EU Human Rights Law and its Impact on the UK Private Law

By | January 18, 2022
EU Human Rights Law and its Impact

Last Updated on by Admin LB

The article aims to analyze the impact of EU Human Rights Law on the UK private Law and its application by the courts in the United Kingdom.

Introduction

The European Convention on Human Rights (ECHR) is a human rights treaty signed by the 47 countries that are members of the Council of Europe. The European Convention on Human Rights (ECHR) is a binding agreement between governments and citizens to uphold particular standards of conduct and to defend their fundamental rights and freedoms. It’s a pact meant to safeguard the rule of law and advance democracy across Europe.

When World War II was still raging across Europe in the early 1940s, a proposal was made for the founding of the European Court of Human Rights. So that governments could never dehumanize or abuse the rights of their citizens again, it was created to assist keep the pledge of “never again.[1]

The meeting was joined by 750 leaders from civil society, education, business, and religion gathered in The Hague in May of 1948 following the war’s conclusion for the “Congress of Europe,” which included Winston Churchill, François Mitterand, and Konrad Adenauer, among others. The Council of Europe in Strasbourg drafted the European Convention on Human Rights in the summer of 1949. The charter was drafted by more than 100 members of parliament from around Europe. In March of 1951, the United Kingdom became the first country to ratify the agreement.[2]

The European Court of Human Rights was established as a result of the founding of The European Convention on Human Rights (ECHR). Founded in 1959, the organization has its headquarters in Strasbourg, France. People who believe their rights have been violated can take their claims to the European Court of Human Rights, which serves to protect the European Convention on Human Rights (ECHR).

The Court’s judgments legally bind countries to uphold them. As a result of the Convention’s case law, governments all around Europe now view it as a potent “living tool.” A judicial challenge based on the ECHR could only be brought before the European Court of Human Rights before 1998, and the process might be time-consuming and expensive.[3]

To ensure that the rights granted by the European Convention on Human Rights (ECHR) are protected in British courts, the Human Rights Act (HRA) was passed. By incorporating the European Convention on Human Rights (ECHR) into British law, the Human Rights Act creates a corpus of domestic case law from which future judicial decisions on human rights issues can be drawn. Most of the ECHR’s rights are included in the HRA’s second part, which is copied word for word. In the first section, it is explained how such rights would be put into practice and enforced.

Analysis

The United Kingdom has played an important part in the development of Europe’s human rights framework. Using the Human Rights Act as a model for other countries, courts in the UK have demonstrated how the Convention’s rights might be brought to bear in the real world.

When it comes to the implementation of judgments, the United Kingdom is widely regarded as one of the best. When it comes to encouraging other countries to adopt [European Court of Human Rights rulings against them], it is a particularly strong state at the Committee of Ministers. As an example, the Northern Ireland rulings [on the responsibility to investigate killings] and recent communications between Chechen prosecutors and the Historical Enquiries Team in Northern Ireland should be taken into consideration.[4]

A strong human rights record in the UK is linked to the country’s strong political influence in Europe. It is only by setting an example at home can the UK exert influence in the international arena and retain the moral authority to act and implement international law.

It is in the national interest of the UK to remain a member of the Convention and to maintain the leadership role in the international community. The European human rights system has prompted the UK to scrutinize it in a way that would not have happened before, to look at our developments and go forward in a way that is reasonable and fair.[5]

Member of the Commission on a Bill of Rights, Anthony Speaight QC, concurs that the European human rights system has offered the UK some “quite important benefits.” As an illustration, he uses the “Belmarsh case” in which the House of Lords – and later the European Court of Human Rights – declared incompatible with Article 5 of the ECHR the indefinite detention without charge or trial of foreign people suspected of terrorist activity.[6]

Even though the House of Lords worked hard on this case, they could only issue a Declaration of Incompatibility as a result of their efforts. In the end, Strasbourg was able to complete the task. In this case, the former Labour Government had begun a program of detention that was in direct violation of the fundamental principles of human rights.

