Sunday, 5 May 2013

Domestic law and the European Convention on Human Rights - Part 1

The relationship between domestic law in the United Kingdom and the European Convention on Human Rights (the Convention) is illustrated by a useful list of cases made available by Parliament this week. - Human Rights cases since 1975.  The list commences with Golder v UK (Prisoner's correspondence) back in 1975 and ends with the Animal Defenders International case in April this year.

The list is divided into two parts - (1) cases up to the end of 2000 and (2) cases from 2001 to 2013.  Part 1 takes us back to the time before the Human Rights Act 1998 (HRA) which came into force on 1st October 2000.   Interestingly, Part 1 (covering 26 years) lists 130 cases.  Part 2 (covering just over 12 years) lists 272 cases.

The idea underlying the HRA was  to 'bring rights home' by making 'Convention rights' enforceable in our domestic courts and to reduce the need for cases to go to the European Court of Human Rights (E Ct HR) at Strasbourg.

The HRA has become intensely disliked by some politicians often egged on by the sections of the media hammering away at the application of the Convention in relation to some high profile cases such as the extradition of Abu Hamza or Prisoner Voting.  There have been repeated calls for the repeal of the HRA and even withdrawal from the Convention even though withdrawal would send out a message to many a despotic regime that the UK was turning its back on human rights for which, in recent history, it has valiantly fought.  The general role, and effectiveness of, the Convention in protecting the rights of every individual is often forgotten in the heat of such debates and the media has no interest in fine detail.  Nevertheless, the published list shows areas where the UK was found to be in breach of the Convention and also areas where it was held that no breach had occurred.  Where a breach has been found, changes to domestic law have usually followed often to the major benefit of significant sections of the population.

When Convention rights are raised, our courts now take into account relevant decisions of the E Ct HR and will read and give effect to legislation in a way which is compatible with convention rights.  If that is not possible, then the High Court (or above) may issue a declaration of incompatibility which gives Ministers and Parliament an opportunity to consider the matter and alter domestic law so as to bring it into line with the convention but, it should be noted, the domestic law continues in force unless and until Parliament enacts changes.  It remains possible for cases to go to the E Ct HR subject to certain requirements such as 'exhaustion of domestic remedies.'

A later post will take a more in-depth look at the list with a view to bringing out some of the important changes to domestic law which have been brought about because of the influence of the Convention.  Whilst it is arguable that some of the changes would eventually have come about anyway, there can be no doubt that access to the European Court of Human Rights has spurred on some important developments in our law in areas where legislators may well not have acted otherwise.

Addendum 6th May:

The UK Human Rights blog's weekly roundup included the above post and drew attention to two listings by category of the cases - University of Law’s Trevor Jackson (click here - MS Word document) and from David Charlton (click here - Excel spreadsheet).

For some basic information about human rights in Europe and in the UK see Lawobserver.

Human Rights Watch - Human Rights debate in the UK

Addendum 7th May:

Manchester Evening News - The story of Auschwitz survivor Mayer Hersh - MBE tribute to Auschwitz hell camp survivor Mayer Hersh - Mr Hersh said: "My story is important, because it serves as a warning that the blessings of peace, freedom, democracy, and the concepts of justice and human and civil rights, can never be taken for granted. They are delicate and precious gifts that we must take care to nurture in ourselves, in our children, and in our communities.”

1 comment:

  1. A lot of Human Rights Law is actually repeated in the underutilised CEDAW that UK signed up to and ratified.