On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.
Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).
The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.
Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.
Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.
Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.
Dr. Miracle Chinwenmeri Uche concluded her PhD programme under the supervision of Professor Lars Waldorf,Dr. Marina Lostal and Dr Clotilde Pegorier. Her thesis is titled ‘Victim-oriented Complementarity is the Key: A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice’.
The thesis examined the International Criminal Court (ICC) principle of complementarity through the lens of victim-oriented justice, i.e., justice that considers and accommodates victims’ needs and interests procedurally and substantively within the limits of criminal justice processes.
Complementarity, the chosen form of jurisdictional relationship between the ICC and its States Parties, is key to the Court’s existence and sustainability. It is inter alia a tool for deciding who between the ICC and states, can exercise jurisdiction over war crimes, crimes against humanity, genocide, and aggression (core international crimes).
Given the centrality of the principle of complementarity to the Rome Statute system, the thesis’ main aim was to propose ways for turning complementarity into a fulcrum for the pursuit of victim-oriented justice in the Hague and fostering the same in domestic jurisdictions.
For this purpose, the thesis asked two main research questions; firstly, how has the ICC interpreted and applied the principle of complementarity in relation to victims? Secondly, how can victims’ interests be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice? To address these questions, the thesis analyzed the ICC’s complementarity, and victim jurisprudence using the doctrinal research method.
In response to the first research question, the thesis argued that victims’ needs, and interests were minimally considered in the development of the principle of complementarity; the focus was on sovereignty protection and prosecutorial issues. This is replicated in complementarity provisions within the Rome Statute, the ICC’s case law and practice. Admissibility determinations at the ICC tend to focus on issues of investigations and prosecutions of a small number of situations and cases, and the exercise of jurisdiction by the Court or states. This problem is exacerbated by the structure of the ICC’s main complementarity body — the Jurisdiction, Complementarity and Cooperation Division (JCCD) which does not include a victims’ representative. The thesis argued that sustaining a sovereignty and prosecutorial-focused approach to complementarity will circumscribe, if not eclipse the ICC’s ability to pursue victim-oriented justice and galvanize states to do the same.
Thus, in answering the second research question, the thesis argued that a re-interpretation of the principle of complementarity and the creation of an independent, inclusive ICC complementarity body are crucial to ensuring that victims’ needs, and interests are adequately considered and accommodated throughout all stages of proceedings.
The thesis’ original contribution is twofold; it outlines a reinterpretative framework for the introduction of victims’ needs and interests into admissibility determinations by the ICC. It is the first study to propose a design for an inclusive, neutral, and independent ICC complementarity division based on the existing Rome Statute regime.
The thesis also contributes to the discussions of ways in which the ICC’s relationship with African states and the African Union can be improved in the interests of victims, and the role this can play in bringing the Rome Statute closer to becoming a universal treaty.
Dr. Miracle Chinwenmeri Uche is now employed as a Lecturer at the University of Exeter. She is currently working towards publishing a monograph and journal articles from her thesis to apply her proposals to ongoing situations and cases before the ICC. She intends to further investigate the potential impact of a new and improved complementarity mechanism on victims, the ICC’s work, and workload.
On 7 March 2023, the UK Government introduced the Illegal Migration Bill with the stated purpose to “prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes.” The Bill introduces provisions that would amend immigration, asylum, and modern slavery legislation.
Dr Marija Jovanovic conducted a legal analysis of the modern slavery clauses in the Illegal Migration Bill. The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded and supported by the UK Arts and Humanities Research Council (AHRC).
Dr Marija Jovanovic is the author of State Responsibility for ‘Modern Slavery’ in Human Rights Law (Oxford University Press, 2023).
The Explainer and the legal analysis can be read in full here.
Ofcom, the UK’s communications regulator, published its first report on video-sharing platforms (VSPs) since becoming the statutory regulator for such platforms established in the UK. This is the first of its kind under the VSP regime and reveals information previously unpublished by in-scope regulated companies.
