Critically Assess The Principal Characteristics And Purpose Of The European Convention On Human Rights

This essay discusses the characteristics and purpose of the European Convention on Human Rights (ECHR). The ECHR has been incorporated into UK law by virtue of the Human Rights Act 1998 (HRA 1998). The essay discusses how the ECHR has been incorporated into the UK legal system through the enactment of the HRA 1998 as well as through the judgments of the courts in the UK which have largely interpreted the statutory law in the UK in consonance with the rights protected by the ECHR in order to ensure that the statutory law in the UK remains compliant with the ECHR rights.

The Council of Europe adopted the ECHR for the purpose of recognising and protecting certain human rights across Europe. The purpose behind the adoption of the ECHR has been clearly noted by the Conference of the International Committee of the Movements for European Unity at the Hague in May 1948 as follows:

In line with the above noted observation of the Conference of the International Committee of the Movements for European Unity, the EU has taken some steps that have ensured that the protection of human rights in Europe is enforced through a system of adequate sanctions. This means that the state parties to the ECHR have been made to enforce the rights guaranteed under the ECHR through judicial mechanisms; the judgments of the courts in Europe are enforceable in the national jurisdictions as well. Consequently, ECHR rights and the ECtHR mechanism have been said to have established the “most successful system of international law for the protection of human rights” and the “most advanced forms of any kind of international legal process.” The substantive list of human rights that are recognised and protected by the ECHR include the right to life (Article 2), right against torture (Article 3), right to liberty and security (Article 5), right to fair trial (Article 6), right to privacy (Article 8), and right to freedom of religion and conscience (Article 9).These ECHR rights were directly applied in the UK through the enactment of the HRA 1998. The ECHR defines the human rights that are recognised by the convention and also provides an enforcement mechanism as per which the rights can be enforced, and their violation redressed. The European Court of Human Rights (ECtHR) is the principal judicial mechanism that is given the functions to interpret and enforce the rights in the ECHR. Individuals whose rights under the ECHR are breached have direct access to the ECtHR. The decisions of the ECtHR are binding and have to be given effect to by the national courts of European state parties to the ECHR. The doctrine of margin of appreciation has been developed by the ECtHR for the purpose of giving some flexibility to the national governments to divert from the ECHR principles and standards. Therefore, although the ECHR provides a list of substantive and uniformly applicable human rights, states have been allowed some flexibility for the purpose of allowing states to adhere to national conditions instead of ECHR standards. Thus, due to the applicability of certain local conditions related to national security, national morality or religious feelings, states may be allowed to derogate from the standards of the ECHR and adhere to national conditions instead. In Frette v France, the doctrine of margin of appreciation was used by the ECtHR to allow France to prohibit homosexual adoption through national legislation. It may however be noted that the doctrine of margin of appreciation can only be used to a reasonable degree and cannot be used to completely annihilate the human rights standards set by the ECHR.

The membership of the EU is not linked to the ECHR, which means that a state party to the ECHR will continue to remain a party to the ECHR even if they exit EU. This is relevant in the current possibility of BREXIT and the UK leaving the EU. The White Paper Legislating for the United Kingdom’s withdrawal from the European Union, has already clarified that even in the event of BREXIT, UK will still be bound by ECHR rights.

The UK is a member of the European Union and also a signatory to the European Convention of Human Rights. As a member of the EU, the UK has to give primacy to the EU law as per the position taken by the European Court of Justice in Costa v Enel. In order to ensure that the courts in the UK will interpret the domestic law in consonance with the European law, the Parliament has adopted specific legislation to give primacy to the European law. In order to understand how the ECHR has come to be incorporated in the UK legal system, it is important to understand the background of primacy of EU law and ECHR rights in the UK legal system. In the following section, the essay will discuss the ECHR as well as its incorporation in the UK legal system. HRA 1998 has incorporated the ECHR provisions into the UK legal system. Section 4 of the HRA 1998 has allowed British courts to interpret parliamentary legislation in consonance with the ECHR principles. Section 4 allows courts in the UK to declare incompatibility between statutory law and ECHR rights:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

Apart from Section 4, another important provision that speaks to the incorporation of ECHR rights in the UK is contained in Section 6, which provides that the actions of the public authorities must be in compliance with the ECHR provisions. Therefore, there are two specific impacts of the ECHR rights on the English legal system: first, while interpreting domestic legislation involving human rights issues, courts and tribunals must interpret the legislations in a way that gives effect to the ECHR rights; second, the actions of the public authorities must be in compliance with the ECHR provisions. Courts in England and Wales have used these powers to interpret parliamentary legislation in a way that may be contrary to the legislative intent. An example can be seen in the case of A & Others v. Secretary of the State for the Home Department, in which the House of Lords invalidated a parliamentary law, the Anti-Terrorism, Crime and Security Act 2001, that allowed indefinite detention of terror suspects by holding that such detention was contrary to the human rights recognised by the ECHR, including Article 5 of the ECHR, and incorporated in UK law through the HRA 1998.

Similarly, the House of Lords gave precedence to ECHR rights over domestic law in the Attorney General’s Reference (No. 4 of 2002). It is also noteworthy that the UK courts have not necessarily taken such interpretative stance with respect to statutory law after the HRA 1998 came into force. There is at least one authority which indicates that even prior to the HRA 1998 coming into force, the courts in the UK had come to recognise the rights in the ECHR as having value to the English legal system as well. This can be seen in the judgment of Lord Bingham in Chief Constable of Kent Constabulary v. Kent Police Federation Joint Branch Board and Another. In this case, Lord Bingham decided that although Article 5 of the ECHR was not incorporated into the UK law, the principle of right to life embedded in Article 5 was also recognised and protected by the English law.

