Over my dead body: Privacy rights of the deceased under the ECHR

Posted on Oct 25, 2021 by Sam Kharabanda Groom

Most people are dead. Nevertheless, dead people have little in the way of legal rights. They are (probably) not eligible for many of the common important rights: the right to bodily integrity and physical liberty; political, social and economic rights. In a striking exception, the wishes of the deceased in respect of their property are protected by the well-developed process of probate. That branch of the law aside, it may generally be said that, once a person passes away, the law washes its hands of them. Inquests deal with the dead, of course, but they are primarily concerned with rights that the subject had in life, rather than with any rights that they retain. The same goes for litigants whose estates can be represented in proceedings after their demise.

So I sat up when this Tweet by Andrew Tettenborn crossed my desk:

A very dangerous holding for free speech. Human rights law may require the reputation of the dead to be protected. Art.8 is getting seriously out of control. M.L. v. SLOVAKIA – 34159/17 [2021] ECHR 821https://t.co/xrrjcVeORi
— Andrew Tettenborn (@seatradelaw) October 14, 2021

The decision referred to in the Tweet was ML v Slovakia [2021] ECHR 821 (application number 34159/17), which had been handed down by the European Court of Human Rights that day, 14 October 2021. The case provoked a small amount of displeasure on the platform, including on the part of the well-loved anonymous legal commentator SpinningHugo, who described the decision as “a disgrace”.

How did we get here? How did the European Convention on Human Rights reach a point where (in Professor Tettenborn’s words) it “may require the reputation of the dead to be protected”? In this blog post, I will follow the lines of authority that lead the Court to the decision in ML v Slovakia in order to clarify exactly what it stands for. Luckily for us, the cases are generally interesting and varied in their subject-matter. But I should say, for the benefit of anyone who would rather not read about such topics, that one of them, Hadri-Vionnet v Switzerland, discusses the consequences of a stillbirth, and another, ML itself, mentions sexual abuse by a Catholic priest.

I intend to stick to the expository side of legal analysis and not give my opinion on what the law should be. But it would be remiss of me to fail to contextualise the discussion. That is why I included the opening paragraph, and why I note that the field of information law in the UK generally excludes the dead too. Recital 27 of the GDPR, which has been incorporated into UK law, provides that “this Regulation does not apply to the personal data of deceased persons”. And section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides that, in contrast to most claims, defamation claims may not be maintained on behalf of the estate of a deceased person. This context is what makes ML v Slovakia interesting.

Before we explore the cases, it is worth briefly reminding ourselves about Articles 8 and 10 of the ECHR and the relationship between them. Article 8 provides as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) 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.

And Article 10 provides as follows:

(1) 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.

(2) 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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

A qualified ECHR right such as Article 8 or 10 generally has a certain structure. The purpose of the right is primarily to restrain state action. In certain circumstances, the Articles place the state under a positive obligation to take action, but this is less common. An Article makes it unlawful for the state to do A, or requires it to do A as the case may be, but carves out an area B, described by its paragraph (2), that is not encompassed by A. A is the state’s zone of obligation and B is its zone of freedom. Article 8 prevents the state from doing 8A (interfering with privacy etc generally), but permits it to do 8B (interfering with privacy etc in accordance with law when necessary in a democratic society and for a purpose listed in paragraph (2)). Article 10 prevents the state from doing 10A (interfering with the freedom of expression generally), but permits it to do 10B (interfering with the freedom of expression as prescribed by law, necessary in a democratic society and for a listed purpose).

This is possibly an overcomplication of a familiar mechanism, but it is worth spelling it out in this way to make a preliminary point. Frits Hondius said in 1983: “Article 8 and 10 are each other’s reflection in the mirror”. One person’s right to privacy often has to be weighed against another person’s right to freely express information. This is structurally possible because Article 8(2) provides that “the protection of the rights and freedoms of others” is a justification for interfering with privacy, and Article 10(2) provides that “the protection of the reputation or rights of others” is a justification for interfering with the freedom of expression. The state is permitted to interfere with a person’s right to privacy in order to protect the freedom of expression in circumstances that put the interference within 8B. But that does not mean that that interference, which constitutes protection of the freedom of expression, will itself be required under Article 10. 10A does not begin where 8B ends. And, similarly, 8A does not begin when 10B ends. A state may be free to limit privacy to protect the freedom of expression where that protection goes beyond its obligations under Article 10. And a state may be free to limit the freedom of expression to protect privacy beyond what Article 8 requires.

The point to take away from this is that it matters whether the court is deciding a case under Article 8 or 10 ECHR, even if issues of both privacy and the freedom of expression are at stake. A court’s decision in an Article 8 case about balancing privacy and the freedom of expression may well not be seamlessly transferable to an Article 10 case. If you think this point is obvious, please join me on my journey through cases in which that does not appear to be the universal position.

Our starting-point is Editions Plon v France (application number 58148/00), which was decided in 2004. This case revolved around the death of François Mitterrand. Mitterrand was President of the French Republic from 1981 until 1995. In 1981, shortly after his first election as President, Mitterrand was diagnosed with prostate cancer, and it was from this illness that he died on 8 January 1996. The cancer was not revealed to the French public until a surgical operation took place on 11 September 1992. Even then, it was not public knowledge that the President had been diagnosed long before.

On 8 November 1995, Editions Plon, a French publishing company, signed a contract to acquire the rights to Le Grand Secret, a book co-written by a journalist and Mitterrand’s former doctor, Claude Gubler. The big secret to which the title referred was the concealment of the French President’s illness for longer than ten years. The publication of the book, originally scheduled for mid-January 1006, was postponed upon Mitterrand’s death. However, this decision was reversed because of what were perceived to be public slights upon Dr Gubler’s professional reputation. Publication was set for 17 January 1996. The Mitterrand family sought and were granted in urgent proceedings an injunction prohibiting distribution of the book on 18 January 1996. The injunction was subsequently made permanent in standard civil proceedings and upheld on appeal, not on the ground of interference with the privacy of Mitterrand or his family, but on the ground of the breach by Dr Gubler of his duty of medical confidentiality towards the late President. The publisher, its managing director and Dr Gubler were each ordered to pay damages to the Mitterrand family. Further, Dr Gubler was convicted of the crime of breaching professional confidence and given a suspended sentence.

The publisher made a claim against France before the European Court of Human Rights for breach of its Article 10 rights. It claimed that the injunction was not prescribed by law, did not pursue a legitimate aim, and was not necessary in a democratic society. It further claimed that the fine it had to pay was disproportionate to the aim it pursued.

The Court allowed the publisher’s claim in part. It held that the interference with the publisher’s Article 10 rights was prescribed by law and pursued a legitimate aim. The urgent injunction had been necessary in a democratic society, but the permanent injunction had not been. As a result, the publisher’s Article 10 rights had been violated. The Court did not make a finding about the damages the publisher had been ordered to pay.

For our purposes, the interesting part of the judgment is at paragraph [34]. Here, the Court is deciding whether the injunction against distributing Le Grand Secret pursued a legitimate aim. The Court said as follows (emphasis added):

It is apparent both from the reasoning of the judgments of the domestic courts, in particular the Court of Appeal’s judgment of 27 May 1997, and from the Government’s submissions before the Court that the judicial authorities based their decisions on a combination of two of the “legitimate aims” listed in paragraph 2 of Article 10 of the Convention, namely “preventing the disclosure of information received in confidence” (information covered under the national legislation by the rules of medical confidentiality) and protecting the “rights of others” (those of the President, and of his widow and children, to whom they were transferred on his death).

It is not for the Court to determine whether the civil liability incurred on account of the breach of medical confidentiality comes, in abstract terms, under the first of these legitimate aims, the second or both at once. It is sufficient for it to note that in the instant case the measures complained of, namely the interim injunction and the decision on the merits to keep the ban in force, were intended to protect the late President’s honour, reputation and privacy, and that the national courts’ assessment that these “rights of others” were passed on to his family on his death does not appear in any way unreasonable or arbitrary. Moreover, it is precisely because much of the information disclosed in the book was classified in law as secret, and was therefore a fortiori received in confidence, that it was capable in practical terms of infringing the rights of others, the protection of which is deemed legitimate in paragraph 2 of Article 10.

Accordingly, the interference in issue pursued at least one of the “legitimate aims” set out in the second paragraph of Article 10 of the Convention.

It is important to see what the Court says here in the context of the Article 10 analysis. The Court is saying that France was free to restrict the publisher’s freedom of expression in order to “protect the late President’s honour, reputation and privacy”. It is not saying anything about what Article 8 requires. In 2004, there was no indication that Article 8 required the protection of the reputation of the dead.

Our next case is Hadri-Vionnet v Switzerland (application number 55525/00), in which judgment was handed down in 2008. In 1996, Dalila Hadri-Vionnet, an Algerian national, sought asylum in Switzerland. On 4 April 1997, Ms Hadri-Vionnet gave birth to a stillborn baby. When asked immediately after the birth, the baby’s mother and father said that they did not want to see the body. The local civil service proceeded to transfer the baby’s body to a communal grave for stillborn babies, where the body was buried without a ceremony. Ms Hadri-Vionnet’s criminal complaints against the authorities for misuse of official authority, disturbing the repose of the dead, unlawful removal of property, and violation of her personal freedom under the Swiss Federal Constitution. The last complaint was made in the light of a decision of the Swiss Federal Court that the constitutional right to personal freedom encompassed the right of parents to object to any unjustified intervention in relation to the remains of a deceased child. All of Ms Hadri-Vionnet’s complaints were dismissed by the Swiss courts. She applied to the European Court of Human Rights in December 1999, complaining that her not having been able to attend her child’s funeral and the body’s transportation in an ordinary delivery van violated her rights under Article 8 ECHR.

The Court held that Article 8 had been violated. Having established that Ms Hadri-Vionnet’s Article 8 rights were engaged and interfered with in the circumstances, the Court was quickly able to decide that there had been no legal basis for the interference. Of interest are paragraphs [50] to [52] of the judgment, where the Court said as follows (emphasis added):

50. The Government did not contest the applicability of Article 8 to the instant case.

51. The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see, for example, Pretty v. United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). Thus the former Commission had considered that the wish to have one’s ashes scattered on one’s own land was covered by the first concept (see X v. Germany, decision of 10 March 1981, no. 8741/79, Decisions and Reports 24, p. 137). Later, in the case of Znamenskaya v. Russia (no. 77785/01, § 27, 2 June 2005), the Court considered the “private life” aspect of Article 8 to be applicable to the question of whether a mother had the right to change the family name on the tombstone of her stillborn child. In the case of Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001‑X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be interference with the private and family life of the applicants. Lastly, in the case of Elli Poluhas Dödsbo v. Sweden (no. 61564/00, § 24, ECHR 2006‑…), the Court considered that the refusal to authorise the transfer of the urn containing the applicant’s husband’s ashes was a matter falling within the scope of Article 8, without however stating whether the interference found related to the concept of private life or family life.

52. In the light of that case-law, the Court considers Article 8 to be applicable to the question of whether or not the applicant was entitled to attend the burial of her child, possibly accompanied by a ceremony, and to have the child’s remains transported in an appropriate vehicle.

There are two points to note in these paragraphs. First, Switzerland did not contest the applicability of Article 8, so although the Court stated that its conclusion was supported by its previous decisions it would not have heard full argument on the point. Second, the decision is focussed on the wishes and feelings of the living applicant, Ms Hadri-Vionnet. Both the Court’s conclusion and the decisions cited concern the impact of state action or inaction on a living person. Paragraph [52] puts within the scope of Article 8 whether “the applicant was entitled to attend the burial” and “to have the child’s remains transported in an appropriate vehicle”,with Ms Hadri-Vionnet as the grammatical subject despite the second component concerning the treatment of the body, not of the mother. It was emphatically Ms Hadri-Vionnet’s Article 8 rights, as a matter of both substance and form, that had been violated.

The Court decided some relevant cases between 2008 and 2011, including Palade v Romania (application number 37441/05), Hachette Filipacchi Associés v France [2007] ECHR 5567 (application number 71111/01) and John Anthony Mizzi v Malta [2011] ECHR 1960 (application number 17320/10). However, none of these contributed anything new after Editions Plon and Hadri-Vionnet. The next case worth examining in detail is Putistin v Ukraine [2013] ECHR 1154 (application number 168882/03), decided in 2013. The applicant, Vladlen Mikhaylovich Putistin, was the son of Mikhail Putistin, a professional footballer who had taken part in the “Death Match”, a notorious football match between Ukrainian and German players during World War Two. When the Ukrainian side lost, at least eight of its members were sent to concentration camps and at least three, which were executed. Fast forward to 2001, by which time Mikhail Putistin had died, not by execution of the Nazis. A newspaper published an article that essentially alleged that the Ukrainian players who had not been executed after the match had been collaborators with the Gestapo. The article did not mention Mikhail Putistin’s name. But his son applied to the Ukrainian courts for rectification of untrue information and damages. He had no success. He applied to the European Court of Human Rights to complain of a breach of his right to the protection of his reputation under Article 10 ECHR, but the Court decided that the application should be considered under Article 8. The Court decided that Article 8 was applicable to the application before dismissing it on the basis that that the interference with the applicant’s Article 8 rights had been minimal and the Ukrainian courts had struck an appropriate balance between the competing rights of the applicant, the newspaper and the journalist. Paragraph [33] is the interesting part, where the Court considered the applicability of Article 8. The Court said as follows:

33. The question of whether the damage to the reputation of an applicant’s family can be considered an interference with the right to respect for the applicant’s private life was raised, but not finally decided, in Palade v. Romania ((dec.), no. 37441/05, § 25, 31 August 2012). The Court can accept, as do the Government, that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8.

Three points to note. First, again, Ukraine accepted the applicability of Article 8 to the situation, limiting the precedential value of the decision on this point and perhaps contributing to the terseness of its expression. Second, while still formally directed to the applicant and not to his late father, the formulation of what falls within the scope of Article 8 is more protective of the deceased individual than Hadri-Vionnet. In that case, what mattered was the protection of the applicant’s agency in respect of her child and her feelings consequent to the denial of that agency. In this case, the applicant’s relationship with his late father was not in any way interfered with. It was simply the impact on the applicant of the impact on the father’s reputation that mattered. This seems to be different. Third, the “certain circumstances” are not fleshed out at all. Especially in the light of the novelty of the conclusion, the Court does not give any guidance as to how, or how often, it will apply.

