely upon their European Convention on Human Courts (ECHR) rights in the domestic courts. There is a clear divide amongst the academics as to whether the Act has gone far enough to protect the rights of individuals in the UK. Whilst there is no denying that the HRA has afforded British residents the opportunity to use their rights in the courts, whether this amounts to a true protection of their rights will now be debated.

The Human Rights Act 1998

One of the main attractions of the HRA is that it allows individuals to pursue remedies against public organisations/bodies in the domestic courts as opposed to going to Strasbourg (Section 6, HRA). Before the HRA, if an individual alleged that one of their Convention rights had been breached, then the only course of action available to them was to go to the European Court of Human Rights in Strasbourg. The HRA makes it illegal for any public body or organisation to breach an individual’s Convention rights (Section 6, HRA). Additionally, judges are now required to consider “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” (Section 3(1), HRA). If this is not possible, then judges are under a duty to issue a declaration of incompatibility (Sections 4 and 10, HRA). It is important to note the limitation of their powers and they are no power to strike down the primary legislation, despite its incompatibility. One of the reasons for this is constitutionally, which is to maintain Parliament’s sovereign nature. This is one of the key criticisms facing the HRA as arguably it affords little protection to individuals whose rights are being violated due to a piece of legislation being incompatible with their ECHR rights.

However, the statistics show that out of 28 cases where a declaration of incompatibility was issued, only case remains open for remedy (Ministry of Justice, 2012). This one exception is the controversial case of Chester v Secretary of State for Justice [2010] EWCA Civ 1439 which involves the right of prisoners to vote in elections. It has become something of a political football, but arguably the statistic alone shows that Parliament has taken the issue of incompatibility seriously as remedies have been provided in the other 27 cases. The other remedy available is the award of damages under section 8(1) of HRA.

Rights Protected by HRA

One of the over-arching principles of the HRA is that public bodies treat individuals equally and with respect. The Act allows the rights under the ECHR to be given effect into UK law and ensures individuals enjoy rights such as right to life (Article 2), the right not to be tortured (Article 3) and the right to a private and family life (Article 8). However, these rights have been used in various areas of law by lawyers such as planning applications (Coster v UK [2001] 33 EHRR 20).

Whilst this appears to be positive protection of individual rights, there are numerous examples of breaches of the Convention rights since the introduction of the HRA. One such instance is the right to privacy being curtailed through the Regulation of Investigatory Powers Act 2000 which has permitted government at the local level to carry out covert surveillance. Although on the other side of the argument, it can be shown that the introduction of HRA has allowed individuals to successfully pursue claims of invasion of privacy, not permitted before the HRA. These include Max Mosley and Naomi Campbell (Max Mosley v News Group Newspapers Limited [2008] EWHCC 177 and Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22).

Academic Commentary

Academics are divided in their opinions regarding the effect of the HRA on the protection of individual rights. On the one hand, some academics perceive the introduction of the HRA to be a positive development in human rights in creating an expectation of privacy (Fenwick, 2013), whilst others would disagrees with this contention and point to other areas of law where rights are being violated. One such example is Article 6 right to a fair trial, where Hoyano argues that the increased use of hearsay and bad character evidence are ensuring that individuals struggle to obtain fair trials in the UK (Hoyano, 2014). Furthermore, it has been suggested that, “The Act is widely blamed for administrative and judicial decisions that have been caricatured as privileging the rights of criminals and terrorists.” (Wadham, et al., 2011, p 14). Overall, the Act has been controversial and reforms are most likely in the future.

Conclusion

To conclude, the HRA requires all courts and tribunals in the UK to interpret legislation in accordance with the Convention rights which primarily ensures a borderline protection of rights on a procedural level. Furthermore, section 6(1) of HRA makes it unlawful for a public body to act in a way to contravene Convention rights and therefore all public duties are now under a duty to act in accordance with an individual’s Convention rights. However, a declaration of incompatibility can be sought and such a remedy is a first in the UK. Individuals still have the right to pursue their claim in Strasbourg and the European Court of Human Rights remains the final point of appeal in allegations of breach of human rights. In this respect, it can be argued that an individual’s rights are protected in a procedural sense as they can now pursue remedies in the domestic courts which is a far easier and cheaper solution. However, on a substantive level, there are criticisms that the Act does not far enough and instead human rights are curtailed. The presence of such violations ensure that the Act does not adequately protect rights, although arguably it is a significant step in the right direction.

Bibliography

Articles

Fenwick, D & Fenwick, H 2013 ‘The Changing face of protection for individual privacy against the press: Leveson, the Royal Charter and tort liability,’ International Review of Law, Computers & Technology, vol 27, no 3, 1 November 2013, pp. 241-279.

Hoyano, L. 2014 ‘What is balanced on the scales of justiceIn search of the essence of the right to a fair trial’ Criminal Law Review vol 1, pp. 4-29.

Books

Wadham, J., Mountfield, H., Prochaska, E., Brown, C., 2011. Blackstone’s Guide to the Human Rights Act 1998. 6th ed. Oxford: OUP

Cases

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

Coster v UK [2001] 33 EHRR 20

Chester v Secretary of State for Justice [2010] EWCA Civ 1439

Max Mosley v News Group Newspapers Limited [2008] EWHCC 177

Legislation

Human Rights Act 1998

Regulation of Investigatory Powers Act 2000

Reports

Ministry of Justice, 2012. Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011-12 [pdf] London: Ministry of Justice. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217308/responding-human-rights-judgments.pdf [Accessed 3 February 2014]

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Theory and Practice of the European Convention on Human Rights Assignment

Abstract

It is vital that all individuals are afforded sufficient protection of their human rights under the European Convention of Human Rights (ECHR). However, much difficulty occurs when such rights are being protected at the expense of national security. Accordingly, whilst it is felt that the protection of the public should prevail on the one hand, it is argued on the other that individual rights should always be upheld. Essentially, violations of human rights should only be made in extreme circumstances. Whether suspected terrorism should fall within the ambit of one of these exceptions is arguable, especially when there has been a threat of torture as it will be for the courts to strike a balance between the two competing interests. It will be discussed in this assignment whether the threat of the use of torture is an acceptable practice that is capable of being employed by the police during an interrogation or whether it is actually a violation of the ECHR.

Introduction

It will be critically discussed whether the interrogation of the suspect and the threat of the use of force will amount to a violation of the suspects rights under the European Convention of Human Rights. In doing so, Article 3 will be given consideration followed by a review as to whether the interests of national security should also be given consideration in light of the fact that there was an impending terrorist attack.

European Convention on Human Rights and Torture

The European Convention on Human Rights (ECHR) was established in 1950 by the Council of Europe. The main objective of the Convention is to ensure that adequate protection for individual’s human rights and fundamental freedoms is being provided. Ensuing from the Convention was the European Court of Human Rights (ECtHR), which was set up in order to provide individuals with the ability to take their case to court if they felt that their rights were undermined. Article 3 of the ECHR imposes a strict prohibition against torture and “inhuman or degrading treatment or punishment.” Accordingly, this is one of the strictest Articles that exist under the Convention as there are no available exceptions to it and as is stated in the Convention; the prohibitions are made in the strictest terms irrespective of the victims conduct., Whilst this Article generally applies to any cases involving torture, unjustified deportations and degrading treatment, it is those cases involving police violence and poor detention conditions that frequently seek protection (Kamau, 2006: 15). Article 3 is thus of significant importance in preserving the interests of individuals and States must ensure that such treatment does not occur within their territory. It is questionable how effective Article 3 is in preventing such treatment being inflicted upon individuals, nonetheless, given the many cases that come before the courts. Regardless, the ECtHR will make great attempts to rectify any injustice that occurs, yet they have made clear that the level of torture that is being inflicted must be of such a level so as to enable it to fall within the ambit of Article 3; McCallum v The United Kingdom, Report of 4 May 1989, Series A no. 183, p. 29. It is questionable whether the threat of use of torture by the police in this scenario does actually fall under Article 3 since it cannot be said whether the level of the threat was significant.

It is often difficult to determine whether a cause of actions will fall within the ambit of Article 3 since not all treatment that is considered punitive will amount to torture for the purposes of the ECHR. Essentially, the courts have made it clear in numerous cases that the level of seriousness will need to be high in order for their rights under the Convention to be activated. Because of this threshold it has often been extremely difficult for victims to establish their case as demonstrated in the Ireland v The United Kingdom, 18 January 1978, Series A no. 25. Here, it was made clear by the Court of Appeal that the assessment as to what the minimum level shall be will be dependent upon the individual circumstances of the case. Hence, the factors for the court to take into account when determining the seriousness of the treatment include the victims; age, sex, physical and mental effects and health. It was further evidenced by the court in Soering v The United Kingdom, judgement of 7 July 1989, Series A no. 161; “the severity will depend on all if the circumstances of the case, such as nature and context of the treatment or punishment and the manner and method of its execution.” The determination as to whether treatment or punishment will be deemed to be torture for the purposes of Article 3 may also differ from place to place given that different countries have different perceptions of torture. There has been an attempt to achieve co-operation between States in order to ensure that there is some consistency within this area, yet complexities still arise. In Greek Case, 5 November 1969, YB XII, p. 501, the European Commission of Human Rights noted the following; “it is plain that there may be treatment to which all of these descriptions apply, for all torture must be inhuman and degrading treatment and inhuman treatment also degrading.” It cannot be said that the suspect in this instance has suffered from inhuman or degrading treatment since he was merely threatened with the use of force if he did not inform the police of the bomb’s location.

Article 3 is one of the most important protections that is provided under the Convention as its sole purpose is to “protect a person’s dignity and physical integrity” (Reidy, 2002: 19). This is why the courts are unable to take into account the victims conduct since individuals should be provided with the ultimate protection against torture. The fact that the victim in this case is a suspect of an impending terrorist attack with the use of a bomb will be insufficient when determining whether the actions of the police will fall under Article 3 or not. Regardless of this, however, the courts will take into account the difficulties associated with the maintenance of national security. Therefore, although the conduct of the victim will not be capable of being considered by the court, the fact that the police were trying to prevent a bomb from exploding will be as the police will be found to have been acting in the interests of national security; Tomais v France, Judgement of 27 August 1992, Series A no. 241. In the case of Ilhan v Turkey the applicant had been severely beaten at the time of his arrest and was refused medical treatment for a significant amount of time. The court found that the victim had been subjected to torture in this instance. Accordingly, it will thus depend upon the type of interrogation the victim suffers, which is unclear from the facts of this case. In Assenov v Bulgaria, Judgement of 28 October 1998, Reports 1998-VIII it was held that as a result of the interrogation the victim suffered from torture even though it was unclear who actually caused the injuries sustained by the victim. Again, this demonstrates that provided that the victim has suffered from serious injuries, it is likely that protection will be afforded under Article 3. This is also exemplified in Rehbock v Slovenia where the use of force was considered unjustifiable on the grounds that the authorities could not provide any valid justification for why the injuries were so serious. If the authorities cannot justify the threat of the use of force, then it is likely that a breach of the ECHR will be found.

Arguably, if the injuries sustained by the victim during the course of the interrogation are significant, then this will trigger the protection under Article 3. In deciding whether the conduct of the police will amount to torture, it will first need to be considered what actions will be considered to be of a torturous nature. There have been various definitions as to what torture consists of since it can be applied to a varying degree of situations. Regardless, it is evident that torture occurs in situations where an individual is subjected to “severe pain and suffering” as provided in the United Nations Convention against Torture. However, it will not be enough in this case to shown that the suspect was subjected to “severe pain and suffering.” Instead the whole context of the situation will need to be considered. In doing so, a review as to whether the interrogation techniques used by the Police were acceptable will need to be made. Whether this will be easy to determine is unlikely since it is questionable what will amount to acceptable interrogation techniques and as put by Amnesty International (2009: 417); “Torture and other cruel, inhuman or degrading treatment can never be justified. They are never legal. Even in a state of emergency, there can be no exemption from this obligation and there is no such thing as torture perpetrated in “good faith” or “reasonable” circumstances.” Arguably, it is evident that Amnesty International does not agree with interrogation regardless as to the situation. Nevertheless, the suspect may be able to rely on the nemo tenetur seipsum accusare principle which means; “no man has to accuse himself.” This principle could effectively act as a safeguard by preventing inappropriate methods of interrogation from being used. It could be deemed inappropriate to threaten suspects with the threat of the use of force, yet based on the circumstances this appear unlikely given the impending bomb explosion.

This was identified by Chiesa (2009: 2) when he pointed out that; “the nemo tenetur principle should be understood as a safeguard against the use of unacceptable methods of police interrogation.” It is questionable whether this principle will act as a safeguard, however, since it is very difficult to determine when torture has taken place as “it is not clear in the present laws” (IBN, 2010: 3). Because of this, there are often what is considered to be ‘borderline’ cases where it is difficult to see if torture has actually occurred. As a result, it cannot be said that Article 3 ECHR does actually protect individuals from torture in every situation. Accordingly, it has been said that the police routinely engage in interrogating behaviour when trying to extract confessions from individuals, yet this is generally not considered to amount to torture (Chair, 2004: 68). In view of this, it is clear that the distinction between police brutality and torture cannot be easily ascertained and as noted by Spicer (2007: 157) “the definition of torture and its distinction from inhuman or degrading treatment is problematic and has generated a mass of case law in the ECHR.” It is thus difficult to distinguish torture from inhuman and degrading treatment, which is why cases are frequently coming before the courts involving police brutality. This is completely unacceptable and there ought to be some protection available to individuals in preventing them from being subjected to torture: “the government should investigate, discipline those found to be implicated, and train officers to interrogate suspects without coercion” (Human Rights Watch, 2010: 1). In order to clarify the position within this area, however, the United Nations have attempted to define torture by stating under Article 1 that “torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”

Consequently, it would appear as though the police have inflicted torture upon the suspect because although they have not physically harmed him, they have in fact made threats against him. Thus, given that mental suffering is contained within the definition of torture as provided for under Article 1, it is likely that this type of behaviour will be considered a violation of the ECHR. Despite this, it could also be argued that because the police have arrested the suspect on suspicion of an impending terrorist attack, and have made such interrogations so as to prevent the attack from taking place, that the torture is reasonable. This is because, the police need to find out where the bomb is in order to protect society from harm and given that they only have only a few hours before the bomb explodes, it is integral that they obtain as much information out of the suspect as possible. Consequently, it could be said that the threat of the use of torture in interrogating the suspect is appropriate based on the individual facts. In Binyam Mohamed Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65; [2010] WLR (D) 31 it was expressed that torture will amount to a violation of Article 3 as this will generally be considered unacceptable behaviour. Clearly, this illustrates that some protection will be afforded to individuals subject to the use of torture, yet it is questionable whether this applies to the current situation given that only a threat was made. As noted by Johns (2005: 16), however; “no human being is without protection under international law and in every circumstance, every human being has some forms of protection under human rights law.” Therefore, where torture, or the threat of torture, is carried out individuals should have some form of protection available to them, yet it is debatable whether this protection is adequate since the interest of national security may outweigh the interests of the individual.

The Binyam case has been the subject of much critique as the US made great attempts to prevent evidence of torture from being disclosed. This led many to also question the practices of the UK who work closely with the US in the fight against terrorism (Smith, 2009: 9) and there was a strong debate as to whether national security would be damaged if the detainee’s human rights were to be protected. This resulted in difficulty as it had to be determined whether the interests of national security or the interests of the individual were to prevail. Applying this to the instant situation, the question to be asked is whether national security would be affected, if the rights of the suspect were protected by the ECHR. Given that a bomb is about to explode, it is necessary for the police to obtain the relevant information from the suspect so that they can locate the bomb in order to protect the public from harm. Given that human rights took precedent over national security in the Binyam case, the same could also apply here. However, as put by Burke-White (2004: 17) the interests of the two are in fact mutually exclusive “promote human rights at the expense of national security or protect national security while overlooking international human rights.” Therefore, it will be difficult to determine what interests ought to be preserved in any given case as the factors to be taken into consideration will differ largely from case to case. Furthermore, not all agreed with the decision in the case and many argued that the interests of national security should have been given greater prominence: “which is more important, the human rights of a suspected al-Qaeda operative, or protecting the British people from terror attacks?” (Coughlin, 2010: 1). The interests of national security are clearly at stake since the bomb explosion could lead to serious harm. It is questionable whether the interests of the suspect should therefore be given greater consideration given the fact that a large proportion of the population may be subjected to harm.

It is questionable why the protection of the majority did not prevail in Binyam and seems to illustrate that the human rights of the suspect in the instant case may also be preserved. Rather than demonstrating a victory for the protection of human rights principles, the case has been viewed with much dismay at the way in which the government handled the case (Londras, 2010: 17). Because of the significant interest that surrounded the case it seems as though the government would have been under much scrutiny had a different decision been made. In accordance with this, it is not certain that the human rights of the suspect in the instant situation will be protected since the suspect has been subjected to a threat of torture on the basis of the imminent bomb explosion. Thus, it is extremely difficult for the judiciary to protect individual liberties and rights when the government plays the national security card (Robson, 2010: 174). This is further evidenced by the continuance references that were made to open justice in the Binyam case: “the principle of open justice represents an element of democratic accountability and the vigorous manifestation of the principle of freedom of expression which ultimately supports the rule of law itself” (per Lord Chief Justice). Consequently, it became apparent that the judges were cautious when making their decision and as a result it is evident that human rights will not always be protected over the interests of national security as it will again depend entirely upon the individual circumstances of the case. It is clear from the decision that there is a conflict between the protections of individual human rights with the protections of national security. However, it is still extremely difficult to determine which interest is the most important and more likely to be successful in the instant case.

Simply because human rights came out on top in the Binyam case does not illustrate they will come out on top in all other cases. This is especially so given that the court appeared under pressure by the Minister of the Crown to reach this decision. Hence, it is argued on the one hand that human rights should always succeed, yet on the other that the interests of national security should also be given recognition (Salomon, 2007: 5). However, in ensuring that individuals are free from torture, a strict prohibition against the use of torture must be effectuated. This is because if individuals were not being given sufficient protection against torture, national authorities would be capable of abusing their powers and inflicting harm and degrading treatment upon individuals suspected of a crime (Churcher, 2009: 1). Given that the majority are protected from terrorism, whilst the minority are protected from torture it seems as though greater emphasis ought to be placed upon individual rights in order to ensure that their interests provided by the ECHR are being preserved. It is arguable whether this can be justified, however, because as Woodward (2010: 19) argues; “the need to feel safer is a need that has in large part been manufactured by those eager to capitalize on the economic value of fear.” Therefore, it is integral that national security is also being preserved, which is why it will be very difficult to decide on a reasonable outcome in cases where human rights and national security conflicts. In Dushka v Ukraine, Judgement of ECHR, February 02, 2011 it was found by the Court that the unlawful detention and questioning of a 17 year old amounted to torture and was thus a violation of Article 3. Thus, it was stated by the court that given the applicant’s vulnerable age, the practice being employed did qualify as inhuman and degrading treatment regardless as to the applicant’s conduct. In light of this decision it could be said that the treatment being imposed upon the suspect will also amount to inhuman and degrading treatment although the courts will determine the circumstances of the case as a whole taking into account the fact that a bomb was about to explode.

The Anti-terrorism, Crime and Security Act (ATCSA) 2001 and the Prevention of Terrorism Act 2005 do, however, appear to conflict with the ECHR because of the fact that authorities are now provided with greater powers when it comes to the elimination of terrorism. As stated by Herron (2011: 1); “whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime.” The provisions that have been provided for under these acts appear largely detrimental to individual rights and freedoms, yet this is deemed necessary in protecting individuals against the threat of terrorism can; R (on the Application of BB) v Special Immigration Appeals Commission [2011] All ER 210. Here, the court highlighted the importance of preserving the interests of national security was. Nevertheless, it is still evident that whilst the human rights of individuals are to be maintained, the rights of ordinary citizens also need to be given consideration. A balancing act between the two competing interests is therefore required, yet as has been discussed this is proving to be rather problematic. Ames (2005: 2) believes that “any restriction on rights must be imposed with reference to the rule of law and be subject to proper safeguards, such as judicial scrutiny.” Therefore, it must be ensured that any restrictions placed upon the rights of individuals and citizens are in accordance with the rule of law to prevent unlawful infringement from occurring. This was clearly reflected in the Binyam case since it became apparent that the rule of law was not capable of being departed from regardless as to whether the person seeking protection was a terrorist or not.

This has been criticised by many since it is believed that the government used the national security card when undertaking activity that would usually be considered unlawful: “under cover of “national security” and “protecting the public” governments can embark on actions that might be unpopular, even unjust, and hope not to be called to account” (Robson, 2010: 200). This is unacceptable and unless the rule of law is continuously upheld in, democratic governance will be threatened. Essentially, it is thereby palpable that the interrogation the suspect has suffered by the Police is unlawful and contrary to the provisions of Article 3, yet the authorities may still be able to rely upon the national security defence when putting forward there reasons. This will make it much more difficult for the suspect to argue that there has been a violation of their rights under the ECHR as the police may be able to demonstrate that national security was at risk. This is because the interests of society as a whole will usually be afforded greater protection than individual interests.

Conclusion

Overall, it does appear as though the treatment the suspect has received from the police is a violation of his rights under the ECHR. However, given the complexity of the case, it is likely that there will be much difficulty when trying to determine whether such rights should be enforced over the interests of national security. Accordingly, the case will involve a balancing act by the courts to establish whether the interests of the suspect ought to prevail given that the public was at risk of harm. This will be extremely difficult to determine, although in light of recent cases such as Binyam, it is likely that the courts will find the interests of the suspect will prevail.

References

Ames, J. (2005) ‘News: 90-day Detention Plans Shelved’ 3 Law Society Gazette 2, Issue 45.

Amnesty International. (2009) Impunity for CIA Torture is Incompatible with USA’s International Obligations, [Online] Available at: http://www.amnesty.org/en/news-and-updates/obama-accused-quotcondoning-torturequot-20090417 [15 December 2013].

Burke-White, W. W. (2004) ‘Human Rights and National: Security: The Strategic Correlation’, Harvard Human Rights Journal, Volume 17, [Online] Available: http://www.law.harvard.edu/students/orgs/hrj/iss17/burke-white.shtml [16 December 2013].

Chair, J. (2004) Torture: A Collection, Oxford University Press, Political Science.

Chiesa, L. E. (2009) Beyond Torture: The Nemo Tenetur Principle in Borderline Cases, PACE Law Faculty Publications, PACE University, (2009), Available [Online] at: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1642&context=lawfaculty [16 December 2013].

Churcher, J. (2010) UK intelligence knew of terror suspects torture, The Independent UK, (24 November, 2009), [Online] Available: http://www.independent.co.uk/news/uk/home-news/uk-intelligence-knew-of-terror-suspects-torture-1826634.html [16 December 2013].

Coughlin, C. (2010) Binyam Mohamed: choose human rights or Britain’s protection?, The Daily Telegraph, [Online] Available: http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7206832/Binyam-Mohamed-choose-human-rights-or-Britains-protection.html [16 December 2013].

de Londras, F. (2010) ‘Human Rights Lexicon: Security v Rights and the Case of Binyam Mohamed’, Human Rights in Ireland, [Online] Available: http://www.humanrights.ie/index.php/2010/03/17/human-rights-lexicon-security-v-rights-and-the-case-of-binyam-mohamed/ [16 December 2013].

Herron, R. (2011) ‘Counter-Terrorism, Rights and the Rule of Law: How Far Have we Come Since Executive Detention?’ Human Rights in Ireland, [Online] Available: http://www.humanrights.ie/index.php/2011/09/07/counter-terrorism-rights-and-the-rule-of-law-how-far-have-we-come-since-executive-detention/ [16 December 2013].Human Rights Watch. (2010) Zambia: Police Brutality, Torture Rife, [Online] Available at: http://www.hrw.org/en/news/2010/09/03/zambia-police-brutality-torture-rife [16 December 2013].

IBN, Prevention of Torture Bill: Par panel to consider suggestions, (22 September, 2010), [Online] Available at: http://ibnlive.in.com/generalnewsfeed/news/prevention-of-torture-bill-par-panel-to-consider-suggestions/343857.html [16 December 2013].

Johns, F. (2005) Guantanamo Bay and the Annihilation of the Exception, European Journal of International Law, EJIL 2005 16 (613), Issue 4.

Kamau, E. (2006) The Police, The People, The Politics: Police Accountability in Tanzania, Commonwealth Human Rights Initiative, CHRI.

Reidy, A. (2002) The Prohibition of Torture; A Guide to the Implementation of Article 3 of the European Convention on Human Rights, Human Rights Handbook, [Online] Available: http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND-06(2003)_en.pdf [14 December 2013].

Robson, G. (2010) ‘In the Balance’, Criminal Law & Justice Weekly, Essential Resource for Professionals Serving the Criminal Courts Since 1837, Issue 14, (2010) 174 JPN 200.

Salomon, S. E. (2007) Global Responsibility for Human Rights: World Poverty and the Development of International Law, OUP Oxford.

Smith, R. (2009) ‘Columnist: Rights and Wrongs – Winning Hearts and Minds’, Law Society Gazette, (2009) LS Gaz, 19 Mar, 8, Issue 11, (19 March, 2009).

