Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans‐national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much‐neglected question, simple to state but not so easy to answer: is the trans‐national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?     

‘Factual causation’ and ‘scope of liability’: What's the difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non‐causal. This article accepts the basic two‐step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.     

Are Children's Best Interests Really Best? ZH (Tanzania) (FC) v Secretary of State for the Home Department

Although the Supreme Court's decision in ZH (Tanzania) is an important one, as this note explains, it is less novel than many suppose – and is in some ways disappointing. By stressing the importance of immigrant children's best interests, it fails to use this opportunity to promote their Convention rights effectively.     

European Human Rights Law and the Normalisation of the ‘Closed Material Procedure’: Limit or Source?

Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter‐relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.     

The First Member State Rebellion? The European Court of Justice and the Negotiations of the ‘Luxembourg Protocol’ of 1971

This article delves into the history of the negotiations of the ‘Luxembourg protocol’ of 1971, which conferred jurisdiction upon the European Court of Justice (ECJ) for the interpretation of the 1968 Brussels convention. The protocol provided a preliminary ruling procedure that had undergone restrictive modifications in comparison with the European Economic Community (EEC) treaty's original (Article 177). Some have, therefore, interpreted the outcome of the negotiations as a sign that the mechanism was being criticised in national administrations. This article will, for the first time, bring to the surface archival evidence to explain why the protocol contained an altered version of Article 177 EEC. Furthermore, it will reveal that the governments' experts' intention to limit the procedure in the protocol caused serious concern inside the ECJ, of which some members consequently repeatedly urged national decision‐makers to opt for formulas identical with Article 177 EEC.     

Falling into Line? The Hostile Environment and the Legend of the ‘Judges’ Revolt’

In 2012 the Government made a number of controversial changes to the Immigration Rules, which it claimed would ‘comprehensively reform the approach taken towards ECHR Article 8 in immigration cases’. This paper examines the judicial response, arguing that the courts ‘fell into line’, adapting human rights law to the government's aims through unprincipled and opportunistic techniques, whilst inflicting hardship and injustice on working-class British citizens in particular. Four key moves are identified. First, the courts created an ‘incapable’ test which immunised the rules from in principle challenges. Second, Lord Bingham's Article 8 test, in which the reasonableness of any family member relocation was a central consideration, was replaced with a far less family-friendly test. Third, the courts adopted an ultra-lax rationality test at common law, even when the ‘fundamental rights’ of British citizens were engaged. Finally, the courts identified immigration policy as the ‘constitutional responsibility’ of the executive.     

‘Should I Stay or Should I Go ?’—A Critical Analysis of the Right to Withdraw from the EU

This article seeks to answer one of the key questions facing the EU in the future: what effect will the new right to withdraw have on the EU? Will it lead to a gradual fragmentation of what was supposed to be ‘an ever closer union of unlimited duration’? Or will it even mark the beginning of the end of the Union? In order to answer these complex questions, this article first briefly analyses the pre‐Lisbon situation regarding withdrawal. It then critically examines the newly inserted Article 50, which codifies the right to withdraw. Having done so, it will then examine whether non‐legal considerations, such as political and economic reasons, will render withdrawal a theoretical rather than realistic option.     

Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.     

Subsidiarity in the Area of EU Justice and Home Affairs Law—A Lost Cause?

This article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally. In doing so, the article tries to show that criminal law could and should be seen as imbued with 'subsidiarity' and, more specifically, that it could be viewed as an expression of the principle of ultima ratio—a minimalism approach—in criminal law. Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area. Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law. Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs.     

‘Hermann Heller and the European Crisis: Authoritarian Liberalism Redux?’

This essay tentatively buttresses Alexander Somek's view that Hermann Heller's 1933 essay, ‘Authoritarian Liberalism’, provides a useful starting point for thinking about the ongoing European crisis, in which European authorities are favouring rigid austerity and pro‐business policies while undermining basic liberal and democratic rights. Heller's unfortunate neglect, especially in Anglophone scholarship, is discussed. Nonetheless, Somek and other recent scholars who have turned to Heller to make sense of the European crisis downplay some of the tough questions raised by any attempt to apply Heller's analysis of the Weimar crisis to the contemporary setting. In particular, Heller's theory relied on a robust social democratic statism which has become increasingly unpopular even among theorists on the political left.     

Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?

This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.     

