The debate over human rights law

Published: 21st Apr 2015

'Human rights' are deeply divisive. The Conservative Party, as well as UKIP, are heading into this general election campaigning for change to our human rights laws, whereas Labour and the Liberal Democrats generally support the current system.

Making sense of claims about human rights isn't always easy. But a good start is understanding what human rights law does and where it comes from.

The European Convention on Human Rights and the Human Rights Act

The European Convention on Human Rights (ECHR) is an international agreement. It has existed since 1953. A European Court of Human Rights was set up in 1959 to decide whether any of the countries signed up to the Convention have broken it. British citizens have been able to go to this Court since 1966.

If the Court finds that someone's rights have been breached, the usual outcome is to simply to declare that fact and the reason for it. Sometimes it will state how the country in question should mend its ways—for example, by changing a law that conflicts with the Convention. It can also order financial compensation, although this is rarely very high.

Nothing forces countries to change their behaviour other than the promise made, in signing up to the Treaty, to follow the Court's judgments. This makes the commitment a matter of international law, which the UK and other European countries generally take seriously. A Committee of Ministers (in theory foreign ministers from each country, but in practice diplomats) monitors how countries comply with judgments.

By contrast, the Human Rights Act 1998 is not an international commitment, but a piece of UK legislation. It allows British judges to decide whether laws and government actions are in line with the rights set out in the ECHR (apart from Article 13).

The Act forbids 'public authorities'—which has a wider meaning than just government departments—from acting in a way that breaches Convention rights. This includes not taking action where necessary. So people can ask our courts to order a public authority to do or stop doing something. They can also claim compensation.

Courts must also interpret laws so that they fit with the Convention; but if a piece of legislation doesn't leave room for interpretation, judges can make a formal declaration that it is 'incompatible' with Convention rights.

Unlike an order to a public authority, this doesn't have an automatic effect. It is a signal to Parliament, or the relevant Minister, that it should change the law—which they have invariably done.

The Council of Europe, not the EU

One thing that even MPs get confused about is the relationship between the ECHR and the European Union. Put very simply, there isn't one.

The ECHR was drawn up by the Council of Europe. This was set up before the EU and is an entirely separate body. It has 47 member countries, whereas the EU has 28.

As mentioned above, the ECHR is interpreted by the European Court of Human Rights, and enforced by the Committee of Ministers. Both are part of the Council of Europe, which is mainly focused on promoting human rights. They are based in Strasbourg.

The EU has its own court system, the Court of Justice of the European Union. The decisions it makes about EU law must be followed by national courts, and EU law effectively overrides national law. This court is based in Luxembourg.

One illustration of how these bodies are different is that the EU is now committed by the Treaty of Lisbon to signing up to the Convention, in the same way as all its member states. Don't hold your breath, though: the EU Court of Justice gave a judgment in December 2014 that makes this very difficult.

Strasbourg vs London

One particularly sensitive issue is how much influence the European Court of Human Rights has over British judges.

As a former Lord Chief Justice has said, judges here "have no choice" in whether they enforce Convention rights, because the Human Rights Act tells them to. But what version of Convention rights are enforced here is a different issue. Courts have to decide what something like "the right to respect for... private and family life" means in practice. So is it the Strasbourg court or the UK Supreme Court who has the final say?

The Human Rights Act says that British courts must "take into account" judgments of the European Court of Human Rights. For a while, this was interpreted by the most senior judges as meaning that they should generally follow its decisions unless there was good reason not to, so that the meaning of Convention rights given in Strasbourg was what applied here.

As one judge famously put it: "Strasbourg has spoken, the case is closed".

More recently, the Supreme Court has emphasised that "take into account" doesn't mean that it has to abide by a Strasbourg judgment. If it thinks the European Court of Human Rights is wrong there are lots of ways for the Supreme Court to justify making its own decision. But the general rule is still that the Strasbourg interpretation of the Convention will be followed.

Who can use the Strasbourg court?

Anyone can ask the European Court of Human Rights to decide whether their Convention rights have been breached—but only after going through the UK court system first. Our legal aid system won't fund a case in Strasbourg, but the Strasbourg court has its own system of legal aid in place.


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