Timothy Endicott on Human Rights Adjudication in the 21st Century

What are you doing at 6:00 PM (ET) on Monday, November 14, 2011? If you’re in Toronto, consider coming to Fraser Milner Cagrain at 77 King Street West to hear Human Rights Adjudication in the 21st Century, a talk by Timothy Endicott, Dean of the Faculty and Professor of Legal Philosophy (for Lawyers and Non-Lawyers alike)

The timetable is 6pm Wine and Cheese Reception, 6.45pm Talk and Discussion. $20 at the door but please let us know if you’re on the fence so we know how many to cater for. Here is the log-in.

Timothy Endicott is a Canadian lawyer who has been (the first) Dean of the Faculty of Law at Oxford since October 2007. He is a Fellow in Law at Balliol College, and has been a Professor of Legal Philosophy since 2006. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation.

He is the author of Vagueness in Law (OUP 2000), and Administrative Law (OUP 2009). After graduating with the AB in Classics and English, summa cum laude, from Harvard, he completed the MPhil in Comparative Philology in Oxford, studied Law at the University of Toronto, and practised as a litigation lawyer with Oslers in Toronto.

Twenty bucks will get you the reception and Timothy’s talk. Register here. While initially aimed at Oxford and Cambridge graduates, others

The issue he’ll be discussing is very hot in England. Are human rights ultimately a matter of domestic law or community law? And are they a matter for Parliament or European judges?

Those who’ve been following the recent legal news will have seen the remarkable disagreement between Dominic Grieve the Attorney General and the Home Secretary Theresa May on the role of the Strasbourg Court, with reference to a tabloid created fictitious story about a refugee claimant who established a claim by having a cat in the family. Grieve will be arguing before the full court in the Italian prisoners’ voting case. He gave a remarkable (and by North American standards nuanced and articulate) speech at LIncoln’s Inn. Ed Bates has a good blog commentary here.

The primary responsibility for guaranteeing and protecting human rights within a country rests with that country’s own institutions – its government, its legislature and its courts.

That is a long-accepted principle of human rights law. When the European court decides that a state has denied rights to individuals within its jurisdiction, the state itself is responsible for deciding how to repair the breach.

Subsidiarity was the theme of a lecture delivered at Lincoln’s Inn on Monday night by the attorney general, Dominic Grieve. As he explained the term, it means that the primary responsibility for guaranteeing and protecting human rights within a country rests with that country’s own institutions – its government, its legislature and its courts.

It is also at work in the “margin of appreciation”, which is the latitude – or room for manoeuvre – that governments are given when securing human rights. As the European judges often say, they are less well placed than a country’s own authorities to evaluate its needs.

This week, though, the British government has subtly extended the meaning of subsidiarity. If the new definition is accepted, the term will no longer mean the latitude given by the court to a government. It will mean the lack of latitude given by the government to the court. Some cases will never get to the Strasbourg court at all.

The second disagreement is even more remarkable. The lord chief justice Lord Judge has said that UK courts are not bound by rulings of Strasbourg-based court of human rights, while the President of the Supreme Court has admitted that his court is not always “supreme” because it has to follow the lead of the European court of human rights in Strasbourg, whose rulings are sometimes too narrow in scope. Lord Judge was giving evidence to the Lords Constitutional Committee, when he said that the UK need only “take account” of the decisions of the European Court of Human Rights but not necessarily follow it.

Tim will be talking about an issue whose time has clearly come.

tim

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