Browsing by Author "Scott, David Mackendrick"

Through an assessment of the recent criticism directed against the Court from the United Kingdom, this thesis sets out the investigate the future of the European Court of Human Rights. By analysing compliance with the Court as a form of ideology—in particular, the definition given by John B Thompson as the “ways in which meaning serves to establish and sustain relations of domination”—it studies the ways this has been challenged by the United Kingdom, and assesses the suitability of the current institutional response from the Court. The thesis begins with a clarification of Thompson’s use of the term “ideology”, providing a methodology for its application to the ECtHR. Chapter II then applies this methodology to the Court’s case law, demonstrating how, within a specific social-historical support for the human rights project, it has harnessed meanings latent in the Convention to establish and expand its authority over member states. Particularly close attention will be paid to how the Court’s development of certain interpretative tools—the margin of appreciation, the living instrument doctrine, etc.—helped institutionalise this authority. Chapter III then turns to look at the UK more closely, beginning with a brief parallel study of the reception of the Court’s early judgments, culminating in the implementation of the Human Rights Act in 1998, which incorporated the Convention (and the Court’s jurisprudence) directly into domestic law. It then focuses on three areas of the Court’s case law that have been highlighted as prompting reform: the issue of prisoner voting; the deportation of foreign nationals, particularly in the context of anti-terror measures; and the application of the Convention to the Armed Forces. This analysis seeks to draw out the critique offered by the UK against the Court’s ideology, demonstrating how the same meaning(s) put forward by the Court are co-opted to challenge its authority. The final Chapter looks forward, asking how the prior sections should inform responses to Conservative plans. In particular, it criticises suggestions that the Court is now entering an “Age of Subsidiarity” as insufficient to respond to the UK’s critique. Accordingly, the Chapter lays out the case for expanding the Convention’s application into the field of socio-economic rights—particularly in relation to austerity measures—to reinvigorate support for the Convention project.