Weekly Update 01 July 2022
Weekly Update 01 July 2022
Public debate about the role of courts in protecting human rights has become increasingly bitter in both the UK and the USA in recent weeks.
A particular approach to the interpretation of rights guarantees - the "living instrument" doctrine, which judges use to interpret rights in the light of contemporary social norms -has come under fire in both countries. In the UK, the Government argues that it has led the Strasbourg Court to be too generous in its interpretations of ECHR rights. The Government's Bill of Rights Bill is designed to roll back such decisions in UK law. In the USA, the Supreme Court dramatically reversed one of the most important applications of the doctrine last week when it overruled the 1973 decision in Roe v Wade that recognised a right to abortion.
Living instrument approaches are not immune from criticism - like any doctrine, they can be wrongly applied. But the complete rejection of such approaches is too extreme. It denies the complex ways in which living instrument interpretations are embedded in both jurisdictions, and the many valuable contributions they have made. The US Supreme Court has expanded the protection of numerous rights over time, not least the First Amendment right to freedom of speech, which became much stronger after the First World War, and the Court's willingness to change its interpretation of equality in Brown v Board of Education (1954) was a vital step in beginning the dismantling of racially segregated education in the South. In UK case law, the history of the doctrine can be traced back at least as far as the "living tree" approach adopted by the Privy Council when it interpreted the Canadian constitution in 1929 to advance gender equality. In the European Court of Human Rights, the living instrument approach has been essential to decisions on fundamental issues such as decriminalising homosexuality.
Parliaments, and the Executive branch of government, should act in a responsible and balanced manner when they engage with judicial doctrines. Unfortunately, last week's US Supreme Court decision follows years of increasing politicisation of judicial nominations and confirmation proceedings in the Senate, where President Trump in particular made no secret of wishing to overturn decisions such as Roe and aligned his administration with the originalist movement in legal interpretation. In the UK, Parliament does not examine candidates for judicial office, but the way in which the Government has framed the judicial use of living instrument doctrines as a fundamental threat to Parliament's legislative role is not encouraging.
The Bill of Rights Bill has yet been voted on in Parliament, and the Bingham Centre is still working on an analysis which we hope to publish before this stage is reached in the House of Commons. Our Research Fellow, Katie Lines, spoke about the Bill at a conference last week marking the 75th anniversary of the Universal Declaration of Human Rights.
This week saw the House of Commons debate another Bill which we recently analysed, the Northern Ireland Protocol Bill. As we describe in this Update, the House of Commons voted by a margin of 294 to 222 to give the Bill its second reading, despite strong criticism from many MPs concerned about its breaches of international law.
This Update also brings you news of our activities in the field of public engagement and education on Rule of Law issues. In partnership with the organisation EachOther, the Bingham Centre has published a series of five videos on the Rule of Law aimed at young people. Readers are reminded that there is still time to participate in our survey for the EU Committee of the Regions on youth engagement in local and regional democracy, which closes on 3 July 2022).
We bring you news of the latest activities of the Modern Slavery and Human Rights Policy and Evidence Centre, which is led by the Bingham Centre: a podcast on improving equality, diversity and inclusion in modern slavery research; a blog on public procurement strategies and an invitation to a workshop which we will be hosting on building partnerships between academics and NGOs (18 July, now open for registrations).
We also report on recent events organised by Bingham Centre members, including the launch of the new Routledge Handbook of Law and the COVID-19 Pandemic, where the barrister and public legal commentator Adam Wagner spoke alongside the book's editors, Joelle Grogan and Alice Donald of Middlesex University. Bingham Centre Senior Fellow Dr Julinda Beqiraj organised this event, and also a high-level webinar on recent breakthroughs in WTO negotiations: Global Governance at a Crossroads: Finding Solutions to Challenges Facing the Multilateral Trade System (link includes speaker information and video recording).
As previously advertised, we also invite readers to register for a conference on current issues in trade law, organised by the Bingham Centre's Dr Julinda Beqiraj, The 22nd BIICL Annual WTO Conference. Climate Change: Border Carbon Adjustment (BCA) Approaches and the WTO (15th July).
You can read the whole Weekly Update here.