Chapter 1 - The Case for Change

1.1  The European Convention for the Protection of Human Rights and Fundamental Freedoms is a treaty of the Council of Europe. This institution was established at the end of the Second World War, as part of the Allies' programme to reconstruct durable civilisation on the mainland of Europe. The Council was established before the European Union and, although many nations are members of both, the two bodies are quite separate.

1.2  The United Kingdom played a major part in drafting the Convention, and there was a broad agreement between the major political parties about the need for it (one of its draftsmen later became, as Lord Kilmuir, Lord Chancellor in the Conservative Administration from 1954 to 1962). The United Kingdom was among the first group of countries to sign the Convention. It was the very first country to ratify it, in March 1951. In 1966 the United Kingdom accepted that an individual person, and not merely another State, could bring a case against the United Kingdom in Strasbourg (the home of the European Commission of Human Rights and Court of Human Rights, which were established by the Convention). Successive administrations in the United Kingdom have maintained these arrangements.

1.3  The European Convention is not the only international human rights agreement to which the United Kingdom and other like- minded countries are party, but over the years it has become one of the premier agreements defining standards of behaviour across Europe. It was also for many years unique because of the system which it put in place for people from signatory countries to take complaints to Strasbourg and for those complaints to be judicially determined. These arrangements are by now well tried and tested. The rights and freedoms which are guaranteed under the Convention are ones with which the people of this country are plainly comfortable. They therefore afford an excellent basis for the Human Rights Bill which we are now introducing.

1.4  The constitutional arrangements in most continental European countries have meant that their acceptance of the Convention went hand in hand with its incorporation into their domestic law. In this country it was long believed that the rights and freedoms guaranteed by the Convention could be delivered under our common law. In the last two decades, however, there has been a growing awareness that it is not sufficient to rely on the common law and that incorporation is necessary.

1.5  The Liberal Democrat Peer, Lord Lester of Herne Hill QC, recently introduced two Bills on incorporation into the House of Lords (in 1994 and 1996). Before that, the then Conservative MP Sir Edward Gardner QC introduced a Private Member's Bill on incorporation into the House of Commons in 1987. At the time of introducing his Bill he commented on the language of the Articles in the Convention, saying: "It is language which echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta." (Hansard, 6 February 1987, col.1224). In preparing this White Paper the Government has paid close attention to earlier debates and proposals for incorporation.

The Convention rights

1.6  The Convention contains Articles which guarantee a number of basic human rights. They deal with the right to life (Article 2); torture or inhuman or degrading treatment or punishment (Article 3); slavery and forced labour (Article 4); liberty and security of person (Article 5); fair trial (Article 6); retrospective criminal laws (Article 7); respect for private and family life, home and correspondence (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of peaceful assembly and freedom of association, including the right to join a trade union (Article 11); the right to marry and to found a family (Article 12); and discrimination in the enjoyment of these rights and freedoms (Article 14).

1.7  The United Kingdom is also a party to the First Protocol to the Convention, which guarantees the right to the peaceful enjoyment of possessions (Article 1), the right to education (Article 2) and the right to free elections (Article 3).

1.8  The rights in the Convention are set out in general terms, and they are subject in the Convention to a number of qualifications which are also of a general character. Some of these qualifications are set out in the substantive Articles themselves (see, for example, Article 10, concerning freedom of expression); others are set out in Articles 16 to 18 of the Convention. Sometimes too the rights guaranteed under the Convention need to be balanced against each other (for example, those guaranteed by Article 8 and Article 10).

Applications under the Convention

1.9  Anyone within the United Kingdom jurisdiction who is aggrieved by an action of the executive or by the effect of the existing law and who believes it is contrary to the European Convention can submit a petition to the European Commission of Human Rights. The Commission will first consider whether the petition is admissible. One of the conditions of admissibility is that the applicant must have gone through all the steps available to him or her at home for challenging the decision which he or she is complaining about. If the Commission decides that a complaint is admissible, and if a friendly settlement cannot be secured, it will send a confidential report to the Committee of Ministers of the Council of Europe, stating its opinion on whether there has been a violation. The matter may end there, with a decision by the Committee (which in practice always adopts the opinion of the Commission), or the case may be referred on to the European Court of Human Rights [1] for consideration. If the Court finds that there has been a violation it may itself "afford just satisfaction" to the injured party by an award of damages or an award of costs and expenses. The court may also find that a formal finding of a violation is sufficient. There is no appeal from the Court.

