Will the law really protect our rights?

John Wadham considers the Government's commitment to human rights and compares Canada and New Zealand's methods of incorporating human rights into domestic law. John Wadham is director of civil liberties group Liberty.

The Government's proposal to incorporate the European Convention on Human Rights is of constitutional significance. For the first time the right to privacy, fair trial and freedom of expression will be enshrined in domestic law.

The convention will not be a panacea for human rights abuses. It was drafted nearly half a century ago and has numerous weaknesses. In the long-term, it is no substitute for a "home-grown" Bill of Rights, but in the short-term the most pressing consideration is the issue of what system of entrenchment there will be.

The real test of the new Parliament's commitment to enforceable rights will be whether it allows the courts to give a higher status to the convention than other legislation. The system of entrenchment in Canada, for instance, recognises the importance of human rights while preserving the sovereignty of Parliament.

In Canada, if the courts have to resolve a conflict between the rights set out in their charter and other legislation, the charter rights are given precedence. The particular statute is not, however, "struck down". Instead, the courts either "read in" the missing rights or make it clear that in the particular circumstances, part of the statute no longer applies. Parliament then has the opportunity of either cleaning up the statute to comply with the ruling or re-enacting the statute and adding a clause stating that the provision applies "notwithstanding" the charter. This latter option then prevents the court from disapplying that provision of the statute.

The alternative model comes from New Zealand which, although it has been given some impetus recently by the Court of Appeal, remains inadequate. In New Zealand statute prevails where there is a conflict between statute and rights. The adoption of the New Zealand model in this country would mean the individual who was able to show to the domestic court that his or her convention rights had been violated would nevertheless lose the case. He or she would have to petition the European Commission in Strasbourg for redress or wait for Parliament to change the law.

The danger is that if a case involved an unpopular group of people, like suspected terrorists, travellers or protesters, Parliament might never get round to changing the law. Some examples highlight the difference between the two models.

The European Court of Human Rights has held that juveniles sentenced to detention (for murder) must have rights and courts. Politicians should not decide when they are to be released as in Prem Singh v UK and Abed Hussein v UK.

Some years before the European Court heard the case, the High Court was given the chance to resolve the issue but was not able to do so because the convention was not part of law. Under the Canadian system the courts could have dealt with this at the time. The matter is less clear cut under the New Zealand model. It is likely the case would still have had to go to the Court in Strasbourg.

The Criminal Justice and Public Order Act 1994 s.25 states that an individual with a conviction for a serious offence who is subsequently charged with a similar crime must be refused bail whatever the circumstances and however weak the evidence is. The section raises serious questions about the presumption of innocence and the right to liberty and is presently being challenged in Strasbourg. The Canadian system would have no problems addressing the human rights implications of the legislation. The courts would be able to ensure that those rights were read into the Act.

The New Zealand system would, however, be in difficulties. All the courts there could do would be to identify the problems in the Act and draw them to Parliament's attention. This could happen time and time again before Parliament remedied the situation.

The Police Bill (now the Police Act 1997) would have given the police the authority to enter property to place listening devices. Other legislation allows the Government to authorise telephone taps and surveillance by the secret services.

If incorporation of the European Convention on Human Rights is to be effective in protecting our rights, the courts must have a role in restricting the ease with which Parliament can take away our rights.

In the case of Welch v UK, legislation imposing a criminal penalty (an order under the Drug Trafficking Offences Act 1986) was applied even though the circumstances occurred before the law was changed. Under the Canadian system the courts could have changed the Act to bring it in line with principles of human rights.