Unpatriotic swipes at the Court? Separation of powers and international human rights control

bihr_side_large

There was a very interesting event yesterday at the Bonavero Institute of Human Rights (BIHR), Faculty of Law, University of Oxford, on the topic of ‘Adjudicating Rights’. Professor Kate O’Regan opened and chaired the event, which included presentations from Judge Paulo Pinto de Albuquerque (European Court of Human Rights) and from Professor Jeff King (UCL). It was an excellent event, very thought-provoking and well received by a good audience in attendance. The event was ‘videoed’, so hopefully we can look forward to seeing that on the web, and perhaps my stumbling question to the panel will appear on it – or be edited out!

The reason I wanted to write this post is as follows. Often when attending events like yesterday’s I ask a question related to the limitations on the Court’s jurisdiction and authority. Sometimes I feel that such questions are perceived as an unpatriotic swipe at human rights, and the Strasbourg Court (which is certainly not my intention; indeed, quite the contrary, for I wish to see the Court preserve its authority, by it recognising the limitations that should (in my opinion) apply to it).

I make this point generally here, and not in relation to yesterday’s event, and, to be clear, at all events the speakers have always been extremely respectful and polite in their answers and generous with their time afterwards (as was so yesterday). Nonetheless, given the topic of yesterday’s event, which also touched on ‘separation of powers’, it seemed appropriate for me to write these thoughts down .

Here, then, are some thoughts Continue reading

Advertisements

Theresa May: to remain faithful to ‘the basic principles of human rights found in the original ECHR’?

durantiThis is a slightly modified version of a book review of Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention, Oxford University Press, 20 Dec 2016 (it was originally published on the Lawfare website). In a work of great depth and incisive analysis Duranti looks back to the mind-set of those Conservative politicians in the UK who backed the Convention in 1950. His account should give pause for thought for today’s Conservative politicians advocating withdrawal from the ECHR and advancing a self-righteous, ‘Britain-knows-best’ view in relation to what is portrayed as a meddling Strasbourg Court.

***

An election is due to be held in the UK on 8 June 2017. We await the Conservative Party’s manifesto, and there is a real sense of anticipation regarding what it may say about the UK’s membership of the ECHR.

That is because last December the British press reported that the UK Conservative Party may include a commitment for the UK to withdraw from the European Convention Continue reading

Beslan school siege – some extracts from the judgment

1409610965614_Image_galleryImage__BESLAN_RUSSIA_SEPTEMBER_Today’s Chamber case (here) has been in the news today, and rightly so given the countless tragic human stories behind an event which left 180 children (plus many others) dead.

The purpose of this short post is to highlight certain features of the judgment and their legal significance (I do not claim to have read the whole judgment, but have scanned over it, and what follows is, of course, non-exhaustive).

A first point, aside from the actual judgment itself, is to note that one of the groups of applicants were represented by EHRAC/ Memorial Human Rights Centre (London/ Moscow). We may ponder on the significance of that as we read about Russian crack downs on NGOs working in the human rights field (see, eg, here).

Second, anyone doubting the level of detail Continue reading

Extra-territorial derogations from the ECHR for future armed conflicts involving the UK?

army.aspxLast October it was announced that the UK government may derogate from the ECHR in relation to future armed conflicts (see EJIL-Talk analysis here). This prompted the (UK Parliamentary) Joint Committee on Human Rights to launch an inquiry into this matter, details of which may be found on its web site (here). The JCHR called for written submissions on the matter.

I made a written submission (which I hope will appear on the JCHR’s web site soon, along with other submissions). I set out an extract from my submission below (please note footnotes are not included, I am happy to send a copy of my submission to anyone who contacts me: epb3@le.ac.uk)

My submission addresses whether extra-territorial derogations from the ECHR are permissible, and on what basis. I argue that they are, but that their special context requires consideration in relation to the validity of any individual derogation.

Indeed, the relevant case law, and the policy issues Continue reading

Is the UK going to withdraw from the ECHR? What about the Human Rights Act?

bull-final

With the UK’s relations with Europe in such a state of flux, a few words may be in order on the UK government’s position toward (i) UK membership of the ECHR, and (ii) repeal of the Human Rights Act 1998. The last few years has seen so much speculation on these issues that even UK-based academics may struggle to keep up, or perhaps the better word is ‘decipher’, what the current position is. This is an attempt to do so.

The UK and the ECHR: no immediate plans for withdrawal

Current position: the UK government has ‘no plans to withdraw’ from the ECHR (1 Feb 2017, statement by David Jones, Minister for ‘Brexit’: here (col 1131)).

Concerns: the ‘no plans to withdraw’ position hardly Continue reading

Still a strong case for a British Bill of Rights?

heald… I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.

These were the words of Sir Oliver Heald, Minister for Human Rights (Ministry of Justice), when commenting on the HRA and the case for a British Bill of Rights.

The Minister was appearing (evidence here) before the JCHR last month, concerning its inquiry on the ‘human rights implications of Brexit’. At the end of the session he made some comments about the HRA and the Strasbourg Court. Those comments are set out below. To my reading they amount to the Minister agreeing that, as far as he is concerned, significant progress has been made in the relationship between Strasbourg and the UK over recent years. This is a result of the ‘Brighton’ reform process, and shift in the domestic courts’ approach to section 2(1) HRA since 2009, and other matters.

We still have no real idea when the government will publish meaningful documentation on its proposed British Bill of Rights (see this RightsInfo analysis: ‘Plans To Scrap Human Rights Act Could Be Delayed Until After Brexit’).

