How to Challenge the Adoption Agencys Decision - Case Study Example

How Challenge the Adoption Agency’s Decision In order to advise George and Michael it is necessary to evaluate the extent of their rights under the Human Rights Act (1998) (HRA), which incorporated the ECHR into UK law. Firstly, section 2(1) of the HRA asserts that “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights1. Moreover, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts2”. In terms of George and Michael’s position to challenge the adoption agency’s decision, section 6 of the HRA 1998 makes it unlawful for public authorities (including the courts) to violate Convention rights and sections 7 and 8 of the HRA provides a remedy to the victim of such violations, including the right in some cases to claim damages for such violations. Nevertheless, such compensation rights are not available where the violation expressly and clearly authorised by primary legislation, and the availability of redress under the HRA allows individuals to seek a remedy that is consistent with the one available under the Convention3. Indeed, the right under section 6 of the HRA appears to enforce the rights of the parties under Article 6 of the Convention in ensuring the right to a fair and public hearing before an independent and impartial tribunal both when an individual’s civil rights and obligations are at issue as in the current scenario. In the current scenario, the Catholic Adoption Agency provides the adoption and fostering services to the local authority and therefore they are likely to fall within the definition of “public authority” for the purposes of a challenge under section 6 of the HRA 1998. Therefore, if George and Michael’s rights have been infringed, they can bring a claim directly under the HRA 1998 for judicial review of the decision to challenge the legality, rationality and proportionality of the decision and the incompatibility with both their Convention rights4. It is submitted that the relevant Convention rights in the current scenario will be the right to Article 8 right to a private life and how each state must ensure that an individual’s right to privacy or private life is protected within its jurisdiction. Additionally, Article 8 provides that everyone has a right to respect for private and family life, home and correspondence. Article 8(2) further provides that there may be no interference with the exercise of those rights by a public authority unless the restrictions are in accordance with the law and necessary in a democratic society for the purpose of achieving legitimate aims such as the protection of health or morals. Firstly, it is submitted that the European Court of Human Rights jurisprudence under the Article 8 right to privacy has been especially pertinent to sexual privacy, which has strengthened protection for rights of same sex couples. For example, in the case of Dudgeon v United Kingdom5 for example, the Court asserted that the right to private life under Article 8 included the right to enjoy one’s private sexual life. The result of this was that the Northern Ireland law prohibiting certain sexual activities between men constituted a violation of Article 8. The court further held that an individual’s sexual life was an intimate aspect of one’s private life and that strong justification would require interference with it and it was not sufficient to demonstrate that the majority of society disapproved of homosexuals. Similarly, in the leading case of Smith and Grady v United Kingdom6 it was held that the dismissal of armed forces personnel due to their sexuality constituted a disproportionate interference with their right to respect for private life7. However the court has not always been so interventionist and it ultimately depends on the nature of the act when addressing the “margin of appreciation” principle. For example, in the case of Jaggard and Brown v United Kingdom8, the Court upheld the applicant’s convictions for participating in consensual acts of sadomasochistic nature highlighting that not ever private sexual act would be covered by Article 8 right. Nevertheless in the case of ADT v United Kingdom9, it was held that the state’s margin of appreciation will be limited where the criminal law has been exclusively utilised as a tool against a particular group on grounds of their sexual orientation10. Moreover, in the case of Sutherland v United Kingdom11, the ECHR held that the disparate age of consent in the UK regarding homosexual sex was in violation of Article 8 and Article 14. Accordingly, it is evident that that refusal of the agency if found to be on grounds of sexual orientation may infringe George and Michael’s right to private life under Article 8. With regard to children, in the case of X, Y and Z and the United Kingdom12, a female to male transsexual had formed a relationship with a woman, who had a child by artificial insemination. However the request to have the name as the child’s family as the child’s father was refused and claimed a breach of the right to a private life. In this case, it was acknowledged that family concept was outside the traditional heterosexual union however there was a interest in maintaining a coherent system of family law, placing interests of child at forefront. However, in Goodwin v UK13, the court held that this approach constituted a serious interference with Convention rights under Article 8 in particular. Additionally, Article 14 of the ECHR provides that the enjoyment of Convention rights and freedom shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion. Therefore the discrimination of the agency against the couple by the agency may constitute breach of Article 14. This is further bolstered by the Adoption and Children Act 2002, which has been amended to provide that an application to adopt children in England and Wales can be made by a same sex couple. Accordingly, the agency had a duty to not discriminate on grounds of sexual orientation when considering George and Michael’s application and the ECHR overturned a French ban on same sex adoption and held that failure to enable the same sex couple to adopt a child constituted illegal discrimination under the Convention. In summary, the UK legislation and ECHR case law asserts the rights of same sex couples to adopt a child. If the reason for the agency’s refusal of George and Michael’s application was based on grounds of their sexuality and sex life, then this will infringe their rights to private life under Article 8 and constitute illegal discrimination under Article 14 of the Convention. On this basis, George and Michael will be able to challenge the decision in the national courts under section 6 of the HRA. Question 2: The Commission and the Council of Ministers and European Parliament all have major contributions in the functioning of the European Union. Discuss. The European Parliament, European Council and European Commission are collectively responsible for law making and Article 189 of the EC Treaty sets out the legislative and administrative process for the creation and implementation of EC law as thus: ”In order to carry out their task in accordance with the provisions of this Treaty, the European Parliament, acting jointly with the Council…. And the Commission shall make regulations, take decision, make recommendations or deliver opinions14.” Moreover, whilst MacLeod descries the Commission’s main functions being “to formulate policies, which must be consistent with the framework of the Treaty”15it is evident that the Commission’s powers are far reaching in terms of ensuring national compliance with EC law. For example, Article 226 of the Treaty sets out the procedure for enforcement of infringement against Member States in relation to their obligations under Community law16. In cases of non-compliance the Commission can further institute proceedings against Member States before the European Court of Justice (ECJ) to seek a declaratory judgment, which in turn can be used to impose sanctions on the offending member state17. Moreover, the Commission can further rely on the provisions of Article 211 EEC as “guardians of the Treaty “ and has to ensure proper application of Community law, in line with Article 211 TEC18. The Council is specifically governed by Articles 202-210 of the Treaty and is the principle legislative organ of the Community. It consists of the representative government ministers of the various member states and Article 202 imposes an express duty on the Council to ensure co-ordination of the economic policies of the member states and delegates decision making powers to the Commission. Indeed, it has been argued that the Council of Ministers is by its very nature the federal institution of the Community19. It is arguably federal in the sense that it represents the member states to act in a legislative capacity and creates rules binding the Member States. However, often national interests are pursued by member states rather than the Council acting collectively for the benefit of the Community20. Moreover, the Council doesn’t play the same legislative and executive functions of the European Parliament. For example, under the original treaty, the Commission had the sole right to propose legislation, which has been amended now with further rights of the Council and European Council. In contrast, the Commission is required to act independently in the interests of the Community as opposed to the Member States and the Commission is often supranational. The European Parliament is directly elected and previously had a mainly advisory and consultative power under article 137 Previously, the Treaty only specified seventeen instances where the European Parliament had to be consulted. Under its advisory role, certain provisions of the Treaty required that the European Parliament be consulted before a decision could be adopted by the Council (previous Articles 54 and 235) and the participation was increased by the Conciliation procedure of 1977 and the introduction of the cooperation procedure. Moreover, the Maastricht Treaty introduced co-decision procedure which was extended into more areas by the Treaty of Amsterdam and Nice. However, the powers are still limited of the European Parliament, which has been criticised for being a “democratic deficit” in the operational management of the community institutions and the sources of law21. At present all legislative procedures commence with a proposal from the Commission and consist of the consultation procedure, cooperation procedure conciliation and veto and assent of the European Parliament. Additionally, the Council and the Commission have limited go alone powers in contrast to the European Parliament. The European Parliament will give an opinion on a legislative proposal however the negative power of veto under Article 251 is of limited application. It is also unclear to what extent it can request the Commission to make legislative proposals in the areas of Community Policy and the Treaty of Amsterdam has made limited inroads into the rights of Parliament. Therefore, whilst the roles of all three institutions remain of symbolic importance, the constitutional amendments to the roles of the Council and the European Parliament in particular have not significantly encroached the significant powers of the supranational Commission in practice. 