3B.2.1 Protection of the individual’s human rights and freedoms in the UK Flashcards
The European Court of Human Rights (ECtHR)
An international court established by the ECHR.
- When a member state has allegedly breached the Convention, a case can be brought before the Court.
Council of Europe
Its main aim was to prevent any repetition of WW2. The horrors of WW2 and the holocaust had emphasised the need to enshrine in law a new respect for human dignity, and certain minimum standards of rights and freedoms that could be enjoyed by all citizens.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights was adopted by the UN in 1948. Following this, the Council of Europe set out its own proposals in a document which created a system designed to promote and protect human rights.
The ECHR was drafted in 1950 by member states of the Council of Europe.
Was the UK an unwilling participant in the ECHR?
A common misconception which has been propagated in recent years is that the ECHR and its institutions were forced upon an unwilling UK as part of a wider European project. But in reality, the UK was one of the architects of the Convention and the wider human rights agenda that followed WW2.
When can an application to the ECtHR be lodged?
After all domestic remedies have been tried and exhausted.
Where is the ECtHR based?
It is based in Strasbourg, France.
When was the ECtHR established?
1959
What is the ECHR’s jurisdiction?
All 47 member states of the Council of Europe.
Relationship of ECtHR with national courts
Most of the signatory states to the ECHR, including the UK, have incorporated the Convention into their own national legal systems, either through constitutional provisions, statute or judicial decisions. In the UK, the Human Rights Act 1998 enshrined the ECHR into UK law.
An individual who argues that their human rights have been violated has to first take a case in their national courts. A claim can only be issues to the ECtHR if all avenues and remedies have been exhausted in the national courts.
The impact of the Human Rights Act 1998
The UK ratified the ECHR in 1966.
The UK is a dualist system in respect of incorporating international law into the UK legal system. This means that Parliament must pass legislation to make international treaty provisions part of UK law and enforceable in a UK court
For the UK, this meant that before 2000, a person who alleged breach of their human rights could bring a case in the ECtHR, but could not argue any of their convention rights before a UK court.
When Labour came to power in 1997, it put forward a Human Rights Bill to incorporate the ECHR into UK law. This bill received Royal Assent in 1998 and came into effect in October 2000 – this allowed time for judges, lawyers and public bodies to receive training on its effects and application.
Recent developments to human rights in the UK
The Conservatives pledged in their 2015 General Election manifesto to repeal the HRA 1998 and introduce a British Bill of Rights. This would break the formal link between the British Courts and the ECtHR, making the Supreme Court the ‘Ultimate arbiter of Human Rights’ in the UK.
Arguments for repeal were that the Act does little to protect the liberties or the safety of British people and that it allows judges – who are not chosen by popular vote – to make substantive judgements about government policies. The Conservatives claim that this has led to ‘perverse decisions’.
This proposal is being vigorously opposed by the governing parties in the devolved countries and all opposition parties in Westminster.
Entrenchment of Human Rights in the UK
Entrenchment is a procedure which would make an Act of Parliament difficult to repeal or amend in the future. One way of doing this would be to include a provision that would require, for example, a 75% majority of votes in the House of Commons before repeal or amendment could take place.
Under the principle of Parliamentary Sovereignty, Parliament is the supreme law-making body in the UK, and no one Parliament can bind its successors. This mean that, in theory, a future parliament could repeal or amend the HRA 1998.
The HRA contains no provision to stop or limit the power of a successor parliament from repealing or amending it. The Conservative Government are considering repealing the HRA with a new ‘Bill of Rights Bill’.
Who is eligible to bring a case to the ECtHR?
A person may bring a claim under the HRA in a court if “they are or would be a victim of the unlawful act”.
A person must have been directly affected by the act of the public body.
- This is set out in Section 7 of the ECHR.
Who can a case in the ECHR be brought against?
The HRA provides protection against violations by public bodies.
Public bodies are a body carrying out a public function, not private in nature.
- This is set out in Section 6 of the ECHR.
How should case law from the ECtHR be considered?
Under s2, a court or tribunal deciding a case under the HRA 1998 must take into account all past judgements, decisions, declarations or opinions of the ECtHR – there is no binding precedent.
If the court is faced with a conflicting UK precedent and a decision of the ECtHR, it should follow the domestic precedent and refer the case to appeal.
- This is set out in Section 2 of the ECHR.