Platforms’ compliance with the new VSP regime
Ofcom’s report outlines the regulator’s key outcomes from the first year of regulation (October 2021 to October 2022). Its findings stem from the use of the regulator’s statutory powers under section 368Z10(3) of the Communications Act 2003 to issue enforceable information requests to all notified VSPs.
Specifically, some platforms made positive changes to their systems and processes in light of new VSP requirements, e.g., TikTok’s dedicated online safety committee to provide oversight of content and safety compliance, Snapchat’s parental control feature, and OnlyFans’ age assurance tools for all new UK subscribers. However, Ofcom found that platforms provided limited evidence of how well their user safety measures operate, blurring as a result their effectiveness and consistency. It also emerged that some platforms are not adequately resourced, equipped and prepared for regulation. There is a clear need for some of them to improve the quality of their responses to the regulator’s information requests. Moreover, Ofcom found that risk assessment processes were not prioritised by platforms, despite their importance in proactively identifying and mitigating safety risks. Risk assessments, however, will be a requirement on all regulated services under future online safety laws that will eventually supersede the VSP regime. Finally, some adult VSPs’ access control measures were not found to be sufficiently robust in preventing children from accessing pornographic content.
Moving towards the second year of the implementation of the regime, Ofcom will dedicate most of its attention to the comprehensiveness of user policies (also known as Community Guidelines), including their application and enforcement; the availability of appropriate tools empowering users to tailor their online experience; and the implementation of suitable age verification (AV) mechanisms to protect children from harmful online content, including pornography.
To increase transparency of platform processes and raise awareness of how VSPs protect against harmful content, Ofcom’s report also sets out the measures adopted by some platforms to protect their users. The following platforms were reviewed in particular: TikTok, Snapchat, Twitch, Vimeo, BitChute, and some smaller VSPs including Fruitlab, ReCast Sport and Thomas Cook, as well as smaller adults VSPs like AdmireMe, FanzWorld and Xpanded. The report explains the governance processes within each regulated service (giving detail on their systems for online safety risk management) and the journey followed by users/ subscribers on each of these platforms.
Additional sets of research
Ofcom also made available a report on the VSP Landscape in the UK, describing the context in which providers apply protection measures. The report offers insights into: (a) who the notified VSP providers are; (b) how many users of VSPs there are in the UK and their demographics; (c) what the main business models used by VSP providers are; and (d) what information VSP providers make publicly available in their transparency reports.
With the aim of building its evidence base around the appropriateness of certain protection measures, Ofcom commissioned further sets of research to understand people’s experiences of using (and attitudes towards) safety measures on VSPs. The research explored a range of users’ perspectives, from parents (or carers) of children aged 6-17 to users of porn platforms.
More specifically, the VSP Parental Guidance Research looked at parents’ attitudes towards children’s online behaviours. In summary, it found that parents tended to perceive VSPs generally as having a constant and unregulated stream of content. Based on their current understanding and the information available to them, six in ten parents said they did not use parental controls on the VSPs that their child uses, because their child “did not need them”. Just over half of parents remembered seeing or receiving guidance on how to keep their child safe online from multiple sources (government websites being the most trusted). However, the study revealed that the process of finding information on online safety was described by many parents as overwhelming and often only prompted by a specific incident (e.g., school guidance, discovering their child was looking at inappropriate content). Parents were also appreciative of safety guidance from VSPs that was clear, digestible, accessible, and easy to understand.
An additional set of research, i.e., Adult Users’ Attitudes to Age-Verification (AV) on Adult Sites, found that, although there was broad support from adult participants for age assurance measures to prevent under-18s from accessing online pornography, UK adult sites were not doing enough to protect children. The biggest adult video-sharing site, OnlyFans, introduced new age verification in response to regulation (using third-party tools) but smaller sites based in the UK did not have sufficiently robust access control measures. Subscriber sign-on processes show that smaller UK-established adult VSPs have AV measures in place when users sign up to post content, but users can generally access adult content simply by self-declaring that they are over 18. Ofcom’s research showed that 81% of participants accepted AV measures where these were expected in general (e.g., whilst purchasing alcohol online or participating in online gambling). A similar proportion (80%) felt Internet users should be required to verify their age when accessing pornography online, especially on dedicated adult sites. The use of a credit card was the preferred means of AV for paid access to pornography. Serious concerns were expressed by participants about how user data might be processed and stored during AV processes to access pornography, reflecting a very low level of trust in the data privacy practices of adult sites.
These findings will inform Ofcom’s regulation of VSPs, including the rules on the protection of children, and its engagement with notified providers.
This article was first published on the IRIS Merlin legal database. The original pieces can be viewed here.
“Come, join us in jail!” read the invite to Sri Lankan artist Sujith Rathnayake’s exhibition-cum-provocation, “crisis and struggle” (8 – 15 February 2023). Indeed, a visitor to the Lionel Wendt Art Gallery in Colombo was quickly confronted by a police bus door, a remand cell gate, and paintings of fallen protesters.
The exhibition was a timely riposte to a bankrupt regime’s lavish-under-the-circumstances Independence Day celebration on 4 February. It also was a timely commemoration of the Aragalaya (“struggle” in Sinhala), the mostly peaceful protest movement that upended the country from March to August 2022. Most importantly, though, it was a timely wake-up call to Sri Lankans that many more of them – not just Tamil and Muslim minorities or human rights activists – are now vulnerable to abuses of the Prevention of Terrorism Act.
When we met Rathnayake last September at his temporary studio, he was surrounded by art, posters, and detritus salvaged from the art gallery he helped set up at GotaGoGama, the protest village (gama) on Colombo’s seaside promenade and named after the rallying cry for President Gotabaya (“Gota”) Rajapaksa to go.
There, we saw a neo-expressionist painting of a protester on the ground holding a sign proclaiming “People’s Sovereignty.”
At the exhibition, the canvas was set into a large, rusting iron frame with words riveted on the top (“Prevention of Terrorism Act 1979”) and the bottom (“Enforced also during the economic crisis of 2022”). When we asked him about this, he explained:
I used metal frames to show how we are restricted and trapped by this old, rusted, outdated Act. … to show how state terrorism makes all of us who are subjected to it vulnerable.
The (re)framing also captures what happened when the hopeful, prefigurative politics of the Aragalaya collided with a 43-year old law that legalizes state repression.
At heart, the Aragalaya was a protest movement against an unprecedented economic crisis brought on by the ruling Rajapaksa family’s corruption, profligacy, and mismanagement. Faced with severe shortages of food, petrol, electricity, and medicines, thousands of ordinary citizens – many of whom had enthusiastically voted the Rajapaksas back into office in 2019 – started calling for their removal.
On 9 April 2022, tens of thousands came together under the hashtags #OccupyGalleFace and #GotaGoHome at a site of political significance and potent symbolism. Galle Face is bounded by the Presidential Secretariat to the north and a hulking statue of Former Prime Minister S.W.R.D. Bandaranaike to the east. Bandaranaike’s 1956 Sinhala Only Act laid the groundwork for a brutal, 26-year civil war between the majority Sinhala government and minority Tamil separatists that ended in 2009 with the then Rajapaksa government’s defeat of the Tamil Tigers amidst war crimes and crimes against humanity. Galle Face also reflects Sri Lanka’s highly indebted and highly unequal economic situation, hemmed in by a Rajapaksa construction boom gone bust: a luxury shopping mall and high-rise Shangri-La Hotel on one side and the Chinese-financed Port City on the other.
On 9 May, violence first erupted when Rajapaksa supporters rampaged through GotaGoGama and other protest sites, beating protesters and destroying structures, including the art gallery. Some protesters retaliated with violence, but, by the end of the day, Prime Minister Mahinda Rajapaksa had resigned. A month later, on 9 June, former Finance Minister Basil Rajapaksa resigned as an MP. Another month later and another Rajapaksa brother made an exit. On 9 July, thousands of protesters stormed the President’s residence – though some couldn’t resist a dip in the pool. Four days later, Gota was finally gone (first to the Maldives and then on to Singapore, before quietly returning some months later). Stepping up to take his place was Ranil Wickremesinghe, a political fixture who had already done five stints as Prime Minister and whose house had been burned down on 9 July.