Spicer, R. (2007) No Torture; no debate, New Law Journal, 157 NLJ 1761, Issue 7301.

Woodward, P. (2010) ‘America’s National Security Protection Racket’ War in Context, [Online] Available: http://warincontext.org/2010/07/19/americas-national-security-protection-racket/ accessed [16 December 2013].

Categories
Free Essays

UN Human Rights Regime Assignment

Introduction

The International Bill of Human Rights is a promissory note to recognize, promote and protect the inherent dignity of individuals. However, justice must sometimes defer to amnesty following gross violations of human rights in a State.’ Critically examine this statement.

The International Bill of Human Rights comprises the Universal Declaration of Human Rights 1950, International Covenant on Civil and Political Rights 1966 (ICCPR) (with its two Optional Protocols) and the International Covenant on Economic, Social and Cultural Rights 1966, all adopted by the United Nations. The ideas inherent in these declarations/protocols are directed at recognising, promoting and protecting the inherent dignity of individuals. However, these ideas may come into conflict with a range of other principles, including amnesty laws enacted by individual states. Amnesty may be defined as a pardon given by a government to a group of people who have not yet been convicted. By its very nature amnesty presupposes the complete obliteration of past offences of individuals.

Currently, in the age of accountability, there is a prohibition on amnesties for serious crimes under international law[1], and many argue that this trend is likely to continue. For example, the Inter-American Court of Human Rights bans any amnesty provision which is capable of eliminating responsibility for a serious crime under the Convention. The ‘new’ UN position on amnesties also emphasises the denial of amnesty for the perpetrators of serious crimes involving gross human rights violations. However, as Orentlicher argues, it is not clear whether all amnesties should be held unlawful, (1991:80).

This essay will first provide a criticism of the statement above and then outline weaknesses behind that criticism, arguing that justice must sometimes defer to amnesty following gross violations of the state, despite the wording of the International Bill of Rights. It will then provide concrete arguments in support of the statement and conclude that, despite all the injustices inherent in the idea of granting amnesty for gross violations of human rights, it is sometimes the only available measure in the circumstances and, therefore, is completely justified by necessity.

There are a number of arguments against the idea that justice must defer to amnesty when there is a gross violation of human rights, and most of these arguments, as Orentlicher points out, stem from the legal, moral and political duties of a state to hold the perpetrators of gross human rights violations accountable (1991:43).

Firstly, it could be argued that although there is no treaty explicitly prohibiting amnesty, the International Bill of Human Rights presupposes such a prohibition. For example, Article 2 (3) of the ICCPR provides for a right to an effective remedy, which may be understood as requiring states to ensure that punishment of human rights offenders is carried out.[2] Moreover, the UN Human Rights Committee states in 1992 that “amnesties are generally incompatible with the duty of states to investigate [acts of torture]”[3]…to guarantee freedom from such actions” and “to ensure that they do not occur in the future”.[4] In this respect, any amnesty provision can potentially appear to be in a direct conflict with the wording and spirit of the Covenant, especially since it can potentially deny persons from seeking compensation through court. This means that a person’s right to access to court is also denied. Moreover, the body of jurisprudence of such organs as the UN and Inter-American systems points to the conclusion that amnesties should be seen as incompatible with basic human rights obligations of states, (Robinson, 2003:486).

However, as Freeman points out, the right to a remedy is not as broad as it is often thought to be (2009:40), and there is no right available to people to force a prosecution. The right to remedy only places an obligation on the state to conduct an effective investigation which may lead to the capture and punishment of offenders. Also, international law does not state that states must prosecute every human rights violation in every case. The UN has also been seen as supporting amnesty measures which were related to international crimes and which were necessary to end military deadlock, (Naqvi, 2003:34).

It could also be argued that perhaps the key word in the UN Human Rights Committee’s General Comment of 1992 is ‘generally’ and the inclusion/use of an amnesty provision may sometimes be justified in the circumstances. Moreover, as Robinson (2009:489) argues, “to impose a duty to prosecute on some states is simply to impose too much burden on them, as some democracies are too fragile and if they start prosecuting, it may lead to their destruction”.

It may also be impossible to prosecute all the offenders if the scale of human rights violations is very large in a country. Although to this one may reply that governments may choose to prosecute leaders of gross human rights violations instead, this may also be undesirable in certain circumstances. Leaders may have close attachments to their community, and their prosecution may lead to further revolts and bloodshed. Alston and Goodman (2012:1391) argue on similar lines, stating that if one denies the participation of former leaders (who are also the perpetrators of past offences) in a present government, it may effectively “obstruct social integration and political stability”. By way of example, Alston and Goodman refer to the undesirable consequences of prosecuting major organisations who were involved in the apartheid regime in South Africa, (2012: 1392).

Perhaps the most powerful argument against amnesties involves victims’ rights and tolerance of impunity. Protesters of amnesty measures argue that amnesty infringes states’ obligations to make sure that victims receive means to achieve justice, and seek out the truth in their cases (Mallinder, 2008:7). By imposing an amnesty measure, the perpetrators’ crimes are effectively denied, causing victims to feel alienated from society, which, in turn, increases the likelihood of vigilantism on their part (Mallinder, 2008:10).

There are not many who would deny the negative impact that amnesty has on victims and/or their families, and the argument here is that such a negative impact cannot be avoided if one is to achieve common good for the society as a whole.

Another point against the statement that justice must sometimes defer to amnesty following gross violations of human rights is that such a deferral, by its very nature, prevents the achievement of the aims of criminal justice, such as prosecution, retribution, stigmatisation and deterrence (Freeman, 2009: 20). Aston and Goodman take this view and point out that trials can be very important in the promotion of “norms and expectations of punishment” in the country, (Alston and Goodman, 2012:1392). Moreover, as Freeman points out, the deferral of justice to amnesty in spite of the International Bill of Human Rights’ promissory note, undermines public confidence in the rule of law, (Freeman, 2009: 33).

However, even assuming that amnesty is capable of preventing the realisation of some of the criminal justice’s goals, it should not be forgotten that an amnesty measure can take many forms. Freeman states that, more often than not, an amnesty measure would be accompanied by other provisions, such a reparation programme, which may lessen the harm caused by an amnesty, and an amnesty’s potential harm caused is always overestimated, (2009:25). Another argument is that there are many conditional amnesties in existence, which may encompass some of the aims of the criminal justice process, for example, Freeman enumerates a number of temporal and provisions amnesties, (2009:93).

Even if one takes into account the need for a trial and all its benefits, it is not altogether clear that a trial or its threat may lead to beneficial results in every case, because as Freeman argues, a threat of a trial may lead to the perpetrators destroying the vital evidence needed in the future for the victims or their relatives to find out the truth about a crime, (2009:24). In support of this argument Alston and Goodman also state that any attempts at prosecution in a state which undergoes the transition from an authoritarian past may threaten a delicate peace-conflict balance between different groups, (2012:1391). Mallinder makes a similar argument when she states that although the trial of leaders may benefit the society by asserting the supremacy of democratic values (as argued by Scharf), there may not be enough evidence to put those leaders on trial in the first place, (2008:18).

Here, it is interesting to point out an illuminating point made by Mallinder that there could be an instance where the distinction between victims and perpetrators is not clear, for example, in the case of child soldiers who are part of a rebel group in Uganda, and, therefore, the prosecution and punishment may have to take a back seat, (Mallinder, 2009: 34).

Clark also questions the belief that the promotion of individual criminal responsibility is always desirable, (in Lessa and Payne, 2012:13). He draws attention to the criminal prosecutions in Rwanda and Uganda, and argues that by insisting on the prosecutions, the international organisations overlooked “the specific context and dynamics of these countries”, for example, the absence of legal procedures and institutions to carry out an effective judicial process, (2012:14). This means that even though the countries may be the signatories of the International Bill of Human Rights, their specific contexts should be taken into account, and may be used to justify the imposition of conditional amnesties.

One of other widespread arguments against the idea that amnesty should be granted is that doing so only creates a culture of impunity, encouraging future violence, and prevents accountability. This view has a widespread support from many governments around the world, for example, from the government of Sri Lanka.[5] When academics make this argument they often refer to the offenders who continue violate human rights, and are only stopped when amnesty is granted to them. The clear example of this is Ugandan rebel group ‘The Lord Resistance Army’s public statement that they will only stop the violence if amnesty is granted to its members. Nevertheless, to these arguments it can be replied that it is not necessarily the case that amnesty will produce further violence, and in fact, there may be situations where one must choose a lesser of two evils and invoke an amnesty provision. Freeman supports this argument.

Therefore, it seems that although the case for the abolition of amnesty is a strong one, it is not without its weaknesses, and despite the promissory note of the International Bill of Human Rights, there may be circumstances where the imposition of an amnesty provision is not a truly unthinkable course of action.

It is clear that there are obvious discrepancies between the theoretical foundations of the International Bill of Human Rights and the practical application of the Bill. There inevitably will be circumstances where it is unwise to follow the literal meaning of the Bill. The reality of an international/domestic political scene is that sometimes compromises must be made in order to safeguard peace in a country and prevent further conflict. In the same vein, Snyder and Vinjamuri maintain that in order to prevent future violations of rights and reinforce the respect for the rule of law it is often necessary to “strike politically expedient bargains that create effective coalitions to contain the power of potential perpetrators of abuses,” (Snyder and Vinjamuri, 2003:17).

Thus, one of the main arguments for the proposition that justice must sometimes defer to amnesty following gross violations of human rights is that such deferral of justice is likely to foster reconciliation and may be necessary to achieve peace in terms of promoting political settlement. Linked to this is an argument that amnesties are needed so that a state can make a break from its past and start from a ‘clean slate’, (Mallinder, 2008:13). Governments often use these reasons to justify the imposition of amnesties when it is necessary to end violence. However, this view is becoming more controversial as the states-signatories to the International Bill of Human Rights move to the implementation of more mechanisms of accountability, and this view is not shared by everyone. For example, in 2007 the ICC Prosecutor, Lois Moreno-Ocampo termed the demands of amnesty made by combatants as being nothing less than pure blackmail. Moreover, the offering of amnesty may appear as though a state is showing signs of weakness, which may, in turn, encourage more violations of human rights, (Mallinder, 2008:12).

However, despite this, Freeman supports the view that amnesties may sometimes be necessary to achieve peace in a state, (2009:11). He contends that there may not be any other choice for societies which have gone through mass violence and genocide, (2009:7). Freeman asserts that he is against the idea of impunity for serious crime, but he states that there may be situations where the desire for peace and security should stand above any impunity which may result from granting amnesty (2009:6). In particular, he states that if we look at such countries as Burma and Somalia and their particular contexts, one may be forgiven for wishing any kind of amnesty in order to ensure the survival of people by lessening daily violent conflicts, even though this leads to impunity, (2009:24).

Another argument against the view that amnesties are needed to achieve peace in a country, and to ensure a smooth transition from an authoritarian regime to a democratic one, is provided by Robinson when he draws on an example of Sierra Leone, (Robinson, 2003:490). In that country, unconditional amnesties were granted to ensure that peace would follow only to discover that the culture of impunity was reinforced and gross violations of human rights continued.

However, in reply to all this, it can be pointed out that, regarding the International Bill of Rights in particular, amnesties can be used, because the International Bill encompasses a wide variety of rights, and unlike the Rome Statute, is not primarily concerned with the protection against gross human rights violations.

Freeman also makes a relatively convincing argument that amnesties are rarely granted without the imposition of other orders or qualifications, such as a reparation programme or an institutional reform measure, (2009:14). Truth Commissions, which are primarily set up to investigate the causes of death/injury unlawfully perpetrated, often play an important role in offsetting the damage done by amnesty. However, it is questionable whether they are, in fact, as successful as they were initially perceived to be. For example, again using the Sierra Leone example, the Lome Accord 1999 was designed to provide both an amnesty provision and a Truth Commission investigation, but was unsuccessful in its implementation (Alston and Goodman, 2012:1452).

Nevertheless, a broad conception of justice usually agrees with the idea that there could be a Truth Commission and a limited amnesty in place to satisfy “the essential purpose of the right to justice”, (Naqvi, 2003:34). Dugard seems to be of the same view when he states that even though unconditional amnesties should not be permitted, a Truth Commission should still be capable to grant amnesty after an investigation, provided that amnesty contributes to the achievement of peace and justice, and is more effective than prosecution, (Dugard, 1999:1020). Arguably, South Africa’s imposition of a conditional amnesty showed that it was possible to combine an amnesty with an accountability process which culminated in the achievement of truth and social healing.

Another argument, which is linked to the argument about the right to remedy discussed above, and which is put forward by Freeman and Pensky (in Lessa and Payne, 2012), is that an amnesty measure will not necessary infringe international law in every instance. This argument rests on the well-known fact that the status of amnesties in international law is unclear, and the practice of its imposition still persists in many countries, including Rwanda, Cambodia, El Salvador and South Africa. This point is supported by Laplante, who argued that the status of an “outright prohibition on amnesty remains unclear”, (Laplante, 2009:920). To illustrate the point, Mallinder discovered in her research that the number of amnesties which includes different kinds of crimes has increased, and this casts doubt on the proposition that we are living in the age of accountability (Mallinder in Lassa and Payne, 2012:95). Mallinder concludes that this means that there is still a belief that an amnesty measure may be deemed necessary where there is some exceptional situation, (Mallinder in Lassa and Payne, 2012: 96)

Liked to this is the idea that amnesties do not necessarily stand in opposition to the spirit of the International Bill of Human Rights, and, in fact, can fulfil some of its provisions by balancing competing goals, and facilitating long-term peace and security in the nation. One particular example is where a political activist-offender is integrated into a society anew, preventing further disputes.

The final point is that some defendants are unlikely to come within the scope of criminal prosecution as defined by the Rome Statute, and some countries’ legal systems may not be sufficiently evolved to prosecute such defendants. In these cases, it may be argued that amnesty could be granted to alleviate the political tension in the country if it exists. Moreover, even the Rome Statute could be said to presuppose the use of amnesties as it gives discretionary powers to prosecutors/judges to take account ‘the interests of justice’, particularly for those defendants which are unlikely to come within the scope of the International Criminal Court’s prosecution.[6]

Thus, it seems that it may not be correct to treat all amnesties as being in the opposition to the principles of justice and truth, and the specific context of a country must be taken into account. Even though amnesties violate the victim’s rights and can potentially create a culture of impunity, it is important to recognise that some amnesties, in some circumstances, may be an effective measure directed at achieving peace and security in a country. This is especially true since it is wrong to think of amnesties as either granting complete impunity or achieving long-term peace. This view fails to take into account the sheer diversity of amnesty measures which a state can employ, and which can be combined with the variety of accountability measures, (Mallinder, 2008:8). Moreover, as Freeman points out, justice may sometimes defer to amnesty because such practice is virtually unavoidable, although it should be maintained as a practice of the last resort (2009:4). Moreover, oncloser examination, the granting of an amnesty may not be in the direct conflict with the spirit of the International Bill of Human Rights and, therefore, it is fair to say that justice must sometimes defer to amnesty following gross violations of human rights in a state.

Word count: 3,228.

Bibliography

Books/Academic Articles

Alston, P. and Goodman, R. (2012) International Human Rights, New York: Oxford University Press
Cassese, A. (2008) International Criminal Law, New York: Oxford University Press
Cassese, A. (2004) International Law, 2nd Edition, Oxford: Oxford University Press
Dugard, J. (1999) ‘Dealing with Crimes of a Past Regime: Is Amnesty Still an Option?’, Leiden Journal of International Law, 12, No. 4, at p. 1001
Freeman, F. (2009) Necessary Evils: Amnesty and the Search for Justice, 1st Edition, New York: Cambridge University Press
Griffey, B. (2011) ‘The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’, Human Rights Review, Vol. 11, No. 2
Harris, D., Moeckli, S. and Sivakumaran, S. (2010) International Human Rights Law, 1st Edition, Oxford: Oxford University Press

8. Joyce, D. (2010) ‘Human Rights and the Mediatization of International Law’, Leiden Journal of International Law, Vol. 23, Issue 3, pp. 507-527

Laplante, L. (2009) ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’, Virginia Journal of International Law, 49, at p. 915
Lessa, F. and Payne, L. (2012) Amnesty in the Age of Human Rights Accountability, New York: Cambridge University Press
Loucaides, L. (2003) ‘TheDeveloping Case Law of the Inter–American Court of Human Rights’, Human Rights Law Review, Vol. 3, No. 1, pp. 1-25
Mallinder, L. (2010) ‘Law, Politics and Fact-Finding: Assessing the Impact of Human Rights Reports’, Journal of Human Rights Practice, 1, No. 4
Mallinder, L. (2009) ‘The Role of Amnesties in Conflict Transformation’, in Ryngaert, C. (ed.) The Effectiveness of International Criminal Justice, Intersentia Publishers
Mallinder, L. (2008) Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, Hart Publishing
Meisenberg, S. (2004) ‘Legality of Amnesties in International Humanitarian Law. The Lome Amnesty Decision of the Special Court for Sierra Leone’, International Law Review of the Red Cross, 86, No. 856
Naqvi, Y. (2003) ‘Amnesty for War Crimes: Defining International Recognition’, International Law Review of the Red Cross, Vol. 85, pp. 583-560 (2003); Available: http://www.mkkk.org/eng/assets/files/other/irrc_851_naqvi.pdf [10 Dec 2013]
Orentlicher, D. (1991) ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, The Yale Law Journal, Vol. 100, at p. 2537
Robinson, D. (2003) ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ European Journal of International Law, Vol. 14, No. 3, pp. 481-500
Snyder, J. and Vinjamuri, L. (2003) ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security, Vol. 28, No. 3, pp. 5-44; Available: http://belfercenter.hks.harvard.edu/publication/343/trials_and_errors.html [ 9 Dec 2013]
Weissbrodt, D. Ni Aolain, F., Fitzpatrick, J. and Newman, F. (2009) International Human Rights: Law, Policy, and Process, LexisNexis Publishing; Available: http://www1.umn.edu/humanrts/intlhr2006/chapters/chapter8.html [ 7 Dec 2013]

Reports

United Nations (2011) Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, New York: United Nations Publications; Available: http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [10 Dec 2013]

Web Materials

The International Centre for Transitional Justice (2009) Justice, Truth, Dignity: Amnesty Must Not Equal Impunity [Online]; Available: http://ictj.org/publication/amnesty-must-not-equal-impunity [8 Dec 2013]

Categories
Free Essays

Do Human Rights mechanisms have the capacity to provide environmental protection outcomes?

Abstract

The interrelationship between the environment and human rights has led many to question whether current human rights mechanisms have the capacity to provide environmental protection outcomes. Hence, because the environment is a pre-requisite for the enjoyment of human rights (UNEP, 2011, p. 1), it is important that all States ensure that the environment is being adequately protected. This is very difficult to achieve under the current regime, however, and so it seems as though further changes are needed to ensure that environmental human rights are being provided for.

Introduction

Many concerns have been raised in recent years as to whether the environment is being adequately protected. Yet because of the effects harm to the environment can have on the individual, it is vital that appropriate mechanisms are in place that help to deal with any environmental issues that may arise. It is contestable whether existing human rights mechanisms have the capacity to provide environmental protection, nonetheless, since the relationship between human rights and environmental protection is complex. Thus, it seems as though the law within this area needs to be codified so that separate human rights are created that deal primarily with environmental human rights. This would certainly remove many of the inconsistencies that currently arise, yet the terms would have to be on a global level to ensure the rights of those in underdeveloped countries are also being preserved. The current human rights mechanisms dealing with environmental protections will be explored in this assignment in order to consider whether they are effective or not. Once this has been done, a review of what changes need to be made will then be determined. This will be done by gaining access to relevant texts, journal articles, governmental reports and case law decisions. Once all of the applicable information has been gathered an appropriate conclusion will then be drawn summarising all of the main findings.

Literature Review

Overview of Human Rights

The Charter of the United Nations (UN) was introduced in 1945 and was considered to be the first global expression that provided for individual human rights. The Charter is thus made up of 30 different Articles, which all aim to provide adequate protection to all individuals on a global level. The Charter’s main objective is therefore to achieve international co-operation so that every individual can be afforded the same protections. This is currently being attained under Article 1 of the Charter which states that international co-operation must always be upheld by “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” This was deemed a major development for individual citizens since they were being given, for the first time, individual recognition on a global basis. This ensured that equality for all was maintained by prompting States to implement various legal rules and principles providing for the protection of human rights. The European Convention on Human Rights and Fundamental Freedoms 1951 was established within the European Union (EU) in order to provide sufficient human rights protection to individuals. This was later incorporated into the UK through the Human Rights Act 1998 which states that the rights enshrined under the provisions of the Convention must not be violated. Whether the current human rights mechanisms have the capacity to provide environmental protection outcomes is, however, a debatable subject. This is because; the relationship between human rights and environmental protection is blurred and although there have been great attempts to clarify the law in this area, much confusion still exists.

Relationship between Environmental Protection and Human Rights

Regardless, environmental protection is a human rights issue because of the impact the environment can have on a human’s life, health and property. As such, it is imperative that there is sufficient protection in place dealing with any issues that may arise. Some of the main environmental problems that exist are pollution, overuse or misuse of resources, right to water, biodiversity reduction and habitat destruction. In order to overcome these problems, however, it has been suggested by Hancock (2003, p. 1) that the following universal human rights should be respected; 1) the right to an environment free from toxic pollution and 2) the right to ownership rights of natural resources, such as water. Despite this, however, environmental protection is rarely discussed in the context of human rights and it seems as though debate surrounding the underlying issues is lacking. This is clear from the academic writings of Alston et al; (2010) because although they refer to some of the human rights precedents relevant to this area, there is no discussion of the precedents from an environmental protection perspective. Therefore, greater emphasis needs to be placed upon the relationship between environmental protection and human rights in order for the current issues to be tackled effectively. At present, the problems surrounding this area are merely being dealt with by generalist international lawyers or environmentalists (Anton and Shelton, 2011, p. 3). This is insufficient given that there are a growing number of cases dealing with environmental issues under existing human rights law and it remains arguable whether there is a need for new rights to be added to existing human rights treaties.

This is because, at present environmental human rights problems are being dealt with by the ECHR, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the American Convention on Human Rights (AmCHR) and the African Convention on Human and People’s Rights (AfCHPR). Consequently, it has been said that the body of environmental protection case law has “greened” existing human rights law (Sanghamitra, 2008, p. 3), though it has been said that “the need to bring the environmental and human rights movements together has been rendered both urgent and vital by the impending climate change catastrophe” (Gearty, 2010, p. 21). Essentially, given the recent concerns surrounding global warming and environmental pollution it seems as though more stringent human rights protections ought to be created to prevent toxic chemicals and global markets from affecting the lives of individuals. This can be done by “focusing on equality and respect for individual dignity, an insistence on attention to human rights has the effect of forcing all decision-makers to look outside their own circle, to see the human as well as global consequences of their actions” (Gearty, 2010, p. 21). This would be the most sensible and ethical approach to take in response to climate change and the links between the protection of the environment and human rights would be realized more effectively (OHCHR, 2002, p. 1). It has already been made clear by Judge Higgins (2006, p. 798), nonetheless, that human rights courts do make great attempts to co-ordinate their approaches and so it seems as though co-operation will subsist if new human rights protections are created that deal primarily with environmental protection.

Environmental Human Rights Cases

Regardless of the fact that new human rights dealing explicitly with environmental factors would be more helpful than revised environmental laws, human rights mechanisms do still have the capacity to provide environmental protection outcomes. This has been identified the Lopez Ostra v. Spain (1994) 20 EHRR 277 case where it became apparent that noise, smells and polluting fumes were capable of being treated as a human rights issue. Here, it was held that freedom from environmental pollution could be included in Article 8 of the ECHR because of the fact that there were documental health effects. In addition, it has also been recognised that noise can also be deemed a form of torture under Article 8 on the grounds that it interferes with the right to a private and family life as shown in Hatton v United Kingdom (2002) 34 EHRR. Here, it was stated by the court that “anyone who has suffered for a long period from noise disturbance is well aware that the effects of this on the nerves and on one’s physical and mental well-being are extremely unpleasant and even harmful.” Because of this, it was felt that noise should be considered a form of torture and thereby protected under human rights legislation. Damages were awarded in this case for sleep disturbance due to night flights taking place at Heathrow airport. Had the defendants in the case been able to establish that the night flights were a necessity and of economic advantage, damages would not, however, have been awarded. Therefore, although protections will be available in cases such as this, defendants may be able to justify their actions in certain instances. Accordingly, it will therefore be up to the courts to decide whether environmental considerations should prevail over commercial interests.

In Borysiewicz v Poland (2008) (No 71146/01) a claim in respect of Article 8 actually failed on the basis that it had not been established that “the noise levels complained of were so serious as to reach the high threshold established in cases dealing with environmental issues.” Therefore, the courts did not feel as though environmental considerations ought to prevail in this instance and instead believed that commercial interests overrode such protections. Essentially, it seems as though current human rights legislation is not always effective in preserving environmental protections, yet it is arguable whether this is a necessary requisite given that Article 8 is not an absolute guarantee. Thus, state interference is permitted if the interference is in “accordance with the law and is necessary.” In accordance with this, it could be said that justifications are appropriate in some cases when damage to the environment has been caused as shown in Powell and Rayner v United Kingdom (1990) 12 EHRR 355. Nevertheless, as stressed by Hancock (2003, p. 2); “in the case of toxic pollutants, environmental laws currently permit emissions at levels that can physically harm individuals.” Whether this is acceptable is doubtful and it seems as though changes to the existing human rights regime need to be made so that environmental considerations are being effectuated. Hence, environmental activists are frequently claiming that toxic pollution violates human rights (Cassel, 2007, p. 104), yet nothing is being done about this. Whilst it may seem obvious that environmental damage can result in individuals’ health being harmed, it is only recently that international human rights law has began to link the two together.

