Human Rights: A Post Election Analysis

Michelle FarrellUniversity of Liverpool

Human Rights: Possibilities and Problems for Labour LawIER, 21 October 2015

British Bill of Rights:(according to the Tory proposals)

Repeal the HRA Keep the text of the Convention Clarify the Convention rights and responsibilities

Meaning new interpretations? Break the link btw Supreme Court and Strasbourg End ability of Strasbourg to force UK to change laws Limit app to “most serious cases” End judicial interpretation Curb extraterritorial reach

Resulting in:(according to the proposals)

“The European Court of Human Rights is no longer binding over the UK Supreme Court.

The European Court of Human Rights is no longer able to order a change in UK law and becomes an advisory body only.

There is a proper balance between rights and responsibilities in UK law.”

RationaleStated

“Mission Creep”

Undermining of British judges

Undermining of parliamentary sovereignty

Unaccountable judges – democratic deficit

What else is going on?

Curtail national judges

Distinction between human and (British) citizen

+ National turn

“Labour’s” human rights act

Legislative Intentions Counter-terrorism Immigration Unions ...

Austerity

The European Court’s supervisory function

Art 46:(1): “The High Contracting Parties undertake

to abide by the final judgment of the Court in any case to which they are parties;”

(2) The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

The Human Rights Act makes it unlawful for a public authority to act in a way which

is incompatible with a Convention right ($6)

makes specific provision for the compatibility of primary legislation with Convention rights:

“So far as it is possible to do so” primary legislation (and...) must be read and given effect in a way which is compatible with Convention rights ($3)

Empowering courts to “make a declaration of ... incompatibility”, if “the court is satisfied that the provision is incompatible with a Convention right” ($4)

Declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”.

End of the “Age of Enlightenment”?

Repeal

Legislature retains last word (no change)

Bill of Rights specifies content of all rights (unlikely)

Judges “return to” literal interpretation

& the common law only In full knowledge that

applicants will head to Strasbourg

Continue to give content to rights (entrenchment arg)

Dialogue v Confrontation

Without withdrawal

Strasbourg Retains supervisory function

And relatively weak legal position

Continues to hear petitions from UK applicants

ECtHR’s deferential approach may end

Human Rights and Labour Law

Covenant on Economic Social and Cultural Rights: Right to work (Art. 6) Right to ... just and favourable conditions of work (Art 7) Right to form...and join trade unions + right to strike (Art

8)

European Convention: Freedom of Assembly (Art 11) Prohibition of Slavery etc (Art. 4) Social “right to work”, or attendant work issues, in Arts. 6,

8, 9, 10

Covenant on Economic and Social

Not incorporated

“progressive realisation”

Little interpretation

Strategic approach to IESCR:

Individual Petition State party reports Universal periodic

review

Art 11(National Union of Belgian Police v Belgium, 75) Right to form and join TU of one’s choice Right to be heard and “freedom to protect ... occupational interests of

trade union members by trade union action...”

(Wilson v UK, 02) NB of Collective bargaining but wide Margin of App representation + right to strike

(Demir and Baykara v Turkey, 08) Right to bargain collectively

Also, Enerj v Turkey, 09 on strike action

But National Union of Rail v UK, 14...

Possibilities and Problems European Court and Article 11: “integrated approach to interpretation” → Return to deference/wider margin of appreciation:

acceptance of criticism

With a British Bill of Rights → A bolder Strasbourg?

Is change really afoot?

Sources used K. D. Ewing, ‘Doughty Defenders of the Human Rights Act’ in Nicolas Kang-Riou, Jo Milner and Suryia

Nayak, Confronting the Human Rights Act: Contemporary Themes and Perspectives (Routledge, 2012). K.D. Ewing and John Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law

Journal 2. K. D. Ewing, Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (Oxford University

Press, 2010). K. D. Ewing, ‘The Unbalanced Constitution’ in Tom Campbell, Keith D. Ewing and Adam Tomkins, Sceptical

Essays on Human Rights (Oxford University Press, 2001). Sandra Fredman, ‘Scepticism under Scrutiny: Labour Law and Human Rights’ in Tom Campbell, Keith D.

Ewing and Adam Tomkins, Sceptical Essays on Human Rights (Oxford University Press, 2001). Conor Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human

Rights’ UK Const. L. Blog (13th November 2014). Jannecke Gerards and Joseph Fleuren (eds.), Implementation of the European Convention on Human

Rights and of the Judgements of the ECtHR in National Case-law: A Comparative Analysis (Intersentia, 2014).

Michael Gordon, Parliamentary Sovereignty in the UK Constitution (Hart, 2015) Robert Knox, ‘Law, Neoliberalism and Political Subjectivity: The Case of Organised Labour’ Unpublished

forthcoming Book Chapter (on file with me) Roger Masterman, ‘The United Kingdom’ in Jannecke Gerards and Joseph Fleuren (eds.), Implementation

of the European Convention on Human Rights and of the Judgements of the ECtHR in National Case-law: A Comparative Analysis (Intersentia, 2014).

Elizabeth Stokes, ‘HRA Watch: Reform, Repeal, Replace? Prisoners’ Rights in Context: What Future under a British Bill of Rights?’ UK Const. L. Blog (20th Jul 2015)

Adam Tucker, ‘HRA Watch: Reform, Repeal, Replace? The Anti-Democratic Turn in the Defence of the Human Rights Act’ UK Const. L. Blog (6th Jul 2015).