The founding fathers of the United Nations sought to achieve the protection of human rights and freedoms by way of a Universal Declaration of Human Rights 1948 . In its address to all UN Member States, the declaration declared that rights and freedoms apply to all human beings “without distinction of any kind…” The institution, however, lacked enforceability . Since that time, “dozens of international conventions have formed over the years… affecting the United Kingdom.” However, the approach of incorporating these complex human rights have been inconsistent and incoherent. This paper will focus on those developmental changes of Human Rights affected by the Treaty of Lisbon.
Following the 1950s, The European Convention on Human (ECHR) , was the first instrument to give effect to certain rights stated in the Universal Declaration of Human Rights, in countries belonging to the Council of Europe… The Convention is part of an elaborate system and consists of a number of ‘articles’ designed to protect basic human rights. However, the courts have treated these rights as well as common constitutional traditions only as a ‘special source of inspiration’ rather than a legally binding document by the ECJ for human rights principles in the EU. The courts ruled in Nold v Commission that the court is bound to draw inspiration from constitutional traditions common to the Member states. For this reason, the court was unable to maintain measures which are compatible fundamental rights. However, the case of Dugdeon v United Kingdom is a modern human rights success. The human rights it concerned included Article 8 ECHR. It concerned a homosexual man in Northern Ireland (NI) who claimed against the Northern Ireland government when he was interrogated on his sexual orientation, that the threat criminalization when his home was legally searched, in which case he was interrogated on his sexual orientation, interfered with his respect of private family life and that such a law was discriminatory. Under Article 8 ECHR; a qualified right means that interference with an individual’s rights must be justifiable. The Strasbourg Court held “once it has been held that the restriction on the applicant’s right to respect for his private sexual life give rise to a breach of Article 8.” However, 98.85% of cases in court in 2013, were declared inadmissible or struck out.
These statistics are not without criticism. “It is quite absurd that English judges should lack the power to investigate or enforce many of the fundamental rights declared in the European Convention, and equally ridiculously, that citizens should be forced to go all the way to the European Court of Human Rights in Strasbourg in order to enforce those rights.”
The EU whose status is separate from the ECHR, but makes Human Rights laws is not legally binding on member states. It maintains the freedom to deviate from the Convention in Certain ways. The ECJ courts lacked competence to develop a ‘human rights policy’, which has led to the stance that the EU’s role in relation to human rights is limited merely to ensuring their respect.
Through an amendment, the European Union then resolved to protect fundamental rights as guaranteed by the European Convention and as a result of the constitutional traditions, common to the Member States. These rights became the ‘general principles of community law’. European Community did not have the power to accede to the European Convention. In 1998, the enactment of the Human Rights Act came, which included all the rights set out in the Strasbourg Charter except for the right to an effective remedy. It was argued that the Human Rights Act “provides that the right to life and all of these other rights are spelled out in the same way, and that the courts should therefore have the power to strike down any legislation by Parliament or by government minister inconsistent with the European Convention.” In other words, the EU ‘shall accede’ to the European Convention on Human Rights (ECHR) which in turn will help to ‘develop a fundamental right in the EU, reinforce the credibility of the EU’s human rights system, place the EU’s weight behind the Strasbourg system, and will ensure the harmonious development of the case law of the two courts.
However, this decision is not unanimous. According to Brian Leveson, “The oath that every British judge takes is to try every case according to the laws and usage of the realm, which means we have to comply with the law as set out by parliament and higher courts. Parliament has required us to take account of European decisions.”
The Charter seems promising. In the ruling in Internationale Handelsgesellschaft , the ECJ had, in effect, created a doctrine of unwritten rights which bounded the community institutions.
To this, “Prime Minister Blair returned to London, stating firmly that the CFREU is simply a catalogue of existing rights. It is not currently enforceable as such in the National Courts.” Another complexity may arise from Article 53 of the CFR which states: ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutes. The writer is of the belief it is possible that this provision could be in UN human rights treaties but did not feature in the CFR. However, the historically ambiguous attitude of the CJEU towards the UN human rights treaties does not necessarily suggest that this is a likely outcome’.
The most recent, Article 6 TEU, has become the centerpiece of the EU’s human rights framework for three formal sources of EU human rights law that have been problematic due to an overlap. Karolina Mathisen writes that, “the new… protection of fundamental rights in the EU context has been taken to a new level.”
A. Charter – the EU Charter of Fundamental Rights which, initially, had not been legally binding until entry into Article 6 of the Treaty of Lisbon clarified fundamental rights into a single document. In the light of changes in society, there have been social progress and scientific and technological developments.
Article 6(1) TEU states that the Union recognizes the rights, freedoms and principles set out in the Charter. The CJEU declared this Charter to be the ‘principal basis on which the EU courts will ensure that human rights are ensured’. The Court of Justice of the European Union, which sits in Luxembourg, is responsible for overseeing compliance with the EU Charter as part of its remit to oversee compliance with EU law. This is a much broader statement than anything the Convention considered before. Further, Article 6 TEU has established the Charter as a very modern codification and includes ‘third generation’ fundamental rights, such as:
• Data protection;
• Guarantees on bioethics; and Transparent administration
B. Article 6(1) TEU states that The Union recognizes the rights, freedoms and principles set out in the Charter. The European Commission believes accession will help to ‘develop a fundamental right in the EU, reinforce the credibility of the EU’s human rights system and external policy, will place the EU’s weight behind the Strasbourg system, and will ensure the harmonious development of the case law of the two courts. When accession occurs, applications against the EU will be treated in the same way as applications against any other State Party to the ECHR and procedurally, the existing system of exhausting all judicial remedies under EU law will continue before bringing a case to Strasbourg.
Therefore, the EU ‘shall accede’ to the ECHR. This means that applications against the EU will be treated in the same way as applications against any other state party to the ECHR and procedurally, the existing system of exhausting all judicial remedies under EU law will continue before bringing a case to Strasbourg.
However, when Brexit occurs, the UK will no longer be a part of the EU and therefore no longer accede to the obligations under the Treaty of Lisbon. There are serious concerns about the government’s approach to safeguarding individuals’ fundamental rights post-Brexit, other than those protected under the ECHR. Emerging is a controversial issue on whether the ECHR, which is a treaty signed under the Council of Europe, and is separate from the EU, will continue to bind the UK. Writer states “the rulings of the ECHR are binding not on our courts, but on the government (which is not bound by rulings of our own supreme court)”. The only “binding effect of Strasbourg is limited to section 3(1) of the Human Rights Act, which compels a court dealing with a case concerning a human rights question to interpret it in line with the provisions of the ECHR.”
An essential element to the process of Brexit is the Great Repeal Bill which, the government has promised will preserve many existing protections under EU law (including the Human Rights Act 1998 ). Dec 5th’s outcome was been highly criticized by Dick Newby, who stated, “they make no assessment of the impact”, and that the likelihood of the assessment of impact being useful would be “near zero”.
However, it is arguable that this will not remove the complex and evolving issues of human rights especially since the most recent and progressive rights that are in line with global will disappear with the removal of charter Freedom.