Transnational Anti-Judicial Dialogue

by Adil Haque

Tony Blair is considering calling for restrictions on the U.K.’s landmark 1998 Human Rights Act, which incorporated the European Convention on Human Rights into national law. Apparently, (i) rogue judges are (ii) using international law to (iii) put criminals back on the streets, (iv) ignore the rights of victims, and (v) endanger national security. I can’t imagine where Blair, whose popularity and party standing are so low as to call into question his ability to remain in office, could have picked up his judge-bashing rhetoric.

I’m still unclear exactly how the two triggering events — a murder by a paroled rapist and the grant of asylum to some Afghan refugees who hijacked a plane to escape the Taliban — implicate the Human Rights Act. The former seems the result of penal policy and the inevitability of future offenses by some parolees. The latter I would expect to result, if not from domestic immigration policy, then from international conventions on refugees and torture rather than the ECHR. If readers can shed some light on U.K. law in these areas I would be most grateful.

In any event, the story is available here and here, with analysis here.

http://opiniojuris.org/2006/05/16/transnational-anti-judicial-dialogue/

3 Responses

  1. As to the first case, the killing of a woman by Anthony Rice, a convicted rapist, I have not been able to find a superior court case. I therefore tend to assume that he was not set at liberty following any remarkable reading of the Human Rights Act 1998. As the post says, it therefore appears that the murder was merely the unfortunate consequence of a simple application of the law.

    As to the second case, the ruling by Mr Justice Sullivan in favour of the Afghan hijackers, I still doubt whether the judge made the exact ruling that the press – especially the conservative Telegraph – attribute to him.

    But it is true that the European Convention prohibits the expulsion or extradition of a person to another country where the person concerned would as a result face a risk of being tortured on arrival. There is no provision in the Convention directly to this effect, but the prohibition of torture was long ago held to extend to such a rule: see Soering v. United Kingdom (1989), a judgment of the European Court of Human Rights.

    The same court ruled in 1996 that the prohibition of expulsion or extradition in such a case waa as absolute as the prohibition of torture in any other circumstances, so that the risk of torture could not be balanced against the beneficial effects of the expulsion for the country at large: Chahal v. United Kingdom.

    Even if this latter rule might be subject to criticism (which I would not share), the repeal or amendment of the Human Rights Act 1998 would not help at all. All this would do would be to require anyone with a human rights claim to go to the European court. The only thing new about the Act was that it allowed British courts to apply the Convention, which was in any event binding upon the Uk under international law, under the supervision of the European Court of Human Rights.

    Incidentally, much the same obligations are in place for the United States, following from the – largely identical, and, if anything, more extensive – International Covenant on Civil and Political Rights.

    The only differences are that the international supervision in the case of the Covenant, i.e. that by the UN Committee of Human Rights, results only in non-binding decisions, and that the Covenant cannot be applied by US courts on account of its non-self-executing nature (Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir., 2003))

  2. Please see this on Anthony Rice.

  3. Have done. Thank you very much.

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