Law and Rights
On 3rd September 1953, the European Convention on Human Rights came into force with the United Kingdom among the first signatories. For the next 47 years, the Convention operated almost entirely externally to the domestic legal systems within the UK. Many a litigant trailed to the European Court of Human Rights (E Ct HR) at Strasbourg during those years and a considerable number obtained a judgment that the UK was in breach of the Convention. In 1998, the Human Rights Act (HRA 98) was enacted by Parliament as part of an idea of "Bringing Rights Home." Convention rights were to be a floor and not a ceiling for human rights protection in the UK. The Act actually came into force on 1st October 2000.
The HRA98 does a few apparently straightforward things.
(1) courts must take into account various matters including judgments of the E Ct HR; (2) so far as it is possible to do so, courts are commanded by Parliament to read and give effect to national legislation in a way which is compatible with convention rights; (3) if a court (High Court or higher) is satisfied that a provision in legislation is incompatible with a convention right then the court MAY issue a declaration of incompatibility; (4) IF a declaration of incompatibility is issued by a court then the legislation continues in full force unless and until Parliament chooses to alter the law - (which normally it has done); (5) the HRA gives Ministers a right to being forward a "Remedial Order" as a fast-track method of amending the law but Ministers do not have to proceed in this way and the government could either do nothing or amend the law by bringing forward new legislation; (6) Public Authorities (e.g. Local authorities, governmental bodies) must act compatibly with convention rights (save where statute prevents them from doing so). It is also worth noting that, if a court is considering making a declaration of incompatibility, then the Crown (in effect the government) is given a right to become a party to the proceedings.
This is an ingenious scheme designed to retain the right of Parliament to legislate as it wishes (i.e. the Legislative Supremacy of Parliament) but, at the same time, enabling the courts to bring to the attention of Parliament any areas where the law is considered by the judiciary to be incompatible with the convention. This ingenious scheme, with its apparently straightforward ideas, has produced an enormous amount of comment (judicially and otherwise). Some politicians have made no bones about their desire to see the repeal of the HRA 98. Some might substitute some form of British Bill of Rights and others might put nothing in its place.
In making decisions about compatibility it is only natural that the courts would look to see what the E Ct HR has said and it is also equally natural to adhere to the Strasbourg interpretation unless there is some good reason not to do so. This is the "mirror principle" - articulated by Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323. That seems to be a reasonable way of looking at what Parliament itself has commanded the judges to do - i.e. "take into account" the view of Strasbourg. What might amount to a good reason not to follow Strasbourg is clearly a problematic matter and is discussed in the earlier post "Thoughts on the Supreme Court's decision in Chester and McGeogh" - 21st October 2013.
If, having taken into account any views of Strasbourg, the court considers that legislation is incompatible then it MAY issue a declaration of incompatibility. The court does not have to do so but that raises interesting questions as to when would it not do so and why not.
In the Nicklinson judgment - handed down by the Supreme Court on 25th June - the court could have made a declaration that section 2 of the Suicide Act 1961 was incompatible with Article 8. The court declined to do so. Only Lady Hale and Lord Kerr would have issued such a declaration. Suffice to note here that the court has given Ministers and Parliament an opportunity to address this complex topic.
An Assisted Dying Bill is before Parliament but this applies to the terminally ill - very basically, expected to die within 6 months (see the Bill Clause 2).
Addendum 9th July 2014:
See the post of 25th June - Assisted Suicide: the cases of Nicklinson, Lamb and Martin
- Assisting Suicide: The Cases Of Nicklinson, Lamb And Martin
Mr NicklinsonUpdates: This post will be updated with further materials and comments as they become available ... as they undoubtedly will ! The Supreme Court has handed down judgment in the assisting suicide cases of Nicklinson, Lamb and 'Martin'...
- Lady Hale On Human Rights Law ~ Her Lecture At Warwick
"The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215." "The idea that the citizen might have rights which he could assert against the State was unknown...
- Domestic Law And The European Convention On Human Rights - Part 3
In this short series of posts I have so far looked at the list, produced by Parliament, of Human Rights cases since 1975 (post here + list here) and at the vitally important Article 2 (Right to Life) of the European Convention on Human Rights. ...
- The British Bill Of Rights ~ Second Consultation
Update 17th July In March 2011, a Commission was set up to consider the possibility of the United Kingdom having its own modern Bill of Rights - see Ministry of Justice . The Commission was mandated to investigate the creation of a UK Bill of Rights...
