People should, as ever, be careful what they wish for. Here I must stray a little into politics and, in doing so, I realise that I skate on thinner ice. A note re the convention and the EU seems appropriate.
The Council of Europe is responsible for the human rights convention. However, the EU has its own Court of Justice which has adopted what it refers to as fundamental principles of law. Included in those principles are rights within the European Convention on Human Rights. I am slightly puzzled by the above extract. If the EctHR is not the final court of appeal for our own courts then what is its purpose? If our domestic courts issue a perverse ruling on a human rights matter and all domestic remedies have been exhausted then can not the appellant take the case to Strasbourg?
If Strasbourg finds for the appellant even after allowing for a margin of appreciation then is not the ECtHR de facto a court of appeal?
As to your first question, arguably the European Court of Human Rights should not be an appeal court which sits above our own Supreme Court.
If it was, then it would be come effectively a European federal appeal court. Instead, goes the argument, it should only taken on cases of fundamental importance.
See the part on subsidiarity in the Bill of Rights commission advice linked to in the post. Second question — the courts need to take decisions into account, Parliament has to abide by them. So when deciding a human rights case in the UK, judges need not follow Europe.
That is a point of legal principle. Parliament, however, need to abide by the rulings by, for example, giving some prisoners the right to vote. You must log in to post a comment.
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It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole. You must be logged in to post a comment. But can it? Share: Email Tweet. Like this: Like Loading Log in to Reply. John Hirst Jailhouselawyer says:. FatherDougal says:. ObiterJ says:.
FatherDougal points to what he sees a fallacy. Hope this addresses the apparent fallacy!! The convention and its related institutions were regularly confused as being part of the EU during the referendum debates. Though the UK is due to leave the EU , it is not leaving — and does not necessarily have to leave — the Council of Europe.
While the EU is concerned with matters such as the single market and free movement of people, the council addresses issues in relation to human rights and the rule of law. History tells us that in the aftermath of World War II the convention was actually partly written by the British.
Britain was not just a supporter of the convention, but a leader in co-drafting the rules, and ensuring greater enforcement at a supranational level, via the European court.
Two key changes are provided for in the European Union Withdrawal Act and related legislation. The UK courts, including the Supreme Court, may have regard to the Luxembourg Court's decisions if relevant, but they are not generally obliged to follow them. The Supreme Court and some other UK appellate courts are also free to depart from decisions of the Court of Justice of the European Union taken before 11pm on 31 December Listen to RFI Applications.
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