A Bill of Rights for the United Kingdom-Now

By Zander, Michael | Texas International Law Journal, Summer 1997 | Go to article overview

A Bill of Rights for the United Kingdom-Now


Zander, Michael, Texas International Law Journal


A Bill of Rights for the United Kingdom-Now^

MICHAEL ZANDER, Q.C.^^

The United Kingdom is one of the few countries in the world to have neither a written constitution nor a Bill of Rights. For the past twenty years or so, this lack of a constitution has been a topic of legal-political debate. The signs are that in 1997 the debate will be resolved, and the United Kingdom will soon march to a fundamentally new tune.

The debate has been over whether the United Kingdom should or should not incorporate the European Convention on Human Rights (ECHR) into domestic law.' The ECHR is an international instrument adhered to in 1997 by more than thirty countries. It guarantees rights traditionally the subject of Bills of Rights-the right to life; freedom from torture and inhuman or degrading treatment; the right to liberty and security of person; the right to a fair and public hearing in both civil and criminal cases; protection from retrospective laws; the right to freedom of thought, conscience, and religion; the right to freedom of expression, freedom of association, freedom of peaceful assembly, and the like.

The United Kingdom ratified the Convention in 1951,2 and since 1965, anyone wishing to complain about an alleged breach of the Convention by the U.K. Government or any of its emanations has had the right to take such a complaint to the Strasbourg system established by the Convention.3

The Strasbourg system has proved to be highly successful. The European Court of Human Rights has issued some seven hundred decisions,4 many of which find violations by the respondent Government.5 There has been no significant problem in securing implementation of the Court's decisions. The Strasbourg system is a functioning system that works.

But from the point of view of the complainant, the system suffers from serious shortcomings. The worst of these is that it takes an unconscionably long time to get a decision. According to the Council of Europe, "it takes on average over five years for a case to be finally determined."6 Concern over these delays led, in 1984, to a new procedure under Protocol No. 8 which entered into force in 1990 and which permitted the Court to sit in chambers for certain cases. Protocol No. 8 also provided for a new procedure under which the Commission, by committee decision, could dismiss manifestly inadmissible complaints. However, the tide of new cases continued to rise inexorably. As the number of states party to the Convention grew after the collapse of the Soviet Union to include more and more Eastern bloc countries, it became clear that more drastic action was needed. In 1985, the number of countries in the ECHR system was twenty-one; in 1996, it was thirty-five. In January 1994, the number of pending cases stood at 2672, almost 1500 of which had not even been looked at by the Commission which is responsible for the preliminary handling of complaints. Today, the situation is even worse.

In 1993, a decision was taken by the Council of Ministers to ask the experts advising the organization to prepare a draft amending Protocol with the aim of improving efficiency and shortening the time taken for individual applications. This decision led to Protocol No. 11 which was signed in May 1994 by thirty-three countries and which will come into force when ratified by all signatory member states.7

Protocol No. 11 provides for radical reform. The part-time Commission and Court will be replaced by a full-time Court. The Commission is to be abolished altogether. Some cases will be decided by committees of three judges, some by chambers of seven judges and some by the grand chamber consisting of seventeen judges.8

But by the time that the Protocol comes into effect the backlog will be even greater, and the caseload will be even heavier.9 It would be remarkable if the new system was able to keep abreast of the problem of delay, let alone make any significant dent in it. …

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