The State’s Positive Obligations under the ECHR in the context of Irish Prisons

MountjoyWe are pleased to welcome this guest post by Conor Talbot. Conor is a PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin. He can be contacted at


Continue reading The State’s Positive Obligations under the ECHR in the context of Irish Prisons

Business Said Yes! To Marriage Equality – But Will the Circle be Widened?


irelandrainbow_blog_263We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland has voted overwhelmingly to extend civil marriage to same-sex couples. In doing so, it became the first country in the world to pave the way for the introduction of marriage equality by way of a public referendum. It was an historic occasion without question, hugely important for the LGBT community and for the advancement of human rights and equality more generally, and something to be very proud of.

Many factors contributed to the YES vote succeeding – the commitment and enthusiasm of campaigners, a high voter turnout, the #hometovote phenomenon, social media, endorsements from all the political parties, as well as what might be an ever-growing support for human rights and equality more generally by people in Ireland. Another factor that is worth considering was the backing of the YES campaign by a number of businesses, both small and large.

Support for the YES side came from some of the world’s largest social media and technology companies, a great number of which have their European Headquarters in Ireland. This included Google, Microsoft, Facebook and e-Bay. Twitter also backed the YES campaign for marriage equality, with Stephen McIntyre, Managing Director Twitter Ireland explaining that:

Twitter is supporting a Yes vote because of our company’s commitment to inclusion and the strong business case for marriage equality. We encourage other companies to do likewise.

Ben & Jerry’s supported the YES side by rebranding one its ice-creams. The position adopted by many of these multinationals replicates the stance they have already taken regarding marriage equality in the United States, where dozens of companies have argued that recognition of same-sex marriage is a “business imperative”.

It wasn’t just the large multinational companies though. Many small and medium sized enterprises backed the YES vote in Error! Hyperlink reference not valid., by fundraising for the campaign, hosting events or displaying YES posters. The Irish Business and Employers Confederation (IBEC) public stated that support for marriage equality was “good for business, good for employees and good for Ireland”, although the Irish Small and Medium Enterprises Association (ISME) did not come out in favour of a YES vote. For smaller Irish businesses, backing the YES campaign was probably more a reflection of the outlook of owners and staff, rather than a conscientious business-orientated decision (although one small business did suffer for a recent stance against same-sex marriage).

GLEN, the Gay and Lesbian Equality Network, played a key role in getting business on board, with its Business for Yes campaign, and its broader Diversity Champions initiative. It has put forward the business case for diversity in the workplace based on organisational reputation, compliance and risk management, staff performance, retention and recruitment. David McWilliams argued that a YES vote would be good for the economy, given the “strong correlation between tolerance and wealth”. And following the referendum, the Irish Examiner ran a lead story regarding Government plans to tap into the “$200bn gay spend”. There is little doubt that there is a business and economic aspect to the issue.

For a narrowly focused campaigning organisation like GLEN, it would obviously seek to garner support from all quarters in order to advance LGBT equality. Making a business case for marriage equality seems to have made sense in the Ireland of today, but it is highly unlikely that it would have been endorsed by large multinational companies or business representative organisations a few decades ago. It is doubtful also whether such companies would promote LGBT rights so openly in other countries where they operate, and where homophobia is rampant and often institutionalized.

The multinationals which backed YES did so as very large and very public companies, for whom their brand recognition and public image are especially important. They were also backing the right horse to some extent. In a recent New Yorker article, Richard Socarides described the evolution of corporate support for LGBT issues in the United States, and how only a couple of decades ago, there were “very few takers” for Bill Clinton’s gay rights initiatives, as compared with today. A majority of companies in Ireland chose not to take any position on the referendum.

This is not to say that business should not be recruited in the context of advancing particular human rights, but rather that the business approach to social issues is highly selective and subject to business realities. Amnesty Ireland, who firmly backed the YES campaign, have expressed their concern about overstating a business case for human rights:

the business case for respecting human rights is unclear. It is evident that … abusing human rights can be very profitable for companies. Linking human rights with successful business also risks undermining the moral argument that businesses are a part of wider society, and should respect the Universal Declaration of Human Rights.

