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Robert Hazell:You want a constitutional convention? This is what you need to think through first.

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In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

A constitutional convention is not the only means of achieving these purposes. If the main objective is to build cross-party consensus, then cross-party talks are the obvious vehicle (as in the cross party talks which preceded the Belfast agreement, or the current talks on further devolution to Scotland led by Lord Smith of Kelvin). If the main objective is to harness expert opinion, then the best vehicle may be an expert commission. In recent years expert commissions have been successfully used to chart the way ahead for further devolution, with the Calman Commission in Scotland leading to the Scotland Act 2012, and a series of commissions leading to the grant of further legislative powers to Wales. But the extraordinary levels of public engagement during the referendum campaign in Scotland have created an expectation that for proposals to command legitimacy, there must be greater citizen involvement in producing them. The Scottish experience lies behind calls for a constitutional convention. But alternative models exist (for example, inter parliamentary talks); and there is no single model for a constitutional convention (see Alan Renwick’s excellent pamphlet, and Fournier et al’s book When citizens decide: Lessons from citizens’ assemblies on electoral reform OUP 2011).

Scope and terms of reference

One argument advanced for a constitutional convention is that it would enable development of a coherent overall reform package, rather than further piecemeal reforms. People have suggested that it should address the unfinished business from previous reforms: an elected House of Lords, a British bill of rights, reform of party funding, a written constitution. A list of reform proposals from all sides of the political spectrum could include the following:

  • Renegotiating the balance of competences. In/Out referendum on EU
  • Human rights. Repeal of the Human Rights Act. British bill of rights. Exit from ECHR, Council of Europe
  • Reform of House of Lords. Further improvements to ‘transitional’ appointed House; directly elected second chamber; federal second chamber to represent nations and regions
  • Reforms to House of Commons. Reducing size of House to 600. Changing the voting system. Votes at 16. Extending expatriate voting rights
  • Reform of party funding
  • A written constitution for the UK. This would offer the widest scope, encompassing all the above.

A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable. Even if the convention is asked just to consider further devolution in the UK, the agenda would be sizeable. It includes the following items:

  • Further devolution to Scotland, of tax and welfare. What else? Devo more or Devo max?
  • Devolution finance, reform of the Barnett formula
  • Further devolution to Wales (Silk report 2 on legislative powers)
  • Further devolution to Northern Ireland (e.g. of corporation tax)
  • Devolution within England: an English Parliament. Regional assemblies, city regions.       Combined authorities, elected mayors, restructuring local government, reforming local government finance
  • Rebalancing the Centre.       English votes on English laws.       Entrenching the devolution settlement. Combined Secretary of State for the Union. Federal second chamber.

This is a big agenda, and a convention charged with considering further devolution would need to have a phased work programme and prioritise certain items. Depending on the political context, it might decide to prioritise work on the English Question (see my earlier blogpost on The English Question).

Timetable

That brings us to the timetable. This must fit the agenda of the next UK government, and the wider political and electoral cycle. What results (if any) are required before the next UK general election in May 2015, the next Scottish elections in May 2016, the introduction of a British bill of rights, or a possible In/Out EU referendum in 2017? Practical realities mean it would be almost impossible to establish a convention before the May 2015 election. In other countries the lead in time required to set up a convention from the formal decision to establish one has typically been six months (see column 2 in the table below). Informal negotiations within the governing party and with other parties can extend that time further: in British Columbia and Ontario it took two years from the initial decision to establish an Assembly to the Assembly starting work. The table below shows the scope, timetable, budget and staffing of previous conventions. It is incomplete, and I would welcome help in filling the gaps and adding details of other conventions, but the data suggest that establishing a convention is a big and complex task, requiring careful planning with long lead in times.

Data about previous constitutional conventions

 

constitutional-conventions

Once established, the timetable of a convention will depend on what it is asked to do. Three of the conventions listed above had a single task, devising a new electoral system. The Irish convention had eight tasks; the Icelandic convention a single huge task, creating a new constitution. The timetable will also depend on the size of the convention, and its working methods. The larger the convention, and the more participatory and inclusive its working methods (eg holding regional meetings), the longer it will take to complete its task.

Establishing the convention: membership, budget, and staffing

Much has already been written about the different options for selecting citizens to serve on a convention so that it is representative of all parts of the UK, and of gender, age, socio-economic background, ethnic minorities, disabled people etc (see Alan Renwick’s pamphlet and the Electoral Reform Society evidence). Ensuring adequate representation from all parts of the UK and all these different variables may result in a large convention: the Electoral Reform Society suggest 200-220 people. That in turn would require a large budget, for servicing large meetings, travel etc. The two Canadian conventions each cost $5m. The Irish convention cost only 1m euros, but was squeezed very tight: those involved say it needed twice the time and twice the money to do justice to its remit. In an age of austerity, with further cuts to come, a Rolls Royce convention may not be feasible. Proponents will need to think how far the size and cost can be scaled back without compromising the integrity of the exercise.

Even a scaled back convention is likely to cost low millions. If the government decides not to establish a convention, it is unlikely that anyone else could afford to do so. But it is conceivable that civil society organisations might try, through a large donation or innovative fund raising through crowdsourcing. They would then have to decide the terms of reference, the timetable, the membership, budget and staffing of the convention, and they would be responsible for the success or failure of the enterprise.

Working methods of the convention

Again, much has been written about this. The convention will need a strong online presence, with an excellent website, podcasts of all its sessions, and imaginative use of social media. It will need to commission and publish evidence, hold public meetings, and it may want to publish working papers and consultation papers. It will also need the ability to commission expert reports, to establish sub committees or expert committees, to commission polling data or other research. An expert panel can help to advise the convention, source and brief the relevant experts, and ensure it draws upon the widest possible research and evidence base.

Links to representative government and legislatures and the political process

Finally, the convention needs to maintain strong links with government and with Parliament to ensure that it carries them along with its thinking. Other conventions have failed in part because they have been too removed from the political process. One way of bringing the two together is to include politicians in the convention, as in Ireland where one third of the members were politicians, and two-thirds ordinary citizens (with mixed success, leading one adviser to suggest that any future convention might have only citizen members and a separate panel of parliamentarians as a conduit and sounding board). Another is to require the convention to deliver an interim report, and then to hold a parliamentary debate so that parliamentarians are informed of the convention’s thinking, and can feed back their initial reactions.

Conclusion

A constitutional convention sounds an attractive idea. But a convention established hastily, overloaded with too many tasks, inadequately staffed or required to report too quickly is almost certain to fail. That will be damaging to the cause of deliberative democracy as well as to constitutional reform. Those who call for a constitutional convention have focused almost exclusively on its membership, and how those members would be selected. As much thought needs to be given to its purpose, terms of reference, timetable, budget, leadership and staffing, as well as its links to government and Parliament. If equally careful thought and planning is given to all those things, a convention stands a much greater chance of success.

Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.

 

This post originally appeared on the Constitution Unit Blog and is reposted with thanks.