Critical Analysis of Environmental Human Rights

Because of this, environmental human rights remain undefined and are only being protected by pre-existing human rights legislation that is not necessarily equipped to deal with environmental cases (Apple, 2004, p. 34). As such, new laws need to be created in order to prevent any injustice from occurring because at present there is no “stand-alone right not to be exposed to too much noise” (Stewart, 2010, p. 1). And, although this right may be derived from other established rights such as; freedom from torture, the right to respect for private life and home and freedom from discrimination, this will not suffice. Even though human rights courts are not generally concerned with protecting the environment per se, they are concerned with preventing serious harms that are likely to interfere with individual human rights and autonomy. As such, any harm to the environment that will have an impact upon individuals’ human rights and fundamental freedoms should be strictly prohibited and protected by human rights legislations. Arguably, because environmental human rights protections are ill-defined, new human rights dealing specifically with these issues ought to be created so that individual’s rights are being fully respected. Some advancements have been made to this area in recent years, nonetheless, as the United Nations General Assembly (UNGA) recognised the human right to water and sanitation through Resolution 64/292. Accordingly, it was acknowledged by UNGA that “clean drinking water and sanitation are essential to the realization of all human rights” (UNGA, 2010, p 10). In the resolution, it was also made clear that all States and international organizations should provide resources to help all countries, especially developing ones, to provide safe, clean, accessible and affordable drinking water and sanitation to all.

Resolution 64/292 thus appeared to have stemmed from the General Comment that was adopted by the Committee on Economic, Social and Cultural Rights in 2002, which stated that “the human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights” and is an essential human right that should be provided to all individuals. Still, it is arguable whether the Resolution goes far enough since it is believed that water and sanitation should be an essential public service and that universal access should be achieved (Right2Water, 2011, p. 1). Although great attempts to ensure that this happens have been made, it seems as though many individuals are still lacking access to safe drinking water. This is so, despite the fact that the United Nations Human Rights Council have adopted a binding resolution that recognizes the human right to water and sanitation as being part of the right to have an adequate standard of living (UNHR, 2010, p. 1). Hence, it has been put forward by Deen (2012, p. 1) that little progress has been made by States to fully implement the human right to water as provided for in the resolution: “governments aggressively pursue false solutions to the environmental and economic crises, the situation will only deepen the water injustices that our organisations and communities have been fighting for decades.” Therefore, although it seems as though environmental human rights protections are improving, on closer inspection there are still many underlying issues that exist. Unless these problems are dealt with appropriately, individuals will continue to be subjected to human rights violations. This is unjustifiable; yet 2.8 million people continue to die each year as a result of poor water supplies, sanitation and hygiene (Zetland, 2010, p. 1).

In light of this, it could be said that human rights protections have failed to address the issues surrounding access to water and although progress appears to have been made, this has proven rather futile. Consequently, it has thereby been said that it would be more productive to “give people a property right in water” (Zetland, 2010, p. 1). Because property rights are alienable, whereas human rights are not, some portion of an individual’s rights will be capable of being exchanged for access to clean water. This view does remain contestable but given that individuals are still not receiving their right to water even after the Resolution was implemented, it is evident that something more needs to be done. It remains to be seen whether this is the answer but as further noted by Zetland (2010, p. 1); “A property rights allocation increases both equity and efficiency, the former by the allocation of rights — and their value — to every person, the latter by trading water from owners to users.” Even if this would solve the problems relating to water access, however, other environmental human rights problems would still remain and so it seems as though greater human rights recognition is needed. Accordingly, exposure to dangerous substances at the workplace has generally been disregarded as a human rights issue and has instead been passed off as strictly controlled workers rights. This appears unacceptable and is unlikely to provide individuals with the protection in which they require. Hence, toxic pollution is classified as a ‘public nuisance’ and ‘risk’ as opposed to being ‘harmful’ which is said to have been constructed “to accommodate the systematic degradation of the environment that is required to achieve sustained economic growth and conditions of allocative efficiency” (Hancock, 2003, p. 108). If toxic pollution was classified as ‘harm’, then criminal sanctions would follow since all types of harm are prohibited by law.

This may be one of the reasons as to why environmental human rights remain undefined since many organisations would be found criminally liable for harming individual’s and violating their human rights. Nevertheless, if this would protect the environment and individual human rights further, then this may be what is needed. Still, it is already an offence under Regulation 12 of The Environmental Permitting Regulations 2010 (as previously provided for by section 85 of The Water Resources Act 1991) to “cause or knowingly permit a water discharge activity unless you are complying with an environmental permit or exemption.” It could be said that this is sufficient in helping to preserve human rights since “harm to ecological and/or biological systems for business or personal advantage” (Bell and McGillivray, 2008; p. 277) will be avoided at all costs. Furthermore, in the case of Rylands v Fletcher [1968] UKHL 1 it was held that a person who brings on to land anything that would be likely to cause mischief should it escape will be strictly liable for a criminal offence. Nevertheless, it was stated in the case that the defendant must have “brought something onto his land, made a non natural use of his land, the thing must have been something likely to do mischief if it escaped and that the thing did actually escape and cause damage.” This case was considered a landmark decision in helping to protect the environment from pollution and could assist in the protection of human rights. Thus, as argued by Wolf and Stanley (2003; 442); “the Rylands v Fletcher principle imposes strict, but not absolute, liability for damage caused by the escape of dangerous things, including things such as; water, fire, gases and fumes, electricity, oil, chemicals, colliery waste, poisonous vegetation.” Arguably, because of the devastating effects pollution can have on the environment, it is important that strict liability offences remain intact. Yet, it remains to be seen whether new human rights laws will be created to protect these rights even further as required in Tatar v. Romania [2009] ECtHR.

Conclusion

Given the importance of human rights, it is vital that they are being adequately protected by the law so that all individuals are not being subjected to harm. Whether this is sufficient when it comes to environmental protections is doubtful since it appears as though individual’s human rights are being undermined by the actions of those damaging the environment. Hence, the impact the environment can have on a human’s life, health and property is significant, yet the relationship between human rights and environmental protection is in a state of confusion despite the attempts that have been made to clarify the law in this area. Consequently, it would thus be more appropriate for new human rights to be created that deal explicitly with environmental factors as opposed to merely revising environmental laws as this will prevent ambiguity. Injustice will also be removed since environmental human rights will be fully defined and stand-alone human rights protections that relate to the environment will be established. It remains to be seen whether changes such as this will take effect, but given the lack of clarity that exists with the current human rights mechanism, it is integral that something is done.

References

Alston, P. Steiner, H. and Goodman, R. (2008) International Human Rights in Context, 3rd Edition, OUP Oxford.

Anton, D. and Shelton, D. (2011) Environmental Protection and Human Rights, Cambridge University Press.

Apple, B. (2004) Commentary, Human Rights Dialogue, Spring.

Bell, S. and McGillivray, D. (2008). Environmental Law. 7th edition, Oxford University Press.

Boyle, A. (2012) Human Rights and the Environment: Where Next, The European Journal of International Law, Volume 23, No 3.

Cassel, J. (2007) Enforcing Environmental Human Rights: Selected Strategies of US NGOs, Northwestern University of Journal of International Human Rights, Volume 6, Issue 1.

Deen, T. (2012) Human Right to Water and Sanitation Remains a Political Mirage, Inter Press Service, [Accessed 14 April, 2013].

Gearty, C. (2010) Do Human Rights Help or Hinder Environmental ProtectionJournal of Human Rights and the Environment, Vol 1, No 1, Edward Elgar Publishing Ltd.

Hancock, J. (2003) Environmental Human Rights: Power, Ethics and Law, Ashgate Publishing Ltd.

OHCHR. (2002) Human Rights and the Environment, Office of the United Nations High Commissioner for Human Rights, [Accessed 12 April, 2013].

Right2Water. (2011) Water and Sanitation are a Human Right, Water is a Human Right, [Accessed 14 April, 2013].

Sanghamitra, P. (2008) Greening Law: A Socio-Legal Analysis of Environmental Human Rights, Faculty of the Graduate School University of Southern California, < http://digitallibrary.usc.edu/cdm/compoundobject/collection/p15799coll127/id/49274/rec/1> [Accessed 11 April, 2013].

Stewart, F. (2010) A Right to SilenceThe Journal of the Law Society of Scotland, [Accessed 12 April, 2013].

UNEP. (2011) High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward. United Nations Environment for Development, [Accessed 16 April, 2013].

UNGA. (2010) The Human Right to Water and Sanitation, United Nations Department of Economic and Social Affairs (UNDESA), < http://www.un.org/waterforlifedecade/human_right_to_water.shtml> [Accessed 13 April, 2013].

UNHR. (2010) UN united to make the right to water and sanitation legally binding, United Nations Human Rights, < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10403&LangID=E> [Accessed 14 April, 2013].

Wolf, S., and Stanley, N., (2003). Wolf and Stanley on Environmental Law. Routledge Cavendish.

Zetland, D. (2010) Water Rights and Human Rights: The Poor Will Not Need Our Charoty if We Need Their Water, Johns Hopkins University, < http://globalwater.jhu.edu/magazine/article/water_rights_and_human_rights_the_poor_will_not_need_our_charity_if_we_need/> [Accessed 14 April, 2013].

Categories
Free Essays

To what extent does extraordinary rendition breach Article 6 of the European Convention on Human Rights??

Introduction

The terrorist attacks of 9/11, 7/7 London bombings and the Madrid train bombings created a ‘culture of fear’ amongst people’s minds in Western societies, which was particularly reflected by state responses proclaiming a “war on terror”. A key tactic now increasingly used to further the progress of this “war on terror” is extraordinary rendition, where a person is abducted and transferred from one jurisdiction to another to be held in detention for interrogation. Although the extraordinary rendition program has been led by the US, a number of EU Members that are state parties to the extraordinary rendition may have provided support to facilitate the program. As much of the philosophy of human rights emerged through the French Revolution, the involvement of EU Member states in extraordinary rendition has some serious implications for the portrayal of Europe as a champion in safeguarding human rights. This essay will thus focus on how EU Member states might have been involved with US extraordinary rendition and the extent to which extraordinary rendition breaches Article 6 of the European Convention of Human Rights. Firstly, how extraordinary rendition has been defined, including the procedure that is used will be explored. This will be followed by identifying EU Member states who have facilitated extraordinary rendition and the prisoners that have been subjected to it. Finally, the recommendations made by the European Council will be explored to determine if any measures are needed to be taken by Member states to safeguarding human rights from extraordinary rendition.

According to Bassiouni (2010), the extraordinary rendition developed from a decision immediately following 9/11 as President Bush put the burden on the CIA to capture, detain terrorists across the world. However, Frankopan (2008) notes that the CIA was actually granted permission to use extraordinary rendition in a presidential directive authorised by Clinton in 1995. This suggests that the use of extraordinary rendition was not a result of terrorist attacks but rather its use increased dramatically in the aftermath of the attacks. There is common consensus that extraordinary rendition involves the abduction of an individual who is thereafter transferred from one jurisdiction to another to be held in detention for interrogation. Frankopan defines extraordinary rendition as the handing over of a person to another jurisdiction for questioning and there is usually no link between the individual “rendered” and the country he/she is sent to (2008, p.408). Quite similarly, Duffy and Kostas explains that it “involves the state sponsored abduction of a person in one country… and the extra-judicial transfer of that person to another country for detention and interrogation outside the normal legal system” (2012, p.539). Sadat further defines it as a process where “a detainee in custody of the CIA is handed over to a third party country for interrogation” (2007, cited in Bassiouni, 2010). While the latter two definitions acknowledge that state involvement is a key feature of extraordinary rendition, the last definition in particularly recognises that extraordinary rendition is primarily carried out by the US.

The procedure of extraordinary rendition is a little more complex than suggested by these definitions. extraordinary rendition often involves a combination of arbitrary arrest, enforced disappearance, forcible transfer, torture, and the denial of accessing impartial tribunals (Weissbrodt and Bergquist, 2006). This is confirmed by a “Background Paper on CIA’s Combined Use of Interrogation Techniques” (2004). It outlines that after suspects are captured and transported to a ‘Black site’, the rendition process is transitioned into interrogation which involves a range of practices from dietary manipulation, sleep deprivation, abdominal slaps, facial hold, water dousing stress positions and cramped confinement. Although extraordinary rendition is not explicitly found in the European Convention of Human Rights as a violation of human rights, this sheds light upon the fact that it does violates Article 6 of the European Convention of Human Rights because firstly, it violates Article 3(a) as victims are not formally charged with a crime in the country that they are abducted in (Weissbrodt and Bergquist, 2006) and therefore this denies victims access to the legal process. Secondly, one of the purposes of extraordinary rendition is to obtain evidence, through torture, in order to be used in courts (Coates, 2006, p. 20). As a result, although court proceedings may occur, it effectively does not allow for a fair trial because extraordinary rendition for the purpose of interrogation through torture implies that the suspects are guilty. This therefore violates Article 6 (2) of the European Convention of Human Rights which states everyone is presumed innocent until proven guilty. While novel ways may arise that challenge established international law, this analysis has proven that such situations can still be addressed by current human rights law to determine human rights abuses.

In recent times, it has arisen that while the US have driven the extraordinary rendition program, a number of EU Member states have been involved. A recent report found that 54 governments other than the US participated in extraordinary rendition, of which 25 are EU Member States (Singh, 2013, p. 6). Since 1998, the US and the European Union had made an informal agreement that US flights can stop-over in transit at EU airports (Coates, 2006). As a result, EU Member states now stand accused to have allowed the use of airspace and airports by aircraft involved in flights for rendition (Cobain, 2013; Fisher, 2013). Allegations have further arisen that the CIA have taken control over former Soviet air bases in Poland as well as facilities in Romania for detaining suspects (Coates, 2006). It is thus questionable whether EU Member states have failed to uphold human rights in accordance to the European Convention of Human Rights as outlined above.

Although further exploration is required to determine the total number of victims, the report by Open Society Justice Foundation found that at least 136 individuals have been subjected to extraordinary rendition (Singh, 2013, p. 30). Victims that were subjected to extraordinary rendition with the support of EU Member states include: Ahmed Agiza who had sought asylum in Sweden had been apprehended by Swedish Security Police to be handed over to CIA agents to be transported to Egypt; and Abu Omar, an Egyptian national, who was captured in Italy, flown to Germany and thereafter to Egypt (Coates, 2006; Singh 2013). In both cases as well as others, the victims experienced torture (Singh 2013). This suggests there is a strong correlation between the practice of extraordinary rendition and torture. However, torture will not be explored in depth in this essay.

However, the cases of Khaled El-Masri v The Former Yugoslav Republic of Macedonia and Abdulkhakov v. Russia are the very few cases that have reached the European Court of Human Rights where judgements have been reached. In the former case, El-Masri was seized by security officers in Macedonia and handed over to CIA agents at the Skopje airport where he was beaten. He was then transferred to a prison in Egypt. The European Court of Human Rights found that Macedonia had violated Article 3, 5, 8 and 13 of the European Convention of Human Rights because of the use of torture, arbitrary detention, and a lack of effective remedies in respect to these violations respectively.

Similarly, in Abdulkhakov v. Russia, Abdulkhakov, a Uzbek refugee, was abducted in Moscow in 2009 and transferred to Tajikistan because the Uzbek authorities are charging him for involvement with an extremist organisation. The European Court of Human Rights found that Russia had violated Article 3, Article 5 (1)(f), Article 5 (4) and Article 34 of the European Convention of Human Rights because of the transfer to Tajikistan, arbitrary detention, length of proceedings and the failure to provide a review of the detention.

In both cases, the Court had granted compensation to the applicants in the range of 30 000 – 60 000 Euros. In addition, it was recognised that extraordinary rendition had occurred in the sense that extra-judicial transfers had taken place. Only in the former case was it explicitly stated that the victim was subjected to extraordinary rendition. In both of these cases however, Article 6 of the European Convention of Human Rights was not considered. This suggests that neither the applicants nor the European Court regarded that the victims’ ordeal in extraordinary rendition violated their rights to a fair trial.

While the European Court of Human Rights has acknowledged the use of extraordinary rendition within European borders, there is still a dire need for the European Council to agree upon the recommendation made by the Open Society Justice Foundation’s report (Singh, 2013) for European Member states to stop providing support to the US in its program and put pressure upon them. Fox (2012) observes that no action at all has been taken by the European Council to determine the involvement of member states. This suggests that there is a lack of commitment in Europe to ensuring human rights are safeguarded in processes of extraordinary rendition.

Despite this, several measures can be taken by Member states to begin protecting human rights where extraordinary rendition takes place. The report by Open Society Justice Foundation recommends that states should cease any involvement in the US’ extraordinary rendition program as well as disclose information related to extraordinary rendition including the identities of the victims and the extent to which they have been harmed. The report not only further advises that investigations should be conducted in order to identify officials who were involved in the abuses, but also develop safeguards to ensure counter-terrorism programs comply with international human rights standards (Singh, 2013). This could include monitoring flights and transits through airspace in Europe and increase transparency of the way that terrorist suspects are dealt with.

Conclusion

To conclude, under the guise of a “war on terror”, Western states, including within Europe, have increased the use of extraordinary rendition to serve their own political agenda. The lack of response from European governments to investigate allegations, and the European Council which represents them, suggests that the use of extraordinary rendition is needed to fight a global enemy. As there is no doubt extraordinary rendition violates human rights such as enforced disappearance, torture as well as the right to a fair trial as guaranteed by Article 6 of the European Convention of Human Rights, we are therefore in a situation where the increased use of extraordinary rendition is a cause for concern. In particularly, extraordinary rendition does not allow for suspects to be formally charged with a crime and in effect denies them access to legal process. It further devalues the concept that all are innocent until proven guilty, which is stressed in the European Convention of Human Rights. This also means that there is no likelihood of suspects receiving a fair trial. However, while many European member states have been identified as facilitating the US’ extraordinary rendition program, very few cases have reached the European Court of Human Rights and concluded with a judgement. In the cases considered in this essay, Article 6 was not considered at all and therefore was regarded as being violated. This has strong implications for guaranteeing access to a legal course for justice within domestic law. It suggests that it has been accepted that the right to a fair trial can be compromised completely in order to ensure national security and this remains to be encouraged as those in power as well as the public remain complacent. Other cases against Poland, Italy, Lithuania and Romania in relation to extraordinary rendition are being considered by the Court and currently judgements on these are pending. Although exploring such case-law is beyond the scope of this essay, perhaps these will prove that extraordinary rendition is indeed a violation of Article 6 of the European Convention on Human Rights.

Bibliography

Abdulkhakov v. Russia (2004) ECHR 14743/11. [Internet] Available from: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113287#{“itemid”:[“001-113287”]} (Accessed: 07/04/2013)

Background Paper on CIA’s Combined Use of Interrogation Techniques” (30 December 2004) Internet: http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc97.pdf (Accessed: 08/04/2013)

Bassiouni, M. C. (2010) The Institutionalization of Torture by the Bush Administration: Is Anyone ResponsibleOxford: Intersentia.

Coates, K. (2006) “Extraordinary Rendition” In: Coates, K. (Ed.) Extraordinary Rendition. The Spokesman.

Cobain, I. (5 February 2013) CIA rendition: more than a quarter of countries ‘offered covert support’. Internet: http://www.guardian.co.uk/world/2013/feb/05/cia-rendition-countries-covert-support (Accessed: 7/04/13).

Duffy, H. and Kostas, S. A. (2012) “Extraordinary Rendition: A Challenge For the Rule of Law” In: Salinas de Frias, A. M., Samuel, K. L. H. and N. D. White (Eds.). Counter-Terrorism: International Law and Practice. Oxford University Press.

Fisher, M. (5 February 2013) A staggering map of the 54 countries that reportedly participated in the CIA’s rendition program. Internet: http://www.washingtonpost.com/blogs/worldviews/wp/2013/02/05/a-staggering-map-of-the-54-countries-that-reportedly-participated-in-the-cias-rendition-program/ (Accessed: 7/04/13).

Fox, B. (2012) EU must apologise for complicity in CIA rendition, say MEPs. Internet: http://euobserver.com/justice/116973 (Accessed: 7/04/13).

Frankopan, I. D. (2008) “Extraordinary Rendition and the Law of War” In: Samuel, K. L. H. and N. D. White (Eds.) Counter-Terrorism and International Law. Ashgate.

Khaled El-Masri v The Former Yugoslav Republic of Macedonia (2012) ECHR 39630/09. [Internet] Available from: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115621#{“itemid”:[“001-115621”]} (Accessed: 07/04/2013)

Singh, A. (2013) Globalizing Torture: CIA Secret Detention and Extraordinary Rendition. Open Society Justice Foundation.

Weissbrodt, D. and Bergquist, A. (2006) “Extraordinary Rendition: A Human Rights Analysis” In: Harvard Human Rights Journal. Vol. 19. p. 123-160.

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Free Essays

PhD proposal – The human rights in the middle east before and after Arab revolutions

Executive Summary

The Arab Spring refers to a period of dramatic changes in the Middle East, where there were multiple different uprisings across the region, by individuals and groups of individuals believing that their own rights had been overlooked by the government. As part of this, issues of human rights have emerged, as a result of numerous human rights violations which were experienced, prior to the uprisings, something which was deemed to be substantially influential in the decision to protest against government behaviours.

The research here contends that developing a more robust strategy for the protection of human rights within the Middle East region is a real possibility, following the uprisings; however, it is not likely to happen quickly or easily and therefore mapping out the best way forward following the Arab Spring is critical[1].

Introduction and Background

The Arab Spring refers to a dramatic period of discontent and revolution, across the Middle East, which began on 18 December, 2010. As part of this uprising, there were several protests and demonstrations which took place across the region, with rulers being pushed from power, in Libya, Yemen, Tunisia and Egypt and with further discontent being seen in other countries, such as Algeria, Syria, Iraq and Kuwait. Clashes also emerged on the borders between countries, with minority groups taking the opportunity to have their voices heard. In addition, there were several instances of more minor protests and demonstrations taking place, as well as the more revolutionary uprisings, all of which have arguably paved the way for a new political agenda, as well providing as opportunities to improve the human rights’ agenda, in the Middle East[2].

During the revolutionary period, there were also concerns as to how the authorities reacted and this again suggested that there was likely to be a resulting period of discontent which would clear the way for a new improved approach to many fundamental areas, including human rights[3].

Although the likely reason for the Arab Spring can be attributed to general discontent with the role of local government, it is argued in the research that whenever there is a dramatic uprising of this nature opportunity is seen in the aftermath, when it comes to establishing a new improved approach to all aspects of government, from offering political stability, to ensuring that the regions provide greater security to the individuals within those regions. Human rights’ violation is merely one aspect of this research; however, the focus will be on this element, in order to ensure sufficient focus in this research.

Aims, Objectives and Rationale

The overall aim of this research is to monitor the way in which human rights have been dealt with in the Middle East, both prior to and after the Arab Spring, with a view to identifying a potential way forward, for the future. The question raised, here, is deemed to be particularly important in the current climate, as it will identify means whereby the actual uprisings of this nature are the catalyst for dramatic change, in terms of fundamental rights, such as human rights[4]. Having entered this period of change the aim of this research is to establish an appropriate framework that can be followed in the future development of Human Rights in the area.

Although the revolutionary period saw a dramatic and potentially inspiring display of action from the public, across the region, the magnitude of the challenges that are now being faced across the region is becoming clearer. The importance of this research, therefore, is to consider the impact that this period in history will have on the development of human rights in the region. Therefore, in order to achieve this objective, it will be necessary to look at human rights, prior to the uprising, as well as how they are now being dealt with, in the aftermath. The challenges, and crucially the way in which these challenges are being dealt with, will offer valuable information to any organisation looking to improve human rights in the region, especially when the region is undergoing a dramatic period of change. It is for this reason that the research is particularly appropriate, at this point in time, as information can be gathered from the experiences in the Middle East that may then be the applicable, elsewhere.

Planned Methodology

In order to undertake this research, it is proposed that the focus will be on an inductive style of research which will involve observing findings and activities across a broad range of organisations, some of which are within the governments of the various countries affected and others are third party non-governmental organisations which are focussed on improving human rights, in the area[5].

Due to the personal and sensitive nature of the research, it is anticipated that it will be difficult to obtain accurate primary research, in this area, as individuals may be reluctant to speak out about human rights’ violations, for fear of repercussions. Therefore, existing secondary case studies will be drawn upon, where appropriate, and with specific reference to individual examples of human rights’ violations and how these may now be treated differently, in the wake of these regional uprisings. It is anticipated that these will be obtained from agencies working in the area such as Oxfam or the Red Cross. On the whole, however, the main focus of the research is on the existing literature, in the area, as well as on reports about human rights’ violations which may be drawn upon, in order to identify changes as they are happening and also how this is likely to develop, in the long run.

