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
Please read Reading 5: ‘The Convention and the United Kingdom’ and make your own notes on the following points.
The arguments for and against the incorporation of the European Convention on Human Rights into UK law.
The constitutional significance of the Act.
The margin of appreciation.
Click here 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.
These are some of the main points you should have noted:
1 Arguments for and against incorporation:
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.
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:
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
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.
What opinions were expressed at the beginning of the discussion on the implementation of the Human Rights Act?
What three branches of government were described as ‘working in partnership?
Why was the membership of the judiciary of the European Court of Human Rights called into question?
What changes were felt to have been made to traditional constitutional arrangements?
How would you go about finding out more information about the background of the speakers?
Click to listen to the audio clip. (9 minutes).
Transcript: Activity 8: The Human Rights Act
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.
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.
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.
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.
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: The Human Rights Act and its effect
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.
No Comment has been provided for this activity as it serves to consolidate your studies.
Activity 10: The HRA – a success story?
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.
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.