 

Notes on Table 1

[i] The government that established the BC Citizens’ Assembly was elected in May 2001. It had promised an Assembly as part of a more ambitious reform package that included new public accounting standards, open cabinet meetings etc. There was some opposition in caucus to the idea of holding an Assembly, so it took time for the Premier to generate the necessary support. An expert, Gordon Gibson, was commissioned to prepare a plan for the Assembly, and reported in Dec 2002. In May 2003 the legislature endorsed the proposal, with amendments, and the government’s proposed chair. In August the selection process started with the first mailing of invitations. Selection meetings around the province went on over the fall and the Assembly was then ready to meet in January 2004.

[ii] It took 18 months from the Premier’s announcement of his intention to establish a Citizens’ Assembly, in November 2004, to the Regulation creating the Assembly and appointing the chair in March 2006. It then took a further six months to set up the Assembly, which started work in September 2006.

 

 

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Alison Young: HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998

young_alison-l2It seems that a day cannot go by without another mention by the Conservative party of their desire to repeal the Human Rights Act 1998, withdraw from the European Convention of Human Rights, or find a way in which the decisions of the European Court of Human Rights can be ‘advisory’ as opposed to ‘legally binding’. So much so, that it hardly seems newsworthy to report that the Justice Secretary, Christopher Grayling MP, published an 8-page strategy report setting out both why the Conservative Party felt there was a need for change and the proposed replacement for the status quo. However, what does attract attention is the reaction of the former Attorney General, Dominic Grieve MP, that the strategy document was based on ‘a number of howlers’. In agreement with Stephen Tierney, who concluded that the real winner in the Scottish Referendum was democracy, this blog post aims to further democratic participation and debate. It will do so by investigating the strategy report’s argument for the need for change. After all, if the facts on which a policy is based are ‘howlers’, we should at least question whether change is needed, and, if not, whether it may nevertheless remain desirable if unnecessary.

The strategy report begins by focusing on the flaws of the European Court of Human Rights accusing it of ‘mission creep’. It provides four examples to back its claim. First, the report points to problems arising from the European Court of Human Rights’ judgments that a complete ban on prisoner voting breaches Article 3 of the First Protocol. The report claims that it was never intended that this provision of the Convention would grant individual rights. Rather, it is designed to guarantee free and fair elections. Issues relating to the franchise in such elections are deliberately left out of the text. Second, the strategy report lists the decision of the European Court of Human Rights in 2007 which concluded that article 8 included the rights of prisoners to go through artificial insemination with their partners. Third, decisions of the European Court of Human Rights in relation to article 8 are criticised again, this time because foreign nationals who commit serious crimes in the UK can plead their right to family life in order to remain in the UK following their release from prison as opposed to being deported. Fourth, the European Court of Human Rights has banned life sentences, concluding that they are contrary to Article 3 of the Convention.

Before assessing whether these illustrations really are examples of mission creep, we need first to establish if they are true, or howlers. The first howler is the classic error of elevating the need for regulation into a ban. This is exemplified by the strategy report’s discussion of life sentences. In Vinter and Others v United Kingdom the European Court of Human Rights did conclude that life sentences could breach Article 3 of the European Convention. The important word here is ‘could’. The Court does state that ‘Article 3 must be interpreted as requiring reducibility’ of a life sentence. [paragraph 119]. But it is important to realise that by ‘reducibility’ the Court did not mean that life sentences were banned. Rather, the ‘reducibility’ of the sentence required is ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence as to mean that continued detention can no longer be justified on legitimate penological grounds.’ [paragraph 119]. The Court is also careful to point out that ‘it is not its task to prescribe the form (executive or judicial) which that review should take’. [paragraph 120], save to mention consensus found in comparative and international law of support for a review ‘no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.’ [paragraph 120]. As the Government itself acknowledges, Vinter v UK does not mean that life sentences are banned or that those serving life terms must be released. Rather, what is banned is a life sentence without a review after 25 years of that sentence. If there are sound penological grounds for continued detention, the prisoner remains in detention.

A second howler is found in the strategy document’s third example – the deportation of foreign criminals. This howler is more subtle. The criticism is that foreign nationals who commit serious crimes are able to remain in the UK. The strategy report sees this as problematic as ‘[t]hese judgments have apparently overlooked the very clear qualifications in the Convention relevant to the legitimate exercise of such rights.’ The document suggests that the European Court of Human Rights fails to do its job seriously, elevating qualified rights into absolute rights; exchanging “you may have a right to remain in the UK as you have a family here and the protection of your right to family life outweighs the interests of justice and the potential harm to the rights of others” for “you can remain here indefinitely as you have a family”. However, as the subtle use of ‘apparently’ makes clear, the real accusation of the strategy report is that it disagrees with the way in which the Court balances rights. The authors of the strategy report would have deported more convicted criminals. It is a subtle howler because it is not technically incorrect. But it is a howler nonetheless, as the language elevates a disagreement over issues where it is reasonable to disagree into a conclusive criticism. It is not that the European Court of Human Rights overlooks the interests of justice and the need to protect the rights of others. It is more that the Court perhaps places less emphasis on these interests and more on the right to family life than the authors of the strategy report would have done, had they been deciding the cases. This is not surprising. These are complicated issues on which it can be reasonable to disagree. That is one of the reasons why both courts and legislatures play a role in these decisions and why the European Court of Human Rights grants a wide margin of appreciation.

Howlers apart – is this a convincing argument in favour of ‘mission creep’? The document accuses the European Court of Human Rights of mission creep as it uses the Convention as a ‘living instrument’, allowing the meaning of the document to evolve over time and, therefore, drift away from the intentions of the original authors of the document. It is true that the way in which the European Convention of Human Rights has been interpreted has changed over time. This is hardly surprising. The world does not stand still. Unsurprisingly, the authors of the European Convention on Human Rights had no opinion on whether prisoners should be allowed access to artificial insemination to enable them to start a family. Artificial insemination of humans, although it existed, was not a widespread or widely acceptable practice when the Charter was drafted. It is also highly unlikely that such specific instances of application of general human rights were matters for discussion at the drafting of the European Convention of Human Rights.

The strongest example of ‘mission creep’ found in the strategy report is the argument that Article 3 of the First Protocol was not designed to provide for any specific franchise. That is correct – in part. Article 3 of the First Protocol states; “[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The question remains whether removing the franchise from a section of the community means that the State in question has carried out a free election. Removing the vote from all members of a particular political party, or from a certain ethnic minority, for example, would be extremely unlikely to meet the criteria of a free election. Nor would the conditions of the Article be met if you were required to cast your vote in the presence of an armed member of the secret services.

The problem is not necessarily that the European Court of Human Rights uses the Convention as a living instrument. Without doing so, human rights cannot help with novel situations – such as the growing use and acceptance of artificial insemination. Maybe the real issue is whether the Court is allowing the Convention to evolve in the right way. Is it the job of the Court to push signatory States forward in developing human rights protections, or to reflect developments in human rights found in the signatory States and elsewhere? When we look at the examples given in the strategy report, the Court appears to be more likely to follow than lead. In its most recent case on prisoner voting, for example, the Court referred to laws across a range of signatory States, in addition to the law in Canada, South Africa and Australia. It was also careful to grant a wide margin of appreciation to States when determining the specific franchise. The European Court of Human Rights does not prohibit signatory States from removing the vote from prisoners. It merely prohibits blanket bans. Signatory States have the ability to determine which prisoners should be prevented from voting and why – a process that the Westminster Parliament is slowly undertaking.

