4 Part C: The English courts and human rights
4.1 An overview of the UK perspective
You have looked at the international scene regarding human rights but what of the position in England? You may be wondering: ‘If the common law developed over hundreds of years in this country surely the courts must at some stage have been called upon to consider the issue of human rights?’. As you might expect, the answer to this question is in the affirmative.
However, over the centuries the lack of legal instruments on human rights was itself an inhibition on the development of human rights law in England and Wales. Where there was no legislation which covered a particular point, the judges sought to develop the common law. For some years judges asserted their independence and their right to prevent legislation. By the end of the seventeenth century, however, the supremacy of Parliament as the law-making body had become firmly rooted in the English political and legal system. From this point, where domestic legislation existed, the judiciary usually considered themselves to be bound by it so that they could not decide cases contrary to such laws.
Following the acceptance by the judges of the supremacy of Parliament, there could be no rights considered so fundamental that the judges could ignore clear and unequivocal legislation which removed or curtailed the rights of individuals. Instead the courts developed the view that individuals should be entitled to do as they please, save to the extent that Parliament had removed or restricted that right. In addition, where a public authority was involved (including central or local government), the rights of individuals could only be restricted or curtailed to the extent that legislation or the Crown's prerogative expressly permitted it. This was in contrast to a number of Commonwealth countries which obtained their independence: the relevant legislation embodied a constitution identifying specified human rights and freedoms which were required to be respected. In these cases such rights became enshrined in the law of the independent country.
In recent years, particularly following the enactment of the Human Rights Act 1998, cases have come before the courts where the liberty of the individual has been at issue. The Home Secretary, as the relevant minister of the Crown, is the usual defendant in such cases. As a result of the requirement that the rights of the European Convention on Human Rights are to be applied there have been a number of decisions in the courts which have gone against the Government, to such an extent that judges have been at odds with the particular Home Secretary of the day. However, reference to case law reveals that decisions against the Crown on such issues have not been confined to the post-Human Rights Act 1998 period and the Home Secretary has not always been the defendant.
In Activity 6 you will read about an example of how the UK and the European Convention on Human Rights interact.
Activity 6: The UK and the European Convention on Human Rights
Read the transcript for The UK and the ECHR linked below. You may wish to read it more than once. Afterwards, please answer the following questions.
What English Act of Parliament was being challenged in the proceedings?
What articles of the European Convention on Human Rights were being relied upon?
What cases was the case of Diane Pretty contrasted with?
Do you agree that the law should have allowed Diane Pretty to die as she wished?
Click here to view the transcript. (3 pages, PDF, 0.24 MB).
The Suicide Act 1961 was being challenged.
In the case of Diane Pretty the applicant relied upon Articles 2, 3, 8, 9 and 14.
Her case was contrasted with that of Miss B who had been paralysed when a blood vessel ruptured. Her mind and power of speech remained fully intact. She felt that she had no quality of life and was seeking a decision that would allow her ventilator to be switched off. The case of Miss B required no active intervention by a third party. The case was also contrasted with that of Tony Bland as he was unable to give a reasoned opinion. Diane Pretty was seeking the right to end her life with active assistance and an assurance that her husband would not be prosecuted for assisting with her death. Reference was also made to the case of Brian Blackburn, who served three months in prison prior to his trial. His crime had been to help his wife die. These examples all consider what rights and safeguards are needed when a life is ending, and illustrate some of the challenging matters that the judiciary are required to decide: cases which involve compassion and difficult decisions.
This is a matter of your own personal opinion. Some campaigners firmly believe in the right to end life in cases where there is a terminal illness or no quality of life. Others argue that it would be impossible to provide safeguards. Whatever your opinion, think about the evidence you have used to form and support your opinion. How would you use this to convince another individual? How would you present it if you were asked to take part in a debate on the subject?