‘Clearing the Fog’ Recommends ‘No fault’ Full Compensation

web-mod-afghanistan-getty-v2 (1)

We are delighted to welcome back Jane Rooney, a PhD candidate at Durham Law School and Deputy Co-Convenor (PGR) of the Centre for Law and Global Justice. On 30th March 2015, Policy Exchange, a UK-based think tank, released its latest report on the impact of human rights on British military effectiveness abroad. This post criticizes the new Report’s recommendation to prevent relatives of military personnel – killed abroad in the course of military operations due to negligence by the Ministry of Defence (MoD) – from having access to actions under the Human Rights Act 1998 (HRA) and in tort. Instead the Report recommends paying more compensation to relatives of military personnel killed in the course of military operations abroad.

In October 2013 Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’ co-authored by Thomas Tugendhat and Laura Croft. The report outlined concerns that human rights litigation may have a negative impact on the effectiveness of British military operations abroad. The report was published in reaction to the Smith & Ors v The Ministry of Defence (MoD) case, a case which considered claims against the MoD for negligence and violations of the Human Rights Act 1998 (HRA) at the Supreme Court of the United Kingdom by relatives of British soldiers who died whilst serving in Iraq. I have previously argued that the main proposition in the report was that in affording British military personnel the protection of the HRA abroad – legislation which gives effect to the European Convention on Human Rights (ECHR) in the UK – Smith threatened to undermine a ‘fundamental rationale’ underlying the armed force: ‘the transfer of physical risk’ from civilians to individuals who had volunteered to fight on behalf of their country. The report explained how the ruling in Smith was made possible by the ‘judicial creep’, in both UK domestic courts and at the European Court of Human Rights (ECtHR), of civilian law to British military operations abroad. The report recommended that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act and that the UK derogate from the ECHR during deployed operations so that International Humanitarian Law (IHL) standards would apply instead of the ECHR.

On 30th March 2015, Policy Exchange released another report, ‘Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat’, co-authored by Richard Ekins, Jonathan Morgan and Tom Tugendhat. This report is different from the 2013 report.  It still recommends derogations from the ECHR in future operations abroad and the revival of the Armed Forces’ Crown Immunity from actions in tort. Furthermore, it still advocates the primacy of IHL over human rights law on the battlefield: it recommends that the Government make an ‘authoritative pronouncement of state policy’ that this is case and that the Government support the International Committee of the Red Cross to strengthen the protections afforded by the Geneva Conventions. However, it details changes that should be made in relation to military personnel: it recommends that the Government introduce primary legislation prohibiting military personnel from relying on the right to life under the ECHR, and recommends instead that the ‘Government should undertake to pay compensation, on the full tort “restoration” measure, to all military personnel killed or wounded during active operations – without need to prove fault’.

I have previously outlined that derogations are not the answer to problems arising from applying human rights in the battlefield. Furthermore, IHL is no longer considered as a lex specialis body of law in relation to human rights law. This is illustrated by the case law of the International Court of Justice and by the ECtHR decision in Hassan v United Kingdom (summarized here). The 2015 Report welcomed and praised the decision in Hassan v United Kingdom for taking into consideration IHL in determining the substance of the Article 5 right to liberty and security when detaining enemy combats abroad, but expressed fears that this sympathetic approach to military operations was only a temporary development and would not necessarily be continued by the ECtHR. Generally speaking, therefore, nothing would be gained from derogating from the ECHR during conflict abroad or exclusively applying IHL abroad. Furthermore, the ECHR should continue carrying out its function as an accountability mechanism for state activity, at home and abroad.

Here, I will briefly posit thoughts on a much narrower point: the recommendation that the Government should legislate to deny military personnel access to Article 2 right to life under the ECHR and restore Crown immunity for the armed forces in tort. Instead, the Report proposes paying compensation on the full tort “restoration” measure to all military personnel killed or wounded during active operations – without need to prove fault. The Report highlights that its main reason for advocating to prevent actions being brought under the HRA or under the tort of negligence is not because of the cost of those trials, but because of the public scrutiny:

Whether or not the judge upholds the claimant’s allegations, they will have been examined with necessary public criticism of the acts and decisions of soldiers, commanders, planners and others, as the claimant attempts to prove his case. This public examination is what produces a hyper-cautious mindset (at 38).