‘Mission creep’ is hard to define. Determining the relevant roles of international courts of human rights, national courts and national legislatures is not an easy task. Moreover, it is something on which one can expect reasonable disagreement. But it is important to recognise that there are mechanisms that the national courts and legislatures can use to signal to the European Court of Human Rights that it has perhaps, taken its mission too far. In Horncastle, for example, the UK Supreme Court did not follow a decision of the European Court of Human Rights, Al Khawaja, relating to whether allowing convictions based on hearsay evidence breached article 6. The decision of the European Court of Human Rights was on appeal to the Grand Chamber at the time and the Supreme Court was concerned that the European Court of Human Rights had not fully taken account of other procedural protections in the common law. In the Grand Chamber hearing in Al Khawaja, the UK Government was able to intervene and the European Court of Human Rights took account of the reasoning of the UK Supreme Court in Horncastle. In doing so, it modified its earlier conclusions, replacing a ban on convictions based on hearsay evidence for a more sophisticated position, recognising when hearsay evidence could be relied upon whilst still protecting the procedural rights of the accused. (See commentary here.) Similarly, in Animal Defenders International v UK, the European Court of Human Rights took account of a decision of the House of Lords and of reports of the Joint Committee on Human Rights. (See commentary here.) As a signatory State to the European Convention, it is also open to the United Kingdom to raise its concerns as to ‘mission creep’ in meetings of the Council of Europe.

Having accused the European Court of Human Rights of ‘mission creep’, the strategy report moves on to fire three criticisms at the Human Rights Act: (i) it undermines the role of the UK courts to decide human rights issues; (ii) it undermines the sovereignty of Parliament and democratic accountability to the public; and (iii) it goes beyond the UK’s obligations under the Convention. However, when we examine the arguments and examples more closely, more howlers appear. The strategy report argues that section 2 of the Human Rights Act 1998 undermines the role of the UK courts. As is well known, section 2(1) of the Human Rights Act requires the UK courts to take judgments of the European Court of Human Rights into account. This could undermine the role of the UK courts were they to read section 2(1) as imposing a system of precedent, with national courts being unable to give a different interpretation of Convention rights than that found in decisions of the European Court of Human Rights. However, this is not an accurate account of how the UK courts interpret section 2(1). Horncastle demonstrates how the UK Supreme Court does not always follow decisions of the European Court of Human Rights. Nicklinson contains dicta demonstrating how national courts may develop Convention rights beyond the interpretation found in the European Court of Human Rights. Moreover, recently, the UK Supreme Court has been developing constitutional rights of the common law – sometimes, preferring, as in Osborn, to refer to the common law. If the strategy report is to be believed, the role of the UK courts is being undermined. However, this does not appear to be the opinion of the UK courts. And, it is the UK courts who determine what it means to take decisions of the European Court of Human Rights into account when interpreting section 2(1).

Assessing whether the Human Rights Act undermines the sovereignty of Parliament and democratic accountability is no easy task. However, the argument used to support this claim in the strategy report contains further howlers. The strategy paper is concerned about the use of section 3(1) of the Human Rights Act, which requires courts to interpret legislation in a manner compatible with Convention rights, so far as it is possible to do so. The concern is that courts take this duty too far. Two possible howlers can be found here, the second following on from the first. First, the strategy report is selective in its choice of case used to illustrate how the courts go beyond the limits of possible interpretations. The document refers to the interpretation of the Misuse of Drugs Act in R v Lambert. This is a case from 2001. The case law has moved on since then. The strategy report makes no mention of Ghaidan v Godin-Mendoza, a more recent case which is often regarded as back-tracking from the earlier, more proactive case law on section 3, including Lambert. Ghaidan v Godin-Mendoza makes it clear that courts will not read words so as to be compatible with Convention rights where to do so would undermine a fundamental feature of that legislation. Second, the strategy report assumes that the sovereignty of Parliament is undermined as interpretations are given that are contrary to the will of Parliament. In these circumstances, there is nothing in the Human Rights Act 1998 preventing the Westminster Parliament from re-enacting legislation to reverse a section 3(1) interpretation. To do so, the Westminster Parliament would have to make it clear that this was its intention, owning up politically to its desire to reverse this interpretation, explaining its reasons for doing so, and doing so in a manner that made the Westminster Parliament democratically accountable for its actions.

Further howlers are found in the third criticism of the Human Rights Act. It is true that the European Convention of Human Rights does not dictate how signatory States are to protect Convention rights. There is no requirement that the Convention be incorporated as it was by the Human Rights Act. This is to state the obvious- after all, the UK signed up to the European Convention of Human Rights long before it enacted the Human Rights Act 1998. However, the strategy report goes on to contrast the situation in the UK with that of Germany. To quote from the strategy report: ‘The German Constitutional Court, for example, ruled that if there is a conflict between the German Basic Law and the ECHR then the Basic law prevails over the Convention. The Human Rights Act provides no such protection in the UK.’ There are two subtle howlers here. First, the ruling of the German Constitutional Court recognises the way in which Germany incorporates international law. The German Basic Law states that international law has the same status as Federal law. As such, it has a lower status than Constitutional law. In the UK, international law has to be incorporated into UK law, normally by primary legislation. Primary legislation can be overridden by other primary legislation. There is no need for the UK to provide the same protection from the ECHR as is found in the German Basic Law. The Human Rights Act can be overridden by future legislation – although the provisions of such future legislation may need to be carefully worded to achieve this effect. The authors of the strategy report must realise this as that is precisely what they propose. The Human Rights Act, even if recognised as a constitutional statute, is not the UK equivalent of the German Basic law. There is not the same need for the Act to provide the same protection as the German Basic Law.

Second, care needs to be taken over the context in which the German Constitutional Court made this statement. Two further clarifications are needed here. The statement was made in the context of conflicting rights. The decision of the European Court of Human Rights questioned by the German Constitutional Court concerned the interpretation of Article 8 requiring a granting of greater visiting rights to a child’s biological father. The German Constitutional Court expressed concern that this could interfere with the human rights of a child’s adoptive family. This stands to reason. There are only so many hours in the day. The more time a child spends with her biological parents the less time can be spent with her adoptive parents. It is one thing to be concerned about following decisions of the European Court of Human Rights when they may cause conflicts with national constitutionally protected human rights. It is quite another to want to claim the ability to ignore human rights decisions because you disagree with them.

