CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

Though the United Kingdom has been a member state of the Council of Europe since 1951, and has permitted the right of individual petition before the European Court of Human Rights since 1966, ‘the Convention rights’ have only been enforceable at the domestic level since 2000, when the Human Rights Act 1998 (hereafter HRA) came into effect across the UK. In the short period during which the Convention rights have been directly applicable in domestic litigation – in defining the contours of legal action taken by public authorities and as tools capable of tempering the requirements of rights-infringing legislation – the Convention and the European Court of Human Rights have become somewhat notorious in political discourse in the UK. It has become commonplace for the European Court of Human Rights to be accused of overreach, of utilising the ‘living instrument’ doctrine to develop the Convention's protections illegitimately and, as a consequence, of increasingly interfering with national sovereignty. If the enactment of the HRA in 1998 amounted to a radical reformation in the UK's approach to legally enforceable rights – through ‘bringing rights home’ and giving them effect in domestic courts for the first time – a counter-reformation is now, only 15 years later, very firmly in progress.

The recent upsurge in criticism of the Convention rights and of the European Court of Human Rights can undoubtedly be traced back to the 1998 enactment of the HRA. Prior to the HRA coming into effect across the UK, the dualist nature of the constitution largely precluded direct reliance on the Convention rights in domestic law. As Lord Donaldson starkly noted in the then leading decision of Brind: