"Going to Strasbourg" - 30% discount

Oxford University Press are offering a 30% discount on my new book, Going to Strasbourg: An Oral History of Sexual Orientation Discrimination and the European Convention on Human Rights, which reduces the price from £50 to £35. 

The book can be ordered here and purchasers will need to quote the promotional code ALAUTHC4 (which is valid until 31st March 2017) to obtain the discount. 

E.S. v Spain - communicated case concerning deportation of gay Senegalese national

The European Court of Human Rights has communicated the case of E.S. v Spain. The case concerns the deportation of a gay Senegalese national from Spain to his country of origin and raises the question of whether, in light of his sexual orientation, this would would expose him to a real risk of being subjected to treatment contrary to Article 2 (right to life) and Article 3 (prohibition of torture) of the European Convention on Human Rights.

Same-sex sexual activity is a criminal offence in Senegal. The Court recently rejected an application in a similar facts case concerning Senegal in A.N. v France.

The Court has never held that the deportation of a gay person to a country of origin, outside the Council of Europe, that criminalises same-sex sexual activity amounts to a violation of any aspect of the Convention. For a summary of recent jurisprudence in this area, see here.

"Going to Strasbourg" published this week

I have just received some advance copies of my new book, Going to Strasbourg, which is published this Thursday by Oxford University Press. 

The book, which contains oral history accounts by applicants to Strasbourg who challenged sexual orientation discrimination in the UK, is published just as the UK Conservative government begins another round of criticism of human rights law. 

The UK government looks set to repeal the Human Rights Act 1998 and replace it with legislation that will almost certainly remove or weaken the duty of UK domestic courts to 'take into account' the jurisprudence of the European Court of Human Rights. 

If that was not bad enough, there remains the lingering concern that the UK might leave the ECHR system. The Prime Minister, Theresa May, is an outspoken opponent of the ECHR and has said that it "can bind the hands of parliament, adds nothing to our prosperity, [and] makes us less secure by preventing the deportation of dangerous foreign nationals". 

Going to Strasbourg tells a different story, showing how the ECHR system has been a vital means by which people in the UK have challenged discrimination based on sexual orientation. It demonstrates very clearly that the tolerance and equality that characterises the UK today is the result, in large part, of the UK's membership of the ECHR.

On the same day that my book is published, OUP also publish Professor Conor Gearty's new book, On Fantasy Island, which looks set to provide further antidote to the anti-human rights fever that is spreading across the UK.

The Going to Strasbourg book launch is on Friday October 21 at Conway Hall and everyone is welcome.

New article on "gay" family life and the ECHR

Sabrina Ragone and Valentina Volpe have published an article in the German Law Journal titled "An Emerging Right to a 'Gay' Family Life? The Case Oliari v. Italy in a Comparative Perspective". 

Here is the abstract: 

This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment,which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal "recognition and protection" to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, thisArticle combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights inEurope. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other EuropeanConstitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a "gay" family life in Europe.

The article can be downloaded here:

http://heinonline.org/HOL/LandingPage?handle=hein.journals/germlajo17&div=26&id=&page=

New book on Peter Wells and X. v the United Kingdom 1975-79

For those interested in the history of applications to the Strasbourg organs about sexual orientation discrimination, the case of X. v the United Kingdom (1975-79) has long been of significance and fascination. This is not least because the application - lodged by a twenty-six-year-old man who had been convicted and sentenced to two-and-a-half years in prison for committing buggery with two eighteen-year-old men - was the very first application concerning sexual orientation discrimination to be declared admissible by the European Commission of Human Rights. The complaint by the applicant - about both his conviction and the legislation under which it was secured - was also the first attempt to use the Convention as a means to challenge the 'age of consent' in England and Wales which, for male homosexual acts, was twenty-one years (five years higher than for most opposite-sex acts and female same-sex acts).

The Commission rejected all of the applicant's complaints brought under Articles 8, 10 and 14 of the Convention. The Commission's report has long been the subject of discussion and analysis by legal and socio-legal scholars and can be regarded as having provided an important foundation for subsequent complaints to the Commission about discrimination created by the age of consent. Yet, until now, very little - if anything - has been publicly known about the applicant who brought the case. I am pleased, therefore, that in my forthcoming book, Going to Strasbourg, the applicant's lawyer in the Commission, William Nash, provides an insightful oral history account of the case and discusses its importance. And I am delighted that a new book has now appeared that provides an illuminating and fascinating account of the applicant himself, Peter Wells. 

