Human Rights Framework in the UK: a Comparative Analysis of its Origins and Possible Developments

There seems to be a fundamental difference between the English system of protecting human rights and the continental one: the former was developed through the years in a bottom-up fashion, while the latter was the result of political and philosophical beliefs dating back centuries. Because the Continent had a period of codification through which most Countries decided to write down the philosophical principles leading to human rights, we now have Constitutional Charters almost anywhere, adopting a top-down approach. Therefore, these rights are usually listed in a general manner, only to be specified through secondary legislation. The UK, on the other hand, has a system that was developed through the centuries at common law and was later formalised, meaning that the system recognizes rights that are already quite specific, linked to specific limitations. This difference is the main reason why the UK always struggled with the ECHR system, especially with its court. The disagreements with the Strasbourg Court have become particularly harsh in more recent years, and, interestingly, especially after the passing of the HRA 1998. Indeed, a series of cases from the early 2000s show that criticism was not only directed towards the entrenched supranational system of the EU, but also to the increasingly supranational tools of the Court of Human Rights. Many possibilities have been considered by various stakeholders in the last 20 years, the most extreme being the exit from the ECHR system and the repeal of the HRA. However, there has been little agreement on what the UK should actually do, especially after all the issues met as a consequence of Brexit. To be understood in the broader context of the UK’s inconsistent position towards Europe, the question we try to answer is which options it has when it comes to the ECHR system. Although it is our contention that a complete exit is highly unlikely, both because of the recent struck down of the mere proposal for modification of the Act by Parliament, and, because of the renewed commitments to the ECHR by the recently elected Labour Government, we shall nonetheless try to analyse the possible scenarios that a partial or total exit would trigger.