Guest post – Lewis Graham: ‘The Supreme Court, Human Rights and Strasbourg ‘Clarifications’’

The Supreme Court recently handed down its judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, concerning the circumstances under which deportation can be resisted under Article 3 ECHR. The case was brought by an individual who challenged his deportation on the ground that, as he was HIV-positive, his health would deteriorate significantly if removed from the UK to his home country of Zimbabwe. To analyse some of the wider implications of the development of the law in this field, I am delighted to publish this guest post, authored by Lewis Graham of the University of Cambridge (his details, here). Lewis has a growing list of publications on UK-Strasbourg relations, and the interaction between national judiciaries and Strasbourg. Continue reading

Loyal Co-operation within the System of the ECHR (conference announcement)

liverpThe International Law and Human Rights Unit of the University of Liverpool School of Law and Social Justice is organising a two-day workshop on loyal co-operation with the system of the European Convention on Human Rights (ECHR) and the means of reaction by the European Court of Human Rights (ECtHR) when its judgments trigger discontent. The conference is open to both established and early-career scholars and practitioners, including PhD students. Interested participants should provide an abstract of no more than 500 words by 20 December 2018. The call for papers is available online at: https://www.liverpool.ac.uk/media/livacuk/law/2-research/ilhru/Call,for,Papers.pdf

Strasbourg’s ‘age of subsidiarity’ jurisprudence: is it ‘legitimate’ (does it reflect an appropriate role and function for the Court)?

Strasb pic confI recently presented a paper under the above title at the Strasbourg Court (thank you to Pluricourts for organising the event).

I would be pleased to send a copy of the paper to interested colleagues (feel free to contact me).

Ed Bates, Associate Professor, University of Leicester.

Fourth (2018) edition of Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (forthcoming, this month) – Preface

hobw2018I am delighted to be involved as a co-author of the fourth edition of the latest edition of this leading textbook on the ECHR, and to say that this is due out later this month.

Details may be found on Oxford University Press’ website, where the first chapter may also be read (here).
Below I set out the text of the Preface, which was written back in March (in fact, just before the final version of the Copenhagen Declaration was issued).

PREFACE

This is the fourth edition of Law of the European Convention on Human Rights. Since the last edition the book has been translated into Turkish, Bulgarian, and Russian, thus increasing dramatically our readership and creating a basis for informed comment about the Convention in many different countries.

This edition of the book seeks to give an account of the main developments that have occurred in the Court’s case law since 2014 and to do so in roughly the same number of pages as the third edition so that the text remains both accurate, comprehensive, and manageable.

Such is the dizzying pace of legal development at the ECtHR that discussions of older cases have had to be pruned somewhat in order to deal with more recent judgments. However, the new judgments compel our attention. As is often the case, Continue reading

The Copenhagen Declaration (April 2018) – first thoughts (Ed Bates, Leicester, UK).

cph picAfter the draft version of the Copenhagen Declaration (February 2018) excited considerable reaction and lively debate on various blogs, we now have the final version (simply entitled, it seems, ‘Copenhagen Declaration’, April 2018). Here are some first thoughts:

–          The final text is very different to that of February, which was heavily criticized. We now have a Declaration that is, for the greater part, well-balanced and realistic in how it envisages Strasbourg’s role and function. Not unlike Brighton 2012, perhaps Copenhagen may be seen as communicating reassuring messages to those States where the Convention is already genuinely embedded, and applied in good faith, yet where strains in national-Strasbourg relations may have been emerging in recent years. Continue reading

The Draft Copenhagen Declaration (Part 2): towards a stronger ECHR system? (Ed Bates, University of Leicester)

 

In my first post on the Draft Copenhagen Declaration I limited my focus to the first part of the same, highlighting the overarching philosophy of the Draft. I now offer some broader comments (still focussing on the first half of the Declaration).

draft cph dec textThe general narrative of the Draft Declaration is that ’improved protection’ will be obtained by achieving ‘better balance’, in terms of the distribution of powers which the Draft proposes to endorse, which involves an emphasis on Strasbourg’s mainly residual role.

That fits with the various speeches made by members of the Danish government, which preceded publication of the Draft. It is well known, however, that the backdrop was one of political frustration with, and criticism of Strasbourg by the Danish government. Going back, concern was expressed about the ‘living instrument’ doctrine, and general criticism directed at Strasbourg law, especially in relation to immigration matters (and, in particular, a domestic case constraining deportation, which obtained some notoriety). Some of the speeches allude to this.

