Analysis of the Morality Bill

Problem Question

This essay discusses the Morality Bill 2018, which contains policies related to the bar on same sex marriage; restricted release of prisoners; criminalisation of abortion; death penalty and ban on all forms of pornography. In this essay, the possible interpretation of these laws by the European Court of Human Rights (ECtHR) is discussed with reference to ECtHR jurisprudence.

The doctrine of margin of appreciation developed by the ECtHR allows Member States to deviate from the standards provided in the ECHR in response to national conditions and local situations, which the states may use as a justification for not applying the ECHR rights. States may therefore deviate from ECHR principles if they can base such deviation on the grounds of national security, religious feelings, and even local morality. This would mean that although ECHR in general would protect the rights of individuals to marry and found families under Article 8, the states could make laws that could restrict certain kinds of marriages or other family rights. An example can be seen in Frette v France, wherein the ECtHR allowed France to make a law that prohibited homosexual couples from adoption of a child. The margin of appreciation does not always allow the state to deviate from the rights protected by the ECHR; in EB v France, the ECtHR took a different position from Frette with respect to adoptions by homosexual couples. However, the ECtHR has given states a wide margin when it comes to moral issues.

Ban on same- sex marriage

Same sex marriage is a qualified right under the ECHR, which means that the right is not guaranteed under the ECHR and depends on the national law interpretation of the same. Article 12 of the ECHR protects the rights of individuals with relation to marriage and provides that “men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” Article 8 provides the right to private and family life. The question of whether homosexuals have a right to marry is one that has come up before the ECtHR and therefore, there is established jurisprudence on this issue. In Christine Goodwin v UK, the court did take a view that is more accepting of recognition of new sex identity of transsexuals and their right to marry. However, in the more recent case of Chapin and Charpentier v. France, the ECtHR unanimously held that there is no guaranteed right to marriage for homosexual couples under Articles 8 and 12. Chapin follows established jurisprudence of ECtHR, which considers the right to marriage to come within the domain of family laws in the state. In Schalk and Kopf v. Austria, the court held that homosexual marriage is subject to the national laws of the states. In Gas and Dubois v. France, the court held that Article 12 reaffirms the traditional concept of marriage as a marriage of man and woman. which is the union between a man and a woman and does not impose an obligation on states to recognise homosexual marriages.

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1. G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.
2. Ibid.
3. Frette v France, (App no 36515/97) ECHR 2002-I.
4. E.B. v France [GC], (App no 43546/02) ECHR 2008.
5. ECHR, Article 12.
6. Christine Goodwin v UK [GC] (App no 28957/95) ECHR 2002-VI.
7. Chapin and Charpentier v. France ECHR (2016) No. 40183/07.
8. Schalk and Kopf v Austria [2010] 30141/04.
9. Gas and Dubois v France (2012) (application no 25951/07).

Similar observation was made by the court in Hämäläinen v. Finlande. With the recent decision of the court in Chapin and Charpentier v. France, it is confirmed that there is no right of homosexual marriage under Article 12 of the ECHR. Moreover, the court has referred to the doctrine of the margin of appreciation in restating that the state has the power to make laws that are suited to its national conditions, including national morality. Considering this jurisprudence, it is concluded that the UK can make a law that prohibits homosexual marriages and justify this under the doctrine of margin of appreciation.

Home imprisonment

Article 5 of the ECHR protects the right to liberty and security of person. Article 5 protects the physical liberty of the person, with the aim to ensure that no person is deprived of that liberty in an arbitrary fashion.

Article 5 provides a qualified right, which means that the state can impose certain restrictions on the right. Restrictions that are put on a person come within the scope of Article 2 of Protocol No. 4; these concern mere restrictions on liberty of movement. Whether Article 5 of ECHR is applicable or Article 2 of Protocol No. 4 is applicable will depend on the degree and intensity of the restriction and not the nature or substance of the restriction. In making the determination that someone has been “deprived of his liberty” within the meaning of Article 5 of the ECHR, the court has to consider the whole range of criteria, which includes the type, effects, duration, and manner of implementation of the measure. There are objective and subjective elements that are involved in the deprivation of liberty of a person within the meaning of Article 5 of ECHR. The objective element is confinement of a person in a restricted space for a length of time. The subjective element is the lack of consent of that person so confined. Thus, the court would consider whether the person confined was allowed to leave the restricted area, whether there was supervision and control over his movements, and whether the person was isolated from social contacts. The court held that the house arrest of the individual was a deprivation of liberty within the meaning of Article 5 of the ECHR because it did not comply with one of the permissible grounds under Article 5.

House arrest comes within the scope of deprivation of liberty in Article 5. In a case involving house arrest of a person who was being investigated for a crime, the ECtHR found that the conditions of the person’s confinement to the house and the other restrictions on social contacts was contrary to the provisions of ECHR. The ECtHR found that the house-arrest order was not justified, when the person was not a known risk for absconding. There were restrictions on him, which included limits on communication and his public activities had been suspended.

The new law contains a provision that home prisoners shall be restricted to their homes for 24 hours per a day and under no circumstances, will they be allowed to receive phone calls or visitors. This would violate the provisions of the Article 5 and would be considered

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10. Hämäläinen v Finland [2014] ECHR 787.
11. De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017.
12. Stanev v. Bulgaria [2012] ECHR 46.
13. De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017.
14. Storck v. Germany [2005] ECHR 406.
15. Ibid.
16. Navalnyy v Russia [ 2018] ECHR 1062.

deprivation of liberty within the meaning of ECHR and as per the decision of the court in Navalnyy v Russia.

Criminalisation of abortion

There is no right to abortion under the ECHR, Article 8 because the jurisprudence of the court clearly indicates that the court has to develop a balance between the rights of women as well as the value and sanctity of life. In A, B, & C v Ireland, the ECtHR has noted that Article 8 cannot be interpreted to mean that there is a right to abortion. However, the court also noted that where the law prohibited abortion completely, it creates a situation where women whose lives are threatened in the absence of abortion, there the law can be interpreted as violative of ECHR rights of the woman. The court however noted that states have a margin of appreciation for making laws that prohibit abortions. Based on this jurisprudence, it may be said that the law of the UK government may be interpreted as not being contrary to the ECHR if it is clear and unambiguous.

Death penalty

Article 2 of the ECHR provides the right of all persons to not be deprived of their lives. Article 3 provides the right against cruel and inhumane treatment. Protocol No. 6 to the ECHR provides that states may make laws allowing death penalty in time of war or of imminent threat of war under Article 2. However, Protocol No.13 to the ECHR abolishes death penalty in all circumstances including in time of war. In Öcalan v. Turkey, the ECtHR has held that the punishment by death penalty involves the deliberate and premeditated destruction of a human life by the state. In Al-Saadoon and Mufdhi v. the United Kingdom, the court held that death penalty would be contrary to the prohibition of torture and inhuman and degrading treatment and punishment under Article 3. Considering this jurisprudence, it may be said that the ECtHR may not accept the imposition of death penalty as being not contrary to ECHR principles. The court may consider that the law is contrary to Article 3 of the ECHR.

Ban on pornography

In Handyside v UK, the European Commission held that the UK can make a law that penalises the dissemination of obscene publications. The UK government had made a law that penalised pornographic material and allowed the government to confiscate copies of the publication. The law was made with the objective of protection of morals. The petitioner alleged that the law violated the right to freedom of expression, protected by Article 10(2) of the ECHR. However, the argument was not accepted and it was held that states can make laws that regulate or ban publication of pornographic material. In a recent case, the ECtHR has held that the state can regulate the publication of pornographic material. In particular, the court observed:

“State authorities are in principle in a better position than the international judge to give an opinion on the exact content of the requirements [of morals], as well as on the “necessity” of a “restriction” or “penalty” intended to meet these requirements’.”

The government may be able to justify its law banning pornography on the ground that it has the power to balance the right to freedom of expression and the freedom to disseminate pornographic material.

Essay Question

It would be wrong to say that the laws related to state security in the United Kingdom are imbalanced towards protecting the state over individual liberty. Although there are laws, such as, Terrorism Act 2000, which allow pre-charge detention, there are also safeguards in PACE 1984 for ensuring that the individual rights are protected even under such procedures. It may be said that the UK laws exemplify the balancing of interests of individuals with those of state security. In this essay, a critical appraisal of the statement as to whether laws related to state security in the UK are imbalanced towards protecting the state over individual liberty is conducted. For this purpose, discussion relates to laws like the Terrorism Act 2000, PACE 1984 and the nature of individual liberty protected under ECHR and the common law itself.