Existing Literature

As noted in the proposed methodology, drawing on existing literature in the area, including government and non-government sources will form an important and central part of this research. The World Report 2013, written by the Human Rights Watch organisation, looked specifically at the uprisings in the Middle East and raised questions as to how this would potentially impact on human rights, within the region[6]. According to the report, it was recognised that the Arab Spring was hugely influential in the development of human rights, in the region; however, it was also stated that creating a democratic, self-respecting state was not something that would happen in a matter of a few months, despite the revolutionary nature of the changes.

It was noted in this report that a region which has previously been subject to a dictatorial regime, when left to behave independently, does not necessarily mean that there will be an automatic improvement in human rights; therefore, the difficulty for the path from the current situation to creating a democratic and fair society should not be underestimated[7].

Other research in this area has suggested that the dramatic events which took place in 2009 and 2011 actually arose over a prolonged period of time and did not suddenly arise from nowhere, as the media reports may have suggested, at the time. By looking at instances of human rights’ violations prior to the uprisings and the way in which various different third-party organisations were becoming increasingly involved in providing security within the region, it could be argued that the events which took place, in December 2010, were merely the final step towards liberalisation and were not actually as dramatic as originally suggested[8].

The issues that have arisen in the Middle East will be considered in the context of wider theoretical perspectives of human rights and how these rights emerge within modern society as well as how they should be protected. For example in the case of Marx it was argued that the only reason that human rights needed to be established at all was to support the capitalist developments and this reliance on natural rights should be viewed as paramount[9]. Other appropriate theories that will be drawn on in the wider discussion is that of the socialist concept which suggests that basic human rights area duty of society and basic levels should be established as a matter of political urgency[10].

When looking towards the future, there is considerable uncertainty from academics and practitioners as to how this revolutionary period is likely to play out, in the future and whether or not these dramatic changes in the region are going to create a suitable framework for the protection of human rights, or whether there is a danger that the situation will become worse, before it gets better. This presents the argument that whilst dictatorial rule can be damaging to human rights, creating such a high level of uncertainty within the region can also create similar problems[11].

Proposed Time Frame

It is anticipated that the research will take place over a period of three years, with the timeframe being necessary, in order to explore the potential changes and to observe how the region develops, in the coming months, which may be hugely influential to the ultimate findings of this research.

The main period of the research will be spent analysing the existing position, drawing on all current literature in this area, before identifying how the situation is now developing and whether or not the suggested theories associated with the development of human rights in the region are being experienced or not, in practice, as time goes on. Due to the transient nature of this research, it is anticipated that several aspects will need to be revisited, on an ongoing basis, and it is therefore a relatively time-consuming project, albeit crucially important, at this dynamic period of time.

Ethical Issues and Potential Problems

Dealing with issues such as human rights, particularly in a volatile political arena, has substantial ethical issues and care must be taken to ensure anonymity, particularly when collecting any primary research that may be available. Gathering data in this area is likely to be emotive and personal; therefore, ensuring sufficient balance of research will be a critical aspect of presenting the most balanced viewpoint possible, as regards to future options[12].

Indicative References

The references identified here are the starting point of the research and it is likely that this will be extended substantially, as the research is undertaken.

Arthur, Paige. 2009. How transitions Reshaped Human Rights: A Conceptual History of Transitional Justice. In Human Rights Quarterly, 31:2, May, pp. 321- 46.

Bentham, Jeremy 1987 “Anarchical Fallacies; being an examination of the Declaration of Rights issues during the French Revolution”, in Jeremy Waldron (ed.),Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, New York: Methuen, p.69.

Berger, Lars. 2011. The Missing LinkUS Policy and the International dimensions of Failed Democratic Transitions in the Arab World. In Political Studies, 59:1, March, pp. 38-55

Bevernage, Berber. 2010. Writing the Past out of the Present: History and the Politics of time in Transitional Justice. In History Workshop Journal, 69, Spring.

Blackbum, Robin. 2011. Reclaiming Human Rights. In New Left Review, 69, May-June.

Dembour, Marie-Benedicte. 2010. What Are Human RightsFour Schools of Thought. In Human Rights Quarterly, 32:1, February, pp.1-20.

Fletcher, L., Weinstein, H. & Rowen, J. 2009. Context, Timing and the Dynamics of Transitional Justice: A Historical perspective. In Human Rights Quarterly, 31, pp. 163-220.

Human Rights Watch (2013) Annual Report 2013 Available at: http://www.hrw.org/news/2013/01/31/world-report-2013-challenges-rights-after-arab-spring

Husak, Douglas 1985 “The Motivation for Human Rights”, 11 Social Theory and Practice, 249-255

Langlois, Anthony J. 2003. Human Rights without DemocracyA Critique of the Separationist Thesis. In Human Rights Quarterly, Vol 25: 4, November.

MacQueen, Benjamin. 2009. Democracy Promotion and Arab Autocracies. In Global Change, Peace and Security, 21:2, June, pp. 165-178.

Meister, Robert. 2011. After Evil: A Politics of Human Rights. New York: Columbia University Press.

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Free Essays

The Crystal Shard 26. Rights of Victory

Wulfgar leaned back in his chair at the head of the main table in the hastily constructed Mead Hall, his foot tapping nervously at the long delays necessitated by the demands of proper tradition. He felt that his people should already be on the move, but it was the restoration of the traditional ceremonies and celebrations that had immediately separated, and placed him above, the tyrant Heafstaag in the eyes of the skeptical and ever-suspicious barbarians.

Wulfgar, after all, had walked into their midst after a five year absence and challenged their long-standing king. One day later, he had won the crown, and the day after that, he had been coronated King Wulfgar of the Tribe of the Elk.

And he was determined that his reign, short though he intended it to be, would not be marked by the threats and bullying tactics of his predecessor’s. He would ask the warriors of the assembled tribes to follow him into battle, not command them, for he knew that a barbarian warrior was a man driven almost exclusively by fierce pride. Stripped of their dignity, as Heafstaag had done by refusing to honor the sovereignty of each individual king, the tribesmen were no better in battle than ordinary men. Wulfgar knew that they would need to regain their proud edge if they were to have any chance at all against the wizard’s overwhelming numbers.

Thus Hengorot, the Mead Hall, had been raised and the Challenge of the Song initiated for the first time in nearly five years. It was a short, happy time of good-natured competition between tribes who had been suffocated under Heafstaag’s unrelenting domination.

The decision to raise the deerskin hall had been difficult for Wulfgar. Assuming that he still had time before Kessell’s army struck, he had weighed the benefits of regaining tradition against the pressing need of haste. He only hoped that in the frenzy of pre-battle preparations, Kessell would overlook the absence of the barbarian king, Heafstaag. If the wizard was at all sharp, it wasn’t likely.

Now he waited quietly and patiently, watching the fires return to the eyes of the tribesmen.

“Like old times?” Revjak asked, sitting next to him.

“Good times,” Wulfgar responded.

Satisfied, Revjak leaned back against the tent’s deerskin wall, granting the new chief the solitude he obviously desired. And Wulfgar resumed his wait, seeking the best moment to unveil his proposition.

At the far end of the hall, an axe-throwing competition was beginning. Similar to the tactics Heafstaag and Beorg had used to seal a pact between the tribes at the last Hengorot, the challenge was to hurl an axe from as great a distance as possible and sink it deeply enough into a keg of mead to open a hole. The number of mugs that could be filled from the effort within a specified count determined the success of the throw.

Wulfgar saw his chance. He leaped from his stool and demanded, by rights of being the host, the first throw. The man who had been selected to judge the challenge acknowledged Wulfgar’s right and invited him to come down to the first selected distance.

“From here,” Wulfgar said, hoisting Aegis-fang to his shoulder.

Murmurs of disbelief and excitement arose from all corners of the hall. The use of a warhammer in such a challenge was unprecedented, but none complained or cited rules. Every man who had heard the tales, but not witnessed firsthand the splitting of Heafstaag’s great axe, was anxious to see the weapon in action. A keg of mead was placed upon a stool at the back end of the hall.

“Another behind it!” Wulfgar demanded. “And another behind that.” His concentration narrowed on the task at hand, and he didn’t take the time to sort out the whispers he heard all around him.

The kegs were readied, and the crowd backed out of the young king’s line of sight. Wulfgar grasped Aegis-fang tightly in his hands and sucked in a great breath, holding it in to keep himself steady. The unbelieving onlookers watched in amazement as the new king exploded into movement, hurling the mighty hammer with a fluid motion and strength unmatched among their ranks.

Aegis-fang tumbled, head over handle, the length of the long hall, blasting through the first keg, and then the second and beyond, taking out not only the three targets and their stools, but continuing on to tear a hole in the back of the Mead Hall. The closest warriors hurried to the opening to watch the remainder of its flight, but the hammer had disappeared into the night. They started out to retrieve it.

But Wulfgar stopped them. He sprang onto the table, lifting his arms before him. “Hear me, warriors of the northern plains!” he cried. Their mouths already agape at the unprecedented feat, some fell to their knees when Aegis-fang suddenly reappeared in the young king’s hands.

“I am Wulfgar, son of Beornegar and King of the Tribe of the Elk! Yet I speak to you now not as your king but as a kindred warrior, horrified at the dishonor Heafstaag tried to place upon us all!” Spurred on by the knowledge that he had gained their attention and respect, and by the confirmation that his assumptions of their true desires had not been in error, Wulfgar seized the moment. These people had cried out for deliverance from the tyrannical reign of the one-eyed king and, beaten almost to extinction in their last campaign and now about to fight beside goblins and giants, they longed for a hero to gain them back their lost pride.

“I am the dragonslayer!” he continued. “And by right of victory I possess the treasures of Icingdeath.”

Again the private conversations interrupted him, for the now unguarded treasure had become a subject for debate. Wulfgar let them continue their gossip for a long moment to heighten their interest in the dragon’s gold.

When they finally quieted, he went on. “The tribes of the tundra do not fight in a common cause with goblins and giants!” he decreed to rousing shouts of approval. “We fight against them!”

The crowd suddenly hushed. A guard rushed into the tent, but did not dare interrupt the new king.

“I leave with the dawn for Ten-Towns,” Wulfgar stated. “I shall battle against the wizard Kessell and the foul horde he has pulled from the holes of The Spine of the World!”

The crowd did not respond. They accepted the notion of battle against Kessell eagerly, but the thought of returning to Ten-Towns to help the people who had nearly destroyed them five years before had never occurred to them.

But the guard now intervened. “I fear that your quest shall be in vain, young king,” he said. Wulfgar turned a distressed eye upon the man, guessing the news he bore. “The smoke clouds from great fires are even now rising above the southern plain.”

Wulfgar considered the distressing news. He had thought that he would have more time. “Then I shall leave tonight!” he roared at the stunned assembly. “Come with me, my friends, my fellow warriors of the north! I shall show you the path to the lost glories of our past!”

The crowd seemed torn and uncertain. Wulfgar played his final card.

“To any man who will go with me, or to his surviving kin if he should fall, I offer an equal share of the dragon’s treasure!”

He had swept in like a mighty squall off the Sea of Moving Ice. He had captured the imagination and heart of every barbarian warrior and had promised them a return to the wealth and glory of their brightest days.

That very night, Wulfgar’s mercenary army charged out of their encampment and thundered across the open plain.

Not a single man remained behind.

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Free Essays

A critical appraisal of the human rights and mental health legislation of children and young people, specifically those aged between 16 and 17 years, within the mental health system in the UK – compliance, breaches and remedy.

Research Question

To what extent do human rights play a role in the application of the provisions of the Mental Health Care Act 1983 to children aged 16 – 17 years, should parental rights be afforded greater importance or are the provisions of legislation aligned with the objectives sought to be achieved by the import of human rights into English law. Are these rights justifiably limited, if at all?

Research Objective

To determine whether the provisions of the national legislation are attune to the requirements of human rights with regards to all relevant factors considering all relevant parties and in doing so to discover the purpose of the legislation and how this has been interpreted by the courts with regards to the relevant parties. The adequacy of the remedies available to parties presents an important objective of this research allowing for discussion of the potential horizontal applicability of these rights generally.

Methodology
The research methodology used will be qualitative in nature relying primarily on interpretation of primary sources such as common law and the relevant international case law.
The research will also examine secondary sources of information such as journal articles, textbooks and case notes to interpret and give content to common law and human rights articles.
This will then be analyzed in terms of the research objective.
A purposive approach to interpretation of these sources will be adopted in order to make connections between the human rights protected implicitly by the relevant legislation, regulations and case law. E.g. the competency requirements of the legislation protecting the autonomy rights of a child.
Outline & Literature Review

Introduction

Introduction to the topic as well as a definition of the parameters of the research – i.e. what the research will cover.
A background to the topic including the relevant developments in legislation with regards to the Mental Health Act 1983 and the corresponding responsibilities of included in the European Convention of Human Rights, the Human Rights Act 1998 and the Equality Act 2010.
The Code of Practice will also be included briefly to outline the relevance of the Zone of Parental Control (ZPC) and how this is applicable to s131 specifically and the Mental Health Act generally.
Emphasis will be placed on purposive interpretation of the legislation through the common law and judgments of the European Court of Justice. This purposive interpretation invariably emphasizes the common thread of what is in the best interests of the child.

Human Rights Framework

Examination of the competing human rights involved in the mental health legislation relating to children generally. This refers to human rights legislation of both the United Kingdom and the relevant international human rights conventions (European Convention of Human Rights and various United Nations conventions on the social and political rights of a child and family).
The right to liberty, privacy, equality and dignity of the child on one hand, and the right to respect for family life form the foundation of the competing considerations of this research.
The right to liberty corresponds with the child’s (aged 16 – 17) rights to make decisions regarding their welfare and autonomy, whilst the right to respect for family life is the right of the parent (or those with parental rights) to make decisions regarding the upbringing and care of their ward.
How one may balance competing human rights taking account of lawfulness, legitimacy, necessity and proportionality.

The Right to Liberty and Competence

The content of the right to liberty in the context of the mental health act with a limitations analysis including an examination of the case law.
Brief explanation of the Gillick competency and Fraser guidelines[1] focusing specifically on the concept of a sliding scale of capacity for competency as a child reaches maturity. The emphasis on these competency guidelines will serve as an explanation of the basis of s131 – that the child has the capacity for autonomy in this regard due to an advanced mental state akin to that of a major.
Exploration of how this presumption of competence for children aged 16 – 17 operates with a limitations analysis including the importance of this presumption for the enforcement of the right to liberty.
This will include discussion of the rights to privacy, dignity and equality as necessarily linked to liberty.

Parental Rights

A brief explanation of the operation of the zone of parental control as revived by the Code of Practice and how this enforces protection of these rights.
The purpose of parental rights i.e. what is in the best interests of the child and how this purpose may be infringed by the operation of s131.
A critique of the Gillick competency and Fraser guidelines[2] as they apply to 16 – 17 year olds – why these may not be appropriate for the assessment of this age group.
For the purposes of committal to a mental health care facility, parental rights should perhaps be afforded a greater weighting of consideration due to the nature of the issue involved and the complex cognitive nature of mental health.
A common law and international case law analysis of the limitations of parental rights with a purposive interpretative approach.

Limitations Analysis

An examination of these competing considerations with strong emphasis on the case law and purpose of the legislation as determined by case law.
This will also determine the appropriateness of the competency guidelines.
This limitation of rights of both parties is justifiable, however with the recommendation that the application of this presumption be emphasized as rebuttable which may include legislative amendment.

Breaches and Remedies

Discussion of the horizontal and vertical applicability of these rights and who may have a claim for the breach of the legislative sanctions, i.e. the state, private healthcare institutions, public healthcare institutions, parents, guardians and the child themselves.
The nature of a breach of these provisions – civil or criminal sanctions e.g. unlawful imprisonment.
Remedies, including the damages.
The trouble with human rights remedies is that they often serve a broader societal purpose such as a declaratory order clarifying interpretative issues and application of the right, however these often do not present satisfaction for the claimant.
Other Considerations
Due to the intricate nature of this topic and the complex relationship with other surrounding issues –such as competing human rights (privacy, dignity and equality), the zone of parental control, competency and capacity issues –certain issues will only be superficially examined for explanatory and analytical purposes rather than academic contribution.
Specifically with regards to the related human rights, there is much jurisprudence on the nature of these considerations as values inherent in all rights (the values of dignity and equality rather than a specific right thereto), this discussion is noted however will not fall within the parameters of the dissertation.
References
Code of Practise: Mental Health Act 2008
Equality Act 2010
European Convention of Human Rights
Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7
Human Rights Act 1998
Mental Health Act 1983
Wheeler, R. ‘Gillick or FraserA plea for consistency over competence in children: Gillick and Fraser are not interchangeable’, [2006] British Medical Journal, 332, 807

[1] Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7; Wheeler, R. ‘Gillick or FraserA plea for consistency over competence in children: Gillick and Fraser are not interchangeable’, [2006] British Medical Journal, 332, 807

[2] Ibid

Categories
Free Essays

A critical appraisal of the human rights and mental health legislation ,of children and young people, specifically those aged between 16 and 17 years, within the mental health system in the UK – compliance, breaches and remedy.

Abstract

This essay looks at whether people can be seen as a key source of sustained competitive advantage for organizations. Both positives and negatives about the idea that staff offer ongoing competitive advantage are discussed. The discussion is framed in terms of human resource management (HRM) and looks at both the immediate business context and wider social and economic contexts framing the question.

1. Introduction

The following essay examines whether people can be seen as a key source of sustained competitive advantage for organizations. A critical perspective is taken, drawing out the positives and negatives about the idea that staff offer ongoing competitive advantage. The discussion is framed in terms of human resource management (HRM) and looks at both the immediate business context and wider social and economic contexts framing the question. The essay is structured as follows. First, the nature of HRM is discussed generally, followed by an examination of the particular requirements of the newer discipline of strategic HRM (SHRM). This outlines the way in which the understanding of HR has changed, and with it ideas about people as an organizations main resource. Notions of sustainable competitive advantage are also examined. The following sections look at how people can offer competitive advantage through SHRM in terms of a range of factors. Finally, criticisms of the idea that people can be a source of sustained advantage are discussed.

2 The Traditional View of HRM

Traditionally, that is, during the early and mid years of the twentieth century, human resources was seen as a reactive, rather than a proactive function. This classical view of HR saw it as concerned primarily with administration, for example of wages and recruitment and discipline (Foot and Hook 2008). It was rooted in the scientific approach to management of F W Taylor, and assumed that most work was mechanical and predictable in nature, with little scope for creativity on the part of individual employees. The emphasis was upon ensuring employees compliance with regulations (Deckop 2006). This view is still put forward to some extent today, for example Boxall et al (2008) emphasize that HR is to do with administrative management of people at work. Under this, limited view of HR, there is little scope for bringing the best out of employees and hence little chance to use them as a source of competitive advantage.

This view began to be challenged during the mid part of the 20th century, as it was realized that ideas from psychology might have an impact upon employee performance. Peter Drucker was instrumental in pointing out the reactive nature of HR, and opening up new possibilities for the discipline (Sims 2007). He paved the way for theorists such as Armstrong (2006), who describes HRM as “a strategic and coherent approach to the management of an organisation’s most valued assets—the people working there, who individually and collectively contribute to the achievement of its objectives”. It should be pointed out that while this new strategic HRM offers many benefits, and can help capitalize upon an organisation’s employees as a resource, the traditional approach offers benefits which should not be overlooked. For example, although not suitable to all organizations, a personnel / reactive approach which sees the employee’s role as performing mechanistic tasks might be more suitable for certain industries, for example manufacturing (Torrington et al 2008). In the factory setting, it might even be appropriate to do away with people operating machinery where possible. In the case of industries where mechanization of the production process is possible, employees might be seen as a disadvantage, not a source of competitive advantage.

3 Strategic Human Resource Management and its Advantages for Competitive Advantage Through People: Key Notions

With a move to a more holistic view of human resources in the mid to late 20th century, the idea that people are an organization’s main assets was discussed. This section looks in more detail at the notion of SHRM, and also at some of the issues with defining the term.

The idea was originally put forward in the USA, possibly influenced by the widespread turn away from manufacturing there, as more and more manufacturing processes were outsourced to Japan. Numerous other factors such as the growth of individualism and downplaying of collectivism also played a part (Millmore 2007) Key to the notion of SHRM is the idea that it involves an approach to managing people “that enables the organization to achieve its objectives and take into account the changing context in which the firm operates and its longer-term requirements” (Armstrong 2011, p. 62). The notion of competitive advantage is written into SHRM as one of the key purposes of the approach, through boosting commitment and enhancing capabilities (Storey 1995). Certainly, it seems that SHRM offers a way to improve organizational performance through focusing upon the capacity and potential of the individuals employed. It also suggests that the role of HR is not simply record keeping and administration, but rather than people need to be written into the long-term planning of an organisation, through such strategies as including HR staff on the board. By thus including HRM in a company’s overall vision, and by including an awareness of the firm’s overall future in planning HR, the idea is that organizations can be more effective and have an advantage over their competitors (Mathis and Jackson 2011).

SHRM involves a number of other things. Central is strategic planning, the process whereby the HRM professional defines an end goal and plans HR strategy or allocates resources towards that end. Importantly, all employees should be included where possible in planning, both in terms of the overall vision for the organisation, and in terms of their role in fulfilling this vision. It is thought that including employees in a corporate vision is strongly motivating in terms of individual performance and organizational loyalty (Halldorsson 2007). Another central idea in SHRM is the notion that people should be treated as assets for the organisation (Armstrong 2006; Legga 1995; Armstrong and Baron 2002). Previously, it was thought that employees were useful only to the extent they carried out mechanical tasks in a similar way: SHRM recognizes the differences between people and the contribution each can make to competitive advantage through a process on increased motivation and commitment. A related notion is that of ‘human capital’: the idea that employees play a large part in adding value (Baron et al 2007; Scarborough and Elias 2002; Chatzkel 2004). The notion of human capital has been expressed as economic theories (Elliot 1991; cited Baron and Armstrong 2007).

However, it seems likely that the relationship between SHRM and sustained competitive advantage is complex. Not only is the definition of sustained competitive advantage problematic, the mechanics of how it is delivered through SHRM are obscure.A large number of empirical studies have looked at the relationship between SHRM and organisational performance: some suggest that mediating variables such as employee attitude can enhance or boost the impact, others look at the role played by mitigating variables such as job satisfaction, perceptions of justice, and organisational commitment (Bebenroth 2010).One common finding is that improved HR functions, particularly more streamlined subsytems and consistency of messages has “a positive impact on employee motivation and therefore does result in improvements” in terms of performance (Cornelius 2002). However, there is much disagreement on the topic, and the relationship is said to be complex (Bryman and Bell 2007). In other words, there is evidence that people can contribute to increased competitive advantage, but the relationship is not a simple or straightforward one, additional attitudes on the employers part need to be taken into account, for example.Additionally, the extent to which SHRM is effective in delivering positive outcomes for organizations is variable: Armstrong (2012) suggests that in order to be effective it needs to be wholly integrated into overall strategy.

Before looking in more detail at what SHRM can deliver, it is necessary to look at the notion of sustainable competitive advantage, as some confusion in the term means it is tricky to assess to what extent it is delivered by SHRM policies. Competitive advantage, it should be noted, can itself be defined in different ways. The two main definitions concern, on the one hand, purely financial advantage for the organisation, and, on the other, alternative, non-financial measures, for example public perceptions of a product (Webb and Schlemmer 2008). It is therefore unsurprising that the notion of sustainable competitive advantage is also somewhat ambiguous. The concept was originally devised by Porter (1985), and arose from a desire to offer added value for customers through a process of continual innovation. Porter felt it could be achieved through a combination of strategies: innovation, cost leadership and good quality products. While the term seems to designate the sort of advantage over competitors which will be long-lasting, “”there is… no agreement on the term “sustainable competitive advantage”. Some say that all competitive advantage is temporary” (Rogers 2009, p. 2). It has recently been questioned whether the goal of sustainable competitive advantage is even obtainable: anything which promises to deliver such advantage is likely to be outdated in a short period of time (Saravathy, 2008). Perhaps it is best therefore to look for sustainable competitive advantage in a way that involves flexibility to changing business needs. Certainly Pfeffer (1994) suggests that the sources of sustained competitive advantage have always shifted over time. The traditional sources of competitive advantage, products, technology, financial and economics, are less powerful than they once were. More recently, Zwilling (2010) has suggested that new ways of creating sustainable competitive advantage have developed, including a dynamic approach, sensitivity to price, strong focus, and teamwork.

