Prior to the Human Rights Act 1998 (AQA A-Level Law): Revision Notes
Prior to the Human Rights Act 1998
Status of the European Convention on Human Rights in the UK
Background and purpose of the Convention
Before 2000, the protection of human rights and freedoms for UK citizens primarily relied on the European Convention on Human Rights (ECHR). This international treaty was created in response to the horrific violations witnessed during the Second World War. European nations came together to draft and sign this Convention, establishing a framework designed to prevent such atrocities from ever occurring again.
The UK became a signatory to the Convention and subsequently ratified it in 1953, meaning the UK formally agreed to be bound by its terms at an international level. However, there was a crucial distinction between international commitment and domestic legal enforceability.
Although the UK had agreed to uphold the Convention's principles internationally, these rights and freedoms were not directly enforceable in UK courts. This created a significant gap between the UK's international obligations and what citizens could actually claim in domestic law.
It took nearly half a century—until 2000—for the Convention to be formally incorporated into UK domestic law through the Human Rights Act 1998. This delay meant that for decades, UK citizens faced substantial barriers when attempting to assert their Convention rights.
The challenging process of claiming Convention rights
The period before incorporation presented significant obstacles for anyone seeking to enforce their Convention rights. If a UK citizen believed that their rights under the Convention had been violated, they faced a lengthy, expensive, and often discouraging journey to obtain justice.
The process required claimants to first exhaust all domestic routes of redress. This meant they had to challenge existing UK laws in domestic courts, attempting to demonstrate that these laws were incompatible with Convention rights. Only after pursuing every available avenue in the UK legal system could they escalate their claim to the European Court of Human Rights (ECtHR) in Strasbourg.
Taking a case to the ECtHR was itself a formidable undertaking. The process was time-consuming and financially burdensome, requiring substantial legal resources. Moreover, there was no guarantee of success—claimants might invest years of effort and considerable expense only to have their application rejected or their case delayed indefinitely.
The push for incorporation
These practical difficulties, combined with growing awareness of human rights issues, led to increasing pressure from multiple sectors of society. Civil rights groups and progressive politicians began campaigning for change, advocating for the creation of a domestic Bill of Rights that would incorporate Convention rights directly into UK law.
The arguments for incorporation were compelling: it would make rights more accessible, reduce the burden on individual claimants, allow UK courts to develop human rights jurisprudence, and ensure that rights protection was not just an international commitment but a practical reality for UK citizens. These sustained efforts ultimately resulted in the passage of the Human Rights Act 1998, which came into force in 2000.
Important distinction: Rights and freedoms existed in the UK before the Human Rights Act 1998—they were protected through common law principles, constitutional conventions, and various statutes. The Act did not create new rights; rather, it codified (wrote into domestic law) much of the European Convention, making these rights directly enforceable in UK courts.
Impact of decisions of the European Court of Human Rights
Understanding the Court's role and limitations
The European Court of Human Rights serves as the international judicial body responsible for ensuring that signatory states comply with the Convention. While it plays a crucial and unique role in protecting human rights across Europe, the Court has faced various criticisms regarding its effectiveness and operation.
Key criticisms of the ECtHR
Lengthy timeframes: One of the most significant problems with the Court is the substantial delay between a rights violation occurring and the case being heard. Cases can take many years to progress through the Court's system due to a large backlog and limited resources. This lengthy process means that some potential claimants simply abandon their claims before reaching the Court, accepting ongoing rights violations rather than enduring the wait. For victims seeking justice, such delays can compound the harm they have suffered.
Questions of judicial independence: Although judges of the ECtHR are required to be independent and impartial, concerns have been raised about whether this is always achieved in practice. Each member state nominates one judge to the Court, which has led to accusations that judges may consciously or unconsciously favour their home state's interests when deciding cases. This potential conflict undermines confidence in the Court's objectivity.
