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The European Convention on Human Rights

The European Convention on Human Rights and Fundamental Freedoms is a treaty signed in 1950 by the then members of the Council of Europe. In this way, it predates the Euopean Communities and Union and arises from a quite different organisation. The two are linked, however, in that adherence to the Convention is now effectively a condition of membership of the EU. Additionally, the European Court of Justice refers to the Convention which influences its decisions, even though the EU is not a member of the Convention. Note that the European Court of Human Rights (described below) is not the same as the European Court of Justice. The judges are different and one sits in Starsbourg, the other on Luxembourg.

Click here to see the full text of the European Convention on Human Rights

See generally Council of Europe Human Rights Web and the official Council of Europe pages

The UK was a founding member of the Convention and was very influential in its design. It was amongst the first states to ratify the treaty. It has allowed individuals to make complaints to the European Commission on Human Rights since 1966. The influence of the Convention has been growing in the UK in the past decade or so. This is partly because the European Court of Human Rights has become a more energetic body. But, more funadamentally, there has been a strong lobby within the UK for a written bill (statement) of rights, and the Convention is seen as a ready made document for these purpose. This idea has been adopted as the policy of the Labour Government in 1997. Its ideas are set out in a White Paper issued in October 1997, Rights Brought Home: The Human Rights Bill, (CM 3782, London: HMSO) and then the Human Rights Bill (as introduced in the House of Lords on 23 October 1997) now passing through Parliament and which is likely to come into force sometime in 1999 or perhaps 2000.

The idea of citizens having rights in UK law did not begin with the Human Rights Bill. The recognition of rights in English law does have an ancient history going back to statements such as Magna Carta 1215-95 and Bill of Rights of 1689.

See the full text of Magna Carta 1215-95 in the following web sites:

See the full text of Bill of Rights of 1689 at ftp://wiretap.spies.com/Gov/World/england.bil

 

The judges have also recognised various broad common law principles, such as the right to liberty as recognised in Christie v Leachinsky [1947] AC 573. (This case will be available in full soon).

However, these pages will concentrate on the future rather than the past as represented by the Human Rights Bill and the Convention on which it is based.

Convention history and rationale The European Convention on Human Rights and Fundamental Freedoms is the most important instrument of international law to emanate from the Council of Europe. Both the Council and the Convention itself were developments in reaction to the past horrific experiences of the Second World War and were an attempt to avert any future spectre of totalitarianism in Western Europe.

The Council convened in 1948, and the Convention was drafted in 1949. A major precursor was the United Nation’s United Declaration of Human Rights which had been adopted in 1948, but English civil servants, reflecting English common law perceptions of rights, were also highly influential (reflected in rue Ernest Bevin). The Convention was finalised in 1950, with the UK as an original signatory and ratifying state in 1951. It came into force in 1953. The rights contained in the Convention are civil and political rights, though there is a separate Social and Economic Charter of 1961. Since 1953, the Convention has experienced phenomenal growth in its stature in at least three respects.

The rights and freedoms contained in the Convention The Convention contains both substantive and procedural rights. It has been argued that the Convention bodies have been more sure-footed when dealing with procedure, and it is certainly true that matters of substantive decision are often avoided by reference to the concept of "margin of appreciation" by which the Convention adjudicators defer to the greater knowledge and experience of domestic decision-makers arising from "their direct and continuous contact with the vital forces of their countries". It is the national authorities who are expected to be the prime protectors and overseers of human rights, and it has been emphasised by the Court of Human Rights that the appropriate standard by which to judge compliance with the Convention is akin to that in English law judicial review. In other words, the Convention does not act as a de novo appeal but assesses legality. Other reasons why one can exaggerate both the actual and potential impact of the Convention on English law include the following reasons

At the same time, the potential for invocation of the Convention is tremendous, especially as the adjudicative agencies adopt a teleological and dynamic approach in order to realise the fundamental objects and purposes of the Convention in a changing world, namely the protection of individual human rights and the promotion of pluralistic democracy. Accordingly, the Court will demand that national laws be in line with, and proportionate to, these objects, and it has adopted an autonomous jurisprudence as to the interpretation of the Convention which does not simply borrow from national viewpoints.

Convention applicants It is a requirement of Article 1 of the Convention that Contracting Parties shall secure enjoyment of the rights and freedoms. Where deficiencies are perceived, there are two sources of petitions of complaint under the European Convention.

Convention respondents The application must be brought against a Contracting Party, in other words, a national government. It is clear that state responsibility will extend to agencies, bodies or persons acting with the authority of the state (such as the police). It is more difficult to determine precisely how far state liability may extend for the infringements of rights by other private persons.

