Lecture # 9 Human Rights

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Lecture # 9

Human Rights

By: Salik Aziz Vaince

[0313-7575311]

Introduction

Human rights refer to the concept of human beings as having universal rights, or status, regardless of

legal jurisdiction or other localizing factors, such as ethnicity and nationality.

It is said all human beings are born free and equal in dignity and rights. Everyone is entitled to all the

rights and freedoms without distinction of any kind, such as race, creed, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other status. Everyone

has the right to life, liberty and security of person.

The existence, validity and the content of human rights continue to be the subject to debate in

philosophy and political science. Legally, human rights are defined in international law, and further, in

the domestic laws of many states.

Human rights abuse is abuse of people in a way that violates any fundamental human rights. It is a

term used when a government violates national or international law related to the protection of

human rights.

Rights that belong to an individual as a consequence of being human. Human rights are basic to

humanity. They apply to all people everywhere. An understanding of human rights is an important

part of our individual status as human beings and of our collective status as members of the global

community of humankind.

A human right is 'natural' in that everyone owns them, not because they are subject to any particular

system of law or religious or political administration. They can be asserted against individuals, but they

express the political objective: that government must respect, protect and promote them.

Human rights are "commonly understood as inalienable fundamental rights to which a person is

inherently entitled simply because she or he is a human being.

"Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for

everyone). These rights may exist as natural rights or as legal rights, in local, regional, national, and

international law. The doctrine of human rights in international practice, within international law,

global and regional institutions, in the policies of states and in the activities of non-governmental

organizations, has been a cornerstone of public policy around the world.

The idea of human rights states, "If the public discourse of peacetime global society can be said to have

a common moral language, it is that of human rights.

"Despite this, the strong claims made by the doctrine of human rights continue to provoke

considerable debates about the content, nature and justifications of human rights to this day. Indeed,

the question of what is meant by a "right" is itself controversial and the subject of continued

philosophical debate.


The first generation of civil and political rights, associated with the enlightenment and the English,

American, and French revolutions, includes the rights to life and liberty and the rights to freedom of

speech and worship.

The second generation of economic, social, and cultural rights, associated with revolts against the

predations of unregulated capitalism from the mid-19th century, includes the right to work and the

right to an education.

Finally, the third generation of solidarity rights, associated with the political and economic aspirations

of developing and newly decolonized countries, includes the collective rights to political self-

determination and economic development.

Many of the basic ideas that animated the human rights movement developed in the aftermath of the

Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal

Declaration of Human Rights in Paris by the United Nations General Assembly in 1948.

1st sentence of the Preamble to the Universal Declaration of Human Rights

- All human beings are born free and equal in dignity and rights (Article 1 of the United Nations

Universal Declaration of Human Rights (UDHR)

Meaning

The fundamental rights that humans have by the fact of being human, and that are neither created nor

can be abrogated by any government.

Supported by several international conventions and treaties (such as the United Nation's Universal

Declaration of Human rights in 1948), these include cultural, economic, and political rights, such as

right to life, liberty, education and equality before law, and right of association, belief, free speech,

information, religion, movement, and nationality. Promulgation of these rights is not binding on any

country, but they serve as a standard of concern for people and form the basis of many modern

national constitutions. Although they were defined first by the Scottish philosopher John Locke (1632-

1704) as absolute moral claims or entitlements to life, liberty, and property, the best-known expression

of human rights is in the Virginia Declaration of Rights in 1776 which proclaims that "All men are by

nature equally free and independent and have certain inherent rights, of which, when they enter a

state of society, they cannot, by any compact, deprive or divest their posterity." Called also

fundamental rights.

Definition

The basic rights and freedoms, to which all humans are entitled, often held to include the right to life

and liberty, freedom of thought and expression, and equality before the law.

According to United Nations of Human Rights

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex,

national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to

our human rights without discrimination.

What are human rights?

The basic notion of human rights lies in people’s recognition of the need to protect and affirm every

other person’s individual dignity. Human rights are important. No matter where people come from, or


what their age, culture, religion or income may be, they tend to talk about their concerns in terms of

human rights. Human rights issues are often seen as national or international in scope, but human

rights are equally relevant at an individual and community level.

There is no universally agreed definition; indeed, people’s understanding of human rights is continually

evolving. There are general understandings, though, of what is meant by the term. One way of looking

at rights is to see them as a special kind of claim on others. For example, the right to education means

that everyone is entitled to a good education and, in particular, that governments have an obligation to

provide education facilities and services.

Rights are related to the values that societies live by. These values have their origins in the world’s

great religions and philosophies. Value systems can vary in detail between one society and another

but the fundamental ideas are very similar. Concepts of justice and human dignity are at the heart of

these values.

Rights also relate to what is lawful: that is, some rights may be laid down in law. If you have a legal

right to something, you may be able to defend it in court. In many situations, though, rights exist but

are not covered by law. These rights are often called moral rights. Moral rights are based on people’s

sense of what is fair or just.

Universal and inalienable

The principle of universality of human rights is the cornerstone of international human rights law.

Some fundamental human rights norms enjoy universal protection by customary international law

across all boundaries and civilizations.

Human rights are inalienable. They should not be taken away, except in specific situations and

according to due process. For example, the right to liberty may be restricted if a person is found guilty

of a crime by a court of law.

Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the right to life,

equality before the law and freedom of expression; economic, social and cultural rights, such as the

rights to work, social security and education, or collective rights, such as the rights to development and

self-determination, are indivisible, interrelated and interdependent. The improvement of one right

facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the

others.

Equal and non-discriminatory

Non-discrimination is a cross-cutting principle in international human rights law. The principle is

present in all the major human rights treaties and provides the central theme of some of international

human rights conventions.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits

discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on.

The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1

of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and

rights.”


Both Rights and Obligations

Human rights entail both rights and obligations. States assume obligations and duties under

international law to respect, to protect and to fulfil human rights. The obligation to respect means that

States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to

protect requires States to protect individuals and groups against human rights abuses. The obligation

to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

At the individual level, while we are entitled our human rights, we should also respect the human

rights of others.

European Convention on Human Rights

The convention is an agreement on basic human rights; was drafted by the Council of Europe after

World War II; recognizes traditional civil liberties inevitable for democratic system of government;

signed by the European states including England; aimed to ensure humane treatment to all its citizens;

provided a mechanism for realizing civil and political rights and freedoms.

The European Convention on Human Rights (ECHR) is an international treaty to protect human rights

and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,

the convention entered into force on 3 September 1953. All Council of Europe member states are party

to the Convention and new members are expected to ratify the convention at the earliest opportunity.

This convention followed the Universal Declaration on Human Rights made by UNO in 1948. The

Articles in convention are according to the expectations of European people as fundamental rights.

The English Courts observed the convention as guideline. England did not incorporate the convention

in to its legal system believing that its existing laws were sufficient to guarantee basic human rights,

but later in late 1990s it incorporated the convention in to its legal system by promulgating the ‘Human

Rights Act 1998’.

The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or

her rights have been violated under the Convention by a state party can take a case to the Court.

Judgments finding violations are binding on the States concerned and they are obliged to execute

them. The Committee of Ministers of the Council of Europe monitors the execution of judgments,

particularly to ensure payment of the amounts awarded by the Court to the applicants in

compensation for the damage they have sustained.

The establishment of a Court to protect individuals from human rights violations is an innovative

feature for an international convention on human rights, as it gives the individual an active role on the

international arena (traditionally, only states are considered actors in international law). The European

Convention is still the only international human rights agreement providing such a high degree of

individual protection. State parties can also take cases against other state parties to the Court,

although this power is rarely used.

Factors behind the creation of European Convention on Human Rights

The development of a regional system of human rights protection operating across Europe can be seen

as a direct response to twin concerns:

1. Humiliation of human beings notably event of Holocaust during the World War II.


- The aftermath of the Second World War, the convention, drawing on the inspiration of the

Universal Declaration of Human Rights can be seen as part of a wider response of the Allied Powers

in delivering a human rights agenda through which it was believed that the most serious human

rights violations which had occurred during the Second World War (most notably, the Holocaust)

could be avoided in the future.