Companies which backed the YES campaign for marriage equality in Ireland have less than exemplary records in relation to other human rights, including privacy, data protection and the rights of workers in their supply chains. Business representative organisations have almost as a matter of course opposed increases in the minimum wage or enhanced protections for the right to collective bargaining and to strike. On LGBT issues, some companies have advocated for “conscience clause” legislation, which could amount to legally permitting discrimination.

The relationship between business and human rights is a complex one, but few would question the view of the United Nations that companies have a responsibility to respect humans rights. When it comes to business promoting human rights and campaigners making the business case for certain rights issues, we need to be a little circumspect and aware of the limitations of these approaches. Glenn Greenwald has written of the exploitation of social issues, such as LGBT rights, for purposes of militarism and imperialism, and in the aftermath of the marriage equality referendum, it has been said that corporate Ireland will try to “milk a YES vote shamelessly”.

The YES victory was a truly momentous day for Ireland, but we shouldn’t hold our breath in terms of expecting business to voluntarily embrace the full range of human rights and equality issues. The positive progressive image that may have been generated for companies which supported the marriage equality campaign should not deflect from the importance of ensuring that business respect for human rights and equality is a legal requirement, and not a business choice.

Ashers Bakery Loses "Gay Cake" Discrimination Case

gay_cake_reuters-640x480In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan “Support Gay Marriage” from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the “Gay Cake” case which has gripped public debate in Northern Ireland for the last year. Continue reading Ashers Bakery Loses "Gay Cake" Discrimination Case

Engagements, Unions and the Law: the ‘Re-boot of’ Collective Bargaining in Ireland

We are pleased to welcome this guest post by Professor Michael Doherty, Maynooth University.

Whenever a suggestion is made to strengthen the collective bargaining rights of trade unions in the workplace, the cry that ‘the multinationals won’t wear it’ is never far behind. However, Ireland currently has the weakest legal protection for collective bargaining (the rights of workers to have trade unions or representative groups negotiate terms and conditions of employment on their behalf) in the Western world. Even in the USA, employers can be forced to negotiate with trade unions if certain conditions are fulfilled, under laws dating back to the 1930s.

Continue reading Engagements, Unions and the Law: the ‘Re-boot of’ Collective Bargaining in Ireland

Galway International Summer School on the Arts and Human Rights


HeaderThe first Galway International Summer School on the Arts and Human Rights will take place from 9–11 July 2015 in National University of Ireland, Galway.  Co-directed by Prof. Michael O’Flaherty, Director of the Irish Centre for Human Rights and Dr Dominique Bouchard, Curator at the Hunt Museum, it will bring together arts practitioners with human rights activists and scholars to explore their shared space.  Events will take the form of panel discussions, exhibitions and performances.

The global theme for 2015 will be “Belonging”.  The Summer School will consist of keynote addresses, plenary discussions, and themed discussions on three parallel tracks – literature and human rights; the visual arts and human rights; and music and human rights.  The opening speaker will be the United Nations Special Rapporteur for Cultural Rights, Farida Shaheed.

As we have managed to secure funding for the Galway International Summer School on the Arts and Human Rights, we are delighted to announce that the registration fee has now been cut by 50% to €175, fully inclusive of all lunches and refreshments.

We are also inviting the submission of papers, posters, performance, or visual art pieces for the Summer School. A selection of submissions will be invited for inclusion in the peer-reviewed conference proceedings to be published by an international academic publisher in 2016.

To register and for further information, see: 

LLM (International Justice) Now Offered by Department of Law, Maynooth University

Maynooth-University-with-loThe LLM (International Justice) programme is a newly approved degree offered by Maynooth University Department of Law.

Commencing in September 2015, the LLM (International Justice) will be offered to law graduates and graduates of cognate disciplines (e.g. international relations, social studies, sociology, politics, and other inter-disciplinary degrees which have a focus on the international community order). The LLM (International Justice) provides students with critical insights into the international legal system and how it operates to promote and secure justice.  It analyses how the international legal order works and how it seeks to protect vulnerable groups, including minorities, migrants and peoples with disabilities. The programme draws on law and other disciplines, including sociology, anthropology and politics, to provide students with a comprehensive examination of the challenges facing international justice mechanisms today.