By reference to Articles 1 and 13 (which requires Contracting Parties to provide an "effective remedy" under national law for claims under the Convention), it is established that the national state must provide a satisfactory legal framework, in other words, one which allows Convention rights to be secured but in a way which is proportionate and consistent with other Convention rights. For example, states have been held to be in breach where laws did not allow for the prosecution of a sexual assault on a mental patient, or where in practice the free speech of demonstrators and policing action against disruptive and violent counter-demonstrators were inadequate.

 

PROCEDURES UNDER THE CONVENTION

(subject to reform in November 1998)

 

 

 

Convention procedures - the Commission Any petition is first considered by the Commission of Human Rights, consisting of one member for each Contracting Party, elected by the Committee of Ministers. It may sit in plenary session, in chambers or in smaller committees. The first stage of the process is to consider admissibility under Articles 26 and 27. Most cases fail to pass these filters on the grounds of

There is no form of appeal to the Court against rejection on any of these grounds. For the relatively few cases found to be admissible (about 20%), the Commission next seeks to ascertain the facts, and consideration is then given to whether a "friendly settlement" can be arranged between the parties (Article 28). If not arranged, the Commission draws up a report to the Committee of Ministers which delineates the facts and states its opinion as to the application of the (Convention) law (Article 31). The Commission can further decide to refer the matter to the Court; the state against whom the complaint was made, or whose citizen has made a complaint or which has made itself an inter-state complaint can also choose to refer the matter to the Court (Article 44). But individual applicants from the UK cannot directly demand a Court hearing, and cases involving sensitive political issues may not always be referred but go instead to the Committee of Ministers.

Convention procedures - the Court The judges of the Court, which commenced work in 1959, may sit in a plenary Grand Chamber or, more usually now, in chambers of nine judges (Article 43). Proceedings involve both the submission of written memorials (including possibly amicus curiae briefs) as well as oral submissions by both applicant and government, as well as a delegate from the Commission. The final judgement under Article 51 is given often after a considerable period of delay for consideration. The Court is not bound by its own precedents, though it has stated that it will usually follow them in the interests of certainty and so judgements do invariably refer to the considerable body of previous decisions, both of the Court itself and of the Commission. The body of a judgement cannot be divided into ratio decidendi and obiter dicta; all statements, whether general or specific, are significant both for the instant case and for future litigation. The Court can demand the payment of just compensation to the applicant - anywhere up to about 50,000 (Article 50). It is also common for a successful applicant to be awarded costs and expenses. However, enforcement and wider reforms to bring domestic law into line with Convention requirements as interpreted by the Court (or the Commission) are concerns for the Committee of Ministers to which the judgement is transmitted (Article 53).

Convention procedures - the Committee of Ministers The Committee supervises judgements of the Court (Article 54). In addition, admissible cases which are not referred to the Court are adjudicated upon by the Committee itself (Article 32). In this way, the ultimate enforcement of the Convention resides with the traditional arena of high diplomacy, which can lead to disappointment for the individual applicant whose cause may be lost in the generality of political horse-trading.

Convention procedures - remedies As far as the United Kingdom is concerned, the judgements and decisions of the Convention bodies are essentially declaratory of international law. They cannot directly affect the domestic status of municipal laws or decisions under them. However, the United Kingdom Government, as a Contracting State wishing to remain a party to the Convention, has invariably responded to adverse decisions and awards, though not always as expected or with alacrity.

Convention procedures - comment As should already be evident from the foregoing description, the working of Convention procedures are often cumbersome and politically influenced and consequently slow and liable to take unexpected turns. For a case to pass from application to Court judgement, a time lag of five years is common, the early part of which will barely be covered by legal aid. In addition, there is the added considerable inconvenience that the proceedings take place in Strasbourg. Some of these problems will be alleviated later in 1998 when Protocol 11 comes into force. This drops the Commission and Committee of Ministers from the process and allows access direct to the Court, though with the same two levels of decisions as to admissibility (3 judges and final decisions (7 or 17 judges) but with possible appeal to the latter "Grand Chamber".

Convention impact in the UK Despite these difficulties, there have been about two dozen cases from the UK to the European Court of Human Rights and adverse judgments have prompted some profound changes in law. Here are some recent examples through the European Court of Human Rights and these include the full list of cases before the European Court of Human Rights starting from 1996 up until now:

[The cases in bold are the most interesting ones so far and it may help the readers to choose which of these cases to examine!]

Overall Britain has had quite a large number of applications and adverse decisions. But contrary to some rumours, the rate of violation found by the Court is not wildly out of line with other countries of a similar population size (slightly better than France, much better than Italy, much worse than Germany). And account must also be taken of the fact that almost all the other countries - France, Germany, Italy - have constitutional courts which can often avoid the washing of dirty linen in Strasbourg.

