Common Mistakes in Understanding Human Rights Law in UK by Alexander D. Winterton LLB(Hons) LLM

There is much confusion about the impact of the European Convention of Human Rights in the UK. Yes we did pass the Human Rights Act 1998 but that was not first time human rights has been recognized as law. In actual fact we can trace back human rights for centuries, Lord Ellenborough CJ commented in R v Inhabitants of Eastbourne that “ the law of humanity, which is anterior to all positive laws, obliges us to afford them relief….”

The European Convention, before the Human Rights Act , is a treaty which binds the UK as a matter of international law. Treaty obligations binding on the UK under international law can only be directly enforced as law in the UK if they are given legislative effect – The Parliament Belge (1879) 4 PD 129 at 154, and it is true to say that prior to the Human Rights Act there was no such measure. But that is not the end of the matter. Domestic courts are increasingly having regard to the norms of international law.

Lord Hoffmann noted in R v Secretary of State for the Home Department Ex, p Simms [2000] AC 115 at 131G-132B;-

“much of the Convention reflects the common law… That is why the UK government felt able in 1950 to accede to the Convention without domestic legislative change.”

Between 1964 & 1999 the Convention although unincorporated was referred to in over 650 English cases – M Hunt – Using Human Rights Law in English Courts, Oxford, Hart Publishing 1997.

There are a number of omitted Articles but they have been omitted as a result of not being necessary. For Example Article 1 has been omitted. If for example another Contracting State believed that the UK was in breach of its obligations it would make a referral of that matter to the European Court of Human Rights and not to UK domestic Courts.

Also a noticeable omission is Article 13 which provides “Right to an effective remedy - Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

Looking at the Human Rights Act itself, both section 6 and 8 set out in detail remedies available although attempts were made during the passage of the Bill to include Article 13. The Government argued (Hansard HC Vol 312 Col 979 20 May 1998) that it was unnecessary as section 8 gave the courts the widest scope to provide effective remedies and that the addition of Article 13 might simply confuse the courts into developing remedies which they were unable to grant, although interestingly no examples could be given!

Lord Bingham notes in Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26 “The Convention provides in article 1 that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention". The Secretary of State points out that article 1 is not one of the articles to which domestic effect is given by section 1 of and Schedule 1 to the HRA. Therefore, he argues, the scope of the Act is to be found in construction of the Act and not construction of article 1 of the Convention. The claimants reject this argument, pointing out that article 1 confers and defines no right, like the other articles specified in section 1 of the Act and the Schedule. Article 1 of the Convention is omitted because, like article 13 (also omitted), it is provided for in the Act…. Thus there was no need to include article 1 in section 1 of the Act and the Schedule, nor article 13 since the Act contains its own provisions as to remedies in sections 4 and 8.”

Lord Rodger of Earlsferry concludes

56. “ By this somewhat circuitous route, I arrive at what is surely the crucial argument in favour of the wider interpretation of section 6. The Secretary of State accepts that "the central purpose" of Parliament in enacting sections 6 and 7 was "to provide a remedial structure in domestic law for the rights guaranteed by the Convention": Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, 564, para 44, per Lord Hope of Craighead. In other words, claimants were to be able to obtain remedies in United Kingdom courts, rather than having to go to Strasbourg. The Secretary of State also accepts that, while the jurisdiction of states for the purposes of article 1 of the Convention is essentially territorial, in exceptional cases, "acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the convention": Bankovic v Belgium (2001) 11 BHRC 435, 450, para 67. Nevertheless, the Secretary of State says that sections 6 and 7 are to be interpreted in such a way that, in these exceptional cases, a victim is left remediless in the British courts. Contrary to the central policy of the Act, the victim must resort to Strasbourg.

57. My Lords, I am unable to accept that submission. It involves reading into sections 6 and 7 a qualification which the words do not contain and which runs counter to the central purpose of the Act. That would be to offend against the most elementary canons of statutory construction which indicate that, in case of doubt, the Act should be read so as to promote, not so as to defeat or impair, its central purpose. If anything, this approach is even more desirable in interpreting human rights legislation. As Lord Brown of Eaton-under-Heywood points out, this interpretation also ensures that, in these exceptional cases, the United Kingdom is not in breach of its article 13 obligation to afford an effective remedy before its courts to anyone whose human rights have been violated within its jurisdiction”.

The House of Lords has therefore communicated the clearest message to the lower courts that they can and must have regard to Article 13 rights even though it is not expressly set out in the Act itself.