Common Law Rights vs ECHR Rights
Do common law rights offer the same degree of protection as rights under
the ECHR?
1. Introduction:
Ever since the HRA 1998 “brought rights home”, the degree of protection offered by
CL fundamental rights has been scrutinised in comparison to those under the ECHR.
Such exercise has become particularly prevalent surrounding attempts to
repeal the HRA, in the Bill of Rights Bill 2022 and whether such CL rights
would offer sufficient protection in such event.
The overall level of protection which is granted to HR is a product of, on the one
hand, those distinctive features of the UK system coupled with the features which
come into the system from membership of the ECHR, namely whether Article 13
ECHR imposes minimum obligations and how this operates in conjunction with the
MOA.
The question, therefore, as to whether CL rights are capable of offering the
same degree of protection as rights under ECHR depends on two things:
The distinctive features of the UK legal system and the degree of
scrutiny applied by the courts.
In cases concerning qualified rights under the ECHR, the Strasbourg Court employs a
proportionality test whereby the decision-maker is required to show that any
restriction/interference with a Convention right is no more than necessary to meet the
objective of their action.
In analysing some of the key cases in this area, there has been a clear and
genuine move towards this test of proportionality.
2. Distinctive Features of the UK System:
For as long as the UK is a member of ECHR, the architecture of domestic HR law is
inevitably going to be a product of those basic features of the UK constitution and its
operation coupled with the baseline features of the convention and the structure of
convention rights.
One of the distinctive features about the UK is that it has a dualist approach to
international law.
Unlike most other legal systems, which are monist, merely signing up to the
ECHR is not enough to make the UK liable in international law for breach of
treaty provisions.
It is for this reason that the enactment of the HRA 1998 was such a
significant move.
Therefore, in thinking about the level of protection to be given to convention rights
within the UK, the actual applicable national statute is of almost disproportionate
significance, certainly in contrast to many other convention signatory states.
It is this, among other reasons, that makes the debate about whether the HRA
will be replaced by the current Bill of Rights proposal of particular
importance to the future of HR in UK law.
A key distinctive feature which has the potential to limit the level of protection which
can be offered by the common law is the idea of sovereignty; the idea that the
ultimate legal authority resides in the statute in the area concerned.
This means that, so long as the statute is clear enough, they override
obligations coming out of the CL.
BUT – there is always room for considerable argument about how specific a given
statute is and about whether background ideas from the CL can be used to give a
particular meaning to the provisions of the statute.
Alison Young, in particular, is keen to develop the idea that in reality, we can
understand the UK constitution as involving a dialogue, not just Parliament
handing down demands to courts.
Do common law rights offer the same degree of protection as rights under
the ECHR?
1. Introduction:
Ever since the HRA 1998 “brought rights home”, the degree of protection offered by
CL fundamental rights has been scrutinised in comparison to those under the ECHR.
Such exercise has become particularly prevalent surrounding attempts to
repeal the HRA, in the Bill of Rights Bill 2022 and whether such CL rights
would offer sufficient protection in such event.
The overall level of protection which is granted to HR is a product of, on the one
hand, those distinctive features of the UK system coupled with the features which
come into the system from membership of the ECHR, namely whether Article 13
ECHR imposes minimum obligations and how this operates in conjunction with the
MOA.
The question, therefore, as to whether CL rights are capable of offering the
same degree of protection as rights under ECHR depends on two things:
The distinctive features of the UK legal system and the degree of
scrutiny applied by the courts.
In cases concerning qualified rights under the ECHR, the Strasbourg Court employs a
proportionality test whereby the decision-maker is required to show that any
restriction/interference with a Convention right is no more than necessary to meet the
objective of their action.
In analysing some of the key cases in this area, there has been a clear and
genuine move towards this test of proportionality.
2. Distinctive Features of the UK System:
For as long as the UK is a member of ECHR, the architecture of domestic HR law is
inevitably going to be a product of those basic features of the UK constitution and its
operation coupled with the baseline features of the convention and the structure of
convention rights.
One of the distinctive features about the UK is that it has a dualist approach to
international law.
Unlike most other legal systems, which are monist, merely signing up to the
ECHR is not enough to make the UK liable in international law for breach of
treaty provisions.
It is for this reason that the enactment of the HRA 1998 was such a
significant move.
Therefore, in thinking about the level of protection to be given to convention rights
within the UK, the actual applicable national statute is of almost disproportionate
significance, certainly in contrast to many other convention signatory states.
It is this, among other reasons, that makes the debate about whether the HRA
will be replaced by the current Bill of Rights proposal of particular
importance to the future of HR in UK law.
A key distinctive feature which has the potential to limit the level of protection which
can be offered by the common law is the idea of sovereignty; the idea that the
ultimate legal authority resides in the statute in the area concerned.
This means that, so long as the statute is clear enough, they override
obligations coming out of the CL.
BUT – there is always room for considerable argument about how specific a given
statute is and about whether background ideas from the CL can be used to give a
particular meaning to the provisions of the statute.
Alison Young, in particular, is keen to develop the idea that in reality, we can
understand the UK constitution as involving a dialogue, not just Parliament
handing down demands to courts.
