Human Rights Day, the European Convention on Human Rights and the Human Rights Act 1998

This post was contributed by Ms Charlotte Crilly, Teaching Fellow and Module Convenor for Undergraduate Laws.

European Court of Human Rights, courtroom (Photo by Adrian Grycuk [CC BY-SA 3.0 PL])
European Court of Human Rights, courtroom (Photo by Adrian Grycuk [CC BY-SA 3.0 PL])

What do you know about Human Rights Day? Every year this is marked on 10th December to celebrate the proclamation of the Universal Declaration of Human Rights on 10th December 1948.

The Universal Declaration forms part of the United Nations’ protection of human rights. As well as this international level of protection, different regions around the world have their own human rights instruments, such as the African Charter on Human and Peoples’ Rights, the American Declaration on the Rights and Duties of Man, and the European Convention on Human Rights. In this blogpost I will focus on the European Convention on Human Rights (ECHR), which impacts directly on English law through the Human Rights Act 1998.

In brief: what is the European Convention on Human Rights?

• The ECHR is a treaty that protects the human rights of people in countries that belong to the Council of Europe.
• The Council of Europe was founded after the Second World War to protect human rights and the rule of law, and to promote democracy. It is completely separate to the European Union.
• The Convention protects rights such as the right to life, freedom from torture, the right to liberty and many others.
• The rights in the Convention are applied by the European Court of Human Rights in Strasbourg, France. This is not to be confused with the Court of Justice of the European Union in Luxembourg.

To mark Human Rights Day, the Council of Europe issued a statement looking back at the achievements of the ECHR and looking forward to the 70th anniversary of the ECHR in 2020. The Council of Europe notes that

  • The European Convention on Human Rights followed in the footsteps of the Universal Declaration of Human Right, being opened for signature shortly afterwards on 4 November 1950.
  • The Convention now protects the rights and freedoms of over 830 million people across 47 countries, with the European Court of Human Rights having given more than 20,000 judgments.
  • The European Convention on Human Rights is the strongest system of international human rights protection anywhere in the world.
  • The Convention has also brought about many positive changes when applied domestically by national authorities.
  • Many problems still remain. There is a continuing backlog of cases at the court; despite recent improvements around 60,000 applications are still waiting to be assessed and over 5,000 judgments have yet to be fully implemented.

What does all this have to do with the English legal system? It has always been possible to take a claim for breach of Convention rights directly to the European Court of Human Rights (provided certain conditions are fulfilled). But importantly, as those of you who have studied Legal System and Method will recall, the Human Rights Act 1998 also incorporated the main provisions of the European Convention on Human Rights into English law.

This means that people can now bring cases about potential breaches of Convention rights in the English courts, rather than in the European Court of Human Rights. Public authorities must act in accordance with the Convention rights (section 6) and as far as possible, legislation must be interpreted to comply with these rights (section 3). In any question involving Convention rights, the English courts must take into account the case law of the European Court of Human Rights (section 2). The human rights protected by the ECHR are therefore very much embedded into English law.

The Human Rights Act may be under threat, however, from the newly elected Conservative government. In their election manifesto, the Conservative party stated that they would “update the Human Rights Act …to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.” What does the future hold for the Human Rights Act and the protection of Convention rights in English law? While we may be celebrating Human Rights Day internationally on 10th December, the future is not so clear in England for human rights at home.

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