10 November 2014
In his lecture to the Administrative Law Bar Association earlier this month, Lord Sumption surveys the concept of “anxious scrutiny” – a judicial method which he characterises as a forerunner to the principle of proportionality. The term was actually coined by Lord Bridge in Bugdaycay (1986), and was meant to apply where the rights engaged in a case were sufficiently fundamental, and stretched the traditional “Wednesbury” test to public authority decisions or actions which were not, on the face of it, irrational. (The citation given in the PDF of the speech incidentally is incorrect). The same way of thinking had been arrived at in the US courts a few years earlier, with their “hard look” doctrine, but to Lord Sumption there was something peculiarly English about the “crab-like” way in which our courts approached and eventually acknowledged this doctrine, hitherto alien to the judicial toolbox.
But if we apply anxious scrutiny to the doctrine itself, Sumption suggests, it raises more questions than it answers.
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28 February 2012
Why should we bother with the European Convention on Human Rights? Many of those that would never contemplate leaving the ECHR still question whether we should abide by controversial decisions such as those on prisoners’ voting rights or deportation. UCL’s Professor Richard Bellamy attempted to answer this question at the Statute Law Society’s talk on Monday evening. He said that the UK should abide by the ECHR, which gains its legitimacy by being the best way for democratic states regulate their relationships and protect their citizens’ rights.
The talk was entitled ‘The Democratic Legitimacy of International Human Rights Conventions’ (IHRCs). Although perhaps not in such terms, this is a topic that exercises many every week: from those questioning who exactly decides which human rights are the ones that count, to those asking why ‘unelected judges’ in Europe can tell a democracy how to govern itself. Professor Bellamy started by noting that mature democracies are generally less keen on IHRCs; at the post-war inception of the ECHR, he said it was Germany and Italy showing most enthusiasm. Even now, many ‘democratising’ countries show less opposition to Europe’s human rights structures.
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