Tag Archives: european court of human rights

Representation of the UK parliament’s power in the national media: too weak, or too strong? 

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The extent and proper level of the Westminster parliament’s power has long been disputed. So what impressions do UK newspaper readers receive on this question? Meg Russell and Lisa James summarise a new study showing that the dominant right-leaning newspapers, in particular, often present negative messages about parliament: depicting it as either too weak or too strong. 

Parliament sits at the heart of the UK constitution. But, despite valuable communication and outreach programmes by the parliamentary authorities, the public’s understanding of this central institution is likely to be heavily influenced by its presentation in the media.  

We have recently published an article, ‘Representation of the UK Parliament’s Power in the National Media: Too Weak, or Too Strong?’, investigating how parliament is portrayed in UK newspapers. It explores, in particular, how the print media depicts parliamentary strength. The actual level of parliament’s power has long been a debate among academics: is it a mere rubber stamp, dominated by the executive, or a more influential shaper of policy? Some scholars have charted the well-established but dubious ‘parliamentary decline thesis’. Others have suggested parliament is more powerful than often assumed, that procedural and political changes have led to a ‘new assertiveness’, or even that the institution may have become ‘too powerful’. But what messages do the public receive from the media about such questions? Our article is the first to explore this directly. It also explores how these messages changed in the turbulent years following the June 2016 Brexit referendum, when the government faced increasing challenges in the House of Commons. 

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Why the UK government must take a different approach to restoring devolution in Northern Ireland

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Alan Whysall discusses the prospects for the return of the Northern Ireland political institutions this autumn. He finds limited grounds for optimism and concludes that the responsibility for salvaging the Belfast/Good Friday Agreement settlement may now fall to the next British government. This post picks up themes from the author’s two most recent papers for the Constitution Unit, called Northern Ireland’s Political Future (NIPF) and The Agreement at 25.

As the July issue of Monitor recorded, visits from US President Joe Biden and other notables to celebrate the twenty-fifth anniversary of the Belfast/Good Friday Agreement had little apparent effect on Northern Ireland politics; nor did local government elections, at which Sinn Féin emerged triumphant. The principal Agreement institutions remained in abeyance, vetoed by the Democratic Unionist Party (DUP), which remains concerned about the Northern Ireland Protocol and Windsor Framework. At the time of writing, tensions are growing over policing, potentially deepening the political standoff. Northern Ireland meanwhile is being governed without government by civil servants who have very limited authority, together with occasional interventions from London.

Will devolution come back?

Before the summer, many commentators believed that the DUP would reach a deal in the autumn, claiming credit for aspects of the Windsor Framework, to bring back the institutions. This remains possible – many DUP careers depend on their existence. There have been suggestions of progress behind the scenes in the last few days. But it is now harder to be confident. Stasis until the UK general election seems possible, while the political, social and economic fabric of Northern Ireland deteriorates. Why?

First, the DUP may find compromise over the Protocol difficult. Negotiations are apparently going on between the party and the government, informed by a private 18-page DUP wish list. Its public demands for action on the Protocol, and on the threats it sees in it to Northern Ireland’s constitutional position, have been vaguely expressed, but the implication is that they are substantial. It seems unlikely that London can do very much to satisfy them without reopening the Protocol or the Agreement itself: and it has warned that it cannot do significantly more. So DUP supporters may be disappointed in any feasible compromise, and according to polling, they largely endorse the hard line taken so far. Senior party figures may be obdurate too, whatever the leader, Jeffrey Donaldson, wants: the former deputy leader, Lord (Nigel) Dodds of Duncairn, spoke vehemently of the ‘many unresolved and outstanding problems’ created by the Framework, suggesting London was merely peddling spin.

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The UK’s defiance of the European Court of Human Rights

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Veronika Fikfak argues that by amending the Illegal Migration Bill to require UK courts to ignore a potential interim measure from the European Court of Human Rights, the UK government has reached for the most drastic option, exposing its carefully fostered image of a ‘good complier’ as merely a myth. She warns against passage of the amendment, and criticises the government for taking the same path as Russia by choosing defiance over dialogue.