The nature of security related laws is such that there is often a question of the conflict between state security and individual liberty. In the UK, this question of the possible conflict between state security and individual security has been subject of judicial discussion in domestic courts and European Court of Human Rights (ECtHR). In Brogan, the European Commission held that detention of terror suspects is a violation of rights protected by the European Convention of Human Rights (ECHR), Article 5. It may be remarked that the concept of liberty is considered to be intrinsic to the common law; this means that although the right to liberty is not enshrined in a Bill of Rights, it is a part of the common law. In the UK, the concept of liberty is residual in nature, meaning that an individual has as much liberty as is not denied specifically by the law. In the context of security related laws, this would mean that individual liberty may be curtailed by the law and in the absence of a Bill of Rights, there would be no specific dimension of liberty that cannot be taken away by the state. However, the operation of the Human Rights Act 1998 has meant that the state cannot make laws that take away the rights recognised by the ECHR.

The British Parliament has attempted to make security laws that have appeared to be overly tilted towards security and away from the interests of the individuals but, there has also been a counter effect of the safeguards for protection of individual liberty. An example can be seen on the passage of the Anti-Terrorism and Crime Security Act 2000, which allowed indefinite detention of terror suspects. For this purpose, the UK government derogated from the ECHR under Article 15 of the convention. The government argued that the question that there existed a public emergency which required such action but the House of Lords refused to

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17. Para 53.
18. Clare McGlynn and Erika Rackley, ‘Striking a balance: Arguments for the criminal regulation of extreme pornography’ (2007) Criminal Law Review-London 677.
19. Stephen Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (London: Bloomsbury 2010) 8.
20. UK v Brogan 11 EHRR 117 (1988).
21. Gary Slapper and David Kelly, The English Legal System (London: Taylor & Francis 2009) 38.
22. Entice v Carrington [1765] 19 St. Tr. 1029.

allow the argument by holding that the provisions of indefinite detention was contrary to the ECHR. It is a British legislation of the Human Rights Act 1998, which allowed the House of Lords to come to this conclusion because Section 4 of the Human Rights Act 1998 allows the British courts to declare incompatibility between domestic provision and the ECHR. Moreover, the application of Police and Criminal Evidence Act 1984 (PACE 1984) has also meant that there are certain safeguards for protecting individual rights within the criminal justice system.

Criminal justice systems in general can either be in the nature of ‘rights based due process model’ or ‘crime control model’, and how the UK balances security with liberty also depends on the model that it follows. A rights based due process model balances the rights of the individuals with security compulsions within the mechanisms of the criminal justice system; on the other hand, the crime control model is focused on control of crime, and there is little emphasis on due process. Therefore, it may be said that a due process model has a higher regard for rights of individuals when they come in contact with the criminal justice system. The UK’s criminal justice system is an example of a rights based due process model as is indicated by the application of PACE 1984, which is applied to ensure that the individuals who come into contact with the criminal justice system are not unduly divested of their rights. It may be mentioned that the principal anti-terror legislation of the UK, which is the Terrorism Act 2000, is itself conceptualised on some important recommendations made by Lord Lloyd’ report. The recommendations were related to the application of the principle of legality by clear definition of offences and provision of safeguards to terror suspects, so as to decrease the conflict between the law and human rights protections under the ECHR, Article 5. Although this legislation allows pre-charge detention in Section 41, there are several safeguards in the legislation itself as well as in PACE 1984. Schedule 8 of the Terrorism Act 2000 provides the process of pre charge detention and includes due process principles to ensure that detention is not arbitrary. PACE 1984, Code H also provides safeguards that are applicable to such cases.

The balance between national security and individual liberties does at times see liberties taking second place; this is particularly true for anti-terrorism laws. However, the Human Rights Act 1998 read with the ECHR does provide a framework within which a balance may be sought between individual liberty and state security. In Sher v United Kingdom, three Pakistani nationals were detained for 13 days and their detention was challenged on grounds of violations of ECHR, Articles 5 and 4. However, their detention was held not to violate Articles 5 and 4 because these detentions were on the basis of the suspicion of an imminent terrorist attack. This case exemplifies how state security can take precedence over individual liberty in certain situations. Some scholars like Clive Walker have expressed concern that there may be an obvious conflict between liberty and security, which needs to addressed; Walker notes: “criminal law has not traditionally been a preventive tool in the United Kingdom … one of the central challenges for counter terrorism policy is how to

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23. A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.
24. Helen Fenwick, Civil Liberties and Human Rights (Routledge Cavendish 2014).
25. Ibid.
26. Colin Turpin and Adam Tomkins, British Government and Constitution (Cambridge: Cambridge University Press 2011) 39.
27. Lord Lloyd, Inquiry into Legislation against Terrorism Cm 3420 (TSMO: London 1996).
28. Ibid.
29. Sher and others v United Kingdom ECHR (5201/11) (2014).
30. Ibid.

deploy the criminal process in support of a preventive strategy in a way which does not undermine the very essence of due process guarantees.” In this context, one may argue that the laws made to protect security of the nation may be too limited in their scope to address the concerns of human rights and individual liberties.