 

IMPACT OF ECHR BY STATE TO 1997

State

Applications in 1994 to

E Comm HR

References to E Ct HR 1960-97

Adverse judgments of E Ct HR

Belgium

78

40

24

France

439

99

42

Germany

188

33

14

Italy

507

251

98

Spain

138

19

8

UK

236

95

47

 

English law and the European Convention

Relationships with UK law up to present As an instrument of international law, the Convention was not per se directly part of UK law. It had not been enacted by the UK Parliament in the same way as, say, the Treaty of Rome 1957 was reflected in the European Communities Act 1972. Nevertheless, even before the Human Rights Bill, the Convention has affected UK law in a number of ways

Relationships with UK law in the future The Labour Government’s election manifesto for the May 1997 campaign gave a firm commitment to incorporate by statute the European Convention into UK law. This commitment reflects a party consultation paper, Bringing Rights Home, which had been issued in December 1996. We now have the details of these proposals in the White Paper, Rights Brought Home, and in the Human Rights Bill 1997-98. The following are the main features of the proposed legislation with some comments and analysis on what is said and what is not said. (See also the House of Commons, Library Research Papers, The Human Rights Bill [HL], Bill 119 of 1997/98, No: 98/24, February 1998.)

(a) The central feature is the indirect incorporation of the European Convention into UK law. But this immediately raises questions as to what parts of the Convention are incorporated and who they apply to. The parts of the Convention covered are (by clause 1 and Schedule 1) Articles 1 to 12, and the Bill also requires regard to the decisions of the Court, Commission and Council on these provisions (clause 2). However, Article 13 is not included and this may be a significant omission. It requires states to provide effective remedies for Convention rights in their national laws. Its exclusion suggests that it is not intended that the Bill should be used by the judges as the basis for major legal surgery; they are to be confined to cl.8 remedies but not the invention of wholly new causes of action or legal doctrines. Conversely, Article 15 is included. This allows a state to "derogate" from its obligations to respect rights. This is currently in use in Northern Ireland to allow the detention of terrorist suspects for 7 days without any judicial authorisation as authorised by the Prevention of Terrorism Act. This will continue, and the existing derogation is recognised (under clause 14 and Schedule 2) for 5 years.

(b) The Bill is to apply to "public authorities" and it becomes unlawful for them to act in a way which is incompatible with the Convention (clause 6). There is a wide definition of public authority - it includes local and central government, authorities exercising public functions (this could include utilities companies) and also the courts. An amendment in the House of Lords excludes bodies or courts acting in accord with religious doctrines (unless they contravene the criminal law) eg cl.2(4), 6(5), 7(8). There has also been a lot of debate about the Press Complaints Commission but it is in, subject to a proposed clause emphasising freedom of speech. Parliament (except the Appellate Committee of the House of Lords) is expressly not part of the definition of public authority. Parliament can choose to override or disregard rights as it so wishes. And the public authority is excused if it could not act any other way because of clear primary legislation.

(c) As for the courts, the Bill means that the interpretation and development of common law and the interpretation of statutes especially must take the Convention into account according to clause 2. It becomes a relevant consideration even in litigation between purely private parties, though by its vague nature will rarely determine per se any result. So, the courts must interpret the laws (past, present and future) as far as possible in a manner which is consistent with what they interpret as the requirements of the Convention. In practical terms, this will extend the indirect impact of the Convention in English law by ensuring it can come into play in all cases, including (unlike at present) where a statute is clear within its own terms or where common law is settled. Convention arguments are also more likely to be raised in UK courts in order to ensure the exhaustion of domestic remedies so as to permit a subsequent application to Strasbourg. But this is not direct incorporation in the view of the Lord Chancellor - the Convention is not decisive - it is a shaper not a mover.

(d) The Convention can be raised as an argument in any court at any stage of a "normal" case or it can be used as the foundation for an action in which case the process is to be by way of judicial review or appeal (clauses 7, 9). So, the Convention right may be used as an argument in two ways.

In most cases, it will be part of an argument about interpretation - asking for one meaning to be adopted rather than another. This could arise in a magistrates’ court, though the prospect of extensive and complex submissions about Convention law may be a reason to decline jurisdiction in an either way case - is that right?