Placement opportunities with partner civil society organisations, such as Transparency International (Ireland) will be available.

Teaching is delivered by means of small class lectures, in-class simulations, workshops and masterclasses.

The programme will be accessible to international students from all jurisdictions, as no prior knowledge of the common law is required. The programme will be very attractive to law graduates who wish to specialise in the field of international law and to non-law graduates who may be interested in undertaking a vocational law programme in the future.

Modules Offered Include:

Public International Law, International Human Rights Law, Global Trade Law, The Rights of Minorities and Indigenous Peoples, Globalisation, Migration and the Law, The EU as a Global Actor, International and European Disability Law and Policy, Economic Social and Cultural Rights, Advocacy, Gender, Sexuality and the Law, Dissertation.


Qualification Awarded: LLM (International Justice)

Award Type and NFQ level: Masters (Level 9)

CAO/PAC code: MH64J (fulltime); MH65J (part-time)

Closing Date: 31 July 2015

Programme Director: Dr Noelle Higgins (

Additional Details:

What Makes a Legal Marriage? A Response to the Catholic Church

201411031133092Dr Maebh Harding is an Assistant Professor, School of Law, University of Warwick.

The recent threat by Ireland’s Catholic bishops to refuse to perform the civil aspects of a wedding if the marriage equality referendum is ratified will have no effect on the legal validity of Catholic marriages in Ireland. Parties to a marriage are married to each other when both of them make a declaration in the presence of each other, a registered solemniser and the two witnesses that they accept each other as husband and wife. Refusal by the solemniser to complete paperwork may create unnecessary hassle for the couple and the civil registration service but does undermine the legal validity of a marriage.


If the amendment is carried, the Irish Catholic Bishops will continue to carry out religious marriages but are considering refusing to sign the Marriage Registration Form: a civil form that is returned to the civil registration service as proof of the ceremony. Such a refusal will make it more difficult for couples to obtain civil proof of their marriage but does not affect the marriage’s legal validity. Where the couple has given requisite legal notice and are married by a Catholic priest who is a registered solemniser following the traditional Catholic rites, they are legally married, with or without the completion of a marriage registration form.

Irish marriage law works on the premise that all marriages are legally valid unless certain substantive requirements, the lack of which is declared in legislation to annul a marriage, are not fulfilled. The power to decide whether or not a marriage is legally valid lies in the High Court not the Civil Registration Service. Minor mistakes in protocol such as typographical mistakes on legal paperwork and stuttering over vows have no effect on the legal validity of marriages. Continue reading What Makes a Legal Marriage? A Response to the Catholic Church

Devolution and the Future of the UK’s Human Rights Act 1998

HRAThe Conservative Party’s concept of a “British Bill of Rights” has long rankled in Northern Ireland. Seemingly in the interests of alliteration such fundamental proposals were titled in a way that carried with it thinly veiled disregard for sensibilities in what is supposedly a constituent part of the UK. Not a UK Bill of Rights, but one for Britain. British rights, not Irish rights. Beyond putting noses out of joint, it also spoke to a lack of consideration of the legal framework put in place by the Belfast/Good Friday Agreement. As the Coalition Government’s Bill of Rights Commission had warned (p.15):

[R]espondents, in particular in Northern Ireland …  were also concerned that any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland

Nonetheless, with last week’s General Election victory the Conservative Party stands on the brink of being able to fulfil its manifesto promise:

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.

The latest reports suggest a draft Bill is near ready for release. The appointment of Michael Gove as Minister for Justice suggests that David Cameron is positioning a minister who certainly holds himself out as a public intellectual to lead the debate over this reform. But any thought that Gove’s appointment marks a softening of the Tory position on the Human Rights Act seems wide of the mark. The most prominent appointment in Gove’s ministerial team is Dominic Raab, a vocal opponent of the HRA and a minister intended to assure the right-wing of the Conservative Party that there will be no back sliding on this issue. And indeed, how could there be? If Cameron is to hold the Tory party together in support of his “renegotiation” of the UK’s EU membership, even if this results in insubstantial concessions over the UK’s position, and subsequent referendum, this faction will have to have blood, and quick.

