The Universalism of Human Rights by Rainer Arnold

Author:Rainer Arnold
Language: eng
Format: epub
Publisher: Springer Netherlands, Dordrecht

12.3 The ECHR: Complementary or Alternative to Universal Human Rights Protection?

The Human Rights Act 1998 (Human Rights Act 1998) requires courts to ‘take account of’ ECtHR jurisprudence. In addition to the Human Rights Act 1998, the Scotland Act 1998 (Scotland Act 1998) provides that a provision of an Act of the Scottish Parliament is incompetent so far as it is incompatible with any of the specified rights under the ECHR (‘Convention rights’ (Scotland Act 1998s 29)), and that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights (Scotland Act 1998s 57). Similar provision was made by the devolution statutes for Northern Ireland and Wales. In reality, then, the ECHR is the treaty of fundamental significance with international law being taken into account by the Strasbourg Court in its interpretation: but the role of the domestic judiciary in terms of the Human Rights Act and the Scotland Act is of some importance and this calls for some further discussion. But it is not the ECHR treaty but the statute which forms part of domestic law. And the courts will not be bound to give effect to interpretations of the treaty by an international court, unless and to the extent that the statute so provides (R v Lyons [2003] 1 AC 976, 27 per Lord Hoffmann). As Lord Hoffmann said of the Human Rights Act 1998 in Re McKerr [2004] 1 WLR 807 at para 63: What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg.

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