European and

Dr Pinar Canga
International
Sources of Law
 Today’s Lecture

• The European Convention on Human

Rights and UK Law
• Other international treaties and UK law
• The European Union as a source of
domestic law
Monism vs Dualism:
when does international
law apply in the UK?
 • International law does not need to be
translated into national law.
• The act of ratifying an international
Monism treaty = incorporation of that
international law into national law
• Two different approaches
 • International law - not directly
applicable domestically
Dualism • Translation into national
legislation is required.
MONIST? DUALIST?
What is the
European
Convention on
Human Rights?
 ECHR
Article 1 – Article 5 –
Article 3 – Article 4 – Article 6 – fair
respecting Article 2 – life liberty and
torture servitude trial
rights security

Article 9 –
Article 7 – Article 8 – Article 10 – Article 11 – Article 12 –
conscience
retroactivity privacy expression association marriage
and religion

Article 13 – Article 16 – Article 17 – Article 18 –

Article 14 – Article 15 –
effective foreign abuse of permitted
discrimination derogations
remedy parties rights restrictions
Because the UK is
dualist, Treaty • Let’s focus on the ECHR.
obligations do not • First country to sign, however no incorporation into domestic law.
automatically form • 1966: the United Kingdom accepted the right of individual petition.
part of national law
 Malone was charged with handling stolen goods; his phone calls were
intercepted.

The Nature of
the Problem: He has a clear claim that his Article 8 ECHR rights – the right to privacy – have

Malone v
been breached:

Metropolitan
Police BUT: there is no way to enforce this – nothing unlawful has occurred as a matter
of domestic (English and Welsh) law.

Commissioner
[1979] Ch 344 Megarry VC: "I have already held that, if such tapping can be carried out
without committing any breach of the law, it requires no authorisation by
statute or common law; it can lawfully be done simply because there is nothing
to make it unlawful.”
 • The UK’s obligations under
the ECHR are monitored by
the Council of Europe.
• The ECtHR ultimately
determines whether the
ECHR has been breached.
Individuals can bring cases
when domestic remedies
exhausted.
• Malone v United Kingdom rules
that the UK had indeed
breached Article 8.
• The UK changed the law (to
Mr Malone goes to be continued in LL1001 …)

Strasbourg
The Human Rights Act 1998: rights are
coming home
• Wouldn’t it be easier if Mr Malone’s argument could have just been
dealt with in the High Court?
• The Human Rights Act 1998: ‘bringing rights home’
• Litigants can still bring cases to the ECtHR once domestic remedies
have been exhausted (e.g. they lose in the UK Supreme Court),
assuming the ECtHR rules that their case is admissible.
• Recent examples: Austin v UK (‘kettling’ during protests); Gillan &
Quinton v UK (stop and search powers)
 Basic provisions of the HRA 1998 (we do this
in far more depth in Public Law)

• Section 2: UK courts must take into account the case law of the
ECtHR.
• Section 3: so far as is possible, UK courts must interpret domestic
legislation so that it is compatible with the ECHR.
• Section 4: if that is not possible, courts may declare the legislation
incompatible with the ECHR. The law remains in force.
• Section 6: it is unlawful for a ‘public authority’ to act contrary to the
ECHR.
 For and against the Human Rights Act?
For
• Effective incorporation of
international obligations into UK law
• Section 2 allows UK courts to diverge
from ECtHR if appropriate
• Section 3 prevents cases going to
ECtHR
• Section 4 ultimately preserves
Parliamentary sovereignty
• ‘Which of these rights, I ask, would
we wish to discard?’ – Lord Bingham
Against
• Does Section 3 give the judiciary too
much power? Does it undermine
Parliament’s intentions?
• The scope of human rights protections
should be decided by elected
politicians, not judges
• Distrust of ‘European’ as opposed to
‘British’ human rights laws
• Human rights laws can frustrate
executive actions especially in
immigration or security cases
 What about
other • For Treaty law, the general ‘monist’ and ‘dualist’
rules apply.
international • BUT: there are certain rules of ‘customary’
international law which are part of UK law.
treaties, or • Increasingly global perspective of the legal system:
international Pinochet case (2000)

law?
 • Do not confuse the European
Union with the European
Convention on Human Rights
or the Council of Europe.
• What does the EU do?
• Competences are set out in
Treaty on European Union and
Treaty on the Functioning of
the European Union
• ‘The Internal Market’: free
movement of goods, workers,
capital, services
• Limited common foreign and
security policy
• International trade
agreements

European Union (EU) Law

 • ‘In our view, then, although the 1972 Act gives
effect to EU law, it is not itself the originating
source of that law. It is … the “conduit pipe” by
EU law, which EU law is introduced into UK domestic
law. So long as the 1972 Act remains in force, its
sovereignty, effect is to constitute EU law [as] an
independent and overriding source of domestic
monism, law’: R (Miller) v Secretary of State for Exiting
the European Union [2017] UKSC 5, [65] (Lord
dualism Neuberger).

• What do you think this means?

 Directives:
'binding as the Decisions:
Treaty provisions Regulations: the result to be binding on the
binding in their achieved', i.e. addressee only,
e.g. Article 45 entirety and states have a e.g. in
TFEU, the free directly choice about how competition law
movement of applicable in to incorporate proceedings
workers. national law them. Sometimes fining a single
capable of ‘direct company.
effect’.

Types of EU Law
 Council of Ministers:
European Court of Justice:
European Council: one of the primary legislative
Ultimate arbiter of the
heads of state/government bodies, the elected ministers
meaning of EU law e.g. via
meet every six months of each state meet in their
preliminary rulings
policy areas

European Parliament: European Commission:

Co-legislator with the Council Proposes most EU law (but
on most matters. Directly does not pass it!); ‘executive’
elected. enforcement role

Key EU institutions
What happens after Brexit?

• We don’t entirely know …

• … BUT: the European Union (Withdrawal)
Act 2018 states that all EU law applicable in
the UK on ‘exit day’ will become part of
domestic law (‘retained EU law’)
• The European Court of Justice’s rulings will
no longer be binding, but will our courts
want to keep pace with their views on
retained EU law?
 • The UK has a dualist relationship to
international law.
• The ECHR: human rights protections,
not the same thing as the EU
Summary • The Human Rights Act 1998:
incorporates the ECHR into UK law
• The EU: ‘the internal market’
• Brexit means EU law will be ‘retained’