The inquiry into fault is thus damaging because of the public scrutiny and accountability of those who are at fault. Instead, the Report proposes paying more compensation to injured soldiers and their families (at 39). The government will pay compensation ‘irrespective of fault’ (at 39). The Report states that ‘this would remove the financial incentive to bring claims’ (at 39). However, it concedes that ‘some claimants may be motivated by wider notions of justice’ but offers no answer to this concern (at 39). This scheme would not save money, in fact the Report concedes that it would probably cost more money (at 39).

The scheme appears to propose to ‘pay off’ families of military personnel who want an investigation into the death of their loved ones instead of enabling them to access legal justice. However, much evidence suggests that those relatives of victims of negligence in the Smith case were after more than money. Smith merely established that allegations of negligence could be investigated and given a hearing. No damages have been awarded yet and a hearing on the facts has not yet taken place. However, Susan Smith, an applicant in the case, hailed the decision as a victory. Debi Allbutt, the widow of Cpl Stephen Allbutt, one of the victims concerned in the Smith case, stated that: “We want combat immunity thrown out of the rulebook, so instead of soldiers having to sue the Ministry of Defence, the equipment and the training will be in place to stop things like this happening again.” Under these circumstances it might be presumed that those involved in the Smith case, for example, may have ‘wider notions of justice’ than merely receiving a large some of compensation.

The insistence upon a new scheme which comes at a financial cost to the MoD could be construed as an effort to gain political points in undermining the judiciary and human rights. For example, the concern that public scrutiny ensuing from court hearings would negatively affect the armed forces appears not to be a concern in other places in the Report:

These are political matters for which Ministers should be held to account by Parliament and through Parliament to the electorate. Certainly, many MPs have expressed concerns about the under-equipment of soldiers in Iraq (at 37).

This seems contrary to the Report’s concerns about public scrutiny which were posited in justification for not allowing negligence and human rights cases to go to court. Here the Report advocates that the electorate should be able to hold those at fault to account. This undermines the argument that the judiciary should not be able to hold those at fault to account due to public scrutiny.

This post, above all, aims to hold Policy Exchange to account for what it has proposed. The Report’s main proposition is not to deny that human rights apply abroad, as seems to be the main point picked up by media; its main proposition is for no one to be blamed, and nothing to be improved, in relation to the deaths of military personnel on the battlefield. Instead, it wishes to sweep these claims under the carpet by paying off relatives of victims.

‘Clearing the Fog’ Recommends ‘No fault’ Full Compensation

Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights

UCDThe 2015 John M. Kelly Memorial Lecture will be delivered by Ms. Ann Power Forde, SC, former Irish judge of the European Court of Human Rights, on Thursday, 16 April 2015 in UCD Sutherland School of Law (maps and directions). Attendance is free, but registration is required here.

Abstract

Debate about the meaning of family and its interconnected network of relationships, rights and responsibilities is current. Cultural and societal changes have had repercussions for the protective scope of the right to respect for family life under Article 8 of the European Convention on Human Rights.

The definition of family under a State’s domestic law does not bind the European Court of Human Rights when determining what effective respect for family life requires. As ‘family life’ becomes increasingly diverse across Europe, the Strasbourg Court has developed a consolidated body of jurisprudence on the subject.  This paper will consider some of the Court’s case law on what constitutes family life, including, marriage based family life, the de facto family life of cohabiting and same-sex couples, plus adoptive, blended and extended forms of family life.  It will also include an examination of some recent judicial developments concerning genetic and surrogate parenthood and family life. Continue reading “Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights”

Diversity in Family Life: Developments in the Case Law of the European Court of Human Rights

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Supreme CourtThis note is based on MacMenamin J.’s decision, available here. SCOIRL have a succinct post on the outcome in this case. A decision was also given by McKechnie J, and is not yet available. However, I understand that McKechnie J. came to the same conclusion, albeit for different reasons. With thanks to Patricia Brazil for providing me with a copy of the available decision. As this is a longer post that usual, you can find a copy of this post here.

The Context

On Friday, 13 March 2015, the Supreme Court gave an important decision in the case of O’Donnell v South Dublin County Council (not yet on courts.ie, Irish Times report here). The case revolved around the statutory duties upon South Dublin County Council (SDCC) in the area of housing and Traveller accommodation. The High Court, in a number of cases: Doherty v SDCC (2007), O’Donnell v SDCC (2007) (Laffoy J.) and O’Donnell v SDCC (2008) (Edwards J) (discussed here, pp 13-14), considered the duties of local authorities under Irish housing law and the impact of the ECHR Act 2003. The Irish Supreme Court have been exceptionally conservative when it has come to interpreting the Constitution as providing any form of socio-economic rights duties on the State.

