Assess the impact of the European Convention on Human Rights on UK law.

Assess the impact of the European Convention on Human Rights on UK law

In democratic societies, it is usually felt that there are certain basic rights which should be available to everyone. These rights tend to vary in different legal systems but they generally include such freedoms as the right to say, think and believe what you like (freedom of expression, thought and conscience), and to form groups with others (freedom of assembly).

Most democratic countries have a written Bill of Rights, which lays down the rights which, by law, can be enjoyed by citizens of that country. These rights have to be respected by the courts, parliament, the police and private citizens, unless the Bill of Rights allows otherwise. Such a Bill may form part of a written constitution or sit along side such a constitution: either way, it will usually have a status which is superior to that of ordinary law, in that it can only be changed by special procedure i.e. a referendum. Legislation, which is protected by special procedures, is said to be entrenched.

Britain is unusual among democratic countries in having neither a Bill of Rights nor a written constitution. Citizens’ rights in the UK were described as residual, in that they consisted of what was left after taking into account the lawful limitations. The system of residual rights had shown itself to be seriously flawed. A good example of this is the case of Malone v Metropolitan Police Commissioner (1979).

The main weakness of the current situation, with us not having a Bill of Rights is that ultimately UK citizens’ rights are not being adequately protected. This situation can lead to very serious Human Rights abuses. The UK has one of the worst records in Europe; only Italy has a worst record, of breaching Human Rights and the European Convention on Human Rights. A Bill of Rights would protect UK citizens against such breaches.

There are advantages of having a Bill of Rights, the main two being restricting the executive and the attitude of the judiciary.

A Bill of Rights provides an important check on the enormous powers of the executive. Dicey saw the role of parliament as a watchdog over the executive, ensuring that oppressive legislation could not be passed. Since then though the party system has altered the nature of parliament, government proposals will almost invariably be passed as the government can expect their own members to obey party discipline. This can lead to governments being able to legislate against individual rights and freedoms almost at will.

Supporters of a Bill of Rights claim it would curb executive powers, since courts could ...

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Supporters of a Bill of Rights claim it would curb executive powers, since courts could simply refuse to apply laws, which conflicted with it. This in turn would be a powerful incentive for a government to avoid introducing such legislation in the first place.

The provision in s.19 of the Human Rights Act 1998, requiring ministers to state whether a Bill conforms with the 1998 Act, this will discourage the executive in some circumstances from introducing legislation that breaches the European Convention on Human Rights, but they are still able to do so, which is a huge weakness of the present situation.

The other main advantage of a Bill of Rights is the attitude of the judiciary. Even when the current situation does allow for judicial protection of civil rights, British judges have frequently proved themselves unequal to the task. The Human Rights Act 1998 only requires the UK courts to interpret legislation in a way which is compatible with Convention rights, ‘so far as it is possible to do so’ (s.3). If a judge decides that the Act breaches a Convention right, the act still prevails.

The present situation within the UK is that there are three safeguards to protect citizens’ rights. These consist of residual rights, the European Convention on Human Rights and the Human Rights Act 1998.

As discussed previously, our rights are considered residual in that our rights and freedoms are traditionally considered to be protected by a presumption that we are free to do whatever is not specifically forbidden by either legislation or the common law.

The main disadvantage of this idea of residual rights is that although the principle that a person is considered free to do anything not specifically prohibited by law which is fundamental to the idea of civil liberties, this principle also applies to the state, so that the government may violate individual freedom even though it is not formally empowered to do so, on the grounds that it is doing nothing which is prohibited. This was the main premise behind the case of Malone v Metropolitan Police Commissioner (1979).

A significant change in the British position was made by the introduction of the Human Rights Act 1998 (discussed below). The Act will make the European Convention on Human Rights (also discussed below) part of the law of the UK. While the Convention is currently part of the international law that is recognised by the UK, it had never been integrated into our domestic law.

The European Convention on Human Rights was drawn up by the Council of Europe, which was established after the Second World War when countries tried to unite to prevent such horrors ever happening again. Signed in Rome in 1950, the Convention was ratified by the UK in 1951 and became binding on the UK in 1953.

The fact that a state has ratified the Convention does not mean it has to incorporate Convention provisions into its domestic law; each state can choose whether or not to do this, about half have already done so.

The UK refused for many years to incorporate the Convention and so it was not recognised by the national courts as part of English law. UK citizens who believe that their rights under the Convention had been breached could not bring their claim through the normal domestic courts, but had to take their case to the European Court of Human Rights; if they succeed there the UK government was expected to amend whatever aspect of domestic law caused the problem. But such litigation was slow and expensive and the eventual remedies often inadequate. As with any other international treaty, British courts could take the Convention into account when interpreting UK legislation, and presume that parliament did not intend to legislate inconsistently with it. Where a statute was ambiguous, they could use the Convention as a guide to its correct interpretation; a good example of where this has been the case, is the case of Waddington v Miah (1974).

Where the words of a statute were clear, domestic courts had to apply them, even if they obviously conflict with the Convention. This position changed with the introduction of the Human Rights Act 1998 as it incorporates the Convention into domestic law, although legislation which is incompatible with the Convention, will still be valid.

The Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic legislation, with the intent to strengthen individual rights within the UK. The Convention will now be directly applicable in UK courts, so it is no longer necessary to go to Strasbourg to seek redress (s.7). The UK courts are now required to interpret all legislation in a way, which is compatible with Convention rights ‘so far as it is possible to do so’ (s.3). This improves upon the previous position as prior to the Human Rights Act ambiguities were to be interpreted in favour of the Convention. Now, under s.6 of the Human Rights Act 1998 it will be unlawful for public authorities to act in a way that is incompatible with Convention rights.

While the Human Rights Act represents an important advance for civil liberties in the UK, there are still significant limitations. In particular, legislation that is incompatible with the Convention will still be valid; judges will not have the power to strike down offending statutes as unconstitutional. Thus the principle of parliamentary sovereignty remains intact.

One other drawback is that the judiciary will have a vast amount of power in determining the impact and success of the Human Rights Act. As the Convention rights are very loosely drafted and through their interpretation the judges could easily dilute them and render them ineffective.

In conclusion, the lack of a Bill of Rights, as discussed above, leaves British citizens in a very uncomfortable position. By incorporating the European Convention on Human Rights into domestic law through the Human Rights Act and not entrenching the Convention with a proper Bill of Rights, has enabled the executive to maintain the concept of parliamentary sovereignty. By doing so the executive has provided itself with several ‘get-out-clauses’ so that citizens rights may not be properly protected as the executive can itself remove certain rights as it sees fit. A good example of this is the situation at present where the government wishes to remove suspected terrorists right not to be detained without a fair trial.

By entrenching the Convention UK citizens would have their rights protected and only through special procedures could parliament change such rights. Until this happens I do not believe that there will be a satisfactory situation within the UK, with regard to civil liberties.

This essay comprehensively covers the factual areas of the implementation of the European Convention on Human Rights and also covers various opinions regarding the possible impact of the implementation of the European Convention on Human Rights on UK law and UK citizens.