Monday, 8 August 2011

Human Rights nonsense


Sundry journalists and politicians seem to be working themselves into a quite unnecessary lather over a Swedish case in the European Court of Human Rights (Khurshid Mustafa and Ttarzibachi v. Sweden - application no. 23883/06), in which judgment was given as long ago as 16 December 2008. This arose from a tenancy dispute about a satellite dish, which the tenants had refused to remove as their landlord had demanded. In eviction proceedings, the Rent Review Board found in favour of the tenants but, on appeal to the Swedish Court of Appeal, that decision was overturned and an eviction order was granted. The case then went to the ECHR, where the tenants alleged that their eviction from their flat due to a refusal to remove the satellite dish involved violations of Articles 8 and 10 of the Convention.

The ECHR dealt with the matter entirely in relation to Article 10, which states that “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.” It is important to understand that in this case, the tenants (who were Iraqi in origin) particularly wished to use the satellite dish to receive TV broadcasts in Arabic and Farsi. The tenants complained that their freedom to receive information had been breached, as the restrictions imposed on them either had not been prescribed by law or had been more far-reaching than necessary in a democratic society. Moreover, they claimed that the consequences – the eviction from their flat and the move to another town – had been disproportionate to the aims pursued.

The ECHR held that the Swedish Court of Appeal's ruling (that the applicants' tenancy agreement should be terminated because of their refusal to dismount the satellite dish in question) amounted to an “interference by a public authority” in the exercise of the rights guaranteed by Article 10. The ECHR particularly noted that the tenants wished to receive television programmes in Arabic and Farsi from their native country or region. That information included, for instance, political and social news that could be of particular interest to the applicants as immigrants from Iraq. Moreover, while such news might be the most important information protected by Article 10, the freedom to receive information does not extend only to reports of events of public concern, but covers in principle also cultural expressions as well as pure entertainment. The importance of the latter types of information should not be underestimated, especially for an immigrant family with three children, who may wish to maintain contact with the culture and language of their country of origin. The right at issue was therefore of particular importance to the applicants.

The Court stressed that it had not been claimed that there were any other means for the applicants to receive these or similar programmes at the time of the impugned decision than through the use of the satellite installation in question, nor that their satellite dish could be placed at a different location. They might have been able to obtain certain news through foreign newspapers and radio programmes, but these sources of information only cover parts of what is available via television broadcasts and cannot in any way be equated with the latter. Moreover, it had not been shown that the landlord later installed broadband and internet access or other alternative means which gave the tenants in the building the possibility to receive these television programmes.

The Swedish Court of Appeal had found that, while the tenants' interest in receiving the television broadcasts had to be taken into consideration, their right to freedom of information did not have such a bearing on the case that it could be considered to have any real importance. This led the ECHR to conclude that the Swedish Appeal Court, in weighing the interests involved, failed to apply standards in conformity with Article 10. The ECHR attached particular importance to the actual outcome of the case, which resulted in the tenants' eviction from the flat in which they had lived for more than six years. The applicants had stated that, as a result of this, they had to move to another city with negative consequences of a practical, economic and social nature. The Court considered that evicting the applicants and their three children from their home was a measure which could not be considered proportionate to the aim pursued.

Having regard to these factors, the ECHR concluded that, even if a certain margin of appreciation was afforded to the national authorities, the interference with the applicants' right to freedom of information was not “necessary in a democratic society” and that the respondent State failed in their positive obligation to protect that right. There had accordingly been a violation of Article 10 of the Convention. In those circumstances, the Court did not find it necessary to consider the alternative claim in respect of Article 8.

What seems to have caused such a fuss, some two-and-a-half years after this case was decided, is that in March of this year the Equality and Human Rights Commission issued a document entitled “Human Rights at Home (Guidance for social housing providers)”, which referred to this case. Interestingly, the document does not refer to Article 10 but, in citing the ECHR decision, incorrectly refers to Article 9!

It seems that Grant Shapps, the housing minister, has finally got round to reading this document, several months after it was published, and he is widely quoted as having said (presumably in reference to the Swedish case) that the Human Rights Act threatens to drive “a horse and cart through planning laws and tenancy agreements”. That is palpable nonsense. As the Equality and Human Rights Commission pointed out in response to Shapps’ precipitate and ill-considered remark, “There is no human right to satellite TV.” The human right in the example they gave in their guidance note referred to the right to practise one’s religion (under Article 9), whereas the Swedish case was exclusively concerned with Article 10 (freedom of expression, and freedom of information). However, as the Commission have pointed out, this is only an illustration of how the law might apply in exceptional circumstances, nor should it be taken out of context. Only the courts can decide if someone’s human rights have in fact been breached.

As the Commission also explained, the “Human Rights in Social Housing” guidance note was produced with expert input from an Advisory Group consisting of social housing providers, representative organisations of social housing providers, central government - including Shapps’ own department (!) - and other regulators. It has been well received by the sector.

Most importantly, and the reason for my taking an interest in this particular brouhaha is that, as the Equality and Human Rights Commission has also pointed out, the example quoted in their guidance note (and the Swedish case itself) refers to "standard terms of tenancy", not to planning law.

It is nonsense to suppose that the Swedish case could have any application to planning law. There are permitted development rights for satellite dishes in the General Permitted Development Order, and any restriction on such rights, for example in conservation areas, (or their removal by an Article 4 direction) would undoubtedly be seen as entirely proportionate, and could not bring the UK authorities into conflict with the European Court of Human Rights. Nor would a refusal of planning permission for a satellite aerial (if needed) have that effect. To suggest otherwise is either disingenuous or just plain ignorant.

So it’s a D-minus for Shapps, G. Go to the bottom of the class, Shapps.

[By the way, in case there are any loony Eurosceptics out there who happen to read this piece, the European Court of Human Rights has absolutely no connection with the EU. It was set up long before the Common Market. We signed up to the European Convention on Human Rights, which is enforced through the Court, some 60 years ago! The Human Rights Act, which incorporates the Convention into our domestic law, has had far less of an impact on our law than some Tory MPs and other right-wing nutters would like to believe. There is absolutely no justification for seeking to repeal the Act, and idiotic outbursts like this recent one from Grant Shapps serve only to undermine the credibility of those who would seek to do so.]

© MARTIN H GOODALL

3 comments:

Evan Owen - Snowdonia said...

"There is absolutely no justification for seeking to repeal the Act"

I agree, all the Act does is allow UK residents to avoid having to go all the way to the ECtHR.

Anonymous said...

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Martin H Goodall LARTPI said...

This blog is hosted on ‘Blogger’. ‘Wordpress’ is another alternative - it’s purely a matter of personal preference. Both have the advantage of being free to the blogger, but the downside is that you don’t have total control over what you can do with the blog. The alternative of a paid option obviously gives you much more freedom, particularly if you want to exploit it commercially, but there is then the issue of cost.

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