2. Growth of Communism in Eastern Europe.

- The Convention was a response to the growth of Communism in Central and Eastern Europe and

designed to protect the member states of the Europe from communist subversion. This, in part,

explains the constant references to values and principles that are "necessary in a democratic

society" throughout the Convention, despite the fact that such principles are not in any way

defined within the convention itself.

HISTORY OF UNIVERSAL HUMAN RIGHTS

The term human rights have only come into common currency during the 20th century.

The idea of 'human rights' is not universal - it is essentially the product of 17th and 18th century

European thought.

The great religions of the world - Judaism, Hinduism, Christianity, Buddhism, Taoism, Islam, and others

- have all sought to establish comprehensive, coherent moral codes of conduct based on divine law.

All contain profound ideas on the dignity of the human being, and are concerned with the duties and

obligations of man to his fellow human beings, to nature and indeed to God and the whole of creation.

After 17th century the attention moved from social responsibilities to the individual's needs and

participation. It was seen as fundamental to the well-being of society, under the influence of

philosophers such as Hobbes and Locke, then, these rights were called 'natural' rights, or 'the rights of

man'. These natural or moral rights became part of the political agenda.

One of the first, and most important, battles was about politics. Could 'natural rights' be handed over

to rulers? People in their 'natural' condition have unlimited freedom. If they choose to be ruled, they

surrender either all, or some at least of this 'natural right' to their king or government, in exchange for

civil society and peace. If they could surrender 'all', then people could be subjected to absolute

government authority, and be under an absolute duty to obey. If only some could be surrendered,

then the question is what part of those freedoms do we give up?

This issue became a tremendous cause in 17th century England. The protection of the people's rights

(especially the right to political participation, and freedom of religious belief) against an oppressive

government led to the English Bill of Rights, in 1689.

The Bill of Rights dealt with the fundamental concerns of the time. It made the King subject to the rule

of law, like any citizen, instead of claiming to be the law's (divine) source. It required the King to

respect the power of Parliament - elected by the people, with the power to control the state's money

and property. It protected some basic rights to justice - excessive bail or fines, cruel and unusual

punishments and unfair trials: it guaranteed juries, impartial courts and independent judges. It

repeated some of royal promises made by King John, under duress, in the Magna Carta (though Magna


Carta was intended to benefit the privileges of the aristocracy (A privileged class holding hereditary

titles) of the time, not the whole population).

Towards the end of the 18th century, according to the philosopher John Locke, it was argued that it

was part of God's natural law that no-one should harm anybody else in their life, health, liberty or

possessions. These rights could never be given up. The existence of this natural law also established

the right to do whatever was necessary to protect such rights.

This view limited the role of government. No-one could be subjected to another's rule unless they

consented. A government's responsibility became the duty to protect natural rights. This limited what

it could legitimately do and gave its citizens the right to defy and overthrow a government that

overstepped its 'legitimate' authority.

European Convention on Human Rights (ECHR)

Preamble: The Governments signatory hereto, being Members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the

United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal

and effective recognition and observance of the Rights therein declared; Considering that the aim of

the Council of Europe is the achievement of greater unity between its Members and that one of the

methods by which the aim is to be pursued is the maintenance and further realization of Human

Rights and Fundamental Freedoms; Reaffirming their profound belief in those Fundamental Freedoms

which are the foundation of justice and peace in the world and are best maintained on the one hand

by an effective political democracy and on the other by a common understanding and observance of

the Human Rights upon which they depend; Being resolved, as the Governments of European countries

which are like-minded and have a common heritage of political traditions, ideals, freedom and the

rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the

Universal Declaration; Have agreed as follows:

ARTICLE 1: Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms

defined in this Convention.

ARTICLE 2: Right to Life

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save

in the execution of a sentence of a court following his conviction of a crime for which this penalty is

provided by law.

The right to life has become particularly prevalent in relation to issues of state security in society,

illustrated by the decision in Nikolova & Velichkova v. Bulgaria [2007] ECHR 1128 regarding whether

the national police force in Bulgaria had violated Article 2.

The possibility of obtaining compensation for the death of a person provided sufficient redress for an

alleged violation of Article 2.

But the object and purpose of the European Convention requires Article 2 to be interpreted and

applied to make its safeguards practical and effective, supported by Anguelova v. Bulgaria, whilst also

imposing a duty on the State to secure the right to life with effective criminal law provisions, illustrated


by Menson v. The United Kingdom (dec.), - because of the positive obligations placed upon the state,

according to Nachova & Others v. Bulgaria [GC], - through an effective investigation to maintain public

confidence, supported by Paul & Audrey Edwards v. the United Kingdom, and trial process, in keeping

with Turkmen v. Turkey, 2006.

Does right to life apply to an unborn child? Or when does right to life begin?

Kara V. UK.

A woman was mistaken for another patient and was treated for another diagnose. When it was

realised that she was pregnant and had a wrong operation had been performed, a therapeutic abortion

was carried out on health grounds.

She failed in an action for unintentional homicide and made an application to the European Court to

determine whether the unavailability of criminal remedy for destruction of foetus amounts to failure

to protect by law the right to life within the meaning of Article 2 of the convention. The Court held that

a foetus is not protected but failed to define 'everyone' whose life is protected under Article 2 of the

HRA.

ARTICLE 3: Prohibition of Torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This aspect of human rights law has become particularly relevant in relation to immigration because a

country that knowingly sends someone into a situation where they are likely to be violently persecuted

is in breach of Article 3, illustrated by Soering v. UK (1989) 11 EHRR 439 a duty was owed to protect

the human rights of a non-national, according to the circumstances surrounding their removal or

extradition under Article 3, it has now been recognised a state's obligations are only exceptionally

engaged, illustrated by N v. SSHD [2003] EWCA Civ 1369, and this has since become well established in

the European Court of Human Rights jurisprudence, illustrated by Cruz Varas & Others v. Sweden

1991.

ARTICLE 4: Prohibition of slavery and forced Labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory Labour.

Detaining and working while serving a prison sentence does not constitute slavery and servitude under

Article 4 of the convention right.

R V. Shayler [2003] 1 AC 247.

The applicant was sentenced for theft for a period of two years imprisonment. He was also ordered to

be placed under governmental disposal for a period of ten years as a result of his tendency to commit

further crimes. After serving the sentence and while in recidivist in attempt to reintegrate him into the

society. He appealed against his continued detention to earn money to sustain a living when released

and his being placed at government disposal for 10 years as violating Article 4 of the Human Rights Act.

The European Court rejected this claims and held that the detention was not an act of servitude as only

particularly serious' form of 'denial of freedom' could amount to this.

ARTICLE 5: Right to liberty and security

Everyone has the right to liberty and security of person.


During anti-capitalist demonstrations in London on May 1 2001, the police cordoned in up to three

thousand demonstrators in Oxford Circus for up to 7 hours.

The House of Lords held that measures of crowd control undertaken in the interests of the community

will fall outside of Article 5 right to liberty as long as they are not arbitrary, are resorted to in good

faith, and are proportionate and enforced for no longer than necessary. It was held that the use of the

cordon, which had resulted in people being held in one place without food, water or shelter, was not a

deprivation of liberty. There was no breach of Article 5, A v United Kingdom ECtHR 2009.

S and Marper v United Kingdom ECtHR 2008.

Derogation from right to liberty, whether justified on grounds of national security. Right of D to know

reason for arrest and any charge against him.

In the UK, non-national terrorist suspects may be detained indefinitely without charge. This case

considered 11 applicants subject to detention on the grounds that they were suspected terrorists. The

UK had issued a derogation order, stating that a breach of Art 5 right to liberty was necessary to

protect national security. The suspects were not permitted to hear all the evidence against them,

because of national security fears, and so Special Advocates were appointed.

