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?
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.
The 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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