3B.5.1 Enforcement of Human Rights Flashcards
Role of domestic courts in the enforcement of Human Rights | Pre-2000 timeline
- 1953: ECHR came into force
- 1966: Citizens have the ability to take cases to the ECtHR
- 1997: White Paper was proposed by New Labour government, with the aim of “bringing Human Rights home”.
- 1998: Human Rights Act enables citizens to argue their Human Rights in domestic courts.
How does precedent work with human rights law?
Courts are not bound to follow previous decisions – they must only take them into account.
s2(1) Human Rights Act 1998
The court must take into account any judgement, decision, declaration or advisory opinion of ECtHR.
s3 Human Rights Act 1998
Legislation and delegated legislation must be read to give effect to ECHR.
sS4 Human Rights Act 1998
Courts can make a statement of incompatibility and then parliament should act.
Statement of incompatibility
Where higher courts (such as the High Court, Court of Appeal or Supreme Court) considers that part of an Act of Parliament was incompatible with human rights, it can make a statement of incompatibility.
Parliament must decide whether it wishes to amend the law.
Where can Human Rights be challenged in?
- Domestically: Human Rights can be challenged by a judicial review in the Administrative Court – a division of the KBD, which is a division of the High Court. This is where a citizen can take a public body to court for it’s actions.
- ECtHR: The European Court of Human Rights (ECtHR) is run by the Council of Europe (and is therefore separate from the EU).
Quick summary of the ECtHR process
- State v State OR Citizen v State
- A potential claimant sends an application by post
- 1 judge decides admissibility
- 3 judges decide if existing case law
- 7 judges if in the original chamber | 17 judges if in Grand Chamber.
What are the ECHR protocols?
They show how the ECHR’s rights are administered.
Protocol 15
Adding a reference to the principle of subsidiarity and the doctrine of the margin of appreciation to the Preamble of the Convention.
Subsidiarity
The idea that legal issues should be dealt with effectively by Member States at a central, regional or local level rather than in the ECtHR wherever possible.
Margin of Appreciation
States have different cultures, traditions and dominant religions, so States can act differently in how they apply and implement in the Convention, depending on the circumstances of the case.
Criteria for admission to European Court of Human Rights (ECtHR)
- The citizen must be directly affected and have suffered a significant disadvantage. – This was introduced by protocol 14 in 2010 to reduce the number of cases being taken to the ECtHR.
- The citizen must have tried every legal remedy available in the domestic courts.
- Time limit of four months from when the alleged violation occurred.
- No anonymity for claimants.
- Cannot be incompatible or vexatious.
Criticism of the criteria for admission to the ECtHR
Critique: Whether the case can be heard in the ECtHR is decided by one single judge.
Functions of the ECtHR
- Not bound by previous decisions so can develop. “A living instrument”.
- To be effective – individuals must be able to enforce rights.
- Is autonomous – Court has freedom to interpret words in legal sense to apply to all states regardless of meanings and language.
- Has positive obligations – ECtHR requires States to take positive steps to prevent violations.
How effective is enforcement of ECHR rights in the UK?
Domestic courts
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Procedure used
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Parties to the claim
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Admissibility
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Margin of Appreciation
