There have been numerous cases in the UK which highlight how the state has contravened an ECHR article (i.e. Murray v UK, McCann v UK). In many cases, the decisions ruling in favour of an aggrieved claimant have led to changes in the law intended to prevent any further infringement of the ECHR (i.e. Contempt of Court Act [1981] and proved the ECHR to be an effective protectorate of human rights. Despite this, there have been circumstances where the UK government have been unwilling to adhere to European Court rulings and will avoid steps in giving them effect (Abdulziz v UK [1985] and Brogan v UK [1988]), suggesting that the strength of the protection is limited.
The addition of the Human Rights Act (HRA) [1998] allowed for Convention rights to be enforced in the domestic courts, thus removing the need for an individual to go Strasbourg to enforce their Convention rights and incorporating the ECHR into domestic law. The Act has been a substantial addition to the protection of human rights. Despite the government’s insistence that the HRA would not allow courts to strike down primary legislation, section 3 allows courts to make declarations of incompatibility with the ECHR (as observed over the Mental Health Act 1983). This feature counters the modern concern of an overtly powerful government. It does not diminish parliamentary power to pass Acts of Parliament, but legislation ruled incompatible is highly damaged and will require revision or suffer from wide technical difficulties. The Human Rights Act, while not being a comprehensive protectorate of human rights, is nonetheless essential in this respect and adds extra weight to the Diceyan concept that common law can protect individual rights.
Other sources of human right protection include judicial review and even the devolution of power. Judicial review, simply put, ensures that national and local public authorities conform to the law and that standards of fair procedure are observed. With the enactment of the HRA, judicial review has acquired an increased potency in its ability to protect human rights. Also, it was suggested by Tony Blair that devolution of power to regional governments provided a protection of human rights on the basis that, ‘remote, centralised government is cut of from its citizens and is much more likely to infringe the basic rights of people.
The relationship between the UK courts and the institutions created through the ECHR in Strasbourg originated from the original ratification of the ECHR by the UK in 1953. In 1966, the UK accepted the Convention’s provision that the state recognise the rights of individuals to apply to Strasbourg and seek the jurisdiction of the European Commission and European Court of Human Rights. The Commission would determine an individual case on its admissibility under the ECHR and, if deemed suitable, would be referred onto the ECJ.
Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights. Importantly, all final judgments of the Court are binding on the respondent States concerned.
The relationship between the two has been an important influence on English Law over the latter half of the 20th century. Firstly, the European court ensures that Human rights as stated in the ECHR are adhered to by States under its jurisdiction. Secondly, this has lead to legislative changes in the UK system based on cases ruled in breach of the ECHR (i.e. Dudgeon v UK lead to the Homosexual Offences Order 1982). However, this seemingly powerful influence of Strasbourg is not comprehensive as the UK government has the ability to not give European Court decisions any effect (i.e. Adulaziz v UK, Brogan v UK).
It can be argued that the relationship between the UK and Strasbourg ‘skeletal’ in nature, as the UK has ensured it retains ‘parliamentary sovereignty’ and ultimate power over how individual rights are treated. The Anti-Terrorism, Crime and Security Act 2001 (detention without trial of terrorist suspects) highlighted the government’s ability to deviate from Convention principles. Despite this, it is indisputable that the HRA, the ECHR and the Strasbourg institutions act as vital checks and remedies to the potential abuses of human rights in the UK, where the legislature is underlined by the concept that it is unequivocally ‘supreme’.