Rathnayake hails from the rural south – a strong-hold of Sinhala-Buddhist nationalism and the Rajapaksa family’s power base – but his politics have always been reliably left-wing. By contrast, his art is confoundingly unpredictable: he shifts between high and low art, gallery and street art, individualist and relational aesthetics, charcoal line drawings and impasto acrylic paintings, and Pop Art and Neo-Expressionism. In one of his Pop Art homages, Ka-Ga-Ja 10 (2004), he critiques the Sri Lankan fetishization of artistic authenticity, high art, political repression, and global consumerism by layering different signages against the familiar white on red swoop of a Coca-Cola sign. This work later featured in an exhibition of Sri Lankan “artful resistance” in Austria and Germany.
Rathanayake’s artistic resistance took on a more collective and participatory form when he helped establish the GotaGoGama Art Gallery. As he told us:
There are lawyers, doctors, trade unions, journalists … who set up their own tents here. I came here for the first time as a painter to represent my profession. My task here is to paint things relevant to the protest.
The gallery served several functions. It made posters, banners, and billboards for the protest, “represent[ing] their fighting slogans as art.” It gave free art classes. It “provided something for people to do when they came to the protest site.” And it raised awareness of art: “The aesthetic appreciation of art seeps into society along with people’s conceptualization of the protest through art.”
Rathanayake didn’t just manage the gallery, he also lived in a tent at GotaGoGama. He talked about the difficulty of doing his own art under such conditions: the heat, the noise, the constant interruptions, and, of course, the attack on 9 May.
I’m not someone who cries easily but … I couldn’t help but cry when I saw the gallery burning. Only one of my paintings was burnt but there were many burnt that others had drawn. … As a painter I cannot approve burning of art, whether it is at Galle Face or at Ranil’s house.
He rebuilt the gallery with help from other artists and GotaGoGama residents.
“It’s the Real Thing”
The opening of the “crisis & struggle” exhibition recaptured the carnivalesque creativity of GotaGoGama with a noisy parade led by several performance artists and musicians, including Jehan Appuhami, Namini Panchala, and Ajith Kumarasiri. That performance emphasized how the exhibition “is a transition from unconventional, outdoor space to established, enclosed gallery space, to continue the aragalaya discourse and to assert that the overall struggle still continues” (in the words of the Exhibition Committee).
The exhibition itself was an interactive mix of installation, sculpture, painting, and drawing that incorporated aspects of Rathnayake’s experience at GotaGoGama: his paint-splattered clothes and a burnt drawing with the lettering “Do Not Burn Art!” But that work’s title – “Artist’s painting set on fire by the artist (2023)” – laces that political didacticism with dark humour, while proving that Rathnayake’s iconoclasm extends even to his own work. In a similar vein, the police bus door with a painted policeman staring out is titled, following Magritte, “This is not the police.” And, like Rathnayake’s earlier Coke sign, hardly “the real thing.”
But Rathnayake’s show was more concerned with connecting the treachery of images to the treachery of the state. Three paintings of subjected bodies and two paintings of incarcerated faces are titled “Aragalaya and the Rusted [Prevention of Terrorism] Act.” The installation with Rathnayake’s clothes on a metal bed and a copy of the Sri Lankan Constitution underneath is titled “Rusted Constitution operational also during the 2022 economic crisis.” As these works make painfully clear, Sri Lanka’s latest Executive President has, once again, turned the people’s rule of law into the state’s rule by law. While that counter-revolution may not get televised the way the Aragalaya did, Rathnayake has ensured that it will at least be exhibited – and artfully resisted.
This article was first published by Groundviewsand is reproduced on the ELR Blog with permission and thanks.
Author Dr Jaime Lindsey from Essex Law School, researched mental capacity law in practice by observing Court of Protection hearings, reviewing court files, and conducting interviews with social workers, mediators and lawyers, in addition to theoretical and doctrinal analysis.