It was held by the European Court of Human Rights that some of the applicants had suffered breaches

of Article 5(1) and 5(2). The UK had discriminated unjustifiably between national and non-national

terror suspects, and that the measures adopted were disproportionate. The Special Advocate

procedure was justified, but that the suspect must be given specific details sufficient to mount a

defence.

Ever since the 9/11, as policing has tightened up in the wake of terrorist attacks, the right to liberty and

security for minorities in particular has often been called into question.

By way of illustration, in R (on the application of Al-Jedda) v. Secretary of State for Defence [2005]

EWHC 1809 this case concerned A, who had been born in Iraq, and had been granted asylum in the UK

and was later granted British nationality. He had travelled to Iraq in 2004 and was detained by British

armed forces on suspicion of terrorist activities and argued his detention breached his rights under

Article 5 of the ECHR 1950.

But in this case it was held refusing a claim for judicial review and rights under the Human Rights Act

1998 were capable of being overridden by a UN Security Council Resolution 1546 to detain A that

overrode the UK's obligation under Article 5 to the extent permitted by the resolution as a reflection of

the circumstances at the time - i.e. the fear of terrorist attack.

ARTICLE 6: Right to fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable time by an independent and

impartial tribunal established by law.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according

to law.

The right to a 'fair trial' is fundamental in a democratic society, such as the UK, according to Thompson

v. United Kingdom (2005) 40 EHRR 11.


This is effectively illustrated by Dowsett v. United Kingdom (2003) 38 EHRR 845, where it was held

there had been a violation of Article 6 because the prosecution had failed to disclose the material

evidence, also supported by Edwards & Lewis v. United Kingdom (2005) 40 EHRR 24.

Moreover, in the context of legal representation it was held in Hooper v. United Kingdom 2004

(unreported) there had been a violation of Articles 6 when the applicant and their legal representative

was denied the opportunity to address the magistrate.

Issues regarding a fair trial have also been considered with regards to young people, illustrated by SC v.

United Kingdom [2004] 40 EHRR 121 where it was held there had been a violation of Article 6(1) when

a young person of 11 years of age was tried in an adult court and convicted for attempted robbery, it

was held the boy had been incapable of fully understanding the proceedings and their consequences

so the court could not conclude the applicant was capable of participating.

Ghaidan v Godin-Mendoza [2004] UKHL 30

In the UK, intercept evidence is currently inadmissible. However, there is currently a call on the

Government to bring in an intercept evidence regime in order to support increased prosecutions.

In this case the applicant was suspected of drugs trafficking. Telephone intercept evidence was used in

the investigation and pre-trial investigation material contained details of 21 telephone conversations.

On appeal the applicant contended that other telephone conversations could have proved his

innocence, and that the intercepts of these conversations had never been disclosed. The prosecution

maintained that the recordings were destroyed because they were not connected to an offence, and

could not have been retained without breaching the law.

It was held by the European Court of Human Rights that Article 6(3)(b), which guarantees the accused

the right to prepare his defence without restriction, had been breached. The accused had not been

given an opportunity to acquaint himself with the results of the investigations. The public prosecutor's

duty to act fairly and impartially in assessing what recordings were relevant was insufficient to

safeguard the applicant's rights.

ARTICLE 7: No punishment without Law

No one shall be held guilty of any criminal offence on account of any act or omission which did not

constitute a criminal offence under national or international law at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal

offence was committed.

ARTICLE 8: Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

Retention of DNA from individuals not convicted of an offence.

In 2001 the law in the UK was changed to allow the retention of fingerprints, cellular samples and DNA

profiles of individuals who have not been convicted of a crime or even charged with an offence. The

statutory basis of the system is contained in section 64(1A) of PACE 1984.

Natunen v Finland ECtHR 2009

S was arrested in January 2001, aged 11, and charged with attempted robbery. His fingerprints and

DNA were taken. He was then acquitted in June 2001. Marper was arrested in March 2001, aged 38,


and charged with harassment. His fingerprints and DNA samples were taken but charges were not

pressed and the case was discontinued.

Both applicants requested that their fingerprints and DNA samples be destroyed. The police refused,

indicating that the Chief Constable had a policy of retaining samples in all cases. The applicants

contended that retention was incompatible with their right to respect for private life under Art 8.

The Grand Chamber of the ECtHR held that the UK's blanket approach to the retention of DNA from

individuals not convicted of an offence was a disproportionate inference with respect for private life

under Art 8.

Prior to 1995, English law did not protect an individual's privacy and largely protected breaches of

confidence only, supported by Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41, until the decision in

Peck v. UK (2003) 36 E.H.R.R. 41.

As a result, there is no longer a need for a 'special relationship' because it was recognised in Attorney

General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 that "a duty of confidence arises when

confidential information comes to the knowledge of a person ... with the effect that it would be just in

all the circumstances that he should be precluded from disclosing the information to others" and this is

also supported by Campbell v. MGN Ltd [2004] UKHL 22.

In Douglas v. Hello! [2001] 2 WLR 992 to comply with its duties the court recognised they were obliged

to interpret 'breach of duty' as including all the rights protected under the European Convention in

relation to privacy.

As was further illustrated by decisions, including Theakston v. MGN Ltd [2002] EWHC 137 QB, there is

a need to strike a balance between these two rights that will vary considerably depending on who is

involved (i.e. in certain situations someone who actively courts publicity may be less entitled to

protection than someone who does not - the difference between celebrity and the rest of society - in

keeping with the decision in Woodward v. Huchins [1977] 1 WLR 760).

ARTICLE 9: Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to

change his religion or belief, and freedom, either alone or in community with others and in public or

private, to manifest his religion or belief, in worship, teaching, practice and observance.

Often in looking to provide medical care, medical personnel have to be aware of the fact that patients

may refuse treatment where they believe this will contravene their beliefs and was considered

indirectly in the decision in Hoffmann v. Austria (1993) Series A, No. 255.

But in Arrowsmith v. UK (1978) 19 DR 5 it had previously been indicated that 'religious practice' does

not cover every act motivated by religion so such a right is likely to be ignored.

Therefore, with this in mind, to at least assert such a right it will be necessary to determine whether

there is any advanced directive in place that gives effect to an individual's beliefs and carried a card

that effectively prohibited their treatment, on the basis of Malette v. Schulman (1990) 67 DLR (4th)

321, "to speak in circumstances where the card carrier cannot".


ARTICLE 10: Freedom of expression

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and

to receive and impart information and ideas without interference by public authority. This article shall

not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Directorate of Public Prosecution V. Jones (Margaret) and Anor [1999] 2 AC 249

This case clearly showed that the sections 1(1) and 4(1) of the Official Secrets Act, which prohibits

member of the intelligence service form disclosing information, is not incompatible with the Article 10

of the Human Rights Act 1998 which guaranteed the freedom of expression.

Shayler, a secret service agent, sold information to a newspaper company. This information was

matters of national security and intelligence which he came across by virtue of employment with the

service. He pleaded that the disclosure was made on the ground of public interest.

The court held that the combined effect of Ss. 1 (1) and 4 (1) was that a defendant could not rely on a

defence of public and national interest to disclose information protected by these sections.

Furthermore, this does not amount to restriction on freedom of expression as article 10 "did not ban

absolutely any disclosure. Rather it restricted disclosure unless lawful authority has been gained."

ARTICLE 11: Freedom of assembly and association

Everyone has the right to freedom of peaceful assembly and to freedom of association with others,

including the right to form and to join trade unions for the protection of his interests.

Taking part in a lawful assembly in public places does not amount to trespass.

The Defendant and others were part of a peaceful demonstration on a highway where there was a

prohibition of trespasser assembly in force according to Section 14A of the Public Order Act 1986.

They appealed against their conviction and it was held that a public highway is a place of lawful

assembly. Acts which does not involve nuisance should not be regarded as trespass and a right of

peaceful assemble to lawfully use the highway can exist subject to complying with the restriction.

In looking to discuss some of what are considered to be the key human rights in this country, it is

important to also look to show where they have been applied. Therefore this section will look to

present some of the rights within the contexts that they commonly arisen in recent times to allow for a

better understanding.