In addition, Jack Straw MP acknowledges that ‘there are plenty of advantages. “Some of which stemmed clearly from ECHR judgments and others which were urged ahead by them,” he says, referring to the changes made to the security and intelligence agencies in the UK.[7]

A more basic benefit for the United Kingdom is membership in the European human rights framework. An important benefit of the European human rights system is that it promotes unity rather than disunity since it gives an array of shared ideals. Preceding the HRA’s enactment, the Scotland and Northern Ireland Acts were passed. Delegating power necessitates the existence of a framework by which the UK’s international responsibilities can be met. Devolution settlements included the Convention rights in their terms of the agreement. As a result, you have a background that predates the HRA.

The collective guarantee of human rights lies at the heart of the European human rights system. Individuals can hold governments and their agents accountable for violations of human rights and fundamental freedoms under the ECHR’s regional mechanism.

It also created an independent supranational court that is free from the interests of the state and whose judges have a wide spectrum of political and legal backgrounds. The 47 member nations of the Council of Europe now recognize the European Court of Human Rights jurisdiction, and the supranational model of adjudication firmly rooted in the European human rights system has widespread support.

The ECHR’s European machinery for human rights protection is subordinate to national systems for human rights protection, which is a key characteristic of that equipment. State governments, legislatures, and courts have a primary responsibility to uphold human rights.[8] The HRA established a domestic system of human rights protection that protects the specific function of the judges while ensuring parliamentary autonomy.

A remedy for violating a Convention right can be sought in the UK courts without having to travel to Strasbourg, which implements the convention’s rights and freedoms in domestic law. As a result, the European Court of Human Rights jurisdiction extends to cases lodged in the United Kingdom.[9]

 Conclusion

The doctrine of the margin of appreciation, which holds that states (and their national authorities) are best equipped to decide how human rights should be applied, defines the limitations of the European Court of Human Rights supervisory authority. Because it is not mandated to replace national courts, the Strasbourg Court’s primary role is to scrutinize the outcomes of cases decided by those courts while exercising their domestic power. To put it another way, the European Union’s oversight and control of domestic prices are intertwined.

Overstepping its power and meddling with established national laws and practices to impose uniform norms and legislation on member states have been among the criticisms leveled at the European Court of Human Rights. It is important to note that the Court’s jurisprudence is clear in its recognition of the wide range of customs, policies, and practices in different countries and that the European Court of Human Rights will not attempt to impose uniformity or detailed and specific requirements on domestic authorities.

ECHR advises the UK government to investigate whether court judgments against foreign nations have implications for UK law, policy, or practice and to keep parliament informed of any such implications. The President of the European Court of Human Rights believes that the UK should only intervene in cases that have a direct impact on the UK or when UK domestic practice is so specific that more clarification of domestic practice may be essential.

Since recently, ECHR and The European Court of Human Rights have been attacked by British politicians and the media. While not calling for the UK to leave the European Court of Human Rights, some MPs and commentators have called on the government to consider doing so. These measures have the potential to harm the UK’s worldwide reputation, as well as the European system for protecting human rights.


[1] What is the European Convention of Human Rights? Equality and Human Rights Commission.

[2] Human Rights in the UK, Amnesty International UK.

[3] Ibid.

[4] Christos Giakoumopoulos and Zoe Bryanston-Cross, Interview, 27 November 2011.

[5] Lord Mackey, Interview, 13th December 2011.

[6] A and others v Secretary of State for the Home Department [2004] UKHL 56.

[7] ‘Human rights laws put lives at risk’: Cameron tells Euro court it harms fight against terror, Daily Express, 2011.

[8] A. Donald J. Gordon P. Leach, The UK and European Court of Human Rights, Human Rights and Social Justice Research Institute.

[9] Ibid.


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Author: Simran Kang

Symbiosis Law School, Pune

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