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,

On Adequacy after Brexit

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

 …

Without Track & Trace, it’s just herd immunity

Without Track & Trace, it’s just herd immunity

Today should have been either Freedom Day or a more mundane, lifting of all lockdown restrictions. It isn’t. It’s been postponed by four weeks. I remain uncomfortable about the Govt’s (and Labour’s) approach and its sole reliance on vaccines. I came across a tweet today from Deepti Gurdasani , who has taken up the issue of pandemic response and, in my mind, talks about the fact that the Govt. are still pursuing a herd immunity strategy and the the failure and loss of trust in track and trace is a critical weakness in the UK response. She also pointed me at the serious escalating evidence of the crippling damage of “long covid”. and at the John Snow Memo.

It seems to be about 1 year old, and says, among other things,

In the absence of adequate provisions to manage the pandemic and its societal impacts, these countries have faced continuing restrictions. This has understandably led to widespread demoralisation and diminishing trust. …

Any pandemic management strategy relying upon immunity from natural infections for COVID-19 is flawed. … Furthermore, there is no evidence for lasting protective immunity to SARS-CoV-2 following natural infection and the endemic transmission that would be the consequence of waning immunity would present a risk to vulnerable populations for the indefinite future. …

Effective measures that suppress and control transmission need to be implemented widely, and they must be supported by financial and social programmes that encourage community responses and address the inequities that have been amplified by the pandemic.

The John Snow Memo

We, i.e. the UK, need an effective and trusted track and trace, which we don’t have, thanks to Hancock and Harding. Without it, we are just using sticking plaster to mend a broken leg! …

Crisis in the hospitality business

Crisis in the hospitality business

While it seems people are desperate to get back to the pub, the staff don’t seem so keen. Across the country, pubs and restaurants are having difficulty in recruiting staff. Here’s the BBC, here’s the FT and again, here’s the Manchester Evening News. Even Tim Martin, the arch Brexiteer Weatherspoons boss is complaining. This is another lesson to us about how our economy is out of kilter, essential work is not well paid!

While much of the reporting suggests a desire for a better life work balance, I wonder how much Brexit and the end of Freedom of Movement has to do with this.  …

More nonsense on Bitcoin

The Indy reports on Bailey of the Bank on Bitcoin, who warns, “Cryptocurrency has ‘no intrinsic value’ and investors will ‘lose all your money’, says Bank of England chief” I add, “Bitcoin only works because the ‘proof of work’ is so expensive and time consuming; and its also destructive of the environment due to its useless power consumption. (It’s also very slow, doing 700 TPS, that’s not enough for a business, let alone an economy.) …

We’re all going on a summer holiday … or maybe not

We’re all going on a summer holiday … or maybe not

Will we go abroad for holiday’s this year? Boris, in Hartlepool, says maybe, Shapps says, dig out your passport. We’ll find out on May17th, but it looks as if the Govt will operate a traffic light scheme, requiring returning holiday makers to have a PRC test on return for Green list countries, and 10 day isolation for Amber, and a10 days in an approved hotel stay for Red list countries. Who bears the cost of testing is unclear, who bears the cost of hotel stay is not, it will be bourne by the traveller. I have taken the controls from the another BBC article. So it might be Devon, or Skegness?

Even if we don’t go abroad, are we putting our health in the once struggling NHS track & trace system? …

When 2nd best is actually best!

Another note on proportional representation. We elect MPs for two purposes, to represent us in Parliament and to choose a Prime Minister.

Sometimes the best and most supported answer is a compromise of 2nd bests which only a Parliament can deliver. i.e. the former role is more important.

Opponents of PR, within the LP, have a vision of a Labour Govt., exercising the powers of the elective dictatorship, (presumably without the corruption) ruling on the basis of a minority plurality. This always ends badly.

As other’s have said, the UK’s system i.e. FPTP is little used in democracies, and truth be told, not used in Northern Ireland, Scotland, Wales or London.

PR may or may not benefit Labour or the progressives in the UK, but the UK is a ‘flawed democracy’ and something must change to ensure this kakistocracy is never repeated. …

An unhappy anniversary

An unhappy anniversary

Someone writes to me, “I’m not sure the UK can pat themselves on the back for intentionally looking after themselves, much like the US. Germany also funded research into the Pfizer vaccine but didn’t secure a 1st order before the EU, taking a more Internationalist approach. They’ve also secured their own orders since, probably because of Germans getting fed up with the slow EU roll out. Without the EU a lot of smaller member states would have struggled to get in the queue that’s the difference. Unfortunately now that UK have received plenty but not exported any to EU it’s getting tense and the rhetoric unhelpful. Macron has been an idiot but Merkel and the EMA have not. Good distraction for UK government from world leading death toll and billions wasted on PPE and test and trace. It’s also a good case for saying that the UK should be part of the leadership of the EU then this drama may not have happened.”

To which I added, that the grandstanding and threats by Macron & Von der Leyden has been exceptionally unhelpful; it’s possible that this Commission is the 2nd worse there’s been and for the record, the German’s like us, only seem to put 2nd rate politicians onto the Commission. We don’t need to defend the Commission but should always remember that for vaccines to work, we need people other than those that paid for it to have it. We should also forcefully make the point that vaccines are not enough, it is necessary to have a well functioning, track, trace and isolate programme which the UK does not, with adequate compensation for loss of income from public health compliance.

By saying it’s a vaccine bounce and there’s nothing we can do, we collude with a policy that has led to the highest death total in Europe and a policy which is trying to get people back to the work place irrespective of safety, again! I hope that there is no reason to slowdown or reverse the unlockdown, but it is not planned as a complete reversal even today. …