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Equality and Human Rights Commission
Research report 83
The UK and the European Court
of Human Rights
Alice Donald, Jane Gordon and Philip Leach
Human Rights and Social Justice Research Institute
London Metropolitan University
The UK and the European Court of Human Rights
Alice Donald, Jane Gordon and Philip Leach
Human Rights and Social Justice Research Institute
London Metropolitan University
© Equality and Human Rights Commission 2012
First published Spring 2012
ISBN 978 1 84206 434 4
Equality and Human Rights Commission Research Report Series The Equality and Human Rights Commission Research Report Series publishes research carried out for the Commission by commissioned researchers. The views expressed in this report are those of the authors and do not necessarily represent the views of the Commission. The Commission is publishing the report as a contribution to discussion and debate. Please contact the Research Team for further information about other Commission research reports, or visit our website:
Research Team
Equality and Human Rights Commission
Arndale House
The Arndale Centre
Manchester
M4 3AQ
Email: research@equalityhumanrights.com
Telephone: 0161 829 8500
Website: www.equalityhumanrights.com
You can download a copy of this report as a PDF from our website: http://www.equalityhumanrights.com/ If you require this publication in an alternative format, please contact the
Communications Team to discuss your needs at:
communications@equalityhumanrights.com
Contents Page
Tables i
Acknowledgments ii
Abbreviations iii
Executive summary v
1. Introduction 1
1.1 Aims of the report 1
1.2 Context of the report 1
1.3 Methodology 3
1.4 Scope of the report 4
1.5 Guide to the report 5
2. Origins and machinery of the European human rights system 6
2.1 Introduction 6
2.2 The European Convention on Human Rights 6
2.3 The Council of Europe 11
2.4 How the Convention system works 12
2.5 Conclusion 20
3. The protection of human rights in the UK 21
3.1 Introduction 21
3.2 Giving effect to Convention rights in the UK 21
3.3 Debate about human rights protection in the UK 25
3.4 The context of devolution 27
3.5 Conclusion 28
4. Statistical overview of UK cases in Strasbourg 30
4.1 Introduction 30
4.2 Overview of UK cases over time 30
4.3 Overview of UK cases in comparison with other states 36
4.4 The nature of violations in Strasbourg cases 38
4.5 Conclusion 42
5. The impact of European Court of Human Rights judgments on the UK 44
5.1 Introduction 44
5.2 Identifying the impact of legal cases 44
5.3 Protection of life and investigations into deaths 45
5.4 Anti-terrorism and the prohibition of torture and inhuman or
degrading treatment or punishment 52
5.5 Anti-terrorism and other human rights violations 58
5.6 Protection from violence and coercion 61
Page
5.7 The protection of individual liberties 66
5.8 Freedom of expression of the media 75
5.9 Immigration 80
5.10 Impact of cases brought under the Human Rights Act 83
5.11 Conclusion 85
6. The evolution of the Convention and Strasbourg case law 87
6.1 Introduction 87
6.2 Principles of interpretation of the Convention 87
6.3 Criticisms of the Strasbourg Court 91
6.4 Responses to the criticisms 98
6.5 Case studies on developing interpretation of the law 102
6.6 The limits to an evolutive approach 106
6.7 The clarity and consistency of Strasbourg judgments 107
6.8 The value of a dynamic approach: protection of the vulnerable 110
6.9 Conclusion 113
7. The relationship between the UK courts and Strasbourg 115
7.1 Introduction 115
7.2 The approach of the UK Courts to Strasbourg case law 116
7.3 Cases where Strasbourg has deferred to national authorities 120
7.4 Cases where Strasbourg has adopted the reasoning of the
UK courts 123
7.5 Cases where Strasbourg and the UK courts have disagreed 125
7.6 Cases where the UK courts have consciously leapt ahead of
Strasbourg 134
7.7 Judicial dialogue between Strasbourg and the UK 138
7.8 Conclusion 140
8. The implementation of Strasbourg judgments in the UK 143
8.1 Introduction 143
8.2 The United Kingdom"s record 143
8.3 The consequences of the non-implementation of
Strasbourg judgments by the UK 145
8.4 Parliament and the implementation of Strasbourg judgments 148
8.5 Conclusion 152
9. The value for the UK of the European human rights framework 154
9.1 Introduction 154
9.2 The relationship between the domestic and regional
human rights systems 154
9.3 The status of Convention rights in UK law 156
9.4 The supervisory role of the European Court of Human Rights 159
Page
9.5 Challenges to the legitimacy of the European Court of
Human Rights 162
9.6 The value of the European human rights system 164
9.7 The value of a supranational court 167
9.8 The position of the UK within the European human rights system 171
9.9 Conclusion 177
10. Conclusions 180
10.1 The UK and the European system of human rights protection 180
10.2 Debate about human rights protection in the UK 183
10.3 Debate about the European system of human rights protection 184
Appendices
Appendix 1 Interviewees 188
Appendix 2 Questionnaire 189
Appendix 3 Sections of the Human Rights Act 1998 192
References 196
List of cases 208
i
Tables Page
4.1 Applications to the ECtHR against the UK, 1999-2010 31
4.2 Judgments of the ECtHR in UK cases, 1999-2010 32
4.3 Applications and judgments relating to the UK, 1966-2010 33
4.4 Applications and judgments relating to the UK, 2011 34
4.5 Cases relating to the UK and selected comparator countries, 1998-2010 37
4.6 Violations in ECtHR judgments against the UK by Article, 1966-2010 41
ii
Acknowledgments
We would like to thank all those who gave interviews and were so generous with their time and insights. Our thanks also go to Aruna Dudhia for administrative support and Shanta Bhavnani, Tarik Elhadidi and Wessen Jazrawi for research assistance. We acknowledge with gratitude the detailed work completed for this research project by Professor Francesca Klug, Helen Wildbore and Matthew Hunt of the Human Rights Futures Project at the London School of Economics. Thanks are also due to Jessica Gavron and Francesca Klug for helpful comments on a draft of this report. We are especially grateful to David Perfect of the Equality and Human Rights Commission, whose patience and professionalism helped guide the report to completion within a short timescale. Thanks also to John Wadham and Mary
Cunneen at the EHRC.
Alice Donald
Philip Leach
Human Rights and Social Justice Research Institute
London Metropolitan University
Jane Gordon
Visiting Fellow
London School of Economics
iii
Abbreviations
ATCSA Anti-terrorism, Crime and Security Act 2001
DPA Data Protection Act 1998
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EHRC Equality and Human Rights Commission
EU European Union
GC Grand Chamber
HET Historical Enquiries Team
HRA Human Rights Act 1998
ICCPR International Covenant on Civil and Political Rights
IPCC Independent Police Complaints Commission
IVF In-vitro fertilisation
JCHR Joint Committee on Human Rights
LGBT Lesbian, gay, bisexual or transgender
NCCL National Council for Civil Liberties
NIHRC Northern Ireland Human Rights Commission
RIPA Regulation of Investigatory Powers Act 2000
SAS Special Air Service
SHRC Scottish Human Rights Commission
SIAC Special Immigration Appeals Commission
TPIM Terrorism Prevention and Investigation Measure
UCL University College London
UNCAT United Nations Convention against Torture
iv
EXECUTIVE SUMMARY
v
Executive summary
Aims of the research
In November 2011, the Equality and Human Rights Commission contracted the Human Rights and Social Justice Research Institute at London Metropolitan University and Jane Gordon, human rights lawyer and Visiting Fellow at the London School of Economics, to examine the relationship between the UK and the European
Court of Human Rights (ECtHR) in Strasbourg.
The aim was to provide better information to key decision-makers about the impact of the ECtHR and its judgments on the UK. The principal objectives were to: analyse ECtHR cases in relation to the UK to assess the circumstances in which the Court has made judgments, including both judgments which were contrary to those made by domestic courts and judgments where the Court agreed with the domestic court/UK Government position (or where applications against the UK have been found inadmissible); assess how ECtHR judgments relating to the UK have been received and responded to by key decision-makers in the UK; and evaluate the implementation of ECtHR judgments and the impact that they have had on domestic legislation and policy, as well as on domestic courts.
Methodology
The research comprised:
a literature review and review of a selection of ECtHR judgments; and
17 interviews with (i) individuals in the UK, including parliamentarians; judicial
figures; (former) heads of the human rights commissions in Scotland and Northern Ireland; and (ii) key figures within the Strasbourg system. Origins and machinery of the European human rights system The European Convention on Human Rights (ECHR) is an international treaty drawn up within the Council of Europe, which was established in Strasbourg in 1949 in the course of the first post-war attempt to unify Europe. The United Kingdom was among the first states to ratify the ECHR and played a pivotal role in its creation. The UK accepted the right of individuals to take a case to Strasbourg and the jurisdiction of
THE UK AND THE EUROPEAN COURT OF HUMAN RIGHTS
vi the ECtHR in 1966. In 1998, the right of individual petition and the jurisdiction of the Court were made compulsory for all states which are members of the ECHR. Since that time, the Strasbourg system has expanded hugely due to an influx of eastern and central European states whose membership of the Convention signalled a break with their authoritarian past. Forty-seven nations - some 800 million people - are now within the European human rights system, which is widely accepted as the most effective international regime for enforcing human rights in the world. No democracy has ever withdrawn from the Convention. The vast number of cases pending at the ECtHR - 151,600 as of 31 December 2011, of which 3,650 are applications from the UK - stems principally from systemic failures of implementation by a handful of countries and has prompted a process of reform to ensure the institutional survival of the Convention system. The reforms are centred on the fundamental role which national authorities - governments, parliaments and courts - play in protecting human rights within their own jurisdiction. There has been criticism that the Court has become preoccupied with minor cases. However, the judgments of the ECtHR demonstrate the serious and substantive nature of the matters it considers: of all ECtHR judgments finding at least one violation in 2011, 36 per cent involved a violation of the right to life or the prohibition against torture or inhuman or degrading treatment.
Election of judges to the Court
A common misapprehension about the ECtHR is that its judges are - like judges in UK courts - unelected. This is incorrect. The Parliamentary Assembly of the Council of Europe - comprised of parliamentarians from each member state - elects judges of the Court from a list of three candidates nominated by each member state. In February 2012, the Committee of Ministers" Steering Committee for Human Rights issued guidelines on the selection of candidates for the post of judge at the ECtHR to ensure that they are of the highest possible quality.
The protection of human rights in the UK
The Human Rights Act 1998 (HRA) created a domestic scheme of human rights protection which preserves the distinct role of the judges at the same time as safeguarding parliamentary sovereignty. The HRA gives effect in domestic law to the fundamental rights and freedoms in the Convention. It makes available in UK courts a remedy for the breach of a Convention right, without the need to go to Strasbourg. It requires all public authorities to act compatibly with the ECHR, providing a basis for the development of a human rights culture" in public services across the UK.
EXECUTIVE SUMMARY
vii Accounts of the HRA"s first decade indicate that such a culture has largely failed to materialise, although there are positive examples of public authorities respecting human rights as a result of a greater understanding of their Convention obligations.quotesdbs_dbs19.pdfusesText_25
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