Could cases regarding violations of the ECHR be heard before UK courts prior to the Human Rights Act 1998? https://ukandeu.ac.uk/explainers/the-european-convention-on-human-rights/ The above article that I have been reading suggests that an application to the European Court of Human Rights in Strasbourg should only be made if domestic routes have been 'exhausted', seeming to imply that domestic courts had jurisdiction to hear cases regarding violations of the ECHR (see the section under 'How is it enforced?'). However, the article goes on to state that the HRA was introduced to 'bring rights home' and enable people to protect their rights in domestic courts, suggesting that this was not the case prior to the act. These two suggestions seem somewhat contradictory to me. Is there something that I have misunderstood? Thanks!
Before the Human Rights Act 1998, you could not complain on European Convention on Human Rights grounds to domestic courts. The UK as a state was signatory to and therefore bound by the Convention. However, public authorities in the UK were not required by domestic law to comply with the Convention. In some circumstances domestic courts could take into account the Convention but nevertheless they were not bound by it. The fact that (generally) before making an application to the European Court of Human Rights you had to exhaust all available domestic processes just means that the state was entitled to the opportunity to make things right, there was some political leeway afforded to it, and the practical matter of cutting down the sheer number of cases to be heard by the European Court. It is a bit like having to exhaust a regulated company's complaints process before complaining to the regulator. The regulator will tend to reject the complaint if the complainant hasn't been through the company's (reasonable) steps. Among other things the Human Rights Act 1998 gave effect to the European Convention in Human Rights law. Now public authorities including the courts were bound by the Convention and complaints could be made domestically on Convention rights grounds. Chapter 1 of the White Paper for the-then Human Rights Bill may be of interest: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf Alternatively paragraphs 10-17 of The Government's Independent Review of the Human Rights Act https://publications.parliament.uk/pa/jt5802/jtselect/jtrights/89/8905.htm.
LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision.
As revised, I think this question is really asking why the judge in Grainger plc v Nicholson [2009] UKEAT 0219_09_0311 laid down the test that he did, when the statutory provision at hand used more general words. In summary, the reason why the Grainger test does not protect every belief is that the European Convention on Human Rights doesn't either. The judge's conclusions on the ECHR's notion of &quot;belief&quot; are mainly taken from the analysis in a House of Lords case (Williamson, cited below), which is binding precedent on the tribunal on that point. The new thing was drawing the line between &quot;belief&quot; in ECHR jurisprudence, and &quot;belief&quot; in the employment equality regulations, which was justified for two reasons: one, that Parliament demonstrably was trying to make the alignment; and two, that it would be incoherent with the Convention obligations to do otherwise. Note that the definitions in the Equality Act 2010 are carried forward from the 2003 regulations which were at issue in Grainger, the Employment Equality (Religion or Belief) Regulations 2003, so we have to look at this text instead. In 2(1) it said, following amendments in 2006 not shown in the online text: In these Regulations – i. &quot;religion&quot; means any religion, ii. &quot;belief&quot; means any religious or philosophical belief, iii. a reference to religion includes a reference to lack of religion, and iv. a reference to belief includes a reference to lack of belief. This regulation was introduced in order to bring EU Directive 2000/78/EC into UK law. Although the text in the 2010 Act is not identical, it does carry forward the same effect of the Directive, and so the decision still makes sense to apply. Also, Brexit has happened, but that does not displace the reasoning. In interpreting the provision: Because it derives from EU law, which is meant to mean the same thing in other member states, the domestic regulation should be read consistently with the directive. The court can look to EU authorities to find out what the directive ought to mean, although there was not much to look at in this instance. The respondent said that &quot;belief&quot; should be read consistently with the language in the European Convention on Human Rights, concerning religion, belief and discrimination - principally Articles 9(1) and 14. The court was still bound to read the domestic legislation in a way that is at least compatible with the Convention rights, even if the scope of &quot;belief&quot; is not absolutely identical (see paragraph 19 of the judgement), but the most obvious way to make the ideas compatible is if they are the same. The parliamentary history of the amending statute shows indications that it was made in awareness of ECHR case law about &quot;belief&quot;. Courts can sometimes use this kind of information to resolve genuine textual ambiguities. The judge looked to domestic precedent, in particular a decision of the House of Lords (R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15) which looked at the same provisions of the ECHR in the context of a claimed philosophical belief in favour of corporal punishment in schools. This in turn drew on extensive case law, including even an English ecclesiastical case from 1866, as well as many more recent sources from around the world. The thrust of all of this is that not every single possible propositional belief is protected by the ECHR; when it talks about belief it does not mean &quot;a statement which somebody somewhere believes to be true&quot;, but rather refers to certain kinds of philosophical conviction. The application of this idea to employment discrimination is new in Grainger, hence &quot;the Grainger test&quot;, but wrangling over the scope of &quot;belief&quot; is not new. The test itself, set out in paragraph 24, is really a collation of quotations from the various relevant past judgements. I won't try to figure out the exact provenance of all of the words since that is actually already set out in the judgement. But for example, (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. comes from paragraph 36 of Campbell and Cosans v UK [1982] 4 EHRR 293, ... the applicants' views relate to a weighty and substantial aspect of human life and behaviour ... Similarly, (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others is there because of Article 17 of the ECHR, as interpreted in Campbell (citations omitted in this quotation), the expression &quot;philosophical convictions&quot; in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a &quot;democratic society&quot; and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 (P1-2) being dominated by its first sentence This of course raises the question of why the ECHR's scope is what it is. That is somewhat more of a policy question than a legal one, in that the treaty reflects what its parties felt comfortable with agreeing. What matters in legal terms is that the Convention is binding on the UK, and the words that it uses must be interpreted according to what Convention authority (the Strasbourg court) says that they mean.
I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court.
If a line in your will bequeaths something that you don't have the power to give (e.g. you bequeath something that you don't own at the time of your death), that line has no legal effect. If I died and left you the house at 10 Downing Street in London, for example, you wouldn't actually be getting it. If your will contains enough of those lines and/or they seem excessively unreasonable, it may cause the validity of the will to be challenged on the basis that you weren't competent to prepare and sign it. If the people reading it think it's reasonable, it may have a social effect based on what it conveys to them, which could lead to voluntary compliance with your wish (especially if the main obstacle to that being realized is a mistaken understanding of and desire to respect your wishes). That could help make peace, for example, if a surviving parent's remarriage would otherwise be opposed by children (or the surviving partner) or others based solely on a mistaken understanding of the wishes of the deceased. It could also make for a really awkward moment, depending on the views of and relationships between survivors. Addressing user662852's comment on the question: You can also use a will to name a guardian for anyone you have guardianship over, which is usually more important for children (e.g. see "Why Every Parent Needs a Will.").
Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) &ndash; those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) &ndash; in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong &ndash; especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform &ndash; the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook!
The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43).
It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action.