The European Convention on Human Rights is a convention set up by the 47 members of the European Council, following the atrocities of World War 2. This council includes countries such as Russia and Switzerland, as well as all members of the European Union, and it therefore upholds the rights of around 800 million people. The European Court of Human Rights (ECtHR) enforces these rights in Strasbourg, France, with UK citizens being given the right to application to the court in 1966. The Human Rights Act 1998 was a landmark Act passed by the 'New Labour', who promised to make strides towards the protection of human rights. This is in line with the Rule of Law, a set of ideals that underpin the UK's unwritten constitution.
To understand how far the HRA protects us, we might first look at its sections and how far they go to ensure there is no infrigment on our rights. Firstly, it made the ECHR enforcable in UK courts under S7, meaning UK citizens no longer have to go through the long, expensive process of taking their case to Strasbourg. S6 also introduced the rule that public authorities cannot act in a way that is incompatible with the convention. This includes the Government and the courts, and as such, the ECHR can be enforced even in civil cases, such as Thompson and Venables v NGN and Douglas and Others v Hello Ltd, as courts denying a ruling against an infringement on the ECHR would go against their obligation under s6.
The HRA 1998 also offers protections through the new powers afforded to judges, relating to legislation. S3 states that domestic legislation must be interpreted 'so far as it is possible to do so in a way that is compatible with the convention'. This means a purposive approach to interpretation is demanded, which is starkly different to the government's historic preference for a literal approach. This may be criticised for its apparent erosion on Parliamentary Soveireignty and the making of law by unelected judges, but all actions are in the name of Human Rights and the interests of the British people. Lord Steyn states that it is very important for judges to apply law in this way to protect people, and that interpretation may often seem linguistically strained. He argues that one should avoid the use of a declaration of incompatibility, though, under S4 of the HRA. These DIs can be issued by the High Court and above, and send a clear message to Parliament that the law needs to change. Although not likely, with S10 setting out the fast track system for amending incompatible legislation, Parliament could in theory ignore a DI, because of the idea of Parliamentary Sovereignty which is, according the Professor Blackstone, the idea that 'What parliament doth, no authority on earth can undo', and this includes parliaments binding future parliaments.
It is clear, then, that the HRA has its weaknesses, which are in support of the statement. More can be found in the sections and through the basic functions of the British constitution. S2 requires courts to simply 'take into account' rulings in Strasbourg, meaning courts are not bound and could go against such a ruling. An example is the case of Jamie Reynolds, where the judge argued the ruling in Vinter v UK that whole life orders are a breach of A3, freedom from inhumane and degrading treatment, arguing that he is instead bound by British courts. UK courts have also been know to ignore rulings along side the UK government. This was seen after Hirst v UK, a case that saw the denying of prisoners the right to vote is a violation of A3 ECHR. The UK government ignored the ruling, rejected legislation to amend the rules, and subsequently, the supreme court upheld these decsions in R(Chester) v Secretary of State for Justice.
Another major weakness of the HRA 1998 is that fact that it is not entrenched, as a bill of rights would be, such as the United States Bill of Rights. This is due to the idea of Parliamentary Sovereignty again, so Parliement could scrap the Act and return to civil liberties at any time. This would be problematic for UK citizens, whose rights would be limited to 'residual freedoms'. Hohfeld argues that rights are different to civil liberties in that they put a duty on the state to uphold and protect rights, while liberties are just anything that is not covered by law. More weaknesses can be found through the ECHR itself, which often allows for wide margains of appreciation, such as in Leander v Sweden, where the ECtHR held that it would give members stated wide powers to erode Human Rights in favour of national security, and this was similarly seen in Klass v Germany in terms of covert surveillance and erosion of A8, right to privacy.
The HRA 1998 has its strengths and weaknesses, then, with ideas such as Parliamentary soveirgnty and the UK government's abilitiy to circumvent convention rights limiting its power greatly. A better alternative might be a British Bill of Rights, which was proposed by David Cameron in the Conservatives' 2015 election manifesto. Such a bill would unite the UK citizens around a common set of values, and allow judges to strike out laws deemed 'unconstitutional', as they do no in the USA. Parliamentary sovereignty and weak political will, however, make this an unlikely replacement, and it might also be argued that the current conservative government has no intention of protecting rights further. An example of such an agenda could be seen through the proposed Investagatory Powers Bill 2016, written by former Home Secretary Theresa May, which will likely erode A8 for all citizens, with UK police being given access to internet history for the last 12 months with no authorisation, and the Commission that checks surveillance being limited to one commissioner.