Rights Brought Home for Children
| DOI | http://doi.org/10.1111/1468-2230.00211 |
| Published date | 01 May 1999 |
| Date | 01 May 1999 |
Rights Brought Home for Children
Jane Fortin*
The background
The incorporation of the European Convention for the Protection of Human Rights
and Fundamental Freedoms into domestic law was described, albeit unsympa-
thetically, as a measure which would have ‘a seismic impact on the people of this
country. It is part of the bulldozing of the constitutional landscape of the United
Kingdom’.1The object of this article is to consider the extent to which children
will benefit from this change. The government’s plan to make the European
Convention on Human Rights part of our domestic law, marks a radical change of
approach to traditional thinking on how best to protect the rights and freedoms of
British citizens. The view was formerly that our innate freedoms were properly
protected by a democratically elected parliament and that they existed unless and
until they were expressly abrogated by common law or legislation. Furthermore, it
was considered that to adopt a written constitution, as in France and the USA,
would endanger underlying liberties, since only those listed would gain recog-
nition.2Now the government considers that it is not enough merely to assert the
theoretical existence of citizens’ fundamental liberties. Instead, their constitutional
rights require formal guarantees and direct modes of protection.3
The United Kingdom’s erstwhile refusal to incorporate into domestic law any list
of rights has meant that although successive governments have ratified many
international human rights treaties, these have had no direct effect on English law.
Nevertheless, the list of rights embodied by the European Convention has already
become a relatively familiar one. Indeed, despite its not being part of English law, it
has had considerable influence on the development of law here. This was partly
because the courts have been entitled to assume, when interpreting domestic
legislation, that the legislature had not intended it to be inconsistent with any of the
United Kingdom’s obligations under the Convention.4Of greater significance
however, was the existence of a powerful mechanism for the Convention’s inter-
pretation and enforcement. Since 1959, when the European Court of Human Rights
was established, individuals have had a means of obtaining redress for domestic
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
350
* School of Law, King’s College, London.
I am most grateful to my colleague Conor Gearty for reading and commenting on earlier drafts of this
article.
1 Gerald Howarth MP, HC Deb vol 306 col 838 16 Feb 1998.
2 The United Kingdom’s approach to protecting rights and the arguments for and against introduction
of a Bill of Rights are discussed by D. Feldman, Civil Liberties and Human Rights in England and
Wales (Oxford: Clarendon Press, 1993) 60–88. See also C. Gearty ‘The United Kingdom’ in C.
Gearty (ed), European Civil Liberties and the European Convention on Human Rights: A Compara-
tive Study (Dordrecht: Martinus Nijhoff, 1997). Gearty, at 65–83, provides a comprehensive
discussion of the legal and political background to the campaign to incorporate the Convention. See
also 84–103 for a discussion of the decisions reached by the European Court of Human Rights
involving the United Kingdom.
3Rights Brought Home: The HumanRights Bill Cm 3782 (London: HMSO, 1997) esp paras 1.16–1.19.
4 See eg the efforts of Lord Oliver in Re KD (a minor) (ward: termination of access) [1988] 1 All ER
577, 587–589 to reconcile English law with the terms of the European Convention. Since the United
Kingdom is bound by international law to observe all treaties it has ratified, the courts must presume
that all domestic legislation is intended to comply with the terms of all such treaties.
infringements by taking their complaints to Strasbourg. This special feature has
undoubtedly enhanced the Convention’s reputation for being one of the world’s
foremost human rights instruments.5In the past, the United Kingdom has often been
required to answer charges that its laws have infringed individuals’ rights protected
by the Convention and to amend them, when found to be in breach of its provisions.
Once the Human Rights Act 1998 is fully implemented, matters will change
quite radically. Arrangements will be made enabling individuals to invoke their
Convention rights in the domestic courts in this country, rather than having to
apply to Strasbourg. Put in such mundane terms the change does not appear
particularly dramatic. Nevertheless, the provision which will, in truth, have a
‘seismic impact’ on the law here is the provision making it unlawful for a ‘public
authority’6to act in a way which is incompatible with Convention rights. This
means that all arms of government will be forced to consider the human rights of
all those affected by their day to day operations. Summarised very briefly the new
system will enable an individual to apply to the domestic courts, arguing that the
government or any public authority is infringing his or her rights under the
Convention and that he or she is a victim of that unlawful act.7If the court
considers the claim to be legitimate, it may grant ‘such relief or remedy, or make
such order, within its powers as it considers just and appropriate’.8In some cases,
the infringement will be attributable to the terms of primary legislation, which
itself takes no account of the Convention right or rights claimed. In such a case, the
courts9will be empowered to declare that legislative provision incompatible with
the terms of the Convention.10 It will then be for the government and parliament to
put matters right if they choose, through a ‘fast-track’ procedure established to
amend the law as swiftly as possible, to bring it into conformity with the
Convention.11 More crucially, the common law will also be open to challenge,
since like any other ‘public authority’ the courts must also refrain from acting ‘in a
way which is incompatible with a Convention right’.12 Consequently if litigants
can satisfy the courts that the existing principles of the common law infringe their
Convention rights, the courts must adjust those principles through their decisions,
in a way that ensures compatibility. The implications of such a change are
enormous and will be discussed in more concrete terms below.
5 Until recently the decision making process was a complicated one. Petitions were investigated first by
the European Commission of Human Rights and in the event of its being satisfied that the petitioner
had exhausted all domestic remedies and that the petition had some merit, it attempted to effect a
reconciliation between the opposing parties. Should this fail, either the Commission or the State Court
would then refer the case to the European Court of Human Rights to obtain a legal ruling. When
Protocol 11 came into force on 1 November 1998, the system was simplified and the part-time
Commission and Court were replaced by a single full-time Court which decides both on the
admissibility and merits of each case. See Articles 28 and 29 of the European Convention on Human
Rights, as amended by Protocol 11.
6 Defined by the Human Rights Act (HRA) 1998 s 6 (3) as including ‘(a) a court or tribunal, and (b) any
person certain of whose functions are functions of a public nature . ..’.
7ibid s 7(1).
8ibid s 8(1); s 8(2) and (3) makes clear that the remedy might include the award of damages.
9 The power to make such declarations is limited to the House of Lords, Court of Appeal and High
Court: ibid s 4(5).
10 ie by making a ‘declaration of incompatibility’: ibid s 4(2).
11 ‘Remedial action’ will then be taken (see s 10 and Sched 2) by the government minister taking
responsibility for that particular piece of legislation, designed to ensure that it is amended speedily to
remove the incompatibility in question. Amending legislation should be put in place within 120 days
– see Sched 2 para 4 (4).
12 See s 6(1) and (3). This point is made and discussed by C. Gearty, in ‘The Impact of the New Human
Rights Act’, in A. Boyle and A. Roux (eds), Human Rights and Scots Law (Oxford: Hart, 1999
forthcoming).
May 1999] Rights Brought Home for Children
ßThe Modern Law Review Limited 1999 351
To continue reading
Request your trial