It is now almost 60 years since the European Convention on Human Rights came into force (on 3rd September 1953). What does it seek to protect? At its most basic level it protects various rights and freedoms without which human existence would be intolerable.
The most fundamental right is that to life itself. It is on the basis of this that the law has developed a requirement for a through inquest where the State (or its agents) may have had a hand in a death. The right not to be subjected to treatment which is degrading (don't just think of the torture chambers of despotic regimes but think of mentally ill persons in hospital etc). The right to liberty and security (so that the powers of the State to arrest people are clearly defined in law and properly used). The right to a fair trial when the power of the State is lined up against you - a right which must apply no matter what the charge or the person. Freedom from retrospective criminal law (always a useful tool for despots seeking to destroy his opponents). The right to respect for private and family life (for example, protecting families against removal of their children except for very good and proper reasons). The vital democratic freedom of thought, conscience and religion. The right to marry and to found a family. The late Lord Bingham asked:
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
The influence of the Convention has been massive and has brought about fairer and more humane law in many areas - please see the Factsheet for some examples. The Convention acts as a long stop on governmental power. For this reason, the Convention (and the Human Rights Act 1998) are under sustained attack from a number of notable British politicians who seek to enhance their own power at the expense of the rights and liberties of the British people. Such politicians are, all too often, aided and abetted by popular newspapers particularly when some 'hate figure' such as Abu Qatada (recently returned to Jordan) is in the news. Over concentration on such high profile cases produces a distorted image and hides the good which has come from the convention. Just a little of that good work may be seen by reading the Factsheet.
Posts on Human Rights:
Domestic law and the European Convention on Human Rights - Part 1 - 5th May 2013
Domestic law and the European Convention on Human Rights - Part 2 - 7th May 2013
Domestic law and the European Convention on Human Rights - Part 3 - 14th May 2013
Domestic law and the European Convention on Human Rights - Part 4 - 18th May 2013
Good stuff.
ReplyDeleteWhere the Tories and UKIP and others fail on their plans to withdraw from the ECHR shows their utter ignorance of the Convention a British Government signed and ratified.
Firstly, getting out temporarily, as Theresa May suggested. Also, we MAY not do that, we either go completely or we stay. There is no option to do what she suggested.
As for leaving (denouncing the Convention) yes, that can be done, BUT if we did, all and any matters which arose before the date of denunciation would still come within the jurisdiction of the Court, we signed up to that. So, from our accession date to the date of denunciation, cases would go to Strasbourg. And there would be no British judge on the Court, and I'm not even sure about representation by the UK is such cases brought before the Court.
Ah, change the HRA 1998 or have a Bill of Rights. Hmmm but nothing can result in people having less rights than they have under the ECHR, although the Bill could add or strengthen rights.
They all talk about subsidiarity. Make decisions here. Well the ECHR is designed precisely to do that. So when we incorporated A's1-12 and 14 into the HRA 1998, why did we omit A13? That is the article that specifies subsidiarity for allegations of breaches of rights under the ECHR by stipulating that states parties will set up national tribunals for that very purpose. Only after cases have gone through these should cases go to Strasbourg.
So why was this not done? Presumably, as it took the UK 50 years even to get to the HRA 1998, it is that vexed issue of parliamentary sovereignty. Can't have a Court overriding the will of Parliament, we have instead the device of Declarations of Incompatibility where the court delivers a judgment based on current UK legislation but sends to the relevant minister the said declaration that the court is of the opinion that the legislation is not compatible with a provision of the ECHR, the minister takes it quickly before Parliament and there is then a decision whether or not to amend said law or part of it as appropriate. Will of P. thus upheld.
This is thorny but in my view an amendment to the HRA 1998 would incorporate A13, (defining it either as a new body or assigning that function to existing Courts as defined - e.g. High, Appeal, Supreme?). There would be, at the final stage of such a tribunal a device where, if the Court found that the Government had breached the Convention and that this involved legislation deemed to be in breach of the ECHR, the matter would then go to Parliament. If the law were then changed and the Court deemed this was now not a breach, the matter would be resolved e.g. by granting compensation, making a suitable Order etc.
If Parliament decided not to change the law, then the Court would make a suitable declaration of non-resolution and the plaintiff would then be at liberty to take the case to Strasbourg. I think also one could leave the Declaration of Incompatibility to judges but perhaps allow them in lower courts than the High upwards.
Thank you for this comment. Article 13 is not a convention right within section 1 of the HRA 1998. However, I am not sure it needed to be since section 8 of the HRA deals with judicial remedies which are available via the normal courts / tribunals in the UK.
DeleteI have no doubt that some preferred the pre-HRA98 position where the Convention was binding on the UK in international law only but convention rights were not directly built into domestic law. Even then quite a number of Strasbourg decisions eventually resulted in amendments to law and practice in the UK. However, the British government was known to be rather embarrassed at the number of cases which got to Strasbourg and so the HRA was enacted along with the clever slogan 'Bringing Rights Home.'
The Convention itself requires domestic avenues of redress to be exhausted before the case can even get on the starting blocks at Strasbourg. In my opinion, there are enough control mechanisms already to weed out the weak / trivial etc. cases. The HRA98 scheme is adequate and has proved its worth.
I would not favour allowing lower courts to make Decs. of Incomp. These are rightly (I think) left to the courts with greater authority - High Court and above. There is nothing to prevent the judiciary in the lower courts saying that they think there is an incompatibility but, at this stage, we are obliged to apply the statute. I have not personally come across a need to do this - (it may well have happened) - but it is part and parcel of the HRA98 scheme. Most lower courts (as public authorities) seem to apply convention rights on a daily basis without too much of a problem.
Questions of withdrawal from the Convention are being raised because of the attitudes of certain Ministers who are, to be frank, only interested in maximising executive powers. (The Supremacy of Parliament is capable of being a tyrannical doctrine in itself. A fortiori where Parliament is dominated most of the time by the executive). Temporary withdrawal from the entire convention is not (as I see it) permissible - (questions of derogation are a separate issue). Permanent withdrawal is permissible but would, as I see it, necessitate withdrawal from the Council of Europe as well as the EU since adherence to the convention is a key aspect of membership of those bodies. I do not (yet) believe that Ministers wish to reduce their influence on the European stage to that extent.