Safe in their hands? Britain’s Law Lords and human rights

Abstract

This paper, which is the revised text of the first Stephen Livingstone Memorial Lecture delivered in February 2006, surveys the human rights jurisprudence of the House of Lords over the past 10 years. It considers not just how the Law Lords have responded to the Human Rights Act 1998 but also how they have developed the law on equality, asylum and immigration. In assessing whether human rights are ‘safe’ in the hands of the Law Lords, it looks, first, at how willing the Law Lords have been to engage with human rights arguments, concluding that they have relished such discourse. The piece then examines how rigorously the Lords have protected rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The conclusion reached is that the Law Lords have been doing a good job on that front. What is preventing them from adopting an even more rights‐based approach to their work in general is the UK’s stubborn adherence to the ‘dualist’ theory of international law. The author agrees with Lord Steyn that the time has come to reconsider that position.

Human rights as risk: UK prisons and the management of risk and rights

“…More recently, the Human Rights Act 1998 has been the major catalyst. It has imposed a legal obligation to respect Convention rights on all public bodies, provided lawyers and judges with direct recourse to the Strasbourg rights jurisprudence in any UK legal proceeding and engendered a new rights awareness among the public and media (Clayton and Tomlinson, 2009;Dickson, 2006;Leigh and Masterman, 2008).…”

Ambition, achievement and potential: the UK and the Universal Declaration of Human Rights at sixty

“…67 Dickson has suggested that the time has come to reconsider the traditional dualism of UK law, and to allow courts to rely on international standards where the government has indicated it intends to respect those standards. 68 Lord Steyn has even speculated that the traditional rationale for courts not to apply unincorporated international treaties does not apply in the context of human rights treaties that impose obligations on the State to respect individuals' rights. 69 It is worth noting in this regard that the Joint Committee on Human Rights, without going so far, has recommended that any Bill of Rights for the UK should allow judges to rely upon unincorporated international human rights treaties as a source of interpretation.…”

The Impact of the Human Rights Act on the House of Lords

“…17 A more recent study of decision-making in the House of Lords by Dickson is more relevant, but neither systematic nor quantitative. 18 Many of the more significant studies have been published outside the law journals. Goold, Lazarus and Swiney compiled a comparative survey of the HRA for the Ministry of Justice, covering the ECHR, Germany, France and Spain in addition to the UK, but which only focussed on proportionality and the issue of 'balancing' rights and security.…”