Has incorporation of the European Convention of Human Rights secured better judicial enforcement of human rights in England and Wales?

Abstract

This thesis addresses the question: Has incorporation of the European Convention of Human Rights secured better judicial enforcement of human rights in England and Wales? Using the example of the European Convention on Human Rights (ECHR), it asserts that for human rights instruments to achieve a high level of human rights protection for individuals in England and Wales, such instruments need to be incorporated. In doing so it makes use of a comparison of the English and Welsh courts’ experience with incorporated and unincorporated human rights instruments.

It compares the ECHR, an example of an incorporated human rights instrument, and the International Covenant on Civil and Political Rights (ICCPR), an example of an unincorporated human rights instrument. It examines three periods of time to make direct comparisons of the enforcement of rights of two legal instruments containing similar rights in the courts England and Wales (prior to 1953, between 1953 and 1998, and between 1998 and 2018).

In each of these periods, this thesis carries out a doctrinal analysis of what the law on human rights in England and Wales was or is, providing clear explanation of how the law should operate in respect of individual rights. To complement this, quantitative socio-legal analysis shows what actually happened during this period: the vast increase in reference to international human rights law but the divergence between citations of the ECHR and ICCPR.

This thesis demonstrates the extent to which the ICCPR has not been used by the courts, compared with the increasing use of the ECHR. Indeed, between 1998 and 2018 the ECHR was referred to by courts 39 times more than the ICCPR. Although the increase in reference to the ICCPR after 1998 illustrates a growing awareness of, and willingness to engage with, international human rights law in domestic courts, the extent to which it lagged behind the ECHR serves to highlight the difference incorporation makes to the influence of such instruments.

This thesis concludes that incorporation of the ECHR secured better judicial enforcement of human rights in England and Wales.

Date of Award	2021
Original language	English
Sponsors	Carnegie Trust for the Universities of Scotland
Supervisor	Jacques Hartmann (Supervisor) & Alan Page (Supervisor)