Category: International


EU judges oppose accession of EU to ECHR

22 December 2014 by David Hart QC

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.

 

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Time for human rights to get down to business? – Adam Smith-Anthony

12 December 2014 by Guest Contributor

open-for-business4Businesses, governments and civil society descended on Geneva last week for the 2014 UN Forum on Business and Human Rights, the largest global gathering in the business and human rights field. There were lofty statements of high ambition but the pervasive tone and success of the Forum was more prosaic: nitty-gritty implementation.

It was a conference dedicated to developing and sharing the best practices capable of shifting businesses from showcase philanthropy to real accountability, from vague aspirations to measurable impacts, and from a race to the bottom to a competition to be recognised as world leading. It was a call for real action; as one panel moderator told his coffee-clutching audience early on Day 3: “I want to see dust on everybody’s shoes”.

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

4 December 2014 by Adam Wagner

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).

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The European Court of Human Rights: anti-democratic or guardian of fundamental values? – Judge Robert Spano

19 November 2014 by Guest Contributor

Strasbourg_ECHR-300x297This post is adapted from a speech given by Judge Robert Spano of the European Court of Human Rights at Chatham House on 13 October 2014. It is reproduced here with permission and thanks.

There is currently a vigorous debate in the UK on the status and future of the European Convention on Human Rights in national law and also on the relationship between my Court, the Strasbourg Court (ECtHR), the UK Parliament and the domestic judiciary. 
In principle, democratic debates on such fundamental issues should always be welcome. Indeed, discussions on the role and functions of institutions of public power lie at the core of the democratic concept. It is therefore essential for the Court and its judges to engage in reasoned and informed debate about their work and its wider European implications. 


How Does the ECtHR Discharge Its Mandate? 


I have been asked to discuss the question of how the Strasbourg Court discharges its mandate. To give an answer, one must first respond to the fundamental question: What is the Court‘s mandate?

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Kenyan President uses Tory human rights plans to defend war crimes charges

24 October 2014 by Adam Wagner

Photo credit: Guardian.co.uk

Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving 1,200 dead and 600,000 displaced.

He has recently stepped down in order to face the charges. He made a speech to the Kenyan Parliament (PDF) on 6 October strongly asserting Kenya’s “sovereignty”, and in doing so he said this:
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“UK must not think only of itself”: Massacre families urge UK not to leave ECHR – Alice Donald

24 October 2014 by Guest Contributor

Photo credit: Guardian.co.uk

Photo credit: Guardian.co.uk

The Conservative Party’s proposals to introduce a British Bill of Rights and Responsibilities that would weaken the UK’s obligations under the European Convention on Human Rights (ECHR) – and the legal chaos that would ensue if it was ever enacted – have been hotly debated. The proposal makes clear that if the Council of Europe was to reject the UK’s unilateral move, as it would be bound to, the UK ‘would be left with no alternative but to withdraw’ from the Convention. 

The policy is highly isolationist. The brief section on the ‘international implications’ of the plan does not pause to consider the impact of withdrawal on the other 46 states on the Council of Europe or the Convention system as a whole. Nor does it address the implications for the UK’s ability to promote human rights and the rule of law in countries with significantly worse human rights records.

This is despite the evident risk of contagion to newer Council of Europe states. The Council of Europe Commissioner for Human Rights, Nils Muižnieks, has argued that if the UK persists in its disrespect for the Strasbourg Court, exemplified by its protracted non-compliance with the judgment on prisoners’ voting rights, this would

… send a strong signal to other member states, some of which would probably follow      the UK’s lead and also claim that compliance with certain judgments is not possible,     necessary or expedient. That would probably be the beginning of the end of the   ECHR system.

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Strasbourg and why you must give reasons on domestic appeals

6 October 2014 by David Hart QC

MO201110701289983ARHansen v. Norway, ECtHR, 2 October, read judgment

In any system of appeals, there is always a tension between giving everyone a fair hearing and concentrating on the appeals which do stand a reasonable prospect of success. The UK, like many countries, has introduced some filters on civil appeals in relatively recent times, enabling unmeritorious appeals to be dismissed at the threshold. In doing so, it gives short (sometimes very short) reasons for refusing permission.

You might have thought that this was a classic area where Strasbourg would be wary about intervening in domestic practice and striking the balance between speed and fairness. Yet the Court was persuaded that the Norwegians got the balance wrong, and found a breach of Article 6(1). We therefore need to read it carefully to see whether the same could be said about our system.


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Will devolution scupper Conservative plans for a “British” Bill of Rights?

2 October 2014 by Guest Contributor

Referendum In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law.
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No, The Sun, “Euro judges” do not “go against UK in 3 out of 5 cases”. More like 1 in 100.

27 August 2014 by Adam Wagner

SUN WRONG AGAIN AGAINUpdated x 2 | At the risk of sounding like a broken record, The Sun has got it badly wrong on human rights. Again. On 24 August 2014 Craig Woodhouse reported that “Euro judges go against UK in 3 out of 5 cases(£). This is false and seriously misleading.

