Human Rights law dates from at least
revolutionary France in the 18th century – the Rights of Man. The
principles enunciated there were:
Universality – human rights are
inherent in every human being
Inalienability – and cannot be
taken from him/her
Rule of Law - Just laws must be applied with
just procedures
Human Rights principles were expressed at an important moment,
following the defeat of the Nazi tyranny. The new United Nations in
1948 gave out the Universal Declaration of Human Rights (and
fundamental freedoms for all, UDHR). These were in the form of
general principles. Under the UN, a regional organisation was set
up, the Council of Europe (1948), which drafted the European
Convention on Human Rights (ECHR), that came into use in 1953 and
was a more detailed exposition. Its procedures go much further than
the UDHR in application and enforcement. Resulting from the ECHR
came the European Commission on Human Rights, and importantly a
Court of Law which had the power to try cases from the whole of
Europe, the European Court of Human Rights (ECtHR).
It is important to note that the Council of Europe, the ECHR and
the ECtHR are entirely separate from the European Union, and its
Court of Justice.
Britain enthusiastically supported the Council of Europe and the
ECHR, indeed Winston Churchill was involved in the devising and
drafting of the Convention. Pleas from the UK were heard early in
the life of the ECtHR, but complainants had to go separately to the
Court in Brussels. In 1997, the Labour Government incorporated the
ECHR into UK law, in the form of the Human Rights Act 1998
(HRA'98), so that the very principles of the ECHR were then
required in every subsequent Act drafted and cases heard, initially
in Scotland, then throughout the UK.
It is important to UK psychiatrists and instructive of the Act
that the very first case1 heard under the new HRA'98 was
a mental health issue, involving the Burden of Proof in Mental
Health Review Tribunals. Previously, detained patients had to prove
they were well enough to be Informal; this offended not only
English Common Law (the presumption of innocence), but also
Articles 5(1) and 5(4) of the ECHR. It led immediately to a change
in UK law.
A subsequent case, that of 'HL'2 (the 'Bournwood
case), before the ECtHR, criticised the whole basis of English
Common Law as lacking any fixed procedural rules by which the
admission and detention of compliant incapacitated patients was
conducted, and this has, led among other things, to a change
in the Mental Capacity Act 2005.
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1. R(oAo 'H') v London and NE Region MHRT [2001] EWCA Civ
415
2. H.L. v. the United Kingdom (application no. 45508/99).