Why was Article 13 of the Convention left out of the Human Rights Act 1998 and with what

results? How could the relationship between the Human Rights Act 1998 and the European Convention on Human Rights change after the entry into force of Article 6 (2 and 3) of the Lisbon Treaty? In 1998 the UK Parliament passed the Human Rights Act (HRA) by which the European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR) was incorporated into UK domestic law 1. And under the HRA, UK courts must, so far as it is possible to do so 2, interpret domestic legislation and regulations in such a way that is compatible with the Convention3. In the event that the court finds a piece of legislation or provision to be incompatible with the Convention, the court may make a declaration as to this incompatibility 4. However, this declaration of incompatibility does not, according to the HRA, invalidate or affect the enforceability of the incompatible legislation/provision, nor does it bind the parties to the matter in which the declaration is made 5. Interestingly, Article 13 of the Convention was not incorporated into the Act. It states that: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. The European Court of Human Rights has held that a remedy is not effective unless it requires the authority to correct the violation or compensate the injured party for it 6. Under the HRA, once a declaration of incompatibility is made, the court seems to have no further role - the Government need not act to correct the compatibility and the declaration is not binding on the parties to the case in which it is made 7. According to the Labour Government, Article 13 was left out of the HRA because section 8 of the Act, which makes provision for courts to award judicial remedies and relief, was considered sufficient to satisfy the requirements of Article 13 of the Convention 8. The government also argued that including Article 13 in the Act could result in judges making unpredictable awards of damages, or could lead to criticism that the incompatibility declarations are not sufficiently effective to satisfy the provisions of Article 13 which would result in a call for more coercive remedies 9. However, by not including Article 13 in the HRA, parliament has created a situation where, once a declaration of incompatibility is made, the litigant cannot force the Government to take any remedial action 10 under the Act. Because of the loop hole created by a finding of incompatibility and because of the provision of section 3(1) (that all efforts must be made to interpret legislation in a manner compatible with the ECHR) the failure to include Article 13 of the Convention in the HRA has led to a tendency by

UK courts, when interpreting legislation, to do their best to find compatibility with the Convention 11[11].
1 Section 1(1) - (2) of the HRA incorporate and protect the rights and freedoms set out in Articles 2 -12 and 14 of the Convention as read with Articles 16 -18 of the Convention. 2 HRA s 3(1) 3 HRA s 3(1) 4 HRA s 4 (2) & (4) 5 ibid s 3(2)(b)&(c) and 4(4)(b) & 4(6)(a). 6 Aksoy v Turkey (1997) 23 EHRR 553 at para 95 7 See Caroline Neenam, Is a Declaration of Incompatibility an Effective Remedy? (2000) 5 Jud Rev 247 8 Natalie Waites, Immigration and Asylum Law under the Human Rights Act: A Three Branch Analysis, (2008) 4 JMRI 25, 28 9 ibid 10 The HRA does not require Parliament to amend the legislation so as to make it compatible nor does it require (for new legislation) that the legislation be in fact compatible, it requires only that Parliament make a statement as to compatibility. 11 See Lister v Forth Dry Dock & Engineering Ltd [1990] 1 AC 546

Why was Article 13 of the Convention left out of the Human Rights Act 1998 and with what results? How could the relationship between the Human Rights Act 1998 and the European Convention on Human Rights change after the entry into force of Article 6 (2 and 3) of the Lisbon Treaty?

The UK is a member state of the Union and therefore article 6(2 and 3), which says that the articles of the Convention form part of the general principles of the Unions law, applies to the UK as well. In international law, general principles are a source of law. They are legal concepts so fundamental that they can be found in legal systems throughout the world. 12 Therefore, after the coming into force of these Articles, it is conceivable that the provisions of the Convention will be considered to form part of the general principles of the UKs legal system. However, it is important to remember that unless international law is incorporated and/or ratified into domestic legislation its effect may be superficial. Even the judgments of the ECtHR are technically not legally enforceable 13.

Florida State University, International and Foreign Law Resources <http://guides.law.fsu.edu/content.php?pid=41625&sid=342070> accessed Dec 15, 2012 13 Caroline Neeman (n 7) 250

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