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Public inquiries have proliferated in recent years. There are currently over 20 underway in the UK. That is twice as many as in 2005 when the Inquiries Act came into force. The four new statutory inquiries initiated so far in 2025 cover a diverse range of subjects: the horrific attacks in Nottingham in 2023 and Southport in 2024, the long-running grooming gangs’ scandal, and the infamous Battle of Orgreave in 1984 in which violent clashes occurred between striking miners and the police.
The ECHR’s Additional Protocols 4, 7 and 12 have never been ratified by the UK and are not included in the schedule to the Human Rights Act 1998. This post suggests that the new government remedy this. It also sets out part of the history to the Additional Protocols, what the rights in those Protocols include, a summary of the relevant jurisprudence and a brief note of what effect they might have in the UK.
In the run up to the 1997 general election and during the drafting of the Labour Party’s policy on what was to become the Human Rights Bill there were discussions within the Shadow Cabinet about whether or not the remaining Protocols 4, 6 and 7 to the European Convention on Human Rights that, were not currently binding on the UK as a matter of international law, should be signed and ratified and, as a result, bind the UK at an international level.
At the time the Labour Government said ‘It will be possible to ratify Protocol 4 only if the potential conflicts with our domestic laws can be resolved. This remains under consideration but we do not propose to ratify Protocol 4 at present.’[1] The then government had concerns that Articles 2 and 3 of Protocol 4 may confer rights in relation to passports and a right of abode on categories of British nationals who do not currently have a right to reside in the UK.[2] In a subsequent Joint Committee on Human Rights report, the Committee noted that the terms of Article 2 of Protocol 4 are ‘substantially similar to those of Article 12 ICCPR, which the UK has ratified subject to reservations regarding disciplinary procedures for members of the armed forces, and regarding nationals of dependent territories and the right to enter and remain in the UK and each of the dependent territories.’[3]
In contrast, it was eventually agreed by the new Labour Government that Protocol 7 should be ratified and added to Schedule 1 of the Human Rights Act:
“4.15 In general, the provisions of Protocol 7 reflect principles already inherent in our law. In view of concerns in some of these areas in recent years, the Government believes that it would be particularly helpful to give these important principles the same legal status as other rights in the Convention by ratifying and incorporating Protocol 7. There is, however, a difficulty with this because a few provisions of our domestic law, for example in relation to the property rights of spouses, could not be interpreted in a way which is compatible with Protocol 7. The Government intends to legislate to remove these inconsistencies, when a suitable opportunity occurs, and then to sign and ratify the Protocol.
4.16 The Secretary of State will be able to amend the Human Rights Act by Order so as to insert into it the rights contained in any Protocols to the Convention which the United Kingdom ratifies in future. The Order will be subject to approval by both Houses of Parliament. The Bill also enables any reservation to a Protocol to be added, but as with the existing reservation it will have to be reviewed every five years if not withdrawn earlier.”[4]
Changes which resulted in the ability to comply with the provision of equality between spouses in Article 5 of Protocol 7, were only made in 2010.[5] However, once these changes were made, the 2010 election came along and Labour was out of office. Protocol 7 remains unratified.
Procedural safeguards relating to the expulsion of aliens
Right of appeal in criminal matters
Compensation for wrongful conviction
Right not to be tried or punished twice
Equality between spouses
The right in Protocol 12
Any right set out in law shall be secured without discrimination
Protocol 4 and 7 add rights to the ECHR, at least in part, to make up for deficiencies in the ECHR itself when compared to the United Nations International Covenant on Civil and Political Rights (ICCPR) – the UN’s equivalent of the ECHR. The UK ratified the ICCPR in 1976 (and now 172 countries across the World have ratified it).
The right to free movement and the prohibition on the collective expulsion of aliens contained in Protocol 4 are also set out in Articles 19 and 45 of the EU’s Charter of Fundamental Rights. The prohibition against double jeopardy and the equivalence between men and women contained in Protocol 7 are set out in Articles 23 and 50 of the Charter and the general prohibition against discrimination in Protocol 12 is contained in Articles 20 and 21.
Currently, Protocol 4 of the ECHR has been signed and ratified by all bar four of the 46 Member States of the Council of Europe (Greece, Switzerland, Turkey and the UK have not ratified the Protocol). Protocol 7 has been signed and ratified by every one of the 46 Member States except for Germany, Netherlands and UK. If ratified, art.4 of Protocol 4 could be an important tool in challenging the effects of the Nationality and Borders Act 2022 and Illegal Migration Act 2023 domestically and in Strasbourg. Despite inconsistent applications of art.4 of Protocol 4, the Court’s jurisprudence is one of the few legal protections against European externalisation policies and a way for those affected to challenge domestic decisions.