So, in this context, are the implications of repeal for devolution (particularly in Northern Ireland) a genuine stumbling block or wishful thinking? Will a British Bill of Rights have to alter the Good Friday Agreement? Much will depend on the extent of the Tories’ intentions. Gove’s team could unveil plans which just involved the replacement of the Human Rights Act in England. This would negate any need to negotiate with hostile devolved administrations in Scotland or Wales or tamper with the wiring of the Good Friday Agreement. This would certainly save political capital, allowing the Conservatives to portray themselves as responsive to the will of devolved legislatures and to concentrate on getting the legislation into place as swiftly as possible (as it would constitute the fulfilment of a manifesto pledge the Salisbury Convention would also prevent opponents of the proposals from fighting a delaying action through the House of Lords). Doing so might well not satisfy the Tory Party’s right wing, as the Human Rights Act would continue to operate in three of the UK’s constituent countries, but in terms of addressing the demands of Conservative voters in England (the vast majority of Conservative voters) David Cameron could argue that he had fulfilled his pledge to scrap the Bill.

But a new measure which applies only in England doesn’t make for much of a British Bill of Rights. So assuming a proposal is introduced to Westminster with the intention that it should apply throughout the UK, what might happen next? The first difficulty that the UK Government would encounter is that human rights are a devolved competence. The Welsh Assembly Government, for example, has gone some way towards incorporating the UN Convention on the Rights of the Child into Welsh law, imposing a duty upon Welsh ministers to have due regard to the Convention in their decision-making. This means that the Sewel Convention is triggered, by which the devolved legislatures must consent to Westminster legislation that impacts upon their competences (explained here). Furthermore (as Aileen McHarg explains here) the devolved legislatures in Scotland and Wales would be able to re-enact the Human Rights Act’s terms, and would likely do so to thumb their noses at Westminster. In any event, the ECHR would still be able to apply directly to cover legislation and decisions by Scottish and Welsh ministers because of the terms of the devolution legislation.

Which brings us to Northern Ireland, which, as ever, is even more complicated. Under the Good Friday Agreement the UK Government agreed to the ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. The Human Rights Act itself is immune from alteration by the Assembly (s.7(1)(b) Northern Ireland Act 1998). As Aoife O’Donoghue and Ben Warwick argue in a timely article in the Northern Ireland Legal Quarterly (see also here), if the Act was repealed then just as with the other devolved legislatures, ‘Northern Ireland could introduce an order that implements the ECHR for Northern Ireland alone’. The problem is that with the main Assembly parties at loggerheads on rights and equality issues (particularly around the Ashers Bakery case) and with the Unionist parties always ambivalent towards human rights, no such legislation would be forthcoming. Repealing the HRA as it applies to Northern Ireland would therefore undermine a key element of the Agreement. Oddly enough the Human Rights Act was merely intended to fulfil the role of placeholder legislation whilst a Northern Ireland Bill of Rights was drafted, but the inability of the Northern Ireland political parties to reach an agreement over such legislation now means that the Human Rights Act will likely soldier on in this corner of the UK at least.

The smart money would therefore appear to be on some form of compromise by which the Human Rights Act is repealed insofar as England is concerned, but remains in place in the remainder of the UK. Martin Howe QC, a key behind-the-scenes figure involved in drafting the Conservatives’ proposals is quoted in yesterday’s Guardian as saying that ‘you could have significantly different standards of human rights across the UK’. The problems with attempting to impose a British Bill of Rights across the UK, although not insurmountable, would turn a relatively straightforward “win” for the Tories into a protracted fight. Any effort by the Conservatives to go further, and withdraw from the European Convention altogether, would likely descend into a pitched constitutional battle between the UK’s legislatures.

New Policy Paper available on The Legal Implications of a Repeal of the Human Rights Act 1998 and Withdrawal from the European Convention on Human Rights

The UK general election of 7 May 2015 has returned a Conservative government so that the Conservative Party’s plans for reforming human rights law in the United Kingdom are likely to become reality. It is therefore important to discuss some of the legal implications a repeal of the Human Rights Act and withdrawal from the ECHR might bring. This policy paper is the product of a one-day workshop held at Edinburgh Law School on 13 February attended by Ed Bates, Christine Bell, Colm O’Cinneide, Fiona de Londras, Sir David Edward, Alan Greene, Paul Johnson, Kanstantsin Dzehtsiarou and Tobias Lock.

