The challenge of the ECHR

• Author: Michael Farrell
• Position: Senior solicitor, Free Legal Advice Centres (FLAC)
• Pages: 76-94

Judicial Studies Institute Journal [2007:2

76

THE CHALLENGE OF THE ECHR

MICHAEL FARRELL∗

INTRODUCTION: INCORPORATION IN THE UK

The UK Human Rights Act, 1998 which incorporated the

European Convention on Human Rights into domestic law, came

into effect in England and Wales in October 2000 (it had come

into effect in Scotland two years earlier). Speaking at the opening

of the judicial year at the European Court of Human Rights in

Strasbourg two years later in January 2003, the then Lord Chief

Justice of England and Wales, Lord Woolf, said:

...[W]hile previously a few experts in the United

Kingdom were aware of the rich jurisprudence of this

[Strasbourg] Court, now that jurisprudence is familiar to

every judge and competent lawyer in the country. In the

cases that I hear it is rare for a decision from Strasbourg

not to be cited at some stage of the hearing ...1

Four and a half years on from then, virtually every major

decision in the Court of Appeal for England and Wales or the

House of Lords involves serious consideration of the European

Convention, which frequently has a significant effect on the

outcome. The Convention has permeated and helped to

reinvigorate the UK legal system and the judiciary. At its best,

this has resulted in a productive cross-fertilisation between the

Convention and the common law which perhaps helped to steel

the British judiciary to curb some of the worst assaults on civil

and human rights by the Blair administration.

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∗ Senior solicitor, Free Legal Advice Centres (FLAC). Former Co-Chairperson

of the Irish Council for Civil Liberties (ICCL) and a current member of the

Irish Human Rights Commission (IHRC). This article is based on a paper

delivered at the Annual Criminal Law Conference, Rebalancing Criminal

Justice in Ireland: a question of Rights, University College Cork, 29 June

2007.

1 Speech on the occasion of the opening of the judicial year, European Court

of Human Rights, Strasbourg, 23 January 2003; www.judiciary.gov.uk.

2007] The Challenge of the ECHR 77

One of the most notable examples was the Belmarsh

detainees case in December 2004 when the House of Lords held

that the indefinite detention without charge of foreign terrorist

suspects was incompatible with Articles 5 and 14 of the European

Convention.2 The Law Lords also quashed the derogation which

the British government had entered to the European Convention

to allow them to hold the detainees without trial. The decision led

to the release of the detainees and the resignation of the then

Home Secretary, David Blunkett.

In another key decision in December 2005, the House of

Lords ruled out the use of evidence in immigration tribunals

which had been obtained by torture inflicted by foreign agencies.

Lord Woolf’s successor, Lord Bingham, based his decision on

both the common law and the European Convention. He said:

The principles of the Common Law, standing alone,

compelled the exclusion of third party torture evidence

as unreliable, unfair, offensive to ordinary standards of

humanity and decency and incompatible with the

principles which should animate a tribunal seeking to

administer justice.

But those principles did not stand alone. Effect had to be

given to the Human Rights Convention which itself took

account of the all but universal consensus embodied in

the Torture Convention.3

And in June this year, in the teeth of strong opposition by

the UK Attorney General, the Lords held that the Human Rights

Act, and therefore the provisions of the European Convention,

applied to the death in British army custody of Baha Mousa, an

Iraqi civilian who had been seized by British soldiers in southern

Iraq.4

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2 A and Others v. Secretary of State for the Home Department [2004] U.K.H.L.

56, 16 December 2004.

3 A and Others v. Secretary of State for the Home Department (No. 2) [2005]

U.K.H.L. 71, 8 December 2005.

4 Al-Skeini and Others v. Secretary of State for the Home Department [2007]

U.K.H.L. 26, 13 June 2007.