UK Constitutional Law Association

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Nick Barber: The Commission on the Human Rights Act and the European Court of Human Rights.

The Commission tasked with suggesting reforms to the structure of rights protection in the United Kingdom has sent a letter to the Government outlining its interim advice for reforming the European Court of Human Rights.

Drawing attention to the long delays experienced by litigants, and the heavy workload of the Court, the Commission suggests, amongst other things:

–              that the Government should seek to ensure that the European Court of Human Rights is called upon only to address those cases that raise serious questions affecting the interpretation or application of the Convention and serious issues of general importance;

–              the Government should seek to ensure the establishment of a new and effective screening mechanism that allows the Court to decline to deal with cases that do not raise a serious violation of the Convention;

–              the Government should seek to ensure that a programme of fundamental reform establishes agreement on appropriate objective and merit-based principles and rules, and adequate resources, for the selection of judicial candidates at the national level, and for the appointment process at the European level.

It has also sent a letter that surveys, more generally, the areas which it proposes to consider over the next month or so.  The reaction to, and context of, these letters is discussed in a post on the UK Human Rights Blog.

The Commission’s early focus on the European Court of Human Rights is unsurprising.  In its terms of reference, the Commission is required to advance proposals for reform that ‘incorporates and builds on all our obligations under the European Convention of Human Rights, [and] ensures that these rights continue to be enshrined in UK law’.  As both Mark Elliott and Roger Masterman have argued, this places a significant constraint on the latitude of the Commission.   It requires that the rights contained in European Convention on Human Rights are protected and, moreover, that effect is given to the interpretation of these rights provided by the European Court of Human Rights.

The interim proposals of the Commission appear to have two objectives.  First, and most explicitly, a desire to protect the Court by reducing the number of cases that it is required to hear.  Second, and perhaps more interestingly, a slight widening of the scope given to national courts to place their own interpretation on the rights contained in the Convention by excluding cases that do not raise ‘serious’ violations – though the meaning of ‘serious’ is unclear.

In its discussion of the role of the European Court of Human Rights, the Commission should, perhaps, have also addressed the tricky question of the interaction of domestic law, Convention law, and European Union law.  The coming into force of the EU Charter of Rights, discussed by Dorota Leczykiewicz last month, and the proposed accession of the European Union to the European Convention is likely to create a legal quagmire.

There are now three bills of rights – Human Rights Act, the European Convention on Human Rights, and the EU Charter of Rights – and three courts competing, in some areas at least, for supremacy in rights jurisprudence – the UK Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union.  The Human Rights Act and the European Convention are closely related – the Human Rights Act incorporates the Convention into domestic law – but they are different legal documents, and may be accorded different interpretations over time.  It is quite hard to see how this tangle of legal relationships will be worked through.   Though I am a constitutional lawyer rather than a specialist in human rights law or European law, I thought I might have a try at teasing out some of the connections.

First, a British statute that contained an element of European Law could be challenged in the British courts using the Human Rights Act and (probably) under the EU Charter of Rights.  These two documents contain different articulations of similar rights, and possess different legal force.  The British court should consider decisions of the European Court of Human Rights on the Convention in interpreting both of these documents.

Secondly, a litigant might persuade a British court to make a reference to the Court of Justice of the European Union.  The Court of Justice would, presumably, use the European Convention to interpret the Charter, and then apply the Charter to the piece of European Law that lay behind the British statute, and to the British statute itself.  The Court of Justice would also apply Convention rights directly to each of these instruments, as it regards Convention rights as part of the ‘general principles of European law’.

Thirdly, if the litigant was unhappy with the decision of the Court of Justice she could apply to the European Court of Human Rights for review of the decision.  The European Court of Human Rights would assess the compatibility of European Law with Convention Law.  It is unclear how the Court of Justice would respond to decisions of the European Court of Human Rights, especially if the decision ran contrary to the economic rights contained in the European Treaties.

Fourthly, the litigant might also apply for review by the European Court of Human Rights of domestic law.  The litigant could argue that the British courts’ interpretation of the Human Rights Act failed to protect her Convention rights, and/or that the British court’s adherence to the decision of the European Court of Justice on the application of the Charter, or the European Court of Justice’s interpretation of Convention rights, failed to protect her Convention rights.

I apologise for the complexity of the last few paragraphs – and I hope that specialists in human rights law and European law reading this blog will correct any errors I have made.  The point of the discussion was to show how convoluted rights protection risks becoming in the United Kingdom.  And, unless you are a practicing lawyer in need of work, this painful complexity is not something to be welcomed.  There is a strong argument to be made for simplicity in constitutional arrangements: the basic structures of legislation and rights protection should be easy to understand and clear.

It could be that, despite its limited terms of reference, the Commission should think more broadly about the role that international courts should play in our constitution, and the number of different bills of rights we need.  To steal a quip from another context, whilst one bill of rights shows caution, three suggests panic.


Nick Barber is a Fellow of Trinity College Oxford.

6 comments on “Nick Barber: The Commission on the Human Rights Act and the European Court of Human Rights.

  1. Lallands Peat Worrier
    September 10, 2011

    Ah, the joys of legal knots! It is worth adding another dimension, often overlooked by focussing primarily on Westminster and the Human Rights Act 1998, which only strengthens your thesis about complexity in this field (which incidentally, I wouldn’t immediately accept is a vice). We need to unpack (and be a bit more cautious) about talking about “the UK” and “Britain” in this field. I can’t speak to the situation in Wales and Northern Ireland, but in Scotland, there are added complexities of interest here.

    Firstly, while the Human Rights Act 1998 applies, the Scotland Act 1998 includes additional EU and ECHR strictures on the activities of the Scottish Ministers and Scottish Parliament. The particularly relevant sections are section 57 for Ministers ( and for Holyrood’s legislative competence, s29 ( with s29(2)(d) explicitly providing that any purported Act of the parliament which is incompatible with EU or ECHR law is no law at all.

    As a result, Scottish Courts (and ultimately, the UK Supreme Court under its devolution jurisdiction) are empowered to nullify Scottish statutes emanating from Holyrood. By contrast, legislation emanating from the House of Commons, but legislating for Scotland in some area, could at most be subjected to a declaration of incompatibility. Significantly, even if the Human Rights Act was abolished, this vires control of Scottish institutions would continue to apply, unless separately repealed. Politically, that *might* be rather controversial amongst MSPs, who mostly do not share the Euroskepticism and human rights suspicion which animates the Tories.

  2. Andrew Le Sueur
    September 12, 2011

    Ken Clarke MP gave evidence to the House of Commons European Scrutiny Committee on 7 September exploring the EU accession to the European Convention on Human Rights and the EU Charter of Fundamental Rights. See here

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