In late April, the government tabled a number of amendments to the Illegal Migration Bill, including an order to domestic courts to ignore a potential interim measure from the European Court of Human Rights (‘the ECtHR’) to stop someone being removed from the UK if they bring forward a legal challenge. British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights. In this blog, I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR). I show how both countries have sought out a direct conflict with the Strasbourg Court and how the UK – for the first time since joining the ECHR – is taking the same route. I also outline how far its behaviour goes from the usual ‘good complier’ image that the UK has carefully fostered.

Poland and Russia choose defiance over compliance

In international law, courts are notoriously dependent on states, and especially their executive branches, to enforce their judgments. Since the international community has no enforcement mechanism to compel states to comply with a decision of an international court, if a state were to refuse to do so voluntarily, the judgment would remain merely words on paper. Yet generally states have been reluctant to openly defy the ECtHR by refusing to enforce its judgments. Instead, negotiations, lobbying and delays are the standard techniques to avoid or minimise compliance. Even when countries adopt domestic laws that clearly contradict the ECHR (such as in the case of immigration legislation in Denmark or the UK’s recent bill), this is usually done under the cover that the state ‘seeks to clarify the content of obligations under the Convention’ or more boldly that it wishes to ‘test the limits’ of the ECHR. Once a judgment is delivered, the state promptly puts in place a process to comply with the judgment (such as in the case of Savran v Denmark). The intent to voluntarily comply with the ECHR is present for the majority of countries.

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The rule of law: what is it, and why does it matter?

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This is the first edition of this briefing. It has since been updated. Read the most up-to-date version and other briefings on the Constitution Unit’s website.

The rule of law is a fundamental principle underpinning the UK constitution. Its core principles include limits on state power, protection for fundamental rights and judicial independence. Lisa James and Jan van Zyl Smit argue that upholding the rule of law is a responsibility shared between politicians, officials and the public – with ministers and MPs having important roles to play.  

Background

The rule of law is frequently cited in political debate, and is a key topic monitored by those worried about democratic backsliding. But what is it, and why is it so important?

The rule of law is one of the fundamental principles underpinning constitutional democracies, and its importance is not seriously questioned in any modern democratic state. But like other constitutional principles, long-running debates exist about how it can most effectively be implemented.

This briefing explains the central concepts constituting the rule of law under three broad categories:

  1. Legality and legal certainty
  2. Legal equality and fundamental rights
  3. Judicial independence and access to justice

Why does the rule of law matter?

The rule of law prevents the abuse of state power, requires the law to be followed by all, and ensures that legal rights are fulfilled in practice. It also provides the means for various other core aspects of democracy to be safeguarded – for example, making certain that the laws made by parliament are enforced, and that fair conduct of elections can be guaranteed. More broadly, it underpins social functioning by providing fair and legitimate routes for disputes to be settled. And it supports stable economies and economic growth by upholding property rights, facilitating the elimination of corruption, and maintaining a business environment in which contracts are enforced, and international trade and investment can flourish. The rule of law alone is not sufficient to make a state democratic, but a state which does not observe it cannot be a healthy democracy.

As such, the rule of law has long been recognised as a fundamental part of the UK system. Many of its core aspects were established during the seventeenth century – particularly by the Bill of Rights 1689. Nineteenth-century scholar Albert Venn Dicey considered it, alongside parliamentary sovereignty, one of the ‘twin pillars’ of the constitution. More recently, Margaret Thatcher considered its observance central to Conservatism, arguing that ‘the institution of democracy alone is not enough. Liberty can only flourish under a rule of law’. And the 2001 Labour government recognised its importance as an existing principle in the Constitutional Reform Act 2005.

What does the rule of law cover?

Like other fundamental principles, the precise details of the rule of law are debated, but its central tenets are widely recognised. Lord (Tom) Bingham of Cornhill, a former Senior Law Lord, provided one well-known schema, on which the Venice Commission’s Rule of Law tools for assessing constitutional reforms are based. Another influential definition was given by then UN Secretary-General Kofi Annan, who defined the rule of law as:

…a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

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