The decision in Putistin was considered in an interesting 2014 decision, Yevgeniy Yakovlevich Dzhugashvili v Russia (application number 41123/10). This case related to a complaint by the grandson of Joseph Stalin that the Russian state was failing to protect the reputation of the latter against attacks in newspapers. The Court essentially rejected the application on the basis that legitimate criticism of public figures was to be distinguished from defamatory attacks on private persons. Part of the Court’s reasoning, in paragraphs [21] to [27], is worth reading in full. The Court said as follows (emphasis added):

21. The complaint is twofold. In so far as the applicant can be understood to be complaining of a violation of the Convention rights of his grandfather, the Court will first examine the applicant’s locus standi in this respect.

22. In the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI) the applicant, as the heir of a deceased person, was complaining on behalf of the latter in respect of his claims for recognition of the right to die in dignity. The Court considered that the right claimed under Article 8 of the Convention, even assuming that such a right existed, was of an eminently personal nature and belonged to the category of non‑transferable rights.

23. The Court confirmed the principle that Article 8 rights were non‑transferable when it refused a universal legatee to pursue an application lodged by the immediate victim in the case of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006).

24. The Court does not find sufficient reasons to depart from its established case-law in the instant case. It follows that the applicant does not have the legal standing to rely on his grandfather’s rights under Article 8 of the Convention because of their non-transferable nature.

25. It follows that this part of the complaint is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.

26. As to whether the applicant’s own right to respect for his private and family life are at stake in the instant case, the Court will proceed with the examination of whether the two above-mentioned disputes and the way in which they were resolved by the domestic courts affected the applicant’s own private and family life and, if so, whether the State took such measures as to secure effective respect of the latter.

27. In its recent case-law the Court has accepted that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (see Putistin v. Ukraine, no. 16882/03, §§ 33, 39, 21 November 2013, where a publication in the mass media allegedly provoked the presupposition that the applicant’s father had been a Gestapo collaborator).

This is worth reading for two reasons. First, it is authority, if any were needed, for the proposition that, as a formal matter, a family member cannot apply to the Court to vindicate a deceased person’s Article 8 rights. Any rights protected must belong to a living person. Second, the Court accepted in principle the decision in Putistin, although it said at [28] that it was “not ready to draw a parallel with the Putistin case” because of the different subject matter of the application. Although it is not clear, this indicates that the Court did not reject the application on the basis of justification for interference, but on the basis that the “certain circumstances” did not extend to Yevgeniy Yakovlevich’s situation, meaning that no Article 8 rights were interfered with at all. So we have a small indication of how the “certain circumstances” are to be drawn.

For our next case, we leave the terrain of Article 8 and return to Article 10. In Genner v Austria [2016] ECHR 36 (application number 55495/08), Michael Genner had written a piece for publication on the website of an organisation supporting asylum seekers and refugees that celebrated the death of the Austrian Interior Minister, Liese Prokop (referred to as “L.P.” in the judgment). Mr Genner was convicted of the crime of defaming Ms Prokop, partly due to the association of the late Ms Prokop with Nazi ideology. His conviction was upheld on appeal and he complained to the European Court of Human Rights that his Article 10 rights had been violated. The Court dismissed the application, since the interference with Mr Genner’s Article 10 rights was prescribed by law, pursued the legitimate aim of protecting the reputation and rights of both Ms Prokop and the members of her family, and was proportionate.

Two short passages stand out. First, when discussing the relevant principles, the Court said at [35] as follows:

35. Dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 (see with further references Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, Editions Plon v. France, cited above § 46 and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013). […]

It may be said that this is a pedantic point, but to say that the action described here simply “falls within the scope of Article 8”, with no mention of the “certain circumstances” from Putistin, is striking. Perhaps this is part of a trend of moving the whole battle into the justification stage from the earlier interference stage. Or perhaps, because this is not strictly an Article 8 case, the Court did not feel the need to express itself precisely on this point. Whatever is the fair judgment on that point, it is concerning that the Court cites Editions Plon, an Article 10 decision that does not mention Article 8 once, to support a proposition about Article 8. It is unclear why it was thought relevant to explain this Article 8 principle at all, when any balancing exercise between Articles 8 and 10 is far from explicit in this case. It is all the harder to work out when paragraph [46], to which the reader is referred, does not appear to be relevant and it may have been an error to cite it.

Second, when applying the principles to the facts of the case, the Court said at [41] as follows (emphasis added):

41. The Court further agrees with the government that the interference did pursue the aim of the protection of “the reputation or rights of others”, namely those of L.P. and the close members of her family ‒ in particular her husband ‒ which constitutes a legitimate aim within the meaning of paragraph 2 of Article 10 (see, Editions Plon v. France, cited above, § 34).

What we remarked upon at the start of our journey in Editions Plon is referenced and repeated: as a matter of justification for interfering with Article 10 rights, a state is free to consider that the rights of a deceased person continue to be capable and worthy of protection. This is in marked contrast to the formal position under Article 8, as expressed in Dzhugashvili at [24]. The fact that the principles in these two classes of case need to be carefully distinguished is what makes it problematic that the Court cited Editions Plon in the way it did at [35].

This brings us to our recent case: ML v Slovakia [2021] ECHR 821 (application number 34159/17). We come back to Article 8. The son of the anonymous applicant had been a Roman Catholic priest and a convicted sex offender before dying in 2006. In 2008, newspapers ran articles about the deceased man that, in the applicant’s view, alleged more than had been proved in court, interfering with both his and her privacy rights and contributing to a deterioration in her health. Although partly successful at first instance in her attempt to secure apologies and damages through the Slovakian courts, the applicant failed following all possible appeals. The applicant applied to the European Court of Human Rights, arguing that her Article 8 rights had been violated. The Court agreed. The applicant’s Article 8 rights had been interfered with; the deceased’s lack of prominence, the sensationalism of the articles, and their lack of any contribution to a debate of general interest should have led the Slovakian courts to conclude the balancing exercise in favour of the applicant.

Two passages demand remarks. First, the Court said at [23] about the applicability of Article 8 as follows:

23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004‑IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention.

This is basically a repeat of paragraph [35] of Genner, with the garnish of Slovakia’s acceptance of the principle. Notably, the same authorities, with the same apparently erroneous or at least unhelpful paragraph reference to Editions Plon, appear to have been copied and pasted in. But Genner itself is not even cited in this case, which is no wonder, because it is an Article 10 case, not an Article 8 case. So why is it the source of such an important principle in this decision?

Second, the Court said at [48] in the context of the balancing exercise as follows:

48. Lastly, the Court is ready to accept that the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof (see Putistin, cited above, § 33, and Dzhugashvili v. Russia (dec.), no. 41123/10, §§ 27 and 30, 9 December 2014).

This paragraph seems to be doing nothing more than reassuring the reader that it is substantively as well as formally the rights of the applicant that are at stake, not any rights of her deceased son. But it does so in a fascinating way absent from the other cases. It does not say that the impugned articles were upsetting for the applicant, but that they “must have been upsetting” for her, because they were “capable of” affecting her feelings by reason of her relationship to the dead man. The justification for including the protection of the reputation of family members within the scope of Article 8 is not the real impact on the applicant in this case, but the principled point that the reputation of a deceased family member is “a part and parcel” of one’s private life and identity. This is the opposite of Putistin’s “certain circumstances”, and we have left the applicant-focussed reasoning of Hadri-Vionnet. The reasoning, if not the conclusion, in Dzhugashvili is difficult to maintain in this light. The Court is no longer hesitant to include the protection of the reputation of family members within the scope of Article 8, accepting arguments on a case-by-case basis. It now does so on principle.