Decision-making processes: To ensure fairness and reduce bias, the Court typically convenes panels of seven judges to decide cases. While this collegiate approach has merits, it can significantly slow down the decision-making process. The need for multiple judges to review cases, deliberate, and reach consensus adds time to proceedings that are already lengthy.
Enforcement difficulties: Perhaps the most fundamental criticism concerns the Court's limited power to enforce its decisions. When the Court finds that a state has breached the Convention, it can declare this violation and order the state to pay compensation to the victim. However, there is no effective mechanism for enforcing these decisions if a state chooses not to comply.
Reliance on state cooperation: The effectiveness of the Court's judgments depends heavily on the willingness of states to accept and implement them. A state found in breach of the Convention could theoretically refuse to comply with the Court's decision, and there is little the Court can do to compel compliance. This reliance on voluntary cooperation potentially undermines the entire human rights protection system.
Breaches of the Convention by the UK
The following cases demonstrate instances where the UK was found to have violated Convention rights, illustrating the types of issues that arose before domestic incorporation:
Sunday Times v United Kingdom (1979)
Facts: The UK government attempted to prevent the Sunday Times newspaper from publishing articles about the thalidomide scandal using the country's contempt of court laws. The government argued that publication would prejudice ongoing legal proceedings.
Article breached: Article 10 (freedom of expression)
Outcome: The ECtHR found an absolute breach of Article 10. The Court determined that preventing publication was a disproportionate interference with freedom of expression and ordered that publication be permitted. This case highlighted tensions between press freedom and other legal interests.
Thompson and Venables v United Kingdom (1999)
Facts: This case involved two young boys convicted of murder. The case raised questions about fair trial procedures for juvenile defendants.
Article breached: Article 6 (right to a fair trial)
Outcome: The Court found that Article 6 had been breached, indicating problems with how the trial had been conducted.
Lustig-Prean and Beckett v United Kingdom (2000)
Facts: The applicants were serving personnel who were discharged from the Royal Navy solely because they were homosexuals. At the time, the UK military maintained a policy of excluding homosexual individuals from service.
Article breached: Article 8 (right to respect for private and family life)
Outcome: The ECtHR found an absolute breach of the right to privacy. This decision demonstrated that the UK's policy constituted unjustified discrimination and interference with private life. Following this ruling, the UK changed its military policy to end discrimination based on sexual orientation.
Wilson and Palmer v United Kingdom (2002)
Facts: The applicants, who were members of trade unions, were denied pay rises available to other employees specifically because of their union membership. This differential treatment was used by employers to discourage union participation.
Article breached: Article 11 (freedom of assembly and association)
Outcome: The Court found a clear breach of Article 11, recognizing that the right to join trade unions must include protection from detriment for exercising that right. This judgment led to changes in UK employment law in 2004, making such discriminatory practices unlawful.
Important distinctions
Exam awareness: When studying this area, you must carefully distinguish between several similar-sounding but distinct entities:
- European Convention on Human Rights (ECHR): The international treaty signed in 1953
- Human Rights Act 1998 (HRA): The UK statute that incorporated Convention rights into domestic law
- European Court of Human Rights (ECtHR): The international court in Strasbourg that hears Convention cases
- European Court of Justice (ECJ): A completely separate institution concerned with EU law, not human rights
Confusing these terms in an exam will demonstrate a fundamental misunderstanding of the subject matter.
Remember!
Key Points to Remember:
- The UK signed and ratified the European Convention on Human Rights in 1953, but it did not become enforceable in UK courts until 2000
- Before incorporation, citizens had to exhaust domestic legal remedies before taking cases to the European Court of Human Rights—a lengthy and expensive process
- The ECtHR, while important, faces significant criticisms including lengthy delays, questions about judicial independence, and limited enforcement powers
- Key cases (Sunday Times, Thompson and Venables, Lustig-Prean and Beckett, Wilson and Palmer) demonstrate various ways the UK breached Convention rights before incorporation
- The Human Rights Act 1998 did not create new rights but codified existing Convention rights into UK domestic law, making them directly enforceable in UK courts