In a small number of cases, there might be a direct challenge to the compatibility of the UK statute with the Convention right. Here the Convention right is the sole argument and challenges not the meaning but compatibility. Such a challenge can only be made in a higher court - not a magistrates’ court or a Crown Court - the process has a similar status to judicial review, so I think the idea is that a magistrate would adjourn the case pending such a challenge. And the claim can only be raised by a "victim" (clause 7) which seems a narrower rule of standing than for judicial review and one which should rule out actions by pressure groups. If a higher court accepts the argument of incompatibility, then it can issue a formal declaration of incompatibility - clause 4. In the case of a statute under challenge, the declaration does not invalidate the law, since courts are not given the power to invalidate legislation out of respect to parliamentary sovereignty and its democratic mandate - see clause 3. The position is rather less clear on what happens in relation to incompatible common law, since clause 4 only applies to incompatible statutes. Total incompatibility is less likely because of the greater flexibility of common law but has already arisen in the case of Malone in relation to the lack of a right to privacy. Given the omission of Article 13, I doubt that the Bill requires the judges now to do any more - there is no direct incorporation of Convention rights. In summary, the courts are not to be given a "strong" form of judicial review. In other words, they may interpret legislation in a way which seeks to achieve compliance with, or minimal detriment to, rights, but they will not be able to invalidate inconsistent legislation and certainly must accept without question later inconsistent legislation which expressly states that it is to prevail "notwithstanding" the Bill of Rights. This has disappointed some human rights champions. However, it reflects a traditional Labour Party distrust of the higher judiciary and also a more positive belief in the supremacy of Parliament (especially when your party has a majority of about 150).

(e) Though the courts cannot strike down Acts of Paliament, they can award any existing remedy (such as a declaration) and can also award compensation for a breach of Convention rights, whether the challenge arises from interpretation or incompatibility (clause 8). But no criminal offence is created (clause 7). And it is not possible to be awarded damages in respect of the good faith failure of a court to recognise or enforce rights (clause 9) but courts can be liable for compensation - to be paid by the Crown - cl.9(3). Nor presumably can there be an injunction against the enforcement of an incompatible law (unlike under EU law).

(f) If a declaration of incompatibility has been issued by a British court (or when there is an adverse judgment from the European Court of Human Rights), there is to be a fast track procedure to provide quick reform of the law. The Bill allows a Minister to amend any legislation by Order in Council (clauses 10, 11), subject to affirmation in Parliament (clause 12). So, there is no need for an amending Act. This is itself a very worrying denial of democracy, and so there has been an amendment to the Bill requiring the order to be issued in draft and giving 60 days for consideration. It is notable that responses to deep inconsistencies at this level are to be for Parliament not the courts. But don’t imagine that Parliament is the great advocate of rights in comparison to the judiciary. In fact, its record in protecting vulnerable individuals or minorities is often poor - after all, many of the cases I have cited arose out of the application of legislation, such as the Prevention of Terrorism Act, rather than out of common law rules.

(g) To try to ensure such problems do not arise, in future, Ministers proposing new legislation in the future will be required to make a statement about compatibility with the Convention (clause 19). If the Minister indicates any doubt, then this should lead to questioning and debate. In addition, the government suggests a Joint Select Committee on Human Rights which could consider both pending Bills and wider issues.

(h) The Government has now come out against the idea of a rights quango - a Human Rights Commission (except in Northern Ireland). It might be useful in order to conduct investigations and to help litigants. But it would cost money and it might simply tread on the toes of the CRE and EOC. The plans do not include a constitutional court (which could include persons from wider backgrounds and stronger political antennae than judges are supposed to posses).


The future ?

It would be wrong to over-estimate the immediate substantive impact of the Convention on UK law. You now know

it was drafted with English law models in mind,

it is a rather reticent and conservative statement of rights

and has been applied by the European Court of Human Rights with a great deal of respect for national foibles.

Furthermore, the White Paper and the Bill are modest and pragmatic, and also expreslly respectful of UK constitutional traditions. The main reason given in the White Paper for these reforms is simply to avoid the cost and delay of taking a case to Strasbourg, and only further into the Paper does one learn of the idealistic aim of ensuring that the law should better reflect the importance of rights.

On the other hand, the incorportaion is a major part of a major new constitutional setlement which is emerging (it also includes devolution, reforms in Northern Ireland) changes to the House of Lords, and electoral reform). That we should view the impact as being more at a level of principle is a view shared by the Lord Chancellor, Lord Irvine of Lairg who said in 6 December 1997:

"This Bill will therefore create a more explicitly moral approach to decisions and decision making; will promote both a culture where positive rights and liberties become the focus and concern of legislators, administrators and judges alike; and a culture in judicial decision making where there will be a greater concentration on substance rather than form."

See the full speech of Lord Irvine of Lairg, The Lord Chancellor at THE TOM SARGANT MEMORIAL LECTURE, entitled The Development of Human Rights in Britain Under an Incorporated Convention on Human Rights, 6:45pm Tuesday, 16 December 1997, Law Society Hall, London.

 

NOW IT IS YOUR TIME TO SPEAK !!!

What problems or issues or changes can you foresee?

E-mail us at lawya@leeds.ac.uk to tell us your views.

 


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Last Updated October 1998