Human rights and law
Human rights and law

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Human rights and law

4.2 Effect of the ECHR on English law prior to the Human Rights Act 1998

The Human Rights Act 1998 (HRA) received the Royal Assent on 9 November 1998, and the main provisions were brought into effect on 2 October 2000. However, the UK had by then been a signatory to and had ratified the ECHR for nearly fifty years. What was the effect, if any, of the Convention on UK domestic law? We have already noted the supremacy of Parliament as the main law-making body in the UK. Under English law international treaties do not become part of domestic law unless and until some legislative vehicle so provides. Thus, in the case of the EU, the European Communities Act 1972 makes provision in Section 2(1) for:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties and all such remedies and procedures from time to time provided for by or under the Treaties as in accordance with the Treaties are without further enactment to be given legal effect or used in the UK shall be recognised and available in law, and may be enforced, allowed and followed accordingly.

In the case of the ECHR, there was no such provision until the HRA was enacted and brought into force. Did this mean that the European Convention on Human Rights had no effect in the UK? There is no doubt that the English courts were unable to enforce the Convention provisions as such. However, judges did make use of the Convention rights in a number of ways even prior to the HRA.

  • First, since the UK government had signed and ratified the European Convention on Human Rights, the courts took the view that the terms of the Convention and the Strasbourg jurisprudence concerning it were important sources of public policy where it was necessary to determine such issues.

  • Second, in dealing with difficulties of interpretation of a statute enacted by Parliament, the courts might take account of the Convention and the jurisprudence upon it to help resolve any ambiguity in the statute.

  • Third, where there was an absence of statutory provision, the courts could take account of the Convention and the jurisprudence to help develop the common law where it was uncertain or absent.

Furthermore in the period following enactment of the HRA but before its implementation, the courts in a number of instances referred to the European Convention on Human Rights and the jurisprudence in coming to decisions where, post implementation, the rights under the Convention would be engaged. Except in these limited cases, the laws enacted by Parliament were considered supreme and binding upon the judges.

You should now work through Activity 7.

Activity 7: The Convention and the UK

0 hours 50 minutes

Please read Reading 5: ‘The Convention and the United Kingdom’ and make your own notes on the following points.

  1. The arguments for and against the incorporation of the European Convention on Human Rights into UK law.

  2. The constitutional significance of the Act.

  3. The margin of appreciation.

Click here [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)]   to view the reading.

This reading introduces new material. Taking notes and summarising material concisely is a valuable skill – you may wish to look through the reading briefly first to get some idea of what it covers before reading it in depth to identify the key points and then make your own notes.

Discussion

These are some of the main points you should have noted:

1 Arguments for and against incorporation:

For

  • the increasing number of infringements found against the UK;

  • cost and delay of taking a case to Strasbourg;

  • fully incorporate the rights into UK law;

  • British judges could contribute to the jurisprudence of the convention;

  • UK courts would have to have regard to the convention when applying domestic law;

  • the ability to challenge public bodies.

Against

  • the law of the UK adequately protected its citizens;

  • the extent to which rights would apply in the colonies (this argument diminished as the colonies gained independence);

  • it would challenge UK sovereignty by giving an international court the final say.

2 The constitutional significance of the Act:

  • HRA preserves parliamentary sovereignty;

  • the courts cannot declare legislation as having no effect, they can make declarations of incompatibility;

  • it does not allow judges to overrule Parliament;

  • questions of human rights can involve political questions and these may not be appropriate for judicial decision making;

  • the Act is constitutionally significant but is not a new constitution.

3 The margin of appreciation:

  • important concept;

  • allows for different states taking different approaches to rights;

  • allows for cultural and historical differences;

  • national courts may be best placed to make decisions on their own societies;

  • has to be a genuine difference of opinions;

  • allows court to develop its ideas as societies across Europe change;

  • ensures the European Convention on Human Rights is a living instrument;

  • not applicable in a national court.

In Activity 7 you were asked to consider the arguments for and against the incorporation of the ECHR into UK law. In Activity 8 you will listen to a discussion on the Human Rights Act between speakers who hold opposing views. By answering the questions in the activity, you will gain experience of writing notes from a verbal discussion, which is a different source of material.