There are alternative views of how SHRM can actually deliver benefits. One widely-accepted view is the resource-based one: the idea that employees are one of a number of resources possessed by an organisation that helps define what that organisation uniquely is and hence help set it apart from others in the market (Armstrong 2010) Although there are some issues with definitions and fully understanding how treating people as a resource can actually deliver key benefits, there do seem to be a number of advantages to this approach. For example, it seems that investing time and energy in individuals in an organisation can lead to enhanced performance through targeted skills development where the education is in tune with the company goals. Where employees are better trained than those in other organisations, they will perform better, and so will the organisation as a whole (Pillbeam and Corbridge 2010). This needs to be a process which takes into account individuality in terms of employee ability, motivation and opportunities (Boxall et al 2008). Another advantage of SHRM is that, it is claimed, it is a much more suitable approach for the current economic system, which is based around knowledge rather than the production of goods (Harvard Business School Press). It also capitalises upon a new understanding of human nature and motivation: it is now widely accepted that humans have different motivations, from the basic need to have warmth, food and shelter to more higher level needs for self-esteem and value in the eyes of others. Any adequate HR system needs to take into account people’s psychology and motivation, yet not all such systems do this (Leonard 2012). Further, SHRM seems to have been adopted successfully by some of the world’s most successful organisations. For example, Sheryl Sandberg left a post with Google to become Chief Operating Officer for Facebook, and brought in a new approach to HRM including many SHRM practices in a porcess of “mobilizing human capital through the HRM process to best implement organizational strategies” (Schermerhorn 2011, p. 233)

4. Drawbacks of SHRM: Failures to Deliver Competitive Advantage

Certainly there have been many people who have argued for the effectiveness of SHRM, and some empirical evidence also seems to suggest it is useful. However, there are some drawbacks which mean it might not deliver the advantages it promises. It also seems that the literature is somewhat biased towards SHRM, and takes a stance which lacks any criticality (Storey 2008).

One theoretical issue concerns the competitive advantage.To offer competitive advantage in the marketplace, a company has to give something else which the other firms in the same market do not give. If all organisations working in one particular market all invest in SHRM, then this ceases to be a source of competitive advantage and no longer differentiates any particular organisation, as all enjoy its benefits.Perhaps if one organisation invests more heavily than another in SHRM, they might enjoy more competitive advantage, however, this brings us to another issue with the notion of SHRM and benefits it might deliver: the cost.Strategic HRM involves more investment in people in terms of training and ongoing support, and is likely to be more expensive than a traditional, administrative approach (Story 2009).It has also been pointed out that although many ideas about SHRM developed in the USA, they are often assumed to be globally applicable. In fact, it is doubtful whether they are suitable for the European context, for instance: the notions are unclear, too rule-bound, and fail to understand the European social context, particularly the role played by unions and workers’ rights (Stonehouse and Campbell 2004). A final problem with the theory behind SHRM is a lack of consistency across definitions, and ambiguity within different models. For example, there is confusion between description and prescription, and also critical evaluation in some sources. Additionally, it has been claimed that the arguments for SHRM are somewhat weak, and fail to take into account the advantages of the traditional approach (Beardwell and Claydon 2007)

There has also been criticism of the research which has been done to back up the idea that SHRM brings benefits, which, it has been claimed, relies upon a set of questioned assumptions. In particular, it has been claimed that “the HRM literature is strongly dominated by the assumption that recruitment, assessment and development processes deal with people who have stable sets of skills and capabilities”, and also fails to take into account the extent to which people can make reflective changes in their circumstances (Storey 2008, p. 55). In addition, and despite the existence of studies which seem to show its advantages, as Millmore (2007, p. 425) puts it “research collected in this field shows limited evidence regarding the reality of this process in observable organisational practice”. It seems that further studies need to be carried out before the results claimed for SHRM are proven.

Putting aside the theoretical issues and problems with the research, it is also possible that actually instantiating effective SHRM practices could be problematic.for example, organisations often have different business strategies, particularly if they operate in varied areas. In these cases, having a unified HR strategy might be difficult. Additionally, it might be tricky to adapt HR strategy to a rapidly changing business environment, as it is likely to represent a solid part of the “internal structure and culture” of the organisation. Quick solutions to problems proposed by management might also undermine the overall HR strategies in an organisation (Stonehouse and Campbell 2004, p. 261). In practice, it has been suggested, it is likely that while many organisations agree that strategic HRM offers great possibilities, they have adopted it only half-heartedly in practice. This might be due in part to ambiguities in the different models of SHRM (Beardwell and Claydon 2007)

5. Conclusion

There has been a move away from the idea that people benefit organizations only insofar as they can function like machine parts, to an idea that people are the main asset of any organisation. As new ideas about the role of employees developed from the mid 20th century, so did the notion of HRM change to take on a more strategic role. There are many benefits to organizations from treating people as a key source of sustained competitive advantage, for example employees are likely to be more motivated and productive, however there are some serious drawbacks with the notion of SHRM, particularly the lack of decisive empirical evidence to support its effectiveness. More research is needed to determine whether it really offers what is claimed.

References:

Armstrong, M. (2006). Strategic Human Resource Management, 3rd edition.

Armstrong, M (2010) Armstrong’s Essential Human Resource Management Practice: A Guide to People Management, Kogan Page Publishers, London

Armstrong, M (2011) Armstrong’s Handbook of Strategic Human Resource Management, Kogan Page Publishers, London

Baron, A. & Armstrong, M. (2007). Human Capital Management: Achieving Added Value through People.

Baron, J. N. & Kreps, D. M. (1999). Strategic Human Resources: Frameworks for General Managers.

Barney. J, (1991). Firm Resources and Sustained Competitive Advantage, Journal of Management, 17/1, pp99-120.

Bebenroth, R (2010) Challenges of Human Resource Management in Japan, Taylor & Francis US.

Bryman, A and Bell, E (2007) Business Research Methods (2nd edn.), Oxford University Press, Oxon.

Boxall, P. & Purcell, J. (2008). Strategy and Human Resource Management (2nd edition).

Cornelius, N (2002) Building Workplace Equality: Ethics, Diversity and Inclusion (2nd edn.), Cengage Learning EMEA, UK

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Millmore, M (2007) Strategic Human Resource Management: Contemporary Issues, Pearson Education, Harlow, Essex

Pfeffer J. (1994). Competitive Advantage through People: Unleashing the Power of the Work Force, (on line access).

Pilbeam, S. & Corbridge, M. (2011). People Resourcing and Talent Planning, (4th edition).

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Sarasvathy, S D (2008) Effectuation: Elements of Entrepreneurial Expertise, Edward Elgar Publishing, Cheltenham, Glos

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Storey, J (2008) The Routledge Companion to Strategic Human Resource Management, Taylor & Francis, UK

Torrington, Hall, L and Taylor, S (2008) Human Resource Management (7th edn.), Pearson Education, Harlow, Essex. Armstrong, M (2011) Armstrong’s Handbook of Strategic Human Resource Management, Kogan Page Publishers, London

Webb, B and Schlemmer, F (2008) Information Technology and Competitive Advantage in Small Firms, Taylor & Francis, UK

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Zwilling, M. (2010). The 6 Keys to Real Sustainable Competitive Advantage. http://www.businessinsider.com/the-6-keys-to-sustainable-competitive-advantage-2010-6

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Women In Leadership: The Place Of Assertiveness And Recognition Of Human Rights

Introduction

The assumption that women leaders tend to be aggressive has been largely upheld, in Africa. That is not to say that all women leaders in Africa are aggressive; arguably, however, most women leaders tend to exhibit aggressive behaviour creating an impression of aggression within women leaders regardless of the reality. Assertiveness is a key quality expected from leaders or managers (Philips, 2002; Ames and Flynn, 2007) particularly those who have a lot of responsibilities. Those who aspire or are appointed as leaders are expected to posses and exhibit such qualities creating a self fulfilling prophecy. Assertiveness is, therefore, viewed as a dimension describing the tendency by people to speak for, defend, and act in their interest, values, and goals (in Ames and Flynn, 2006). A leader therefore, should be capable of planning, strategically; communicating clearly to other members of staff and rendering support to staff for effectiveness and success, but that is not always the case, particularly when it comes to female leaders.

The questions, therefore, are; what are the factors responsible for lack of assertiveness among women leaders, in Nigeria and why this often manifests itself as aggression rather than effective assertivenessA further question Is raised as to whether it is only seen as an issue for Nigerian women leaders, or is it a general disposition of the female genderThis essay, therefore, will give a brief chronological account of my career, identify the problems encountered that informed the choice of assertiveness and recognition of human rights (which are interconnected) and will therefore be discussed as part of one concept, namely, assertiveness. Related literature on assertiveness will be discussed and the factors responsible for its absence in women leaders. The importance of assertiveness for women in leadership positions will be reiterated. An action plan for my career will be highlighted and then concluded. It is worth stating, at this point, that the entire essay is going to be based on my personal experience and my context, except where otherwise mentioned. The essay will refer to females as women and males as men, because the essay is gender related.

My career

I started my teaching career at the age of twenty three, in a nursery and primary school, in Kaduna state of Nigeria. I had just finished a diploma course in Special Education at the University of Jos, in Nigeria, and was enthusiastic about joining the teaching profession. Although the school where I was employed to teach was neither a special nor a mainstream school, I was eager to put my teaching skills to good use. It was an unpleasant start, as I had to write and teach thirty-six lessons every week; the lesson notes must be ready by the end of Friday, because the head teacher will mark them over the weekend and then give them back to teachers, on Monday morning. Although the work was demanding, my major problem was the relationship between the head teacher and staff. I eventually left on health grounds.

My second experience was after my undergraduate studies at the same University. After my undergraduate studies, I went through the one year compulsory National Youth Service Corp (NYSC) which I completed in Kaduna Polytechnic and was offered employment a year after the exercise. I served under a male Head of Department (HOD), during my NYSC, but met a woman head when I was employed as a staff member. I had a heavier work load than most senior teachers, which the HOD attributed to my level and the fact that I did not have other responsibilities. This alerted me to the notion that leaders were often perceived t ho ave ‘different’ responsibilities In short, while the HOD made me the departmental secretary, welfare committee secretary, assistant registration officer and assistant exams’ officer, the work load did not change showing a lack of leader understanding of the precise role. She eventually finished her tenure and another woman was elected.

The third experience I had was another woman HOD who was elected into the position by other members of staff of the department, in conformation with the new rule in the institution; previously, headship was by appointment by the school management team. I had thought, at this point, that I would be relieved of some of my responsibilities, if not all. However, when the new head assumed duty, instead, my duties increased as she would call me to do just about anything, if was within sight and would then show no appreciation for the work done. This raised issues of how work was attributed to staff and how leaders look towards achieving a balanced workload for all staff, something which had been lacking in my experience.

Problems identified

The previous paragraphs have given a brief account of my career; this paragraph will focus on issues I consider problematic in staff relationships with women leaders. I have observed, from a distance, that the behaviour of women leaders, across the board, (e.g. church, unions, societies, etc.), in combination with my personal experience and have come to the conclusion that most women leaders are unnecessarily difficult to work with and often aggressive. I have heard some men endorse that opinion, as well. The three women I have worked with have a striking similarity in their behaviours all ultimately leading to aggression, which is characterised by being domineering, sarcastic, hard-edged, strident, impatient and blaming others. Furthermore, they were not assertive in their relationship with staff; they had no respect for staff, although they demanded respect from the staff, in turn. They acted as if they were superior beings who wanted to be revered; they were, in my opinion, ruthless to other colleagues and staff, generally. They were aware of their powers and exercised them to the fullest. Such women leaders tend to favour those they liked and victimise others. My first head teacher would tell staff members to report her, if they had the nerve; she knew nothing would be done about it; she always had things her way. These leaders make derogatory statements to staff, oblivious to who is listening; it was a common occurrence. Sometimes it happened right before the students; which could engender disrespect for teachers by their students, a situation that is avoidable. This was seen as a consistent way of operating by female leaders.

I recall my first day at work with amazement; I was disappointed at the way in which I was handed some necessary items I needed and a list of dos and don’ts by the stern looking head teacher. It felt as though it was purely an exercise of power, although I had thought that the head teacher might have problems at home, but came to realise that that was how she operated, in general. With my second employment, the HOD just collected my letter of employment and acknowledged it and that was all. I was not assigned an office, nor was there an orientation of any kind; I had to learn by trial and error or by asking other members of staff. I felt, from inception, that there was an enormous problem regarding leadership. This is because there was a lot of manipulation and no room for collaboration. In one of the cases, there was an outburst from the teachers when the HOD’s attitudes became unbearable; almost all staff members passed a vote of no confidence in the HOD and forwarded it to the school management. Although they had their good sides, it was however outweighed by their aggression. These kinds of dispositions seem to make staff members become emotionally exhausted and stressed, especially those who are passive, which affects the productivity of staff as a whole and does not create a team mentality.

Literature Review

Having given a brief history of my career and also identified what posed as challenges for me and other staff members, because of the disposition of the head teachers, it becomes imperative to look at what literature says about the assertiveness of women in leadership. Assertiveness is a critical issue, in Nigeria’s leaders; however, there is little or no literature in that regard concerning the concept, generally, and in regards to women, specifically. Assertiveness is a concept that are hardly mentioned and likewise the need for well managed assertiveness and the ignorance exhibited in this regard seems to affect the majority of the people, to a large extent, which leaders use to their advantage. These two concepts of assertiveness and human rights, as mentioned in the introduction are interconnected and inseparable, because assertiveness is all about knowing one’s rights and acknowledging the rights of others. It is this latter factor that is particularly relevant in the discussion. For instance, Back and Back in Armstrong (1991) stated that assertiveness is “standing up your for own rights” and, at the same time, taking into account the rights of others. In other words, know your rights and your limits, in order not to violate another person’s rights. The two concepts will therefore be discussed as one, namely assertiveness.

Assertiveness is the ability of an individual to act clearly, honestly, and to communicate directly (Dickson, 2012) and is considered a critical component of leadership effectiveness (Ames and Flynn, 2006). In other words, for leaders to succeed and advance in their leadership roles, they must be assertive. As stated earlier, one outstanding quality of assertiveness, I believe, is being aware of one’s rights and respecting the rights of other people; its importance in the work place and in life generally cannot be over emphasized. Despite this there are difference between assertiveness and aggression which needs to be recognised in this discussion.

Assertiveness can be proactive (acting rather than reacting) and reactive (responding rather initiating), both verbal and non-verbal (by means of words and action) (Ames and Flynn, 2006; Ames, 2009), depending on the situation or circumstance. Ames and Flynn (2006), in research which they carried out (not specifically on women) tried to establish the relationship between assertiveness and leadership and came up with some interesting concepts; high and low assertiveness. High assertiveness, they opine, results in what they term instrumental reward, meaning that leaders compromise their relationship with colleagues and subordinates in order to attain goals. Low assertiveness, on the other hand, results in social reward, which involves compromising attainment of goals in the quest of maintaining a good relationship with staff. Belonging to either of these two levels of assertiveness is already a challenge, as the leader in question would have to compromise one thing, in other to achieve the other; presumably the two are of utmost importance. The question is, if being assertive is a positive quality that leaders should possess, what are the factors or barriers that prevent leaders from exhibiting assertive behaviours?

Factors responsible for women’s lack of assertiveness

Internal and external stimuli (Oplatka and Tamir, 2009) are words used in describing reasons for women leaders’ lack of assertiveness, according to research carried out by Oplatka and Tamir. They posit that women who aspire for leadership positions (internal stimulus) are more likely to exhibit assertiveness and display more confidence than those who have waited for the positions to be offered, or were asked to apply (external stimulus). One factor, according to these researchers, that stands in the way between women and assertiveness is their unwillingness or unpreparedness to be leaders or school heads. Furthermore a lack of understanding of the role of a head may also create difficulties in harnessing natural leadership skills towards creating an efficient team working environment.

Another factor, as suggested by Coleman (2002), is family responsibilities. Married women have enormous family responsibilities; leadership in the work place adds to it and seems to affect their advancement in the office in a way that a male counterpart may not experience. It would not be strange for a woman to walk into the office and pick on the first person she sees, not because of anything they have done wrong, but possibly as a result of a pending issue with spouse, children or any family member; it happens frequently in my context. Contrary to Coleman’s suggestion, Hall (1996) in a study of six women head teachers, in the U.S, found women leaders (American) to be effective in their roles as leaders. Hall discovered that these women, although in different schools, showed some similarities in their leadership styles, which he attributes to family experiences from childhood, especially roles they played as girls who were taught by their mothers. These school heads had a smooth working relationship with their staff; there was collaboration, openness, and shared decision-making, with no attempt made to dominate; they use this strategy, only when other means have failed (Hall, 1996). This distinction between the US experiences and the experiences in Nigeria could be due to the fact that the US is generally more accepting of women in powerful positions and society supports full time female workers in the US in a way that is not as available in Nigeria.

Fear of failure and insecurity, according to Oplatka and Tamir (2009), is another impediment to women leaders’ advancement and exhibiting qualities considered to be assertive. What are they afraid of or insecure aboutGender related insecurities, because of male dominance, ( Oplatka and Tamir, 2009), gender stereotype, hostility towards women (Bickel, 2001) were identified as possible reasons responsible for the non-assertive behaviour women leaders exhibit. Poor self-image was suggested as affecting women’s attitude and effectiveness as self-confidence is largely linked with the developmental process and experiences an individual encounters, is exposed to, has interacted or associated with (Morgan et al, (1981); Mathipa and Tsoka, 2001); which Mathipa and Tsoka argue is, to a large extent, dependent on the type of education women receive. The type of education either builds an individual’s confidence or creates a lack of confidence, which heightens fears and insecurities among women. Creating a greater general acceptance of women in management roles would reduce the need to be overly aggressive when asserting the management position. Mathipa and Tsoka (2001) reiterated that women are not born with a poor self-image, but are culturally educated to respect and uphold others. This is especially true in Africa, where a woman is supposed to be ‘seen and not heard’. However, those who live in urban areas exhibit more confident behaviour than those in rural areas. In consonance with this, Mathipa and Tsoka, Milgram (1970 in Ames 2009) stated that assertive behaviour differs between those in urban and rural settings and within regions of a country depending on their experiences within society (Cohen and Nisbett, 1994, in Ames, 2009). This is a clear pointer to the role culture plays in the issue of women leaders’ assertiveness.

Discussion of issues

The amount of literature available on the issue of assertiveness of women leaders is an indication of the challenges faced by women leaders. The discussion will, therefore, be centred on the themes revealed in the literature. Women leaders have two main issues to contend with; the fact that they are women and also the need to be accepted as effective leaders. The world is a man’s world, as is the common belief, in certain regions, which is why the disposition of a woman in leadership is crucial. In an article based on South African women, lack of assertiveness was mentioned as a barrier to women’s advancement to leadership positions, particularly in the education profession (Mathipa and Tsoka, 2001). In my opinion, the same is applicable to Nigeria.

Women would naturally not prepare and plan for leadership, in Nigeria; however that is not to say that some women do not aspire to leadership roles. There is a perception that a ‘woman’s place is in the home’; most women were brought up with that belief, with the constant reminder that the man is the head (natural leader) of the family. The underlying fact is that they do not plan nor prepare for leadership (Oplatka and Tamir, 2009). I would argue, therefore, that men do not go through any formal training or even plan (sometimes) to be leaders, but their approach to leadership is different; again, that is not in any way saying that all men are good leaders or heads. A male head, for example, would hardly come to the office in the morning with an attitude, because of an incident that happened in the home. The male leader is also more comfortable in their position as it is perceived to be more ‘normal’ and there isn’t the same desire to prove themselves as the leader from the outset. My course mate shared with me her experience about her encounter with a head teacher in one of the schools, who shouted at her because she went to get the keys to a particular room, to pick a musical instrument which she was supposed to play for the children (she was not told until that morning). Women appear to be very emotional, which may be responsible for the way they behave at times. For instance, my HOD summoned me, on one occasion, and was abusive in her words, only to discover that she was wrong because she accused me, wrongly; however, she did not apologise; she was the head. My rights were trampled upon, but being a passive person, it was impossible to respond. Being prepared for leadership is necessary, which I suppose is responsible for the creation of the National Professional Qualification for Headship (NPQH) in England, in 1997, which is a mandatory requirement for headship (Bush and Oduro, 2006).

Assigning responsibilities to teachers was also suggested (Mangin, 2009), in order to begin to prepare teachers for future headship responsibilities. This may not fit well, in my context, as most of those in leadership have held other responsibilities in lesser capacities, before becoming head teachers. All these strategies are helpful; however, in my opinion, assertiveness is not just to be taught, but is a skill to be learned. Furthermore it is contended that having greater confidence in themselves will reduce instances of unecesary aggression as they will be content in their role without the need to trample others.

Family responsibility is another factor responsible for women’s lack of assertiveness and can be highly influential to their role in the workplace. From my experience, acknowledging that it is not easy for a woman to be a leader, yet if she has a family, is necessary as it is an important part of how she has developed as a leader. The woman is typically responsible for everything that happens on the home front, in addition to other responsibilities outside the home. The experience of this head teacher is to buttress this assertion. This head teacher leaves her house as early as 5.00am, in order to beat the traffic, that is, after she has prepared breakfast for her husband (no children yet). She leaves the office and arrives home around 7.00pm, because of the traffic. Her husband faithfully waits for her return, to cook his meals (he has no job) which involves her working within the home as well as at work; this she does everyday. She pays all the bills and provides food; her husband does nothing and would not help even with house chores (he is the head of the family). This social limitation places greater pressures on the female leaders I went to see one head one morning; immediately she saw me she broke down and wept. This is one scenario out of so many that women go through. This may be an extreme scenario, but there are a lot of women heads who do not experience up to a fraction of this and yet lose control in the office, resulting in unnecessary conflict; surprisingly, the head teacher in the story above is not aggressive, neither is she passive; one would not even have the slightest inclination that she had a problem, if she had not opened up to discuss it. This behaviour is unique to her, as not every woman can tolerate that without reacting; this, I would argue is the result of individual differences in people. Individual differences in assertiveness are also crucial in how leaders are perceived and their success as a leader (Ames and Flynn, 2000).

The notion about the upbringing of the girl child that translates into assertive behaviour is also worth mentioning. There was a practice, in earlier times, that is still being practised by some families, in Nigeria. When a boy wants to get married, his parents secretly inquire about the girl’s family; the purpose is to find out the norms and values of her family; this they believe will tell them the kind of behaviour the girl is likely to exhibit. That will inform their decision on whether the boy should marry the girl, or not. Although the research was carried out on American head teachers, the girl’s childhood upbringing is also taken seriously, in Nigeria. However, it does not always follow; as parents would do everything possible and children will grow and choose their own path. That is not in any way implying that the girl child’s upbringing has no influence in adulthood. Having such a strong parental influence is relevant as this may impact on the way that a woman perceives herself and a female that has not been encouraged to carve a career for herself may face increased personal barriers to showing well placed assertiveness.

Lack of assertiveness in women heads tend to create fear and make them insecure in their role. It could be because they feel intimidated by other colleagues, or lack confidence in their ability to carry out their responsibilities. Although leaders tend to put on a good front, they become emotionally exhausted in trying to stay on top of their game, something which is exacerbated when they also have family pressures. I recall with disdain how my head would add her workload to mine and demand I meet the deadline; with authority of course. Other staff members claimed that she saw me as a threat and was trying to frustrate me; it was almost the same experience with the other three women heads I worked with. The question is, if one is insecure, why take out their frustrations on other peopleAlthough the heads behave almost in the same way to all staff, men find it extremely difficult to tolerate such behaviours from female leaders. In the African culture, it is natural for men to be leaders and awkward or strange for a woman to be leaders, where there are men; culture has placed the woman below the man. Unassertive behaviours by women leaders only strengthen the assumption that women do not posses leadership qualities. However, there are women who are outstanding in their leadership roles. According to Dickson (2012), the issue of equality is one of the most important characteristic of assertiveness.

My action plan

Having discussed the findings based on the available literature, it becomes imperative to map out a plan, based on my reflections of the module, especially regarding the aspect of assertiveness and training of potential female leaders. Although I do not like taking on the role of a leader, I am, most of the time, assigned responsibilities. As a passive person, I need to prepare myself for the future, especially in the aspect of assertiveness if this is not to create insecurities within myself.

Conclusion

Assertiveness seems to be a significant aspect of leadership; however, it would appear that little or no attention is accorded to the concept or acquiring skills associated with . It is one thing to be a leader and another to be an effective leader. Women in leadership positions have considerable challenges for the singular reason of being women. Exhibiting aggressive, passive or manipulative behaviour will only add to their challenges and the suppression of the male dominant figure of authority. The woman is known to possess a naturally soft, accommodating, friendly and gentle nature. Where a woman leader decides to be domineering, in order to command respect like men, she meets with conflict which is responsible for the unnecessary emotional stress and exhaustion leaders and their staff experience, which can be avoided. If women leaders can express strong feelings, without being aggressive, accept that they are not omnipotent, and compromise, sometimes without insisting on winning all the time, respect the feelings, privacy, and opinions of others, it is most likely that they will have a serene environment to work in, with full support from staff. Whenever people feel supported or acknowledged, there is likely to be advancement and also an indication that a situation has been handled assertively. The power of women, therefore, does not lie in the offices they occupy, nor their aggression, but in their ability to stay on top of the game by being assertive.

References

Ames, D. and Flynn, F. (2006). What’s good for the goose may not be as good

for the gander: The benefits of self-monitoring for men and women in task groups and

dyadic conflicts. Journal of Applied Psychology, 91, 272-281

Ames, D. and Flynn, F. (2007). What breaks a leader: The curvilinear relation

between assertiveness and leadership. Journal of Personality and Social Psychology, 92, 307-324

Ames, D (2009) Pushing up to a point: Assertiveness and effectiveness in leadership and interpersonal dynamics. Research in Organisational Behaviour 29 (2009) 111 – 133

Astrong M (1991). How to be an even better Manager. London: Biddles Limited. P.27

Bush, T. and Oduro, G.K.T. (2006). New principals in Africa: Preparation, induction and practice. Journal of Educational Administration, 4(4), pp.359–75

Coleman, M. (2002) Women as headteachers: striking the balance, Stoke on Trent, Trentham Books.

