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The European Convention on Human Rights

The preamble to the Human Rights Act 1998 (HRA) describes it as ‘an Act to give greater effect to rights and freedoms guaranteed under the European Convention on Human Rights’ (the Convention). To understand the HRA you need to know something about the history of the Convention.

The Convention was drafted after the Second World War. British lawyers and civil servants were heavily involved in its drafting. The United Kingdom (UK) signed up to the Convention in 1953 and was one of the first countries to do so. In all, 47 countries have now signed up to the Convention including most of the east European, former communist countries and several countries that were once part of the Soviet Union. The countries that have signed up to the Convention make up the Council of Europe. The Council of Europe is quite separate from the European Union.

The Convention is divided into ‘articles’. Articles 2 to 14 set out the rights that are protected by the Convention. Over the years the Convention has been supplemented by a number of protocols that have been agreed by the Council of Europe. Some of the protocols just deal with procedural issues but some guarantee rights in addition to those included in the Convention. The UK has signed up to two of the protocols that guarantee additional rights (the First and Sixth Protocols) but not to the others (the Fourth, Seventh and Twelfth Protocols).

The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the Convention. It is based in Strasbourg, France and is made up of judges nominated by each of the countries that are members of the Council of Europe. Since 1966 people have had the right to bring cases against the British Government in the ECHR. Over the years there have been many cases in which the ECHR has found that the UK has breached the Convention. One reason that there have been so many findings against the British Government is that there was no way that people could get redress for a breach of their rights under the Convention in the British courts. This and the fact that taking a case to the ECHR can take several years were major factors in persuading the Labour Government to pass the HRA shortly after they came to power in 1997. Many people believe that the HRA is one of the major achievements of that Labour government.

Because the Convention is now over 50 years old some of the language that it uses is quite outdated. However, the ECHR has often stressed that the Convention is a ‘living instrument’. This means that as society and attitudes change, the ECHR will change and develop the way in which it interprets the Convention. The ECHR will, however, still tend to follow the precedents set by earlier cases - where it does not it will make clear why it is not doing so. It is therefore important to look at past decisions of the ECHR. Moreover, the HRA requires the courts in this country to take the ECHR’s past decisions into account when deciding cases under the HRA. These decisions are now posted on the Internet in the website of the ECHR (www.echr.coe.int/echr/).

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