3) To what extent do Articles 226 and 228 of the EC Treaty together provide an effective mechanism to ensure that Member States comply with EC law? According to Article 226, Member states that fail to fulfil an obligation under the Treaty can be subject to the infringement procedure22. The Article 226 procedure enables the Commission to pursue its objective of policing the application and compliance with the Treaties and secondary Community law obligations23. In order for a procedure to commence, a breach of obligation by a Member State must be suspected by or brought to the attention of the Commission24. A breach or failure to act is most often observed in the form of a Member State failing to implement Community legislation25. Moreover, the Commission has taken several measures to adequately remedy problems encountered in the transposition, implementation and enforcement of directives26. These include regular publication of a calendar for transposition and annual reports to monitor the application of community law27. Borissova further comments that “by launching enforcement action against a Member State, the Commission is not asking the ECJ to recognise a Member’s State’s intention to breach the law but to deliver a declaratory judgment no the latter’s failure to comply with its Community obligations28”. Nevertheless, Article 226 requires administrative procedural steps to be taken before court proceedings can be instituted. Article 226 provides that “if the Commission considers that a Member State has failed to fulfil an obligation under this treaty, it shall deliver a reasoned opinion on the matter”29. Having informed the Member State of its breach, the Commission gives the state the opportunity to answer the allegation or take corrective action prior to formal proceedings under Article 226. From a procedural perspective, if the matter is not resolved informally in the first phase, then Article 226 provides for formal notification to the Member State of the alleged infringement by means of a letter of formal notice sent by the Commission30. If the Commission takes this course of action against a member state, the member state government will then be given two months to reply and except in cases of emergency, the Commission normally decides within a year either to close the case or proceed31. If following negotiations the matter is undecided the Commission will set out a reasoned opinion, which clearly sets out the grounds regarding the alleged infringement and marks the beginning of the time period within which the member state government must comply with the recommendation of the Commission in order to avoid judicial proceedings. The reasoned opinion is delivered to the Member State and registered by the ECJ32. Whilst the initial judgment of the ECJ is declaratory and carries no specific sanctions per se33, Member States are nevertheless placed under a further obligation under Article 228 to comply with the judgment by taking necessary measures34. If the Commission takes such steps against a member state government, if it fails to comply with the requirements, then action will be taken by the Commission under Article 226 for a breach of Article 228. For example, in the case of Commission v Italy35 the Commission determined that because Italy had failed to comply with the Court’s judgment in the first instance under the Article 228 procedure (ex 171), judgement should be given in favour of breach of Article 22836. It was further held that notwithstanding the fact that prior to final judgment Italy had complied with the original decision; Italy had still failed to comply with Article 228. Moreover, Articles 228 and 229 provide that sanctions can be requested by the Commission in an action to establish that Member States have failed to comply with a previous judgment of the ECJ. For example, in the case of Commission v Greece37 a penalty of 20,000 euros per day was imposed by the ECJ from the date of judgment for failure to comply with Article 228. Furthermore, in the leading case of The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Limited38 it was held that a breach of community law will be sufficiently serious to found liability where a state has violated an established principle of Community law in direct contravention of a treaty obligation. Furthermore, it was asserted that any failure to take measures to implement a Directive within the specified time limit set would suffice to establish a sufficiently serious breach of Community law39. Member States raise various defences in Article 226 cases. It is important to firstly mention that in the British Telecommunications40 case it was held that Member States may have a possible defence to non-implementation of a Directive if it could be demonstrated that there was discretion as to how the Directive could be implemented. Alternatively, another reason raised by the Government is the lack of Parliamentary time for implementation. However, in the case Commission v Belgium,41 Belgium had failed to implement a Directive and was taken by the Commission before the ECJ. The Belgian government pleaded that shouldn’t be held responsible for Parliamentary delay in implementation of the Directive. This argument was rejected. Another common argument is based on reciprocity on the basis that other Member States have failed to comply with implementation of the Directive requirements. However, in the case of Commission v France42it was held that where Member States have not complied with their obligations, this does not entitle non-compliance on behalf of the defendant Member State, even where the Member State’s constitution specifically allows for it43 (In this case Article 88 of the French constitution). Furthermore, in addition to Article 226 action by the Commission, any individuals affected by non-implementation of the Directive may try and bring action against a member state under the principles relating to state liability established in the leading case of Francovich v Italian Republic44, further developed in the case of Van Gend En Loos45. BIBLIOGRAPHY Bache, I and George S (2006) Politics in the European Union. Oxford University Press. Damian Lora Borissova (2007) Enforcement actions under EU law. The new member states. 2007 EIPA Working Paper No.2007/01. Available at www.eipa.eu D.Chambers, Christos Hadjiemmanuil, Giorgio Monti & Adam Tomkins (2006). European Union Law. Cambridge University Press Craig & Burca (2007). EU Law: Text, Cases and Materials. 4th Edition Oxford University Press. Greer Hogan (2002). Constitutional and Administrative Law. Sweet and Maxwell. MacLeod (2005). Legal Method. 5th Edition Palgrave Macmillan at pp.69-70. Jo Shaw. (2000). Law of the European Union. 3rd Edition Palgrave Macmillan. Legislation Human Rights Act 1998 Read More