Beyond the European Convention: Human Rights and the Common Law

I gave a Current Legal Problems lecture in March concerning the relationship between common-law constitutional rights and the system of rights protection that obtains under the Human Rights Act 1998 and the European Convention on Human Rights. I have now finished work on the article version of the lecture. The full text of the article can be downloaded here, via SSRN. Continue reading

RightsInfo — Facilitating Reasoned Debate about Human Rights

Reasonable people can and do differ about the extent to which human rights should be protected by courts, and the extent to which questions about rights are ultimately issues of policy that should be reserved to democratic, political institutions such as Parliament. (However much one might disagree with him, Lord Sumption JSC — who has expressed conservative views about the role of the courts in relation to human rights — is surely a reasonable person.) And in the UK (or any other Council of Europe member state) reasonable people can and do also differ about how the judicial task of upholding human rights — to the extent that that ought to be a judicial task — should be shared between national judges and the European Court of Human Rights.  Continue reading


Are the Conservatives still contemplating withdrawal from the ECHR?

I wrote a few days ago about the treatment of human-rights policy in the Conservative Party’s 2015 election manifesto. In that post I noted that there was no mention of the radical plans set out in a paper published by the Party in late 2014. It envisaged radical changes in the relationship between the UK and the Council of Europe, suggesting that UK courts should be told to depart from ECtHR case law in certain areas, that UK courts should no longer be required to take account of that case law, and that the UK should treat Strasbourg judgments as “advisory” rather than (as they actually are) legally binding. The paper went on explicitly to acknowledge that these proposals may be incompatible with the UK’s international obligations under the ECHR and that it might be necessary for the UK to cease to be a party to the Convention. Continue reading


#PublicLawExam 2015 — For those with upcoming exams in Public Law

Over the next month, with those who have upcoming exams in Public Law in mind, I will be tweeting advice, key developments and links to recent cases, articles and blog posts. I will also (probably every few days) add those tweets and associated links to this page. I’ll be using the hashtag #PublicLawExam. You can find me on Twitter as @DrMarkElliottContinue reading


Proportionality and contextualism in common-law review: The Supreme Court’s judgment in Pham

The recent decision of the UK Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19 marks a turning-point in the role of proportionality as a common-law ground of judicial review. Although the case did not ultimately turn upon proportionality, the judgments contain detailed discussion of the doctrine, and evidence judicial support for its availability as a ground of judicial review irrespective of whether the case has a European Union or ECHR dimension to it. And while this judgment does not come out of the blue — other cases have hinted at this development — Pham is particularly explicit and direct. In this way, it arguably represents a landmark in the emergence of proportionality as as common-law head of review. Continue reading

Human Rights and the Conservatives’ Manifesto: Four Comments

The Conservative Party published its manifesto earlier today. It contains two principal statements about human rights law. Page 60 includes the following passage:

We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.

Meanwhile, the following is to be found on page 73:

We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.

Against this background, four points are worth making.  Continue reading


Of Black Spiders and Constitutional Bedrock: The Supreme Court’s Judgment in Evans

The legal saga concerning the “black-spider memos” that Prince Charles is in the habit of sending to Ministers, inflicting upon them his often-eccentric views, is a long one. It has its origins in freedom-of-information requests issued to several Government departments by a Guardian journalist. Disclosure was sought of “advocacy correspondence” — that is, letters setting out Charles’s views about matters of public policy — sent to the relevant Departments by Charles in the mid-2000s. Today, such requests would be doomed to failure, since section 37 of the Freedom of Information Act 2000 was amended in 2010 so as to render communications with the heir to the throne absolutely exempt from disclosure. However, that amendment does not bite upon the correspondence that is the subject of the present proceedings. In a path-breaking decision issued in 2012, the Administrative Appeals Chamber of the Upper Tribunal ordered the release of the letters, holding that the constitutional role of the heir to the throne was not such as to generate a public-interest justification for withholding them. Continue reading

The Cambridge Companion to Public Law

Companion coverThe Cambridge Companion to Public Law, which I am editing with David Feldman, will be published later this year. In the meantime, we have posted the editors’ introduction to SSRN; a copy can be downloaded here.

The book examines key debates and issues in contemporary public law. In particular, it identifies and draws out five key themes: the notions of government and the state; the place of the state and public law in the world at large; relationships between institutions and officials within the state; the legitimacy of institutions; and the identity and value of public law in relation to politics. The book presents a contemporary examination, taking account of the substantial changes witnessed in this area in recent decades and of the resulting need to reassess orthodox accounts of the subject. We are pleased to have secured contributions from a range of leading authorities in the UK and other common-law jurisdictions. The books aim to serve both as an accessible introduction and as a collection that consciously moves the discipline forward.

Report of Political and Constitutional Reform Committee on Proposed Scotland Bill

I have written before about the recently published Draft Clauses that would form part of a new Scotland Bill, the purpose of which would be to implement proposals made by the Smith Commission concerning further devolution to Scotland. The House of Commons Political and Constitutional Reform Committee — to which I gave evidence on this matter — has now published its report. Continue reading


An Introduction to Public Law by way of the Anisminic Case

I gave a lecture at the Cambridge Sixth Form Law Conference earlier today on Public Law. I used the Anisminic case to explore the nature of the UK’s constitutional arrangements — in particular, what makes them distinctive — and the uncertainty inherent in the relationship between key constitutional principles such as the sovereignty of Parliament, the rule of law, and the separation of powers. The slides — which will be useful mainly to those who attended the lecture — are below. For those who wish to read further, I suggest the first chapter of Elliott & Thomas, Public Law (OUP 2014, 2nd ed), which can be read online free of charge. (The judgments in the Anisminic and Jackson cases can also be accessed online, although neither is a particularly easy read.) Continue reading