Human Rights and European Law

Building New Legal Orders

Mary Arden

An insider account of the impact of the EU and the European Court of Human Rights in Strasbourg on the domestic law of the UK
Examines the difficulties of preserving individual rights in the face of the threat of terrorism and breaches of privacy
Provides rare insight into the senior judiciary, drawing upon Arden's own direct experience in the Courts and of international dialogue
The first of a two volume set of essays entitled Shaping Tomorrow's Law, which gathers speeches, articles, and unpublished material by a senior judge

Human Rights and European Law

Building New Legal Orders

Mary Arden

Description

Senior judges and politicians increasingly question the role of the EU and the European Court of Human Rights. Some call for a reconsideration of the influence of transnational courts in the legal life of the UK, while others argue for a repeal of the Human Rights Act in favour of a British Bill of Rights. Many perceive control of law-making as moving irreversibly away from the UK and into the hands of Europe. In contested domains like national security and individual freedoms there are concerns that the British national identity is being lost.

Against this backdrop of confusion, Mary Arden's voice is one of reason. A senior judge who has been at the heart of dialogue between domestic and international judges, Mary Arden is uniquely placed to discuss the impact of developments in human rights and European law. In this major new collection of her writings, Mary Arden clarifies the issues at stake with the new European legal orders. She explains the major developments in simple terms, addresses core criticisms of the EU and the ECHR, and examines the practical effects of these institutions on domestic legislation and case law.

In describing the far-reaching impact of EU law and the Human Rights Act, Mary Arden gives an insider's view of key conflicts including national security versus freedom of the individual, and freedom of the press versus the individual's right to privacy. She also outlines how domestic courts have been able to draw upon the decisions of Strasbourg in the key battlefields of media freedom, data protection, and national security.

Human Rights and European Law

Building New Legal Orders

Mary Arden

Preface, The Rt Hon The Lord Chief Justice of England and Wales
Introduction: Why this Collection?
SECTION A - Mastering a New System
Preface, Rt Hon Sian Elias, DBE PC, Chief Justice of New Zealand
Part I: Implementing Human Rights
1. Common Law in the Age of Human Rights
2. Building a Better Society
3. On Liberty
Part II: Understanding Proportionality and Subsidiarity
4. Proportionality: The Way Ahead
5. Subsidiarity and Decentralization
6. Press, Privacy, and Proportionality: The Impact of Proportionality on Judicial Review
Part III: Interpreting Legislation - New Approaches Emerge
7. The Interpretation of UK Domestic Legislation in the Light of the European Convention On Human Rights
8. The Changing Judicial Role: Human Rights, Community Law, and the Intention of Parliament
9. Statutory Interpretation and Human Rights
SECTION B - Balancing Different Interests
Preface, Bernard Stirn and Matthias Gyomar, members of the French Conseil d'Etat
Part IV: Balancing Human Rights and National Security
10. Human Rights and National Security
11. Balancing Human Rights and National Security - Conclusions
12. Meeting the Challenge of Terrorism: The Experience of English and Other Courts
Part V: Privacy: Balancing Public and Private Interests
13. The Future of the Law of Privacy
14. Human Rights and Civil Wrongs: Tort Law under the Spotlight
15. Media Intrusion and Human Rights: Striking the Balance
SECTION C - Beyond Our Own Horizons
Preface, Professor Dr Andreas Vosskuhle, President of the German Federal Constitutional Court
Part VI: The Value of the International Perspective
16. Freedom of Expression and the Role of the Supreme Court
17. Prospective Overruling
Part VII: Working Out the Right Relationship with the European Supranational Courts
18. Peaceful or Problematic? The Relationship between National Supreme Courts and the Supranational Courts in Europe
19. Jurisdiction of the New UK Supreme Court
20. An English Judge in Europe
Epilogue
Appendix: Convention Rights Incorporated by Schedule 1 of the Human Rights Act 1998
Glossary

Human Rights and European Law

Building New Legal Orders

Mary Arden

Author Information

Mary Arden, Member of the Court of Appeal of England and Wales and Head of International Relations for England and Wales, Court of Appeal of England and Wales

The Rt. Hon. Lady Justice Arden DBE was called to the Bar of England and Wales in 1971, and became a Queen's Counsel in 1986. She was appointed a Justice of the High Court of Justice of England and Wales in 1993, the first woman judge to be assigned to the High Court's Chancery Division. From 1996 to 1999 she was the Chair of the Law Commission of England and Wales. She was appointed a Lady Justice of Appeal in 2000.
Lady Justice Arden is Head of International Judicial Relations for England and Wales. This makes her responsible for liaison with leading courts across the world. She is also a Member of the Permanent Court of Arbitration in The Hague and an ad hoc judge of the European Court of Human Rights in Strasbourg.

Contributors:

The Rt Hon The Lord Chief Justice of England and Wales
Rt Hon Sian Elias, DBE PC, Chief Justice of New Zealand
Bernard Stirn, member of the French Conseil d'Etat
Matthias Gyomar, member of the French Conseil d'Etat
Professor Dr Andreas Voßkuhle, President of the German Federal Constitutional Court

Human Rights and European Law

Building New Legal Orders

Mary Arden

From Our Blog

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Why has France banned surrogate motherhood?

Shortly after it emerged in the 1980s, surrogate motherhood was dealt a severe blow in France by a decision of the Cour de Cassation, its highest civil court. In 1991, it ruled that an agreement entered into by a woman to conceive, bear a child, and relinquish it at birth, albeit for altruistic reasons, was contrary to the public policy principle of unavailability of both the human body and civil status.

Posted on February 23, 2015

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