Parliament. Finally, the report explores ... - British Academy

1 Human rights law has been the subject of considerable controversy in the UK over the last few years. In Human rights and the UK constitution Colm O Cinneide clarifies some of the key issues at stake. In particular he evaluates the workings of UK human rights law, and the nature of the relationship between the European Court of Human Rights and the UK courts and Parliament. Finally, the report explores how proposals for a new Bill of Rights may affect the protection of human rights within the framework of the UK s unwritten constitution. Human rights and the UK constitution finds that the current state of human rights law in the UK strikes a good balance between respect for democracy and the need to protect human rights.

2 Attempting to recalibrate that balance may prove to be a difficult and thankless task. ISBN 978-0-85672-605-7 THE British Academy 10 11 Carlton House Terrace London SW1Y 5AH +44 (0)207 969 5200 Registered Charity: Number byHUMAN RIGHTS AND THE UK CONSTITUTION Colm O CinneideHUMAN RIGHTS AND THE UK CONSTITUTION Colm O Cinneide The British Academy , established by Royal Charter in 1902, champions and supports the humanities and social sciences across the UK and internationally. As a Fellowship of 900 UK humanities scholars and social scientists, elected for their distinction in research, the Academy is an independent and self-governing organisation, in receipt of public funding.

3 Its Policy Centre, which draws on funding from ESRC and AHRC, oversees a programme of activity, engaging the expertise within the humanities and social sciences to shed light on policy issues, and commissioning experts to draw up reports to help improve understanding of issues of topical concern. This report has been peer reviewed to ensure its academic quality. Views expressed in it are those of the author(s) and are not necessarily endorsed by the British Academy but are commended as contributing to public rights and the UK constitutionColm O CinneideSeptember 2012 Steering group:Vernon Bogdanor CBE FBAJohn Eekelaar FBAD avid Feldman QC FBAS andra Fredman QC (Hon) FBA (Chair)Conor Gearty FBAF rancesca Klug OBE THE British ACADEMY10 11 Carlton House TerraceLondon SW1Y Charity.

4 Number 233176 The British Academy 2012 Published September 2012 ISBN 978-0-85672-605-7 Designed by Soapbox, Printed by Smith & Watts 3 Contents Preface 5 Executive summary 71 Introduction 112 The current system of human rights protection 13 in the UK parliamentary sovereignty, human rights 13 and the rule of law Creating a culture of justification the 15 relationship between politics and law The protection of rights within existing 17 UK law Examples of the functioning of the current 20 system of rights protection Criticism of the existing state of UK 22 human rights law 3.

5 The relationship between the UK and the ECHR 26 The structure and functioning of the ECHR 26 system of rights protection Institutional and structural criticisms of the 28 ECHR system The institutional integrity of the Strasbourg 30 Court The legitimacy of the structural relationship 32 between the UK and the ECHR Proposals for reform and the question of 34 adherence to judgments of the Strasbourg Court Overview 364. The Human Rights Act 1998 and the Bill of 37 Rights debate 4 Human rights and the UK constitution // British Academy Policy Centre The Purpose, structure and functioning 37 of the HRA Criticisms of the HRA and the proposal for 39 a new UK Bill of Rights The place of convention rights in UK Law 40 A new Bill of Rights?

6 43 Overview 465. Conclusion 48 Acknowledgements 49 About the author 50 About the steering group 51 British Academy Policy Centre publications 54 British Academy Policy Centre // Human rights and the UK constitution 5 PrefaceIt is hard to identify a truly objective voice in the divisive and highly politicised debate that rages around human rights law in the UK. For this reason the British Academy , prompted by two of its Fellows, John Eekelaar and Sandra Fredman, has produced a report to contribute to the debate from an academic and non-partisan angle. The British Academy , as the national body for humanities and social science disciplines, is home to a wealth of academic expertise among its Fellowship, elected for their distinction in research.

7 Its Policy Centre, set up in 2009, draws on this expertise, and communicates it to policymakers in order to contribute to strong and effective evidence-based policymak-ing. Its work is part funded by the two relevant UK Research Councils, the ESRC (Economic and Social Research Council) and AHRC (Arts and Humanities Research Council). The Academy is a non-partisan body. Human rights and the UK constitution has been overseen by an eminent group of constitutional experts including Sandra Fredman FBA, John Eekelaar FBA, Vernon Bogdanor FBA, David Feldman FBA, Conor Gearty FBA and Francesca Klug (Professorial Research Fellow, Centre for the Study of Human Rights, London School of Economics and Political Science).

8 The group decided that a contribution of academic evidence would most usefully focus on the mechanisms by which human rights are protected in the UK, and what the effects might be of changing the existing system. Therefore the author of this report , Colm O Cinneide, Reader in Law at UCL, has concisely discussed the balance of power between the courts and Parliament; the relationship between the UK and the European Court of Human Rights; and the workings of the Human Rights Act 1998. Mindful of the calls from various quarters for a British Bill of Rights to supplement or supplant the Human Rights Act, he discusses how such a Bill of Rights might work and what it would imply for the UK.

9 The report , like all Policy Centre reports, has been thoroughly peer reviewed to ensure its academic Policy Centre, the steering group, and the author of Human rights and the UK constitution, all hope that its objective and well-evidenced findings will prove useful to those who have a hand in deciding the future of human rights protection in the McLean FBAVice-President (Public Policy), British Academy 6 Human rights and the UK constitution // British Academy Policy CentreBritish Academy Policy Centre // Human rights and the UK constitution 7 Executive summary1. Human rights law has been the subject of considerable controversy over the last few years.

10 This paper aims to clarify some of the key issues at stake. In particular, it evaluates the current state of UK human rights law, and explores how proposals for a new Bill of Rights may affect how human rights are protected within the framework of the UK s unwritten constitution. 2. The UK is a parliamentary democracy: the British people can be said to govern themselves through their elected representatives in Parliament. However, it is widely accepted that healthy democracies are based on more than majority rule. Parliament, the executive and other organs of the state are expected to respect individual freedom and the human rights of every person subject to their jurisdiction.