Protocol 12, the general anti-discrimination provision, is also a right already contained in the ICCPR[7] but is missing from the main body of the ECHR itself. Article 14, in the main Convention, only prohibits discrimination where this relates directly to the other rights in the Convention. Protocol 12 is, however, a ‘stand-alone’ provision and has a much wider remit. Protocol 12 has been ratified by twenty Member States although it only came into force in 2005. It is accepted that it would have been more difficult for the UK to ratify in 2005. Concerns were raised regarding its potential breadth, though the Joint Committee on Human Rights considered that these concerns were unwarranted.[8] In addition, the Labour Government’s Equality Act of 2010 has now resolved many of any remaining difficulties with compliance. As a signatory to a wide variety of international human rights instruments concerning equality and non-discrimination, the United Kingdom has already accepted the main principles enshrined in Protocol 12.
As with all the Convention Rights, these rights come with protections and caveats to protect the wider public interest and the interests of society more generally. This is already clear from the fact that they are all tried and tested by being part of the ICCPR, ratified across the World and by the fact that so many countries in Europe have agreed to be bound by them.
It is also clear that, all these rights are all already largely protected by provisions of domestic law. Further, to assuage concerns regarding overreach, many of the rights in these Protocols are subject to limitations or restriction. For example, restrictions which:
“are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“may … be … imposed in accordance with law and justified by the public interest in a democratic society.”
“[are] necessary in the interests of public order or is grounded on reasons of national security.”
“shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
Many of the provisions impose important but relatively restricted ‘due process’ rights – rights to a fair procedure which is already largely set out in UK law or provided by the common law created, in large measure, by judicial review.
In relation to Protocol 12, the prohibition of discrimination, consistently with the Equality Act 2010, “distinctions for which an objective and reasonable justification exist do not constitute discrimination.”
Conclusion
The focus of protecting human rights in the UK must, at the very least, be the preservation of the Human Rights Act without any erosion of either the rights or the remedies it provides. Nevertheless, the threat to the Act will hopefully disappear now that the Labour Party is in government. It is, therefore, an important step to consider adding the further protections that are set out in Protocols 4, 7 and 12 and to bring the UK in line with most of the rest of 46 countries of the Council of Europe and the 172 countries that have ratified the ICCPR.
In the context of more the authoritarian rhetoric in politics[9] and, particularly, the regressive steps taken by the previous Government towards those seeking asylum and refuge in the UK and increasing isolation from Europe, the new Government should, at least, send a clear signal that there is a new approach being developed and indicate this by ratifying Protocols 4, 7 and 12. This will hopefully provide a way to rectify some of the damage done by recent legislation and pre-empt further attacks on human rights.
John Wadham is Human Rights Advisor to the Northern Ireland Policing Board
Fiona Byrne is an Independent Human Rights Consultant and previously Human Rights Officer at the Northern Ireland Policing Board
The views expressed are those of the authors alone.
[1]Rights Brought Home, October 1997, CM 3782, para 4.11
[2] Department of Constitutional Affairs, Report of the Outcome of an Interdepartmental Review Conducted by the Department of Constitutional Affairs, July 2004, p. 40
[3] Joint Committee on Human Rights, Review of International Human Rights Instruments, Seventeenth Report of Session 2004-05, para 38
[4]Rights Brought Home, October 1997, CM 3782, paras 4.15 and 4.16
[5] By sections 198 to 201 of the Equality Act 2010.
[6] For more detailed analysis of this provision and the applicability on legislation such as the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, see John Wadham, Fiona Byrne, More Human Rights: Protocols 4, 7 and 12 of the European Convention on Human Rights and the Human Rights Act 1998, European Human Rights Law Review 2023, Issue 6.
[8] Joint Committee on Human Rights, 17th Report (2005–2006), HL 99, para 33
[9] For example, in 2023, the UK has been downgraded from ‘narrowed’ to ‘obstructed’ civic freedoms in a new report by the CIVICUS Monitor, a global research collaboration that rates and tracks fundamental freedoms in 197 countries and territories: https://monitor.civicus.org/country-rating-changes/uk/
Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
The International Labour Organisation believes that at any one time at least 40.3 million people around the world are being coerced into a situation of exploitation or made to work against their will, often having been transported across borders. Such exploitation can take many different forms, but the most common include forced prostitution, forced labour or forced marriage.
Estimates vary hugely as to how many victims of trafficking or modern slavery there are in the UK, from 13,000 up to 136,000. What is clear is that it is a significant and constantly evolving problem, and one of the major drivers of organised crime. The UK has taken some very good steps to address the issue. However, two judgments earlier this year, and a news story this month, have drawn attention to the fact that the system put in place to combat human trafficking and modern slavery has some serious flaws in how it works in practice.
