'What has the ECHR ever done for us?’: The particular and specific importance of the convention in protecting rights across a democratic Europe

The European Convention on Human Rights (ECHR) was recently described by Hogan J. as having ‘long been a favourite of the law and our constitutional order’. The importance and value of the Convention is generally acknowledged in Ireland, even as it comes under increasing criticism elsewhere. However, recent case-law has raised issues about the exact nature of the relationship between the Convention and Irish law. In addressing these issues, it is necessary to consider wider questions about the legitimacy of the Convention system of rights protection, and to identify the very real ‘added value’ it provides to well-established national mechanisms for upholding rights, democracy and rule of law

Steering the Ship of State: Fundamental Rights, State Power and Janus-faced Constitutionalism

This paper makes three arguments. Firstly, the rights-based constitutionalism that has emerged in the wake of cases such as Brown v Board of Education and the ‘Rights Revolution’ is formally analogous but substantially different to earlier, more ‘classical’ forms of negative constitutionalism: it can be seen as a mutated form of the earlier template. Secondly, a key element of the difference between classical negative constitutionalism and rights-based constitutionalism is the ‘Janus face’ that it adopts to state power: it combines elements of classical negative constitutionalism with the periodic positive embrace of state power where necessary to deliver on its professed ambitions. Thirdly, this form of constitutionalism aims towards the achievement of a ‘total constitution’, whereby the exercise of state power is steered in all its aspects towards rights-friendly goals. These aspirations are reined in by the inherent indeterminacy of rights review, its inevitably limited impact and ultimately by its complex and contested relationship with popular sovereignty. However, perhaps ironically, these limits ultimately serve to lend strength to rights-based constitutionalism. By steering the exercise of state power towards giving effect to human rights, it places a considerable burden of justification on those who wish to push back against this direction of travel

Concerns And Ideas About The Developing English Law Of Privacy (And How Knowledge Of Foreign Law Might Be Of Help)

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Saying ‘No’ to Strasbourg: When Are National Parliaments Justified in Refusing to Give Effect to Judgments of International Human Rights Courts?

This paper critically analyses the normative strength of claims that national authorities – and in particular national parliaments - would be justified in refusing to give effect to judgments of international human rights courts (IHRCs) with which they are in substantive disagreement, and the related argument that a ‘democratic override’ mechanism should be built into all strong international human rights law (SIHRL) frameworks to give adequate legal recognition to this ‘right to disobey’. It examines the strength of the ‘democratic constitutionalist’ critique of IHRCs that underpins these arguments, and concludes that national parliaments will only be justified in refusing to give effect to judgments of IHRCs in exceptional circumstances. As a consequence, there exists no compelling reason to destabilise existing SILs to accommodate the rare instances where such national ‘disobedience’ will be justifiable. These arguments are developed with particular reference to the European Convention of Human Rights (ECHR), the best-developed SIHRL framewor

Campaigning against workplace ‘sexual harassment’ in the UK:Law, discourse and the news press c. 1975 – 2005

This article examines how and in what ways workplace ‘sexual harassment’ achieved social and legal recognition in the UK news press following its importation from North America in the mid-1970s. It assesses the role of feminist campaigners working within institutions (trade unions, human rights advocacy, the Equal Opportunities Commission and journalism itself) in shifting public discourse and in using the media to educate and promote social change. We demonstrate that the trajectory was far from a linear progression. Initial hostility within the popular press in the early 1980s was replaced with sympathetic coverage across the party-political spectrum by 1990. However, this consensus broke down in the 1990s as a result of politicised and polarised coverage of a series of claims brought by women in the services and armed forces against the backdrop of debates about ‘compensation culture’ and membership of the European Union. Whilst change was effected at the level of employment law, formal practice and in the human resources policies of larger employers, ‘sexual harassment myths’ were resilient as a thread within ‘everyday cultural discourse’ and, by implication, within informal workplace cultures

Democracy, Sovereignty and Europe

Fifty years after Ireland and UK joined the EEC together in January 1973, the two states find themselves on radically different European trajectories. Both are common law countries with shared traditions of parliamentary governance and strong cultural links to the wider Anglosphere. However, in Ireland there is broad elite and popular support for maintaining alignment with the requirements of EU and ECHR law – while, in the UK, such European influences trigger a sharp allergic reaction. What explains this dramatic divergence? The answer perhaps lies partially in the differing ‘constitutional imaginaries’ of Ireland and the UK, and how EU and ECHR alignment is understood to impact on the exercise of popular sovereignty in both states.</p