ARTICLE 12: Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the

national laws governing the exercise of this right.

ARTICLE 13: Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective

remedy before a national authority notwithstanding that the violation has been committed by persons

acting in an official capacity.

ARTICLE 14: Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without

discrimination on any ground such as sex, race, color, language, religion, political or other opinion,

national or social origin, association with a national minority, property, birth or other status.


As a reflection of the way which society has changed where, at one time, no violation was involved in a

failure to change the birth certificate of a transsexual but, in Goodwin v. United Kingdom [2002] 35

EHRR 447, it was held there was no justification for barring the legal recognition of a transsexual under

any circumstances within this country's margin of appreciation.

Vo V. France 40 EHRR 12

Whether a section referring to a person who had lived as the wife or husband of a deceased could be

interpreted to include same-sex couples.

The case concerned the right of succession to a tenancy of the spouse of the deceased or the person

who had lived with them as his or her wife or husband. On a straight interpretation of the section, the

applicant could not benefit as he was the homosexual partner of the deceased man.

It was found by the House of Lords that such an interpretation would render the section incompatible

with Art 8 of the Convention, when read along with Art 14, in that it discriminated against same-sex

couples. It was held that section 3 of the Human Rights Act 1998 allowed the section to be read as

applying to homosexual couples.

Protocols

This is the name given to new Rights, which have been added to the original Convention over the

years.

Enforcement of certain Rights and Freedoms not included in Section I of the Convention

The Governments signatory hereto, being Members of the Council of Europe, Being resolved to take

steps to ensure the collective enforcement of certain rights and freedoms other than those already

included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms

signed at Rome on 4th November, 1950 (hereinafter referred to as 'the Convention'),

Have agreed as follows:

ARTICLE 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No

one shall be deprived of his possessions except in the public interest and subject to the conditions

provided for by law and by the general principles of international law.

ARTICLE 2: No person shall be denied the right to education. In the exercise of any functions which it

assumes in relation to education and to teaching, the State shall respect the right of parents to ensure

such education and teaching in conformity with their own religions and philosophical convictions.

ARTICLE 3: The High Contracting Parties undertake to hold free elections at reasonable intervals by

secret ballot, under conditions which will ensure the free expression of the opinion of the people in the

choice of the legislature.

HUMAN RIGHT ACT 1998

Introduction

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent

on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect"

in UK law to the rights contained in the Convention for the Protection of Human Rights and

Fundamental Freedoms, but more commonly known as the European Convention on Human Rights.


The Act makes available in UK courts a remedy for breach of a Convention right, without the need to

go to the European Court of Human Rights in Strasbourg.

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with

the Convention, unless the wording of any other primary legislation provides no other choice.

It also requires the judiciary (including tribunals) to take account of any decision, Judgement or opinion

of the European Court of Human Rights, known as the Strasbourg court, and to interpret legislation, as

far as possible, in a way which is compatible with Convention rights. However, if it is not possible to

interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not

allowed to override it. All they can do is issue a declaration. This declaration does not affect the validity

of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of

Parliamentary sovereignty. However, judges may strike down secondary legislation, so long as the

legislation does not derive its power from primary legislation.

Under the Act, individuals retain the right to sue in the Strasbourg court.

The situation before the Human Rights Act 1998

The Convention was in force, so far as international law was concerned, from 1951. A considerable

number of cases against the U.K. arose prior to the Human Rights Act 1998 and, in many of those

cases, the European Court found against the U.K. This necessitated changes to the law which were

usually effected by legislation. A good example is the case of Malone v U.K. (1984) 7 EHRR 14 (Malone

v United Kingdom (1984) 7 EHRR 14, said that UK allowing the phone tapping is in breach of its

obligations under the ECHR) which concerned interception of communications. The finding against the

U.K. led to the Interception of Communications Act 1985 which is now replaced by the Regulation of

Investigatory Powers Act 2000 (or "RIPA").

In a number of cases in U.K. courts points were raised regarding the convention and this had an effect

on the outcome of some of those cases. An example here is Derbyshire County Council v Times

Newspapers Ltd [1992] QB 770, Article 10 (Freedom of Expression) was persuasive in the House of

Lords decision that a local authority could not sue in libel.

Background to the Human Rights Act 1998

For many years, a number of reasons were advanced for not giving full effect within the U.K. to the

Convention. These included the risks of: damaging the doctrine of parliamentary sovereignty; judges

gaining too much power; difficult questions being decided by judges rather than by elected politicians.

Many argued that the rights were already adequately protected by the common law though, in reality,

this was never a very sound argument since common law rights were often ill-defined and could be

altered or removed by legislation.

In manifesto for the 1997 general election, the Labour party pledged to incorporate the European

Convention into domestic law. When the election resulted in a landslide Labour victory, the party,

under the leadership of Tony Blair, fulfilled this pledge through Parliamentary passage of the Human

Rights Act the following year.

The 1997 white paper "Rights Brought Home" stated: It takes on average five years to get an action

into the European Court of Human Rights once all domestic remedies have been exhausted; and it


costs an average of £30,000. Bringing these rights home will mean that the British people will be able

to argue for their rights in the British courts – without this inordinate delay and cost.

Aim

"To give further effect to rights and freedoms guaranteed under the European convention on human

rights; to make provision with respect to holders of certain judicial offices who become judges of the

European court of human rights."

Human Rights Act 1998

The Convention on Human Rights contains twelve fundamental rights and sovereignties. A further five

are added by the first and sixth practices.

Some moralities are 'unqualified rights' which means they are absolute. There is no need for the Court

to consider whether the action of the body making the decision was reasonable. It only has to look at

whether a Convention Right was violated.

Some of the truths are qualified rights and these only apply so long as there is no conflict with some

other, equally weighty, rights or interests.

Creates an obligation on British courts to take case law from the European court of human rights into

account and to interpret legislation in a way that is compatible with the convention on human rights.

Places an obligation on public authorities, including courts and tribunals and some private

organisations exercising public functions, to act in a way compatible with human rights.

Requires the courts to pay particular regard to the importance of the right to freedom of expression in

order to protect press freedom.

Requires the courts to recognize the importance of "freedom of thought, conscience and religion"

when a case involves a religious organisation.

Incorporates into British law key elements of the European convention on human rights including:

Article 2: Right to life

Article 3: Prohibition of torture

Article 4: Prohibition of slavery and forced Labour

Article 5: Right to liberty and security

Article 6: Right to a fair trial

Article 7: No punishment without law

Article 8: Right to respect for private and family life

Article 9: Freedom of thought, conscience and religion

Article 10: Freedom of expression

Article 11: Freedom of assembly and association

Article 12: Right to marry

Article 14: Prohibition of discrimination

Protocol No. 1

Article 1 : Protection of property

Article 2 : Right to education

Article 3 : Right to free elections


Protocol No. 6

Article 1 : Abolition of the death penalty

Article 2 : Death penalty in time of war

Reasons for and application of Human Rights Act 1998

Many members of the business and insurance communities still tend to view the Act as largely

confined to the spheres of criminal law, civil liberties and the like. However, the Act has a Spreading

and analyzes effect across the whole range of English law.

It also impacts on the role of the judiciary and, in particular, the relationship between the media and

the judiciary.

The Act incorporates the European Convention on Human Rights (ECHR) into UK law and requires all

domestic legislation and law to be read and given effect to in a way that is compatible with the ECHR.

If it is not compatible, the courts will be able to make a declaration and refer the matter back to

Government to consider making a remedial order.

In effect, the Act introduced a new rule of statutory interpretation.

Lawyers have to take account of the jurisprudence of the European Court of Human Rights in

Strasbourg.

This jurisprudence imports new concepts into English.

English lawyers need to have regard to a far wider range of case law than that before the Act.

The broad moral statements of the convention rights are new to most English lawyers. They are not

used to construing terms such as a "right to privacy" or a "right to family life".

English lawyers, who have spent more time interpreting contracts and conveyances than articles in a

constitution, have had to learn how to interpret these rights and apply them to specific problems.