The full document can be downloaded here:
Key findings include: Any attempt to repeal and/or replace the Human Rights Act would have to take into account the devolution settlement. A repeal of the Human Rights Act might require the consent of the devolved legislatures under the Sewel Convention. A repeal would at present run counter to the UK’s international treaty obligations under the British-Irish Agreement which was incorporated in, and agreed as part of the UK-Ireland obligations under the Belfast (Good Friday) Agreement. A new Bill of Rights may require the consent of the devolved legislatures.

If the Human Rights Act were not replaced, individuals would still be able to rely on common law remedies, as far as they exist, as well as the EU Charter of Fundamental Rights in cases in which the UK has acted within the scope of EU law. Hence, in some areas repealing of the Human Rights Act without more will not lead to the ‘regaining of sovereignty’ anticipated by the proponents of such proposals.

A replacement of the Human Rights Act with a British Bill of Rights would enable Parliament to provide for the protection of additional rights, such as a right to trial by jury. It would also allow Parliament to introduce certain procedural changes, such as no longer making it mandatory for courts ‘to take into account’ the case law of the European Court of Human Rights or to read legislation ‘as far as it is possible to do so’ compatibly with Convention rights. It should be noted, however, that the Supreme Court has relaxed the conditions under which courts are required to follow the European Court of Human Rights and that a removal of these requirements could result in an increased number of cases brought against the UK in the European Court of Human Rights.

A complete withdrawal from the European Convention on Human Rights would deprive people in the UK from the possibility of bringing their human rights complaints to the European Court of Human Rights. However, it would not relieve the UK of the duty to comply with judgments already handed down by the European Court of Human Rights, for instance on prisoner voting. The UK would also be setting a negative example so that the protection of human rights within Europe as a whole would suffer. Withdrawal from the European Convention on Human Rights is technically possible with six months’ notice, however it would lead to wider consequences for the UK’s other international commitments. Long-term membership of the Council of Europe may become impossible.A withdrawal from the European Convention on Human Rights may be incompatible with the UK’s commitments as a member of the European Union. Withdrawal from the European Convention on Human Rights could also result in a substantial reduction of human rights protection for minority and vulnerable groups in the UK.

Once More Unto the Breach: General Election 2015 and the future of Human Rights in the UK


Houses of Parliament, London

After what was arguably the least exciting General Election campaign in recent years, Election 2015 sprang into life the minute the polls closed, with a shock exit poll predicting a massive swing towards the Conservatives but falling short of an overall majority. People questioned the accuracy of this exit poll due to its divergence from preceding opinion polls and ultimately, it was inaccurate: it under-estimated the Conservatives’ performance who ultimately emerged with an overall majority.  In this post, I want to outline what this means for human rights in the UK for the next five years. I will focus principally on the judicial mechanisms by which an individual can vindicate his or her rights against the state and the potential changes to these mechanisms. The implications of an in/out referendum on the EU which will, of course have rights implications are beyond the scope of this brief blogpost.


Repeal of the Human Rights Act

The Conservatives’ intention to repeal the Human Rights Act 1998 (HRA) is no secret, constantly referring to it as ‘Labour’s Human Rights Act’ in its manifesto. In terms of the substantive content of the norms to be included in a future Bill of Rights, it is hard to imagine how these would look any different to the norms in the ECHR. For example, the Conservative manifesto places emphasis on the fact that Strasbourg hampered the deportation of ‘suspected terrorists such as Abu Qatada’. The deportation of Abu Qatada to Jordan was delayed after the ECtHR found a breach of Article 6 (right to a fair trial) arising from risk that evidence obtained by torture could be used against him.[1]

A new Bill of Rights would undoubtedly still prohibit torture – a jus cogens norm of international law; however, the degree to which this rights could be vindicated could be significantly watered down thus rendering protection notional. This could be done by, for example, increasing the threshold of proof required of the risk of torture before a deportation could be blocked.

