Case Comment: R (Chester) v Secretary of State for Justice; McGeoch v The Lord President of the Council & Anor

Anja Lansbergen

The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.


Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002. Continue reading

A Trojan Horse? Challenges to the Primacy of EU Law in the Draft Agreement on Accession to the ECHR

Daniel Thym

Debates about human rights have been instrumental in forming the EU legal order as we know it today. In the Solange saga, judges in Luxembourg went some length to ‘discover’ human rights as unwritten general principles in order to fend off challenges to the primacy of Union law by the Bundesverfassungsgericht. At the time, the case-law often limited itself to abstract declarations of intent without fully giving teeth to human rights in practice. Only recently, the newly drafted Charter of Fundamental Rights seems to have motivated the European Court of Justice (CJEU) in Luxembourg to change course. Ever since the Lisbon Treaty came into force, the judges actively explore the human rights dimension of most cases. Against this background, the forthcoming accession of the EU to the European Convention on Human Rights (ECHR) can be described as the culmination of a long process which will finally embed the EU into the pan-European human rights architecture. In future, the EU will be officially bound by the ECHR in the same way as Member States and be subject to the jurisdiction of the European Court of Human Rights (ECtHR) in Strasbourg.

I applaud the EU’s accession and I am optimistic that it will foster the credibility of both the Convention system and the EU legal order. But accession is not only a grand political project. It has a technical dimension which raises a number of delicate legal issues. The sheer complexity of the undertaking is illustrated by the voluminous Draft Accession Treaty which comprises 12 articles together with an extensive explanatory report of no less than 20 pages. It completes 3 years of protracted negotiations during which the Commission had to convince, among others, Russia and Turkey that the EU’s byzantine legal and institutional structure required special rules and procedures. It was quite successful – and yet the Draft Accession Agreement provokes a couple of questions, bringing us back to the original challenges to the primacy of Union law, which the CJEU has always been eager to deter. It might do so again: just before the summer recess, the European Commission referred the matter to the CJEU in Luxembourg, in Opinion 2/13 whether the Draft Accession Agreement falls foul of the EU Treaties. Continue reading

Confusing the protection of human rights in Europe – Strasbourg v Luxembourg? Part 2.

Aidan O’Neill QC

In part 1 of this series of posts, EUtopia law examined the problems created by the existence of two distinct means of reference to fundamental rights, either under direct reference to the ECHR or under reference to the general principles of EU law. This post evaluates possible solutions to this problem.

An opportunity for a possible resolution of the divergence problem arose following the 1996 decision of the Court in Bosphorus (C-84/95) where the CJEU held that the impounding of an aircraft by the Irish authorities acting under an EC regulation introduced to enforce UN sanctions against the former Yugoslavia did not contravene the respect for property rights recognised under EU law. The aircraft owners then took their case to the ECtHR. After a hearing, in which the European Commission was permitted to intervene as an interested party, the Strasbourg Grand Chamber pronounced judgment in June 2005. In its judgment in Bosphorus v Ireland (App no.45036/98) the ECtHR came to the same substantive result as the CJEU on the fundamental rights argument in holding that the detention and retention of the aircraft was indeed compatible with the State’s obligations under ECHR, art 1 Protocol 1. In reaching this decision the Strasbourg Court addressed and attempted to resolve the issue of the possibility of divergence between human rights interpretation and protection as between the two courts by applying a presumption that the CJEU offered equivalent fundamental rights protection to that afforded by the ECtHR and so that Member States could not be found to be in breach of the ECHR if and insofar as they were (properly implementing) EU law in accordance with the fundamental rights guarantees protected by the CJEU.

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