Enforcement of the Convention is via the European Court of Human Rights, which has the power to over rule decisions of the member states. The Court has taken a purposive approach to the interpretation of the Convention. Thus providing for more rights and freedoms.
The court has heard 155 cases since January 2002 and as Bailey et al say this has resulted in the UK changing its own domestic legislation on several occasions including the law relating to homosexuality in Northern Ireland being brought into line with the rest of the UK and dropping the policy stopping homosexuals joining the armed forces; This from the case of Saunders v UK. This therefore shows the ECHR having an effect on laws which our ‘supreme’ Parliament has enacted, and in theory as Dicey points out, ones that should not be able to be changed except by our own Parliament at their own will.
Cases can be brought to the court in the following ways: Article 33 allows any member state to bring an allegation of breach of convention against any other member state, although this is fairly rare and Article 34 allows individuals and non-governmental organisations to bring an allegation against a member state for violation of the convention rights. It must be pointed out that individuals cannot bring proceedings against another individual. Stone makes the following point on this matter:
“It would not be possible to use Art 8, for instance, which recognises a right of privacy, directly against the press intrusions. A challenge might, however, be possible on the basis that the State had failed in its duty under Art1 to ‘secure to everyone within its jurisdiction the rights and freedoms defined in the Convention… The failure of English law to recognise, either under the common law, or statue, a right of privacy, night therefore in an appropriate case, justify an application under the ECHR against the United Kingdom”
In 1998 the Human Rights Act (HRA) was enacted which incorporated the ECHR in English domestic law. The HRA incorporates all the substantive rights of the ECHR into domestic law, except for Art 13; the right to an effective domestic legal remedy in the event of breach of the Convention rights/freedoms. This was not incorporated, as it was believed that the ECHR and HRA provided for this just by being in existence. Some of the rights included are, for example, the Right to Life (Article 2). This has not been defined to give an exact meaning but has been shown that it imposes a range of positive obligations on member states. The case of McCann v UK (1995) involves this particular right in that it was held that a state has a positive duty to protect life and that they cannot take it.
Another right that has been incorporated is the prohibition of torture and inhuman or degrading treatment (Article 3). This is a right that cannot be derogated from at any time, not even during war. This also places a positive duty on the state not to engage in torture or degrading treatment and to ensure that this does not happen in its own state. The UK was in breach of this in the case of Ireland v UK.
Unlike Article 3 Article 5, the right to liberty and security of person can be derogated from in times of war and national emergency. As in the case of A and Others v Home dept. (2002)
The last one we will look at is Article 6, the right to a fair trial. This is linked to due process and Art.6(1) provides that every person has a right to a fair and public hearing within a reasonable time and by an independent and impartial tribunal. The UK will no doubt have to make changes to the law of evidence in order to be in accordance with this particular Convention right. The case of R v Lambert [2001] deals with this Article. The defendant appealed after the commencement of the Act. This case involved the Misuse of Drugs Act 1971 which included a reverse burden of proof. The defendant claimed that this went against his convention right of the presumption of innocence under Article 6(2). The House of Lords held that section 22(4) prohibited a person convicted of a criminal offence before commencement from relying on the convention at an appeal after commencement.
The others that we will not go into detail about are Article 4; Freedom from slavery, Article 7; there shall be no punishment without law, Article 8; respect for privacy and family life, Article 9; freedom of thought, conscience and religion, Article 10; freedom of expression, Article 11; freedom of assembly and association, Article 12; right to marry and Article 14; prohibition of discrimination.
Now that the ECHR has been incorporated into English domestic law through the HRA it has an impact on UK law as before this it had no legally binding force. There has been a lot of debate over whether or not to incorporate a Bill of Rights into English law. Bailey et al say that if we were to have a Bill of Rights in whatever shape and form this “would require modifications [to say the least] of the traditional doctrine of Parliamentary sovereignty.”
Section 3 requires all legislation to be compatible with it and that if it does not there is discretion under section 4 given to the courts to make a declaration of incompatibility and therefore the particular legislation does not need to be followed.
When a declaration of incompatibility is made this does not mean that an automatic amendment is made as under section 10 of the act there is another discretion regarding whether or not to amend or repeal legislation via the fast-track procedure.
Bailey et al state that this “situation respects the traditional doctrine of Parliamentary sovereignty” as it does not give judges the power to get rid of UK legislation only to declare it incompatible.
There has been a lot of concern surrounding section 10 of the act as it has been said to compromise Parliamentary sovereignty and if this were to be preserved it would leave those whose rights have been breached without a remedy.
Judges may be tempted to be creative in their use of section 3 of the act as to avoid the “spectre of a possible need for a declaration of incompatibility”. This was seen in the case of R v Lambert [2001]
Fears for the loss of our sovereignty are not a new phenomenon however, as section 2 of the European Communities Act 1972 has also be identified as undermining the doctrine of Parliamentary sovereignty. In the case of Hunt v Hackney LBC [2002]
As the court
“rejected an argument that the principle of EU law that EU law prevails over inconsistent laws of member states had been incorporated into English law by virtue of sections 2(1), (4) and 3(1) of the 1972 Act. This argument was false because it failed to take account of the ‘constitutional place in our law of the rule that Parliament cannot bind its successors’”
So does the ECHR via the HRA actually undermine our sovereignty? Lord Goldsmith points out that the Attorney General recently stated that it is up to Parliament if they are to legislate in a manner incompatible with convention rights and that the UK domestic courts must follow the intention of Parliament. Although under section 3 (1) it states that all primary and subordinate legislation “so far as possible to do so…must be read and given effect in a away compatible with the Convention rights.” This is not the only view. Many academics have argued that we have not ‘lost’ or had our sovereignty undermined as we have only ‘lent it out’, this being because we may withdraw from the European Union at any time that we want. In all fairness this is unlikely to happen as it could cause problems with international trade etc and that they is not any sign of this emerging or even being contemplated.
However if there was to be an entrenched Bill of Rights placed in our law, which some have said the HRA is only a stepping stone towards, then this last argument and maybe this entire question of the undermining of our Parliaments sovereignty would need to be looked at once again and reconsidered.
Barnett.H., 2002. Constitutional and Administrative Law. 4th ed. Cavendish Publishing Ltd. Page 192
Blackburn.R., Polakiewicz.J., 2001. Fundamental Rights in Europe. Oxford University Press. Oxford. Page 6.
Fenwick.H., 1999. Civil Liberties. 2nd Ed. Cavendish Publishing Ltd. London. Page 17.
Stone.R., 2000. Textbook on Civil Liberties and Human Rights. 3rd Ed. Blackstone Press. London. Page 27.
Smith.S.H., Ching.J.P.L., Gunn.M.J., Ormerod.D.C., Smith, Bailey & Gunn on the Modern English Legal System. 2002. Sweet and Maxwell Ltd. London. Page 525.
Ewing.K.D ed., 2000. Human Rights at Work. The Institute of Employment Rights. London. Page 8.