Dickinson, A (2012) A Woman in Your Own Right Assertiveness and You Quartet Books

Hall, V. (1996) Dancing on the Ceiling: A study of women managers in education, London, Paul Chapman

Mangin D. (2009) Promotion, professional practice and patient trust. In: Understanding and Responding to Pharmaceutical Promotion – a practical guide. Eds Mintzes B, Mangin DA, Hayes L. World Health Organisation / Health Action International 2009

Mathipa E. M. and Tsoka E. R. (2001) ‘Possible barriers to the advancement of women in positions of leadership in the education profession’, South African Journal of Education 21: 324-330

Oplatka, I, & Tamir, V. (2009). I don’t want to be a school head: women deputy heads’ insightful constructions of career advancement and retention, Educational Management Administration Leadership, 37, pp. 216-230.

Philips, A. (2002) Assertiveness and the Manager’s Job, Radcliffe Publishing.

Categories
Free Essays

With reference to the case law on direct effect, critically discuss the extent to which this concept (direct effect) is an effective means of protecting an individual’s European Union Law rights.

Introduction

Direct effect seeks to ensure that the rights of individuals are being protected under EU Law[1]. This is not always achievable since EU Law is generally only directly effective against national authorities. As such, individuals cannot usually invoke EU Law against other individuals unless the EU Law provisions are horizontally directly effective. This suggests that the concept of direct effect is not that effective in protecting an individual’s European Union Law rights. In light of recent case law, the courts are now using vertical direct effect as a way of invoking EU Law by demonstrating that the provisions give effect to general principles of EU law. This essay will critically discuss the extent to which individual rights are being protected by reviewing the case law in this area.

European Union Law

Parliamentary sovereignty renders Parliament the most supreme legal authority in the UK. The courts are unable to overrule any decisions made by Parliament and no Parliament is capable of passing laws that future Parliaments will be unable to change[2]. Since the UK’s entry into the European Union (EU) in 1972 and the implementation of the Human Rights Act 1998, the sovereignty of parliament has been significantly weakened. This is primarily due to the fact that EU Law has direct effect under the European Communities Act 1972. EU Law can be used to dis-apply acts of parliament and overturn previous decisions[3]. This protects individual rights by allowing them to use the direct effect principle to invoke EU Law. The principle of direct effect confers rights on individuals which all Member States must recognise and enforce and although the principle is not explicitly provided for under any of the Treaties of the EU, it has been recognised through various case law such as Van Gend en Loos v Netherlands Inland Revenue Administration[4]. Here, it was made clear that in the event of a confliction between EU Law and national legislation, EU Law will always prevail. This decision recognised for the first time that the supremacy of the EU would always be upheld through the principle of direct effect.

Direct Effect

The decision in Van Gend en Loos focused upon the rights of individuals against the state and not against other individuals. This issue was subsequently addressed in Defrenne v SABENA[5] when it was noted that there exists two different types of direct effect; vertical and horizontal. The distinction between the two would depend upon the person or entity the right was being enforced against. Vertical direct effect is concerned with the relationship between EU Law and national law, whilst horizontal direct effect is concerned with the relationship between individuals[6]. It was identified in the case that if a particular provision of EU Law is horizontally directly effective, then individuals will be able to rely upon that provision to enforce EU Law against another individual. Although this is necessary in ensuring that the rights of individuals are being protected by all, there are only limited EU Law provisions that are horizontally directly effective. The rights of individuals may still be violated by other individuals and companies. This shows that the principle of direct effect may not always be an effective means of protecting an individual’s EU Law rights. Consequently, the principle is only effective when it comes to EU regulations and is not that effective when trying to enforce directives. This is due to the fact that directives are not generally given horizontal direct effect.

The lack of directives that have horizontal direct effect was identified by AG Jacobs in Nicole Vaneetveld v Le Foyer SA[7] when he argued that there would exist greater legal certainty and a more coherent system “if the provisions of a Directive were held in appropriate circumstances to be directly enforceable against individuals”. Arguably, because directives do not always have horizontal direct effect, it cannot be said that the rights of individuals are being fully protected under EU law as violations can still occur. In Van Duyn v Home Office[8] the courts made it clear that vertical direct effect would apply to Directives if “individuals were prevented from taking it into consideration as an element of Community law”. In addition, it is declared under Article 249 EC (now Art 288 of the Treaty on the Functioning of the European Union) that Directives should be binding upon Member States, though the decision is left for the courts to decide based upon the particular facts and circumstances of the case. Individuals thus have the ability to invoke Directives before the courts, yet their rights cannot always be guaranteed. Furthermore, if the Directive is “sufficiently clear and precise, unconditional, leaving no room for discretion in implementation”[9] it is unlikely that the courts will be able to make a decision by weighing up the particular circumstances of the case. Only if a Directive is not sufficiently precise and deemed unworkable by the court, will national authorities be able to intervene.

Essentially, it is evident that direct effect will not always apply to directives and as asserted by Tovey; “some policy decisions needed to be developed and articulated for Directives to be accorded direct effect”[10]. In Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching)[11] it was held that a Directive cannot be directly enforceable against individuals, however in Grad v Finanzamt Traunstein[12] it was signified that because Directives imposed obligations which were to achieve a desired result, they could be directly effective. Moreover, in Pubblico Ministero v Ratt[13] it was stated that Directives would not have direct effect if Member States had not implemented the Directive within the time allowed for its implementation. The conflicting case law decisions in this area are likely to cause confusion as to whether directives are capable of having direct effect, though it seems as though the decision will be made on a case by case basis. Whether this limits the protections under EU Law is likely as the provisions will not always be able to be invoked. Recent case law surrounding the direct effect of EU Law has prompted even more confusion. This is because, whilst the courts have made many attempts to reject extending horizontal direct effect to directives (Faccini Dori v Recreb Srl[14]), it is now questionable whether this is still the case since the decisions of Mangold v Helm[15] and Kucukdeveci v Swedex GmbH & Co KG[16].

Individuals EU Law Rights

In Mangold the court held that national courts were under a duty to adopt the provisions of a Directive and set aside conflicting national law even if the time limit for transposition had not yet expired. It seemed that a new principle was being established by the court as Directives were originally only capable of having direct effect after the transposition date. In Kucukdeveci it was held that although Directives did not have horizontal direct effect, they were not prepared to apply national legislation as this would infringe the individuals rights under EU Law. Instead, it was found that the principle of non-discrimination was a general principle of EU Law and that the national court was therefore under a duty to dis-apply national legislation that violated this principle. This case seemed to suggest that even when a directive is not horizontally directive effective, an individual can still invoke EU Law against another individual by applying the general principles of EU Law. The court in Re Honeywell[17] questioned whether the Mangold decision was ultra vires, yet because age discrimination fell within the competencies of EU Law, it was found that no new competencies had been created. Consequently, whilst it generally depends upon the nature of the case as to whether direct effect will be applicable, it is capable of being used as an effective means of protecting an individual’s rights whether this be via horizontal or vertical direct effect. The case law in this area suggests that if a Directive gives effect to general principles of EU law, national legislation which conflicts with the Directive must be dis-applied by national courts.

Conclusion

In light of recent case law decisions, the protection that is being afforded to individuals under EU Law is now more effective through the principle of direct effect than it ever was. Previously, if an EU Law provision did not have horizontal direct effect, individuals could not invoke EU Law against another individual such as their employer. This resulted in discriminatory treatment and prevented individuals from relying upon their rights under EU Law. Since Mangold and Kucukdeveci, individuals will be capable of invoking Directives that give effect to general principles of EU law against other individuals.

Bibliography

Text Books

Alina Kaczorowska, European Union Law (Routledge 2013).

John Fairhurst, Law of the European Union (Pearson Education, 2010).

Lorna Woods and Phillipa Watson, Textbook on EU Law, (12th Edn, Oxford University Press, 2014).

Nigel Foster, Foster on EU Law (OUP Oxford 2011) 219.

Online Journal Articles

Gwyn Tovey, ‘European Union Law’ (2011) EU Law and National Law, accessed 02 December 2014.

Parliament, ‘Parliamentary Sovereignty’ (UK Parliament) accessed 01 December 2014

Case Law

Defrenne v SABENA Case 2/74 [1974] ECR 631

Grad v Finanzamt Traunstein Case 9/70, [1970] ECR 825

Faccini Dori v Recreb Srl Case 91/92 [1995] All ER (EC) 1

Kucukdeveci v Swedex GmbH & Co KG [2010] All ER (EC) 867)

Mangold v Helm [2006] All ER (EC) 383

Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723

Nicole Vaneetveld v Le Foyer SA Case 316/93, [1994] ECR 1-793 290

Pubblico Ministero v Ratt Case 148/78, [1979] ECR 1629

Re Honeywell [2011] 1 CMLR 1067

Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1

Categories
Free Essays

What legal rights (if any) does Milesofpaper Ltd have in respect of payment for the stationery and office equipment??

Introduction

As Mr Frank and Mr Stamp entered into the contract with Milesofpaper Ltd before the incorporation of Wearboaters Ltd, it would appear that the contract was entered into under the partnership of Pleasure Boats & Co and thereby governed by the Partnership Act (PA) 1890. In order for a partnership to be created, there must be two or more persons that conduct business with a view to profit. Partnerships are defined under s. 1(1) PA 1890 as a “relation subsisting between persons carrying on business in common with a view of profit”. Mr Frank and Mr Stamp had clearly entered into a partnership as they carried on business (pleasure boat building and repairing) with a view to profit; Khan v Miah, Ahad and Miah[1]. Unlike companies, partnerships do not have a separate corporate personality and are instead regarded as a collection of individuals or persons.[2] This means that each partner is jointly liable, without limit, for the debts and obligations of the partnership incurred while he or she is a partner (s. 9 PA 1890). Mr Frank and Mr Stamp will therefore both be personally liable for any debts the partnership incurred; M Young Legal Associates Ltd v Zahid[3]. In considering whether Milesofpaper has any rights in respect of payment for the stationary and office equipment, it will need to be considered whether Mr Frank and Mr Stamp are personally liable the contact is capable of binding the partnership.

Given that both partners entered into the contract with Milesofpaper, they will be deemed to have had actual authority to bind the firm. S. 5 PA 1890 states that every partner is an agent of the firm whose acts bind the firm and his partners, unless the partner acting had no authority to do so. Given that both Mr Frank and Mr Stamp would have the authority to enter into the contract with Milesofpaper, it is clear that their actions would have bound the firm. However, because the contract was entered into under the company’s name; Wearboaters Ltd, it is doubtful that this particular transaction will be binding against the partners. It is noted under s. 6 PA 1890 that an act relating to the business of the firm must be done in the firm name or any other manner to be binding on the firm and all its partners. Since the act relating to the business of the firm was done in the name of the new unincorporated company, it is unlikely that the partnership will be liable for the debt. Yet, the individual who entered into the contract may be liable for the debt as their own private act[4]; Sangster v Biddulph[5]. Furthermore, even though Wearboaters Ltd has now been incorporated, Milesofpaper Ltd will not be able to enforce the pre-incorporated contract. The reason for this is that; “before incorporation, the company is not competent to enter into contract in its own name as it has no legal entity”[6].

As such, Wearboaters Ltd will not be capable of being sued for the pre-incorporation contract that was entered into between Mr Frank, Mr Stamp and Milesofpaper. In Re English & Colonial Product Co[7] it was held that a company was not liable to pay for services and expenses incurred by a solicitor pre-incorporation as the company was not in existence at the time when the expenses were incurred. In addition, it was also held in CIT v City Mills Distilleries (P) Ltd[8] that a company has no status prior to its incorporation and can have no income or liability. As the company had not been incorporated, Mr Frank and Mr Stamp will be classed as ‘promoters’ who will have purported to enter into a contract by or on behalf of Wearboaters Ltd[9]. As promoters, Mr Frank and Mr Stamp will be personally liable unless the contract states otherwise (s. 51 Companies Act (CA) 2006). In Phonogram Ltd v Lane[10] it was held that a promoter of a company was personally liable to repay a debt that was made on the company’s behalf under s. 51 CA 2006 (previously 2. 36 CA 1985) even though the claimant was unaware that the company was not in existence at the time the contract was entered into. Overall, it is likely that Milesofpaper will have a claim against Mr Frank and Mr Stamp in respect of payment for the stationery and office equipment.

What legal rights (if any) do Mr Frank and Mr Stamp have in respect to payment for compensation for the destroyed boats and equipment?

Once a company has been incorporated, it is separate and distinct from its members as shown in Salomon v Salomon[11]. Here, it was made clear that a company shall be solely liable for any losses or mishaps that arise within the company. In accordance with this principle, a company has the capacity to enter into contracts and sue and be sued in its own name. If the company suffers a breach of contract, it is the company who will be able to sue on the contract for breach and thereby seek to take the appropriate remedial action[12]. As business assets are owned by the company, it is the company who is responsible for insuring them. Because Mr Frank had insured the assets of the business under the partnership, the assets that have been transferred to the company will no longer be insured. This is because Mr Frank does not have an insurable interest in the company’s assets and a new contract would need to have been entered into between the company and the insurer. This was identified in Macaura v Northern Assurance Co Ltd[13] where Macaura was the owner of a timber estate who took out an insurance policy in his own name. Most of the timber was destroyed by fire but Macaura could not claim for loss of goods as he did not have an insurable interest in the timber. It was held that a person cannot claim for loss of goods that are owned by another party. As the company owned the timber, Macaura could not make a claim.

Since Wearboaters Ltd is the new owner of the assets, Mr Frank will not be able to make a claim as they no longer have an insurable interest in the assets. When the assets were transferred a new insurance policy should have been taken out in Wearboaters Ltd’s name. As Mr Frank and Mr Stamp have failed to take out a new insurance policy, they will be deemed to have breached their directors’ duties and will be found personally liable for the loss that has been caused to the business. It cannot be said that Mr Frank and Mr Stamp were promoting the success of the company as required under s. 172 CA 2006 and will therefore be liable for any losses incurred; Re Duomatic[14]. This is an exception to the rule in Salomon that a company is separate and distinct from its members and thus allows the corporate veil to be lifted in certain circumstances. In addition, Mr Frank and Mr Stamp also breached their duty to “exercise reasonable care, skill and diligence” under s. 174 CA 2006 as shown in Secretary of State for Trade and Industry v Goldberg[15]. Although the courts are generally reluctant to lift the corporate veil, they will do so when “common sense and reality demand it”[16] and when “there is a powerful argument of principle for lifting the corporate veil where the facts require it”[17]. It could be said that this is to apply in the instant situation as Mr Frank and Mr Stamp should have insured the assets of the business as they were the first directors of Wearboaters Ltd.

The courts will only pierce the corporate veil in very limited circumstances, however, and if Mr Frank and Mr Stamp can demonstrate that there was no evidence of “fraud, illegality or a sham or if the company is a mere facade concealing the true facts” (ss. 213-215 of the Insolvency Act 1986, s. 993 CA 2006 and s. 15 of the Company Directors Disqualification Act 1986), then it is unlikely that they will be found personally liable; Adams v Cape Industries plc[18]. As noted by Talbot; “veil piecing is not an end in itself but a means to an end”[19]. Therefore, unless the circumstances of the case give rise to fraud or a pre-existing obligation, the courts will be unlikely to pierce the veil in its entirety; Pirelli Cable Holding NV v IRC[20]. It has been said that the courts will “go to great lengths to avoid any obvious penetration of the corporate veil, whilst still making the sort of inquiries that would be satisfied by just such a process”[21]. This prevents the doctrine from being completely undermined, whilst also protecting the public; Millam v Print Factory (London) 1991 Ltd[22]. The veil will only be lifted in exceptional circumstances[23] so as to prevent individuals from being discouraged from investing in companies[24]. Overall, given that it Mr Frank and Mr Stamp appear to have made a genuine mistake in respect of the insurance, it is unlikely that they will be found personally liable. However, they will not be entitled to compensation for any loss suffered.

Bibliography

Text Books

A Dignam and J Lowry. Company Law (Core Text Series). (Oxford: OUP Oxford, 2012).

D French. S Mason. and C Ryan. Mason, French & Ryan on Company Law, (Oxford: Oxford University Press, 2013).

L Jones. Introduction to Business Law. (Oxford: OUP Oxford, 2013).

L Talbot, L. Critical Company Law, (London: Routledge, 2007).

P P S Gonga. A Text Book of Company Law., (London: Chand, 2002).

Journal Articles

S Ghaiwal, S. ‘Chandler v Cape plc: Is there a chink in the corporate veil?’ (2012) Health and Safety at Work Newsletter, vol 18, no 3, 487-499.

V V Watcher. ‘The Corporate Veil’ (2007) New Law Journal, vol. 990, no. 7218, 22-27.

Legislation

Partnership Act 1890

Cases

Adams v Cape Industries plc [1990] Ch 433

CIT v City Mills Distilleries (P) Ltd (1996) 2 SCC 375

Khan v Miah, Ahad and Miah [2001] All ER

Macaura v Northern Assurance Co Ltd [1925] AC 619

Millam v Print Factory (London) 1991 Ltd [2007] EWCA Civ 322

M Young Legal Associates Ltd v Zahid [2006] EWCA Civ 613

Pirelli Cable Holding NV v IRC [2006] UKHL 4

Phonogram Ltd v Lane (1982) QB 938

Re Duomatic [1969] 2 Ch 365

Re English & Colonial Product Co (1906) 2 Ch 435

Salomon v Salomon [1987] AC 22

Sangster v Biddulph [2005] PNLR 33

Secretary of State for Trade and Industry v Goldberg [2004] 1 BCLC 557

Categories
Free Essays

In the “Laval Quartet” series of cases, the Court of Justice has struck the correct balance between protecting the right to collective action under EU law and protecting the rights of free movement of services and establishment. Critically assess.

Introduction

The right to take collective action is a fundamental human right of a worker under European Union (EU) law. Individuals are thus provided with the right to take collective action in the event that there is a conflict of interest, including strike action.[1] This is provided for under Article 28 of the Charter of Fundamental Human Rights of the EU and states that all individuals have a right of collective bargaining and action. Limitations to this right are provided for under Article 52 of the Charter, yet such limitations must be provided for by law and must respect the essence. They must also be subject to the principle of proportionality and necessary to protect the rights and freedoms of others.[2] The freedom of establishment, as set out in Article 49 (ex Article 43 TEC) of the Treaty on the Functioning of the EU (TFEU), restricts Member States from prohibiting the freedom of establishment of nationals from other Member States. Individuals therefore have the right to carry on economic activity in other Member States as self-employed persons and are therefore provided with the ability to manage undertakings with companies or firms as defined under Article 54 of the TFEU.[3] These provisions did not clarify the rights of workers sent to work in another Member State on a temporary basis a lack of consideration as to how the balance between the right to collective action and the right to economic freedoms was to be balanced was not being made.[4] Nevertheless, these issues was addressed by the Court of Justice in 2007 and 2008 when a series of cases came before the Court questioning these provisions. These were the Laval[5] case, the Ruffert[6] case, the Commission v Luxemburg[7] case and the Viking[8] case, also referred collectively as the “Laval Quartet”. This study will critically assess the extent to which the European Court of Justice (ECJ), in the Laval Quartet series of cases, has struck the correct balance between protecting the right to collective action under EU law and protecting the rights of free movement of services and establishment.

The Laval Quartet Cases

It was ruled by the ECJ in the Viking case that collective action relating to the reflagging of a vessel from Finland to Estonia was not excluded from the scope of Article 49 TFEU on the right of establishment. And, that Article 49 is capable of conferring rights on private undertakings which may be relied upon when conflict arises against a trade union. It was also found that a collective action would constitute a restriction on the right of establishment, although it may be justified if there is an overriding public interest to impose such a restriction.[9] This decision appears to provide some flexibility under the provisions, in the event that the public interest requires it and demonstrates that industrial action, that is justifiable and proportionate, can co-exist with free movement rights even if restrictions are being placed upon that freedom. The Court in the Laval case held that Article 56 TFEU and Article 3 of the Posting of Workers Directive restricts trade unions from attempting to force a provider of services established in another Member State to enter into negotiations about rates of pay and working conditions through collective action. It was argued by the Court that the collective action could not be justified since the demands must be transparent so as to not render it difficult to determine the obligations to which he must comply.[10] Arguably, this suggests that if the demands were transparent; it is likely that they would have been justified and therefore permitted. This seeks to ensure fairness is being created and ultimately provides a balance between the two competing interests. It is clear from both of these cases that a balance can be struck between social policy objectives and economic freedoms, by applying the principle of proportionality. It has been said that this concept provides an element of uncertainty, nonetheless, and that in the end this principle will prevent or at least make collective action more difficult.[11] The Court in the Ruffert case held that the demand to pay wages according to a collective agreement did not comply with the Posting of Workers Directive, as interpreted under Article 56 TFEU. This was due to the fact that the wages were not fixed, a requirement under the Directive, and that the collective agreement that was provided for in the Public Procurement Act in Lower Saxony was not applicable.[12] The interrelationship between the social protection of workers and fundamental economic freedoms was examined by the ECH who made it clear that a protection which is not required by the Directive cannot be justified under Article 49 on the worker protection ground.[13]

The Court in the Commission v Luxembourg case held that there was a failure by Luxembourg to implement the Posting of Workers Directive, especially Article 3.10, in a correct manner and that the public policy exception derogated from the freedom of services principle, which must be interpreted strictly.[14] It has been said that the decision in this case emphasises how serious the ECJ is about facilitating the free movement of service provisions under Article 49.[15] This is largely beneficial for businesses and helps advance the economy, yet it could be said that this is at the expense of labour laws.[16] However, because labour laws will be provided with the relevant protections where necessary, it is evident that the balance is not completely one-sided. Arguably, the interpretations of Articles 43 and 56 of the TFEU and the Posting of Workers Directive have been clarified significantly by the ECJ, yet it is debatable whether this removes all of the difficulties.[17] Nevertheless, the relationship between collective action and freedom of establishment and services does appear to be a lot clearer as a result of these decisions and it is now evident that collective action will not always be considered a restriction on the right of establishment and free movement of services. Instead, it will depend largely upon the facts of the individual case and whether such actions can be justified.[18] There is a fairer approach to take and seems the only was an appropriate balance can be attained. The ECJ recognised that the right to take collective action formed an important part of EU law, however, they also identified the restrictions that could apply to this right. The Posting of Workers Directive, which provides protection to employees being sent to work in other Member States, was considered exhaustive by the Court, which means that the provisions under this Directive must be adhered to by all Member States so as to ensure that the rights and working conditions of posted workers can be guaranteed. This is necessary in avoiding the so-called “social-dumping” whereby Foreign Service providers undercut local services providers because of lower labour standards.[19] It was clear that the ECJ took this right extremely seriously and did not tolerate any deviations from this. However, because the material content of the Directive is not harmonised, Member States are free to interpret the content in a way they think fit. This could lead to ambiguity and unfairness since Member States may interpret the Directive in a way that avoids their obligations under the Directive.[20] The ECJ’s interpretation of the Posting of Workers Directive is likely to have serious consequences for Member States who base their regimes on the collective bargaining model. Under this model Member States, such as Sweden and Denmark, provide trade unions with the exclusive responsibility to safeguard flexible levels of wages and employment conditions for all employees.[21]

These are generally safeguarded by trade unions by the threat of collective bargaining, which appears to be prohibited by the ECJ in the Laval Quartet. In order to comply with the Court’s views, Sweden and Denmark have been required to review their legislative provisions so that they comply with the decisions that have been made.[22] Significant debates of the Laval Quartet have also taken place in other Member States who have been forced to amend legislative provisions in accordance with these decisions.[23] The Laval Quartet cases also led to developments in international EU law. The European Court of Human Rights made a number of decisions aimed at protecting the rights to freedom of association, that are provided for under Article 11 of the European Convention on Human Rights. Prior to the Laval Quartet cases, Article 11 acted as a safeguard to trade union members, but left trade unions with a free choice as to how this protection would be achieved. However, in Demir and Baykara v Turkey[24] it was stressed by the Court that the interpretation of the Convention must take international law into account and that the right to collective action has become one of the essential elements of the right to form and join trade unions as provided for under Article 11.[25] However, rhe right to freedom of associated may still be violated if it is deemed necessary in a democratic society and justified on the grounds that it has been prescribed by the law.[26] It is apparent from this decision that the Laval Quartet decisions have had a significant impact upon the way in which EU law is now being interpreted and a number of different strategies have been implemented in recent years to ensure that a balance is capable of being attained between the right to collective action and the right to free movement of services. Hence, it has been said that the decisions have led to better transparency regarding the wages and employment conditions of workers in relation to posted workers.[27] Arguably, it is evident that the Laval Quartet cases where necessary in providing certainty to this area of law, yet it has been said that the Courts have failed to recognise the global nature of trade unions and that a more accurate balance still needs to be attained between “the rights relating to collective action and economic interests in an era of globalization.”[28]

Consequently, this seems to suggest that whilst the global recognition of freedom of movement has been accorded by the ECJ, the obligations of unions has not been recognised on a global level. However, such recognition is necessary in the new era of globalizations and Courts should recognise the global activities of unions and thus assign particular weight to them in the decision making process.[29] In effect, whilst an attempt to strike a balance between the two competing interests was made by the ECJ, it is argued that the Court did not actually go far enough. Still, it is manifest that the relationship between collective bargaining and free movement of services has been in need of clarification for some time, which has now been done to a certain extent. Whether the ECJ placed too much favour upon the employee has been the subject of much debate.[30] It has been argued that the decisions produced by the Court were in fact one-sided and that social policy objectives were set aside by the Court.[31] Whether this is justifiable in light of the unfairness employees were capable of being subjected to, however, is likely since it is an important part of the EU that all barriers to trade are removed.[32] The decisions have therefore been considered ground-breaking on the basis that “the ECJ not only subjected an alleged fundamental right to the Treaty provisions on free movement and made it conditional on the satisfaction of a strict proportionality test, but it also applied those provisions to private parties, i.e. trade unions.”[33] Arguably, a balance does appear to have been struck by the ECJ between the rights to collective action with the right to free movement of services, yet whether this has been achieved on a global level remains a contestable subject. Hence, it was evidenced by the Court that collective action was a fundamental right that forms an integral part of EU Community law.[34] Nonetheless, it was also noted that no rights are ‘absolute’ and that such rights may in fact be subject to certain restrictions. In exercising this right, it will be necessary to demonstrate that the restriction of the right to free movement of services can be justified. This flexibility enables a balance to be struck so that each case can be decided on its own individual facts and circumstances. Conversely, it has been argued that whilst the collective action does need to be justified on a case by case basis “those exercising a fundamental freedom of establishment and provision of services did not have to justify their actions in Laval and Viking.”[35] In effect, the extent to which a balance is actually being struck is therefore questionable and it remains to be seen whether further issues arise in the future.