What Did the Lawyers Do During the ‘War’? Neutrality,Conflict and the Culture of Quietism

Using Northern Ireland as a case study, this paper explores how lawyers responded to the challenges of entrenched discrimination, sustained political violence and an emerging peace process. Drawing upon the literature of the sociology of lawyering, it examines whether lawyers can or should be more than ‘paid technicians’ in such circumstances. It focuses in particular upon a number of ‘critical junctures’ in the legal history of the jurisdiction and uncouples key elements of the local legal culture which contributed to an ethos of quietism. The paper argues that the version of legal professionalism that emerged in Northern Ireland was contingent and socially constructed and, with notable exceptions, obfuscated a collective failure of moral courage. It concludes that facing the truth concerning past silence is fundamental to a properly embedded rule of law and a more grounded notion of what it means to be a lawyer in a conflict.     

‘Stop the ECJ’?: An Empirical Analysis of Activism at the Court

This article uses a disaggregated approach to study the role of the Advocate General in the European Court of Justice (CJ). It presents original empirical material based upon interviews with Advocates General (AsG) and referendaires at the CJ to assess the question of activism at the Court. Using answers to specific questions, I conclude that while the AsG are entrepreneurs, neither they nor the Court can be described as ‘activist’per se.     

‘You caught ’em!’…or not? Feedback affects investigators’ recollections of speech cues thought to signal honesty and deception

Purpose. When eyewitnesses to crime receive feedback about their choice of a suspect from a line‐up (or post‐identification feedback), such information can substantially alter their recollections of the witnessing experience. This study examined whether feedback exerts similar effects on investigators’ recollections of a suspect's behaviours. Methods. Participant‐investigators received training on speech cues that they were told, when present in a speaker's account, signal either honesty or deception. After hearing a suspect's account of a theft, participants decided whether the suspect was lying or telling the truth. One‐third of participants subsequently received immediate confirming feedback about their performance, while another third received disconfirming feedback. The remaining one‐third of participants did not receive feedback about their decision. Finally, participants rated the frequencies of speech cues that they had been instructed to detect in the suspect's account. Results. Disconfirming feedback significantly altered retrospective judgments about the characteristics of the suspect's account. Specifically, when told that the decision they made about the speaker's credibility was incorrect, participants judged the speaker as having exhibited fewer behaviours consistent with the credibility decision they had made, relative to those who either received no feedback or confirming feedback. Conclusions. Biases in recollections of a suspect may have consequences in real‐world interrogations wherein investigators assess credibility on the basis of numerous behavioural cues. Results are discussed in light of findings of post‐identification feedback studies on eyewitnesses.     

Are There Methods of Reasoning on ‘Meta‐Legislation’? The Interpretation of Legislative Competence Norms within the Methodology of European Constitutional Law

Legislative competence norms are paradigmatic elements of European constitutional law and the supranational, post‐federal era. The article aims to address legislative competence norms from the viewpoint of methodology by considering significant features of reasoning on European legislative competence norms. The discussion will be based on understanding legislative competences as ‘meta‐legislation’. That concept encompasses a substantive rather than formalistic, and a politically informed rather than strictly positivist account of legislative competences and their methodology. Against that background, the interpretation of competence norms is assessed. Subsequently, the process of interpretation is discussed according to judicial practice, constitutional theory and general legal methodology. A consideration of the significance of the—usually vast—wording of competence norms completes that discussion. Finally, consequences about the political inclusiveness of interpreting competence norms and the issue of ‘clarity’ are drawn. A conclusion summarises the results.     

‘Inheritance Families of Choice’? Lawyers' Reflections on Gay and Lesbian Wills

This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.     

Towards ‘Accountable Independence’? Parliamentary Controls of the European Central Bank and the Rise of a New Democratic Model

The independence of the European Central Bank is legally defined in very clear and strict terms. Although most scholars in economics describe this status as a crucial condition of the Bank's efficiency, it is frequently criticised by politicians and political scientists as a contradiction to democratic theory. This paper will examine the emerging practice of parliamentary control of the ECB, from its installation until September 1999, in order to understand which kind of ‘accountability’ is elaborated in this unprecedented relationship between ‘politicians’ and lsquo;technocrats’. It will first show that MEPs have rejected all forms of parliamentary control based on a logic of constraint. It will then describe the numerous institutional links created between the Bank and the EU political organs to favour their cooperation. Finally it will analyse the recent initiatives taken by MEPs to influence central bankers and to convince them to submit their decisions to public debates. The hypothesis developed from these empirical analyses is that a new kind of ‘accountability’ is emerging in the EU. From a horizontal point of view (inter‐institutional controls), it is based on influence rather than traditional parliamentary constraint. From a vertical point of view (accountability to citizens), it focuses on responsiveness rather than on classic responsibility.