It is easy to understand why ML provokes strong feelings. Pre-existing concern with a perceived excessive extension of ECHR rights allies with a distaste for the substance of the claim brought by the applicant in this case. But if hard cases make bad law, it would not have made ML a better decision if it had been decided differently simply because the applicant’s son was a sexually abusive priest. What makes ML a bad decision is that it is built on insecure foundations. We have seen in these cases that states routinely fail to argue arguable points, resulting in thinly-reasoned conclusions; principles are passed between the contexts of Article 8 and Article 10 analysis with insufficient distinction; infelicities in language that are of little importance in one case are carried over into another in which the change is substantial; and the important anchor of the applicant’s own experiences of their private life in Article 8 cases has left the jurisprudential seabed. It is no exaggeration to say that paragraph [48] of ML suggests that deceased persons have a right to the protection of their reputation via the Article 8 rights of their living relatives, in substance if not in form. Seemingly throwaway statements like it in the earlier cases have had serious consequences down the line.

What I’ve been listening to this week…

I’ve been to a marvellous party. Specifically, Shefali and I celebrated our engagement surrounded by as many of our loved ones as circumstances allowed. Not a natural dancer, I approached that aspect of the event with (unnecessary) trepidation. So, of course, I have been listening to You Never Can Tell by Chuck Berry, on a loop, to get my practice in.

A canary in the coal mine? Why the UK legal system is ill-equipped to deal with the climate crisis

Posted on Oct 18, 2021 by Lois Lane

I grew up on the west coast of Cumbria, about two miles north of Sellafield nuclear reprocessing plant and eight miles south of the former mining community and port town of Whitehaven. Further up the coast near Workington, onshore wind turbines overlook the fascinatingly alien landscape of the Workington slag banks, formed from the by-products of pig iron production by the Workington Haematite Iron Company during the second half of the nineteenth and first half of the twentieth century. On a clear day, you can also see the larger offshore turbines of the Robin Rigg windfarm out in the Solway Firth.

Steel production ceased in West Cumbria in 1974 and the county’s last deep coal mine, the Haig Pit at Whitehaven, closed in 1986, but the landscape still provides an insight into the area’s industrial heritage. It also offers a clear indication as to what now sustains the economy of many of the coastal communities between Silloth and Barrow-in-Furness — the energy and especially the nuclear sector. In 2008, a public-private partnership called ‘Britain’s Energy Coast’ (since renamed ‘Building Extraordinary Communities’) launched its masterplan for the West Cumbrian economy, designed to show how it could be put on a sustainable footing by 2027 through investment in new nuclear power plants and renewable energy projects.

The view of Sellafield from Nethertown railway bridge

Workington slag banks. The unusual shape of the rock is due to the giant ladle that was used to dump molten slag off the banks above.

But thirteen years later very little of what appeared in the masterplan has come to pass. The area’s economy is still extremely reliant on Sellafield, with research by Oxford Economics in 2017 suggesting that close to 60% of all jobs in the borough of Copeland are in some way dependent on the nuclear site [p. 21], and instead of major new renewable energy schemes generating jobs and economic growth we have the controversial Woodhouse Colliery proposal. If it goes ahead, this colliery near Whitehaven will be the UK’s first new deep coal mine in thirty years.

The company behind the project, West Cumbria Mining (WCM), started developing its plans for the extraction and processing of metallurgical (or coking) coal in 2014. The company claims that the mine would create 530 permanent jobs, of which 80% would go to local people. More controversially, it argues that it would be a ‘net zero’ emissions development, which would achieve compliance with the UK’s legally binding climate commitments via offsetting residual emissions with carbon credits certified by the Gold Standard Foundation.

It is easy to see why the prospect of a major new employer in area, creating hundreds of jobs, might seem appealing. Although wages at Sellafield are high, West Cumbria overall has faced sustained economic decline over several decades. Its working-age population is shrinking. An ever-increasing number of shops in Whitehaven town centre are shuttered up. The area is badly in need of some of the ‘levelling up’ promised by the Government.

In this context, it is perhaps not surprising that the proposal was previously approved by Cumbria County Council on three separate occasions. However, in February this year the council announced that it would be reconsidering the application for a fourth time. A month later, having previously declined to intervene, then Secretary of State for Housing, Communities and Local Government Robert Jenrick announced that he would be calling the application in for a public inquiry after all, citing new recommendations by the Government’s Committee on Climate Change as the rationale for the U-turn.

The inquiry opened on 7 September 2021 and ran for four weeks. The applicant, WCM, and Rule 6 Parties, local campaign group South Lakes Action on Climate Change (SLACC) and Friends of the Earth, appeared and were represented by counsel. Cumbria County Council did not take part in the proceedings, having decided to adopt a neutral stance on the application. Especially keen readers can find the recordings of all the sessions on the Planning Inspectorate YouTube channel.

Before being called in, the proposed development had already been subject to legal challenges on both sides of the debate. A judicial review application against the County Council’s approval of a previous version of the proposal by campaign group Keep Cumbrian Coal in the Hole received permission in February 2020, before proceedings were curtailed when WCM submitted a revised planning application. Earlier this year, the mining company itself announced that it would seek to challenge the County Council’s decision to reconsider the proposal for a fourth time, but the Secretary of State announced a public inquiry before the matter could reach the permission stage.

The entire process to date has served to highlight yet again the extent to which our legal and planning systems struggle to fully assess the climate impacts of proposed developments. Despite the UK’s legally binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and the obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008), the Act is not prescriptive about the actions that the Government or other relevant decision-makers must take to achieve these obligations.

The courts have also tended to be hesitant about pushing back too hard against decisions to approve individual carbon-intensive infrastructure projects. In a recent interview with The Planner magazine, barrister Estelle Dehon, who frequently acts on behalf of environmental campaign groups, suggested that this hesitation might be due in part to a political environment shaped by “many years of politicians… telling the courts ‘If you go too far, you will be knocked back. If you take liberties, we will act to ensure that you can’t do that any more. If you criticise too closely, we’ll clip your wings’.”

Finally, it is difficult to draw precise causal links between specific proposals under challenge and the vast global impact of the climate crisis. Indeed, a recent paper by researchers at the University of Oxford found that the claimants in 73% of cases surveyed across 14 jurisdictions did not even try, failing to cite any peer-reviewed evidence in their submissions. All these factors feed into an environment which makes it hard for legal challenges around climate change to succeed.

In the UK in the last two years, a number of high-profile challenges to emissions-heavy developments have been dismissed. In R (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin), [2021] PTSR 1160, concerning the grant of planning permission for the drilling of four new oil wells in Surrey, the High Court held that a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely direct and indirect impacts of a development did not extend to assessing the greenhouse gas emissions resulting from the use of an end-product originating from that development. In R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400, the Court of Appeal held that then Secretary of State Andrea Leadsom had carried out the balancing exercise under s.104(7) Planning Act 2008 correctly and was entitled to conclude that the benefits of the proposed new gas-fired Drax Power Station outweighed the environmental costs [108–109].

Finally, in R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, the Supreme Court overturned the judgment of the Court of Appeal that the Government’s Airports National Policy Statement was unlawful on climate change grounds. The Court of Appeal had held that the ANPS failed to satisfy the obligation under s.5(8) of the Planning Act 2008 to “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. It defined ‘Government policy’ as being both the UK’s ratification of the Paris Agreement and subsequent statements by ministers Andrea Leadsom and Amber Rudd (Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [228]). The Supreme Court dismissed these oral statements as being insufficiently clearly formulated to constitute Government policy and held that it would be unreasonable to expect civil servants to “trawl through Hansard and press statements” to identify policies [105]. One might question why the Court did not consider the Paris Agreement itself to constitute Government policy, since ratified international agreements form a clearly defined and readily identifiable list. Given the rather general wording of the agreement, however, it might not have made a difference to the outcome of the case even if the Court had held that it was Government policy to adhere to it.

The cases cited above are not an exhaustive list. Other challenges to the construction of HS2 and the design of the new UK Emissions Trading Scheme have also failed on broadly similar grounds, namely the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions reduction targets into actual policy. This degree of discretion, coupled with the growing weight of adverse precedent, means that climate campaigners seeking to bring public law challenges against Government policy are facing an uphill battle.

Indeed, the outcomes of these cases beg the question of whether legally binding climate targets are actually enforceable in any meaningful sense. At a national level, the Committee on Climate Change calculates that the UK is not on track to meet its fourth or fifth carbon budgets, and there is an overwhelming scientific consensus that we are headed for catastrophic warming without drastic emissions reductions in the next decade, let alone by 2050. Yet on a case by case basis, it always seems possible for a decision-maker, company or industry body to argue that the emissions from a specific carbon-intensive infrastructure project will be offset by emissions reductions in other sectors of the economy and/or that the socio-economic benefits of a proposal outweigh its negative environmental impacts.

Thus, judicial review challenges brought against the lawfulness of such decisions are likely to keep failing, because of the near impossibility of proving that a particular project in isolation will prevent the UK from meeting its emissions reduction targets. Irrationality challenges seem even less likely to succeed, since the bar for such challenges is set so high (although if one asked an 18-year-old whether they thought it was rational to be constructing new coal mines, oil wells, runways or gas-fired power stations in the 2020s, one suspects they might give a rather different answer from a judge).[1]

Fortunately for campaigners against the Cumbria coal mine, the planning system offers more flexibility about how climate impacts are included in the decision-making process than the legal system does, in part because planning decisions are more explicitly informed by political considerations than legal decisions are. For example, as Estelle Dehon, acting for SLACC, submitted in her closing statement to the inquiry on 1 October 2021, the judgment in Finch v Surrey County Council relates only to whether end-use emissions must be factored in when determining the legality of an Environmental Impact Assessment. It is not authority for the proposition that such emissions cannot be a material planning consideration. In the case of a coal mine, end-use emissions are necessarily fundamental in determining the overall climate impacts of the proposed development.

The inquiry spent its first week dealing with the potential economic benefits of the scheme, its second focussing on the need for coking coal in UK and EU steelmaking, and its third considering the impact of the scheme on carbon-dioxide and methane emissions. The Rule 6 Parties lead a range expert witnesses, whose evidence challenged WCM’s assertion that the project was compatible with the UK’s goal of reaching net zero emissions by 2050. In particular, Professor Stuart Haszeldine of Edinburgh University suggested that the coal was unlikely to be of sufficiently high quality for use in the UK and EU steelmaking markets and the majority was likely to end up being exported further afield, thus negating any net emissions savings on transport, while Professor Paul Ekins of University College London stated that there was no doubt in his mind that the proposals were incompatible with the UK’s emissions targets.

A further blow to the contention that the mine could be rendered net-zero-compatible via carbon offsetting was dealt by the very organisation proposed to supply the carbon credits required to facilitate the offsetting, the Gold Standard Foundation. In a letter to Friends of the Earth and to the inquiry, the Foundation stated that:

“The latest scientific paper from the Intergovernmental Panel on Climate Change on August 9 gave a stark reminder of the pace at which the planet is warming and the unequivocal influence of human activity on this warming, in particular the extraction and use of fossil fuels.
“We note that achievement of the goals of the Paris Agreement would be rendered impossible by the already planned increase in fossil fuels (UN Production Gap Report, 2019), and that the International Energy Agency has clearly stated that further investment in fossil fuels is unnecessary, with achieving global net zero goals instead requiring a rapid reduction in their use.
“It is clear to us, in light of this evidence and reflecting the principles of the mitigation hierarchy, that a new coal mine in 2021 is an activity that must be avoided in the context of the climate emergency.”

Beyond the decision to call the application in, there have also been further signs that the tide of political opinion within the Conservative party might have turned against the project, with Energy Secretary Kwasi Kwarteng stating that there were “very compelling reasons” not to open it and MP for Penrith and the Border, Dr Neil Hudson, dropping his support for the project ahead of COP 26 and urging the Government to invest in clean energy jobs in Cumbria instead. Inspector Stephen Normington indicated that his report should be expected in late December or early January, after which the ultimate decision will rest with the Secretary of State.

Whatever Michael Gove ultimately decides, however, a legal challenge seems fairly likely, at which point all the issues around how our courts deal with climate litigation may come into play once more. All this raises the question — at what point will it become so apparent that we are not on track to meet our net zero emissions targets that the courts will feel justified in declaring new fossil fuel developments to be unlawful? At what point will the effects of the climate crisis become so severe and so unarguable that any decision to approve such a development will be held to be irrational? How many more canaries will we allow to die before we finally decide to close the coal mine?

[1] For discussion of irrationality in this context see R. (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin) ,[2021] PTSR 1160, [127]; R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, [125-129].

What I have been listening to this week…

A couple of weeks ago, some eighteen months after the gig was initially scheduled to take place, I was finally lucky enough to see Nick Cave in concert at the Royal Albert Hall. I have been a fan of his music since I was a child and so seeing him live was an absolute privilege and delight. Almost the entire setlist was from two albums: 2019’s majestic, if sometimes harrowing, ‘Ghosteen’ — a meditation on love and loss written in the aftermath of the death of Cave’s teenage son in 2015 — and 2020’s ‘Carnage’, a wild and surreal lockdown album composed over just three days alongside longtime collaborator Warren Ellis. Both are exceptional in their own way and I have been listening to them and the rest of the Bad Seeds back catalogue a lot since the gig.

On a slightly more sedate note, my choir is currently rehearsing for a performance of Brahms’ Requiem in December, so I have been reacquainting myself with one of my absolute favourite choral works, and trying not to get too out of breath singing the fugue in movement six!

Saint George on a bicycle: Why we should repeal the Human Rights Act

Posted on Oct 11, 2021 by Sam Kharabanda Groom

Ever since its introduction by the last Labour government, the Conservative party has railed against the Human Rights Act 1998. This has been primarily for two reasons. (David Allen Green, who is twice as clever as I am, puts it at four.) First, the Human Rights Act represents the imposition of foreign values on the United Kingdom. The elision of the European Court of Human Rights and the European Court of Justice is not (or not always) a mistake: both are used in the press to exacerbate a general Europhobia. This is what motivates the desire for a “British Bill of Rights”, promised in the 2015 Conservative manifesto and then again after the party’s surprise general election victory. With Brexit dominating the constitutional agenda from the next year, human rights reform never materialised. Second, the Human Rights Act frustrates the state’s maintenance of public order by, for example, prohibiting the deportation of foreign criminals. As Home Secretary, Theresa May gave a speech to the Conservative party conference on Tuesday 4 October 2011, in which she described, among the absurd cases that the Human Rights Act had brought about, “The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here.” There is a third reason for the unpopularity of the Human Rights Act, although this cannot really be associated with the Conservative party and is probably limited to scholarly circles. It is that the Human Rights Act is constitutionally inappropriate. In a Parliamentary sovereignty, judges should not twist the words of elected representatives, but should allow laws to mean what they say, especially those passed before the Human Rights Act. The Human Rights Act also imports the illegitimate jurisprudence of the European Court of Human Rights.

