The European convention of human rights is a product of the council for European an international organization on human rights (consisting of 47 member states). The primary purpose of the council was to foster human rights around the world and the secondary purpose was to protect the rule of law. In order to insure the effective application of ECHR it also formed the European court of human rights are dealing with the breaches of rights granted under ECHR. The UK also signs with ECHR which is now available in the shape of the Human Right Act. This essay will discuss the significance and the effect of HRA on the legal protection of civil liberties in the United Kingdom.
Since the UK is a dualist state i.e. having a separation between international obligations and domestic law. Any international treaty is signed is required to be transported via an Act of parliament for it to be directly applicable in the UK. ECHR initially was not ratified because of this claiming the remedy of ECHR was always an expensive and lengthy procedure meaning that it was the remedy of last resort i.e. first going through all UK national courts and then claiming the right in ECHR. Labour government in 1988 won the elections with slogans of bringing rights home and came up with the Human Rights Act. UK adopted 15th out of 18th conventional rights after which the rights are directly effective in the UK national court. There is an ongoing debate in UK that HRA is not a sufficient tool for protecting the civil liberties insured in the ECHR.
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Among the important section of the HRA section, 2 duty bounds the national courts to take into account ECHR precedents. The problem with this section is that it is unclear whether it is binding on the courts to follow ECHR or that is discretionary. In AF case Lord Hoffmann states that we are bound by ECHR precedents because of signing the international orders, on the other hand in Pinnock's case Lord Neuberger it cannot be binding since such can dissolve the mutual relationship of constructive dialogue although Lord Neuberger's approach seems here reasonable as if the UK national courts are duty bound to follow ECHR they will be no dialogue in section 2 the confusion as to which the approach is appropriate, is still there.
In Hirst v ECtHR held section 4 of the representation of peoples act to be in breach of article 3 of ECHR (right to vote), as under the statute provision prisoners are legally incapable of voting in any parliamentary or local elections. Latter the joint committee on human rights wrote that the UK should take urgent action on reforming the law relating to prisoners' right to vote. In Scoppola v Italy ECtHR gave a six-month deadline to UK for a change in law, but no action was being taken. However, the situation relating to the prisoner's right to vote still remains unchanged in the UK. This suggests that the UK courts are not duty-bound to follow ECHR but if so is the case civil liberties are not well protected in Human Right Acts because the UK court do not follow the ECtHR all the time.
Section 3(1) states interpret national law as far as in compliance with the ECHR. The ambiguity once again arrives in the statutory wording of section 3 as the question arises what limits do the courts do need to follow while interpreting national law in compliance with the ECHR? In Ghaidan v Godin-Mendoza statutory tenancy under the rent act was only available for heterosexual couples homosexual couples claimed that the rent act was conflicting with article 8 of ECHR (right to family) the court read down the provision is such way that the statutory tenancy under the rent act includes homosexual couples as well. Although this reflects better protection of civil liberties but also faces criticism that the courts are going too far as the re-writing of statutory provisions imposing serious threat to parliament supremacy and the separation of powers. In another case of Wilkinson v RC section 262 of the income and cooperation act, the tax allowing was only available for widows. A widower was claiming the breach of article 14 of ECHR (discrimination on the basis of sex). The court held that the act is brim full of indications, not intended to include the masculine this shows that the court do not go too far in making the national law convention comply they only do so where there is room for it. This suggests us that section 3 ensures the protection of civil liberties but that is still in the hands of the court and the court attempts to strike a balance between the national law and the rights under the ECHR.
As of section 4 the courts may grant the declaration of incapability (DOI) if compliance is not possible. The problem attached to this section is that it is in discretion of courts to grant DOI, they are not duty bound by it. In the case of Bellinger v Bellinger transsexual appealed that she was not validly married to her husband because in fact of law she was men under the section 11(c) of matrimonial cause act, breaching articles 18 and 12 the court excepting the breach granted DOI the parliament then remedying the law under gender recognition act. Considering this case DOI seems a workable methodology to help reform the law and protect civil liberties.
However, in the case of R Dickinson v ministry of justice section, 2 of the suicide act stating assisting suicide is a criminal offense claimant was claiming breach of article 8 the court held that it is inappropriate to issue DOI before giving parliament an opportunity to discuss the law. Whether this approach is reasonable or not is to put aside such behavior reflects uncertainty in the application of DOI since the court can decide not to grant the DOI, this provides evidence that section 4 fails to protect civil liberties in an efficient manner.
In the case of Belmarsh, the issue concerning the detention of foreign prisoners without trial under the anti-terrorism crime and security act was held incompatibility with articles 5 and 14. The court granted DOI but the home secretary was not required to release the prisoners nor was it consider necessary to compensate them. This provides evidence that the DOI is completely a useless tool as far as civil liberties are concerned. Since the DOI is only an indication for the parliament that the statutory provisions is not in compliance with the ECHR. It was nothing to do with the right of the effective parties. If there is a bill of Rights, the national courts will not find any hesitation in setting aside the conflicting national law.
Section 6 of HRA duty bounds the public authorities in there action are made duty bound to be in line with the rights of UK citizens protected under the ECHR. But practically speaking section 6 is nothing more than a formality for the public authorities they always or most of the time are able to justify their action on the grounds of public policy, where the court disregards the breach of section 6 of HRA as this can be seen in Shabana begum case, where school uniform policy even though conflicting with claimants right to freedom of thought was held justifiable.
There is an ongoing debate in the UK that the UK should adopt its own bill of rights as the Court's approach towards the HRA favors the UK`s democracy more and that often results in the breach and compromise of conventional rights. The UK attempts to strike a balance between the Rule of Law or upholding Fundamental Rights and the Parliamentary Supremacy of UK, but by doing this, the court favoring UK`s democracy violates the aims and objectives of the convention. But this never means that UK want their own Bill of Rights as doing so would result in an entire switch in the constitutional framework of UK, and the Westminster Parliament would never want that. A better version of HRA can resolve this problem and bring efficient incorporation of ECHR in the national Courts.
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