Related changes would be curtailing the extra-territorial applicability of the Convention to British armed forces overseas. The ‘Fog of Law’ report produced by Policy Exchange[2] – and excellently critiqued by Jane Rooney on this site[3] – seems likely to form the basis of this change, in particular seeing as Michael Gove, the new Justice Secretary was a former chairman of that think-tank.

Breaking the formal link between Strasbourg and the Supreme Court

The Conservative manifesto pledged to 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.’

It is difficult to see how this is in any way different to section 2 of the current HRA which obliges UK courts to ‘take into account’ Strasbourg jurisprudence; it does not say that UK courts must follow Strasbourg jurisprudence. The courts’ initial approach to section 2 of the HRA was (for want of a better word) quite conservative, with Lord Bingham famously stating that the duty of domestic courts is to ‘keep pace with Strasbourg jurisprudence as it evolves over time: no more but certainly no less’.[4] UK courts thus would follow Strasbourg jurisprudence unless there were any ‘special circumstances’ not to.[5] However, in recent years, UK courts have appeared much more willing to disagree Strasbourg judgments, for example in areas where the UK courts felt Strasbourg insufficiently appreciated particular aspects of UK domestic law.[6]

The idea of making the Supreme Court supreme is, according to Roger Masterman, misguided as the Supreme Court is not and never was supreme.[7] Ultimately, the final arbiter on rights in the UK is Parliament as is evident from the rather pyrrhic remedy that is a section 4 declaration of incompatibility. Indeed, even where Strasbourg has found provisions of UK law incompatible with the ECHR, such as the absolute ban on prisoners voting, the UK Parliament has chosen simply to ignore this judgment. Plans to recalibrate the balance of power between Parliament and the Supreme Court on one side, and the ECtHR on the other, are therefore based on fixing a problem that does not exist.

While these changes would be damaging to human rights protection in the UK, the ramifications would be felt far beyond. A UK led assault on the ECtHR, an international body already increasingly worried about challenges to its legitimacy, would only give Russian hostility towards the Convention renewed impetus. Russia is also failing to move on prisoner enfranchisement; additionally, it is also in the area of LGBT rights protection in Russia that the damage to the ECtHR’s legitimacy would be severely felt. Furthermore, the UK’s hostility towards the extra-territorial application of human rights protections to its armed forces would, by extension weaken the already remote possibility of holding Russia accountable for involvement in Ukraine.

Changes to Judicial Review

Although plans to scrap the HRA will be the headline-grabbing story, the HRA itself is, of course, not the only mechanism by which an individual can challenge the exercise of a public power. Classic administrative law or judicial review is still the predominant route. Indeed, this has gained renewed attention in recent years following cases such as Osborn v Parole Board,[8] A v BBC,[9] Kennedy v Information Commissioner,[10] and Pham v SSHD;[11] all of which suggested that UK courts are putting a renewed emphasis on common law rights or common law mechanisms of rights protection.

The previous Tory-led government already introduced significant changes in the form of the Criminal Justice and Courts Act 2015 that do not bode well for judicial review for the next five years. In particular, section 84 states that the High Court:

(a) must refuse to grant relief on an application for judicial review, and

(b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Section 84(2) also allows the court to refuse to grant leave to make an application for judicial review if the outcome for the applicant would have been substantially different if the conduct complained of had not occurred.

Initially, these changes were roundly criticised by misrepresenting the function of judicial review.[12] A slight illegality is still an illegality; regardless of the impact on the individual. These changes were slightly watered down by amending the Senior Courts Act 1981 to allow the courts to disregard this if it considers that it is appropriate to do so for reasons of exceptional public interest; however, the aforementioned criticism still stands.

Other changes to judicial review, for example restricting representational standing by changing wording of s31(3) of the Senior Courts Act 1981 from ‘sufficient interest’ to direct interest’ were ultimately dropped following forceful objections raised by charities. Nevertheless, if the view of former Lord Chancellor Chris Grayling that judicial review is a ‘promotional tool for countless left-wing campaigners’ still pervades cabinet, these proposals may again be revisited.

