ECHR and the United Kingdom
European Convention on Human Rights: the European Convention and the United Kingdom
Introduction to ECHR and the United Kingdom
The United Kingdom was one of the original signatories of the ECHR in 1950, although it has not been incorporated into domestic law through legislation and is theoretically only binding as an international obligation of the state. For example, in Malone v. Commissioner of Police (No. 2; 1979) it was argued that telephone tapping was in breach of Article 8 of the ECHR, which protects property and privacy. The judge in the case ruled that English law did not recognize a right to privacy and that the ECHR was not part of English domestic law. The case was brought to the ECHR, which found there was a violation of Article 8 and the British government finally passed legislation to regulate phone tapping.
Rulings from the ECHR that have found the United Kingdom in breach of the convention possess high persuasive value. Courts frequently refer to rulings as a guide to the interpretation of domestic legislation and to the development of English common law.
A number of judges have suggested informally that the English courts use the ECHR more creatively in human rights issues. Nevertheless, there is still considerable authority in English law, which takes a more traditional and cautious approach in this context. Unless the ECHR is actually incorporated as part of English domestic law it seems likely that litigants will continue to present their cases to the ECHR in Strasbourg. However, bringing a case to the ECHR is both time-consuming and expensive. Many commentators have argued that it would be preferable for the United Kingdom to legislate in this area.
Regardless of future incorporation, the ECHR has made a substantial impact on the United Kingdom. Legislative changes have been made in a large number of contexts as a result of rulings by the ECHR. Examples include the introduction of the Contempt of Court Act 1981, the Interception of Communications Act 1985, and the Mental Health (Amendment) Act 1982. Administrative rule making has also been reformed in areas such as immigration, prisons, and detention of suspects in Northern Ireland.” (1)