None of these criticisms withstands serious scrutiny. On the first point, the Human Rights Act makes enforceable in domestic courts the rights and freedoms guaranteed by the European Convention on Human Rights, which was ratified by the member states of the newly-formed Council of Europe in 1953. Winston Churchill was an early proponent of the Council of Europe and Sir David Maxwell Fyfe, later Lord Chancellor, led the drafting of the Convention. Since then, the UK has had as much influence as any other country on the interpretation of the Convention by nominating judges to sit on the European Court of Human Rights. Critics of the Convention rights cannot convincingly point to any individual articles or lines of authority that are continental or un-British in nature. It is a pretty British project. On the second point, the Convention rights are crafted in such a way as to enable the state to govern properly. The right to respect for one’s private and family life, for example, is qualified so that it can be interfered with if a public good such as public safety justifies interference. In respect of the deportation of foreign criminals, the law changed in 2014, showing that Parliament is capable of pursuing what it considers to be the public good. Today, the case referred to by Theresa May, decided in 2009 and upheld by the Court of Appeal in 2011, would probably be decided differently. On the third point, as liberal lawyers never tire of pointing out, the Human Rights Act was passed by Parliament, and, by applying it, judges are doing nothing more than enforcing the will of Parliament. Squeezing primary legislation into conformity with Convention rights under section 3, or striking down secondary legislation made by a minister under section 6, is exactly what Parliament has decided it would like judges to do. That is Parliamentary sovereignty.

Nevertheless, complaints about the Human Rights Act continue to emerge from the Conservative party. The newly-appointed Lord Chancellor, Dominic Raab, spoke about “overhauling” the Human Rights Act at the party conference in Manchester on 5 October 2021. The 2009 case reappeared, although whether it forms part of a legitimate case against the Human Rights Act since the 2014 amendment is unclear. Raab’s demotion (or promotion, depending on your perspective) provoked fears because he has a track-record of antipathy towards the Human Rights Act. However, the choice of the strong but vague word “overhaul” might suggest that a full repeal is not on the cards.

I will not say that this is a bad thing. Especially in the context of the present government, the loss of an opportunity to vindicate Convention rights in UK courts, by way of judicial review or a claim directly under the Human Rights Act, would have a disastrous human impact. However, on a level of constitutional principle and for the protection of rights in the long term, there is a case for repealing the Human Rights Act.

Parliamentary sovereignty was the primary constitutional principle to emerge from the tumult of seventeenth-century England. At that time, the emphasis was on Parliamentary sovereignty as opposed to sovereignty of the Crown. However, at least since A. V. Dicey’s 1885 work, Introduction to the Study of the Law of the Constitution, the English legal establishment has considered that the emphasis is on the sovereignty of Parliament, as opposed to a Parliament with limited power to legislate. Professor Dicey wrote at pp. 3–4 (eighth edition, 1915, reprinted by the Liberty Fund, 1982):

The principle of Parliamentary sovereignty means neither more or less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.

Wade and Forsyth’s Administrative Law (eleventh edition, Oxford University Press 2014) states at p. 21:

The power of an Act of the sovereign Parliament, howsoever enacted, is boundless.

During the UK’s membership of the European Union, the single important exception to this principle was that primary legislation passed by Parliament would be invalid to the extent that it conflicted with EU law.[1] However, since it was Parliament, by the European Communities Act 1972, that authorised this state of affairs, and Parliament could put an end to it if it wished, as it eventually did, Parliament remained in principle sovereign.[2] And now that the UK has left the EU, no higher law exists than primary legislation on the domestic legal plane, according to orthodox constitutional theory.

The UK is unusual in this regard. In few other developed democracies is the legislature able to pass whatever law it wants by a simple majority, unlimited by fundamental rights or other constitutional restrictions on legislation. That is because an elective dictatorship, as Lord Hailsham called the UK system of Parliamentary sovereignty combined with executive dominance of Parliament, is illiberal in that it offers no protection to individuals or groups that fall into disfavour with the majority. Every person’s fundamental rights and freedoms demand protection, from the courts as a matter of justice and from the state as a matter of justification for its existence. Absolute Parliamentary supremacy is not an acceptable constitutional principle.

UK constitutional law is creeping towards acceptance of this reality. This can be seen on two levels.

On a structural level, senior judges have held, usually obiter and hypothetically, that the courts might not enforce a law enacted by Parliament that violated fundamental constitutional values. In Jackson v Attorney General [2005] UKHL 56; [2006] 1 AC 262, Lord Nicholls of Birkenhead said at [102]:

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

And Lord Hope of Craighead said at [104], at the start of a whole speech on this topic:

Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

In Hartian terms, the rule of recognition in English law is up for grabs. Alternatively, in the terms of T. R. S. Allan, who rejects the idea of a positivist rule of recognition, judges are beginning to recognise that a statute that flouted “the essentials of justice and good governance” would not be legitimate, and would therefore not “qualify as law”.[3] Whatever constitutional-theoretical model one prefers, the cases show that it is no longer clear that judges will unfailingly accept primary legislation as valid law.[4] Two weeks ago, Abella J, writing for the minority of four justices in the Supreme Court of Canada, cited Jackson, AXA and Privacy International (see [4]) as well as R (Miller) v Prime Minister [2019] UKSC 41; [2020] AC 373 to support the proposition that “unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government” (Toronto (City) v. Ontario (Attorney General) 2021 SCC 34 at [166]).

On the level of rights, the courts have developed the doctrine of common-law constitutional rights, whose enumeration is determined by constitutional values such as the rule of law. As Lord Hope said in Jackson at [107], “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”[5]

But what role can constitutional rights or the rule of law have under Parliamentary sovereignty? The courts have tried have it both ways. Their main tool in this respect is called the principle of legality. Lord Hoffmann’s explanation of the principle of legality in R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 has become the standard account. He said at 131:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

The principle of legality allows the courts to uphold and apply constitutional values while not only paying lip-service to, but in substance maintaining, Parliamentary sovereignty.

The result is that the protection of constitutional rights is weak for two reasons. First, the principle of legality is half-hearted in its application because of its subservient relationship with the principle of Parliamentary sovereignty. Second, the courts have been hesitant to recognise a wide range of individual rights as constitutionally guaranteed. The common-law constitution, in both structure and substance, is small and struggling to grow.

Why? Because of the Human Rights Act.

The legal mechanics of the Human Rights Act are similar to what the courts currently accept is their role in protecting constitutional rights. Section 3 of the Human Rights Act mirrors the principle of legality, in that it requires courts to interpret legislation in line with Convention rights wherever possible. Lord Hoffmann drew this parallel in Simms at 132: “the principle of legality will be expressly enacted as a rule of constriction in section 3 [of the Human Rights Act]”. Section 4, which provides for declarations of incompatibility with Convention rights, has no practical effect.[6] The Human Rights Act’s chief virtue over the common law is its explicit enumeration of rights. As is inevitable, there remains debate over the scope of each right, but there are clear starting-points. The Human Rights Act provides effective protection or redress in countless situations, including state surveillance, protest, welfare policy and inquests.

That all sounds wonderful. What’s the problem? The problem is that the Human Rights Act has arrested the development of the common-law constitution. It removes any incentive for the common law to develop, while providing only moderate protection against the abuse of state power. The Human Rights Act is no substitute for fully-developed constitutionalism, but the constitution cannot fully develop while the Human Rights Act remains. To borrow David Allen Green’s image, the Human Rights Act is a set of constitutional stabilisers, and they need to come off.

There are two ways in which common-law constitutional doctrine needs to evolve. The first is structural: What do constitutional principles such as the rule of law and fundamental rights mean in practice, and what is their relationship with Parliamentary sovereignty? The second is elaborative: What are the rights that the constitution guarantees? These are difficult, controversial questions. Litigants will not build their cases on uncertain foundations unless they have no choice. If you were at risk of deportation, and you could ask the court to prevent your deportation on the basis of either the settled law of the Human Rights Act, or some untested constitutional theory, what would choose? The same goes for most judges, who are not attracted to controversy. There is no reason – arguably no way – for the common-law constitution to develop while the Human Rights Act is squatting on top of it.

This matters because the Human Rights Act only achieves a fraction of what the common-law constitution could and should become if given a chance to flourish. The Human Rights Act respects and affirms Parliamentary sovereignty. It purports to fulfil the role of guardian of rights while permitting Parliament to pass laws that expressly and seriously violate fundamental rights. It would not have been passed otherwise: Parliament would not willingly give up its sovereignty. But the protection that fundamental rights require is both from government and from Parliament, as the framers of written constitutions around the world knew. Until it is repealed to enable the constitution to develop rightly, so that the rule of law, and no longer Parliamentary sovereignty, is the master constitutional principle,[7] the Human Rights Act will remain the tapeworm in the belly of the constitution. Dicey called the British constitution “the most flexible polity in existence” (p. 39). Constitutional law must be permitted to flex in the only way the common law knows how to develop, through litigation, so that the normative basis of the constitution can be reflected in doctrine.

During the previous decade, aware of the Conservative party’s unkind intentions towards the Human Rights Act, the courts have prodded the doctrine of common-law constitutional rights awake. In R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, Lord Reed said at [57]:

The importance of the [Human Rights] Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

And in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455 at [46], Lord Mance said:

Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.

And at [133] Lord Toulson said:

The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

The subtext is that, if the Human Rights Act is repealed, we will need another means of preventing the abuse by the state of fundamental rights. And we have such a means. But while we in fact do have the protections of the Human Rights Act, the common law will not have the opportunity to fully flesh out constitutional principles. As the essays in Mark Elliott and Kirsty Hughes’ book show, the only rights that have been seriously developed during this period are those related to the institutions of justice, such as the right of access to the courts or the right to have justice done in public.[8] The courts have cleaved to the core of the rule of law and have been hesitant to explore the full range of protections that the constitution guarantees.

Maybe this is all wishful thinking. Maybe it is a risk whose costs are too high. Under the Human Rights Act, we have some kind of guarantee of fundamental rights enforceable in domestic courts, which is better than we have had for most of our history. But the 1970s and 1980s showed us that the courts are capable of using the constitutional means at their disposal, even if they have been neglected, to address the problems of the day the according to what are recognised as the pressing demands of justice. Further, do we want to wait for Parliament to pass a flagrantly oppressive law that the Human Rights Act is powerless to touch before asking the courts for a definitive answer to the question raised in Jackson? It will happen one day. The courts have started to deal with the reality that politicians don’t play by the rules anymore (R (Miller) v Prime Minister). They must take the full implications of that realisation seriously. The common-law constitution needs to evolve beyond Parliamentary sovereignty. It needs to regain its confidence and mature. If one more metaphor will not break the camel’s back, we have been sending villagers to appease the dragon since 1688. Do we have to wait until the princess is chosen as tribute before summoning Saint George? When he comes, he can’t be riding with stabilisers. We have to repeal the Human Rights Act.

What I’ve been doing this week…

I moved to Cambridge! So almost all of my reading has been prescribed. But Cambridge means walking which means podcasts. I’ve returned to Talking Politics: HISTORY OF IDEAS, hypnotically delivered by David Runciman. And I’ve started the wonderful Borderline Jurisprudence with Başak Etkin and Kostia Gorobets, which as an international law amateur I struggle to keep up with sometimes but it’s fascinating and imbued with humanity and a sense of humour. In other news I have continued my struggle to make tofu crispy.

[1] R (Factortame Ltd) v Secretary of State for Transport [1990] 2 Lloyd’s Rep 365 and [1991] 1 AC 603.

[2] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61 at [60].

[3] T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press 2013), p. 167.

[4] See also Lord Hope’s words in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46; [2012] HRLR 3 at [50] to [51], and, more recently, Lord Carnwath’s words in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] HRLR 13 at [144].

[5] For examples of common-law constitutional rights in action, see, R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] ICR 1037 at [66] to [85] and R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514 at 531. Mark Elliott and Kirsty Hughes’ volume Common Law Constitutional Rights (Bloomsbury 2020) attests to this developing area of the law.

[6] Notwithstanding Lord Reed’s challenging comment this week in the Scottish UNCRC case [2021] UKSC 42 at [50].

[7] Lord Hope in Jackson at [107].

[8] Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Bloomsbury 2020); UNISON; A v BBC [2014] UKSC 25; [2015] AC 588.

The Kingsland Cup 2021… Or How I Learned to Stop Worrying and Love the Moot

Posted on Oct 4, 2021 by Lois Lane

Last Thursday, after a year of virtual advocacy exercises, I took part in my first ever in-person moot. The Kingsland Cup and Prize Moot is run annually by Francis Taylor Building. Named in honour of Lord Kingsland QC, it covers a wide range of public, environmental and European law topics. Participants tackle two moot problems over the course of three rounds, with a paper sift of skeleton arguments followed by two ‘live’ rounds.

The 2021 final took place last week and my teammate, Tom Lambert, and I were fortunate enough to be declared the winners after a closely matched competition with an excellent team from the University of Oxford. It was judged by Sir Keith Lindblom, Senior President of Tribunals, and Professor Alison Young, Sir David Williams Professor of Public Law at the University of Cambridge. I am extremely grateful to both of them for giving up their time and to Esther Drabkin-Reiter and Michael Brendan Brett from FTB for organising this year’s competition and setting two fascinating and finely balanced moot problems.

The first round and semi-final involved a highly technical planning law problem, focusing on whether a Lawful Development Certificate (LDC) can be granted under s. 191 Town and Country Planning Act 1990 (“the 1990 Act”) to certify that a site has ‘nil’ planning use, and the circumstances in which a previous use may be said to have been abandoned. The claimant was a local authority, which had refused to grant an LDC to a multiplex cinema chain to certify that a recently acquired site had nil use. That refusal had been overturned on appeal by a planning inspector, who decided that s. 191 gave him the power to grant an LDC for nil use and that he was justified in granting one in the present circumstances, on the basis that the previous use of the site as an independent cinema had been abandoned. The multiplex chain appeared in the proceedings as an interested party but was not represented by counsel.

The claimant brought a judicial review on two grounds:

The Decision by the Inspector was unlawful on the basis that there was no power to grant a Lawful Development Certificate under s. 191(1)(a) of the 1990 Act for a ‘nil’ use.

