Chapter 3 Guidance on answering the exam questions

The European Convention and the law of the United Kingdom

1. Explain and evaluate, in respect of the protection of human rights, the status and impact of public internal law in the United Kingdom.

  • Start by indicating the general significance of PIL. For example, discuss the range of treaties to which the UK is signatory and identify some which engage with human rights, such as the ICCPR or UNCAT. Make the point that such human rights treaties usually require signatory states to establish and enforce rights in their domestic law.
  • In the UK, this leads to the problem that the UK has a dualist concept of international law. A treaty cannot directly change the law of the UK and so its rights-creating provisions cannot be directly enforced in the courts of the UK. For that to happen there needs to be an Act of Parliament to give the rights that originate in a treaty legal force in the UK. Perhaps give examples of this. UK courts cannot directly enforce a treaty provision as such and for itself. International treaties will have their own mechanisms of enforcement (such as the reporting mechanism found in the ICCPR).
  • It would be useful to explain the justification of the ‘dualist’ position which lies in the separation of powers and the constitutional position that Parliament and not the legislature makes the laws of the country. Lord Kerr’s dissent in R (SG) v SSWP might be worth referring to: he argued that since human rights have, ex hypothesi, universal approval, the separation of powers argument does not apply. The legislature simply has the duty to give them legal effect (a mere formality) and so there is no objection to their direct enforcement.
  • But it is very important to make the point that, anyway, the relationship of PIL and domestic law is complex and a strict dualism does not apply.
  • For example, first, UK courts will analyse, interpret and apply international law if this is necessary in order to decide a case properly brought in the UK courts. For example,Benkharbouche v Sudan involved the question of whether foreign-born employees, employed by an embassy but for domestic (not diplomatic) work, could pursue unfair dismissal in the UK courts. In order to resolve the case the UK courts had to explore international law relating to ‘state immunity’.
  • Secondly, as Lord Bingham said in R v Lyons, international law is ‘pervasive and persuasive’ in UK law. In particular this means that international law can persuade judges to interpret UK legislation in ways which are compatible with PIL. This is based on, firstly, a presumption of statutory interpretation that Parliament intends to legislate compatibly with the UK’s international obligations (so any contrary intention must be very clear in the text of the Act) and, secondly, a simple principle that if a statutory text is ambiguous the UK courts can allow international sources to provide a reason for removing the ambiguity in favour of international law. Compatibility with the rule of law suggests that, subject to clear statutory words, UK law should develop consistently with the broad principles of PIL – both treaty-based and customary. The compulsory part of customary international law, jus cogens, which embodies the most fundamental requirements of a civilised state, is, in any case, part of the common law and directly enforced in the courts. There are plenty examples of this and, indeed, much of the pre-HRA influence of the ECHR derives from it.

2. Critically evaluate the extent to which English courts have been able to give effect to Convention rights (or at least the norms they express), independently of the HRA. Explain this process, consider its limits, and give examples.

  • This question requires a description and evaluation of the influence of the ECHR prior to the HRA 1998.
  • Consider, first, the “dualist” approach to international law – which means that the ECHR can influence UK law but is not directly enforced.
  • Then consider some of the ways of “influence”. In particular:-
    1. Statutory interpretation on the basis, for example, that the UK Parliament intends to legislate compatibly with UK international obligations (Garland v BREL – an EU case but the principle is clearly stated);
    2. Similarly – the principle of statutory interpretation that Parliament does not intend, when it grants general powers to a minister, etc., that these general powers can authorise interferences with human rights or with the “fundamental rights” recognised by common law (e.g. R v SSHD ex p Simms). Such interferences would require explicit authorisation.
    3. The principle of judicial review by which closer, more “anxious” scrutiny is applied to executive decisions involving human rights (e.g. Smith v MoD).
    4. Note also the common law. In some areas, especially privacy and freedom of expression, Convention norms (i.e. the values, definitions and approaches of the ECtHR) have been used to develop the common law on, for instance, defamation and confidentiality. See, for example, Derbyshire v Times Newspapers (where fundamental rights in common law were preferred) and Douglas v Hello! (on the development of privacy in the common law).
  • Conclusion: you would gain credit if you relate the argument to recent development in HR law by which the claims of the common law have been recognised by the courts as still fully alive and, perhaps, the first port of call for legal argument (see Osborn v SSHD and Kennedy v Charity Commission).
Back to top