The challenge of the ECHR

AuthorMichael Farrell
PositionSenior solicitor, Free Legal Advice Centres (FLAC)
Judicial Studies Institute Journal [2007:2
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.
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
1 Speech on the occasion of the opening of the judicial year, European Court
of Human Rights, Strasbourg, 23 January 2003;
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
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT