What
is the European Convention of Human Rights
The European Convention on Human Rights was drafted after the Second
World War. British lawyers and civil servants were heavily involved
in its drafting. The United Kingdom (UK) signed up to the Convention
in 1953 and was one of the first countries to do so. In all, 45 countries
have now signed up to the Convention including most of the east European,
former communist countries and several countries that were once part
of the Soviet Union. The countries that have signed up to the Convention
make up the Council of Europe. The Council of Europe is quite separate
from the European Union.
The
Convention is divided into ‘articles’. Articles 2 to 14
set out the rights that are protected by the Convention. Over the years
the Convention has been supplemented by a number of protocols that have
been agreed by the Council of Europe. Some of the protocols just deal
with procedural issues but some guarantee rights in addition to those
included in the Convention. The UK has signed up to two of the protocols
that guarantee additional rights (the First and Sixth Protocols) but
not to the others (the Fourth, Seventh and Twelfth Protocols).
The
European Court of Human Rights (ECHR) is the international court set
up to interpret and apply the Convention. It is based in Strasbourg,
France and is made up of judges nominated by each of the countries that
are members of the Council of Europe. Since 1966 people have had the
right to bring cases against the British Government in the ECHR. Over
the years there have been many cases in which the ECHR has found that
the UK has breached the Convention. One reason that there have been
so many findings against the British Government is that there was no
way that people could get redress for breach of their rights under the
Convention in the British courts. This and the fact that taking a case
to the ECHR can take several years were major factors in persuading
the new Labour Government to pass the HRA shortly after they came to
power in 1997.
Because
the Convention is now over 50 years old some of the language that it
uses is quite outdated. However, the ECHR has often stressed that the
Convention is a ‘living instrument’. This means that as
society and attitudes change, the ECHR will change and develop the way
in which it interprets the Convention. The ECHR will, however, still
tend to follow the precedents set by earlier cases - where it does not
it will make it clear why it is not doing so. It is therefore important
to look at past decisions of the ECHR. Moreover, the HRA requires the
courts in this country to take the ECHR’s past decisions into
account when deciding cases under the HRA. The ECHR now posts its decisions
on the internet
What
is the Human Rights Act 1998
The HRA gives greater
effect to Convention Rights in three main ways:
-
It
makes it clear that as far as possible the courts in this country
should interpret the law in a way that is compatible with Convention
rights.
-
It
places an obligation on public authorities to act compatibly with
Convention rights.
-
The
HRA also gives people the right to take court proceedings if they
think that their Convention rights have been breached or are going
to be.
The
HRA and the Courts
Parliament makes laws but it is the courts
that have to interpret them. The HRA makes it clear that when they are
interpreting legislation the courts must do so in a way which does not
lead to people’s Convention rights being breached. Moreover, the
courts are now under a duty to develop the common law - the law which
has been developed through decisions of the courts themselves - in a
way that is compatible with Convention rights.
If
the law is an Act of Parliament, the courts have no choice but to apply
the law as it is, even though it breaches Convention rights. However,
the higher courts (the High Court, the Court of Appeal and the House
of Lords) have the power to make what is called a ‘declaration
of incompatibility’. This is a statement that the courts consider
that a particular law breaches Convention rights. It is meant to encourage
Parliament to amend the law, but the courts cannot force the Government
or Parliament to amend the law if they do not want to.
A
lot of law is not set out in Acts of Parliament but rather in secondary
legislation. Secondary legislation is law made under the authority of
an Act of Parliament. Rather that set out detailed provisions in an
Act of Parliament, Parliament will frequently give the power to make
detailed laws to a government minister. The Act of Parliament will give
the minister the power to make law but the law itself will be set out
in regulations or orders. For example, most social security law is set
out in regulations rather than in Acts of Parliament.
Where
the courts find that an item of secondary legislation is incompatible
with Convention rights, they have the power to strike the law down or
not to apply it. This applies to all courts, not just the higher ones.
The only circumstance where this is not possible is where the secondary
legislation merely repeats a requirement of an Act of Parliament.
The
HRA and Public Bodies
The HRA requires public authorities to
act in a way that does not breach Convention rights. The HRA does not
define the term public authority, but it is clear that bodies like the
police, local councils and government departments and agencies are all
public authorities. Private individuals and bodies will not be public
authorities for the purposes of the HRA unless they are performing a
public function. So, for example, a private security company that has
a contract with the Government to transport prisoners to and from court
will be a public authority for the purposes of the HRA (and therefore
under a duty to respect Convention rights) when it is transporting prisoners
but will not be when it is guarding private property under a contract
with a private organisation.
The
issue of whether a person or body is a public authority for the purposes
of the HRA can be very difficult to determine. As there is no definition
of a public authority in the HRA this is something that the courts have
to decide on.