In the UK, one does see a serious attempt to balance the serious concerns of national security and security of human life which is threatened by terrorism, and the concerns of protecting human liberty. An example can be seen in the Protection of Freedoms Act 2012, Section 57, of which notes that the maximum period of detention under the Terrorism Act 2000 should not exceed 14 days. This is an attempt to ensure that while necessary investigations into serious crimes like terrorism can be made more effective through pre-charge detention, the latter should not be indefinite in nature as it involves a serious restriction on a person’s liberty. It must also be considered that the state is under a duty to protect the rights of potential victims of terrorism as well as accused and suspects. The difficult and delicate balancing that this requires from the state has been noted by the UN Office of High Commissioner of Human Rights, which has said that state has to consider the distinction between the victims of crime and the victims of human rights violations on the other. Therefore, when the state makes security oriented laws, it is also making these laws as part of its duty to protect the state and its citizens. The state is considered to be the most appropriate authority to make such laws even under the jurisprudence developed under the ECHR. The doctrine of margin of appreciation is developed by the ECtHR under the ECHR. It provides flexibility to the national governments to deviate from the ECHR standards in case of national conditions that demand such deviation; such conditions can be related to security as well. It may be recalled that Article 15 of the ECHR allows states to derogate from ECHR provisions if there is a war or other public emergency threatening the life of the nation. Therefore, the ECHR itself allows states to make deviations from the ECHR rights if there is a security related national concern that requires such action. This also indicates that the state is not stopped from making laws that are necessary to its security.

To conclude, it may be reiterated that the laws of the UK even if they are oriented to prioritise security over liberty in certain situations, these laws also try to balance individual liberty. The application of safeguards in PACE 1984 and other laws ensure that the laws remain balanced between security and liberty concerns.

Continue your exploration of Analysis of the Lotus Case with our related content.

Cases

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

A, B and C v. Ireland [2010] ECHR 2032.

Chapin and Charpentier v. France ECHR (2016) No. 40183/07.

De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017.

E.B. v France [GC], (App no 43546/02) ECHR 2008.

Entice v Carrington [1765] 19 St. Tr. 1029.

Frette v France, (App no 36515/97) ECHR 2002-I.

Gas and Dubois v France (2012) (application no 25951/07).

Hämäläinen v Finland [2014] ECHR 787.

Handyside v UK (App no 5493/72) (1976) Series A no 24.

Navalnyy v Russia [ 2018] ECHR 1062.

Schalk and Kopf v Austria [2010] 30141/04.

< p>Sher and others v United Kingdom ECHR (5201/11) (2014).

Stanev v. Bulgaria [2012] ECHR 46.

Storck v. Germany [2005] ECHR 406.

Sher and others v United Kingdom ECHR (5201/11) (2014).

Pryanishnikov v. Russia 10.09.2019 (no. 25047/05).

UK v Brogan 11 EHRR 117 (1988).

Books

Fenwick H, Civil Liberties and Human Rights (Routledge Cavendish 2014).

Slapper G and Kelly D, The English Legal System (London: Taylor & Francis 2009).

Sottiaux S, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (London: Bloomsbury 2010).

Turpin C and Tomkins A, British Government and Constitution (Cambridge: Cambridge University Press 2011).

Walker C, Terrorism and the Law (Oxford University Press 2011).

Journals

Letsas G, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.

McGlynn C and Rackley E, ‘Striking a balance: Arguments for the criminal regulation of extreme pornography’ (2007) Criminal Law Review-London 677.

Puppinck G, ‘Abortion and the European Convention on Human Rights’ (2013) 3 (2) Irish Journal of Legal Studies 142.

Reports

Lloyd, Inquiry into Legislation against Terrorism Cm 3420 (TSMO: London 1996).

Others

Office of the High Commissioner of Human Rights Human Rights, ‘Terrorism and Counter- Terrorism’ (Fact Sheet no 32), accessed