The German Constitutional Court did rule that, where there is a conflict, the German Basic law prevails. However, the court has made similar statements with regard to directly effective European Union law. But it has never applied the German Basic law over directly effective European Union law. Nor was the German Basic Law applied over the European Convention of Human Rights. Provisions were interpreted in such way as to ensure their compatibility. What is important is how similar statements of the German Constitutional Court prompted reactions from the European Court of Justice. The Court of Justice developed protections of human rights, inter alia, in the light of such statements. This, in turn, led to the conclusions of the German Constitutional Court that it would apply directly effective European Union law, so long as the European Union continued to provide an adequate protection of human rights. The statements of the German Constitutional Court are examples of constitutional dialogue between courts. In a similar manner, the court is sending the message that it could ignore the European Court of Human Rights, but that, normally, it would follow its provisions. One could argue that the UK Supreme Court in Horncastle was sending the same message. In a similar way, we could conclude that HS2 is an example of the UK Supreme Court sending the same message to the European Court of Justice.

It is not the aim of this blog post to defend the European Court of Human Rights from an accusation of ‘mission creep’. Nor is the aim to claim that the Human Rights Act 1998 is perfect and so need not be changed. It is, instead, to clarify whether the claims of the strategy report provide a sound justification for reform. It is one thing to conclusively prove that an organisation has clearly overstepped the bounds of its legal or political authority. It is another to recognise that the boundaries of that authority are unclear, but that there are mechanisms that can be used by States to raise concerns about ‘mission creep’ and to potentially correct instances where the European Court of Human Rights has overstepped the mark. It is one thing to argue that the Human Rights Act 1998 undermines national courts and fails to protect democracy and national State interests. It is another to realise that those national courts do not appear to feel or act as if they are being undermined, or to recognise that there are provisions within the Human Rights Act 1998 to correct potential erosions of sovereignty and democratic accountability. This is not to argue against reform. It is rather to argue for further clarity as to whether reform is needed and why calls for reform are being made. That way the UK electorate is in a better position to exercise its democratic choice in the next general election.

 

 

Alison Young is an Associate Professor of Law and a  Fellow of  Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998’ U.K. Const. L. Blog (7th October 2014) (available at http://ukconstitutionallaw.org).

 

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Mark Elliott: Human rights reform and the role of the Strasbourg Court

MarkI wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.

Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals

are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.

Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.

On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.

On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).

The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:

[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.

One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.

International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.

Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.

Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.

A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.

It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.

 

Mark Elliott is Reader in Public Law at the University of Cambridge (Twitter: @DrMarkElliott). This post was first published on Mark’s blog, Public Law for Everyone.

 

 

 

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David Mead: The Future of the HRA Under Labour

davidmeadI might have misheard but perception does seem to be nine-tenths of the law when it comes to the Human Rights Act at least. In a piece in today’s Daily Telegraph, Shadow Justice Minister Sadiq Khan outlines Labour’s plans for reforming the Human Rights Act, or one aspect of it anyway. There is a need to revisit the wording – and thus the power – in s.2 to “take account” of Strasbourg case law and decisions.

 our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.

The solution is for guidance, in the first instance, but Khan does not rule out legislation. The aim is to

make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.

This very short post will consider some of the issues this proposal might throw up. First, and perhaps most obviously, it is hard to think what effect extra-legal guidance will have on the approach judges take. It is markedly different, say, to s.19 of the Immigration Act 2014 which lists clearly the factors that should and should not be taken into account in determining where the public interest sits when deciding whether or not for example to deport someone. This sets up a battle between that section and s.3 of the HRA – which requires courts to give convention-compatible meanings wherever possible. If there is a divergence on where the public interest rests between what s.19 dictates and Strasbourg case-law (which is beyond my ken, and certainly beyond the scope of this blog), then the question will be whether Parliament has signalled in a sufficiently strong fashion what its intention is as to make not following the s.19 formula a departure from a fundamental tenet of the statutory scheme.

Such questions do not arise with proposed guidance – in whatever form it may take. It is hard to think of a comparable situation – government signalling (either by means of parliament in the form of an SI or departmental circular or Code of Practice) to the judiciary what a section in an Act means. The only matter that sprang to mind were the Sentencing Guidelines but those are not a political construction but are created by the judges themselves, a form of intra-judicial dialogue. It is hard to imagine any judge actually giving airtime to the guidelines, if for no other reason – as Mark Elliott points out in his blog on the developments – of the sanctity of the separation of powers. In trying to come out victorious in what is perceived as an institutional battle between the UK and “foreign” Europe (not Khan’s words or even his sentiment I should add) Labour’s plan, if it eventuates, risks kickstarting an even more seismic inter-instituional battle, of the sort we thought we’d long left behind, centuries ago. It is something of an irony then that Labour’s proposal is steeped in history.

 We’ll use the 800th anniversary of the Magna Carta – the world’s first bill of rights – to assert the role of British courts vis-à-vis Strasbourg.

To paraphrase Lord Justice Diplock in BBC v Johns in 1965, it’s now 400 years and a civil war too late for the government to be trying this sort of thing.

The second point follows on. The battle is being conceived as battle of the nation state against the supranational body – the Daily Telegraph piece has more than one mention of sovereignty. My point here is not the same as Mark Elliott – that this elides the national and the international sphere of influence, assuming they are as one (and that the UK is losing out) – but perhaps a more fundamental one. As I see it, the “real” battle of the HRA is between our domestic courts and our domestic Parliament – something this proposal simply ignores, constructing the battlefield and combatants elsewhere. I have written elsewhere (some might say extensively and mistakenly) over the past few years about what I consider to be the excessive (albeit occasional) use of s.3 to alter a clearly designed statutory scheme – and the lack of transparency that this brings, in contrast to a declaration of incompatibility under s.4. My most recent foray has been with Fergal Davis in the Common Law World Review, in the context of criminal law. Most egregious in my list is always Hammond, where the counsel for a prisoner and for the Secretary of State colluded such that very clear wording in the Criminal Justice Act 2003 – that prisoners were not entitled to an oral hearing when a judge was determining the mandatory tariff post-Anderson – was read as entitling a prisoner to one if not to allow it would be unfair. Why is this any less an attack on sovereignty? There are real discussions to be had about the future of the HRA – and its place in our legal framework and culture, but I am not at all convinced that s.2 is the best or right target. As many others have claimed today, guidance may well redundant in that judges have started to shift from the rigidity of the Ullah mirror principle, such that guidance may do little except enshrine current judicial practice. In turn, and what never seems to get much of a look in in the discourse of ministers and shadow ministers, is the noticeable placatory shift at Strasbourg: far more conciliatory and accommodating in several recent notable judgments, dating back to Austin, through von Hannover (No 2), to Animal Defenders and most recently RMT v UK. In each, we can – if not clearly and explicitly – see the Court playing a political role, seeking to staunch national discontent with judgments would appear to be more politically welcome. In the RMT case, in which the UK’s ban on secondary industrial action was held not to violate article 11, the Court said this (at [99]):