Effect of a Court judgment

1.10  A finding by the European Court of Human Rights of a violation of a Convention right does not have the effect of automatically changing United Kingdom law and practice: that is a matter for the United Kingdom Government and Parliament. But the United Kingdom, like all other States who are parties to the Convention, has agreed to abide by the decisions of the Court or (where the case has not been referred to the Court) the Committee of Ministers. It follows that, in cases where a violation has been found, the State concerned must ensure that any deficiency in its internal laws is rectified so as to bring them into line with the Convention. The State is responsible for deciding what changes are needed, but it must satisfy the Committee of Ministers that the steps taken are sufficient. Successive United Kingdom administrations have accepted these obligations in full.

Relationship to current law in the United Kingdom

1.11  When the United Kingdom ratified the Convention the view was taken that the rights and freedoms which the Convention guarantees were already, in substance, fully protected in British law. It was not considered necessary to write the Convention itself into British law, or to introduce any new laws in the United Kingdom in order to be sure of being able to comply with the Convention.

1.12  From the point of view of the international obligation which the United Kingdom was undertaking when it signed and ratified the Convention, this was understandable. Moreover, the European Court of Human Rights explicitly confirmed that it was not a necessary part of proper observance of the Convention that it should be incorporated into the laws of the States concerned.

1.13  However, since its drafting nearly 50 years ago, almost all the States which are party to the European Convention on Human Rights have gradually incorporated it into their domestic law in one way or another. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those guaranteed by the Convention and Norway is also in the process of incorporating the Convention. Several other countries with which we have close links and which share the common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their own legal systems.

The case for incorporation

1.14  The effect of non-incorporation on the British people is a very practical one. The rights, originally developed with major help from the United Kingdom Government, are no longer actually seen as British rights. And enforcing them takes too long and costs too much. It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.

1.15  Moreover, in the Government's view, the approach which the United Kingdom has so far adopted towards the Convention does not sufficiently reflect its importance and has not stood the test of time.

1.16  The most obvious proof of this lies in the number of cases in which the European Commission and Court have found that there have been violations of the Convention rights in the United Kingdom. The causes vary. The Government recognises that interpretations of the rights guaranteed under the Convention have developed over the years, reflecting changes in society and attitudes. Sometimes United Kingdom laws have proved to be inherently at odds with the Convention rights. On other occasions, although the law has been satisfactory, something has been done which our courts have held to be lawful by United Kingdom standards but which breaches the Convention. In other cases again, there has simply been no framework within which the compatibility with the Convention rights of an executive act or decision can be tested in the British courts: these courts can of course review the exercise of executive discretion, but they can do so only on the basis of what is lawful or unlawful according to the law in the United Kingdom as it stands. It is plainly unsatisfactory that someone should be the victim of a breach of the Convention standards by the State yet cannot bring any case at all in the British courts, simply because British law does not recognise the right in the same terms as one contained in the Convention.

1.17  For individuals, and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays. This might be convenient for a government which was half-hearted about the Convention and the right of individuals to apply under it, since it postpones the moment at which changes in domestic law or practice must be made. But it is not in keeping with the importance which this Government attaches to the observance of basic human rights.

Bringing Rights Home

1.18  We therefore believe that the time has come to enable people to enforce their Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling courts in the United Kingdom to rule on the application of the Convention will also help to influence the development of case law on the Convention by the European Court of Human Rights on the basis of familiarity with our laws and customs and of sensitivity to practices and procedures in the United Kingdom. Our courts' decisions will provide the European Court with a useful source of information and reasoning for its own decisions. United Kingdom judges have a very high reputation internationally, but the fact that they do not deal in the same concepts as the European Court of Human Rights limits the extent to which their judgments can be drawn upon and followed. Enabling the Convention rights to be judged by British courts will also lead to closer scrutiny of the human rights implications of new legislation and new policies. If legislation is enacted which is incompatible with the Convention, a ruling by the domestic courts to that effect will be much more direct and immediate than a ruling from the European Court of Human Rights. The Government of the day, and Parliament, will want to minimise the risk of that happening.

1.19  Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home.