The European Court of Human Rights has been reluctant to interfere with decisions of state/local housing authorities in the housing law arena. The ECtHR has stated that Article 3 and Article 8 ECHR cannot be interpreted as providing a duty on the State to provide everybody with a home, unless there are very exceptional circumstances at play (see, M.S.S. v Belgium and Greece, discussed in detail here).

The decision on Friday, 13 March 2015 in O’Donnell v South Dublin County Council provides at least a signal, that in very exceptional circumstances, legislative duties coupled with constitutional/ECHR rights may protect socio-economic rights. However, as will become clear below, the decision has not resulted in the provision of accommodation to Ellen (or other members of the O’Donnell family) and Ellen continues to live in accommodation that is inhuman and degrading. Continue reading “Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court”

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Anti-vaccination movements, children’s’ rights and private power

A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

A new Constitutional Settlement for Northern Ireland: Queries from International Law

Economic, Social and Cultural Rights in Ireland – Why the Constitution?

Constitutional ConventionWe are delighted to welcome this post from Katie Boyle on economic, social and cultural (ESC) rights in the Irish Constitution. Katie is a PhD student at the University of Limerick and an ESRC Research Fellow at the University of Edinburgh. She is also a solicitor and has previously advised state departments and parliamentary bodies on human rights compliance. Katie has lectured in both Ireland and the UK on International Human Rights, Public Law and Constitutional Law. Continue reading “Economic, Social and Cultural Rights in Ireland – Why the Constitution?”

Economic, Social and Cultural Rights in Ireland – Why the Constitution?

Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

Tom Watson MP (Picture Credit: The Telegraph)Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP. Continue reading “Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights”

Tom Watson’s Triumph? UK Communications Interception, Drone Strikes and the European Convention on Human Rights

The Fog of Juridification, Functionality and Everything Foreign

Wounded soldiersWe are delighted to welcome this post from Jane Rooney on the recent report published by think-tank Policy Exchange on apparent  human rights infringements during battlefield operations. Jane is the Deputy Convener of Law and Global Justice at Durham and Ph.D. candidate at Durham Law School. On 18th October 2013, think tank Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’[1] co-authored by Thomas Tugendhat and Laura Croft and which will inevitably form the basis of the next Strategic Defence and Security Review. The report was written as a reaction to Smith & Ors v The Ministry of Defence[2], a case brought to the Supreme Court by relatives of British soldiers who died whilst serving in Iraq, with the relatives successfully claiming for compensation under the Human Rights Act 1998. The report denounces the decision in this case, stating that it represents the culmination of a ‘legal siege’ over British military operations, ‘eroding freedom of movement on the battlefield.’[3]

The recommendations of the report can be summed up as proposing that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act; that the United Kingdom (UK) derogates from the European Convention on Human Rights (ECHR) during deployed operations; and that legal aid should be removed from lawsuits brought by foreign nationals against the UK government. The underlying narrative of these proposals is, firstly, that Parliament should intervene to control the ‘judicial activism’ or ‘judicial creep’ of the Courts and secondly, that ‘foreign courts’ should not be able to control domestic decision-making and foreign nationals should not be able to access English domestic courts, which form familiar rhetoric in the Conservative party agenda. But what is the main problem that the report intends to fix?

The report states that the problem is broadly that there is a creep of civilian law into the military and that international humanitarian law (IHL) provides the proper balance between protecting individuals and serving military effectiveness. In a recent blog post on the report[4] it was highlighted that the civilian law habitually applies in times of war and that they are not mutually exclusive from one another. Instead, that author pointed out that the ‘real problem’ was the effect of the extensive extraterritorial application of the ECHR and the indeterminate interrelationship between international human rights law and IHL. However, they do not constitute the problem so much as they constitute the reasons for a particular problem and again we must ask, what is the problem identified by the report?

