I found it necessary to polish off a bottle of wine before writing this post (Charon QC would be proud, although Rioja it was not), for reasons I think are probably clear from reading it. It is not a pleasant subject.
The European Court of Human Rights, often referred to amongst lawyers simply as ‘Strasbourg’, finally handed down judgment in the case of N v The United Kingdom. It is very bad news indeed, first and foremost for the woman known as N who has inadvertently lent her initial to this tragic line of case law. It is also the worst kind of news, the sort that usually involves a doctor with a practised long face, for others like who her who are infected with HIV/AIDS, are receiving top class treatment in the UK and will die slowly and often painfully if returned to their home countries from the United Kingdom.
Strasbourg has upheld the judgment of the House of Lords in dismissing N’s appeal. It is strange to say this, and perhaps it reflects my transformation to lawyer from human, but I always in a way admired the judgments of their Lordships in the earlier decision. They faced up morally to what they were doing to the woman — passing a death sentence, in effect — and found a legal-ish way forward. The rather nasty Court of Appeal judgment lacked the dignity of that of the House of Lords, and sadly so does the judgment of Strasbourg. There is an explicit reference at paragraph 44 to placing a resources burden on European Convention on Human Rights contracting states, which hardly sounds like a legal argument to me, and also in the same paragraph to the balance that the Convention as a whole strikes between the general interests of the community and the interests of individual. I’m sorry, but not under Article 3, under which this case was decided. Article 3 — the prohibition on torture and inhuamn or degrading treatment — is absolute, as was recently reaffirmed by Strasbourg in a case called Saadi v Italy in which the UK shamefully intervened to argue that it was not.
I recommend the minority judgment at the end of the transcript in N v UK, which may eventually prove to be one of those minority judgments that stands the test of time.
There are two possible rays of hope. One is that Strasbourg seems to have based its findings on the premise that the necessary treatment is widely available in Uganda (paragraph 48). This is absolutely not the case in many countries.
The other is that the Court refuses to examine the case under Article 8. The terms in which this is done will no doubt be interpreted by the Home Office and many in the Asylum and Immigration Tribunal as meaning that there is no separate Article 8 issue in any health care cases. However, it is possible to argue that the refusal is based on the circumstances of the case, and that this battle remains to be fought another day. It is certainly inconsistent with earlier cases, particularly Bensaid v UK.
My final thought is for N herself and for her legal team. I have lost HIV/AIDS cases before and will again in the future. It is tragic each and every time it happens. Doctors seem to have training and practise in this sort of thing, whereas I do not.