March 20, 2012 12:46 AM
By Michael Chizlett
There has been much debate in the wake of the ruling of the European Court of Human Rights (ECtHR) in Hirst v United Kingdom[1] in October 2005 that the UK had breached international human rights law by denying prisoners the right to vote. This debate has fuelled calls by conservatives for the repeal of the Human Rights Act and the creation of a UK Bill of Rights however the debate has often been mischaracterised and misconstrued. This article seeks to answer some basic questions about the Council of Europe, the ECHR, and the Human Rights Act, clarify what the real issues are being discussed and why we should keep the Human Rights Act intact.
What is the Council of Europe?
The Council of Europe is an organisation wholly separate from the European Union[2], born out of the horrors of World War 2. Its founding was a collective response to the radical evil of totalitarian states which brought the entire continent to its knees. The founding document states as a basic condition of membership that Member States "must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms"[3] these principles would be upheld in a new Convention signed in 1950 commonly known as the European Convention of Human Rights[4].
What is the ECHR?
The European Convention of Human Rights enshrines within its pages a commitment to uphold inter alia the right to life liberty and security, a fair trial, the freedoms of thought conscience and religion, expression assembly and association, and the prohibition of torture slavery and discrimination.
It sought to hold signatories accountable by providing a supranational court which could hear cases of human rights violations from across Europe.
What is the ECtHR?
Based in Strasbourg the European Court of Human Rights (ECtHR) is the ultimate authority on the interpretation of the Convention. Any "person, non-government organisation or group of individuals claiming to be the victim of a violation" of their convention rights has a right to apply to the Court conditional upon meeting the admissibility criteria which stipulate that applicants must have exhausted all avenues of legal challenge in their own national courts and any action must be taken within 6 months of the final decision date of the national tribunal appealed to.
The ECtHR interprets the Convention and can declare whether a national measure is in breach of the convention. Signatories "undertake to abide by the final judgement of the Court"[5]; if they refuse the Court may find a violation of paragraph 1 of the ECHR and "refer the case to the Committee of Ministers for consideration of the measures to be taken"[6] the measure has no real affect in law other than being labelled a human rights violator, this is often enough to ensure compliance.
Why was the Human Rights Act Enacted?
When the ECHR was signed it was assumed that the UK, with a long tradition in the assertion of individual rights, didn't need to integrate Convention rights into national law, as time passed however it became more and more clear that this simply wasn't true. Draconian legislation[7] designed to prosecute IRA terrorists in Northern Ireland demonstrated the fragility of liberty in the face of threats of violence and the need for a law to protect human rights and fundamental freedoms.
Prior to the Human Rights Act applications could still be made to the ECtHR but due to the admissibility criteria the average application took 5 years and £30,000 to get to Strasbourg[8]. As the convention was not part of the UK legal system national courts could not enforce the convention or ECtHR case law even though they knew that the applicant would succeed if it ever made it to the Strasbourg Court.
In response the Labour Party in its 1997 manifesto promised to "incorporate the European Convention on Human Rights into UK law to bring these rights home and allow our people access to them in their national courts"[9] after the election the government produced a white paper 'Rights Brought Home: the Human Rights Bill Cm 3782', the Human Rights Act was enacted in 1998 and brought into force in October 2002.[10]
What does the Human Rights Act do?
The Human Rights Act 1998 does not import the Convention wholesale into UK law rather it provides that national courts must interpret national law so far as is possible compatibly with the Convention[11] where it cannot do so it must make a declaration of incompatibility[12] which triggers the optional power of a government minister to amend legislation in order to resolve the issue.[13] Such a declaration is only done as a last resort and does not affect the validity of an Act of Parliament unless a government minister decides to amend it.[14] The HRA also obliges government bodies to act compatibly with Convention rights[15]
What is the Debate About?
In 2010 the Conservatives declared in their manifesto that if elected they intended to "replace the Human Rights Act with a UK Bill of Rights"[16] On 18th March 2011the government established an independent Commission on a Bill of Rights to consider the reforming the way our international obligations on human rights are enforced in the UK.[17]
Essentially the point of the creation of a UK Bill of Rights and the repeal of the Human Rights Act 1998 is to decuple UK law from the rulings of the ECtHR. Applicants could still apply to the ECtHR but national courts would not have to take the Strasbourg Courts rulings into account, the aim being to prevent rulings of the ECtHR from having a direct affect on UK law.
[1] Hirst v United Kingdom (No. 2) (2006) 42 EHRR 41
[2] Council of Europe Website: Council of Europe in brief, 'Do not get Confused' (http://www.coe.int/aboutCoe/index.asp?page=nepasconfondre&l=en)
[3] The Statute of the Council of Europe 1949, Article 3 (http://conventions.coe.int/Treaty/en/Treaties/html/001.htm)
[4] The European Convention of Human Rights (http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf)
[5] Article 46 (1) ECHR
[6] Article 46 (5) ECHR
[7] The Prevention of Terrorism Act 1974, The Prevention of Terrorism Act 1976, The Prevention of Terrorism Act 1984 and The Prevention of Terrorism Act 1989
[8] DAVIS, 'Human Rights Law', 2nd edn 2009, OUP, ISBN 978-0-19-955434-8, p62
[9]WARNING POOR SOURCE -'new Labour because Britain deserves better' 1997 Labour Party Manifesto, Richard Kimber's Political Science Resources (http://www.politicsresources.net/area/uk/man/lab97.htm) cf: BBC News Website 'Labour's 1997 pledges: Home Affairs' 6th May 2002 (http://news.bbc.co.uk/1/hi/in_depth/uk_politics/2002/blair_years/1959859.stm)
[10] DAVIS, 'Human Rights Law', 2nd edn 2009, OUP, ISBN 978-0-19-955434-8, p61
[11] s3 HRA 1998 (http://www.legislation.gov.uk/ukpga/1998/42/section/3)
[12] s4 HRA 1998 (http://www.legislation.gov.uk/ukpga/1998/42/section/4)
[13] S5 HRA 1998 (http://www.legislation.gov.uk/ukpga/1998/42/section/5)
[14] R v A (No 2) [2002] 1 AC 45, Per Lord Steyn p68 para 44
[15] s6 HRA 1998 (http://www.legislation.gov.uk/ukpga/1998/42/section/6)
[16] 'Invitation to Join the Government of Britain' - The Conservative Manifesto 2010, pp 79 (http://media.conservatives.s3.amazonaws.com/manifesto/cpmanifesto2010_lowres.pdf)
[17] The Justice Website: Commission on a Bill of Rights (http://www.justice.gov.uk/about/cbr)
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