Regulating surrogacy--a contravention of human rights?

On the 2nd of October 2000, The Human Rights Act 1998 came into full force, signalling the incorporation of The European Convention on Human Rights into U.K. law. Areas of law believed to be inconsistent with the Convention may now be challenged in both The European Court of Human Rights and domestic courts. This article considers whether existing laws on the regulation of access to infertility services, in particular surrogacy, will be deemed incompatible with the ECHR. Human rights as enshrined within Articles 8 and 12 will be examined in light of recent suggestions that there may arise legal challenges by those who have had access to reproductive services restricted or denied. It will be shown that, although existing and potential future controls may arguably infringe these rights, it is nevertheless unlikely that they will be held to be in contravention of The Human Rights Act 1998.     

An Equality and Human Rights Commission Worthy of the Name

The Human Rights Act 1998 came fully into force on 2 October 2000, enabling the European Convention on Human Rights (ECHR) to be relied on directly in our domestic courts.¹ The Act lacked provision for a Human Rights Commission to advise and assist alleged victims in bringing proceedings for breaches of Convention rights, to research, intervene in court proceedings, and promote a culture of human rights, although such a Commission had been created for Northern Ireland. A White Paper has now been issued outlining plans for a Commission for Equality and Human Rights. This paper considers the future role and potential impact of the Commission and highlights opportunities that have been missed since October 2000 in its absence. We focus on its human rights aspects and summarize key conditions for the new Commission's success.     

Strasbourg,the House of Lords or Elected Politicians: Who decides about rights after Re P?

In Re P , the House of Lords decided that art 14 of the Adoption (Northern Ireland) Order 1987 which prohibited unmarried couples from being eligible to adopt, violated articles 8 and 14 of the European Convention on Human Rights. Apart from its significance for adoption law and anti-discrimination law, Re P is also important in understanding the constitutional role of the courts under the Human Rights Act 1998 (HRA). Re P recognizes that if Strasbourg has determined that an issue falls within states' margin of appreciation, this does not prevent municipal courts from enforcing those rights. This comment will discuss the meaning and scope of the courts' obligation under section 2 of the HRA, the status of the rights protected by the HRA and the appropriate role of the courts in a rights dispute which is subject to moral, social, religious or political controversy.     

Lost on the Way Home? The Right to Life in Northern Ireland

This article starts from the premise that, through the Belfast Agreement, the Human Rights Act 1998 (HRA) was invested with a 'transitional justice' function in Northern Ireland, unlike in the rest of the United Kingdom. The article evaluates how far the HRA has met this challenge by examining a case study of the right to life. The European Court's development of a procedural aspect to the right to life in the form of a right to an effective investigation, has implicated both institutional reform for the future, and also a need to revisit past state killings with their 'transitional justice' implications. There have been some positive developments, but, despite this, domestic institutions and courts have largely failed to deliver on Article 2's procedural aspect. The article concludes by questioning whether the very design of the HRA has limited the possibilities for a 'transformational constitutionalism' capable of incorporating Article 2's procedural right.     

The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?

The Conservative party has repeatedly pledged to replace the HRA with a British Bill of Rights, with the aim of ‘breaking the link’ between domestic courts and Strasbourg. This article examines the implications of this proposal, the nature of the current relationship with the European Court, and the extent to which the link has already been weakened. It considers the bases of the Conservative proposal, and the options available in breaking that link in a Bill of Rights, taking account of the potential introduction of limitation clauses and the possibility of according Strasbourg judgments against the UK an advisory status only. Finally, taking account of the European Court's recent movement towards ‘enhanced’ subsidiarity, it will examine the consequences for the protection of human rights of reliance on a Bill of Rights intended to be interpreted and applied independently of Strasbourg influence.     

Unveiling a role for the EU? The ‘headscarf controversy’ in European schools

Many European countries have introduced laws and policies which proscribe religious clothing in public educational institutions. The European Convention on Human Rights has been deployed to uphold such actions, the European Court of Human Rights recognising that States should be able to limit the manifestation of religious beliefs. National courts considering the matter in terms of religious freedom (as opposed to discrimination) have reached similar conclusions. Most affected States are members of the European Union as well as the Council of Europe. This article will argue that it is more likely that European Union law could be engaged by an aggrieved teacher to challenge national law.     

