Sunday, 10 May 2015

Our fundamental rights on the brink ~ some thoughts on Sunday morning

The very essence of the European Convention on Human Rights (ECHR) is respect for human dignity.  The ECHR is an instrument for the protection of individual human beings.  The Convention sets out certain principles which ought to apply in civilised democratic States.  As individuals under the rule of law, we have a right NOT to be treated by the State in a way that breaches those principles.

Before the Human Rights Act 1998 (HRA) came into force (on 1st October 2000), the UK faced an embarrassingly large number of successful cases demonstrating just how far our domestic law had departed from convention principles.  One of the enlightening features of the HRA has been that it has introduced an important dynamic to require the judiciary to bring the common law back in line with the ECHR.

All political parties
have their visceral hatred of certain legislation.  A Conservative government secured the enactment of the Industrial Relations Act 1971.  The Act set up the Industrial Relations Court.  It was detested by the Labour Movement and was repealed and replaced (under a Labour government) by the Trades Union and Labour Relations Act 1974.  Nevertheless, 'useful' features such as unfair dismissal were retained.  The Conservatives have a clear hatred of the HRA 98 and its repeal will come but what will this mean?

As things look at the time of writing, the UK (as a nation) will remain a member of the Council of Europe and will also remain a signatory to the ECHR.  The ECHR will therefore continue to bind the UK so far as international law is concerned and judgments of the European Court of Human Rights (ECtHR) to which the UK is a party will be binding, in international law, on the UK.

In the event of a ruling by the ECtHR against the UK, it is usual for the British government to bring forward amendments to English law so that domestic law complies with the ECtHR judgment.  Having said this, the issue over prisoner-voting remains to be addressed.

Before the HRA98, the citizen could use the right under the ECHR to petition the ECtHR.  This long and hard road to the EctHR was very costly and could only be embarked upon once all domestic remedies had been exhausted (Article 35 of the ECHR).  This road remains available and, even since the HRA, has been used at times.  Again, as things look, the hard road will not be closed though it might be that the government will seek to place some roadworks on it - (that remains to be seen).  The availability (or absence) of legal aid will be a major factor here.

The HRA made it unnecessary for many litigants to have to go via the hard road because the Act required our domestic courts (as public authorities) to act compatibly with Convention rights and also to take into account (not slavishly follow) judgments of the ECtHR.  In other, more simple, words: the HRA brought Human Rights home.  The HRA also empowered the higher courts to make a declaration of incompatibility if domestic legislation was found to be contrary to the ECHR.  Such a declaration does not alter domestic law but it triggers a process by which Ministers may ask Parliament to enact a remedial order to correct the problem.  Nevertheless, the right of Parliament to legislate as it wishes (including contrary to HRA rights) was retained but the government (acting via Parliament) would have to be very very clear about its intention to do so.

"Scrapping" the HRA is a Conservative manifesto commitment - see previous post.  A further commitment is a British Bill of Rights.  At the time of writing we have not seen the Bill that will repeal the HRA and we have not seen even a draft of the proposed Bill of Rights (BOR).  All of these ought to be the subject of extensive examination and consultation.  They must not be rushed through in the first 100 days as the new government hits the ground running!  If the BOR is to apply across the whole of the UK then clearly it will have to be acceptable to the people of all parts of the UK (England, Wales, Scotland, Northern Ireland).  Whether it will be so acceptable remains to be seen but something merely imposed by the Conservative dominated government is not likely to be politically acceptable even if they have a majority at Westminster.

For a more detailed look at that the Conservatives' manifesto said about human rights, please see Law and Lawyers 20th April 2015 - The Conservative Party manifesto and human rights.


Scotland and Human Rights Act abolition - Lallands Peat Worrier blog - 10th May 2015

Northern Ireland Human Rights Commission - About Human Rights

Human Rights - The Conservative Party proposals - 6th October 2014

Commission on a Bill of Rights Report and, UK Human Rights blog - What lies beneath the Commission on a Bill of Rights Report

UK Constitutional Law blog - December 2012 - The Commission on a Bill of Rights Report


  1. So if Scotland can't stop Westminster abolishing the HRA but Human Rights have been devolved under the Scotland, what's to stop the Scottish Parliament introducing its own legislation? Removing devolved powers from the Scotland Act is hardly a option.

    1. Thank you for this. On my next post (11th May) there is a link to an article which discusses this aspect in greater detail. It's worth reading. Thank you for the comment.