As such, it is valid to at least ask questions about the inspiration for the Draft Declaration, and its ‘better balance’/ ‘improved protection’ agenda.

  • Has the Danish government’s (to some extent, politically-inspired) frustrations with the Convention clouded its assessment of what needs to be done, and is that reflected in the content of the Draft (without questioning the good faith nature of the initiative overall)?
  • As such, to what extent is the Draft Declaration a genuine contribution to the reform debate, of enduring significance, as it purports to be?

I respectfully suggest that, if the Draft Declaration is to fit more comfortably with the second of these, then the emphasis, tone and message communicated by it needs reconsideration. Why? Continue reading

The Draft Copenhagen Declaration (Part 1): overview/ its overarching philosophy

draft cph dec textDenmark’s Chairmanship of the Council of Europe will conclude in April. It is likely to be remembered for the critique representatives of the Danish government have offered of the European Court of Human Rights’ functioning. The relevant speeches, delivered in the Council of Europe context, may be found here. The narratives are reflected to varying degrees in a Draft ‘Copenhagen Declaration’, published in early February, in anticipation of a final version, which is expected in April (12/13th).

That Draft has attracted much attention. A consortium of NGOs issued a strong and detailed critique of it (see here, and see too, comments by the Danish Helsinki Committee for Human Rights). Few aspects of the Draft are viewed positively, the analysis offering emphatic criticism of it, and calling for significant changes. Contributions from Phillip Leach & Alice Donald, and Andreas Follesdal & Geir Ulfstein, also strike a mainly negative chord.

Mikael Rask Madsen & Jonas Christoffersen adopt a more upbeat tone citing the Court’s own Opinion on the Draft (although see Leach & Donald’s response). The latter’s Opinion  is less hostile/defensive than the critics might have expected, but this may reflect the Court’s desire to retain its distance and neutrality, although the Opinion does not avoid expressing caution and concern for some aspects of the Draft.

This post is the first of two.

In this post, I comment in the overarching philosophy of the Draft Declaration. In the second I offer my thoughts and comments on the same, asking whether the goal of a stronger ECHR system is being realised by the Draft Declaration. Continue reading

UK membership of the ECHR: continuation of ‘unfinished business’ or a window of opportunity?

18 May 2017.pngThis post proceeds on the assumption that the Conservatives will win the June election, with their manifesto commitment that withdrawal from the ECHR (‘BrECHRit’) will not occur in ‘the next Parliament’. It is submitted that such a scenario poses a threat, but also offers a window of opportunity. The threat is that there will be a continuation of what we have seen since around 2012 (if not before): the implied threat to withdraw, and heated anti-Strasbourg rhetoric every time UK-Strasbourg relations come under strain (with damaging effects on the ECHR). The opportunity is that we now have a period to push forward the case for the UK’s continuing membership of the ECHR, based on careful and informed analysis of the Strasbourg system as it functions today (not one based on dated or false narratives) and affects the UK. This information can then be drawn upon for when debate on the UK’s membership of the ECHR resurfaces, which, I contend, is highly likely to happen – unless arguments are presented in a convincing way to stop that.

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With the Conservative Party well ahead in the opinion polls, the publication of their manifesto today was met with a sighs of relief by human rights lawyers in the UK, and in Strasbourg. It states that: Continue reading

Implementation of Judgments of the European Court of Human Rights

bing 15 mayThank you very much indeed to the Bingham Centre for the Rule of Law (working with Leicester Law School) for hosting a highly interesting and informative event on the state of play regarding execution of Strasbourg judgments. The event was last night, and, I believe, a summary will appear on the Bingham web site in due course.

Merris Amos (QMUL) presented a insightful paper focussing in UK cases, against the backdrop of UK-Strasbourg relations and the domestic landscape of human rights protection; in her paper Eleanor Hourigan (Dep Permanent Representative, UK Delegation to the CoE) offered some insiders’ perspectives on the Committee of Ministers’ process ; Nuala Mole (Aire Centre) provided reflections on her long experience as a Strasbourg litigator, offering some suggestions on areas for improvement; and Prof Philip Leach EHRAC/ Middlesex University added to those perspectives with some important and graphic illustrations of why the process of execution is so important, and the challenges being thrown up.

In between I presented a paper with my own reflections on matters, especially with an eye to the Committee of Ministers’ 2016 Annual Report on the execution of judgments. In case it is of interest, here is the PowerPoint presentation that I used: E Bates Implem Judgments Bingham