The Act makes it unlawful for any "public authority" to act in a way which is incompatible with a

convention right.

There is also provision for hybrid bodies that perform both public and private functions and they are

required to comply absolutely with the rights in the Act in the performance of the public function.

These types of bodies include the privatised utilities, Railway authorities and private schools.

All bodies subject to judicial review proceedings and bodies, which carry out some function, which

could be defined as public, are caught by the Act.

The media continue to make use of this Article not least because the Act also introduces a right to

privacy, which is increasingly used to challenge it.

One of the driving forces behind the swift passage of the Human Rights Bill through Parliament was the

concern over the absence of a privacy law in the. The Courts may, over time, develop such a law from

the existing laws of nuisance and trespass. This can be seen to be happening with the use of the tort

of breach confidentiality.

Judges at all levels have found themselves subject to greater media scrutiny. When applying the Act

they are required to make moral and ethical decisions of great emotive value.

The impact of the Act has not been as enormous as expected, because some of the rights already

existed in UK law.


Contribution of the HRA 1998 to the development of English law

The passage of the Human Rights Act 1998 was an important step in the development of the rights of individuals.

The Human Rights Act represents a turning point in the development of the rights of individuals, because the major emphasize of HRA is on individual’s rights, because the rights protected under HRA such as freedom of movement, family life, religion, the right to a fair trial etc. are relevant to individuals.

The basic aim of the incorporation into UK law is the well-being of the society as a whole. When I think why it’s necessary to incorporate the ECHR into English Law? Then one reason is UK was

one of the early signatories to the ECHR in 1950 but citizens of Uk going for basic human rights to the Court of Human Rights in Strasbourg rather than in their own country which causes delay, cost and difficulties of taking a case in a foreign court, that was a big question mark on the court system of Uk, as R v Secretary of State for Home department ex p Brind (1991).

ECHR now incorporated into the UK law by the HRA in 1998. Some rights are absolute and cannot be interfered with by the state, others are subject to limitations.

The impact of the Act can be seen in constitutional terms e.g. the effect of the HRA on the doctrine of Parliamentary Sovereignty, that HRA also gave a direction to UK parliament to consider fundamental rights while doing legislation in simple words we can say Legislation must include a statement of compatibility. The judiciary cannot simply declare a piece of legislation to be unenforceable but simply state that it is incompatible.

The Act also requires courts to take into account any previous decision of the ECHR.

Bringing a case to the court

The procedure provide under this Act is that a person whose right is violated by any public authority may bring a case against that authority. If your claim is justified that your right has been breached then court can only order damages. The major areas of cases are criminal and immigration law.

For example a school’s refusal to allow one of its pupils to wear a purity ring – Held by the Queen’s Bench Division in Playfoot v Millais School Governing Body (2007)

The question arose in the above case regarding the freedom of thought, conscience and religion, so the aggrieved party will go to the domestic court.

The major issue under discussion is whether Celebrities enjoy extra right to privacy, (Potter J. in Murray v Express Newspapers PLC and others (2007)) the reference is to the photographing of J.K.Rowling's son by some ‘celebrity’ magazine, whilst the child was on a shopping trip in Edinburgh. It was held not to be an invasion of his right to privacy.

The one other example from daily life is the collection and storage of information by an employer of an employee’s telephone, e-mail and internet usage at the place of work. Copland v United Kingdom [2007] a breach of Article 8 was found in this case which is similar breaches of the right to privacy.

Declaration of Incompatibility

If any piece of legislation is not compatible with the ECHR then the court is bound to apply the legislation but may make a declaration of incompatibility with the convention.

Section 10 of the Act gives the power to the minister to amend the legislation and bring it into compatible with the convention. Any such amendment to the legislation must be approved by the parliament.

The main point in this regard is that the action will not help the aggrieved person who is complaining about the breach of right but in future other people’s rights will not be breached by bringing that piece into compatibility.


The first case in this regard that was declared incompatible with the convention was H v Mental Health Review Tribunal (2001) The appellant argued that his right to liberty under Article 5 was violated by the Mental Health Review Tribunal, who denied his request for discharge. He argued that the standard used by the Tribunal under the Mental Health Act 1983 - that he was no longer suffering from a mental illness that made it appropriate for him to be detained and that he was no longer a danger to the public - impermissibly placed the burden of proof on him to prove that he was eligible for discharge. The Court of Appeal agreed with the appellant and issued a declaration of incompatibility.

Declaration of incompatibility made: Sections 72(1) and 73(1) of the Mental Health Act 1983 are incompatible with Articles 5(1) and 5(4) of the European Convention of Human Rights in that, for the Mental Health Review Tribunal to be obliged to order a patient's discharge, the burden is placed upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist; and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria justifying the patient's detention in hospital for treatment continue to exist before refusing a patient's discharge.

Government’s response in case of declaration of incompatibility

Usually after the declaration of incompatibility Govt. change the law by following the declaration of incompatibility.

The parliament can pass a new Act to replace the incompatible one or in case of small part a remedial order can be passed.

An example of the law being changed by following the HOL decision A and another v Secretary of state for the home department (2004) The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they did. A British subject, who was suspected in the exact same way, and there were many such, could not be similarly held. The Government had derogated from their obligations under the Convention to allow such detentions.

Held: The holding of a person without trial must require the strongest justification. Article 5 does not permit internment on security grounds. Other countries faced with similar threats had not issued derogations from the Convention. Derogating measures must go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. The SIAC set too low a standard for the scrutiny that the national court must carry out in order to test the proposition that the derogation is strictly necessary. The derogation was not proportionate. ” There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. “

Remedial order A remedial order is a statutory instrument which amends the incompatible provision in order to

comply with the ECHR. An example of a remedial order was used to amend an Act in a case B and L v UK (2006) English law

prohibited a parent-in-law from marrying their child-in-law unless both had reached aged 21 and both their respective spouses had died. B was L’s father-in-law, and they wished to marry. L’s son treated his grandfather, B, as ‘Dad’. The court accepted the government’s argument that the legislation had the


legitimate aim of protecting the family and any children of the couple. However, it nonetheless considered that there had been a violation of the right to marry. The prohibition was based primarily on tradition. There was no legal prohibition on a couple in this situation engaging in an extra-marital relationship. Moreover, on several occasions couples had obtained exemptions from the prohibition by personal Acts of Parliament. This showed that the objections to such marriages were not absolute.

The ECtHR held that there was a breach of Article 12. Following this the Marriage Act 1949 (remedial) order 2006 was passed. This order removed the prohibition on in-laws marrying.

Parliament, Joint Committee on Human Rights

The Joint Committee on Human Rights consists of twelve members, appointed from both the House of Commons and the House of Lords. The Committee is charged with considering human rights issues in the UK but cannot take up individual cases. It undertakes inquiries on human rights issues and reports its findings and recommendations to the House. It scrutinises all Government Bills and picks out those with significant human rights implications for further examination.

The committee has the following functions: 1. to examine Bills for Acts, and legislative instruments, that come before either House of the

Parliament for compatibility with human rights, and to report to both Houses of the parliament on that issue;

2. to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue;

3. to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and report to both Houses of the Parliament on that matter.

The committee is to report on each of these matters to both Houses of Parliament.

European Court of Human Rights

The European Court of Human Rights is an international court established by the European Convention

on Human Rights. It hears applications alleging that a contracting state has breached one or more of

the human rights provisions concerning civil and political rights set out in the Convention and its

protocols.

An application can be lodged by an individual, a group of individuals or one or more of the other

contracting states, and, besides judgments, the Court can also issue advisory opinions.

The Convention was adopted within the context of the Council of Europe, and all of its member states

are contracting parties to the Convention. The Court is based in Strasbourg, France.

History and Structure

The Court was established on the 21 January 1959 on the basis of Article 19 of the European

Convention on Human Rights when its first members were elected by the Consultative Assembly of the

Council of Europe.

