Subsidiarity, representation and human rights

Subsidiarity, representation and human rights

Despite the picture above, this is a short piece of comparative politics, comparing the US Constitution with that of the EU, taking in some lessons from the UK. I have just watched The Original Intent of the [US] Constitution by Prof. Mark Stoler. This taught me some things and this essay reviews these points and looks at lessons for the UK, the EU and the rest of the world.

I look at the “Separation of Powers” vs “Parliamentary Sovereignty”, note that checks and balances are designed to protect the [untitled] aristocracy against the mob, that without the Bill of Rights, the US Constitution may well not have been agreed. I note the desirability of a basic law, with the ability to amend, but not as flexibly as is the case in the UK. I look at constitutional inflexibility in the residual construction of the US Senate and the EU veto. I look at the need for federal taxation powers. I have concluded that parliaments need a freedom of action, and the freedom to negotiate between party programmes. The paradox is that they need to be constrained which is why we need human rights law.

The lecture to me reinforces the need for a subsidiarity guarantee within a constitution, including taxation powers, and a human rights guarantee, remembering that human right law is designed to protect you from the Government. Vetoes are a topic for another day, although much of the failings in the US Constitution can be placed at the door of single seat constituencies, including the Presidency, elected by simple plurality, or indirectly in the case of the Presidency. I say more overleaf ….

Human rights and the ECHR

Human rights and the ECHR

The Govt have published their response to the consultation on Human Rights Act. The responsible minister is Dominic Raab, for whom it has been a long term aim to weaken people’s access to legal remediation, well for anything actually. Raab co authored, The Assault on Liberty. In this case, the target human rights and their 1st target is the right to a private and family life, arguing that honouring this right makes deporting people harder, articulate bu Jim Carrey in 'Liar, Liar', I point at my article on the GMB London Region’s evidence to the consultation, I concluded that too much attention was being placed on the relationship between the various institutions and insufficient on what might occur if a sense of impunity were developed in the administrative organs of the State. The article concludes with some quotes and links to Prof. Mark Elliot's contribution to the debate. There's more overleaf ...

Human rights are universal

Human rights are universal and threatened in the offices of the state, not in a court in London or Strasbourg

I have been writing a response to the Govt’s consultation on the Human Rights Act. The deadline is midnight this Tuesday. Here is a version of preamble.

I believe that Human Rights law codifies rights and are designed to prohibit and punish over-mighty Governments & politicians that oppress their citizens and their non-citizen residents. They are universal and thus not to be only available to a deserving minority or to be denied to an undeserving minority.

The Human Rights Act and access to the European Court of Human Rights is a crucial defence for all citizens and provides an enhanced route to enforce the rights of public sector workers.

I note that there were only two adverse judgements in 2020, and that since the HRA was passed, the number of adverse determinations has reduced dramatically. This is good because it reduces the cost of justice to those wronged by the State.

I oppose the weakening of the court’s discretion, reducing access to the courts and the weakening of the prohibitions on Government actions. I note that weakening the courts’ ability to take the ECHR into account is likely to lead to more cases being taken to Strasbourg.

It would seem through out the consultation that there is a confusion between the rights of Parliament and the rights of the Government or individual ministers.

I am  concerned that weakening the protections will led to oppressive actions taken by Ministers or their staff, unauthorised by parliament, without an ability to remedy via the courts, a right guaranteed in the ECHR. There will be an effective transfer of the power of interpretation from the courts to officials. This will be an effective diminution of the rights and protections of government employees and service consumers.

My concern is that, as a result of the framing of the consultation, too much attention will be applied to the relationship between the government, parliament, the UK Supreme court and the Strasbourg Court, and insufficient attention to the effective transfer of power to Ministers, Councillors and Officials who may behave poorly and with impunity should they feel less likely to have to answer to the UK or Strasbourg courts.

I was helped in developing answers to some of the consultation questions by the British Institute of Human Rights.  …

On the ECHR, again

On the ECHR, again

I am trying to write something for the Govt. consultation on the HRA, and came across this nugget from the ECtHR, Facts and Figures 2020, we can assume, that 2021 is not yet available,

“Almost half the judgments concerned 3 of the 47 member States, namely the Russian Federation (185), Turkey (97) and Ukraine (86). Nearly a quarter of all the judgments delivered by the Court concerned the Russian Federation.

Of the total number of judgments delivered in 2020, the Court found at least one violation of the Convention by the respondent State in 87% of the cases.”

Facts and Figures 2020

I last looked at the Court and its impact on the UK in this article, Sovereignty, in 2016, which pointed at two articles, one, a fact check from Channel 4, and one from the EHRC describing the impact of the Court on British Law.

The featured image, is from wiki media, CC cherryx 2012 BY-SA …

What the CoFoE thinks about citizen privacy

What the CoFoE thinks about citizen privacy

The Conference on the Future of Europe, Democracy and Rule of Law panel has generated 39 recommendations to improve the EU’s Democracy and compliance with the Rule of Law. Three of these related to Privacy and one to Cybersecurity. I have drafted a response for CTOE, which I hope will become part of their response but did not form part of their first response, which is fortunate since I changed my mind slightly. The article, overleaf, covers regulations and sanctions, equality of arms, and enforcement and political will. ...

Sometimes ministers go to gaol.

I am astonished to read that Inger Støjberg, an ex-Danish immigration minister has been sent to prison for breaching migrant’s human rights. This followed a European Court of Human Rights ruling. I look forward to one of many cases against Priti Patel going to Strasbourg, for instance, this and this on her illegal and inhumane instructions on push back of refugees crossing the channel or her failures in progressing Windrush compensation or her discriminatory behaviour towards pre-settled EU citizen residents. She should be worried although her mate Dominc Raab has an answer. Neuter the ECtHR. …

More racism from the Nationality & Borders Bill

The nationality and borders bill has been rightly criticised for demonising refugees and asylum seekers, the Acts last year have given the police immunity from prosecution for illegal acts, but I have just discovered, by looking at the New Statesman, that it plans to increase the powers of the Home Secretary to remove the citizenship rights, rendering them stateless,of people she believes have a claim on citizenship of a second state. It is one of the UN Declaration of Human Rights, not to be stateless. The ‘Statesman, rather dramatically suggests 6 million people could be in jeopardy.

In the article in the ‘Statesman, the show more button works.  …

Right to a fair trial

judges gavel

For reasons, which to my friends will will be obvious, I feel the need to post the text of Article 6 of European Convention on Human Rights.

ECHR Article Six

  1. a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:
    • a.  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    • b.  to have adequate time and the facilities for the preparation of his defence;
    • c.  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    • d.  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    • e.  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Wiggle room on human rights law

Wiggle room on human rights law

I made a linkedin blog on the ECtHR’s margin of appreciation. I was reading up on the UK’s post Brexit data sharing arrangements with the EU, and under the terms of the GDPR. I was diverted by the ECHR’s doctrine of a “margin of appreciation”.

Broadly speaking it refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.

Steven Greer Reader in Law, University of Bristol,United Kingdom

Human Rights law is designed to constrain governments but will always require interpretation. The doctrine means that the rights of interpretation are shared between the ECtHR and the signatory states, who themselves will divide this between their courts and executive branch.  

This seems sensible, as I observed, when the British courts were busy interfering with the CPSA in the ‘80’s and undermines the argument of foreign interference because where there is a benefit of doubt, the ECtHR can allow the otherwise infringing government that benefit.

With respect to the cross border transfer regulation, this might make it easier to comply with the law, but there are several outstanding problems. With respect to international data sharing, the most relevant to the doctrine of appreciation and this article is that, the UK is now an ex-member-state and while the Commission argues this means that the UK’s data protection regime is suitable, the fact it is now a 3rd country means that the UK has less legal privileges to exercise its “margin of appreciation” as the powers granted to member states to vary/diminish the protections in Article 23, no longer apply. This was observed and commented on by the House of Lords Select Committee report on Brexit in 2017. See also,

I was reading this article, which makes it much clearer, that the ECtHR looks to defer to national institutions, where it can,

According to the classical position of the ECtHR State authorities “are in principle in a better position than the international judge to give an opinion” on the “necessity” and “proportionality” of a derogation or restriction authorized by human rights law. As a consequence, international courts “should grant national authorities an important degree of deference and respect their discretion” with regard to the implementation of exceptions. Thus, without precluding judicial review of a State’s action in this field, the doctrine intends to “limit the scope of this review” and to impose some degree of judicial self-restraint where an assessment of the attitude of national authorities is concerned.

Theodre Christakis