- Judicial Review: "keep Out Of Politics" ... But Can The Judges Do So?
HM The Queen at the Supreme CourtMr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term. His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed...
Law and Rights
The court MAY issue a declaration of incompatibility
The HRA98 does a few apparently straightforward things.
(1) courts must take into account various matters including judgments of the E Ct HR; (2) so far as it is possible to do so, courts are commanded by Parliament to read and give effect to national legislation in a way which is compatible with convention rights; (3) if a court (High Court or higher) is satisfied that a provision in legislation is incompatible with a convention right then the court MAY issue a declaration of incompatibility; (4) IF a declaration of incompatibility is issued by a court then the legislation continues in full force unless and until Parliament chooses to alter the law - (which normally it has done); (5) the HRA gives Ministers a right to being forward a "Remedial Order" as a fast-track method of amending the law but Ministers do not have to proceed in this way and the government could either do nothing or amend the law by bringing forward new legislation; (6) Public Authorities (e.g. Local authorities, governmental bodies) must act compatibly with convention rights (save where statute prevents them from doing so). It is also worth noting that, if a court is considering making a declaration of incompatibility, then the Crown (in effect the government) is given a right to become a party to the proceedings.
This is an ingenious scheme designed to retain the right of Parliament to legislate as it wishes (i.e. the Legislative Supremacy of Parliament) but, at the same time, enabling the courts to bring to the attention of Parliament any areas where the law is considered by the judiciary to be incompatible with the convention. This ingenious scheme, with its apparently straightforward ideas, has produced an enormous amount of comment (judicially and otherwise). Some politicians have made no bones about their desire to see the repeal of the HRA 98. Some might substitute some form of British Bill of Rights and others might put nothing in its place.
In making decisions about compatibility it is only natural that the courts would look to see what the E Ct HR has said and it is also equally natural to adhere to the Strasbourg interpretation unless there is some good reason not to do so. This is the "mirror principle" - articulated by Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323. That seems to be a reasonable way of looking at what Parliament itself has commanded the judges to do - i.e. "take into account" the view of Strasbourg. What might amount to a good reason not to follow Strasbourg is clearly a problematic matter and is discussed in the earlier post "Thoughts on the Supreme Court's decision in Chester and McGeogh" - 21st October 2013.
If, having taken into account any views of Strasbourg, the court considers that legislation is incompatible then it MAY issue a declaration of incompatibility. The court does not have to do so but that raises interesting questions as to when would it not do so and why not.
In the Nicklinson judgment - handed down by the Supreme Court on 25th June - the court could have made a declaration that section 2 of the Suicide Act 1961 was incompatible with Article 8. The court declined to do so. Only Lady Hale and Lord Kerr would have issued such a declaration. Suffice to note here that the court has given Ministers and Parliament an opportunity to address this complex topic.
An Assisted Dying Bill is before Parliament but this applies to the terminally ill - very basically, expected to die within 6 months (see the Bill Clause 2).
Addendum 9th July 2014:
See the post of 25th June - Assisted Suicide: the cases of Nicklinson, Lamb and Martin
- Assisting Suicide: The Cases Of Nicklinson, Lamb And Martin
Mr NicklinsonUpdates: This post will be updated with further materials and comments as they become available ... as they undoubtedly will ! The Supreme Court has handed down judgment in the assisting suicide cases of Nicklinson, Lamb and 'Martin'...
- Lady Hale On Human Rights Law ~ Her Lecture At Warwick
"The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215." "The idea that the citizen might have rights which he could assert against the State was unknown...
- Domestic Law And The European Convention On Human Rights - Part 3
In this short series of posts I have so far looked at the list, produced by Parliament, of Human Rights cases since 1975 (post here + list here) and at the vitally important Article 2 (Right to Life) of the European Convention on Human Rights. ...
- The British Bill Of Rights ~ Second Consultation
Update 17th July In March 2011, a Commission was set up to consider the possibility of the United Kingdom having its own modern Bill of Rights - see Ministry of Justice . The Commission was mandated to investigate the creation of a UK Bill of Rights...
- Judicial Review: "keep Out Of Politics" ... But Can The Judges Do So?
HM The Queen at the Supreme CourtMr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term. His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed...