HRA Watch: Reform, Repeal, Replace? Sarah Lambrecht: Criticism of the European Court of Human Rights: A UK Phenomenon?

HRA Watch: Reform, Repeal, Replace? Sarah Lambrecht: Criticism of the European Court of Human Rights: A UK Phenomenon?

A link to a really interesting and informative post from Sarah Lambrecht (law clerk at the Belgian Constitutional Court) can be found below.

Sarah knows far more about the matters she addresses than I do, although I do make these comments at the end, offering a view on the UK situation.:

Fascinating and informative post, thank you.

With respect to your concluding sentence (‘one can wonder though to what extent the proposed changes are not principally directed at weakening the powers of the domestic courts—under the guise of strengthening their role by stopping the perceived mission creep of the European Court of Human Rights’), I can certainly see your point and do not disagree.

It is interesting that it is in the UK and the Netherlands that there has been this backlash against Strasbourg – as I understand it, both countries tend to use the ECHR as the focal point for their domestic regime of human rights protection (unlike, eg, Germany). I wonder if that situation has been at the root of much of the resentment apparently felt toward Strasbourg as an alien influence on the privileged domain of domestic law?

I wonder too if this accounts – partly at least – for the series of attacks on the Court by some senior members of (or former members of) the judiciary in the UK. Looking to speeches delivered by Lord Sumption, Judge and Laws LJ, it seems they too would favour a reduction in judicial power that a move away from reliance on Convention rights in the domestic setting could provide. These critics give the impression that they think that Strasbourg law has simply become too big.

Such views should not be readily dismissed. The real issue is what counts as a proportionate and constructive response to the issues arising.

The problem there, it seems, is whether the politicians can be trusted to deliver such a response, not least of all when it is politically advantageous to attack the Court. In that regard the judicial voices against Strasbourg have given some legal respectability to the politicians’ arguments that Strasbourg’s influence in (UK) domestic law should now be limited, i.e. as you suggest, the domestic courts’ need to be able to reassert themselves, and regain supremacy against the foreign invader (Strasbourg mission creep etc). But with the reform door unlocked, what is then to follow?

UK Constitutional Law Association

Editors’ note: The blog invited constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We end this series with a post by Sarah Lambrecht, law clerk at the Belgian Constitutional Court and a PhD Fellow at the University of Antwerp. You can read the other contributions in this series here. While the HRA Watch series has now ended, we will of course continue to welcome posts on HRA/ECHR matters.

This post is based upon a conference paper presented at the UKCLA conference ‘Debating the Constitution after the General Election’ held at the University of Manchester on 24  June 2015.

Sarah LambrechtThe tumultuous relationship between the UK Government and the European Court of Human Rights (ECtHR) is unlikely to normalise with the Conservative Party having obtained, against all polling predictions, an absolute majority at the May 2015 UK general election. In its

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Dr Marko Milanovic: ‘Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States’

picI’d highly recommend this blogpost on EJIL-Talk! (Living Instruments, Judicial Impotence, and the Trajectories of Gay Rights in Europe and in the United States) by Dr Marko Milanovic. Marko compares the role of the Strasbourg and US Supreme Courts against the backdrop of jurisprudence on homosexual rights.

For what is it worth,  my comments on Marko’s post follow below Continue reading

The Russian Constitutional Court on the ECHR (and UK parallels?)

pic… just a few lines to note that a judgment from the Russian Constitutional Court (RCC) last week – on which see this very informative post by Maria Smirnova here – has stirred some interest, and prompted the President of the Parliamentary Assembly of the Council of Europe to issue a Press Release expressing her concerns (see here). I’d be fascinated to know more about the judgment, and what it reveals about the situation in Russia generally regarding the ECHR, and the outlook of the RCC. If I understand matters correctly:

  • the judgment stands for the proposition that, as a matter of Russian Constitutional law, Strasbourg judgments in which Russia has been found to violate the Convention do not need to be implemented if doing so breaches the Russian Constitution (but the ‘right to object’ should only be exercised in exceptional cases)
  • in order to determine such a question the RCC has now clarified the procedural means by which cases may reach it.

I understand that, from one angle, the ruling itself can be interpreted in a positive way, in the sense that the RCC indicates that it will strive to find a harmonious interpretation of the national constitution and ECHR law, and look to enter into a ‘constructive dialogue’ with Strasbourg on these matters (the position adopted by other apex courts).

Then again, commentators are also suggesting that Continue reading

Recent Parliamentary debates on human rights law reform (30 June and 2 July, 2015)

Palace_of_Westminster,_London_-_Feb_2007

This post reports on two recent Parliamentary debates concerning human rights law reform (the Westminster Hall debate on the ‘Future of the Human Rights Act’ (30 June 2015, column 406WH), and the House of Lords’ debate on ‘Human Rights and Civil Liberties’ (2 July 2015, column 2177)).

In what follows, firstly, I briefly examine the background to the recent debates. Next I address the debates themselves, looking first at the Westminster Hall debate, and then the House of Lords. Then I examine the responses provided by the Ministers in each House. At this stage my primary aim is to inform (although I feel I could add a great deal by way of criticism, especially in respect of the ministers’ responses, I will not do so here).

conservatives-logo.ashxBackground to the debates (1): the Conservatives’ pre-election position

Readers of this blog will be familiar with the background to the government’s plans for human rights reform (see here, including the suggested links), whilst, of course, the general debate on this goes back a long way. With respect to the government’s position, however, and very briefly, Continue reading