Homosexuals in the Armed Forces

Article 8 has also been used to protect the interests of homosexuals serving in the armed forces. See the Lustig Prean v UK case referred to at 8.2.2(8), where the ECHR held that the applicants’

discharge from the armed forces as part of a blanket ban on homosexuals infringed their right to

respect for their private life. The internal investigation which was carried out prior to their

discharge was also found to be a breach of Article 8. The UK Government was unable to show

that either breach was necessary in a democratic society. See 8.9.

Transexuals and pensions

The landmark decision of the ECHR on the rights of transsexuals is Goodwin v United Kingdom

[2002]. The ECHR held that the lack of recognition in the UK of a transsexual’s new gender

identity for legal purposes is a breach of Article 8 (and Article 12 – right to marry). This will have

implications for employment law in respect of, for example, pensions.

Regulation of Investigatory Powers Act 2000 (RIPA 2000) and the DPA 1998


The issues raised by Article 8 are also reflected in these two other recent pieces of legislation ( Written by Notary Public London )

Articles 9 – freedom of thought, conscience and religion It protects freedom of thought, conscience, and religion.

Continue reading Homosexuals in the Armed Forces


Article 6 HRA – fair and public hearing – The Abogados de accidentes blog posts

This creates a right to a ‘fair and public hearing within a reasonable time by an independent and

impartial tribunal established by law’.

This will (arguably) not apply to internal disciplinary procedures, but Tehrani v United Kingdom

Central Council for Nursing, Midwifery and Health Visiting [2001] establishes that the position is

different where there are disciplinary proceedings which determine a right to practice a


Article 6 does apply to employment tribunals and the EAT, although there is some suggestion in

the Strasbourg jurisprudence that disputes relating to the employment rights of public officials

are not ‘civil rights and obligations’ but are disputes about the rights of civil servants

(see Neigel v France (2000). However, while the UK courts have to have regard to ECHR case-

law, they are not obliged to follow it.

Article 6 may be used to bring a claim and/or challenge areas such as:

1 limitation periods;

2 qualifying periods;

3 funding (in Airey v Ireland (1979) the ECHR found a breach of Article 6 where legal aid

was not available to assist a litigant who wished to apply for a judicial separation);

4 refusal to grant adjournments (see Teinaz v London Borough of Wandsworth




  • What is a conception of law: general interp. Of legal practice as whole in its best light and why on that conception justification for coercion is there. So far looked at Q if it fits our practice, now look if justifies.
  • If – contrary to Dwork. argument – conventionalism did fit our legal practices, would it provide sound justification? Earlier described an argument that it would – “the idea of protected expectation” ( that collective force be used only in accordance with standards chosen and rad through procedures the community as a whole knows will be used for that purpose. —
    • Now must ask – is this ideal sound?


Fairness and Surprise

  • Might be thought that this idea is democratic, but confuses two issues: Should people have final say how judge decide cases?
  • Some say conventionalist system best because puts people on fair notice before depriving liberty. But even then, as seen in hard cases, there will be some surprise no matter what decision judges in those cases reach.
  • But is reducing surprise so good? Suggestion that conventionalism reduces surprise must assume then not that surpise is unfair but it’s inefficient/imposes unnecessary risks/frightens people.
  • But conventionalism not justifiable just because surprise not desirable.
  • The political argument for conventionalism is that it protects people as much as possible from surprise. If our sole aim was to prevent surprise – that’d be unilateralism.
    • In criminal law (US/UK), law is very close to unilateralism. In US even constitutional principle (non retrospectively). But private law legal practice not like that – judges very often decide for plaintiff EVEN when according to conventionalism the plaintiff had no legal right to win.
  • Strict conventionalism seems more eligible that unilateralism precisely because it is bilateral. It insists that neither side has right to win. Conventionalist must show and distinguish situations where surprise must be tolerated and where avoided.



Convention and Consistency

  • Case against conventionalism: Strict conventionalism fails (esp w emphasis on neg part). Fails for paradoxical reason: our judges actually pay more attention to so called conventional sources of law like statutes and precedents than conventionalism allows them to do!
  • If in Elmer’s case had been strict conventionalists, would have decided case in two stages:
    • inspected judicial practice to see if all judges agreed that words of stat must be given their “literal” meaning OR
    • Not be given literal meaning.
  • Well, since ob didn’t agree, turned to how statute should be read, and that make sense only on assumption that the law judges have an obligation o enforce depends on correct reading even when it is controversial – this is exactly the assumption conventionalism denies.
    • Also in snail darter. Disagreed whether they were obligated by correct theory of legislation o enforce most literal or most sensible reading in absence of evidence what congress intended. BUT, for strict conventionalist, law has run out here.
  • So a self conscious conventionalist would maybe think about past to make new law more consistent with old. Two kinds of consistency a law maker may seek:
    • Consistency in strategy: worry that new rules fit with old, but doesn’t require judge to probe past to find best interpretation of statute.
    • Consistency in principle: Requires various standards governing state’s use of coercion against its citizens be consistent in the sense that they express a single and comprehensive vision of justice. So would look for consistency in principle in cases before and after McLoughlin.
  • Conventionalism differs from law as integrity precisely because conventionalism rejects consistency in principle as source of legal rights.
  • Are interest in conventionalism lies in its negative claim that convention exhausts intrinsic normative power of past decisions. — If you think consistency in principle (not merely strategy) must be at heart of adjudication has rejected conventionalism.