The above discussion indicates that there has been a significant impact of the ECHR in the UK. There are cases which indicate that the UK courts are reluctant to interpret statutory law in a way that makes the interpretation of the statutory law contradictory to the ECHR rights. For instance, in R (Ullah) v Special Adjudicator, the House of Lords observed that the courts in the UK should avoid diluting the jurisprudence developed by the ECtHR in cases involving human rights. In R v Horncastle, the UK Supreme Court has reiterated the significance of the ECtHR jurisprudence and held that as far as possible the UK courts should take into consideration the jurisprudence developed by the ECtHR. The ECHR is the principal human rights treaty of the EU and the ECtHR is the court of final jurisdiction on the ECHR rights, which says a lot about how significant the human rights recognised by the ECHR are. The significance of these rights and the ECtHR as a judicial body for the UK courts can also be gauged by the observation of the House of Lords in Ullah where it noted that that UK courts should not dilute or weaken the effect of the Strasbourg case law "without strong reason.” This indicates that while the UK courts are not always bound to follow the ECtHR jurisprudence, they should follow it unless there is a strong justification for them to not follow it.

Recently, the impact of the ECHR rights has been felt on the interpretation of immigrant rights, particularly, right to life, freedom from torture or right to family life, under the Immigration Act 2016. In a case, the court refused to allow deportation of an immigrant on the ground of possible torture, which would violate the petitioner’s human rights under the ECHR. In another case, the court preferred to interpret rights of immigrants as per the Article 8 right to family and private life. The House of Lords has also taken a liberal approach to the interpretation of rights of immigrants as a case decided by it under Section 84(1) of the Nationality, Immigration and Asylum Act 2002 indicates, in which the court held that the statutory provision should be interpreted widely in order to protect the rights of the petitioners under Article 8 of the ECHR.

These authorities clearly indicate the judicial reasoning of the UK courts with reference to the significance of the ECtHR jurisprudence. The effect of this judicial reasoning is that the ECHR rights have come to occupy a significant place in the UK and the courts in the UK have also accepted the primacy of the ECHR rights. The Supreme Court is also required to consider Section 3 of the HRA 1998, which requires interpretation of statutory law 'so far as it is possible to do so', in compliance with the ECHR rights. The Supreme Court has already used such interpretative functions under the HRA 1998, Section 3 to ensure protection of human rights or provision of a remedy if possible to the petitioners in human rights related cases. For instance, in Birmingham City Council v Abdulla, the Supreme Court by majority took the decision to allow an equal pay claim in the High Court, instead of the Employment Tribunal, because the limitation period for the High Court to hear the claim was six years whereas for the Employment Tribunal it was six months.

Due to the applicability of ECHR rights through the HRA 1998, and the need to implement the principle of compatibility between the ECHR and the domestic law in the UK, the dimensions of judicial review have also come to be relevant to legislative law, which is diluting the traditional norms of parliamentary sovereignty convention as per which the law made by the Parliament is outside the scope of judicial review. Judicial review has been allowed in a limited sense over executive action, and that too for the purpose of testing the executive action’s validity on the basis of statutory law. However, while allowing judicial review on ministerial action, courts have generally kept away from the testing of statutory law. In the UK, the application of the principle of parliamentary sovereignty has meant that political questions are treated by the judiciary to be outside the scope of judicial review.

To conclude this essay, it may be reiterated that the human rights recognised and protected by the ECHR have been enforced through judicial mechanisms where the ECtHR plays an important role as the principal and final interpreter of the ECHR rights. Moreover, courts in the UK are bound to follow the reasoning of the ECtHR as far as possible. In this, some role is played by the doctrine of margin of appreciation to allow national governments to adhere to national conditions in some cases where deviance from the ECHR is allowed to the state governments. Apart from that, the jurisprudence developed by the courts in the UK clearly indicates that the courts are bound to follow the line of reasoning developed by the ECtHR. The membership of the EU is not relevant to the membership of the ECHR. Even if BREXIT goes through, ECHR will be applicable to the UK and it will be bound by it until it remains a state party to the ECHR.

Table of cases

Abu Qatada v United Kingdom (2012) 55 EHRR 1.

A & Others v. Secretary of the State for the Home Department [2004] UKHL 43.

Attorney General’s Reference (No. 4 of 2002) [2004] UKHL 56.

Beoku-Betts v SSHD [2008] UKHL 39.

Birmingham City Council v Abdulla [2012] UKSC 47.

Bibliography

Books

Bjorke E, Domestic Application of the ECHR : Courts as Faithful Trustees (Oxford: Oxford University Press 2015).

Fenwick H, Civil Liberties and Human Rights (Oxon: Routledge, 2007).

Janis MW, Kay RS, and Bradley AW, European Human Rights Law: Text and Materials (Oxford University Press 2008).

Keller H and Sweet AS, ‘The reception of the ECHR in national legal orders’, in Helen Keller and Alec Stone Sweet (eds.), A Europe of rights: the impact of the ECHR on national legal systems (Oxford University Press 2008).

McIntyre E, Business Law (Pearson 2018).

Journals

Dickson B, ‘Activism and Restraint within the UK Supreme Court’ (2015) 21 (1) EJoCLI.

Letsas G, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.

Others

Department for Exiting the European Union, ‘Legislating for the United Kingdom’s Withdrawal from the European Union’ (15 May 2017) accessed < https://www.gov.uk/government/publications/the-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union>