Activity 8: The Human Rights Act

0 hours 35 minutes

Listen to the audio discussion on the Human Rights Act below. You may wish to listen to the discussion twice before answering the following questions.

  1. What opinions were expressed at the beginning of the discussion on the implementation of the Human Rights Act?

  2. What three branches of government were described as ‘working in partnership?

  3. Why was the membership of the judiciary of the European Court of Human Rights called into question?

  4. What changes were felt to have been made to traditional constitutional arrangements?

  5. How would you go about finding out more information about the background of the speakers?

Click to listen to the audio clip. (9 minutes).

Download this audio clip.Audio player: Activity 8: The Human Rights Act
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Transcript: Activity 8: The Human Rights Act

MISHAL HUSAIN
The Human Rights Act is a far-reaching statute binding our law making ever closer to the European Court of Human Rights. It gives unelected judges the power to lob laws back at an elected parliament and say, 'think again'. So, should we be pleased or appalled? In this excerpt from the BBC's Unreliable Evidence, transatlantic debate rages between the Washington based Dr John Laughland, a lecturer in politics and philosophy and the London based Lord Anthony Lester, human rights lawyer and champion of the legislation. It starts with Lord Lester assessing what he sees as the new laws' impact.
LORD ANTHONY LESTER
I wouldn't like to frighten the horses. It seems to me that all that we are really doing is putting our courts, our judges in a similar position to the judges of every other democracy. Indeed, in a slightly weaker position because in most other democracies judges can strike down legislation that breaches human rights.
CLIVE ANDERSON
Yes.
LORD ANTHONY LESTER
Here the government have come up with a more subtle compromise in which parliamentary sovereignty is preserved but it's reconciled with the need for effective judicial remedies. So our judges can't strike down legislation. What they can do is to interpret it strongly in a way that's compatible with human rights and only in one percent of the cases are they likely to have to declare that a piece of legislation is incompatible with the Convention.
CLIVE ANDERSON
So they make this declaration that a Westminster statute might be incompatible with the Human Rights Convention and then parliament would presumably have to then amend the legislation. So it's a sort of fig leaf to preserve the illusion of parliamentary sovereignty.
LORD ANTHONY LESTER
No, it's not a fig leaf. What it is is recognising the partnership across the three branches of government. It's the judges' function to interpret the law, it's parliament's function to make the law, it's the government's function to introduce measures now -
CLIVE ANDERSON
Yes, but from what you've said, they could have, we could have said, well the judges will from now on have the power to just declare the legislation from Westminster wrong and strike it up. But instead it's gotten to this form of words where the judge will just say it's wrong and parliament will have to do something about it.
LORD ANTHONY LESTER
No, parliament won't have to because if a government or parliament doesn't want to, the case will then go to Strasbourg to the European Court of Human Rights.
CLIVE ANDERSON
Well I just want to bring in John Laughland who's parked over there in America, and I think is not such an enthusiast for this legislation. You don't like it, do you, Dr Laughland?
DR JOHN LAUGHLAND
No I don't, and indeed I was struck by Lord Lester's attempt to have it both ways. The fact is that under the future arrangements if a law is deemed to be incompatible with the traditional interpretation of human rights, then parliament will be required under British law to revoke it and there can be surely no clearer example of the fact that the sovereignty of parliament is abrogated by this measure.
CLIVE ANDERSON
And is this a bad thing, if we're putting things on a rational footing and having human rights incorporated into our law and across Europe? Is that not a way of getting everybody's rights spelled out for them?
DR JOHN LAUGHLAND
No. Yes, it is a bad thing. It's a bad thing I think for two reasons. First of all because human rights legislation as such is legal nonsense. I'm choosing my words very carefully even though I'm sounding rather provocative. Human rights documents are legal nonsense in the sense that they are expressions of intent. They are expressions of desire. They are expressions of the way we would like the world to be. They contain things for instance like, you know, everybody has a right to equality and non-discrimination and so on. But precisely judicial activity is about adjudicating between people who have competing rights. I may have a right to equality and you may have a right to equality or whatever, and the purpose of a court is obviously to decide between us.
CLIVE ANDERSON
What about when it expresses a general principle that the government may not interfere with an individual's rights? I don't know, I thought you might be interested in the rights of the individual. So if one's entitled to a fair trial and some procedure is brought in by the government that offends against that in judicial eyes, then that's a protection to the individual against some sloppy bit of legislation or oppressive legislation.
DR JOHN LAUGHLAND
Well of course I'm in favour of individual rights and that's why I support the present common law arrangements, because they have been shown to protect those rights far more substantially than any other system over many centuries. But I think behind your question lies a very common misunderstanding and it is often argued, as you have I think suggested, that such legislation does provide a protection from the state. This is frankly an optical illusion. Because all that you are doing, integrating a human rights law into British law, is to displace power from parliament to judges. To put it another way there are in fact no rights against the state, there is no such thing as rights against the state in the sense that if any such right is enjoyed it is obviously enjoyed only if it is protected by an officer of the state, in this case a judge. And therefore if you hive off as I say this kind of law-making power to judges you are simply begging the question, or rather causing the question to be put once again, who guards the guardians? The membership of the European Court in Strasbourg is highly questionable. As you know the Council of Europe has gone on an expansionist binge in the last ten years. We now have sitting inside it countries which are frankly totally lawless, many of which have only recently acquired democratic and legal traditions.
CLIVE ANDERSON
Well, is your objection to this then more that it involves well foreigners? Europeans? Getting -
DR JOHN LAUGHLAND
No. The Supreme Court in this new legislation is staffed partly by people who frankly should not be sitting in judgment over a British citizen.
CLIVE ANDERSON
Yes. Lord Lester.
LORD ANTHONY LESTER
I wonder if could just deal with one of John Laughland's points and try to puncture the complacent assumption he makes which is that the common law was perfectly adequate to deal with all these problems, better than the Human Rights Act. However much he may not like this I have to say that the European Court, that alien court, has had to come to the rescue of our system again and again because our judges couldn't do so: in the area of free speech; in cases like Thalidomide and Spy Catcher; personal privacy in relation to for example the rights of homosexuals; Discrimination; even habeas corpus, that great English writ of habeas corpus. The European Court has given a stronger guarantee of the right to liberty than we did. And what this act does is to bring these rights home to allow our judges to renew the common law, to refresh the way they interpret statutes, in the interests of the citizen against the state. One of the main purposes of the enterprise is to protect individuals and minorities against the misuse of public powers of the state. It's a kind of mixture of Burke and Jeremy Bentham to suggest that parliament knows best, or government knows best. What we must do is to give the third branch of government a crucial role in protecting our rights.
CLIVE ANDERSON
No doubt you heard that John Laughland?
DR JOHN LAUGHLAND
Yes. I'm not surprised that Lord Lester doesn't understand what I'm saying because it's obvious that people who support human rights legislation haven't asked themselves the basic fundamental constitutional questions. If you create a new system of law, and I emphasise by the way the 'new', because despite what you say Lord Lester, the fact of bringing the Convention into British law as you well know does change the constitutional arrangements.
LORD ANTHONY LESTER
Certainly.
DR JOHN LAUGHLAND
And by doing so you create as I see it anyway, a new state-like arrangement and hitherto we have taken the view that it is best to subject such questions to the High Court of Parliament answerable to public opinion, rather than to give supreme authority over these things to a body which is not elected and which cannot be held to account. As I've indicated earlier, it already contains people who I think are very undesirable. The Albanian judge for example worked as a prosecutor in the Albanian state under Enver Hoxha. The Romanian judge has worked in the Romanian government under Nicolae Ceausescu, the Ukrainian spent his entire career professing Soviet law in the Ukraine and I think worked for the Soviet ministry of foreign affairs. And the one -
CLIVE ANDERSON
Well I'm going to just have to - your list is an impressive one. I'm just going to have to ask Lord Lester, are you worried about the quality of these judicial figures from various countries intervening on our hallowed, you know, fair cricket pitch of, sort of, British legal system?
LORD ANTHONY LESTER
First of all I think one's got to be very careful about making those kind of allegations. For example, we have a great British judge there, Sir Nicholas Bratza and I have heard some ignorant politicians of the left criticising his appointment on the ground that he represented Mrs Thatcher in human rights cases against me, suggesting that in some way that cast doubt upon his independence.
CLIVE ANDERSON
Well we're not comparing Thatcher with Ceausescu. At least not in this programme.
LORD ANTHONY LESTER
No, no, no, but I mean I don't think it's a good idea to be defaming judges without any knowledge of the facts. I mean it may be that some of them come from dodgy backgrounds; it may be that they've been rehabilitated. I just don't know. I think that, there are, I think there are problems about the European Court of Human Rights. The worst problem is that half of them are elected every three years and the other half are elected every six years, and the process of election is very dodgy.
CLIVE ANDERSON
Well it'll probably be ruled inadmissible under the Human Rights Act, if we -
LORD ANTHONY LESTER
It should be, yes it should be - it should be ...
CLIVE ANDERSON
Then we'll have to stop and start again then won't we?
LORD ANTHONY LESTER
I'm not suggesting everything in Strasbourg is perfect -
CLIVE ANDERSON
Well I'm afraid that question, I have to turn into a rhetorical question because we've run out of time. That's all the time we've got this week, and indeed this series. Let me just thank Lords Hope, Kingland and Lester and Dr Laughland. And from Unreliable Evidence, good-bye.
MISHAL HUSAIN
Just as well they stopped there I think, or they'd have come to blows. But interesting to see how so many issues from earlier in the course resurface with new vehemence here. In the next few units you'll be examining some of the specific rights flowing from this legal framework.
End transcript: Activity 8: The Human Rights Act
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Activity 8: The Human Rights Act
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Discussion

  1. It was suggested that the Human Rights Act binds the UK ever closer to Europe. In addition, unelected judges were being given powers to question Parliament, a democratically elected body. It was also argued that a compromise had been reached, as judges would not be able to overturn legislation but were limited to making a declaration of incompatibility.

  2. The three branches of government identified were the judiciary, who have a responsibility for interpreting the law; Parliament, who have responsibility for making the law; and the Government, who are responsible for introducing new laws.

  3. The membership of the European Court of Human Rights was called into question because of the background and previous work experiences of some of the appointed members of the judiciary. The Court sat in judgment on nation states and individual citizens, and the role of the judiciary was an extremely important one.

  4. It was suggested that the traditional constitutional arrangements of the UK had been altered as powers had been given to an international court. The English judiciary, who were unelected, now had the power to question legislation created by the democratically elected body (i.e. Parliament). Power was being displaced to the English judiciary who were also officers of the state.

  5. The discussion was chaired by Clive Anderson, and the speakers you heard were Lord Lester and John Laughland. The slide accompanying the audio gave details of their background. One way to find further information on their backgrounds and work experiences, and for any articles or opinions they may have previously published, is to search the internet.

This discussion illustrates that whilst there may be a general acceptance of human rights, agreement over who should have the final say or be the guardians of such rights is not as easy to obtain.

Activity 9 will help you reflect on your studies of the HRA, and Activity 10 will allow you to consider how successful the Act is.

Activity 9: The Human Rights Act and its effect

0 hours 30 minutes

Please read Reading 6: ‘The Human Rights Act: what it means for you’, linked below, and make some notes. It provides a summary of the Act and will consolidate your studies in this unit.

Click here to view the reading.

Please note: This leaflet is published by the Legal Services Commission. It is written in association with Liberty. The leaflets are regularly updated, but the law may have changed since this was printed, so information may be incorrect or out of date. The most up-to-date version of the leaflet can be found at: Community Legal Service.

Discussion

No Comment has been provided for this activity as it serves to consolidate your studies.

Activity 10: The HRA – a success story?

0 hours 15 minutes

Please read Reading 7: ‘Happy birthday human rights’, linked below. As you read, make notes on how successful you feel the HRA has been.

Click here to view the reading.

Discussion

Whether you feel the HRA has been successful is a matter of personal opinion and you may have been influenced by what you have read in the media and elsewhere. One of the documents you were asked to read provides a consolidated summary of the HRA, the other describes areas where the HRA has had an impact.

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