ALBA Summer Conference 2018: A Review (Part 2)

18 September 2018 by

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018


‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC

The relevance of unincorporated international law (John Larkin QC):

Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:

  1. International law is determinative if it is incorporated.
  2. It ‘may have a bearing’ on the common law.
  3. It may be relevant to the application of Human Rights, via the Human Rights Act 1998.

The HRA 1998:

The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors [2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller [2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.

However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.

The relevance of unincorporated international law (Caoilfhionn Gallagher QC):

According to Ms. Gallagher, statements such as ‘the UK is a dualist state so unincorporated treaties don’t matter’ are “simplistic and unhelpful”.

In fact, there are three main ways that unincorporated international law is relevant:

  1. For the interpretation of ECHR rights.
  2. As an aid to statutory interpretation, in accordance with a longstanding presumption: cf Lord Dyson in Assange v Swedish Prosecution Authority [2012] UKSC 22 [122].
  3. To the development of the common law.

Ms. Gallagher also disagreed with the AG for N. Ireland’s view of A and B [2017] UKSC 41. He had previously argued that Lord Wilson’s comments in A and B at [35] minimised the relevance of such international materials. There Lord Wilson described “the conventions and the covenant to which the United Kingdom is party” as adding merely “background colour” to the claimant’s submissions, which his Lordship said needed “material of a far more vivid hue” to succeed. By contrast, Ms. Gallagher argued forcefully that Lord Wilson’s comments ought to be read in context and that they did not, in fact, limit the role of unincorporated international law at all.

International law case studies – Chair: Mrs Justice Laing; Speakers: Shu Shin Luh (on human trafficking and modern slavery) and Zoe Leventhal (on the UN Convention on the Rights of the Child)

Case Study: human trafficking and modern slavery (Shu Shin Luh)

Ms. Luh argued that domestic case law in this area represents ‘two steps forwards, two steps back’. The basic requirements which states must meet are set out by Article 4 ECHR, which provides ‘no one shall be held in slavery or servitude’. According to the cases of Rantsev v Cyprus and Russia (2010) 51 EHRR 1 and Chowdury v Greece (21884/15) [2017] ECR 300, this obligation imposes a range of associated duties (such as victim protection).

However, domestic law has not always been forthcoming. In particular, the legal protection offered to victims of trafficking is much more limited in scope than one might imagine. In R and B [2018] EWCA Civ 1534 the court stated (obiter) that the duties arising from Article 4 ECHR must not be allowed to increase inexorably [66]. It also rejected the argument that ‘access’ to a victim compensation scheme under Article 17 of the Directive required victims to be given ‘sufficient access’. The effectiveness of the protection offered by EU law has thus been eroded.

Case Study: the UN Convention on the Rights of the Child (Zoe Leventhal)

Ms. Leventhal focused on international law in benefits cases. She argued that such cases (i) illustrate the importance of Article 14 ECHR (the anti-discrimination provision) and (ii) that they highlight the inadequacy of the justification test found in Article 14 case law.

The orthodox view of Article 14 is encapsulated by Lord Neuberger in RJM v SSWP [2009] AC 311 at [57], and by Lord Toulson in MA [2016] 1 WLR 4550 at [32]. According to this approach, there will be instances where a policy justification for discrimination is so weak that it cannot possibly be upheld by the courts. The test applied is whether the justification is ‘manifestly without reasonable foundation’.

However, Ms. Leventhal argued that the ‘manifestly without reasonable foundation’ test is a blunt tool. Courts are, therefore, increasingly relying on international conventions to help them ‘interpret’ Article 14. Burnip [2013] PTSR 117 provides a good example of this. There Maurice Kay LJ applied Demir (2009) 48 EHRR 54, holding that

“when considering the definition and scope of discrimination against women […] the court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies” [19-22].

Maurice Kay LJ further held that if the meaning of Article 14 discrimination had been unclear he would have resorted to the UN Convention on the Rights of Persons with Disabilities [22].

Even greater emphasis was placed on international conventions in SG. There a large portion of time was spent on UN Convention on the Rights of the Child, rather than narrowly focusing on Article 14 ECHR. The court agreed that international law rights are relevant to Article 14 cases [142-4; 113-9; 211-218; 258-62]. Importantly, however, there must be a sufficient link between the case before the Court and the provision of international law in question.

Matters have been complicated by the case of Mathieson [2015] 1 WLr 3250. There Lord Wilson found a breach of Article 3 UNCRC because no evaluation of the child’s best interests was undertaken. However, the court merely suggested that a conclusion that the Secretary of State had discriminated against Mathieson ‘would harmonise’ with the breach of the UNCRC [44]. Ms. Leventhal suggested this was not quite what SG had envisaged.

The forthcoming case of DS & DA may shed some light on the issue. Though the Court of Appeal found a breach of Article 3 UNCRC, it also held that there was an insufficient connection to the discrimination alleged. Accordingly, Article 3 UNCRC was not relevant to the allegation of discrimination. The approach taken by the Supreme Court in this area remains to be seen. It may even be possible that the blunt ‘manifestly without reasonable foundation’ test will no longer be applied.

My post on Part 3 of the ALBA Summer Conference Review will be released in the coming days. A number of papers from the conference are available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: