McCann v UK – 20 years on (politicians and press react) #echr

gibI thought that the readers of this blog might be interested in the extracts that follow from the Daily Mail, 20 years ago yesterday (28 Sep 1995). The newspaper was reporting on the famous, and indeed controversial McCann v UK (‘Gibraltar shootings’ case). If I recall correctly, The Sun’s headline was ‘The Euro-Clown Court’. (See also The Independent’s reporting here, this BBC site for historical interest, and click on the picture for the 1988 ITV documentary ‘Death on the Rock’ [which concerns the shootings, not the Strasbourg case]).

In McCann the Court, by 10 votes to 9, Continue reading

Former Judge David Thór Björgvinsson’s views about Strasbourg #echr

DavidThor_120x150[1]An interview (conducted by Graham Butler: University of Copenhagen) with former (‘Icelandic’*, Strasbourg) Judge David Thór Björgvinsson has just been published in Utrecht Journal of International and European Law. It is available here (thanks to Jörg Polakiewicz for ‘tweeting’ this).

The former Judge (now Professor) Thór Björgvinsson was a Strasbourg Judge over the years 2004-2013. Much of his interview concerns the Opinion 2/13 from the Court of Justice of the European Union on the Union’s accession to the European Convention on Human Rights. What is said there is fascinating, whilst some questions and answers at the end of the interview may be of more direct interest to readers of this blog given the critique offered of the Court as an institution that is, he maintains, less assertive than it has been in the past, due to the pressure exerted upon it by States (above all the UK),

Former Judge Thór Björgvinsson makes some interesting comments about the influence of some of the most senior members of the Court Registry on Strasbourg judicial decision-making Continue reading

Full Fact: ‘Human rights court: “pseudo-judges” or super judges?’ #echr

judge_not_lest_ye_be_judgedAgainst the backdrop of sweeping claims made by some about the nature of the Strasbourg judiciary, the website ‘Full Fact’ (details of which: here) has published a short document on the background and status of the Strasbourg bench, as of July 2015.

It makes some interesting reading, rebutting many of the ‘tabloid like’ claims that Strasbourg Judges are unqualified and inappropriate for judicial office. There are also some very useful links embedded within the piece.

Further details on ‘electing Strasbourg judges’ may be found on this website (here), as well as, of course, the Court’s website and that of the Council of Europe.

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

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