Weekly Update 18 March 2022

Weekly Update 18 March 2022

Dear Friends,

In a development with truly momentous implications for the post-War European architecture designed to uphold the Rule of Law, democracy, and human rights across the continent, Russia was expelled from the Council of Europe this week. Following an extraordinary debate in the Parliamentary Assembly, culminating in an Opinion that Russia should cease to be a member of the organisation set up after World War II "to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage", the Committee of Ministers acted decisively to exclude Russia with immediate effect.

The reason for this unprecedented decision was that Russia's aggression against Ukraine constitutes a serious violation of its obligations under Article 3 of the Statute of the Council of Europe to accept the principles of the Rule of Law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and to collaborate sincerely and effectively in the realisation of the Council of Europe's aims.

The enormous implications of this seismic development for the future of the Council of Europe, and collective European efforts to uphold the Rule of Law, democracy, and human rights, are considered in excellent analyses by Professor Philip Leach and Professor Rick Lawson. In a piece in Project Syndicate, our Director Murray Hunt argues that Russia's illegal war of aggression against Ukraine reveals both the fragility of the international Rule of Law, as well as the world's dependence upon it for international peace, security, and prosperity. This should be the moment, he argues, when States which aspire to global Rule of Law leadership should step back from undermining the international Rule of Law by renewing their commitment to abiding by international obligations and starting the long and patient work of rebuilding it, beginning with the creation of a Special Tribunal for the prosecution of the crime of aggression against Ukraine. A public petition calling on world leaders to create such a tribunal has already attracted almost three-quarters of a million signatures.

Russia's war in Ukraine has created a refugee crisis in Europe. The UN Refugee Agency (UNHCR) reports that the number of displaced persons reached over 3 million this week. Following criticism of the UK Government's slow response, it has now established a policy whereby UK citizens can host named Ukrainian refugees. Despite this, concerns remain that the Government may seek to reinstate provisions before the House of Commons in the Nationality and Borders Bill which were removed by the House of Lords for "flying in the face" of the 1951 UN Refugee Convention.

Poland finds itself on the frontline of the crisis, and the EU institutions have praised its generous response. However, hopes that this may ease the Rule of Law crisis have taken a blow from the Polish Constitutional Tribunal's latest challenge to European legal obligations. On 10 March, the K 7/21 judgment found that recent interpretations of Article 6 of the European Convention on Human Rights on the right to a fair trial by the Strasbourg court were incompatible with the Polish constitution. The decision follows the first ruling that aspects of Article 6 ECHR were unconstitutional in the November K 6/21 judgment, in which the Polish Commissioner for Human Rights put before the Tribunal an expert analysis requested from the Bingham Centre.

It is worth recalling that Russia started down this path when its constitutional court assigned itself a similar power to assess the compliance of ECtHR judgments in 2016. This should also be borne in mind when considering the UK Government's proposals for reform of the Human Rights Act 1998, which explicitly contemplate the possibility of a so-called "democratic shield" against judgments of the European Court of Human Rights, as recently analysed by our Research Fellow Katie Lines for RECONNECT.

This Update reports on the Bingham Centre's recent activities relevant to these topics, including the House of Lords' latest reading of the Nationality and Borders Bill and our ongoing engagement through the Rule of Law Monitoring of Legislation Project, the publication of RECONNECT educational materials on migration in Europe, and a podcast on the recently validated EU mechanism to withhold funding in the event of Rule of Law breaches. We also bring news - in the week that the UK Government has introduced the Online Safety Bill - of the publication of written evidence on the right to privacy submitted to the House of Commons Science and Technology Committee, the latest updates from the Modern Slavery Policy and Evidence Centre, and an upcoming event on lessons for the post-pandemic future.

You can read the whole Update here.