Strasbourg scorecard
Strasbourg scorecard
UK discloses how many human rights cases it has lost and what it plans to do
The Ministry of Justice has published a comprehensive list of all the cases that the United Kingdom has lost at the European Court of Human Rights during the 12 months from August 2021 to July 2022.
The total number of government defeats is two.
In a report to parliament’s joint committee on human rights, the government has also announced how it is proposing to give effect to these rulings — as it is required by the human rights convention to do.
In one case, it is asking parliament to create a new compensation power. In the other case, it says, no further action is required.
Explaining to the joint committee why it sees the need to reform and replace the Human Rights Act 1998, the government complains that “mission creep has resulted in human rights law being used for more and more purposes” and says its Bill of Rights Bill will allow it “to restore some common sense to our human rights laws”.
SW v UK
The first of the two cases that the government lost during the year 2021/22 was brought by an unnamed woman referred to as SW — short for “social worker”. She gave evidence in family proceedings heard in 2014 by a circuit judge sitting in the High Court. The judge was required to consider whether an individual had suffered sexual abuse. In the event, he found that none of the allegations had been proved.
Lord Justice McFarlane, giving judgment in the Court of Appeal in 2016, takes up the story:
In addition to dismissing the sexual abuse allegations, the judge felt driven to include in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker and an individual police officer, both of whom the judge proposed to name.
The judge concluded that SW had plotted with others “to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines”. However, none of those implicated in the judge’s ruling had been told about the allegations against them during the hearing. They said these highly adverse findings “came out of the blue” for the first time in the judgment.
The Court of Appeal found that there had been a breach of human rights and set aside the judge’s findings against SW, a police officer and the local authority.
However, those findings had already been passed to SW’s employer and professional bodies. She lost her job and became ill. But she was unable to claim compensation because section 9(3) of the Human Rights Act 1998 says that “in respect of a judicial act done in good faith, damages may not be awarded” except for unlawful detention.
SW took the UK to the human rights court, which delivered its judgment in June last year (though it did not become final until September).
Ruling in her favour, the Strasbourg court concluded
that the judge’s direction that his adverse findings be sent to the local authorities and relevant professional bodies without giving the applicant an opportunity to meet them in the course of the hearing interfered both unlawfully and disproportionately with her right to respect for her private life under article 8 of the convention.
She had also been denied an effective remedy. The court awarded her damages of €24,000 plus €60,000 costs against the government.
In response to the ruling, the Ministry of Justice has added a provision to the Bill of Rights Bill. Clause 19 largely replicates section 9 of the 1998 but adds an additional exception, allowing a damages claim
to compensate a person for a judicial act that—
(i) is incompatible with Article 8 of the Convention, and
(ii) is inconsistent with the requirements of procedural fairness.
Rita Pal v UK
The second defat was in a case was brought by Dr Rita Pal, a writer and former NHS psychiatrist. She was arrested by the Metropolitan Police and detained for seven hours in 2014 after writing an article about another writer with whom she had a long-running dispute. Pal was charged with harassment, to which she pleaded not guilty.
In August 2015 the case was dropped by the Crown Prosecution Service and Pal was awarded her legal costs from central funds.
In November 2021, the human rights court found that her arrest and detention had been in breach of Pal’s right to freedom of expression under article 10 of the human rights convention. She was awarded €2,500 damages and €1,400 costs against the government.
The government notes that Pal’s arrest followed the issue by the police of a “prevention of harassment letter”. These are no longer used.
It “considers no further individual measures are required because there is no ongoing consequence for the applicant or wider application from what was an unusual incident over seven years ago”.
Comment
The fact that the UK lost just two cases in the course of a year should come as no surprise. As the government says, applications to the court against the UK “have been on a general downward trend over the last 10 years”:
By population, the UK has the fewest applications of all states at 3.1 per million. The number for all states combined is 52.8 per million.
The Ministry of Justice report also lists six cases that the government has not yet resolved. One, relating to killings in Northern Ireland, goes back more than 20 years. The Northern Ireland Office outlined its latest proposals on that case yesterday.
The Council of Europe’s committee of ministers will consider that response together with others provided by the government at a meeting beginning today in Strasbourg. The committee oversees the execution of judgments on the basis of information provided by national authorities, applicants and other interested parties.
Declarations of incompatibility
The government report published yesterday also lists unresolved declarations of incompatibility. These are made by a court under section 4 of the Human Rights Act 1998 when it considers that a statute does not comply with the human rights convention but is unable to “read it down” or reinterpret it under section 3.
One of these was made by the Supreme Court more than four years ago in a case I discuss in my book Enemies of the People? — an ideal seasonal gift for anyone contemplating a career in the law.
It was brought by Siobhan McLaughlin. She never married her partner John Adams during the 23 years that they lived together in Belfast. “I naively thought that the longer you were together as a couple the more rights you had,” she told a reporter after he died in 2014. “Our four children had their dad’s name. To me it was just a ring and a bit of paper — the commitment was the same.”
But of course it was not, as McLaughlin discovered when she applied for a social security benefit known as widowed parent’s allowance. The Northern Ireland department for social development rejected her claim because she was not a widow. The couple had not formalised their relationship because Adams had promised his first wife that he would never remarry. By the time McLaughlin became aware that she and Adams would cease to be regarded as a couple for social security purposes after his death, he was terminally ill and heavily medicated.
By a majority, the court decided that the law was incompatible with article 14 of the convention, read together with other articles, because it discriminated against the surviving unmarried partner of a deceased person. As I report in my book, Lady Hale, for the majority, was apparently influenced by the early death of her own father in concluding that the benefit was intended for the children, not the surviving partner.
The government accepted that it would need to put matters right across the United Kingdom. But it seemed in no hurry to spend public money.
The judgment was in August 2018. My book went to press in September 2019 for publication the following spring. Was there a risk that the government would announce a legislative change in the meantime? I played safe by writing:
More than a year after winning her declaration of incompatibility, Siobhan McLaughlin had not received the money that was by rights hers. Neither had any other surviving cohabitant.
I had no need to worry about being overtaken by events. The government did not lay a draft remedial order before parliament until October this year. The delay in doing this was “extremely disappointing”, the joint committee on human rights says in a report published this morning. “While these delays took place, the law continued to discriminate against surviving cohabiting partners and their dependent children, denying them access to important benefits, in violation of their rights under the European Convention on Human Rights.”
Compensation will be backdated to the date of the Supreme Court ruling. But the committee of MPs and peers had urged the government to commence payments from the date that the High Court of Northern Ireland handed down its original declaration of incompatibility in the McLaughlin case.
The committee says today:
We are disappointed that the government have rejected our suggestion that the remedial order should have retrospective effect from 9 February 2016 rather than 30 August 2018, because this means that many cohabiting partners who have suffered as a result of the discriminatory effect of the bereavement benefits system, including the claimant in McLaughlin, will not be provided with a remedy.
We are also disappointed that our alternative suggestion of an ex gratia scheme has not been taken up and would ask the government to reconsider.
Despite other concerns, the committee recommends that the draft remedial order should be approved by parliament.
That’s good news for McLaughlin and her children — but it would have been even better if they had received the money they were entitled to while the children were still growing up.
Update 8 February 2023: the Bereavement Benefits (Remedial) Order 2022 has been approved by parliament and benefits will be available from tomorrow.