In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

There has been no discussion or mention of the RMT case in any mainstream British newspaper. This is important, and leads us into the third and last point to be made in this blog. It links back to the opening line – that it is the seeming need to be “doing something” that might here be at play. There has been a clear and constant (to use the phrase in Ullah by Lord Bingham) media narrative that must inevitably skew the public’s perception of the HRA. I am currently working on an empirical study of newspaper reporting of key ECHR and HRA judgments. Aspects of this were to have been presented at Leicester two weeks ago but I was unable at the last minute to attend. Through various techniques of misreporting – prominence, partiality, phrasing and precipitation (for example where cases are reported unfavourably at very early stages but with silence on the eventual outcome) – readers (perhaps of only certain newspapers such as The Sun and The Daily Mail) have a very misinformed understanding of the reach and scope of human rights protection and the operation of the ECHR and the HRA. In brief, readers would think the government tends to lose cases at Strasbourg. There was not a single mention in any newspaper of the UK’s success in the three most recent cases: RMT, Church of the Latter-Day Saints or Jones(though this did make it to the pages of The Guardian and The Evening Standard). A search against The Daily Mail on-line with the term “European Court of Human Rights” produced a skew towards prisoners – either voting or sentencing – towards immigration decisions, and towards criminals and terrorists, what are known colloquially as FPTs (foreigners, paedophiles and terrorists), a framing of security not equality. We certainly see nothing approaching the full panoply of human rights cases or issues. Last, readers would think that the human rights project is not about protecting victims but is a criminal’s charter. There was on 20 April a full page in The Daily Mail dedicated to the Strasbourg case arising from the civil action brought by the victims of the Omagh bomb against the alleged perpetrators who were, in turn, claiming a breach of Article 6 in the civil proceedings. The small problem was that this was simply at the stage of a communication to the government; it has not yet been declared admissible – and of course may never be, but it would be a very well-informed reader to realise the rather precipitate nature of this report. Yet, the editor chose not to mention even in passing the RMT judgments of the Court of only 10 days earlier, but instead highlighted this one at almost its earliest possible stage.

In short, while in Sadiq Khan’s words Labour’s “unswerving support for the Human Rights Act and our membership of the European Convention on Human Rights” are very much to be welcomed, as his determination to take the Tories on, perhaps a better choice of foe, as he seeks to build a new consensus, would be Michael Gove. The most recent Citizenship curriculum for 2014 onwards for KS3, 11-14 year olds, downgrades any mention of rights and instead refers to “our precious liberties”. What hope, and what price, rights in the future?

 

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead, ‘The Future of the HRA Under Labour’ UK Const. L. Blog (4th June 2014) (available at http://ukconstitutionallaw.org)

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Richard Cornes: 11-1 gender ratio Court’s Achilles Heel: Reporting of the Supreme Court’s start of the year press briefing

SCA relationship of cooperation but also competing interests

On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.

The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.

The new transparency – Court opens year with press briefing

That a press briefing featured in the start of year events says something about this still new court. Unlike what went before – the Appellate Committee – the @uksupremecourt has a now seasoned press office (for previous analysis see here and here). While the Court will not rival Strictly for coverage (and likely would not want to – justice, while prepared to show a little leg, still likes to maintain some mystique), its communications operation, which continues to innovate, has made it a world leader amongst top courts for transparency and accessibility.

The President and Deputy President speak

First, what did the Court say in opening? The President and Deputy President both spoke for a total of about fifteen minutes. Lord Neuberger opened by seeking to set the boundaries of what he and Lady Hale would be prepared to say:

As judges we are constrained in some respects as to what we can discuss. For instance, it is inappropriate for judges to give opinions publically on political matters save in so far as they impinge on the rule of law. We have to be wary of expressing views on issues which we may have to decide in due course in court.

His remaining remarks reviewed the number of cases decided since October 2012 (82), and highlighted a selection before closing with a paean to the importance of open justice, including discussing elements of the Court’s communications innovations.

Lady Hale, still, remarkably, the only woman on the Court noted some of the forthcoming terms “highlights”. There’s a curiosity here, almost all cases require leave, and must therefore be “Supreme Court worthy”, and yet this trailing of cases the Court considers likely to be of greater public interest gives us a new gloss on the leave process: the “super-Supreme Court case”. Lady Hale closed with a reflection she must be tiring of making about the lack of women on the Court, and the need for greater diversity in the judiciary generally. It was a reflection though which, as we shall see, made for good press.

Questions from the press

Then came the press questions – each topic necessarily revealing of the questioners’ interests, and in places, their outlet’s agendas. The Court (its Chief Executive, Jenny Rowe, in the chair for this purpose) gave the prized first question to Joshua Rozenberg who asked for a reaction to Conservative policy on repeal of the Human Rights Act, with a techy follow up on what the Court would do if the Act were repealed: develop a common law equivalent of the s.3 obligation (my gloss on Rozenberg’s question)? Faced so directly with such a potentially politically charged question both the President and Deputy declined to speculate. However, coming back to the point later in the hour Dominic Casciani from the BBC did get a little further, eliciting this from Lord Neuberger:

I am now doing what I said I would not do – picking up on Joshua’s point… if we did not have the Human Rights Act, the common law might develop in certain directions to accommodate a degree of change because the common law does change with the times. How it would change and in what respect is pure speculation.

The subtle message being sent by the President that repealing the Human Rights act might not be the last word on human rights principles appearing in Supreme Court jurisprudence was not one which lent itself to an easy headline (the discussion was really only covered by the UKSC blog); the skill was in putting the idea on the record without providing material for “Supreme Court responds to Tory plan to scrap Human Rights Act” type coverage. And indeed, Rozenberg chose the elements of the briefing touching on open court processes for a subsequent Guardian piece.

Francess Gibb of the Times was called next and followed up Lady Hale’s comments about diversity – an issue she did choose for one of her subsequent reports, the others highlighting the concerns Lord Neuberger raised over legal aid, and the Court’s openness agenda. David Barrett of the Telegraph followed up on diversity asking Lady Hale whether she still did not favour positive discrimination (she does not). Barrett’s story on the topic ran under the headline, “Top female judge questions male ‘dominance’”. The other story Barrett chose for print concerned a series of comments Lord Neuberger made about the importance of open justice.

Jack Doyle from the Mail then followed with a question about the wearing of veils in court rooms, including whether the Supreme Court would allow veiled advocates before it – a question which the President chose, in his own words, to “duck”. The veil question did not headline in Doyle’s coverage (though it did make the Express). Like others, one of Doyle’s subsequent pieces also pursued the theme of judicial diversity, “Women not being made top judges because men ‘dominate’ the selection process, says Britain’s only female Law Lord.” Another “’I welcome increased openness unreservedly’ Supreme Court judge’s praise for Mail’s open justice fight”. While both headlines had a basis in what had been said by the two judges, both were the most tendentious of all the subsequent coverage. The open justice theme in particular being linked to a wider Mail campaign about openness in the justice system per se.

Owen Bowcott from the Guardian brought the discussion back to open justice issues, referring to the Supreme Court’s decision (on a 6-3 vote) to allow for closed sessions in connection with the Bank Mellat case. While subsequently reporting on that discussion, and a latter question about the appropriateness of judges attending an Anglican church service to mark the opening of the legal year (which Bowcott raised as a possible independence problem for a court system grappling with questions of veils in courts), the headline for Bowcott’s coverage was, “Lady Hale, supreme court’s sole female justice, calls for diversity.”

