Category: UK

Human Rights in Collaboration: Launch Event & Getting Involved

CRsZdlCWIAAaWpDLast night I was very pleased to speak at the launch event for Human Rights in Collaboration, which was held in the beautiful Common Room at the Law Society in London. The event, entitled ‘Where are human rights headed?‘, was attended by almost one hundred delegates and featured short contributions from me (on terrorism and human rights), Nicole Bigby (on business and the human rights), and Stephen Grosz QC followed by a very involved Q&A session and discussion with the audience. The panel was excellently chaired by Jonathan Smithers, the President of the Law Society, and organised by Sarah Smith.

The event itself is the first in an ever-growing series of events across the country which aims to bring together academics, practitioners and civil society to discuss and debate human rights issues, often through unconventional means including poetry workshops. Human Rights in Collaboration will culminate with a closing panel, again in the Law Society, on December 10th when we will draw out and reflect on key questions and concerns that emerged across all of the events.

The programme of events was conceived and is coordinated by a small and informal committee of me, Nicole Bigby, Alison Klarfeld (BLP LLP), Sarah Smith (Law Society), and Rosa Freedman (Birmingham Law School). The website for the programme is here, and the events calendar is here (please note we are adding events all the time!).

If you are involved in an NGO, a member of a law school, or a legal professional of any kind who would like to organise an event to take place between now and December 10th do please get in touch!

New policy paper on repealing the HRA (and withdrawing from the ECHR?)

images-4Today a group of scholars, including myself, have released a new policy paper outlining some implications of repealing the Human Rights Act 1998 and, possibly, withdrawing from the European Convention on Human Rights. The paper emerged from a workshop in Edinburgh last March. The workshop was convened by Tobias Locke (Edinburgh) and Kanstantsin Dzehtsiarou (Surrey) who also co-edit the policy paper that has been released today. Following the UK General Election last week and the manifesto pledge to repeal the HRA, we hope that this paper will give some insights into the possible implications and repercussions of the government following through on that pledge. The paper can be downloaded (without charge!) here.

Key findings include:

Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures.

If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals.

A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights.

A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible.A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.

Reflections on the David Miranda Case

The high-profile decision in R (Miranda) v Secretary of State for the Home Department was released earlier this week. In it, the Court affirmed the proportionality of the controversial Schedule 7 powers to stop and question individuals at ports and airports, which includes a power to seize laptops, phones etc. The use of these powers is proportionate, the Court held, even when it interferes with journalistic freedom of expression where such freedom of expression might result in the disclosure of information that could (inadvertently) aid terrorists in some way.

Although there is much to be said on the implications of the case for Schedule 7, the proportionality test, and journalistic freedom (on which see Helena Kennedy QC, Paul Daly, Colin Murray and Mark Elliot), Miranda also raises interesting questions about how we manage secrecy in the counter-terrorist context. This is the element I have been most interested in, and I wrote a short opinion on it for the Oxford Human Rights Hub, which I then republished in longer form on Human Rights in Ireland. The thrust of these posts is:

Journalism—which creates ‘public public’ transparency—may not always have the capabilities to make the kinds of security judgement necessary to assess whether a particular piece of information ought to be in the public domain, but neither ought we allow security agencies to monopolise both the information that we use to assess threats and the decisions as to disclosure. While the judgment in Miranda may please the security sector by its affirmation of the former proposition, the entire affair makes it clear that the latter must be addressed as a matter of urgency.

Managing secrecy (beyond what arises in relation to closed materials in court procedures) is part of counter-terrorism that many legal scholars (including myself) have often avoided dealing with head-on. I am not sure we can do that for much longer and in my next book (which I am just finishing up) I try to tackle secrecy and transparency as matters of constitutionalism; a daunting task! 

New Article on Declarations of Incompatibility

My new article, “Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?” will be published in the Statute Law Review in 2014, but is alead available on advance access. Here is the abstract:

Ireland’s European Convention on Human Rights (ECHR) Act 2003 has not had a very significant impact on domestic rights-related jurisprudence. This is, perhaps, not entirely surprising given that the Irish Constitution—Bunreacht na hÉireann—protects fundamental rights and that incompatibility with constitutional rights is fatal to legislation, with superior courts being constitutionally empowered to strike such law down. Thus, rather than a political constitution, Ireland has a ‘legal’ constitution in which courts play an important role in rights protection. In spite of that, the Declaration of Incompatibility—designed to maintain constitutional structures while protecting rights within a political constitution—was transplanted from the Human Rights Act 1998 into the ECHR Act in Ireland. This paper examines the workability of that transplantation. It concludes that the Irish Declaration of Incompatibility fits awkwardly into the Irish politico-legal culture of rights, so that it really must be a remedy of last resort given its patent inferiority compared with constitutional remedies for rights infringements and, further, that if it is going to be at all effective even in cases of last resort, a fundamental shift in political cultures and structures relative to rights is required.