ECHR in the UK

Traditionally, parliamentary sovereignty has been a basic principle of the UK Constitution. The European Convention on Human Rights and Fundamental Freedoms was formulated by an International Treaty after the Second World War.

The Convention was drafted and adopted under the auspices of the Council of Europe. It guarantees the protection of basic human rights against State abuse.

Although the United Kingdom was a party to the Convention since 1953, the Convention rights were not directly applicable in the UK until the commencement of the Human Rights Act 1998 in 2000. Prior to that, the Convention was part of international law only.

The Human Rights Act requires courts to give effect to Convention rights and make declarations of incompatibility where domestic law is in conflict. Laws are to be interpreted in conformity with Convention rights. The method of enactment of the Human Rights Act does not provide for direct judicial invalidation of incompatible laws, unlike the position in many other States.

The Convention was influential prior to becoming part of domestic law, as a widely recognized human rights document. Some case law suggested the presumption that the Parliament would make its laws compatible with the Convention as the United Kingdom was a party to it. The House of Lords accordingly accepted that laws should be interpreted in a manner compatible with the Convention freedoms and principles. However, the principle was limited in scope.

The Council of Europe, which predates and is separate from the European Union, is a supranational body with its own Assembly, Secretariat, and judges (of the Court of Human Rights). Members of the Assembly may investigate human rights matters and make recommendations. The court consists of judges drawn from Member States for six-year terms. Some of its members overlap with those of the European Union.

Under the Convention, States or individuals may petition. Persons may only petition if they are individually affected by the subject matter. Resort to the European body may be permitted only if domestic remedies were exhausted. Domestic remedies, if available, must first be used. A time limit of six months applied (to be amended to four months).

A complaint may be considered only if it is admissible. It must not reckon a case in an existing matter that has been determined by the courts. The applicant must be adversely affected / substantially disadvantaged.

The courts give a reasoned decision. Member judges may give separate decisions. A decision of the Chamber of first instance may be referred to the Grand Chamber within three months. If not, it becomes final.

States must comply with decisions of the court. Sanctions lie under the Council of Europe procedures. Non-compliance may lead to ultimate expulsion from the Council of Europe, a matter that is not necessarily of assistance in the protection of human rights.

The States are accorded a margin of appreciation in relation to the protection of rights. This varies from country to country given the diversity of constituent members. States may derogate from particular parts of the Convention and enter a reservation. This is not permissible in relation to the basic protections from slavery, torture, right to life, and prohibition of retroactive criminal liability.

In a time of public emergency threatening the life of the nation, States may derogate from obligations to the extent strictly required by the exigencies of the situation, provided that they are not inconsistent with their duties under international law.

In addition to the principal substantive rights, there are a number of protocols to the Convention dealing with more general social rights, including education, free elections, freedom of movement, sexual equality, criminal appeals, and the abolition of the death penalty.

The Human Rights Act 1998 is directly applicable in the United Kingdom. Contravention of a Convention right may be the subject of direct legal action. Actions and administrative acts may be reviewed by way of judicial review. Breach of the Human Rights Act may be a defense in legal actions by public bodies. The Act does not allow striking down of legislation inconsistent with it.

Article 1 of the Convention requires that States must secure to everyone within their jurisdiction the rights and freedoms set out in the Convention. In the UK, the House of Lords has held that the Convention was generally limited to the jurisdiction but that in exceptional circumstances, it might apply outside the territory.

This might be the case where the State has control of a particular place or setting, for example, due to military action or assistance of another military. It applies to diplomatic embassies and consulates, ships, and aircraft flying the flag. It appears it does not apply to armed forces overseas that are not under State control.

The Act applies to the State and public bodies or public authorities as defined. It covers State departments and agencies. A public authority under the Human Rights Act is any entity certain of whose functions are of a public nature; State ownership is not essential. An entity is not a public authority if the nature of the act is private. Accordingly, the private acts of public bodies are outside the scope of the legislation.

Functions must have a public aspect. A private day-care home provided by a charity was not exercising public functions as it was not a public authority, even if financed by public funds. The exercise of public authority in itself through a body is conferred with statutory functions, does not necessarily make it a public authority. Legislation has later provided that those providing care in private care homes are exercising functions of a public nature for the purpose of the Human Rights Act.

Many of the Convention principles are reflective of common law procedural principles. Many Convention rights in principle simply elaborate on long-established common law principles. The Act should not be interpreted in the lights of existing common-law rights, which are not to be set aside.

The UK court has indicated that Convention principles and rights should be interpreted with reference to existing common-law principles. The Convention rights are in general terms and may not be sufficiently specific. Accordingly, under this approach, the existing common law should be the starting point.

Common law principles of fair procedures may be the basis for the fulfillment of the duty to give effect to Convention rights. The common law has more evolved detailed principles and freedoms which may provide a more particularized expression of broad principles in the Convention.

The Convention rights recognize existing rights rather than create them. The Convention rights reflect those fundamental values in democratic civilized societies, many of which are largely reflected in long-standing common law.

The UK courts have emphasized that the courts should develop common law and the interpretation of statutory provisions in compliance with international obligations and that the starting point should be domestic legal principles rather than judgments of international courts.

The Human Rights Act requires the UK courts to take into account the judgments, decisions, declarations, and advisory opinions of the European Court of Human Rights, the Commission, and Committee of Members. However, the English courts have emphasized that they are not bound to follow such decisions mechanically.

Although national states should collaborate with the international courts, they should not abrogate adherence to the principle of common law and precedent in domestic national courts. Supranational courts may not be in a position to understand details of the domestic legal process and the domestic court may decline to follow the Court of Human Rights decisions, if there are good reasons for doing so. It may interpret the principles in a domestic setting.

The case law of the European court is not binding as such but should be followed unless special circumstances otherwise require. Courts should, however, maintain consistency with evolving Court of Human Rights case law.The UK Supreme Court will usually follow a clearly established line of Court of Human Rights’ decisions.

Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental, substantive, or procedural aspects of domestic law and whose reasoning does not overlook or misunderstand an argument or point of principle, the domestic courts should generally follow it. This is consistent with the margin of appreciation principle.