The answer is in the Smith case itself. Two sets of claims were brought against the Ministry of Defence (MoD), the ‘Challenger claims’ and the ‘Snatch Land Rover claims’. The ‘Challenger claims’ were brought under negligence in respect of the death of one party and the injury of two others, which occurred during a friendly fire incident in a Challenger II tank taking part in the offensive on Basra in 2003. The ‘Snatch Land Rovers’ claims were brought under the Human Rights Act 1998 alleging that the MoD was in breach of the obligation to safeguard life protected by ECHR article 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations. In both instances, the MoD was found to have failed to provide adequate equipment for the protection of soldiers’ lives. In particular, Snatch Land Rovers had no protection against improvised explosive devices (IEDs) and having been withdrawn from the battlefield as the result of the death of soldiers seven months previous to the incident in question, were re-introduced by the MoD without further enquiry. The report seeks to highlight the dangers that do, and furthermore could, potentially flow as a result of enabling servicemen or women to claim against the MoD either by evading the law on Combat Immunity or claiming under the Human Rights Act.

What happens when servicemen or women or their relatives are allowed to claim against the MoD? What detriment ensues?

The first argument is that it will be expensive.  In the report, the compensation costs are not at the forefront of their concerns. It is the cost of the lawyers that will be required to act on behalf of the MoD which are of greatest concern.[5] With legal costs projected as amounting to £36 million a year, the litigation that ensues from claims against the MoD constitute another form of ‘lawfare’ attempting to cripple British security and military effectiveness.[6] Other costs identified in the report predominantly concern inquiries into the rights violations of foreign nationals in war zones which detract from the main subject matter at hand, which is whether Smith will result in an onslaught of compensation claims from injured servicemen and women and their relatives which will be financially impossible for the MoD to respond to. No figure is provided for the latter kinds of claims. We can deduce from this that this is not the main concern flowing from the Smith case. We need to look elsewhere to establish why the Smith case is so damaging to the military effectiveness of the British forces.

There are a number of assertions in the report which are paramount to explaining what the main concern is arising from the report:

“Lawsuits undermine the fundamental rationale for an armed force: the transfer of physical risk. At its core, this is what the military does. Volunteers…take up the burden of protecting society and remove the requirement for self-defence from the wider community.”[7]

Lord Hope’s reference to statements from the 2006 Parliamentary Assembly of the Council of Europe, that “members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within army ranks,”[8] is interpreted by the report as claiming that servicemen and women cannot voluntarily surrender their ECHR rights, and that the army cannot protect the rights of others if they do not have rights themselves.[9] It finds Lord Hope’s statement abhorrent stating that it is “surely wrong and demeaning to assert that Service personnel who voluntarily sacrifice some of their rights, albeit temporarily, are incapable of upholding the rights of others as a result.”[10]Aside from a blatant manipulation of words, there is the question of whether the servicemen and women (or their relatives) who attempt to bring actions against the MoD under the Human Rights Act did conceive of themselves as voluntarily surrendering all of their rights? It is most probable that they did not. But the entire assumption is that when servicemen and women conceive of themselves as having rights they pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”[11]

Having deduced the main substantive point of the report it is particularly important to acknowledge how the report has attempted to detract from what could be conceived as a very unpopular assertion: that British servicemen and women have no right to have rights.

Firstly, the report is not about human rights concerns detracting from the obligations of the military during life or death situations: the “removal of the protections once granted to those who risked all for their country”[12] or to ensure that “commanders from the most junior upwards understand that decisions made in the confusion of battle will not be held to a standard designed for those who have never known such pressures.”[13]

 Secondly, it is not about the expansive approach taken to the extraterritorial application of the ECHR. Indeed the decisions of Al Skeini and Al Jedda represented a leap forward in extending the jurisdiction of signatories to the ECHR to protect individual rights, providing the flexible ‘public powers’ model which enabled for the requisite jurisdiction to be found with regard to isolated rights violations abroad, rather than merely allowing jurisdiction to be found when a state had ‘effective control’ of the territory of another state and therefore responsible for all rights violations in that territory, a much higher threshold to meet. However, engaging in an analysis of how one could attempt to limit the liability of states under the ECHR when acting abroad by invoking Article 15 ECHR, which allows for a state to derogate from most rights in ‘times of war or other public emergency threatening the life of the nation’, is a point of concern.[14]

