The Impact of the European Convention on Human Rights on UK Law
In democratic societies, it is usually felt that there are certain
basic rights which should be available to everyone. These rights tend
to vary in different legal systems but they generally include such
freedoms as the right to say, think and believe what you like (freedom
of expression, thought and conscience), and to form groups with others
(freedom of assembly).
Most democratic countries have a written Bill of Rights, which lays
down the rights which, by law, can be enjoyed by citizens of that
country. These rights have to be respected by the courts, parliament,
the police and private citizens, unless the Bill of Rights allows
otherwise. Such a Bill may form part of a written constitution or sit
along side such a constitution: either way, it will usually have a
status which is superior to that of ordinary law, in that it can only
be changed by special procedure i.e. a referendum. Legislation, which
is protected by special procedures, is said to be entrenched.
Britain is unusual among democratic countries in having neither a Bill
of Rights nor a written constitution. Citizens' rights in the UK were
described as residual, in that they consisted of what was left after
taking into account the lawful limitations. The system of residual
rights had shown itself to be seriously flawed. A good example of this
is the case of Malone v Metropolitan Police Commissioner (1979).
The main weakness of the current situation, with us not having a Bill
of Rights is that ultimately UK citizens' rights are not being
adequately protected. This situation can lead to very serious Human
Rights abuses. The UK has one of the worst records in Europe; only
Italy has a worst record, of breaching Human Rights and the European
Convention on Human Rights. A Bill of Rights would protect UK citizens
against such breaches.
There are advantages of having a Bill of Rights, the main two being
restricting the executive and the attitude of the judiciary.
A Bill of Rights provides an important check on the enormous powers of
the executive. Dicey saw the role of parliament as a watchdog over the
executive, ensuring that oppressive legislation could not be passed.
Since then though the party system has altered the nature of
parliament, government proposals will almost invariably be passed as
the government can expect their own members to obey party discipline.
This can lead to governments being able to legislate against
individual rights and freedoms almost at will.
Supporters of a Bill of Rights claim it would curb executive powers,
since courts could simply refuse to apply laws, which conflicted with
it. This in turn would be a powerful incentive for a government to
avoid introducing such legislation in the first place.
The provision in...