3/22/2019 The European court of human rights’ judgments that transformed British law | Law | The Guardian

The European court of human rights’ judgments that transformed British

law
From curbing the British army’s use of torture in Ireland to ending bans on homosexuality, the court has shaped UK
law
Owen Bowcott, legal affairs correspondent
Fri 3 Oct 2014 17.13 BST

Since the European court of human rights (ECHR) in Strasbourg first began handing down judgments in 1960, successive
decisions have transformed the legal landscape of the United Kingdom.

Often rulings have not been immediately welcomed by the government of the day. Sometimes they have been dismissed as
inventing fresh rights. Many, over the course of time, have come to be seen as inevitable milestones in the march of progress.

Opponents of the ECHR’s developing case law fear that the courts ever expanding interpretations of the European convention
on human rights has turned it in effect into a law-making body. Supporters describe it as a “living instrument”, through which
fundamental rights are applied to changes in society.

Even Lady Hale, deputy president of the supreme court and a staunch defender of the Human Rights Act, has expressed
concern that “the current problem facing both Strasbourg and the member states is whether there are any limits to how far
the [convention] can be developed”.

Among the landmark judgments that changed the law are:

•Ireland v UK. The 1978 ECHR decision ruled that the British army’s use of five techniques on detainees – wall-standing
(forcing detainees to remain in a “stress position” for hours, spreadeagled against the wall), hooding, subjection to noise, and
deprivation of sleep, food and drink – amounted to inhuman and degrading treatment.

Sunday Times v UK. The 1979 ruling from the ECHR in Strasbourg overturned a court injunction imposed on reports by the
•

Sunday Times about the thalidomide compensation cases.

Thomas Hughes, executive director of the free speech organisation Article 19, commented: “From the 1970s when the ECHR
supported the Sunday Times’ publication of the thalidomide scandal, to curbing court abuses during the McLibel trials, the
ECHR has filled the gap where there are bad court decisions, repressive UK laws, or simply no laws at all. As a final court of
appeal it has shown time and again that it is a vital backstop when the British courts fail to protect free speech.”
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Dudgeon v UK. In a famous victory for gay rights, the ECHR ruled in 1981 that the criminalisation of homosexuality in
•

Northern Ireland was illegal.

Jonathan Cooper, a human rights lawyer and chair of the Human Dignity Trust, a gay rights group, said: “The European
convention on human rights, which was drafted by an eminent Scottish Conservative, recognised that across Europe we
needed enforceable human rights. The British were the first to sign up to it. Those rights are now part of UK law through the
Human Rights Act.

“They fill gaps missing in UK law, such as the right to privacy and protest. In reality there is nothing more British than the
Human Rights Act. And through it, our values are being woven into human rights law across the globe. With human rights
comes peace and security. Will so-called British rights be as effective? We replace the Human Rights Act at our peril.”

Hirst v UK. The 2005 ruling by the ECHR granting some prisoners voting rights has yet to be enforced by the British
•

government. It has become the test case over Strasbourg’s authority and on which the Conservative’s new policy is founded.

The prime minister, David Cameron, said of the ruling: “If parliament decides that prisoners should not get the vote then I
think they damn well shouldn’t. It should be a national decision taken in our parliament.”

The adoption of the Human Rights Act in 1998 meant that British courts routinely began to base their decisions on rights in
the European convention of human rights.

•In 2010 Aso Mohammed Ibrahim, a Kurdish asylum seeker who caused the death of a 12 year girl in a driving accident,
avoided deportation. Tabloid papers seized upon the fact that he had claimed the right to a family life, enshrined in article 8
of the convention, to avoid deportation at an immigration tribunal.

The prime minister remarked of the case: “My personal response is one of great anger that this is allowed to happen. Here we
have an Iraqi asylum seeker convicted of an offence that led to the death of a child and yet we are being told that there is no
way that this person can be deported to Iraq.”

Al-Jedda and Al-Skeini v UK. Judgments in Strasbourg in 2011 said that those detained in Iraq by UK armed forces were
•

subject to the jurisdiction of the European court of human rights.

Abu Qatada v UK. A 2012 judgment by the ECHR said that the preacher could not be deported to Jordan because of the risk
•

that he would be tried there on evidence obtained by torture. The Jordanians eventually gave undertakings not to use such
evidence and he was finally removed in 2013 – where he stood trial and was acquitted last month.

At the time, Theresa May, the home secretary, blamed the ECHR, saying the radical Islamist cleric would have been sent back
to Jordan long ago had it not “moved the goalposts” by establishing new, unprecedented legal grounds for blocking his
deportation.

No one could argue that the impact of Strasbourg’s case law has been insignificant. Limiting its role in future will diminish its
contribution.

Professor Philippe Sands QC, who was a member of the coalition government’s stalemated Commission on a Bill of Rights,
warned that the Conservatives’ proposal “has no support in Northern Ireland, Wales or Scotland, but will be warmly
embraced by President Putin.

“It’s a recipe for lawlessness, a return to the rights-free world of the 1930s. A shameful day for Britain and the rule of law,” he
said.

However, Michael Pinto-Duschinsky, another member of the ill-fated Bill of Rights Commission, defended the justice
secretary’s plans to allow parliament to select which of Strasbourg’s rulings are incorporated into UK law. He said: “We want
the [ECHR] to be like the canary in the mine. To be taken seriously, but not the final authority.”

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Topics
European court of human rights
Human rights
Human Rights Act
Thalidomide
Torture
Brenda Hale
UK supreme court
news

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