The extraterritoriality jurisprudence was invoked in order to explain how it was that the Smith case ever became possible and we still have to make a value judgment about whether we agree or disagree with what Smith entails. Furthermore, applying Article 15 extraterritorially is not an impossibility. The Court merely stated in Bankovic, remarking upon the extraterritorial application of Article 15, that “Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.”[15] Because of the expansion of the concept of jurisdiction under the ECHR, Article 15 could potentially be applied in the circumstances in Smith. (Even though on closer examination, ‘threatening the life of the nation’ could infer that Article 15 could only be applied domestically). One must think of the implications of enabling this provision to be effective. It would represent a very serious roll-back in human rights protection and the enforcement of state responsibility when states act abroad. Again, we must shift the emphasis away from the fact of extraterritoriality, which has not necessarily proved to be detrimental to military effectiveness itself, and look more closely at the ‘problems’ that purport to ensue from what it has enabled – the Smith case.

Thirdly, the report is not about ‘juridification’ of the military.[16] It is not about the myriad of assaults that the judiciary has allegedly committed against the military from many different fronts, with one facet being that it empowers servicemen and women to bring actions against the MoD. It is about the threat of a changing ethos which is admittedly facilitated by the judiciary, an ethos which propounds the humanity of soldiers fighting on the ground and the empowerment of those individuals to see themselves as such. Furthermore, the term ‘juridification’ is used to imply that it is self-evidently a bad thing and it is a reason not to trust any eventualities that flow from it. It is a reason not to afford rights to servicemen because those rights come from juridification. It is necessary to look behind this term and look at the substantive results of it in order to evaluate whether it does encroach upon the effectiveness of the military.

A smoke screen of juridification, foreign courts, foreign nationals, and functionality have effectively obscured the main substantive point of the report. It is necessary that the fog is parted and that the newly found rights protection for British servicemen and women, who are afforded inadequate equipment for their own physical safety when carrying out military operations abroad, remains intact.


[1] Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange 2013

[2] Smith & Ors v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

[3] The Fog of Law (n 1, p. 11)

[4] Aurel Sari, ‘Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?’ http://www.ejiltalk.org/author/asari/

[5] The Fog of Law (n 1, p. 35)

[6] Ibid.

[7] Ibid. p. 18

[8] Lord Hope, para 53, 54: Smith and Others v The Ministry of Defence [2013] UKSC 41

[9] Ibid. p. 31

[10] Ibid. p. 31

[11] Ibid. p. 11

[12] Ibid. p. 10

[13] Ibid. p. 11

[14] Better Get a Lawyer, n 4

[15] Banković and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, para 62

[16] Ibid. p. 16

The Fog of Juridification, Functionality and Everything Foreign

The European Convention on Human Rights at 60 & Socio-Economic Rights

ECHR at 60Today marks the 60th anniversary of the European Convention on Human Rights (EC HR) coming into force. Ireland was one of the original signatories of the ECHR in 1950, and one of the first states parties to recognise the jurisdiction of the (now overburdened) European Court of Human Rights (ECtHR). The history of the Convention, the Court and the cases and principles of law that have been developed and decided upon  have been well covered in a number of significant texts (see here, herehere, here and here).

In June 2013, UCD Human Rights Network hosted a conference, organised by Suzanne Egan, Judy Walsh and I, on The ECHR and Ireland: 60 Years and BeyondMy paper ” Seasca Bhlian Faoi Bláth (60 Years A-Growing): Socio-Economic Rights and the European Convention on Human Rights” examined the emergence and development of the ECHR as a protector  of social and economic rights. While the ECHR is generally seen as protecting civil and political rights, with the exception of property rights, in the last number of decades a soft consensus is emerging from the ECtHR that such a distinction between both sets of rights is not warranted. The first significant suggestion that the Convention may be able to protect, to some degree, socio-economic rights, was made by the ECtHR in Airey v Ireland (for a background to this case, see here). Ireland stated that Airey was seeking to enforce a socio-economic right to legal aid and the ECHR should not be interpreted Continue reading “The European Convention on Human Rights at 60 & Socio-Economic Rights”

The European Convention on Human Rights at 60 & Socio-Economic Rights

Is Article 8 ECHR the ‘Feminist Article’?

indexWe are very pleased to welcome this guest post from Helen Fenwick who is Professor at Durham Law School. Helen is an expert in civil liberties, human rights and counter-terrorism law. She is also an expert advisor for Liberty and has been involved in policy development at national and international levels.  This post is also published at Inherently Human

This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking, it might be argued that the ECHR in general has little to offer women (see, for discussion, Grabham and Hunter ‘Encountering Human Rights’). This is due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer, ‘Documenting women’s rights violations by non-state actors’), human rights principles can be used as a campaign tool in influencing and mobilising public and community opinion. The use of campaigning methods by feminist advocacy groups, as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time, the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

So, in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list – each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law – so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). Under Shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and her son’s right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

 Domestic violence – requirement of effective investigations and prevention

 Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a ‘private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia; the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary, which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him, and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and, therefore, in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that, while the authorities took some steps to protect the first applicant from her violent husband, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

 Recently in the UK, the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend, Marc Chivers. Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence. Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8, 2, and 3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Upholding access to abortion

The recent jurisprudence on abortion at Strasbourg has had some moderate success in alleviating harm to women, by invoking Article 8 (and in some instances Article 3 in RR v Poland and P&S v Poland). The claims so far have been brought against Poland and Ireland (ABC, RR and P&S), but cases against other states are in the Strasbourg system (for example, Z v Moldova). This is not the place to discuss this developing jurisprudence in detail, except to make two points. Poland purports to allow abortion in certain narrow circumstances but, in practice, on religious grounds, places obstacles in the way of obtaining it (RR para 84-86), while Ireland has a virtual prohibition with a narrow exception where there is a serious risk to the life of mother. The suffering of the applicants, especially in the Polish cases so far, has tended to be of a very serious nature (see, eg. Tysiac v Poland, where a complication with pregnancy resulted in blindness). Although Ireland’s current virtual complete prohibition on domestic abortion is largely ineffective due to the availability of abortion in England (ABC), it has been linked to extreme suffering in exceptional circumstances, including the tragic death of Savita Halappanavar. This position underpins the paradox of the current jurisprudence which is that cases against Poland are more likely to succeed despite its more liberal regime, since the Court can avoid a full confrontation with Ireland’s Constitutional provision of equal protection for foetal and maternal life.

The recent case of P&S v Poland, the first Strasbourg case on rape-induced pregnancy, graphically illustrates what is wrong with Polish practice on abortion. The first applicant, P, was a 14 year old girl who became pregnant as a result of rape. She therefore had a legal right to an abortion under Polish law. However, when, supported by her mother, S, she sought to access an abortion in practice, she faced a range of obstructions. The hospital that P approached disclosed her personal and medical information to the media, and the public generally. As a result, she was harassed by anti-abortion activists and representatives of the Catholic Church. She went to three different hospitals but could not obtain genuine information about the requirements for obtaining an abortion. Doctors invoked conscientious objection against performing the abortion and failed to refer P to another hospital. The stance was taken by anti-abortion hospital staff and Church officials, falsely, that S was trying to pressure P into having an abortion against her will. As a result, when P and S sought police protection from anti-abortion activists, the police instead arrested P, removed her from S’s custody and placed her in detention (paras 17, 26, 28 and 29). After delays, P eventually received a legal abortion following an intervention from the Ministry of Health, but she received no post-abortion care (para 41). The Court relied on Tysiąc and RR to reaffirm under Article 8 that once a State has adopted statutory regulations that allow abortion in specified situations, it comes under a duty to make the access available in practice. The Court found a breach of Article 8 on the basis of ‘a striking discordance between the theoretical right to… an abortion…and the reality of its practical implementation’ (para 111).

The situation in Poland may appear to be far removed from that in the UK (apart from in Northern Ireland), but given current attempts to undermine the principle of safe legal abortion by making access to abortion more difficult – in particular by allowing pro-life groups to become involved in counselling abortion-seekers (proposed by Nadine Dorries) and greater protection for conscientious objection (confirmed in a recent case involving Catholic midwives).

Conclusions

This blog has suggested that the guarantee of respect for private and family life under Article 8, taking account of relevant Strasbourg jurisprudence, is leading to developments in human rights principles that reduce gender-based harm to women. A pervasive pessimism in some feminist thinking on the potential of the ECHR to address and reduce such harm may have obscured the potential of such developments, which are also very recent. This blog suggests that a pessimistic view of the ECHR’s potential (and Article 8’s in particular) to aid women who have been let down by courts and legislatures in their own states, should be revisited.

Is Article 8 ECHR the ‘Feminist Article’?