Conclusion

Overall, it is evident that the relationship between the right to collective action and the right to free movement of services was in need of clarification since both interests frequently conflicted. Consequently, it was unclear how EU law was to be interpreted in the event of such confliction. The ECJ does appear to have provided some clarity to this area of law when the Laval case, the Ruffert case, the Commission v Luxemburg case and the Viking case all came before the Court in 2007 and 2008. The so-called “Laval Quartet” now provides a basis to determine how these rights can be enforced and have since led to many States to alter their own national laws to take these new decisions into account. The cases do appear to have clarified the position in respect of Articles 43 and 56 of the TFEU and the Posting of Workers Directive, yet much critique still surrounds the approach that was taken by the ECJ. Consequently, it was made clear by the ECJ that the right to collective bargaining was a fundamental right that must be adhered to by all Member States and that if the right conflicts with the right to free movement, it should only be restricted if it can be justified as being in the public’s interest. The ECJ attempted to strike a balance between the two competing interests, yet it remains to be seen whether the underlying issues have been completely eradicated in the new era of globalization.

Bibliography

Books

B Bercusson., European Labour Law, (Cambridge University Press: Cambridge, 2009).

G Brochmann and E Jurado., Europe’s Immigration Challenge: Reconciling Work, Welafre and Mobility, Political Science: London, 2013).

R Painter., Cases and Materials on Employment Law, (Oxford University Press, 2012).

Journals

B Simpson., ‘Collective Action and Fundamental Freedoms in Europe: Striking the Balance’ Industrial Law Journal, Volume 40, Issue 1, 109-111.

European Commission., ‘Freedom to provide services/Freedom of establishment’ (2014) [16 April, 2014].

E Albin., ‘Union Responsibility to Migrant Workers: A Global Justice Approach’ Oxford Journal of Legal Studies, Volume 34, Issue 1, 133.

European Commission., ‘Posted Workers’ (2012) [16 April, 2014].

Eurofound., ‘Right to Take Collective Action’ (2007) [16 April, 2014].

I Picard., ‘Collective Action vs Free Movement; The Laval and the Viking Cases’ (2009) 164 [18 April, 2014].

J E Dolvic., ‘Free Movement, Equal Treatment and Workers’ (2009) Industrial Relations Journal, Volume 40, Issue 6, 491-509.

J Malmberg and L Smajada., ‘The Impact of the ECJ Judgements on Viking, Laval, Ruffert and Luxembourg on the Practice of Collective Bargaining and the Effectiveness of Social Action’ (2010) Employment and Social Affairs, 16 [16 April, 2014].

K D Ewing., ‘The Dramatic Implications of Demir and Baykara’ (2010) Industrial Law Journal, Volume 39, Number 1, 2-51.

K Lagercrantz., ‘Free Movement of Services and Non-Discriminatory Collective Action’ (2011) [17 April, 2014].

M Bell., ‘Understanding Viking and Laval: An IER Briefing Note’ (2008) Liverpool Institute of Employment Rights, [18 April, 2014].

N Reich., ‘Free Movement v Social Rights in an Enlarged Union – The Laval and Viking Cases before the ECJ’ German Law Journal, Volume 9, No 2, 160.

S Guadagno., ‘Viking, Laval and All That: Consequences of ECJ Ruling and Developments in the Area of Industrial Conflict in an Enlarged EU’ (2012) Labour Studies, [18 April, 2014].

T Schulten., ‘Towards a European Minimum Wage Policy: Fair Wages and Social Europe,’ (2008) European Journal of Industrial Relations, Volume 14, Issue 4, 421-441.

Case Law

C-319/06 Commission v Luxembourg [2008] ECR I-4323

C-341/05 Laval un Partneri [2007] ECR I-117767

C-346/06 Ruffert [2008] ECR I-11767

C-438/05 The International Transport Workers Federation and the Finnish Seamen’s Union [2007] ECR I-10779

Demir and Baykara v Turkey Application No 34503/97, 12 November 2008

Categories
Free Essays

To what extent has the European Court of Human Rights (ECHR’s) case law recognised and protected the right not to be discriminated against on the ground of sexual orientation, in relation to marriage.

Abstract

There has been much discussion as to whether the ECHR’s attempts to recognise and protect the right not to be discriminated against on the ground of sexual orientation have been successful. This is because, although the UK has in recent years made positive changes towards the equality of same-sex couples, discrimination is still prevalent in many other countries. This study aims to identify the extent to which such discrimination still exists and consider how effective the ECHR has been in preserving these rights.

Introduction

It will be examined the extent to which the European Court of Human Rights (ECHR’s) case law has recognised and protected the right not to be discriminated against on the ground of sexual orientation. This will be examined in respect of same-sex marriages and by considering whether same-sex couples are still being discriminated against or whether the ECHR has been successful in helping to protect the interests of such couples. Various case law of the ECHR will be examined and a review of the academic literature in this area will be conducted. These will be acquired by accessing relevant text books, journal articles, online databases and governmental reports. Once all the applicable information has been gathered an appropriate conclusion will then be drawn demonstrating that the ECHR has made significant attempts to protect the rights of individuals when it comes to their sexual orientation. However, it will be demonstrated that whilst this has proven successful in the UK, other countries are still reluctant to employ the ECHR’s approach.

Literature Review

The Marriage (Same Sex Couples) Act 2013 came into force on the 13 March 2014 to legalise same sex marriages as this was previously prohibited under section 11 (c) of the Matrimonial Causes Act 1973. This prohibited led to much debate and controversy for a number of years as it was felt that same-sex couples were being discriminated against and that their right to equality, as provided for under Article 14 of the European Convention of Human Rights 1951 (ECHR), as incorporated by the Human Rights Act 1998, was being violated. This controversy occurred regardless of the fact that civil partnerships were introduced under the Civil Partnership Act 2004 since it was still being argued that same-sex couples entering into a civil partnership were not provided with the same rights and responsibilities as heterosexual couples under a civil marriage. Inequality therefore still existed as the status of marriage was not capable of being acquired by same-sex couples. This was considered highly detrimental and it was argued by Francoz-Terminal that; “if at one time homosexuality was considered as a choice that implied no procreation, nowadays legal systems have had to face a new factual reality.”[1] This highlights the importance of equality and it seems as though there has never been more of a pressing need for the provisions contained in the ECHR to be implemented. Not all agree that same sex-couples should have been permitted to marry rather than merely enter into a civil partnership, yet because of the increasing recognition of same-sex couples in many European countries it was evident that the permitting of gay marriages have been relevant when discussing reforms in England and Wales.”[2]

There was clearly a pressing need for reform in this area since the 2004 Act had proven ineffective in providing same-sex couples with equal rights to heterosexual couples when it came to marriage. Nevertheless, whilst it was argued by some that civil partnerships were simply marriages under a different name, this was not entirely true. This is because the equal rights and responsibilities that were given to heterosexual couples were not being given to same-sex couples. For example, same sex couples were not allowed to get married in a church or other religious on the basis that these types of places are prohibited from conducting civil partnership ceremonies under the law. This was considered highly unfair given that some ministers were willing to marry same-sex couples; however they were prevented doing so by law. Modern beliefs that all people should be treated equally were therefore not being ascertained and all of the traditional views of marriage were upheld. Not all agree with the new changes, however, as churches can still refuse to marry same sex-couples which leaves same-sex couples open to further discrimination.[3] Yet, it is believed that the law should not restrict a person’s choice and that churches ministers should still have the ability to choose whether or not they would like to marry same-sex couples. This provides a fairer system overall because although some churches will permit same-sex marriages whilst others will not, the fact that marriages can be conducted in churches in the first place is a major step forward.[4]

The debate as to whether same-sex marriages should be permitted has been going on for some time, and the courts have attempted to protect an individual’s right not to be discriminated against on grounds of sexual orientation on marriage. In The Attorney General for Ontario v M and H[5] it was held by the court that; “provincial governments are to take legislative action to ensure that individuals in same-sex relationships are afforded equal treatment with others in marriage-like relationships.” Regardless of these views, it wasn’t until the ECHR began to recognise such rights that Parliament decided to take action. In Schalk v. Kopf v. Austria[6] it was made clear by the ECHR that; “a failure by a state to allow same-sex couples to marry amounted to a violation of the article 12 right to marry.” This decision highlighted the need to make amendments to section 11 (c) of the 1973 Act so that same-sex couples were not being discriminated against on the basis of their sexual orientation when it came to marriage. It was quite surprising when the 2013 Act was implemented given the widespread concerns that existed and as put by Norrie; “the trouble with gay and lesbian people is that they are never satisfied. Give them a crumb and they want a slice of bread. Give them a slice of bread and they want a full meal.”[7] Nevertheless, although changes were made under the 2004 Act to provide same sex couples with equal rights to heterosexual couples, the ECHR did not believe that this went far enough and still found that discrimination subsisted.

It could be said that civil ceremonies were the same as marriages, yet because the nature of the ceremonies were different as well as the rights that were provided to married couples, it was clear that further changes were needed if complete equality was to be attained. It was argued by Eireann that the 2004 Act was akin to marriage in that it allowed same-sex couples to “formally declare their allegiance to each other, register their partnership and commit themselves to a range of duties and responsibilities.”[8] On the other hand, because equality of choice and opportunity was removed from same-sex couples, their rights under the ECHR were not being fully recognised[9], which is why drastic changes to the law were implemented in 2013. Whether all 47 countries will follow the ECHR’s decision in Schalk is questionable[10], given the political backlash that some countries will be subjected to. Although the ECHR is of the view that same-sex marriages should be permitted, they are also aware of the fact that not everyone agrees with this position. As a result, they made it clear in their judgment that the choice to marry same-sex couples should still remain with the minister conducting the ceremony and that the rights of ministers should also be upheld.[11] Therefore, whilst it is important that the rights to equality are being maintained when it comes to the marriage of same-sex couples, it is also important that the rights of ministers not to be discriminated against if they choose not to marry such couples are also preserved.

The ECHR has made great attempts to recognise and protect the rights of individuals not to be discriminated against on grounds of sexual orientation over the years, which is enunciated in various case law decisions. An example of this can be seen in the Niemietz v Germany[12] case where it was made clear that the right to a private life under Article 8 of the ECHR included the right to establish relationships with other human beings regardless as to whether they were of the same sex or not. Therefore, the fact that there were laws against same-sex marriages demonstrated that the right to a private life under this Article was also being violated. This was also identified in Bensaid v United Kingdom[13] where the court held that “gender identification, name and sexual orientation and sexual life” were all capable of protection under Article 8. Arguably, the ECHR has been a pioneer for same-sex relationships for some time and has clearly made significant attempts to eradicate discrimination on the basis of sexual orientation. In Mata Estevez v Spain[14] the Court held that same-sex relationships could be protected by the right to respect for private life, although it was held that homosexual relationships could not be protected by the right to a family life. However, this has since been resolved in the Schalk case above. The Schalk case is a major development within this area of the law, yet because many states have not yet legalised the marriage of same-sex couples it is manifest that the development of this area does remain ongoing.

It remains to be seen what changes, if any will be made by other Member States because although this was a positive decision inferences were not drawn by the Court. This leads to confusion as to whether puzzling all States should follow suit and as has been noted; “the door may have been unlocked but remains closed (or half open) for now?”[15] Consequently, even though same sex marriages are now being permitted in the UK, inequality will still exist by the ability for ministers to refuse to marry same-sex couples. Whether this will ever be changed is doubtful since all individuals still have the right to freedom of belief and religion under Article 9 of the ECHR. Hence, there will still be many churches that will refuse to allow such marriages to take place, yet nothing can be done to stop this as this too will result in a violation of human rights. At present an attempt to strike a balance between these competing interests has been made and it is unlikely that discrimination on the grounds of sexual orientation with regards to marriage will ever be fully eradicated. Still, the rights same-sex couples have to marry has increased substantially over the years, though there will continue to be different views in relation to the acceptance of such marriages by society. Every person has a right to have an opinion and by forcing ministers to conduct same-sex marriages would seriously contravene. In addition to the UK, Belgium, the Netherlands and Canada, also allow same-sex marriages to be conducted, which demonstrates the movement that is being made towards achieving greater equality across the globe.

This is believed highly desirable and as noted by the court in Fourie and Another v Minister of Home Affairs and Others;[16] “the limitation of marriage to opposite sex couples was unconstitutional.” Same-sex marriages should therefore be recognised in all countries as societal views are continuously changing and same-sex couples are starting to become the “norm.” It is questionable whether this will be implemented by all and as stressed by Herring; “the tensions between the traditional family ideal of what a family should be like and the realities of family life today indicate that family law is quite different from family law 30 years ago and where family law will be in 30 years time is hard to predict.”[17] Now that same-sex couples are able to marry under the 2013 Act, such couples are now able to claim a family status. This is necessary given that there is “no institution of a de facto family” as pointed out in McD v L & Another.[18] It is thus in the best interests of a child to be served in a marriage-based family and because same-sex couples can adopt, it is necessary for them to be able to marry also; N and Another v Health Service Executive & Ors[19] Nevertheless, because same-sex marriages are not permitted in all countries, such as France, it cannot be said that the ECHR’s approaches have been completely successful. It was recognised by Francoz-Terminal that the emergence of same-sex families has been challenging for French Law, yet it has been said that the courts do actually seem prepared to meet these challenges.”[20]

Attitudes towards same-sex marriages have changed considerably over the years and are likely to continue to do so until such marriages are considered a normal part of society. As a result, “the married family can no longer be assumed to be the near-universal institution of civil society it once was.”[21] Because of the changes that continue to be made within society, it is vital that the law is able to keep abreast with such changes which can be achieved by making sure individuals are not discriminated against on the basis of their sexual orientation. Conversely, it has been said that marriage is being undermined as a result of this,[22] yet the courts should not be able to interfere in one’s beliefs as shown in Burden and Burden v UK.[23] The right to marry is enshrined in human rights law and is thereby considered a “fundamental part of the freedom of the individual to form personal relationships according to his or her own inclination.”[24] Resultantly, individuals should have the right to marry whoever they wish regardless as to whether they are of the same-sex or not, though it remains to be seen whether other European countries will adopt the same approach as the UK in protecting such rights.

Conclusion

Overall, it is evident that the ECHR has recognised the rights of same-same couples for a number of years and has made great attempts to recognise and protect the right not to be discriminated against on grounds of sexual orientation. Nevertheless, it is only recently that the UK has implemented changes to reflect the stance taken by the ECHR by enacting the Marriage (Same Sex Couples) Act 2013. This Act makes it permissible for same sex couples to marry in religious settings. Although the Civil Partnership Act 2004 was said to provide similar rights, these were not considered enough and same-sex couples were still being subject to much discrimination. Since the 2013 Act was implemented, greater equality is now capable of being attained in the UK. The ECHR in Schalk is considered a major breakthrough in this area as this decision is what sparked the introduction of the new law. Nevertheless, because not all countries have followed the same approach as the UK, the ECHR still has some way to go in attaining equality for all. This is likely to prove difficult given the divergence of opinions that exist in this area, yet because the marriage of same-sex couples is becoming the ‘norm’, it is likely that other European countries will follow suit. The fact that ministers are able to choose whether or not to conduct same-sex marriages also ensures that their rights are also being protected. This maintains a balance between the rights of individuals not to be discriminated against on grounds of sexual orientation with the rights of belief and opinion.

Bibliography

Books

Herring, J. Family Law, Longman, 4th Edition, (2009).

Lowe, N. and Douglas, G. Bromley’s Family Law, OUP Oxford, 10th Edition, (2006).

Probert, R., Family Law in England and Wales, Kluwer Law International, (2011).

Standley, K. Family Law, Palgrave MacMillan, 7th Edition, (2010).

Troyer, L. Church in Society, Xulon Press, (2011).

Journals

C F Stychin, ‘Not (Quite) a Horse and Carriage: The Civil Partnership Act 2004’ (2006), Feminist Legal Studies, Springer 2006, Volume 14, Number 1, 79-86.

Doughty, S., Conservative UK: Most Britons Still Oppose Gay Marriage, The Daily Mail, (2011), Available [Online] at: http://www.dailymail.co.uk/news/article-2040783/Conservative-UK-Most-Britons-oppose-gay-marriage.html

Eireann, D., Parliamentary Debates, Volume 697, Number 1, (2009), Available [Online] at: http://debates.oireachtas.ie/Xml/30/DAL20091203.PDF

Francoz-Terminal, L, From same-sex couples to same-sex familiesCurrent French legal issues, Child and Family Law Quarterly, Issue 4, [2009] CFLQ 485, (2009).

Matheson Ormsby Prentice, Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010, Client Update, (2010), Available [Online] at: https://marketing.mop.ie/rs/vm.ashx?ct=24F76A1FD4AE4EE0CDD881AED12B921991907ABFDA9818CF5AE175767CEAC80BDF417

Norrie, K. Two by Two, by Two, The Journal Online, The Members Magazine of the Law Society of Scotland, (18 October, 2010), Available [Online] at: http://www.journalonline.co.uk/Magazine/55-10/1008759.aspx

Peroni, L., Gay Marriage: Unlocking the Door but Keeping it ClosedStrasbourg Observers, (25 June, 2010), Available [Online] at: http://strasbourgobservers.com/2010/06/25/gay-marriage-court-unlocks-the-door-but-keeps-them-closed/

Probert, R. and Barlow, A. Displacing Marriage – Diversification and Harmonisation Within Europe, Child and Family Law Quarterly, [2000] CFLQ 153, Issue 2, (01 June, 2000).

Ross, T., Archbishop Attacks Cameron’s ‘Gay Marriage’ Plan, The Telegraph, (2011) Available [Online] at: http://www.telegraph.co.uk/news/uknews/8809548/Archbishop-attacks-Camerons-gay-marriage-plan.html

Rothwell, R. Why Civil Partnerships for Heterosexual Couples Could be a Good Idea, The Law Society Gazette, (11 August, 2010), Available [Online] at: http://www.lawgazette.co.uk/blogs/news-blog/why-civil-partnerships-heterosexual-couples-could-be-a-good-idea

Sohrab, J., Recognising Aquired Gender, New Law Journal, 154 NLJ 1018, Issue 7135, (02 July, 2004).

Tatchell, P., in BBC News, Gay Church ‘Marriages’ Set to Get the Go-Ahead, BBC, (14 February, 2011), Available [Online] at: http://www.bbc.co.uk/news/uk-12442375

The Office for National Statistics, Marriages, (February 11, 2010), Available [Online] at: http://www.statistics.gov.uk/cci/nugget.asp?id=322

Wintemute, R. Consensus is the Right Approach for the European Court of Human Rights, The Guardian, (12 August, 2010), Available [Online] at: http://www.guardian.co.uk/law/2010/aug/12/european-court-human-rights-consensus

Cases

Bensaid v United Kingdom (2001) 33 EHRR 205

Burden and Burden v UK [2008] All ER (D) 391, Application No 13378/05; (2008) 47 EHRR 857

Fourie and Another v Minister of Home Affairs and Others Application No. 56501/00, 10 May 2001

Niemietz v Germany (1992) 16 EHRR 97

Mata Estevez v Spain Application No. 56501/00, 10 May 2001

McD v L & Another [2009] IESC 81

N and Another v Health Service Executive & Ors [2006] I.E.S.C. 60

Schalk v. Kopf v. Austria [2010] ECHR 30141/04 (25 June 2010)

The Attorney General for Ontario v M and H [1999] 2 SCR 3

Categories
Free Essays

‘In the light of the decision of the European Court of Human Rights in Gillan v United Kingdom on stop and search powers under the Terrorism Act 2000, the analogous powers of stop, question, search and detention in Sched. 7 of that Act are arguably also in breach of several Convention Rights.’

Introduction

The police powers of stop and search are considered to be one of the most controversial police powers. They have been criticised in a variety of contexts and legislation, e.g. for their inefficiency to combat crime, and for their arbitrary application. The stop and search powers under s 44 of the Terrorism Act 2000 came under attack in Gillan v UK (“Gillan”), where the ECHR held that the police powers of stop and search were not in compliance with Article 8 ECHR (right to privacy), and may infringe Article 5 (deprivation of liberty). Sched. 7 of the Terrorism Act 2000 deals with border searches and questioning of suspects, and gives officials the power to stop, question and detain suspects for the purpose of determining whether they may be involved in the acts of terrorism. As with s 44 of the Terrorism Act 2000, there is no need for officials to have a ‘reasonable suspicion’ when searching or questioning someone.
This essay will argue that the statement above is essentially correct, i.e. after the decision in Gillan, there is every reason to suppose that powers contained in Sch. 7 of the Terrorism Act are also in breach of the ECHR. This is so despite the decision in Beghal v DPP, which expressly held that Sched. 7 of the Terrorism Act 2000 is not incompatible with Article 6 or 8 ECHR. Three main arguments can be put forward in support of this view: the broad powers contained in Sched. 7, which can potentially infringe the ECHR rights, the introduction of the Anti-Social Behaviour, Crime and Policing Bill 2013-14, which makes changes to the Sched. 7, i.e. the realisation by Parliament of the problem, and the criticism of the court’s reasoning and decision in Beghal v DPP.
It seems evident that the present arrangements of the Sched. 7 are inappropriate, and do not provide sufficient guarantees against arbitrary power of the state. Arguably, Sched. 7 contains very broad powers, which can match those of s 44 of the Terrorism Act 2000. Sched. 7 provides powers to stop, search and question, even though these powers may only be exercised on a limited class of people, i.e. those in a designated area, e.g. in an airport. S 2 of Sched. 7 states that ‘an examining officer may question a person…for the purpose of determining whether he appears to be a person falling within s 40 (1) (b), i.e. those which could probably be connected with terrorism activities. S 8 of the Schedule concerns searches and empowers an officer to search a person or anything he has with him. Further sections also deal with detention of property found during a search.
Although Lord Carlile stated that “a schedule [7] is an essential part of Britain’s border security”, and “it is a necessary and proportionate provision, [which] plays an important part in protecting national security”, Ratna Lachman said that such searches are often based on stereotyping and more checks and balances should in place. David Anderson QC also emphasised Sched. 7’s negative impact “on some Muslim communities”, and made a series of recommendations. There is some research support for his proposition. For example, Choudhury and Fenwick found the same negative effect of Sched. 7 on Muslim communities in England. Choudhury and Fenwick carried out focus group discussions as part of their study. They found that, with regards to Sched. 7 (stopping and questioning individuals at airports), many people reported being stopped and questioned on completely irrelevant issues, with some of them being provocative. Because police officers are trying to discern whether an individual has connections with a terrorist activity, Choudhury and Fenwick reported individuals being questioned on their religious and political beliefs, and questions about personal activities are not uncommon. Understandably, this may provoke anger and misunderstanding among Muslim communities, especially when they perceive that they are being targeted as a result of their looks, i.e. being dressed in a religious dress, and consequently as a result of their religious beliefs. In Choudhury and Fenwick’s study, one interviewee even reported that the information that officers were gathering was used to build a profile of Muslim communities, so that they can be controlled more efficiently by authorities. Evidently, this means that not only Article 5 and 8 of the ECHR can potentially be violated, but also Article 14. The implications of Article 5 ECHR’s engagement are also evident with regards to Sched. 7. Article 5 of the ECHR states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. These legal qualifications, arguably, do not apply to Sched, 7, as the powers inherent in the provision are too broad and not altogether clear to be regarded as those prescribed by law, given that any law must be in accordance with the rule of law principle.
Despite the Code of Practice, which expressly forbids searches to be conducted based on a person’s religious or political affiliation or ethnic background, it is clear that there is a risk of discriminatory treatment here, and more accountability and greater transparency are needed. Even the previous domestic decision of R (Gillan) v Metropolitan Police Commissioner could be said to be based on unclear principles, and the judges may tried to ‘read down’ relevant provisions in this case. For example, it has been held in that case that no evidence was produced to say for sure that the powers rendered the public vulnerable to biased and arbitrary interference by officials. However, if no reason or intent is specified in the legislation which sets down the powers, it is only too evident that such powers are too broad and are bound to be used in such an arbitrary manner at least once in a while.
Moreover, the judgement in Gillan expressly states that an officer must first suspect someone of being a potential terrorist, and, as Sanders, Young and Burton argue, this is not “demanding requirement”. Thus, it may be argued that there is no real reason why that requirement (‘reasonable suspicion’) should not also be applicable to Sched. 7, which concerns the questioning and stopping people near the border. The designated area and the number of people may be smaller under Sched. 7, but the principle, surely, remains the same. This is especially so when we consider the fact that not answering questions or submitting to search is an arrestable offence, with the punishment upon conviction of three months’ imprisonment. Terrorism stop and search powers were also discussed by Lord MacDonald in his report to Parliament. His Lordship stated that stop and search powers must be limited to certain place and time, and, it is best if they are linked “appropriately to specifically anticipated terrorist activity”. However, it could be argued that when Sched. 7 is used the officers are hardly restricted to a terrorist activity and its anticipation, and the Code of Practice which specifically urges officers not to stereotype, does little in practice to combat the problem.
Sched, 7 involves the stopping and questioning of someone which, given the broad powers of the section, may be carried out on officers’ whim. However, the questioning to discern political and religious motivations of people, and its possible challenge under Article 8 has been emphasized elsewhere. In particular, some say that it may not be right to draw terrorism connotations from people’s religious and political views. Most Commonwealth countries use the requirement of “underlying purpose” to discern a terrorist activity. However, as David Anderson argues, this is not included in any UN definition, and it may endanger the suspect’s free speech rights and encourage racial tensions. Kent Roach also states that “the political, religious or other motives of the perpetrators should not excuse terrorism; conversely they should also not constitute part of the crime of terrorism”.
The final point is that the use of stop and search under the Terrorism Act 2000 damages the relationship between minority ethnic communities and the police. For example, the Police Complaints Authority found that “black people experience a different kind of dissatisfaction about stop and searches than do white people, and that the incidents that they are complain about are intrinsically different.” Thus, in terms of stop and search powers, those from ethnic minority backgrounds feel differently (more sensitive) about being stopped and questioned. In relation to discriminatory stopping and questioning, which may come within the remit of Article 14, the Roma Rights case provides an illustration. This case concerned immigration control at Prague airport. Many of those asylum seekers who were Roma (and also Czech citizens) were refused their application to stay in the UK. It has been alleged by the claimants that as a result of their origin they were questioned more intensively by the authorities and they had to provide more substantial evidence to prove their claims in comparison to those who were not Roma. In that case it was decided by the court that a policy of being more suspicious towards potential Roma immigrants, which immigration officers frequently practiced, violated rules against unlawful discrimination enshrined under the Race

Relations Act.