I explored this issue in detail back in 2012 when the Daily Mail as well as others claimed that the UK loses 3 out of 4 cases. Since that debacle, the European Court of Human Rights has produced some very clear documents on the statistics page of its website.

According to page 8 of this document, there have been 22,065 applications against UK 1959-2013. That means that 22,065 people or so have brought cases against the UK. Of those cases, there have been 297 resulting in a violation.

I am no statistician but 297 as a percentage of 22,065 is not “3 out of 5”. It is in fact 1.35%. Less than 2 in 100.

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Article 2 and combat immunity – where next after Al-Skeini and Susan Smith?

27 July 2014 by

British_soldier_during_Operation_Desert_ShieldR(Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin) – read judgment

When will a court order an inquiry into the deaths in combat of soldiers serving overseas? Following recent judgments of the English and Strasbourg courts extending the application of the European Convention on Human Rights to zones of armed conflict overseas in certain circumstances, the question is likely to arise frequently over the coming years. In R(Long), the Divisional Court strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin.

This claim involved the deaths of six military police, who were murdered by an armed mob in Majar-al-Kabir, Iraq on 24 June 2003. They were visiting an Iraqi police station and, contrary to standing orders, did not have an iridium satellite telephone with them. The Oxfordshire Coroner had previously held an inquest into the deaths, which opened in 2004 and closed with an unlawful killing verdict on 31 March 2006. He dealt with the lack of effective communications equipment in a Rule 43 report (now a Report to Prevent Future Deaths), but it could not be said in the circumstances that, had they had a radio, their lives would have been saved. As the coroner said, the only person who might have been able to help them in time was the commander of a nearby paratroop patrol and he thought it possible that “had he endeavoured to help, I would be holding an inquest into the deaths not of six brave men but of 18” – [49].

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The non-residents legal aid case – LC advised to go for the ball, not for his opponent’s shins

15 July 2014 by David Hart QC

roy-keane_1342720cPublic Law Project  v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Angela Patrick of JUSTICE has provided an excellent summary of this important ruling, which declared a proposed statutory instrument to be ultra vires the LASPO Act under which it was to have been made.  The judgment is an interesting one, not least for some judicial fireworks in response to the Lord Chancellor’s recourse to the Daily Telegraph after the hearing, but before judgment was delivered. 

But more of that after some thoughts on the discrimination ruling.

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Plan to stop non-residents getting Legal Aid is unlawful, rules High Court – Angela Patrick

15 July 2014 by Guest Contributor

PLP v Secretary of State for Justice [2014] EWHC 2365 – Read judgment / summary

Residence Test UKHRBAs the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.

While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.

The Administrative Court may this morning have handed him one of his first “to-do” list items.   In – PLP v Secretary of State for Justice  a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.

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Chagossians: Wikileaked cable admissible after all

26 May 2014 by David Hart QC

Diego_garcianBancoult v Secretary of State for Foreign and Commonwealth Affairs  [2014] EWCA Civ 708 – read judgment

Rosalind English (here) has summarised this unsuccessful appeal against the rejection of the Chagossians’ claims by the Divisional Court, and I have posted on this litigation arising out of the removal and subsequent exclusion of the population from the Chagos Archipelago in the British Indian Ocean Territory: see hereherehere and here. The photograph is from 1971 – the last coconut harvest for the Chagossians.

There were three remaining grounds alleged against the Foreign & Commonwealth Office in this judicial review

(i) its decision in favour of a Marine Protected Area  was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT;

(ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and

(iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union.

I want to look at (i), the improper purpose grounds, and (iii) the TEU/TFEU grounds, because in both respects the CA took a different course than the Divisional Court, even though the outcome was the same.

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Chagossians update

11 April 2014 by David Hart QC

330px-Chagosmap

A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean. 

Here are the headlines, with a reminder of what these cases are about:

First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area. 

Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.

Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.

Now to a little more detail.

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‘War crimes’ defence against Israel company protest convictions fails in Supreme Court

7 February 2014 by

AHAVA-Caressing-Body-Sorbet-AH-013_largeRichardson v Director of Public Prosecutions [2014] UKSC 8 – read judgment / press summary 

The tactics of protesters engaging in demonstrations, or acts of civil disobedience, frequently raise interesting questions of law. A demonstration by two activists opposed to the Israeli occupation of the Palestinian Territories, who entered a shop in Covent Garden which sold produce from the Dead Sea, produced on an Israeli settlement, recently resulted in the Supreme Court addressing two such questions.

First, in what circumstances can someone who trespasses on premises and disrupts the activities of the occupiers avoid prosecution by arguing that those activities were in some way unlawful?; and second (obliquely) is the construction of Israeli settlements on the West Bank an offence under English law? The short answers were (1) only when the unlawfulness is integral to the occupier’s activity; and (2) probably not.

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