The Story About Peter Wells, by Merrick Badger, is a short but detailed account of Wells' life and the key events that led to his conviction and subsequent Strasbourg case. Badger has painstakingly traced Wells' life from his youth until his death, allowing us an insight into the biographical context in which the Strasbourg case was brought. Badger first became aware of Peter Wells when he noticed a reference to him in the first version of Tom Robinson's song 'Glad to be Gay'. An interest in the song sparked a quest to track down people who knew Wells - including, most importantly, Wells' eighteen-year-old boyfriend at the time of his arrest and conviction - and to interview them. The interview material allows Badger to bring Wells' story to life and to highlight the appalling treatment he endured. What becomes apparent is that Wells was a 'complex' character, and the book does not ignore certain 'difficult' aspects of the intimate relationships he formed with others. On the contrary, the book attempts to tease out some of these issues and show how they contributed to Wells' treatment by the criminal justice system and by the Strasbourg organs. 

The book is a moving account of the criminalisation of a man for engaging in intimate relationships that are now legal and of the failure of the Convention system to protect him. I recommend it to anyone interested in this case or Strasbourg case law on sexual orientation generally.

The book is available here:

http://gladtobegay.net/peter-wells/

An audiobook, wonderfully read by Tom Robinson, is also available. 

The Commission's report on X. v the United Kingdom is available here:

http://hudoc.echr.coe.int/eng?i=001-104190

Judges Spano and Bianku on same-sex couples, marriage, and family life

In the recently issued judgment of the European Court of Human Rights in Taddeucci and McCall v Italy - in which the Court held that excluding a same-sex couple, who were unable to marry, from a benefit available to married couples was a violation of Article 14 taken in conjunction with Article 8 of the Convention - Judge Spano (Iceland), who was joined by Judge Bianku (Albania), made some very striking comments, in a concurring opinion, about same-sex couples, marriage and family life. Judge Spano said:

I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage. As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis. However, as recognised in Schalk and Kopf v. Austria (no. 30141/04, § 105, ECHR 2010), things may change [...] I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts. On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention.

The significance of these comments will be obvious to anyone who follows the Court's jurisprudence on same-sex couples, marriage and family life. They are made in the context of the Court having consistently maintained that the right to marry enshrined in Article 12 of the Convention 'refers to the traditional marriage between persons of opposite biological sex' (Rees v the United Kingdom [1986], reiterated by the Grand Chamber in Hämäläinen v Finland [2014]) and that this places no obligation on Contracting States to grant same-sex couples access to marriage (see, most recently, Chapin and Charpentier v France [2016]). It also, in my view, remains unclear whether and in what circumstances Article 12 is applicable to same-sex couples. Moreover, there is the general context of the Court (and the former Commission) having for decades promulgated the view that same-sex couples enjoy no protection for their "family lives" under Article 8 of the Convention - a view that was finally changed in 2010 (Schalk and Kopf v Austria [2010]).

Understood within the history of Convention jurisprudence, the comments made by Judges Spano and Bianku appear to me to be incredibly important. It may be wishful thinking, but I read the comments in the following way:

I will not express a view on the Court’s current case-law granting deference to the Member States in deciding whether to legalise same-sex marriage [I am now going to express my view on the Court's current case law and its deference to States that do not wish to legalise same-sex marriage] 

As things stand, that is the position of the Court, one by which I am bound on the basis of the principle of stare decisis [I disagree with the current position of the Court, but, unfortunately, precedent dictates that I must be bound to the collective decision-making of my colleagues].  

However, as recognised in Schalk and Kopf v. Austria ... things may change [Things, however, are going to change, and at some point in the future, the Court will declare that Article 12 of the Convention requires States to permit same-sex couples to marry]. 

I am writing separately to highlight the fact that although States are not under an obligation to afford same-sex couples access to the institution of marriage, that does not mean that these individuals are unable to find sanctuary in this Court when invoking the right to respect for their family lives in particular contexts [I am writing to make it absolutely clear that, regardless of whether States decide to allow same-sex couples to marry, same-sex couples can find sanctuary - and I use that word deliberately to mean refuge from persecution and danger - in the European Court of Human Rights when States do not respect their right to respect for their family lives]. 

On the contrary, if States decide to exclude same-sex couples from being able to marry, such a decision may have consequences when this Court is called upon to examine a claim of unjustified discrimination within a specific context that falls within the ambit of the right to respect for family life under Article 8 taken in conjunction with Article 14 of the Convention [If States continue to exclude same-sex couples from marriage, and grant special privileges to married opposite-sex couples, this Court is now ready to more effectively use provisions in the Convention to address this unjustified discrimination]. 

Wishful thinking? Perhaps, but not outlandishly so.

Many thanks, Judges Spano and Bianku!

Updated "sexual orientation issues" factsheet available

The European Court of Human Rights has issued an updated "sexual orientation issues" factsheet, which contains details of recent judgments such as O.M. v Hungary and Taddeucci and McCall v Italy.

The factsheet can be found here:

http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf