humanrights.scot

Human Rights and Rule of Law, Faculty of Advocates’ Committee

humanrights.scot

Smoking, article 8 and secure accommodation

There is no human right to smoke. So held Lord Stewart while allowing a petition for judicial review of the decision of the State Hospital Board for Scotland, responsible for management of the State Hospital Carstairs to introduce a complete prohibition on smoking at the State Hospital. Less striking, perhaps, but of wider importance is the consideration of the scope of Article 8 ECHR by the Second Division of the Inner House of the Court of Session in allowing the Board’s reclaiming motion (appeal) from that decision.

Article 8 addresses both family and private life, and this case concerns the private life element. There are of course several strands to the private life case law both domestic and from Strasbourg, covering, inter alia, physical and psychological integrity, personal development, and establishing and developing relationships with other people. Patients resident at the State Hospital are detained there by virtue of an order made either by a court or by the Mental Health Tribunal for Scotland, and are not free to leave the hospital. So that requires the court to consider the conditions of detention.

In that connection, the Second Division held that:

“While detainees continue to enjoy the right to respect for private and family life under Art 8, the scope of that right is necessarily restricted to protection from interference beyond that which inevitably flows from the circumstances of lawful imprisonment or other detention.”

In that respect, the court observed, it was important to recognise the practical differences that necessarily and reasonably arise between life in a private home and life in a secure institutional environment.

Agreeing with the Court of Appeal in a case relating to prohibition of smoking in a high security hospital in England, the Second Division concluded that

“a comprehensive smoking ban does not, in such an institution, have a sufficiently adverse effect on a person’s physical or psychological integrity or his right to personal development as to merit protection.”

With the result that the majority held that Article 8 was not engaged at all. The court further held unanimously that if Article 8 was engaged, interference was proportionate in terms of Article 8(2).

It will be evident that amongst the issues which are raised by the decisions at first instance and on appeal, is the interaction of lawful detention by the state with the personal autonomy aspect of Article 8. While there has been some case law in this area, it remains relatively novel. An appeal by the patient is due to be heard by the UK Supreme Court in the autumn of 2016.

(Full disclosure: Kenneth Campbell QC is counsel for the respondent in the appeal to the UK Supreme Court)

Janys Scott QC has argued that there is no conflict between the rights of children reflected in the United Nations Convention on the Rights of the Child and the protection of fundamental rights and freedoms set out in the European Convention on Human Rights.

Janys Scott QC has argued that there is no conflict between the rights of children reflected in the United Nations Convention on the Rights of the Child and the protection of fundamental rights and freedoms set out in the European Convention on Human Rights.

In June this year the Faculty of Advocates was host to the third annual colloquium on the United Nations Convention on the Rights of the Child. Expert contributions were presented from the northern and southern hemispheres to discuss “Doing the ‘Best’ for Children and Young People? Best Interests, Welfare and Well-being”. The focus was on article 3 of the United Nations Convention on the Rights of the Child which requires institutions, courts of law, administrative authorities or legislative bodies to make the best interests of the child a primary consideration.

Contributions ranged across many areas of public intervention in the lives of children in a variety of legal proceedings from issues connected with domestic violence to adoption and child offenders to child victims of offences. There were perspectives from South Asia, South Africa, the United States, Norway, New Zealand, Finland, Australia and closer to home. Inevitably the meeting was a mixture of encouragement in relation to the increasing focus on the interests of children and concern at how much more could be done, but the exchange of ideas and experiences left much for room for thought.

As a ‘home’ contributor I addressed the question of whether there is a conflict between upholding rights protected by the European Convention on Human Rights and giving primary consideration to the best interests of children. I was able to draw on recent cases in Strasbourg, in Scotland and in England to demonstrate that the European Convention on Human Rights has promoted the protection of children and encouraged good practice in cases where public authorities have sought to intervene. The United Nations Convention on the Rights of the Child is regularly drawn on to give content to the rights of children when applying the European Convention on Human Rights. Where there has been any real conflict between the rights of adults and the rights of children in relation to the exercise of family life, the best interests of children have prevailed.

Cambridge University Press are about to publish a book entitled “Implementing Article 3 of the United Nations Convention on the Rights of the Child” edited by Sutherland and Barnes. This contains all the papers from the colloquium and promises to be a good read.

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