From the BBC, this time Danny Shaw, came a question to Lord Neuberger about his previously expressed concerns about cuts to legal aid. For political sensitivity – touching as it does on sensitive resource questions for the Ministry of Justice – the question was up there with Rozenberg’s gambits on the consequences of repeal of the Human Rights Act. Lord Neuberger’s comments on October 2 included:

Rights, whether human rights or other rights, are valueless if they cannot be enforced in court. Reductions in legal aid therefore inevitably cause one concern. … I think that legal aid cuts therefore do cause any person concerned with the rule of law a worry.

The President did couch his concern in an explicit acknowledgment that difficult economic times have to be taken into account; referring back to his opening comments, he provided more of an insight into his view of the wider role of a lead judge, “one of our functions is not merely to sit in court, but also to support and ensure the rule of law.” It was a potent point, subtly made.

With the clock heading towards 11am, Brian Farmer from the Press Association asked about the wearing of legal wigs in court, linking discussion about rules for dress in court back to earlier questions about veils in court. Jane Croft from the Financial Times then came in with a question about divorce cases which allowed Lady Hale, while commenting that the principles in the area were now mostly settled (and thus not likely to give rise to Supreme Court level questions) to note, “obviously, we are not law reformers.” The line, “we are a court, and not a law reform body”, it will be recalled was one strand of Lady Hale’s dissent in the Radmacher v Granatino decision. Croft’s story the next day though was the “First woman law lord Brenda Hale calls for more female judges.”

So far I have only mentioned press coverage. The only other media coverage I found was on Radio 4’s 6pm news which picked up Lady Hale’s comments about the lack of female appointments to the Court. Standing back then, what comes through? First, the event resulted in no media “gotchas.” In particular neither what was said about the Human Rights Act nor legal aid were written up in any sense as “judges criticise government (or Conservative party) policy”. Partly I suspect that is because the judges did not give their audience any suitably juicy sound-bite. Second, there were clearly other issues running of potentially greater controversy on which the press wanted comment on the day: specifically, veils in court, and general concerns about the openness of judicial processes.

Stand-out message? 11-1: the Court’s Achilles heel

The stand-out message emerging from the exercise though is that despite 13 appointments at the Law Lord level since Brenda Hale was appointed 10 years ago, Lady Hale remains the lone female voice on the UK’s top court. Lady Hale can take only some of the credit for this point dominating the next day coverage (including comments which made it online in video form). What actually gets covered from an event like this is the press’s call. And it is striking that of coverage of the briefing (I counted around 15 or so stories), about 75% headlined the diversity point. The Court’s 11-1 gender ratio is clearly of interest to a goodish cross section of the mainstream press. And if that is the message getting through to readers from the Guardian to the Telegraph (and all points in between and beyond), the Court should be worried.

Dr Richard Cornes (@CornesLawNZUK) is a Senior Lecturer at the @EssexLawSchool, and Associate Member of Landmark Chambers, London.

 Suggested citation: R. Cornes, ’11-1 gender ratio Court’s Achilles Heel:  Reporting of the Supreme Court’s start of the year press briefing’  UK Const. L. Blog (16th October 2013) (available at http://ukconstitutionallaw.org)

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Anthony Bradley: A Review of Jack Straw’s Hamlyn Lectures: Aspects of Law Reform: An Insider’s Perspective

abradleyAs the lecturer disarmingly tells us at the outset of the Hamlyn Lectures for 2012 Hamlyn Lectures for 2012, the illustrious procession of Hamlyn lecturers since 1949 (Lord Denning) through to 2011 (Jeremy Waldron) has ‘without exception’ comprised ‘lawyers distinguished by their practice, their academic study or both’.  Jack Straw is an exception.  Since an LLB at Leeds and two years at the criminal bar, he has made his career in politics – holding glittering ministerial office, throughout the Blair-Brown years, as Home Secretary, Foreign Secretary, leader of the Commons, and Lord Chancellor.

Straw has always been interested in ‘the interaction of the work of our courts with the processes of government and the body politic’ and the lectures concern three areas in which Straw could draw on his own experiences.  Despite the responsibility that he had while a minister for ‘an extensive legislative programme’, Straw does not deal with the process of law reform or the machinery of legislation, but with three aspects of the legal system.

The first lecture, ‘The future of the criminal courts’, highlights changes in criminal justice since 1964.  These include greater legalization of policing, thanks in part to PACE and the creation of the Crown Prosecution Service, improved confidence in police integrity (Straw appointed the Stephen Lawrence inquiry), the impact of new technologies, and an improved relationship between senior judges, government and Parliament. (Straw does not claim credit, as he could have done, for his role as Lord Chancellor in the task of bridge-building between government and judiciary that was needed after this relationship reached its nadir during Lord Falconer’s tenure of the post.)  Straw asserts that the criminal justice system is now ‘more effective, more professional, more replete with integrity and more focused on the needs of victims’ than at any other point in his lifetime – but the programme of reform is ‘far from at an end’.

Those who are sceptical about these conclusions will find the third lecture (on appointing the judges) less controversial.  Straw develops two topics: the need to modify the system for appointments established in 2005 (by, among other things, sharpening up the roles of the Lord Chancellor and the Lord Chief Justice), and the need for a more diverse judiciary.  But it is the second lecture, ‘The Human Rights Act and Europe’, that many readers of this blog will read most closely.

As in his memoirs,  Straw describes the happy ‘conception, birth and childhood’ of the Human Rights Act 1998 (Lord Irvine was the bill’s midwife in the Lords; Straw its midwife in the Commons).  He emphasizes the value of the preparation done before the election in 1997, by the joint Labour/ Lib Dem working party among others, especially on the issue of how to incorporate the ECHR alongside the ‘elephant in the room’ of parliamentary sovereignty.   “The result was an Act which was elegantly drafted, and which has met the test of time.  The Act has been a success.” (p 29)

Straw insists that the Act is here to stay.  But, while praising the quality of the senior British judges, he strongly endorses Lord Irvine’s criticism  of the judges for failing to understand the clear words of section 2, HRA: those words (‘must take into account’) were  ‘chosen with care’ and support neither the ‘mirror principle’ nor any suggestion that British judges are duty bound to follow Strasbourg jurisprudence.

Straw puts the blame for current political hostility to European human rights on the ‘ever-expanding remit of the Strasbourg Court for which it has no mandate’.   He argues that, while British courts have for centuries ‘sought to defend the individual against the arbitrary or oppressive power of the state’, and may make decisions that are inconvenient to the executive, Parliament retains the authority to legislate in breach of fundamental rights.  “If Parliament holds its ground, it wins, always.” (p 38)  But such an extreme position is seldom reached because British courts ‘have an intimate understanding of the cultural and political norms within which they operate’.  And the political class is sometimes ‘willing, praying, that the courts will act where they fear to tread’ (the example given is development of the law of privacy).

By contrast, the Strasbourg court ‘has set itself up as Supreme Court for Europe, and one with an ever-expanding remit’.  Straw attacks the principle that the ECHR is a ‘living instrument’, claiming that this lacks any valid basis. He accepts that there is authority in the Convention for the Court to have ‘the role of protecting basic human rights’ (emphasis supplied), but agrees with Lord Hoffmann that basic human rights cannot be stretched to include ‘detailed interpretation of the right to silence, the hearsay rule and – most preposterous of all – night flights at Heathrow airport’.  And he highlights the issue of prisoners’ voting, on which there is ‘absolutely no doubt’ that it is the will of the British people that convicted prisoners should not be able to vote.