The Open Architecture of European Human Rights Law

The evolution of the European human rights regime is often described as the development of an integrated order with the European Convention of Human Rights as its governing 'constitutional instrument'. It is argued that the regime is better regarded as pluralist - characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in the European Union. These cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in practice. The analysis of the factors leading to this convergence indicates that central characteristics of pluralism – incrementalism and the openness of ultimate authority – have contributed significantly to the generally smooth evolution of the European human rights regime. This suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.     

The negligence of prison authorities and the protection of prisoner’s rights

This article looks at the potential for legal action brought by prisoners (and their dependants) who have suffered from the alleged neglect of the prison authorities. The article will examine the case law in this area to assess the success of prisoners’ negligence claims and whether such claims are unduly fettered by judicial attitudes and other more practical issues such as the difficulty in establishing a breach of duty. In particular the article will consider whether the law and its application has been, or should be, modified in the light of new obligations imposed on public authorities, including the courts, by the Human Rights Act 1998 and by the developing case law of the European Court of Human Rights in respect of Convention rights such as the right to life and freedom from inhuman and degrading treatment.     

Horizontal Effect and the Constitutional Constraint

This article offers a new interpretation – the ‘constitutional constraint’ model – of the duty the Human Rights Act imposes on the courts to give horizontal effect to European Convention rights through the common law. The model requires courts to develop the common law compatibly with the Convention, but only where compatibility can be achieved by incremental development. We argue that models requiring more than incremental development are unsustainable; that deep constitutional norms compel the constraint of incrementalism, which is preserved under the HRA; and that by virtue of section 2 of the HRA, Convention rights function as principles rather than hard‐edged rights in this context. This further undermines the idea that the courts must strictly apply Convention rights and cannot allow them to be overridden by non‐Convention factors. The final section explores the nature of incrementalism in this context and the impact of the model on the doctrine of judicial precedent.     

Accommodating Children's Rights in a Post Human Rights Act Era

This article considers why so little case law currently acknowledges that children have recognisable rights under the European Convention on Human Rights and argues that the family courts are not meeting the demands of the Human Rights Act 1998 in this regard. It suggests that a reinterpretation of the 'paramountcy principle' in the Children Act 1989 should be accompanied by a radically different judicial approach to evidence relating to children's best interests. The article considers the difficulties that such an approach might produce when applied to teenagers intent on refusing life-saving medical treatment. It further argues that the courts should call on the substantial body of rights jurisprudence to provide legal and moral support for this revised approach.     

Pluralism,Deference and the Margin of Appreciation Doctrine

In this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.     

Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

The Dissemination of Detainees Awaiting Trial Before International and Internationalized Criminal Tribunals

This paper will focus on the rights attributed to detainees who are facing charges before international and internationalized criminal courts. The question is whether their position merits a different approach compared to the position of detainees who are confronted with domestic criminal trials. In particular, this paper will address the question whether, and to what extent, international human rights have a direct effect on the position of the former detainees. Attention will focus on case law of the European Court of Human Rights vis-a-vis the rights of detainees and the impact thereof on the position of detainees who are held in custody on behalf of international and internationalized criminal courts. The author is Professor of International Criminal Law at Utrecht University (The Netherlands), defence counsel acting before the ICTY, ICTR and SCSL, and a partner of the law firm Knoops & Partners Advocaten in Amsterdam, the Netherlands.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

'Condemn a Little More, Understand a Little Less': The Political Context and Rights' Implications of the Domestic and European Rulings in the Venables-Thompson Case

In 1993 Jon Venables and Robert Thompson were found guilty of the abduction and murder of two-year-old James Bulger. Aged ten at the time of the offence, the children were tried in an adult court before a judge and jury amidst a blaze of publicity. They were named by the trial judge and sentenced to detention at Her Majesty's Pleasure [HMp]. The Home Secretary set a minimum tariff of fifteen years imprisonment. In December 1999 the European Court of Human Rights held that, in the conduct of the trial and the fixing of the tariff, the United Kingdom government was responsible for violating the European Convention on Human Rights. This article maps how the case became a watershed in youth justice procedure and practice influencing Labour's proposals for reform and the 1998 Crime and Disorder Act. Examining the progression of appeals through the domestic and European courts, it explores the dichotomous philosophies separating the United Kingdom and European approaches to the age of criminal responsibility, the prosecution and punishment of children, and the influence of political policy on judicial decisions. Finally, the 'backlash' against 'threatening children', the affirmation of adult power and knowledge, and the implications of the European judgments in the context of a rights-based agenda are analysed.     

The Presumption of Innocence and the Human Rights Act

There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.     

The judicial review of legislation in the United Kingdom: a public choice analysis

The Human Rights Act 1998 unprecedentedly enabled the senior courts in the United Kingdom to review parliamentary enactments for compatibility with the European Convention on Human Rights. This article seeks to analyze within the framework of public choice economics two phenomena arising from this development that are counterintuitive: What made Parliament voluntarily invite the judiciary to monitor its acts? Why has Parliament consistently complied with rulings of the Judicial House of Lords that challenged primary legislation over the last 10 years? It argues that the Act was designed in a way that fulfilled the electoral commitments of the enacting majority by supplying promised policies to its constituencies, while minimizing agency costs and information problems in favor of Parliament’s corporate interests. Significantly, the Act left intact the veto powers of Parliament and the European Court of Human Rights in Strasbourg. As such, it disincentivized the Judicial House of Lords to risk costly overturns of its rulings by Parliament for straying too far from the range of the ideal policy positions spanned by Parliament and Strasbourg. Drawing from the empirical evidence of the past decade, it will be shown that in nearly all cases the Law Lords have either upheld the compatibility of challenged statutes, reaffirmed parliamentary preferences, or followed the jurisprudence of the Strasbourg Court.     

A Gramscian Approach to Studying the Judicial Decision-Making Process

This paper applies a Gramscian analytical framework to scrutinise the judicial decision-making process. Based on two distinct research projects, the article explores how, on one hand judges in criminal courts can be identified as part of the bureaucratic machinery of the state, as ‘technicians of repression’; whereas, on the other hand, human rights judges can be distinguished as providing ‘moral and intellectual leadership’ in their production and reproduction of certain values. Some of the key questions this article seeks to answer are: What is the role of hegemony in the judicial decision-making process? To what extent are legal actors both ‘technicians of repression’ and ‘moral and intellectual leaders’? This paper uses examples from empirical research conducted at courts in Argentina and at the European and Inter-American Courts of Human Rights to identify and explore this dual role of judges as both repressive technicians and moral and intellectual leaders in neo-liberal capitalist societies.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

The tide in favour of legal equality for gay and lesbian individualsand couples continues to roll forward on both sides of the Atlantic.In Canada, the federal Parliament recently passed legislation(the Civil Marriage Act) (CMA) that extends the legal capacityto marry for civil purposes to same-sex couples throughout thecountry. This change in the law was driven not by the executiveand legislative branches of government but by the courts, interpretingand applying the Canadian Charter of Rights and Freedoms (theCharter). On the other side of the Atlantic, in England andWales, the Westminster Parliament in 2004 passed legislation(the Civil Partnership Act) (CPA) that will enable same-sexcouples to obtain legal recognition of their relationships,and to access most of the legal rights and responsibilitiesoffered to married couples. However, unlike the Canadian legislation,civil marriages between same-sex couples will still not be legallyrecognized. This article considers whether the English courtswill also facilitate the legal recognition of same-sex civilmarriage, like their Canadian counterparts. The author concludesthat, in light of recent case law, there is an increasinglystrong argument that the opposite-sex marriage requirement inEngland and Wales violates Article 14 (the equality provision)of the European Convention on Human Rights (ECHR), which isincorporated into UK law by the Human Rights Act, 1998. However,the author also concludes that there are a number of reasonsto be cautious that a positive result would flow, at this point,from a domestic court challenge to the opposite-sex marriagerequirement.