The Court of Protection can make decisions about a person’s mental capacity and make best interests rulings on financial, health, or welfare matters for people who may lack the capacity to make their own decisions.
This can include a range of decisions across a person’s life, including decisions about medical treatment, where to live, whether a person can have a sexual relationship or whether they can manage their finances.
Analysing the court through a procedural justice lens, she concludes that procedural justice is not always secured for the person at the heart of Court of Protection cases, as they often do not participate, their experiential evidence is discounted and the court is not designed with the person at the centre of its practice.
This impacts upon their ability to secure access to justice.
Dr Lindsey’s book, Reimagining the Court of Protection: Access to Justice in Mental Capacity Law, outlines her main findings and goes on to make a case for reimagining the Court of Protection as an institution that better secures access to justice for its subjects, with specific recommendations for reform.
The book has been shortlisted by the Socio-Legal Studies Association for the Hart SLSA prize for early career academics, and the Hart SLSA book prize 2023.
Dr Lindsey said: “I am delighted and honoured to have been shortlisted for two prestigious SLSA prizes for my book, Reimagining the Court of Protection.
This is an area which impacts so many people daily and this book, looking at the realities of mental capacity law in practice drawing on empirical socio-legal research, shines a light on the work of this important jurisdiction.”
The winning book in each category will be announced at the annual SLSA conference in April.
This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks.
The ECHR has been instrumental over the past few decades in terms of moving the dial forward for LGBTQ+ rights in the UK
Rishi Sunak, the British Prime Minister, is said to be actively considering withdrawing the UK from the European Convention on Human Rights (ECHR).
This would be a very bad decision. The ECHR is an international treaty that most European countries signed after the tragedies of the second world war, committing them to protect fundamental human rights. It is separate from the European Union.
The UK’s membership of the ECHR has played an important role in increasing the protection afforded to LGBTQ+ people over many years. There are three legal cases in particular that demonstrate how the ECHR has prompted Parliament and the government to respect the rights of LGBTQ+ people. LGBTQ+ people should reject calls to withdraw from the ECHR and raise awareness of the good that this treaty has done.
Homosexuality and the army: Until 2000, the UK Ministry of Defence had a blanket ban on gay men and lesbian women serving in the army. This was based on the prejudice that homosexuality was “incompatible with service in the Armed Forces”.
When the case was heard by an English court in Smith v Ministry of Defence, the judges concluded that the ban was lawful. By contrast, when the case was heard in the Strasbourg Court – the international court that interprets the ECHR – the judges concluded that the ban was a violation of the UK’s obligation to respect the private life of gay men and lesbian women and found it unlawful.
Though controversial at the time, the Strasbourg Court’s opinion is now wholly mainstream, with the Ministry of Defence issuing an apology in 2007, and the current government establishing an “LGBT Veterans Independent Review” in 2022 to explore the effects of the ban on LGBTQ+ veterans.
Transgender recognition: Until 2004, UK law did not allow trans people – including those who had had surgery – to live as their true gender for legal purposes. A trans woman could not, for example, marry as a woman and would be registered as a man for all legal purposes, such as employment and social security.
In 2002, in Goodwin v United Kingdom, the Strasbourg Court concluded that this was a disproportionate interference with trans people’s right to respect for their private life. This case did not consider exactly when legal recognition should be possible – such as through self-identification – but it did decide that the failure to provide any legal recognition, including for post-operative trans people, was unlawful.
This case was a major factor in the trend towards legal recognition of trans people.
In 2003, the British courts in Bellinger v Bellinger concluded that UK law should be brought into line with the Strasbourg Court’s decision and, through the Gender Recognition Act 2004, it eventually was.
Decriminalising gay sex: While homosexual sex was decriminalised in England, Wales, and Scotland in 1967, consensual homosexual sex remained a criminal offence for which men could be imprisoned in Northern Ireland until 1982.
This was reversed only after a Strasbourg Court case called Dudgeon v United Kingdom, which found that the criminalisation of consensual homosexual sex was a disproportionate interference with the private lives of gay men. After this case, ministers changed the law of Northern Ireland so that gay men could have sex without being imprisoned.
LGBTQ+ History Month is a good time to reflect on how we have succeeded in moving closer to equality for everyone in the UK over many years. Naturally, there are no simple answers.
The effective promotion of LGBT rights has involved a network of political, social, legislative, judicial, domestic, and international action.
The ECHR will never be the only answer, but it has been and remains part of the answer and the government is wrong to contemplate withdrawal. LGBTQ+ people in the UK should reject calls to withdraw from this important treaty.
This piece was first published on Openly and is reproduced on the ELR Blog with permission and thanks.
The piece was also cited on the floor of the House of Commons by Alison Thewliss MP here.
Upon the nomination of the United Nations High Commissioner for Refugees (UNHCR), Professor Geoff Gilbert has been accorded the title of Sérgio Vieira de Mello Professor of International Human Rights & Humanitarian Law in the Essex Law School & Human Rights Centre at the University of Essex!
Sérgio Vieira de Mello worked most of his life for the UNHCR, retired and was then asked to serve as Special Representative of the Secretary-General to Iraq. He was killed in the Baghdad bombing of 2003. He was Brazilian and the government immediately created Sérgio Vieira de Mello Chairs that were meant to be available across the whole of South and Central America to promote education on and for, research regarding, and solidarity with forcibly displaced persons.
The expansion beyond Brazil did not happen until Goeff took on the role of inaugural Chair of the Secretariat of the Global Academic Interdisciplinary Network and there are now SVdM Chairs in Dominican Republic, Costa Rica, Mexico, and Ethiopia, with plans for Mozambique and Thailand. Geoff’s initial plan was for the chairs to be established in low- and middle-income countries that host the vast majority of the 103 million people within UNHCR’s mandate, but UNHCR wants to expand these globally akin to United Nations Educational, Scientific and Cultural Organization (UNESCO) Chairs.
Geoff is the first Sérgio Vieira de Mello Professor in the global North, reflecting his education, research and solidarity regarding forcibly displaced persons for the past thirty (30) years.
Dr Sabina Garahan, Lecturer at Essex Law School, has completed her AHRC-funded doctoral research on “Adjudicating the Right to Liberty: The Use and Appropriateness of Discretion at the European Court of Human Rights”. The thesis critically assesses the level of protection offered by European human rights law against arbitrary detention. Dr Garahan argues that the appropriateness of discretion granted to Contracting States in this sphere requires the Court to recognise the need for a progressive interpretation of the right to liberty (as enshrined in Article 5 of the European Convention on Human Rights). The thesis develops a new framework for determining the appropriateness of discretion by linking the Court’s use of its methods of interpretation to their underlying approaches. Dr Garahan’s development and application of this framework in the Article 5 context is rooted in thorough doctrinal and theoretical analysis as well as empirical findings on the practice of the European Court of Human Rights as gathered through interviews with serving judges.
On this basis, the thesis finds that the Court neglects an evolutive reading of Article 5, thereby stifling the progressive development of the provision. It is argued that, at the same time, an increased turn to subsidiarity has undermined the Court’s oversight role. A new framework for allocating discretion that takes consensus as a starting point in the Court’s review is suggested to address these challenges. It is argued that centring the role of consensus as part of an evolutive approach to Article 5 will not only achieve the progressive interpretation mandated by the Convention, but will also create a more consistent and thus legitimate body of Article 5 jurisprudence.
Dr Garahan makes the argument that an inappropriate level of discretion is accorded to States in determining whether the aims of detention, in particular in the fields of pre-trial detention, the detention of minors and immigration detention, have been met. The lack of progressive advancement of the right to liberty in the Convention system also results in the right being disproportionately ceded to both individual and public interests in proportionality testing. Dr Garahan therefore ultimately concludes that continued neglect of a progressive interpretation of Article 5 risks undermining not only the further realisation of the right to liberty, but indeed its continued maintenance as a vital tool of human rights protection.
Essex Law Research Blog 