The Council of Europe

The Council of Europe was a precursor of the European Union. It now includes the Russian Federation, the former Yugoslav states, Republic of Macedonia , Ukraine, Bosnia, Georgia, Serbia. The Council is based in Strasbourg and is wholly separate to the European Union.

The Council of Europe was established in 1949. One of its principal objectives was to protect human rights, democracy and the rule of law. It has adopted number of treaties between its members, most notably the European Convention on Human Rights.

The Council of Europe adopted the European Convention on Human Right in 1950 following the United Nation’s Universal Declaration of Human Rights in 1948. It deals principally with civil and political rights, including in particular the right to life, the right to a fair trial, the  right to respect for family and private life. Additional rights have been added which are contained in Protocols to the Convention. There are options for states who are already party to the Convention to accept and accede to the Protocols .

The ECHR & the UK

The European Court of Human Rights, based in Strasbourg, has  ultimate judicial authority in relation to the interpretation and application of the convention. It hears applications from individuals, groups and non-governmental organizations in relation to alleged state violations of the Convention. Applicants must first exhaust domestic remedies. They must go through whatever process exists at state level.

The European Court on Human Right can award damages and costs. It cannot set aside domestic legilsation. If it finds a violation, the state is obliged under its Convention obligations to implement a change which  is binding as a matter of International Law.

The UK does not have a written constitution setting out fundamental rights unlike the position in most European States. In 2011, the UK Government established a commission to investigate the creation of a UK Bill of Rights that would incorporate and build on its obligations under the European Convention on Human Rights. It contemplated that the ECHR rights would continue to be enshrined in UK Law. The proposal has not advanced since Brexit.

Many of the key rights reflected in the Convention were expressed earliest in England, including in particular in the Bill of Rights 1689 and to some extent, earlier  in Magna Carta 1215..

Human Rights Act

The UK acceded to the European Convention on Human Rights in 1953. The Human Rights Act 1998 permits individuals to rely on their rights under the Convention against UK public authorities. The  ECHR rights may be enforced in UK domestic courts.

The rights declared by the Human Rights Act are deemed “convention rights” and are set out in the schedule. The rights embody the ECHR guarantees and the Act provides a framework domestic rights independent of the Convention.

Public authorities are obliged not to act incompatibly with the ECHR, unless required to do so by Act of Parliament.

A domestic court or tribunal must take into account the case law of the European Court on Human Rights. Domestic courts are not obliged to follow the decisions of the case law, but generally do so where there is a sufficiently strong line of case law that is not contrary to a fundamental substantive or procedural aspect of UK Law.

The Human Rights Act does not allow UK courts to disapply or strike down an Act of Parliament. Legislation must be read and given effect in a way that is compatible with convention rights in so far as possible. There is in the nature of a strong rebuttable presumption. Strictly, it is a rule of interpretation and does not entitle judges to change the substantive law.

Where it is not possible to read a UK statute in a manner that is compatible with a convention right, the higher courts may make a declaration under the Human Rights Act that the legislation is incompatible with the relevant convention right. This does not affect the  substantive legal position. It is a matter for Parliament to remedy the incompatibility.

The measures, administrative acts and  secondary legislation of the UK government are subject to and may be invalidated if they breach a convention right.

Under the devolution legislation for Scotland, Wales and Northern Ireland, the devolved legislatures may not enact legislation which is incompatible with a convention right. In such cases, the legislation is invalid and of no effect. The measures, administrative acts and  secondary legislation of the devolved legislatures of the devolved administrations are subject to may be invalidated if they breach a convention right.

Fundamental Rights

The impact of fundamental rights, particularly in the area of free movement of workers within the EU and in the context of asylum, was a significant element in support for Brexit. The apparent subservience of  Westminster measures to ECHR / Human Rights Act principles and laterally the EU Charter of Fundamental Right principles appeared to emphasise the loss of sovereignty and control entailed in European Union membership.

The most important human rights document under UK law is the European Convention on Human Rights. Mechanisms for its enforcement in domestic UK law were  provided by the Human Rights Act 1998.

There is a mechanism for the enforcement of the ECHR in Ireland directly under European Convention on Human Rights Act 2003. Many of its provisions overlap with the fundamental rights provisions in Article 40 to 44 of the Irish Constitution. While there are similarities, the guarantees are in different terms and have a very different background.

The Treaty on European Union requires EU states to be or to become  a party to the European Convention on Human Rights.

Human Rights are said to be rights to inhere in every person. They may take the form of protections for individuals and in some cases organisations and corporates.

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