Unintended Consequences: Protocol 12 of the European Convention on Human Rights and Horizontal Effect

Ramshaw, Adam (2016) Unintended Consequences: Protocol 12 of the European Convention on Human Rights and Horizontal Effect. In: SLSA Annual Conference 2016, 5th -7th April 2016, Lancaster, UK.

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Abstract

This paper considers the unintended consequences of the UK ratifying Protocol 12 of the European Convention on Human Rights. Protocol 12 extends the anti-discrimination provisions of the Convention to include all legal rights, over those contained only in the Convention. In lieu of the UK’s ratification, the Protocol has entered into force and may now be pleaded against ratifying States in the European Court of Human Rights. The UK Government has not yet ratified Protocol 12 for fear that the Protocol is drafted too widely and goes further than necessary. This paper argues that the Government’s caution is well-founded but misdirected. If the UK were to ratify Protocol 12 there would be a significant and unintended impact upon the application of human rights in domestic courts.

The intention of Protocol 12 is the prevention of discrimination in the enjoyment of any rights ‘set forth by law’. If ratified Protocol 12 would therefore apply to the rights contained in the Human Rights Act 1998 (HRA) as they are set forth in domestic law. Whilst these rights are to be interpreted in light of the judgments of the European Court of Human Rights they exist independently of the European Convention on Human Rights. It is the domestic judiciary who have the final say on the meaning of the HRA rights due to the dualist nature of the UK constitution. The application of these rights would therefore be subject to Protocol 12.

The plain text of the HRA rights is not limited to States and may readily bind individuals. It is only s.6 of the HRA which restricts the scope of HRA rights to public authorities. This creates prima facie discrimination as only those in litigation involving a public authority may rely upon the HRA rights. If the UK ratifies Protocol 12 the European Court of Human Rights may be asked to determine whether the discriminatory application of HRA rights is reasonable and justified. Should the European Court of Human Rights find that this approach breached Protocol 12 it would be for the domestic courts to interpret s.6 in a compliant manner. The only compliant interpretation of s.6 would be to allow for individuals to be bound by the HRA. In which case s.6 would be emptied of all substance thereby making the HRA applicable to all proceedings. This clearly goes beyond the intentions of Protocol 12.

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