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC
The relevance of unincorporated international law (John Larkin QC):
Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:
International law is determinative if it is incorporated.
It ‘may have a bearing’ on the common law.
It may be relevant to the application of Human Rights, via the Human Rights Act 1998.
The HRA 1998:
The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors[2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller[2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.
However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.
Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018
This year’s ALBA conference featured an impressive list of speakers and they did not disappoint. Delegates heard from a Supreme Court judge, an Attorney General, top silks, and some of the best legal academics working in public law.
The conference dedicated much of its time to public international law, a discipline which is often thought to have little relevance for most public lawyers. In fact, the conference showed that domestic public law is heavily intertwined with international law. This post summarises the key points from the conference, with a particular focus on human rights. Continue reading →
On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.
This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’
In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’
Almost six years ago, not long after this blog started, we published a lovely post by Tom Blackmore, the grandson of David Maxwell Fyfe. Maxwell Fyfe was a Conservative lawyer and politician who went from being the British Deputy Chief Prosecutor at the Nuremberg War Crimes trials to being instrumental in drafting the European Convention on Human Rights.
Since then, I have been trying to find an opportunity to bring this fascinating story to life. So I am delighted to share this short film which RightsInfo, along with the Met Film School, have just released to mark the 70th anniversary of the end of the Nuremberg Trials. Please share widely and enjoy! If you are looking for a subtitled version, click here.
The Queen’s speech suggests a slowing of the Government’s plans to replace the Human Rights Act with a British Bill of Rights. But recent comments from the Scottish Human Rights Commissioner suggest the Conservatives may be considering removal of HRA protections in relation to English and reserved UK-wide matters only, leaving the Human Rights Act in place in the other devolved areas of the UK.
by David Scott
Much ink has been spilled over the Government’s proposals. This article will take a narrow look at Scotland’s relationship with the Human Rights Act, and how devolution may be a future thorn in the Government’s side.
But wait! I thought the Human Rights Act was enshrined in the Scotland Act. Doesn’t that protect the Human Rights Act in Scotland?
With our new team of Scots law researchers in place, the time has come for the briefest of introductions to the Scottish legal system. David Scott is our tour guide.
The Court system
The Scottish court system is divided into five tiers:
Inuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post
This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.
The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA)a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]
Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.
Rapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.
No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.
The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.
Inuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it
The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.
But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.
Back to basics, then, as the new academic year starts. Which courts decide human rights cases, when, and by what rules?
Well, the easy one is domestic courts. They decide whether a public authority has acted or omitted to act unlawfully under the Human Rights Act.
If the act is a decision about housing or immigration status or prisoners’ rights, the courts can quash it, and so tell the decision-maker either to decide it again or if there is only one lawful answer, tell the decision-maker what decision to take. If it was a past course of conduct (unlawful detention, intrusion into privacy, unacceptable pollution), they may award damages for human rights breaches. If the domestic law is itself unlawful, and cannot be interpreted HR-compliantly, the domestic courts can make a declaration of incompatibility under s.4 of HRA – it does the claimant no good in respect of his claim, though it throws a huge gauntlet down to Parliament to do something about the non-compliant law. And in the criminal courts, the obvious sanction is to dismiss the prosecution for some abuse of process involving the defendant’s human rights.
Updated – Tony Nicklinson, one of the two claimants in this case, died on 22 August 2012.
This is Richard Dawkin’s battle cry in response to the recent High Court rejection of the challenge by locked-in sufferers to the murder and manslaughter laws in this country that have condemned them to an unknowable future of suffering.
As explained in my previousposts, Nicklinson, who suffered a catastrophic stroke in 2005, argued for an extension to the common law defence of ‘necessity’ for murder because the alternative – forcing him to stay alive – is worse. His lawyers also submitted that the government is in breach of his Article 8 right to ‘privacy, dignity and autonomy’, a right he cannot exercise independently because of severe disability.
The court rejected the “bold” submission, stating that there was no precedent anywhere in the world and such socially controversial changes were only for Parliament.
But the courts can’t keep ducking away from the problem, because Parliament is never going to address this issue. Why? Because, as Dawkins points out, once again, religion turns out to be the major culprit. Every attempt in the House of Lords “to do something about the right to seek professional (or even amateur) assistance in dying when you are too incapacitated to kill yourself” has crashed and burned, despite huge public support for reform in this area. Continue reading →
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Human trafficking or modern slavery is one of the most appalling forms of criminal activity today. It’s also one of the most widespread and fastest-growing.
Rapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.
The 
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