The same discriminatory treatment may be seen in the application of Sched. 7 if the power under Schedule is used in a discriminatory manner. This lack of confidence in the police may deepen the desire of people to find their rights violated when they are being stopped, questioned or searched. This, in turn, can lead to an increase in the number of the ECHR claims brought.
Therefore, the main criticism of powers under s 44 of the Terrorism Act 2000 at issue in Gillan i.e. that their use was discriminatory, can apply to Sched. 7, regardless of the fact that the latter legislation is not used as broadly as s 44 of the Terrorism Act 2005 was used. However, even this proposition could be challenged as evidence shows that Sched. 7 is used on a massive scale in the UK, any other stop and search power that was in force before its enactment. For example, it was found that there were 56, 257 examinations involving powers under Sched. 7 in the year 2012 in England, Wales and Scotland. Moreover, around 2, 265 of these examinations lasted for more than an hour.
Important consideration is also a number of arrests that were made pursuant to Sched. 7. A recent report by the Home Office showed that there are about 20 arrests annually (2004-2009 figures), and the number of convictions is approximately 7 a year. Given so few arrests and the potential of Sched. 7 to infringe the multitude of the Convention Rights daily, it is questionable whether it is proportionate and in the public interest to maintain Sched. 7 without further amendments. Although the guidance to the Terrorism Act 2000 states that Sched. 7 “should only be used to counter terrorism and may not be used for any other purpose”, it is still unclear how far this Schedule is used to gather intelligence and control the movement of activist and researchers working in foreign countries. In that way, Sched. 7 may actually be more restrictive than any other power, as it specifically targets tourists and travellers. These allegations are not unfounded, as it has been reported by Corporate Watch in February 2013 that their personnel of researchers was targeted (5 times overall) under Sched. 7 of the Terrorism Act 2000, and the questioning by officers did not allegedly involved the issues of terrorism, but concentrated on protest groups and campaigns.
The Joint Committee on Human Rights also pointed out that Sched. 7 can potentially infringe both Articles 5 and 8 of the ECHR. In particular, the powers in Sched. 7, especially those requiring individuals to be stopped, detained and be questioned on their political and religious activities, were deemed to be too wide and to lack sufficient safeguards. Thus, in August 2013, the UK’s Independent Reviewer of Terrorism Legislation proposed a separate investigation into the questioning of David Miranda at Heathrow. It seems that what followed were Clause 132 and Schedule 8 of the new Anti-Social Behaviour, Crime and Policing Bill. The amendments will introduce restrictions to the existing power, and extend the already existing safeguards. However, it should be noted that, even if this Bill comes into force, important procedural safeguards will still be lacking, such as the requirement of reasonable suspicion. It is this requirement which may enable the powers to come within the definition of ‘prescribed by the law’ in the Convention Rights. Such organisations as Liberty are also of the same opinion, stating that the new powers would still “come nowhere near addressing the dangerous breadth and intrusiveness of these [already existing] powers.”
Gillan case stems from the previous domestic decisions in R (Gillan) v Metropolitan Police Commissioner. The case involved two people (one of whom was a journalist) who were stopped and searched during an arms fair. In domestic courts no incompatibility of the provisions in the Terrorism Act 2000 with the ECHR was found. Beghal v DPP involved a French national, who, while returning from France (where her husband was a convicted terrorist), was stopped and searched by authorities in the UK. Although in Gillan it was held that there was a breach of Article 8 following the use of stop and search powers, in Beghal v DPP, Sched. 7 was found to be not incompatible with Article 8. Arguably, it is difficult to distinguish Beghal v DPP and Gillan cases, and find consistency in the approach of judges. The court in Beghal v DPP stressed the underlying purpose of the Sched. 7, which is to protect the public from terrorism. However, it could be argued that the same purpose existed when s 44 of the Terrorism Act 2000 was still in force and produced the controversy in Gillan. Also, although the court in Beghal v DPP found the absence of requirement of ‘reasonable suspicion’ both explicable and justifiable, even this reasoning can be questioned, because apart from international character of the Sched. 7, there seems to be no major difference between the two provisions.
Article 8 (2) states that an interference with a suspect’s private life must be in accordance with the law. That law, supposedly, must be both accessible and compatible with the requirements of the rule of law. However, as in Gillan case and s 44 of the Terrorism Act 2000, in Beghal v DPP and Sched. 7 considerations, more emphasis should have been drawn to the fact that authorisation of search and questioning must not be ‘necessary’ for the officers to proceed. Without this safeguard of ‘necessity’, the powers under Sched. 7 are also vulnerable to abuse.
The most telling sign, however, that Beghal v DPP decision may not be altogether correct is the present Anti-Social Behaviour, Crime and Policing Bill before Parliament. If successful, the Bill will make changes to Sched. 7 and make powers of stop and search less biased.
In conclusion, it can be stated that there is every reason to suppose that in the light of Gillan v United Kingdom decision, the powers of stop and search contained in Sched. 7 are also in breach of several Convention Rights. There are few major differences between the powers contained in Sched. 7 and s 44 of the Act, and in terms of their broad application, and potentially draconian sentences when breached, they are the same. Therefore, there is no reason why Sched. 7 should remain unamended in the light of the amendment and further provisions enactment concerning s 44-46 of the Terrorism Act 2000. This is especially so since both of these measures can be used in a discriminatory manner, infringing not only Articles 8 and 5 ECHR, but also Article 14. The decision reached in Beghal v DPP can also be criticised for failing to draw important similarities with Gillan case.
Moreover, it seems that the idea that Sched. 7 can potentially breach several Convention Rights following Gillan case is becoming uncontroversial, since the Anti-Social Behaviour, Crime and Policing Bill, which purports to make changes to Sched.7 and make the powers therein less arbitrary is already in the reporting stage of the second house in Parliament. It can only be hoped that such provisions will be enacted. This will be a step in the right direction towards ensuring the protecting of human rights, while, at the same time, ensuring the safety of the population.

Bibliography

Books/Articles

Anderson D, ‘Shielding the Compass: How to Fight Terrorism Without Defeating the l
Law’ (2013) 3 European Human Rights Law Review 233

Ashworth A and Redmayne M, The Criminal Process (4th Edition, OUP, 2010)

Buxton R, ‘Terrorism and the European Convention’ (2010) Criminal Law Review 533

Cape E, ‘The Counter- Terrorism Provisions of the Protection of Freedoms Act 2012: Preventing Misuse or a Case of Smoke and Mirrors?’ (2013) 5 Criminal Law Review 385

Dennis I, The Law of Evidence (5th Edition, Sweet & Maxwell, 2013)

Emmerson B, Ashworth A and Macdonald A, Human Rights and Criminal Justice (3rd Edition, Sweet & Maxwell, 2012)

Lustgarten L, ‘The Future of Stop and Search’ (2002) Criminal Law Review 603

MacDonald K, ‘Review of Counter-Terrorism and Security Powers’ (2011) (Paper presented to Parliament, January, 2011) accessed 19 January 2014

Miller J, Bland N and Quinton P, The Impact of Stop and Searches on Crime and the Community (Home Office, 2000)

Roach, K, ‘The Case for Defining Terrorism With Restraint and Without Reference to Political and Religious Motive’ in Andrew Lynch et al (ed.), Law and Liberty in the War on Terror (Federation Press, 2008)

Sanders A, Young R and Burton M, Criminal Justice (OUP, 2010)

Reports/Hansards
Choudhury T and Fenwick H, ‘The Impact of Counter-Terrorism Measures in Muslim Communities’ (2011) Equality and Human Rights Commission Research Report 72
Liberty, Briefing on Schedule 7 of the Terrorism Act 2000 in the Anti-social Behaviour, Crime and Policing Bill (Liberty Publications, October 2012)
Liberty, Human Rights Review – Article 5, Deprivation of Liberty (Liberty Publications, 2012) accessed 21 January 2014
House of Lords, Deb., 14 January 2014, col. 99
accessed 16 January 2014
Police Complaints Authorty, Stop and Search Complaints 2000-2001, Summary Report (Police Authority Publications, 2004)
Legislation
Anti-Social Behaviour, Crime and Policing Bill (2013-2014)accessed 16 January 2014
Websites
Corporate Watch, ‘Schedule 7 of the Terrorism Act 2000: A Police Snooping Tool to Protect Private Profit’(Corporate Watch Online Publications, February, 2013)accessed 19 January 2014
Mahmood S, ‘Home Office Pledges to Tackle UK Border Discrimination’ (BBC News, 14 January 2014) accessed 19 January 2014

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Free Essays

Women Organizers in the Civil Rights Movement

Women organizers in the Civil Rights movement (1950’s-1960’s) Women have always been regarded as key parental figure in raising and developing children in the society. During the period of 1950 to 1970, many parts of the world were marred with civil rights movement. The movements were characterized with protests and civil resistance complaining about discrimination economic and political self sufficiency. Women took up the initiative to participate in these movements. This situation later led to serious confrontation between government authorities and activists.

Thousands of people took part in the civil right movement of that period especially in the United States. The key leaders of the campaign, include; Martin Luther King, Malcolm X, Stokely Carmichael, Rosa Parks, James Meredith and Medgar Evers, played crucial roles for of the achievements of the Civil Rights Movement in America[1]. This paper covers factors that motivated women, the contributions they had, roles they played as well as the problems they encountered during the civil rights movement of 1950’s and 1960’s.

Most of the women who were involved in these movements were born during the slavery period, hence the pain and suffering they experienced at that time stimulated them to speak out against oppression. One of the most vocal women who started to speak against oppression was Wells Barnett. She began her struggle in 1909, by travelling abroad to seek international attention on this issue[2]. She also formed National association for the advanced of Colored people. Her efforts were later joined by the struggle for gender sensitization by Mary Church Terrell. She was very vocal and spoke about segregation of the blacks in public eating joints.

She led most of the citizens to boycotts and picketing to attract attention to racial injustice[3]. She established the black club movement that led to the formation of National Association of Colored Women similar to that of Barnett. She was also very instrumental in bringing up socially progressive institutions such as mother clubs and nursery schools. The three year struggles with authorities bow her fruits when the Supreme Court ruled that segregation of public eating places was unconstitutional[4]. Another very instrumental lady in these movements was Mary McLeod.

She often worked together with both Terrell and Barnett. Mary became the president of National Association of Colored Women[5]. Being at the supreme of the organization, she became a good friend of Sara Roosevelt the mother of Franklin Roosevelt mayor of New York. She used the good rapport she had with this politically influential family to continue her struggle for social justice of the black[6]. She was later appointed to be the head of National Youth Council by President Roosevelt. Eleanor Roosevelt took the same path after being inspired by Terrell and Mary McLeod.

After her husband was elected as the 32nd president Eleanor became instrumental in fighting injustice by calling for international and national attention to the effects of oppression and racial discrimination. She took a bold step and resigned from the Daughter of American Revolution since they had differed in ideologies. Ella baker was another activist who dedicated her time to speak out against oppression. She was regarded as the leader behind the scenes. She struggled to study due to the fact that her family was not well of. She graduated and became a teacher.

She relocated to New York and quit her profession to engage in social change. She got involved with NAACP in the grassroots level in recruiting more people to the organization. She also was instrumental in the formation of other small organizations such as Student Nonviolent Coordinating Committee and the Mississippi Freedom Democratic Party. These movements later were used by Martin Luther King Jr. to organize his boycott and nonviolent movement. The wave of women participation in the civil movement was unstoppable. Rosa Park, who was famously regarded as the mother of the civil rights movement, was also contributed in this struggle.

She is believed to have started the main struggle of these civil rights movement. She experienced difficulty in completing her education due to the strict regulations for the black children. The black children were meant to study for only five moths in a year and the rest of the year they spent time in the cotton fields as laborers. Rosa graduated from high school after she got married to Raymond parks[7]. This sparked her efforts to fight racial injustice. She joined National Association for the Advancement of Colored People Montgomery chapter as the only woman. She was very instrumental member of this organization and was elected secretary.

Her active involvement in National Association of Advanced Colored People led to her arrest on 1955[8]. Rosa’s life as an African American continued to face challenges. The mistreatment she received from the whites while she was in a bus made her to launch a huge boycott of using Montgomery buses by the Afro-Americans. She decided to organize this boycott after she got arrested for refusing to give out her seat to a white passenger in the bus. The boycott lasted for 381 days prompting her to be absorbed by the Montgomery Improvement Association which was formed by Martin Luther King Jr[9].

This act of boycott was followed by a series of escalating protest, movements and insurgencies by African Americans. During the time for boycott Rosa coordinated for the blacks to get rides from car pool ups and other whites who offered to help. The used the slogan ‘don’t use the bus today. Don’t use it for freedom. ’ The boycotters together with Mrs. Rosa Park took the case to court disputing the segregation in buses[10]. They later worn the case after the court ruled on their favor. After the successful boycott Rosa and her families were not secure in Montgomery. They relocated to Detroit where she worked for congressman John Conyers.

She continued to raise her voice and incited the youth to take up the struggle for African American Social and American progress. After the women political council had initiated the boycott in Montgomery, Martin Luther king came to the limelight taking all the credit as the leader for the nonviolent resistance. Martin Luther King Jr. and Malcolm X traversed different sections of the country giving powerful speeches and mobilizing nonviolent movements. Sparks of none violent movements were seen in other parts of the country[11]. These nonviolent movements escalated to violent racial rebellion in major cities in the U. S. s the movement went militant it provoked the whites against pro-black policies and the police. The success of events of this decade was at the peak when the Supreme Court decides the case of brown v board of education ruling in favor of brown. The court declared that segregation of schools unconstitutional. In the 1960’s many women rights group were established to continue the fight against racial injustice and oppression. This was the decade that saw progressive women rights movement in the United States and world Wide. Most of these groups comprised of female students who advocated for equal employment opportunity for both men and women.

They also lobbied for enforcement of equal rights laws. Later that decade national organization for women was formed to replace women commission and it continued with the fight against sexual discrimination. The commission was disbanded due to lack of funds. The women equity action league founded in 1968, sought to investigate inequalities in faculty pay and promotions of both men and women in education workforce. These remarkable women played an important role in inspiring other activists and grassroots leaders who in turn mobilized more and more people to join the struggle.

These women also helped millions of women to gain their fundamental rights as women. They were mostly motivated by the mass followers they had. Motivation also came from the cases they had in courts which ended up favoring the blacks and declaring most of the segregation unconstitutional. They drew their inspiration from civil rights movement they had organized. The organizations they were involved with had a lot of confidence in them hence they elected these women to high posts which favored their situation and gave them an upper hand in organizing the struggle[12].

To overcome the problems they encountered they formed organizations such as national Organization for women. National Organization of Women key mandate was to enlighten the women to fully participate in mainstreaming of American society. These organizations brought them together in unity and increased their awareness on critical issues that affect them. This enabled them to have a strong voice over the oppression and neglect they were facing and forced the federal government to enforce the law. The ideologies fomented by certain black power movement were destructive and fostered cultural conflict.

This posed a challenge to the efforts of the women who organized movements before. The other major challenge that affected these courageous women is the fact that most of the influential leaders, who had followed suit to lead mass movement, ended up being arrested or assassinated[13]. A good example is the cases of Malcolm x and Martin Luther King. The women’s morale was undermined by these acts. The supremacy of the white also undermined their efforts in the sense that they seemed to bend the law on their favor and oppressed the blacks in all sectors.

The civil war escalated by the Ku Klux Klan and the lynch mob in the south were meant to threaten the activists from pursuing further with their quest[14]. The vocal contribution of Martin Luther King Jr. was faced with bomb attacks to his church and residence. The mass movements in America were a vital process to transform America to its current state. The vibrant voices of these women led to signing of the civil rights act to law. The law protects all minorities and women from discrimination in voting employment and use of public areas. They were also rendered freedom of choice.

This was viewed as victory for both blacks and women. The revival of the African American militancy was an exceptional progress to the realization of democratic ideals[15]. The shared commitment to take the risk and highlight injustice and press the course for change resulted to the change in attitude of many American citizens. They tore down the oppressive racial and segregation system that had dominated the country for a long time thus bringing a remarkable transformation of American life. Bibliography Bermanzohn, Sally Avery. “Violence, Nonviolence, and the Civil Rights Movement. New Political Science 22, no. 1 (March 2000): 31-48. Academic Search Complete, EBSCOhost (accessed April 15, 2011). Gates, Henry Louis Jr. Bearing witness: selections from African-American autobiography in the twentieth century. New York: Pantheon Books, (1991). Greenblatt, Alan. “Race in America. ” CQ Researcher 13, no. 25 (July 11, 2003): 593-624. http://library. cqpress. com/cqresearcher/cqresrre2003071100. Hine, Darlene Clark. Hine sight: black women and the re-construction of of American history. Bloomington: Indiana University, (1994). Jost, Kenneth. “School Desegregation. ” CQ Researcher 14, no. 5 (April 23, 2004): 345-72. http://library. cqpress. com/cqresearcher/cqresrre2004042300. Naylor Gloria. Critical Perspectives Past and Present. New York: Amistad, (1993). ———————– [1] Greenblatt, Alan. “Race in America. ” CQ Researcher 13, no. 25 (July 11, 2003): 593-624. http://library. cqpress. com/cqresearcher/cqresrre2003071100. [2] Darlene, Hine Clark. Hine sight: black women and the re-construction of of American history. Bloomington: Indiana University, (1994). [3] Naylor Gloria. Critical Perspectives Past and Present. New York: Amistad, (1993). [4] Henry Louis, Gates Jr.

Bearing witness: selections from African-American autobiography in the twentieth century. New York: Pantheon Books, (1991). [5] Darlene, Hine Clark. Hine sight: black women and the re-construction of of American history. Bloomington: Indiana University, (1994). [6] Sally Bermanzohn, Avery. “Violence, Nonviolence, and the Civil Rights Movement. ” New Political Science 22, no. 1 (March 2000): 31-48. Academic Search Complete, EBSCOhost (accessed April 15, 2011). [7] Greenblatt, Alan. “Race in America. ” CQ Researcher 13, no. 25 (July 11, 2003): 593-624. http://library. cqpress. com/cqresearcher/cqresrre2003071100. 8] Bermanzohn, Sally Avery. “Violence, Nonviolence, and the Civil Rights Movement. ” New Political Science 22, no. 1 (March 2000): 31-48. Academic Search Complete, EBSCOhost (accessed April 15, 2011). [9] Gates, Henry Louis Jr. Bearing witness: selections from African-American autobiography in the twentieth century. New York: Pantheon Books, (1991). [10] Hine, Darlene Clark. Hine sight: black women and the re-construction of of American history. Bloomington: Indiana University, (1994). [11] Jost, Kenneth. “School Desegregation. ” CQ Researcher 14, no. 15 (April 23, 2004): 345-72. ttp://library. cqpress. com/cqresearcher/cqresrre2004042300. [12] Jost, Kenneth. “School Desegregation. ” CQ Researcher 14, no. 15 (April 23, 2004): 345-72. http://library. cqpress. com/cqresearcher/cqresrre2004042300. [13] Hine, Darlene Clark. Hine sight: black women and the re-construction of of American history. Bloomington: Indiana University, (1994). [14] Greenblatt, Alan. “Race in America. ” CQ Researcher 13, no. 25 (July 11, 2003): 593-624. http://library. cqpress. com/cqresearcher/cqresrre2003071100. [15] Gloria Naylor. Critical Perspectives Past and Present. New York: Amistad, (1993).

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Free Essays

Tom Regan’s Animal Rights, Human Wrongs

Animal rights, or the establishment and the idea of them being official, have become an increasingly interesting controversy for quite some time. The topic seems to question the common morality and ethics of man, while simultaneously questioning practices that target humanity’s safety, luxury, and in some cases, survival. In such a debate, three articles come to mind.

The debating articles: “Cow VS Animal Rights”, “Animal Rights, Human Wrongs”, and “Proud to be a Speciesist” all deliver a very strong argument to the topic, yet making it quite difficult to ignite a solid solution around the topic, being that each article is elaborate and thorough in arguing their point. In “Animal Rights, Human Wrongs”, the idea of animal rights is directly and thoroughly supported.

Written by Tom Regan, the article presents a several cases of animal cruelty in a seemingly attempt to put the reader in a parallel perspective of each animal in attempt to cause the reader to feel sorry or some form of sympathy for each victim. Regan challenges the methods of hunting, industrial forming, and scientific practices on animals, and, using his pity-the-victim strategy, urges the realization of the rights of animals as a group that stands side by side with the humans in matters pertaining legal rights.

In Stephen Rose’s article “Proud to be a Speciesist”, this thought is contradicted directly. Stephen Rose gives an entirely different perspective and idea on the matter of animal rights. In the article, Rose proposes a situation in which the rights, if any exist at all, of mosquitoes and other pests are violated once they’re exterminated by human choice. This situation provides a just argument, being that such pests are killed all the time, yet, if they were ever to attain such rights, concerns questioning their existence would arise and put a complicated spin on the basics of life itself.

In “Cow VS Animal Rights Activist”, written by Linda Hasselstrom, a different view is exploited. The article retains a neutral perspective, being that the writer explains the uses of animals (primarily cows) but does not refrain from informing the reader of all the cow endures while under human use. Even so, Regan uses pathos while illustrating each animal’s demise to convince the reader to share the same view, or “ideal”, in the matters concerning animal rights.

In each situation, he gives a victim, portraying each one as innocent and helpless, and then he gives the description of their death. He paints incredibly vivid pictures of the situation by elaborating on what would presumably be the last moments each animal experienced before their death. Rose, on the other hand, uses a weak form of egos in his writing. Arguing solely from his position as a researcher, Rose has dim credibility and most of his arguments are biased from the perspective of a researcher.

This is made obvious when he tries to justify animal research by claiming that it has resulted in many cures for diseases human encounter today. Hasselstrom’s form of logos contributes to her argument in a seemingly complementary fashion. From her perspective, she simply states the pros and cons of ranching and hunting, as well uncover the hardships faced by ranchers that many activists seem to overlook. With all of these arguments at point, the matters of animal rights will remain a controversy as long as the morals and ethics of the common man play a part in its decision.