Domestic Judges and The European Court of Human Rights: Conflict or Consensus?

External Event

Thursday 31 March 2011 17:30 to 19:30

Location:

British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

Participants:

  • Lord Hope of Craighead, Deputy President of the UK Supreme Court
  • Olivier Dutheillet de Lamothe, Conseiller d’Etat, France
  • Giorgio Malinverni, Justice of The European Court of Human Rights
  • Peter Paczolay, President of the Constitutional Court of Hungary

Will discuss the European-wide research on the topic presented by

  • Dr Başak Çalı, Senior Lecturer in Human Rights, University College London

Summary:

The judgments of the European Court of Human Rights cannot automatically override domestic legislation or precedent. Yet domestic courts, as a matter of international legal obligation, are required to respect the judgments of the European Court of Human Rights. The relationship between the two courts may be conflicting or consensual. This timely seminar will discuss the ways domestic courts and the European Court of Human Rights manage their delicate relationship, reporting for the first time the results of an ESRC-funded study on the subject.

http://www.biicl.org/events/view/-/id/621/

External Event: Sovereignty in Question

W G HART LEGAL WORKSHOP 2011
Sovereignty in Question

Venue: Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR
Tuesday 28 June – Thursday 30 June, 2011

The W G Hart Legal Workshop 2011 will explore the multi-faceted concept of sovereignty. In a
pivotal study ‘Questioning Sovereignty’, Professor Neil MacCormick (in whose memory the
workshop is dedicated) argued that in the face of regional and international developments former
understandings of state and nation and of sovereignty were increasingly outdated. At a supra-
national level this idea has already raised the spectre of a new legal order based on a European
‘super state’ with the potential further to transcend traditional views of sovereignty and the
sovereign state. Meanwhile, in the United Kingdom for example, established constitutional doctrine
in the form of Parliamentary Sovereignty has also now to be considered against the backdrop of the
Human Rights Act, the devolution of power to Scotland, Wales and Northern Ireland and the
creation of a Supreme Court. Equally however, comparative constitutional discourse confirms the
continuing appeal of the concept of sovereignty and its great capacity for reinvention, whether this is
in the context of a powerful pull of ideas about local identity (plurinational democracies) or the
determinedly globalising guise of international organisations. Focused both on the internal and
external aspects, the workshop will aim to consider these various dimensions of sovereignty,
examined from a legal, theoretical, political and historical perspective.

See the link below for further information:

http://ials.sas.ac.uk/events/docs/WGH 2011 Call for Papers draft to Avrom-v2.pdf

At the heel of the hunt, the Tory hue and cry on human rights needs to die down

The Prime Minister is “physically sick” at the prospect of any prisoners winning the vote because of a ruling by the European Court of Human Rights. He and the Home Secretary Theresa May are “appalled” by the Supreme Court’s ruling that to deny people placed on the sex offenders’ register for life a right of appeal is contrary to human rights. Is this appropriate language for one pillar of the constitution to use about another? Even more to the point, does this so-called “firestorm” over two HR rows presage a Cameron-led assault not only on the ECHR but on the human rights plank of the constitution upheld by judges?

The suspicion must be raised that campaigns against the ECHR waged down the years by tabloids like the Sun and Daily Mail have affected the tone of debate and have emboldened the Conservative Right. Conservative ministers like Lord Chancellor Clarke and Attorney General Grieve have on the whole chosen to keep their heads down rather than boldly correct the grossly distorted visions of wholesale removals from the sex offenders’ register or mass vote -ins by prisoners. On the other hand the commission now being expedited jointly by Ken Clarke and Nick Clegg to examine a British Bill of Rights is unlikely to satisfy the objectors to “ interference by unelected judges.” A separate Tory review may take a different view.

On these issues the Times is leading the hue and cry. On Thursday in a double-page spread the paper reported that a  Tory policy review will examine whether the party can back withdrawing from the (European) Court after the next election, recognising that such a move earlier would be vetoed by the Lib Dems.

Today the Times eagerly spun  “leaked documents” showing that

Britain would face no serious sanction if it ignores the Strasbourg court’s diktats.   The papers, prepared for Deputy Prime Minister Nick Clegg, reveal that the UK would face only ‘political rather than judicial pressure’ if it took a stand against the unelected Euro-judges.

However it went on to quote the documents, adding:

Britain would open itself up to charges of hypocrisy since it has consistently criticised Turkey for failing to pay compensation awarded by Strasbourg.

If the Government made a “genuine attempt” to introduce legislation to allow prisoners to vote, but this was then defeated in the Commons, it could be enough to “persuade Strasbourg that the UK has done its best” and could reasonably expect to avoid any further sanction.

If Britain left the convention it could risk the country’s membership of the European Union. “Both the Council of Europe and the EU require member states to adhere to their value, including respect for human rights. Ultimately, whether to expel the UK from either would be a political decision, but the UK would clearly lay itself open to expulsion by withdrawing from the ECHR,” the note concludes.

While there are real issues in contention, the controversy smacks of internal Conservative politics, throwing the Right a bone to pick and a blue line to draw to differentiate them from the their coalition partners. As the Times acknowledges, the party itself is “ hopelessly split” on the HR issue. However an outcome in favour of ” human rights plus”  must be less certain than it was just after the general election. It would help, to moderate the language and offer dispassionate accounts of current controversies and exactly what are the powers and influence of the European Court.

Adds Saturday 19 Feb.  The media appetite for the topic may be slaked by what the Mail calls this ” common sense” judgement in the High Court – for the time being.

Extract from Daily Mail article:

It is a momentous development but Britain’s courts and Parliament – at long last – could be on the verge of restoring this country’s sovereignty over the unelected judges of Strasbourg.