The Convention charges the Court with ensuring the observance of the engagement undertaken by the

contracting states in relation to the Convention and its protocols that is ensuring the enforcement and

implementation of the European Convention in the member states of the Council of Europe.

The jurisdiction of the Court has been recognized to date by all member states of the Council of

Europe.

Protocol 14 amended the Convention so that judges would be elected for a non-renewable term of

nine years, whereas previously judges served a six year term with the option of renewal. Amendments


were also made so that a single judge could reject plainly inadmissible applications, while prior to this

protocol only a three judge committee could make this final decision. In cases of doubt, the single

judge refers the applications to the Committee of the Court. A single judge may not examine

applications against the state which nominated him. The three judge committee has jurisdiction to

declare applications admissible and decide on the merits of the case if it was clearly well founded and

based on well-established case law. Previously the three judge committee could only declare the case

inadmissible, but could not decide on the merits of the case, which could only be done by a chamber of

seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee

decides on the merits of a case, the judge elected to represent that state is no longer a compulsory

member of this committee. The judge can be invited by the committee, to replace one of its members,

but only for specific reasons, such as when the application relates to the exhaustion of national legal

remedies.

Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not

suffered a significant disadvantage and which do not raise serious questions affecting the application

or the interpretation of the Convention, or important questions concerning national law. The European

Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written

comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states

that the Court should encourage the parties to reach a settlement at an early stage of the proceedings,

especially in repetitive cases. The Committee of Ministers supervises the settlement's execution.

Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgment if

there are difficulties in the execution of a final judgment. In order to prevent repetitive applications

concerning structural problems in contracting states on which the Court has previously made a final

decision, the Committee of Ministers can in exceptional circumstances and with a two-thirds majority,

initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court.

Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the

Lisbon Treaty, which entered force in December 2009, provides that the European Union should

accede and become a party to the Convention. The Committee of Ministers is to evaluate in 2012 to

2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the

Court. The Committee of Ministers is to decide before 2019 whether more reforms of the Court are

necessary.

Judges

Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of

renewal of this term. Now judges are elected for a non-renewable nine year term.

The number of full-time judges sitting in the Court is equal to that of the contracting states to the

European Convention on Human Rights.

The Convention requires that judges are of high moral character and to have qualifications suitable for

high judicial office.


Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the

three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's

term has expired or when a new state accedes to the Covenant.

The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected

or until the cases in which they sit have come to an end.

The judges perform their duties in an individual capacity and are prohibited from having any

institutional or other type of ties with the contracting state on behalf of whom they were elected.

To ensure the independence of the Court judges are not allowed to participate in activity that may

compromise the Court's independence. A judge cannot hear or decide a case if he has a family or

professional relationship with the parties. Judges can only be dismissed from office if the other judges

decide, by two-thirds majority, that the judge has ceased to fulfill the required conditions. Judges

enjoy, during their term as judges, the privileges and immunities provided for in Article 40 of the

Statute of the Council of Europe.

Plenary court and administration

The plenary court is an assembly of all of the Court's judges. It has no judicial functions.

It elects the court's president, vice-president, registrar and deputy registrar.

It also deals with administrative matters, discipline, working methods, reforms, and the establishment

of Chambers and the adoption of the Rules of Court.

Jurisdiction

The jurisdiction of the court is generally divided into inter-state cases, applications by individuals

against contracting states, and advisory opinions in accordance with Protocol No.2.

Applications by individuals constitute the majority of cases heard by the Court.

A Committee is constituted by three judges, Chambers by seven judges and a Grand Chamber by 17

judges.

Applications by individuals

Applications by individuals against contracting states, alleging that the state violates their rights under

the European Convention on Human Rights, can be made by any person, non-governmental

organisation or group of individuals.

Although the official languages of the Court are English and French, applications may be submitted in

any one of the official languages of the contracting states.

An application has to be made in writing and signed by the applicant or by the applicant's

representative. Once registered with the Court, the case is assigned to a judge, which can make the

final decision that the case is inadmissible.

A case may be inadmissible when it is incompatible with the requirements of ratione materiae (by

reason of the subject matter), ratione temporis ( The court can either lose temporal jurisdiction

because the deadline for litigation of the particular action has expired) or ratione personae (by reason

of his person), or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of

domestic remedies, lapse of the six months from the last internal decision complained of, anonymity,


substantial identity with a matter already submitted to the Court, or with another procedure of

international investigation.

If the judge decides that the case can proceed the case if referred to a Chamber of the Court which,

unless it decides that the application is inadmissible, communicates the case to the government of the

state against which the application is made, asking the government to present its observations on the

case.

The Chamber of Court then deliberates and judges the case on its admissibility and its merit. Cases

which raise serious questions of interpretation and application of the European Convention on Human

Rights, a serious issue of general importance, or which may depart from previous case law can be

heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing

jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts

the referral.

Inter-state cases

Any contracting state to the European Convention on Human Rights can sue another contracting state

in the Court for alleged breaches of the Convention, although in practice this is very rare.

Advisory opinion

The Committee of Ministers may, by majority vote, ask the Court to deliver an advisory opinion on the

interpretation of the European Convention on Human Rights, unless the matter relates to the content

and scope of fundamental rights which the Court already considers.

Procedure and decisions

After the preliminary finding of admissibility the Court examines the case by hearing representations

from both parties.

The Court may undertake any investigation it deems necessary on the facts or issues raised in the

application and contracting states are required to provide the Court with all necessary assistance for

this purpose.

The European Convention on Human Rights requires all hearings to be in public, unless there are

exceptional circumstances justifying the holding of a private hearing.

In practice the majority of cases are heard in private following written pleadings. In confidential

proceedings the Court may assist both parties in securing a settlement, in which case the Court

monitors the compliance of the agreement with the Convention. However, in many cases, a hearing is

not held.

The judgment of the Grand Chamber is final. Judgments by the Chamber of the Court become final

three months after they are issued, unless a reference to the Grand Chamber for review or appeal has

been made. If the panel of the Grand Chamber rejects the request for referral, the judgment of the

Chamber of the Court becomes final.

The Court's chamber decides both issues regarding admissibility and merits of the case. Generally, both

these issues are dealt with in the same judgment. In final judgments the Court makes a declaration

that a contracting state has violated the Convention, and may order the contracting state to pay


material and/or moral damages and the legal expenses incurred in domestic courts and the Court in

bringing the case.

The Court's judgments are public and must contain reasons justifying the decision.

Article 46 of the Convention provides that contracting states undertake to abide by the Court's final

decision. On the other hand, advisory opinions are, by definition, non-binding.

The Court has to date decided consistently that under the Convention it has no jurisdiction to annul

domestic laws or administrative practices which violate the Convention.

The Committee of Ministers of the Council of Europe is charged with supervising the execution of the

Court's judgments. The Committee of Ministers oversees the contracting states' changes to their

national law in order that it is compatible with the Convention, or individual measures taken by the

contracting state to redress violations.

Judgments by the Court are binding on the respondent states concerned and states usually comply

with the Court's judgments.

Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgment a

separate opinion. This opinion can concur or dissent with the decision of the Court. In case of a tie in

voting, the President has the casting vote.

Relationship with other courts

The European Court of Justice

The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights.

However, since all EU states are members of the Council of Europe and have signed the Convention on

Human Rights, there are concerns about consistency in case law between the two courts.

The ECJ refers to the case-law of the European Court of Human Rights and treats the Convention on

Human Rights as though it was part of the EU's legal system, since it forms part of the legal principles

of the EU member states. Even though its member states are party to the Convention, the European

Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU

institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the

Convention.

Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign

the Convention. This would mean that the Court of Justice is bound by the judicial precedents of the

Court of Human Right’s case law and thus be subject to its human rights law, avoiding issues of

conflicting case law between these two courts.

National courts: Most of the Contracting Parties to the European Convention on Human Rights

have incorporated the Convention into their own national legal systems, either through constitutional

provision, statute or judicial decision.

Criticism: The court's interpretation of the Convention's reach is at times subject to criticism as

either too narrow or too wide.

