EU judges oppose accession of EU to ECHR

Dog_SeatOpinion of CJEU, 18 December 2014 – read Opinion

Well, here’s a thing. The EU top court in Luxembourg has decided that it is somehow against the EU treaties for it to defer in specific instances to the other European top dog, the ECtHR in Strasbourg.

Accession of the EU to the ECHR has been a very slow-burn process, with the Commission starting things off in 1979 (sic). The breakthrough, or so it appeared at the time, was the entry into force of Article 6 of the Lisbon Treaty of European Union, in December 2009. This (Art.6(2)) makes it a treaty obligation  that the EU

“shall accede to the ECHR”.

Nice and simple then? No, not exactly, when you look at the extremely complex  Draft Agreement on Accession of the European Union to the European Convention on Human Rights, concluded in April 2013- my post here. This seeks to make the adjustments to both the EU and ECHR institutions enabling a non-state organisation such as the EU to sign up to the ECHR.

One of the steps contemplated by the draft Agreement was the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties. And the CJEU’s firm “non” to that question will inevitably set back the process, if not lead to its complete derailment.

The Opinion has already been well analysed by Aidan O’Neill QC here and Steve Peers here, neither in terms flattering of the CJEU. It is of some importance, so here is my penn’orth.

 

Continue reading

Why Somali pirates got damages from Strasbourg

disaster2008_Ponant14Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment 

There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about. 

The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.

Continue reading

Who’s afraid of Protocol 15? Not the Joint Committee on Human Rights – Alice Donald

Strasbourg_ECHR-300x297The parliamentary Joint Committee on Human Rights this week published a report of its inquiry into whether the UK should ratify Protocol 15 of the European Convention on Human Rights. As the report states, Protocol 15 is the culmination of the UK Government’s contribution to the process of reform of the European Court of Human Rights, which was the UK’s top priority during its Chairmanship of the inter-governmental arm of the Council of Europe, the Committee of Ministers, in the first half of 2012.

The JCHR identifies as the most significant aspect of Protocol 15 the addition to the Preamble of the Convention of an express reference to the principle of ‘subsidiarity’ and the doctrine of ‘the margin of appreciation’. The Committee welcomes this amendment and recommends that the UK should ratify the Protocol – but only after it has been debated in both Houses as a means of raising members’ awareness of its significance.

This post focuses on the implications of Protocol 15 for the UK’s increasingly turbulent relationship with the Convention system, and for the wider debate about the purported ‘democratic deficit’ created by supranational judicial supervision of domestic democratically-accountable authority.

Continue reading

Geoff Hoon sting case fails in Strasbourg

9b316a14-1a4d-41c5-abc3-035aa1e6a91bHoon v. United Kingdom, 13 November 2014, ECtHR, read judgment

Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.

In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was  contacted by  Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”.  The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.

Hoon was indeed interested. 

Continue reading

Super Grieve strikes again: Tory human rights plans would be “devastating” for the UK

Super Grieve (UK Human Rights Blog)Dominic Grieve QC was appointed as the Coalition Government’s Attorney General in May 2010. He remained in post until July 2014 when he was sacked. He said he would “happily” have stayed on, but the reality was that he could not support the Conservative Party’s radical plans to reform UK human rights law. 

Since then he has become a fierce and impassioned critic of the Tory plans, somewhat surprisingly given his public persona which is otherwise calm and lawyerly. He has produced two detailed, and devastating, critiques: the first in Prospect Magazine and then last night in a lecture at University College London. Both are highly recommended as measured and unarguably correct analyses of the Tory plan.

To my mind, Dominic Grieve QC is a bit of a hero. He has stood up for principle at the expense of his political career. He did not just resign in disgust, he then made it his business to explain to people – and particularly those on the Right – why the Tory plans would be “devastating both for ourselves domestically as it will be for the future of the Convention” (p.24).

Continue reading

Why domestic Aarhus rules are not wide enough to comply with the Convention

F_AarhusConventionSecretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014  – read judgment  

Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.

Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.

Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.

Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?

Continue reading

Naked rambler gets no help from European Court of Human Rights – Diarmuid Laffan

Naked-Rambler-Stephen-Gou-008Gough v UK (Application no. 49327/11), 28 October 2014 – Read judgment

The applicant in this case has been repeatedly arrested, convicted and imprisoned for breaching the peace by walking around naked in public. In a judgment handed down recently, the European Court of Human Rights found the UK authorities’ restriction of his rights under Articles 10 and 8 of the Convention, proportionate to the legitimate aim of preventing disorder and crime.

Stephen Gough has a strong conviction that there is nothing inherently offensive about the human body, and that he harms no-one by walking around naked. A really, really strong conviction. Since he set off on a naked walk from Land’s End to John O’Groats in 2003, he has been nicknamed the ‘naked rambler’ and has spent most of the last eight years in prison, and most of that time solitary confinement.

Continue reading