The relevant extract of Sir Oliver Heald’s comments are set out below.

Joint Committee on Human Rights – Oral evidence: What are the human rights implications of Brexit? HC 695 Wednesday 23 November 2016

Q 21 …. Sir Oliver Heald

The European Court of Human Rights and the convention that underpins it are a very important part of our human rights protection, but there have been concerns about the way in which it has worked since the Human Rights Act was passed in 1998. I mentioned earlier that by 2006, when the Conservatives launched a policy for a British Bill of Rights—I was part of that launch—we pointed to a range of issues that had arisen with the ECHR and the way it had been implemented in Britain. Over the period of the past 10 years we have made considerable progress on some of those. The three issues where I think we have made some progress are that in 2006 we were very concerned that the European Court of Human Rights could not dismiss trivial and hopeless cases and had a huge backlog of cases that was building up. It was really rather inefficient in that way. There was not adequate subsidiarity and sometimes issues were being looked at which should have been dealt with at the domestic level There were other issues, such as the margin of appreciation perhaps not being adequate. So that was one package of measures about how the ECHR was working and its relationship with us.

There was a concern about the difficulty in deporting people to other countries because of how Article 8 operated. There was also a concern, which really came from a case in 2004, that the courts were just slavishly following ECHR judgments and not trying to develop an English jurisprudence around the ECHR. When the 1998 Act was going through I remember making a speech, along with many other people, about the problem that we could end up with a sort of very flat European jurisprudence. Over the period since 2006 we have seen real progress such as the Brighton Declaration which Kenneth Clarke secured, which has helped a lot on those administrative problems. Section 19 of the Immigration Act 2014 deals with the point about Article 8 and how it operates. Then more recently we have seen the courts taking a different approach and having much more of a dialogue with the ECHR. The case of Horncastle in 2009 was seen as something of a watershed in that regard. Although the process which started in 2006 of talking about a British Bill of rights has not resulted in a draft Bill yet—I apologise that we are not bringing one forward immediately, as we said we would—we will do so. But I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.

Conference: The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era?

 

Leicester Law School 50th anniversary (1966-2016)

Bingham Centre for the Rule of Law and the University of Leicester invite you to attend this event taking place in April.

The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era?

 Wednesday 20 April 2016 14:00-18:00 followed by a drinks reception (lunch & registration from 13:00) Bingham Centre for the Rule of Law Charles Clore House, 17 Russell Square, London WC1B 5JP

3.5 CPD hours

It may be argued that, in the light of the Interlaken-Izmir-Brighton-Brussels reform process, the European Court of Human Rights/Convention system has reshaped itself significantly over the last 5 or so years, possibly reflecting a new distribution of powers between Strasbourg and the member states. This may or may not be a good thing. Does it reflect a natural evolution of the Convention system, or the necessary adjustments required of a Court that is under pressure and strain?

This half-day event, held on the fourth anniversary of the Brighton Declaration of April 2012, will provide opportunity to hear leading experts consider how the Strasbourg Court has evolved in recent years, and reflect upon its longer-term future. Speakers will also consider how the reform process might inform debate in the UK about the European Court/Convention system and a possible British Bill of Rights.

Part one of the event will address how the Court has evolved in recent years, in terms of the approach it adopts to resolving certain cases on their substantive merits. Part two looks more specifically at the reform process initiated at Interlaken and Brighton. A focal point will be the CDDH’s report of the ‘Longer-term Future of the system of the European Convention on Human Rights’, and its implications.

Confirmed Participants Opening keynote speaker: Rt Hon Dominic Grieve QC MP

Closing keynote speaker: Sir Nicolas Bratza (former President, ECtHR)

Speakers: Ms Merris Amos (Reader in Human Rights Law, Department of Law, QMUL) Dr Ed Bates (Senior Lecturer in Law, University of Leicester) Richard Clayton QC (UK member, Venice Commission; Deputy High Court Judge; and 4-5 Gray’s Inn Square) – tbc Dr Alice Donald (Senior Lecturer, School of Law, Middlesex University London) Prof Dr Martin Kuijer (Chairperson of the Council of Europe Working Group on Longer-term Future of the System of the European Convention on Human Rights; Substitute member, Venice Commission; Senior Legal Adviser, Netherlands Ministry of Security and Justice; and Professor Human Rights Law, Vrije Universiteit Amsterdam) Prof Philip Leach (Professor of Human Rights Law, School of Law, Middlesex University London; and Director of the European Human Rights Advocacy Centre) Mr Rob Linham OBE (Assistant Director, Europe and Domestic Human Rights, Ministry of Justice) – tbc Dr Matthew William Saul (Postdoctoral Fellow, PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of Oslo) John Wadham (Associate, Doughty Street Chambers)

Visit the Event Page Download the Event Flyer

Pricing and Registration

 BIICL members / Uni. of Leicester staff Non-member
Individual £55 £90
Full-time Academic £35 £60
Full-time Student £20 £30

N.B. The Academic rate also applies to staff of government and non-profit organisations.

BOOK ONLINE

Or visit www.biicl.org/events

Free NGO places A limited number of places for this event are available for staff of NGOs to attend free of charge as part of an initiative by the Bingham Centre for the Rule of Law to provide NGOs with access to legal education and training events. Please email our Events Team at eventsregistration@biicl.org with your contact details, your position and the NGO that you work for. We will organise your attendance, subject to availability.

Event co-organised by Bingham Centre for the Rule of Law and the University of Leicester.