For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticized the Court for

“reluctance".


On the other hand, the British Law Lord, Lord Hoffmann argued in 2009 that the Court has not taken

the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to

aggrandize its jurisdiction and to impose uniform rules on Member States. It considers itself the

equivalent of the Supreme Court of the United States, laying down a federal law of Europe". Lord

Hoffman considered that the ability of the court to interfere in the detail of domestic law ought to be

curtailed. He was joined in the criticism by the president of the Belgian Constitutional Court, Marc

Bossuyt.

Criticism from Russia, a country held to be in violation of the Convention by the Court in many

decisions, is frequent. The Court's judge in respect of Russia, Anatoly Kovler, explaining his frequent

dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary

(Refah v. Turkey)". The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the

Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court

decisions "touching the national sovereignty, the basic constitutional principles".

There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules

a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of

the Court organs according to the Convention".

Impact of the HRA on the Judiciary of UK

Today’s Independent reports that the High Court ruled that the HRA’s right to life applies to the armed

services in a case brought by the family of Private Jason Smith, a soldier who died of heat stroke in

Iraq. It seems likely that the government will appeal to the Law Lords, but senior military officers do

not expect the High Court decision to be overturned.

The following points could be used to suggest that the role of the judiciary has been changed to a

large extent since the passage of the HRA:

Since the Human Rights Act (1998) came into force judges have been unafraid to declare government

policy incompatible with the European Convention on Human Rights (particularly in relation to

terrorism).

In 2002 the Law Lords unanimously ruled that the Home Secretary’s power to increase the minimum

tariff recommended by the trial judge for convicted murderers is ‘incompatible’ with Article 6 of the

ECHR (the right to a fair trial).

In 2004 the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in

Belmarsh and Broadmoor prisons.

In 2005 judges declared that evidence gained under torture was inadmissible.

In October 2007 the Law Lords ruled that 18 hour curfews were in breach of civil liberties under the

ECHR.

Charlie Falconer, the former Lord Chancellor talks of the effect of the HRA in opening traffic to the

ECHR: “There is no doubt that the Human Rights Act has also established a “dialogue” between English

judges and the European Court of Human Rights. The close analytical attention paid by the English

courts to the European Convention on Human Rights case law is respected in Strasbourg, and have

become influential on the way it approaches English cases.”


Cynics have also suggested that the security of the nation has been threatened as a result of the newly

granted powers: we have to question whose civil liberties it is that judges are protecting by overturning

large chunks of the government’s anti-terrorist legislation (via judicial review often with reference to

the Human Rights Act). To allow hijackers to remain in the UK because it is supposedly unsafe for them

to return to their home country may protect individual liberties, but potentially undermines the

collective security of the UK.

It could be argued that the HRA and incorporation of the ECHR has given the judiciary a new sense of

legitimacy, especially in the field of terrorism: judges can also act as a pressure group via their

comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases:

in 2003 Lord Woolf (the ex-Lord Chief Justice) attacked Blunkett’s plans to restrict the sentencing

powers of judges; in 2004 Lord Hoffman declared during the Belmarsh trial that the government’s anti-

terrorism laws were a greater threat to liberty than terrorism itself.

Further evidence that judges have become more politicised as a result of the HRA is the impact they

have had on politicians: in the summer of 2006, Tony Blair was sufficiently outraged by a High Court

decision which allowed Afghan hijackers temporary leave to remain in Britain as ‘barmy (strange)’, an

unprecedented attack on a ruling by a Prime Minister.

The following points could be used to suggest that the impact of the HRA on the judicial branch has

been overstated:

Much has been made about the passage of the Human Rights Act, but this change does not give power

to the judicial branch to strike down actions of Parliament.

In the highly controversial Belmarsh case, for instance, Parliament could have ignored the Judgement

declaring indefinite detention for foreign nationals. Further, even though Parliament chose not to

ignore the judgment, the suspected international terrorists had to remain in prison until new

legislation was written since the principle of parliamentary sovereignty makes it impossible to strike

down primary legislation. Hence the HRA has provided a moral rather than legal check on the

legislature.

On a related note, according to the Department for Constitutional Affairs, the ‘vast majority’ of cases

tried within senior courts which contain a human rights aspect ‘would have been lodged

notwithstanding the implementation of the Act’. Further surveys indicate that of the cases that are

tried under the HRA most were determined in favour of the status quo. In short, the HRA has been

used sparingly and in only around 1% of cases since the act came into force have the courts declared

British law incompatible with the ECHR.

Charlie Falconer supports this point: “Moreover, there have been only 11 occasions upon which the

superior courts have upheld Declarations that Acts of Parliament were incompatible with the

Convention rights, and on each occasion Parliament has passed further legislation putting the law back

into conformity. Arguments that the Human Rights Act has significantly altered the constitutional

balance between Parliament, the Executive and the Judiciary has therefore been considerably

exaggerated.”

He goes on: “The impact of the Human Rights Act upon the development of UK law has been

significantly less, and significantly less negative, than some predictions made for it from 1997 onwards.


Arguments based on the Human Rights Act have been raised across a whole range of civil and criminal

litigation, and have been explicitly considered in about one third of the cases considered by the House

of Lords since the Act came into force. But in many instances the courts would either have reached the

same conclusion under common law, or found that the decision being challenged had been properly

taken. And, in very many cases, human rights arguments have been rejected by the courts as being

either misconceived or irrelevant to the case.”

The tremendous growth in judicial review predates the passage of the HRA. Growth in judicial review

indicates an increased willingness of the judicial branch to exercise its powers in declaring actions of

ministers ultra vires (i.e. beyond their statutory power):

Kenneth Baker: was found in contempt of Court for failure to comply with court order in asylum case.

Michael Howard: extension of sentences for Bulger killers unlawful.

Jack Straw: ban on journalists investigating miscarriages of justice overturned.

All these cases suggest that the HRA has had little effect since they happened before it came into

effect.

The media has a tendency to report cases where the HRA is referred to, but tend not to focus as

heavily on the outcome of the case being largely unaffected by the existence of the HRA. Falconer

again: “There are a number of reasons why the HRA does not affect the outcome of cases in which it is

raised in argument. First, Convention rights may not be relevant on the facts of the particular case. For

example, Diane Pretty’s attempt to challenge the Director of Public Prosecution’s refusal to provide an

undertaking not to prosecute her husband if he assisted her to commit suicide failed because the

European Convention on Human Rights did not contain an implied right to euthanasia (R (Pretty) v

DPP [2002] 1 AC 800). The recent unsuccessful HRA challenge to the Hunting Act 2004 (R (Countryside

Alliance) v Attorney-General [2006] EWCA Civ 817) failed, in part, because Article 8 was not engaged

at all. Second, even if Convention rights are engaged, the court may hold that interference with the

right is justified. For example, it has been held that the present statutory regimes relating to matters as

disparate as the supply of water (Marcic v Thames Water [2004] 2 AC 42), the regulation of the

solicitors profession (Holder v Law Society [2003] 1 WLR 1059) and the preservation of embryos

(Evans v Amicus Healthcare [2005] Fam 1) are compatible with the European Convention on Human

Rights. In R (Begum) v Denbigh High School ([2006] 2 WLR 719) the House of Lords held that, if

(contrary to the view of the majority) a school’s refusal to allow a pupil to wear a Hijab at school

interfered with her Article 9 rights, the interference was justified… The former Lord Chief Justice, Lord

Woolf, has suggested that if the HRA had not been enacted, human rights would have been absorbed

into the common law in any event as a result of “the changing legal environment and the increased

importance attached to the rule of law around the globe”. The courts have increasingly been prepared

to recognise “common law constitutional rights” similar in content to those found in the European

Convention on Human Rights but independent of it. For example, the House of Lords’ conclusion in A

(No.2) v Home Secretary ([2005] 3 WLR 1249) that the Special Immigration Appeals Commission in

particular and the courts in general could not receive evidence obtained by torture was based not on

the HRA, but on the common law, reinforced by international Conventions. It seems highly unlikely

that the result of this case would have been any different before the HRA was enacted.”


