Right to a fair trial

judges gavel

For reasons, which to my friends will will be obvious, I feel the need to post the text of Article 6 of European Convention on Human Rights.

ECHR Article Six

  1. a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:
    • a.  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    • b.  to have adequate time and the facilities for the preparation of his defence;
    • c.  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    • d.  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    • e.  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
 …

Nelsen & Others vs. Evans

Nelsen & Others vs. Evans

During the week, Judge Butcher delivered a disappointing ruling in Neslen & Others vs Evans. Diana Neslen and her co-plaintiffs were suing the Labour Party over their treatment under the disciplinary code. This is  reviewed at the Mirror, Morning Star by Ammar Kamzi, who has also posted a blog article, , and presented in judgement form at Bailli.

Most disappointing is the idea that the accused do not need to know the charge against them, merely the gist and that the Labour Party’s investigation policy can be secret. I have argued before that the absence of a policy to guide investigators was just deplorable, but the Judge seems to think it’s OK.  Apart from being against the Party’s values, this would all seem to be in contradiction of ECHR Article 6.

I might read the judgement and comment further. I’d be interested to know if C2.II.7, a member’s right to fair treatment was deployed.

I feel disappointed that I took my foot of the accelerator over the need to incorporate the ECHR into Labour’s Rules.

Some of us who had more hope in judicial review may need to think our strategies. …

Wiggle room on human rights law

Wiggle room on human rights law

I made a linkedin blog on the ECtHR’s margin of appreciation. I was reading up on the UK’s post Brexit data sharing arrangements with the EU, and under the terms of the GDPR. I was diverted by the ECHR’s doctrine of a “margin of appreciation”.

Broadly speaking it refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.

Steven Greer Reader in Law, University of Bristol,United Kingdom

Human Rights law is designed to constrain governments but will always require interpretation. The doctrine means that the rights of interpretation are shared between the ECtHR and the signatory states, who themselves will divide this between their courts and executive branch.  

This seems sensible, as I observed, when the British courts were busy interfering with the CPSA in the ‘80’s and undermines the argument of foreign interference because where there is a benefit of doubt, the ECtHR can allow the otherwise infringing government that benefit.

With respect to the cross border transfer regulation, this might make it easier to comply with the law, but there are several outstanding problems. With respect to international data sharing, the most relevant to the doctrine of appreciation and this article is that, the UK is now an ex-member-state and while the Commission argues this means that the UK’s data protection regime is suitable, the fact it is now a 3rd country means that the UK has less legal privileges to exercise its “margin of appreciation” as the powers granted to member states to vary/diminish the protections in Article 23, no longer apply. This was observed and commented on by the House of Lords Select Committee report on Brexit in 2017. See also,

I was reading this article, which makes it much clearer, that the ECtHR looks to defer to national institutions, where it can,

According to the classical position of the ECtHR State authorities “are in principle in a better position than the international judge to give an opinion” on the “necessity” and “proportionality” of a derogation or restriction authorized by human rights law. As a consequence, international courts “should grant national authorities an important degree of deference and respect their discretion” with regard to the implementation of exceptions. Thus, without precluding judicial review of a State’s action in this field, the doctrine intends to “limit the scope of this review” and to impose some degree of judicial self-restraint where an assessment of the attitude of national authorities is concerned.

Theodre Christakis

 …

Compliance in Government

Compliance in Government

It’s hard to understand what’s happening inside Johnson’s Cabinet, but there has been much, mainly adverse comment on the appointment of Suella Braverman as Attorney General. The AG is the Government’s Lawyer and there have been great lawyers performing this role, in fact often, Government’s have made their chosen candidates members of the House of Lords so that they can get the talent they need without having to filter it through the choices of their local associations/CLPs. You can find comments about the suitability of Ms Braverman elsewhere, but many commentators are worried about the resuscitation of the Tory demand to leave the ECHR and the Home Office’s continued breaking of the law.

Human Rights law is written to protect people from the power of the state!

Another thing that worries me is that I have observed in business, the growing organisational dichotomy between legal departments and compliance. The former tells a company what it can do, and the latter what it can’t and grasses the company up if it believes itself to be in breach of the law. It’s important that Government, particularly the Home Office and DWP get good and safe advice from their legal team, especially if they plan to weaken access to judicial review.

Image Credit: from flickr, CC Marco Vetch 2018 BY …

Dignity and respect at work

I was writing a motion for GMB Congress on Bullying and came across this, from one of the ACAS codes, as part of the definition,

Everyone should be treated with dignity and respect at work

I thought that maybe there’s a human rights dimension so went to check out the European Convention on Human Rights since we are losing the EU’s Charter of Fundamental Rights which does include it. Nope! ECHR doesn’t! Well done! …

Freedom of Information

I have been looking at a couple of association/organisation constitutions, both of which have rules controlling the way in which some people, by which we mean those in a minority, can communicate information about the conduct of business to members and/or the public. On thinking about it, I wonder if these rules fall foul of the ECHR Article 10 rights, the freedom of speech right. While the US version is famous, and rightly so, it is much more explicit about speech and publication, the European version, talks of the right to receive information.

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.

  …

Sovereignty

Sovereignty

I don’t think the facts around Human Rights and Sovereignty are being well exercised. I have just seen a post on Facebook where someone claimed that Britain was being ruled by the ECHR in Strasbourg. In the words of Captain Blackadder, there’s only one problem with this theory. I thought I’d put this right …

An act of misdirection

An act of misdirection

And so now the “Data Retention and Investigatory Powers Bill” is now law. The fallout from Cameron’s cabinet reshuffle pretty much drowned it out, but we need to ask how much of the rush towards the law is actually caused by the Euroscepticism of the Tory Party. The European law dimension will return to Parliament before the general election and the firing of the Attorney General, Dominic Grieve who may have been one of the chief obstacles inside the cabinet may have been a necessary step to securing the laws passage. They would have looked foolish having got the LinDems and Labour on board and failing to get the Attorney General.  What was the cause and what was the effect? …