Straw develops two further arguments.  The first (linked with an attack on the court for attempting to impose uniformity in human rights across Europe) records disappointment that the HRA has not had the hoped-for effect of expanding the ‘margin of appreciation’ that Strasbourg should allow for national practice in dealing with ‘wider human rights beyond those basic ones whose protection was the purpose of the treaties’ (emphasis supplied).

The second argument is that, unlike most national constitutions, where decisions of a supreme court are subject to a democratic override (whether by special legislative process or constitutional amendment), there is no procedure in the Convention for enabling decisions of the Strasbourg court to be subject to international legislative process.  The view that there is a ‘democratic deficit’ in the Convention system is indeed held by others in Europe.[1]   One answer to this, as Straw points out, lies in the Convention machinery for implementing decisions of the court, which is primarily a matter for political action within the Council of Europe.  But Straw does not accept that this redresses the imbalance in the Convention system and warns that the pride of the court may go before a fall.

There is of course scope for challenging the legitimacy of the court (and indeed of any court that has to hold the ring between legislative decisions and minority rights), but our national sensitivities need to be seen in the light of the case for an understanding of Europe based on a shared value of human rights.  As the Hungarian judge at Strasbourg, András Sajó, has said, the historic belief in shared rights ‘is a self-imposed vision of the member States and not an elitist view from the Court at Strasbourg’.[2]  I welcome the continuing support that Straw gives to the HRA, but I would insist, with Sajó, that the features of the Strasbourg court that Straw now blames for the current discontents were all present and clearly visible in 1997.   

Anthony Bradley is Research Fellow at the Institute of European and Comparative Law. University of Oxford, and is formerly a vice-president of the International Association of Constitutional Law.

 This is a review of Jack Straw, Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press: 2013).

 Suggested citation: A. Bradley, ‘A Review of J. Straw, Aspects of Law Reform: An Insiders Perspective’ UK Const. L. Blog (7th October 2013) (available at http://ukconstitutionallaw.org)

[1]           For a recent collection of papers that inter alia discuss this view, see S Flogaitis, T Zwart and J Fraser (eds) The European Court of Human Rights and its Discontents : Turning Criticism into Strength  (Edward Elgar, 2013).

[2]           A Sajó, in Flogaitis, Zwart and Fraser (above), page 186.

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Helen Fenwick: Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights

helen1There has been a lot of commentary on the Report of the Bill of Rights’ Commission, and the ‘damp squib’ analysis of the Report (see Mark Elliott) as a whole is one most commentators appear to assent to (see eg Joshua Rozenberg for the Guardian here). My view in general is that the squib could reignite post-2015 if a Conservative government is elected, not in relation to the very hesitant ideas as to the possible future content of a Bill of Rights that the Report put forward, but in relation to its majority recommendation that there should be one (see further my previous post on the Commission Report here). If a BoR was to emerge under a Conservative government post-2015 I suggest that it would reflect the ideas of the Conservative nominees on the Commission which assumed a far more concrete form in the Report than the majority recommendations did (eg see here at p 192). This blog post due to its length is not intended to examine the probable nature of such a BoR based on those ideas in general, but to focus only on two aspects: the idea of curtailing the effects of an equivalent to Article 8 ECHR (right to respect for private and family life), and of requiring domestic courts to disapply Strasbourg jurisprudence under a BoR in a wider range of situations than at present under s2HRA (see Roger Masterman’s post on s2 on this blog here). In respect of the latter issue the potential impact of so doing will only be linked to selected aspects of Article 8 jurisprudence of especial actual and potential benefit to women.

Why concentrate on women as opposed to persons in general attempting to assert private or family rights against the state or non-state actors? That choice is partly due to the implications of EM (Lebanon) v SSHD in which the effect of deportation on the family life of a woman was found to be capable of creating a “flagrant breach” of Article 8. EM argued that such a breach would be created on the basis that shari’a law as applied to her in Lebanon would automatically grant custody of her child to the father, regardless of the child’s best interests, destroying the family life she enjoyed with her child. The basis for that finding is discussed further below. The successful claim in EM demonstrates that Article 8 can be deployed to prevent deportation to face specific instances of state-sponsored gender-based discrimination despite its apparently gender-neutral nature. The decision also led to an increased reliance on Article 8 in cases involving the deportation of parents; in that sense it lies behind the ‘attack’ on Article 8 by Martin Howe in the BoR Commission Report, in the Immigration Bill currently before Parliament, and by Dominic Grieve in 2010 (see my article, 2012 Public Law). Article 8 is concentrated on also because due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women (see further below), and unlike Article 14, which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights (Cam: CUP, 2006) Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Limiting the effects of a right to respect for private and family life in a BoR

In his separate paper in the Commission Report (A UK Bill of Rights) Martin Howe proposed limiting the effect of an equivalent of Article 8 in a new BoR by means of an accompanying clause. The clause would be to the effect that if legislation was passed determining the balance between respect for private life and various public interests, then the courts would not be able to give greater protection to privacy via the Article 8 equivalent than the legislation gave it. Such a clause would obviously be controversial since it would appear to oppose the principle generally underlying Bills of Rights – to protect persons against legislative power, thus countering majoritarianism. It would also attack the notion of universalism underlying Bills of Rights if the clause was aimed in part, which seems to be the intention, at limiting the privacy rights of non-nationals. It would disturb the carefully crafted compromise between Parliamentary sovereignty and protection for rights enshrined in the Human Rights Act, since in relation to this particular guarantee, Parliament would set out its limits in particular pieces of legislation, which would therefore be protected from the effects of mechanisms in a BoR equivalent to those of ss3, and 4 HRA – or at least such would be the intention. Thus, action by public authorities via an equivalent to s6 HRA infringing internationally recognised standards of respect for private life could be enabled by the clause, avoiding the possibility that once the legislation in question had been reinterpreted under an equivalent to s3 HRA, that would be found not to be required. Obviously this possibility raises many questions which cannot be addressed here regarding the appropriate separation of powers between judiciary and legislature and of the possible relationship between various parts of a BoR and the clause itself.

Such a clause as proposed by Howe could be deployed to limit the current impact of Article 8 in deportation decisions. Dominic Grieve has seen the decision in EM (Lebanon) as one that has resulted from a judicial desire to shadow Strasbourg under the HRA and go beyond Strasbourg (‘Proposals for a British Bill of Rights’ 8th March 2010 British Academy AHRC Forum). He had already indicated that this is a problem that he sees as one that could be remedied under a BoR (on conservativehome blog). Howe appeared to have in mind the case of SSHD v Respondent which concerned an Iraqi asylum-seeker, Aso Mohammed Ibrahim, who had brought about the death of a child, Amy Houston, in a driving accident, and fled the scene. He should have been deported previously, in November 2002, once his asylum application had failed but there were delays, meaning that he obtained a chance to establish family life in the UK (see comment here). An immigration tribunal later refused the application to deport him on the basis of his right to respect for his family life under Article 8 ECHR, a decision upheld on appeal (SSHD v Respondent). In a letter to the father of the girl in January 2010, Cameron promised that a future Conservative government would repeal the HRA, which he held responsible for the decision (reported in the Guardian). When the Court of Appeal refused leave to appeal the decision, the Immigration Minister Damian Green said “I will be raising the wider issues highlighted by this tragic case with the Justice Secretary for consideration by the commission on UK human rights law which the Government will be establishing later this year” (see BBC report). In October 2011 Grieve said: We think that the domestic courts have placed too much weight on the family rights of foreign criminals and we intend to redress the balance in the Immigration Rules (speech at Lincoln’s Inn, see transcript).

Theresa May recently said in the Mail on Sunday that new guidance approved by Parliament for judges had made it clear that a foreign criminal’s Article 8 right to a family life had limits, but she accused the judges of ignoring them. She said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported so that Article 8 could apply to block deportation only exceptionally. The amended Immigration Rules set out an extensive, framework providing a definition of the Article 8 balancing factors, but in Izuazu (Article 8 – new rules) Nigeria the Upper Tribunal found that the new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8. In the recent Queen’s Speech the government promised to “give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases”. In other words, the government intends to use primary legislation based on the Rules to change the weight given to the public interest under Article 8(2) when balanced against the rights of the individual in immigration cases under Article 8(1), “to limit the use of Article 8” (Adam Wagner in the New Statesman, and Mark Elliott on the UK Human Rights blog). A clause in a BoR expressly limiting the effect of a right of respect to private and family life would clearly appear to bolster such a change, as could the changes to the s2HRA equivalent put forward by Conservative nominees on the Bill of Rights Commission, considered below.

If a clause on the lines proposed by Howe was introduced in a new BoR it would protect provisions of the Immigration Bill intended to prevent judges from relying on Article 8 in relation to the deportation of non-nationals who have committed offences in the UK, but who may claim that respect for their family life under Article 8 will be breached if they are deported. But Howe’s clause would also apply to any future legislation that sought to make itself ‘Article 8-proof’. In other words, any legislation passed in order to limit the effect of an Article 8 equivalent in a BoR would, under a clause similar to the one proposed by Howe, prevent courts taking a more expansive view of the application of the Article 8 equivalent than the legislation itself allowed. The attempt to re-balance rights, downgrading Article 8 in relation to Article 10, in the HRA s12(4), signally failed (see for example Lord Justice Sedley in Douglas v Hello; Campbell v MGN). However, s12(4) did not direct judges to pay attention to the scope of Article 8 or 10 as delimited by specific pieces of legislation; further, had s12(4) been taken literally it would have conflicted with a well-established strand of Strasbourg jurisprudence which does not give Article 10 presumptive priority over Article 8 (see eg Von Hannover).

Further limiting clauses might be needed. The equivalent of Article 3 would also support recognition of positive obligations, including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands). But a statute finding that an Article 8 equivalent could not be engaged in relation to a particular set of facts could also be interpreted to mean that the pathway to Article 14 was blocked. Further, even if a Conservative BoR was introduced limiting the impact of Article 8, challenges could still be brought at Strasbourg unless the UK withdrew from the Convention (recently raised as a possibility by Theresa May (BBC News), but domestically the possibilities discussed below of reliance on Article 8 could potentially be stifled, depending of course on the nature of the legislation that was introduced.

Evading Strasbourg jurisprudence under a BoR

While the government is bound under Article 46 ECHR to comply with the final decisions of the Court, as a matter of international law, the executive might well prefer to delay and procrastinate in response, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might. Or a decision might be viewed as non-dispositive in a UK setting due to its fact-sensitivity. That tendency is evident in the Conservative predilection for proposing changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, possibly partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty.

There are signs that senior Conservatives prior to the 2010 election intended to use the BoR to seek to sever or weaken the connection with Strasbourg created by the HRA, s.2.  Dominic Grieve has argued that the HRA has been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended” (Telegraph). Instead, he said, a new BoR would make it clear that British courts could allow for UK common law to take precedence over decisions by the European Court of Human Rights in Strasbourg (Equality and Human Rights Commission).  Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. In his separate paper in the Commission Report (here at p 257), Mechanisms of a UK Bill of Rights, A Speaight recommended change to the formula of s2, echoing Grieve. He did not consider that s2 should be retained in its current form since he wanted to ensure that Strasbourg jurisprudence could not be treated as binding. Therefore he did not consider that the words ‘take into account’ in s2 should be retained – since so doing might still lead judges to come close at times to following Strasbourg. Martin Howe in his paper stated that he agreed with Speaight’s proposals as regards the s2 mechanism.

Introducing a BoR with a clause directing judges to limit the impact of an Article 8 equivalent as determined by any particular piece of legislation might place them in a dilemma if they did not find themselves within a recognised current exception to the Ullah principle as regards applicable, determinative Strasbourg Article 8 jurisprudence. Thus also directing the judges to disregard such jurisprudence might appear to be necessary to safeguard such a clause.

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking it might be argued that the ECHR in general has little to offer women (see for discussion Grabham and Hunter ‘Encountering Human Rights’) due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer Documenting women’s rights violations by non-state actors), human rights principles can be used as a campaign tool in influencing and mobilizing public and community opinion, and the use of campaigning methods by feminist advocacy groups as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk, by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

The possibility of using a BoR to limit the effect of a guarantee of respect for private and family life, combined with a degree of decoupling from the Strasbourg jurisprudence, could have various adverse effects which have been considered elsewhere; this blog’s concern is with the possibility that developing opportunities to safeguard and advance women’s interests using Article 8 ECHR might be stifled. So it proceeds to ask – in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list; also each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law, so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). As the Lords found, under shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and AF’s (her son’s) right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

Domestic violence – requirement of effective investigations and prevention

Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a “private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and therefore in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that while the authorities took some steps to protect the first applicant from her violent husband, A, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

Recently in the UK the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend Marc Chivers (see main findings here). Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence (see eg this recent report in the Guardian). Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8,2,3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Conclusions

This blog has suggested that limiting the effects of a guarantee of respect for private and family life in a BoR, combined with seeking to create departure from relevant Strasbourg jurisprudence, could in future stifle the impact of nascent developments in human rights principles under Article 8 ECHR that reduce gender-based harm to women. So doing could also potentially derail the effect of Article 8 in domestic Constitutional terms, given that the UK has a good record on procedural propriety but traditionally a poor one on privacy. Clearly, such an attempt might fail: the fact that judges were operating under an instrument termed a BoR might encourage an activist approach that sought to circumvent attempts at giving the ‘public interest’ the opportunity to negate a right in certain circumstances – the converse of the Strasbourg approach. Nevertheless, it is worth drawing attention to Howe’s proposed clause, and to the general interest shown by senior Conservatives in minimising the guarantee of respect for private life.

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights ‘  UK Const. L. Blog (5th June 2013) (available at http://ukconstitutionallaw.org)

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