The rise in profile of judges could be said to have more to do with a drift to the right by successive

Home Secretaries (and now Judicial Secretaries) than the HRA.

In 2005 senior judges revealed their anger in a newspaper interview about laws passed by the Labour

government which, it was argued, curbed their powers; the former Lord Chief Justice, Lord Phillips,

aired his reservations about England’s prisons crisis. In ‘leaked’ papers of a meeting, Phillips attacked

the Criminal Justice Act 2003 for placing pressure on a prison system that is at record numbers; All of

these points could have been made without the passage of the HRA.

Human Rights Interpretation and Application in UK Law

Prior to the enactment of the Human Rights Act 1998, the European Convention was directly relevant

to statutory interpretation because it could not be a source of rights and, unless a statute was

ambiguous, it could not be used for statutory interpretation, according to R v. Secretary of State for

the Home Department ex p. Brind [1991] AC 696 & R (Khail) v. Home Secretary [2006] EWHC 2139.

Therefore, with this in mind, the Human Rights Act 1998 has given effect to the rights contained in the

European Convention to be enforced in our domestic courts so they can consider the decisions of the

Strasbourg court, but are not bound to follow it under section 2.

On this basis - (a) section 3 of the Human Rights Act 1998 has imposed on the courts an obligation to

interpret domestic legislation in a manner compatible with European Convention rights, supported by

the declaration of incompatibility means if the courts cannot construe a statute compatibly with the

European Convention they may make such a declaration, illustrated by R (Carson) v. Secretary of State

for Work & Pensions [2005] UKHL 37.

However, it is still to be appreciated that, ostensibly, the Human Rights Act 1998 still leaves it open for

Parliament to enact legislation violating European Convention rights if it wishes to do so and, for added

clarity, Parliament might specifically state legislation applies - notwithstanding any violation of the

European Convention, according to the decision in Ghaidan v. Godin-Mendoza [2004] UKHL 30.

But, whilst the interpretation of European Convention rights is dynamic, supported by Soering v. UK

[1989] 11 EHRR 439, and changes from time to time, special problems may arise for the statute law of

member states, illustrated by X Council v. B (Emergency Protection Orders) [2004] EWHC 2015 (Fam),

because jurisprudence may then have moved on, in keeping with Beaulane Properties Limited v.

Palmer [2005] EWHC 1460 (Ch).

Therefore, with this in mind, section 3 of the Human Rights Act 1998 requires the UK's domestic courts

to construe legislation in the context of European Convention rights as they stand at the time of the

Judgement, so the meaning of statutes may change as interpretations of European Convention rights

change over time.

Moreover, it is also to be appreciated that the 'retrospectivity' of section 3 of the Human Rights Act

1998 was further clarified by the decision in R (Hurst) v. HM Coroner for Northern District Council

[2005] EWCA Civ. 890.

Human Rights Cases

A v. B plc [2003] QB 195

Anguelova v. Bulgaria, Application No. 38361/97, ECHR 2002 IV


Arrowsmith v. UK (1978) 19 DR 5

Attorney-General's Reference (No 4) The Times (15th October 2004)

Beaulane Properties Limited v. Palmer [2005] EWHC 1460 (Ch)

Beets & others v. United Kingdom, The Times, 10 March 2005

Brown v A-G for Scotland 2000 JC 328 Campbell v. MGN Ltd [2004] UKHL 22

Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41

Cullen v. Chief Constable of the RUC [2003] 1 WLR 1763

Cumming & others v. Chief Constable of Northumbria Police [2003] EWCA Civ 1844

Delcourt v. Belgium (1970) 1 Eur. H.R. Rep. (ser. A) 355

Douglas v. Hello! [2001] 2 WLR 992

Dowsett v. United Kingdom (2003) 38 EHRR 845

Edwards & Lewis v. United Kingdom (2005) 40 EHRR 24

Ghaidan v. Godin-Mendoza [2004] UKHL 30

Goodwin v. United Kingdom [2002] 35 EHRR 447

Henworth v. United Kingdom (App. No. 515/02)

Hoffmann v. Austria (1993) Series A, No. 255

Hooper v. United Kingdom (App. No. 42317/98) (16th November 2004) (unreported)

Kansal v. United Kingdom [2004] ECHR 179

King v. United Kingdom (App. No. 13881/02)

Massey v. United Kingdom (App. No. 14399/02)

Mellors v. United Kingdom (App. No. 34723/97) (21st May 1998)

Murray v. United Kingdom App. No. 18731/91, (1996) 22 Eur. H.R. Rep. 29

Nachova & Others v. Bulgaria [GC], (Application Nos. 43577/98 & 43579/98), ECHR 2005 VII

Peck v. UK (2003) 36 E.H.R.R. 41

R v. A (No.2) [2002] 1 AC 45

R v. Altham [2002] 2 AC 545

R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326

R v. Lambert [2002] 2 AC 545 at paragraph 157

R v. Secretary of State for the Home Department (Respondent), ex parte Bagdanavicius & another

[2005] UKHL 38

R (Home Secretary) v. Mental Health Review Tribunal [2004] EWHC 2194 (Admin)

R (Khail) v. Home Secretary [2006] EWHC 2139

R (R) v. Durham Constabulary [2005] UKHL 21

R (S) v. Waltham Forest Youth Court [2004] EWHC 715

R (Wright) v. Home Secretary [2006] EWCA Civ 68

SC v. United Kingdom [2004] 40 EHRR 121

Theakston v. MGN Ltd [2002] EWHC 137 QB

Turkmen v. Turkey, (Application No. 43124/98), 19 December 2006

Vasquez v. The Queen [1994] 1 WLR 1304


Woodward v. Huchins [1977] 1 WLR 760

X Council v. B (Emergency Protection Orders) [2004] EWHC 2015 (Fam)

Austin v Commissioner of Police for the Metropolis [2009] UKHL 5

Questions from past papers

Q1. Evaluate the contribution made by the Human Right Act 1998 to the development of English law?

[MAY / JUNE 2004]

Q2. Assess the impact of the introduction of the Human Rights Act 1998 on the rights of an individual

in the UK. [October/November 2005]

Q3. The Human Rights Act represents a turning point in the development of the rights of individuals.

Consider, with appropriate examples, the validity of this statement. [October/November 2006]

Q4. Discuss the origins and nature of the human rights of the citizen under English law. Has too much

attention been paid to individual rights at the expense of the interests of the wider community?

[October/November 2008]

Q5. A school’s refusal to allow one of its pupils to wear a purity ring … did not infringe her right of

freedom of thought, conscience and religion protected by the European Convention on Human Rights’.

-Held by the Queen’s Bench Division in Playfoot v Millais School Governing Body (2007) What are the

main rights protected by the European Convention? Consider critically the ways in which they can be

enforced. [May/June 2009]

Q6. ‘Celebrities enjoy on extra right to privacy’. (Potter J. in Murray v Express Newspaper PLC and

other (2007)) Discuss the right to privacy and other rights protected by the Human Rights Act 1998.

Giving examples assess critically the effectiveness of the legislation. [October/November 2009]

Q7. ‘The collection and storage of information by an employer of an employee’s telephone, e-mail and

internet usage at the place of work was, in the absence of any legal provisions, unjustified’. – Copland

v United Kingdom (2007) Identify and discuss the breach of human rights found by the Court of

European Human Rights in the above case. How adequately are this and other human rights protected

in the United Kingdom? [October/November 2011]

Q8. Critically assess the effect which the Human Rights Act 1998 has had on the protection of human rights in England and Wales. [May/June 2013]

Q9. ‘The passage of the Human Rights Act 1998 was an important step in the development of the rights of individuals.’ Consider the validity of this statement using appropriate examples. [October/November 2013]

Class activity

Explanation of historical background to current legislation and issues.

European Convention and ECHR. Evaluation of effectiveness of legislation and examination of current

and relevant case law.

Research into current cases.

Lecture # 9 Human Rights

Documents