The Inspector erred in law in concluding that the use had been abandoned.

For the first round, teams had to submit two skeleton arguments, one for the claimant and one for the defendant. Four teams were then selected to go forward to the semi-final, which took place on Zoom in April this year, with the claimant and defendant roles in each semi-final being assigned at random. Tom and I were representing the claimant local authority. Alongside a team from the Inns of Court College of Advocacy, we battled our way through some significant technical difficulties to present our submissions.

On Ground 1, which I took, the case ultimately turned on the somewhat esoteric semantic question of whether the phrase “any existing use of buildings or other land” in s. 191(1)(a) of the 1990 Act extended to cover nil use. Could “any” also encompass “none” or did it have to refer to a positive use? I was both gratified and slightly disappointed when Sir Keith Lindblom, who also judged our semi-final, beat me to the King Lear quote I had planned to include in my summing up (“nothing will come of nothing”) in one of his interventions. One of our central submissions was that, since planning enforcement action cannot be taken against a site that truly has nil use, the only possible reason the interested party could have had for wishing to obtain an LDC was to circumvent the ordinary planning process and the policies in the Local Plan designed to prevent the loss of grassroots leisure and entertainment venues.

Ultimately, although he reserved judgment, Sir Keith indicated that he was inclined to agree with the claimant’s position that the provisions of s.191 did not extend to nil use. This was primarily due to the plain meaning of the words in the statute but also because of the impossibility of enforcement action against a site that has truly been abandoned and has no planning use.

We advanced to the final and out of my comfort zone. Having previously worked in housing policy, I was at least somewhat familiar with planning legislation and policy, even if the provisions around Lawful Development Certificates were new to me. The problem for the final, however, involved a range of legal issues with which I was less familiar, including the relationship between Article 8 and Article 10 of the European Convention on Human Rights, the nature of proportionality review and whether or not consistency should be accepted as a freestanding ground of judicial review. Perhaps inspired by a certain viral parish council meeting earlier this year, it was an appeal to the Supreme Court concerning the decision by a District Council Monitoring Officer to sanction a parish councillor for breaking the parish council Code of Conduct with an unruly outburst in an online meeting.

Though clearly inspired in part by the Jackie Weaver saga, the facts of the case and the legal issues raised were actually most similar to those in R (on the application of Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), where the High Court quashed the decision of a Deputy Monitoring Officer to sanction Cllr Clive Robinson over comments he had made about fellow councillors, which were said to be in breach of the PC Code. The court in Robinson held that the sanction represented a disproportionate infringement on Mr Robinson’s right to freedom of Expression under Article 10 ECHR, and therefore a violation of s. 6 of the Human Rights Act 1998.

The case in the Kingsland final centred on whether or not the decision to uphold a complaint against a councillor for saying “You do not have the authority to do this, Alice Tinker! You can’t just expel them from the meeting, face up to the accusations of incompetence, you big girl’s blouse!” was a similarly disproportionate interference with his Article 10 rights, and whether it mattered that a similar complaint against Ms Tinker had been decided differently. The grounds of appeal were:

The judge at first instance erred in finding that the speech in question was not supported by case law on protection of political speech and/or that the decision to uphold the complaint was proportionate.

The judge erred in finding that she could not consider consistency as a freestanding ground of review.

As the final was in person, each team was required to bring two hard copies of the bundle, one for ourselves and one for the judges. With nearly 500 pages of authorities between us, this meant that each team arrived with around 1000 neatly tabulated pages, which certainly helped add to the illusion that we were taking part in a real hearing.

This time, Tom and I were acting for the respondent and again I took Ground 1. I submitted that the Monitoring Officer was correct to decide that the quoted portion of Cllr Trott’s outburst was not political speech and should not therefore be afforded enhanced protection under Article 10, drawing heavily on the judgment in Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin), [2014] 4 All E.R. 269, which distinguished between “matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others” on the one hand and “gratuitous personal comments” on the other, and held that the former would be classed as political speech, while the latter would not [38(v)]. I characterised Cllr Trott calling Cllr Tinker a “big girl’s blouse” as a gratuitous personal comment.

I also submitted that the sanction was justified on the basis of the qualifications to the right to free expression in Article 10(2) ECHR, in light of the need to balance Cllr Trott’s Article 10 rights against Cllr Tinker’s right to a reputation under Article 8. Finally, I submitted that proportionality is not a substitutionary review, and an appellate court should therefore uphold the decision of a lower court, provided it is satisfied that the lower court carried out the balancing exercise correctly, even if it might itself have come to a different conclusion on the facts. On this last point, I deployed a cricketing analogy, likening the process of proportionality review in an appellate court to a scenario in which hawk-eye indicates that a DRS review of an LBW decision remains “umpire’s call”.

Our opponents, Daniil Ukhorskiy and Amy Gregg, made some excellent arguments drawing on the jurisprudence of the European Court of Human Rights, about the difficulty and undesirability of disaggregating comments made in the heat of the moment and separating them into categories of political and non-political speech. Tom was extremely patient with me as I dealt with numerous judicial interventions on the plausibility of such disaggregation and overran my allotted time, leaving him with only ten minutes or so to make his submissions on whether consistency should be accepted as a freestanding ground of judicial review.

On Ground 2 the key questions were whether or not the case law indicates that consistent administration can be viewed separately from the doctrines of irrationality and legitimate expectation, and whether it would be desirable for it to stand alone as a ground of review in its own right. Counsel for the appellant submitted that the Supreme Court’s judgment in R (on the application of Gallaher Group Ltd and ors) v The Competition and Markets Authority [2018] UKSC 25, [2019] A.C. 96 was only authority for the fact that equal treatment is not a distinct principle of administrative law. It did not address the issue of consistent administration — that is the obligation for public authorities to apply their policies in a consistent way. Tom submitted in response that such a fine distinction would create unnecessary confusion in the law and that there was, in any event, no need to draw it. Decisions which might fall foul of a doctrine of consistent administration would probably be overturned anyway on the basis of irrationality or the frustration of legitimate expectations.

The judges deliberated for around fifteen minutes and, while they again reserved their judgment, they suggested on Ground 1 that the appellant’s position on the disaggregation of intermingled comments would likely be accepted, though they agreed that the role of the court in a proportionality review was not to remake the decision. On Ground 2, Sir Keith questioned whether it really mattered if consistency was officially accepted as a freestanding ground of review or not, since the facts of the case clearly indicated that Cllr Trott was not treated fairly by the Monitoring Officer and the decision might therefore have been deemed to be unsound on that basis. However, he did conclude by suggesting that the law should not be like mushrooms (a running theme throughout counsel’s submissions) and multiply grounds of review excessively.

Had this been a real case, we likely would have lost, since the judges indicated that they probably would have allowed the appeal, at least on Ground 1. Fortunately for us, however, mooting is not real life and we were declared the winners by an extremely narrow margin. Competing in this year’s Kingsland Cup has been a wonderful experience. It has taught me a great deal, both about the relevant areas of law and about online and in-person advocacy. I would highly recommend the competition to anyone with an interest in public law.

Green and Pleasant Blog

Monthly Archives: Oct 2021

Over my dead body: Privacy rights of the deceased under the ECHR

A canary in the coal mine? Why the UK legal system is ill-equipped to deal with the climate crisis

Saint George on a bicycle: Why we should repeal the Human Rights Act

The Kingsland Cup 2021… Or How I Learned to Stop Worrying and Love the Moot