Cuts to legal aid

On a more practical level, an individual’s ability to challenge the exercise of public power is limited by their financial resources. Legal Aid reforms made in the last Parliament were substantial and had a serious impact on access to justice. While some changes were found to be unlawful,[13] reforms in the area of legal aid for criminal cases, introducing a two-tier contracting arrangement that will reduce the number of firms by two-thirds, were found to be lawful.[14] With austerity on the agenda for the next five years, cuts to legal aid may once again be on the cards.

Conclusions: There is a crack in everything; that’s how the light gets in

While all of the above paints a bleak picture, the Conservatives may not have everything their own way. Firstly, repealing the HRA is not as straightforward as it may prima facie appear. The Good Friday Agreement requires rights protections in Northern Ireland to be equivalent to that in the Republic. The HRA was the UK’s primary mechanism in which this obligation was fulfilled and Ireland reciprocated with the passing of the European Convention on Human Rights Act 2003. Any repeal of the HRA will therefore raise questions of international law and possible tensions between London and Dublin.[15] These may be particularly fraught depending upon the outcome of Ireland’s 2016 General Election and subsequent government composition.

Moreover, it is not clear how Scotland or Wales will react to the proposed repeal of the HRA. Scotland is notably less wedded to the infallibility of parliamentary sovereignty. Had Scotland voted Yes to independence, its proposed constitution would have permitted courts to strike down legislation if it was incompatible with the ECHR, thus going far beyond the HRA’s section 4 declaration of incompatibility. Already there have been murmurs from Scotland that plans to repeal the HRA will be met with staunch opposition.[16]

Indeed, even within the Conservative Party, prominent Tory backbenchers such as Kenneth Clarke, Dominic Grieve and Damian Green have been vocal in their support of human rights and may be loath to support repeal of the HRA.[17]

Finally, there is the House of Lords which has, in the recent past, shown itself to be more willing than the House of Commons to defeat legislation on the basis of human rights concerns. The House of Lords was pivotal in blunting some of the harsher proposed changes to judicial review in the Criminal Justice and Courts Act 2015. During the debate on these reforms, Lord Pannick articulated a vociferous criticism of then Lord Chancellor Chris Grayling regarding his attitude towards judicial review and the courts:

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.[18]

Voices like this will undoubtedly become more vocal in the months and years ahead. From a human rights perspective therefore, there is hope. Although the next five years may look bleak, there is, nevertheless a crack in everything; that’s how the light gets in.

[1] Abu Qatada v UK Application no. 8139/09 (17 January 2012)

[2] Richard Ekins, Jonathan Morgan  and Tom Tugendhat, ‘Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat’ (Policy Exchange, 2015) <>

[3] Jane Rooney, ‘Clearing the Fog’ Recommends ‘No Fault’ Full Compensation’ (Human Rights In Ireland, 2 April 2015) < http://>

[4] Ullah v Special Adjudicator [2004] 2 AC 323, 350.

[5] R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23.

[6] R v Horncastle & Others [2009] UKSC 14

[7] Roger Masterman, ‘A Tale of Cometing Supremacies’ (UK Constitutional Law Association Blog, 30 September 2013) <>

[8] [2013] UKSC 61

[9] [2014] 2 WLR 808

[10][2014] 2 WLR 808

[11] [2015] UKSC 19

[12] Mark Elliott, ‘Judicial Review Reform — The Report of the Joint Committee on Human Rights’ (UK Constitutional Law Association Blog 1 May 2014)

[13] Introducing a residency requirement in order to qualify for legal aid was found to be the unlawful exercise of a public power for an improper purpose in Public Law Project v The Secretary of State for Justice and The Office of the Children’s Commissioner [2014] EWHC 2365.

[14] R (London Criminal Courts Solicitors Association) v Lord Chancellor [2015] EWHC 295

[15] CAJ Committee on the Administration of Justice, ‘Clarification of Government Policy on HRA 1998 and Compliance with GFA’ (CAJ 11 May 2015) <>

[16] ‘Tories’ repeal of Human Rights Act will spark constitutional crisis, erode civil liberties – experts’ (RT 11 May 2015)

[17] Alan Travis, ‘Grieve, Clarke and Green were last protectors of our human rights laws’ (The Guardian 15 July 2014)

[18] Lord Pannick, House of Lords Criminal Justice and Courts Bill Debate, 21 January 2015.


Image credit: Pedro Szekely (2004)