First, following a campaign by this paper, ( my italics)  MPs voted overwhelmingly to reject the European Court’s human rights ruling that prisoners must be given the vote.

Now, in an outbreak of common sense, the High Court in London has refused compensation claims brought by 588 convicts barred from taking part in last year’s general election, and ordered each of them to pay £76 in costs – equivalent to two months of prison wages.

Funding arrangements do not “satisfactorily guarantee” the Supreme Court’s institutional independence

Lord Phillips of Worth MatraversSo said Lord Phillips (President of the Court) in his lecture last night, launching the Constitution Unit’s new project on the Politics of Judicial Independence. He noted that because the original revenue streams envisaged for the court have not produced the amounts anticipated (Supreme Court souvenirs were one of the more unusual elements of this original plan) the court has effectively become dependent on a contribution from the Ministry of Justice in England and Wales for its operation – a stark contrast with the secure line of funding originally envisaged by Parliament for the new court. The result of this is that there is a “tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.”

While this is the first time this issue has been voiced by the President of the court, there have been rumblings of discontent within the judiciary about court funding for some time. Given the Government’s commitment to the reduction of public sector spending, this is a battle that is likely to run for a while.

Lord Phillips also discussed the administration of the court. He stressed that it was “critical” to the court’s independence that the chief executive, although a civil servant, owed primary loyalty to him (and not to the Minister), and added that this view was shared by Jenny Rowe (current chief executive of the Supreme Court). However, it was acknowledged that “there are those within the Ministry who do not appreciate this.”

Speaking about judicial appointments, Lord Phillips stated that the appointments process, as revised by the Constitutional Reform Act 2005, significantly guaranteed institutional independence. Any move towards US-style confirmatory hearings should be rejected since this would “lead to the politicisation of judicial appointments and to the Court being seen to divide on some issue on political lines.”

Other issues discussed included the growing role of judicial review and human rights jurisprudence, and how the judiciary should not be viewed as overstepping its role in this context.  The lecture was followed by a lively Q&A session, where Lord Phillips spoke candidly about his court’s relationship with the Executive, Parliament as well as the European Court of Human Rights in Strasbourg.

Further Information

Media

Unit Flickr

Supreme Court TV doc is curtain raiser for our inquiry into judicial independence and accountability

The genre of  television documentary and the judiciary both broke new ground in The Highest Court in the Land, a portrait of the new Supreme Court aired last Thursday on BBC4 and available here or direct on BBC iPlayer for the next few days. The breakthrough came in the willingness of the justices to discuss real cases. The tasters were glimpses of their personal and domestic life. We had fetching sequences of the Court President Lord Phillips in Day-Glo stretch Lycra cycling to work through the London traffic at 6 a..m., Lord Hope as a solitary shopper in Sainsbury’s, Lord Kerr smearing Marmite on toast for his wife’s breakfast tray (“I dislike Marmite myself”, he confided)  and Lady Hale at the chopping board (“my husband usually does the main course”, declared this champion of equality).

In Phillip’s words, it was all in the interest of presenting our topmost judges as ” ordinary people leading ordinary lives.” Or – he might have added but didn’t – at least as ordinary as gliding from Oxbridge to the bar, and finally reaching the highest bench in the land can be.

Sexism and inequality remain live even politely tense issues. In the Radmacher- Granatino divorce ruling last year for instance, Lady Hale the sole woman member of the court  was the only dissenter on the nine- member panel which reached a majority 8-1 decision in favour of the legal status of prenuptial agreements.  Hale insisted that prenups ” work against women, usually the less powerful party” and differed  from her male colleagues over whether the  line-up of justices  was purely a coincidence.  On gender balance in the court’s make up, she said:  “There comes a time when it becomes embarrassing not to have a woman….One of the things it does is to become harder  (for the men members)  to express sexist views. I wouldn’t like to accuse any of them of being sexist in my absence – but I don’t know, I’m not there.”

Dealing with gender balance on such a sticky wicket, Phillips blocked  gamely, if not altogether satisfactorily: ” Ideally I would like six men and six women, but a lot of woman drop out before they can reach the judiciary. It is not easy to combine this with raising a family

Lawyers are hardly unique there.

As over the prenup ruling, the justices’ willingness to discuss some of the high profile and controversial cases before them was welcome and quite revealing. The court came in for stick when it ruled against allowing  the Office of Fair Trading  to look into unpopular bank overdraft charges. Said Phillips: “Personally I would be quite in favour of the OFT looking into bank charges, but we have to look at the statute.”

Are majority decisions entirely satisfactory when a different combination of justices could reach a different conclusion? “There is no perfect answer. No judge is omnipotent, but everyone is doing their very best.”

The biggest bone of contention dating back to the law Lords remains the barely suppressed struggle between government and courts over counter terrorism and human rights. “Horrific ” is Phillip’s description of the original post 9/11 indefinite lock up of 17 foreign suspects without charge or notification. Control orders were little better. For 16, hours, 18 hours a day? “How long is a piece of string?” Last year, the government lost the legal battle over control orders, compelling the modifications announced this week.

The big question is, should an unelected court tell the elected government what to do?

Lord Phillips is confident in his answer.  Independently appointed judges are the best people to decide whether the government is abiding by the binding principles it has signed up to. On national security and human rights: “By applying the Human Rights Convention we are complying with the wishes of Parliament. Government won’t tear human rights up because it appreciates fundamental human rights.”

And there the matter rests- for the moment.

The Constitution Unit has just begun a three-year rolling research project into judicial independence and accountability. To mark the launch Lord Phillips gives a Constitution Unit lecture on the theme Judicial Independence & Accountability: A View from the Supreme Court. on Tuesday 8th February at 6.00pm in the Gustave Tuck Lecture Theatre, Wilkins Building, University College London.

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