Year 1 LLB - Human Rights

Human Rights Assessment One

The European Convention on Human Rights (ECHR) was drafted with a sizeable input from English lawyers and was ratified by the United Kingdom in 1951. The right of individual petition was recognised in 1966. This meant that before the ECHR was incorporated into domestic law litigants in Britain who had their civil liberties infringed by the state could seek redress in international law where no adequate remedy could be provided by domestic courts.

However the European Court of Human Rights (ECtHR) have found on numerous occasions that the positive guarantees of fundamental rights have been violated by the United Kingdom. This has been partly due to the difficulty of considering and developing domestic law with the ECHR. As the ECHR was an international treaty which had not been incorporated by an Act of Parliament it did not have legal effect because of the dualist principles of English law. In Britain Parliamentary sovereignty remained the cornerstone of accountability, as it still does today despite the inception of the Human Rights Act 1998 (HRA). This is in stark contrast to other European countries and America where the rule of law is key.

So prior to the HRA there was no indication that Parliament intended to legislate to conform with the rights protected by the ECHR. The use of the ECHR was limited to cases where the law was ambiguous. Public authorities did not have to comply with the ECHR or even have regard to the rights it contained as relevant considerations.

Despite this situation, since the 1970s arguments based on the ECHR have been used in English courts in three circumstances. It could be used as an aid to the construction of legislation if there was an ambiguity in a UK provision, but reference to the ECHR could only be to resolved the ambiguity, as seen in the case of R v Secretary of State for the Home Department, ex parte Brind which concerned freedom of expression for IRA members reported on television with their voices dubbed. The ECHR could also be used to inform the exercise of judicial discretion as seen in the case of Attorney-General v Guardian Newspapers Ltd. Finally the ECHR could be used to establish the scope of common law as seen in the case of Derbyshire County Council v Times Newspapers ltd which related to Norman Tebbit's article about the Labour council in Derbyshire.

The permitted use of Strasbourg case law in domestic courts was often ignored as it was not required. In the case of R v Ministry of Defence, ex parte Smith which related to homosexuals in the army the Divisional Court and the Court of Appeal had regard to Strasbourg principles but declined to follow them because they were not part of domestic law. Curtis J said 'If it makes no difference, why refer to it?'

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Anyone who wanted to enforce their right at the ECtHR had a long and costly journey. The Government's White Paper said "it takes on average five years to get an action into the ECtHR once all domestic remedies have been exhausted: and it costs an average of £30,000." The Government also conceded that the belief that the rights and freedoms guaranteed by the ECHR could be delivered under domestic common law was flawed, acknowledging that incorporation was "necessary" and "that it is not sufficient to rely on the common law."

The incorporation of the EHCR in the shape ...

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