5.5 European Convention on Human Rights 1953 Flashcards
Status of the European Convention on Human Rights in the UK:
When and why was the Convention signed
After WWII, to prevent the wartime atrocities from happening again
Status of the European Convention on Human Rights in the UK:
When did the Convention get incorporated into english domestic law
2000, when The Human Rights act 1998 was fully incorporated
Status of the European Convention on Human Rights in the UK:
Before The Human Rights Act 1998 how did UK citizens have to bring up breaches to basic Human Rights
- routes of redress by testing existing laws to see if they are compatible with convention rights
- Bring claim to the European Court of Human Rights
Impact of decisions of the European Court of Human Rights
What are some critisisms the European Court of Human Rights
- It can take years for a case to be heard, some breaches can be abandoned before they even reach the court.
- Having a panel of 7 judges to make an unbiased decision can lead to decisions taking very long
Breaches of the Convention by the UK
What is a case example of breaches of the convention
Sunday Times v United Kingdom (1979)
Breaches of the Convention by the UK
Facts of Sunday Times v United Kingdom (1979)
The government wanted to prevent publication of the thalidomide scandal under the UK’s contempt laws, Sunday Times brought an action in the European Court of Human Rights.
Breaches of the Convention by the UK
Held in Sunday Times v United Kingdom (1979)
The European Court of Human Rights held injunction violated their freeddom of expression under article 5.
Article 2:
What is the article 2
The right to life
- restricted right
Article 2:
- Explain the right to life
No one can take someones life without just cause
Article 2:
What is a restricted right
exceptions put into place to remove status as an absolute right with valid reasons
Article 2:
what is an arguement against this article
If there is a right to life, there must be a citizen’s right to end/take their life (suicide)
Article 2
Case outlines this arguement against the right to life
Pretty v UK (2002)
Article 2:
Pretty v UK facts
Applicant was suffering from motor nueron disease which left her paralysed but she could still make lucid decisions. She wanted husband to assist suicide and wanted to make sure he woulnd’t be prosecuted under the Suicide Act 1961.
Article 2:
Held in Pretty v UK (2002)
Her arguement was unsuccesful in domestic courts, so she appealed to the European Court of Human Rights. This was also unsuccesful.
Article 2:
Reasons for dismissal in Pretty v UK (2002)
- Article 2 ensured that a citizens life could not be readily taken by countries in which they lived
- While theres a right to life, theres no expressed or implied corresponding allowance to take life
Article 2(2):
What can this right be restricted
Under ‘justified’ circumstances
Article 2(2):
What are the 3 ‘justified’ circumstances outlined in section 2
a) in defence of any person from unlawful violence
b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained
c) in action lawfully taken in quelling a riot or insurrection
Article 2(2):
example of what clause (a) (in defence of any person against lawful violence) would cover
using necessary force in helping someone from being attacked but the attacker dies
Article 2(2):
example of what clause (b) (to effect a lawful arrest or to prevent escape of a person lawfully detained) would cover
police use necessary force when arresting someone or impending someone from escaping arrest
Article 2(2)
example of what clause (c) (in action lawfully quelling a riot or insurrection) would cover
necessary force used in subduing a riot or similar violent upbringing
Article 5:
What does this right cover
the right to liberty and security of a person
Article 5:
define liberty
being free within a society from oppressive restriction imposed by authority on one’s way of life
Article 5:
Define security of a person
individual cannot have their liberty removed or restricted without just cause
Article 5:
article 5(1), what is clause (a) (justified exception of liberty)
(a) - lawful detention of a person by a competent court.
Article 5:
article 5(1), what is clause (b) (justified exception of liberty)
(b) - lawful detention of arrest of a person who’s no compliant with lawful order of a court, or to secure fulfilment of any obligation prescribed by law
Article 5:
article 5(1), what is clause (c) (justified exception of liberty)
(c) - lawful detention or arrest of a person to in purpose of bringing him before competent legal authority on reasonable suspicion of committing offence, or when reasonable to prevent him committing an offence
Article5(2) - 5(5): additional requirements to justify deprivsion of liberty in cases of lawful arrest or detention:
What does artice 5(2) say?
everyone arrested should be informed promptly, in a language they understand, of the reasons for his arrest and any charges against him
Article5(2) - 5(5): additional requirements to justify deprivsion of liberty in cases of lawful arrest or detention:
what does article 5(3) say
anyone arrested under clause (c) of article 5(1) should be brought to a judge promptly to exercise judicial power, entitled to trial within reasonable time
Article5(2) - 5(5): additional requirements to justify deprivasion of liberty in cases of lawful arrest or detention:
what does article 5(4) say
an arrested person is entitled to a swift trial to prove lawfulness (innocence or guilt) of his arrest.
- includes appeals against decision
Article 5(4):
case example of this
MH v UK (2013)
Articel 5(4):
Facts of MH v UK (2013)
- Women with down syndrom placed in hospital
- Mental Health Act 1983 allowed 28 days stay for those with mental health issues.
- During this time womens mother applied for her released and got denied
Article 5(4)
Held in MH v UK (2013)
- lack of remedies for persons or their representaties during the detention time breached article 5(4) of the convention.
- inability of a woman to challenge her detention under s2 of the Mental Health act 1983 violated her human rights under article 5.
Article5(2) - 5(5): additional requirements to justify deprivasion of liberty in cases of lawful arrest or detention.
Article 5(5) what does it say
If any rights under article 5 have been breached, the arrested person is entitled to compensation
Article 8:
what does article 8 cover
the right to respect for family and private life
Article 8:
define right to respect for family and private life
no one without just cause can interfere with your right to live a free life
Article 8:
Give some examples of acts of parliemant that have been passed in order to comply with this article
The Data Protection Act 1998
Freedom of Information Act 2000
Article 8:
every person has a right to respect…
privacy
family life
home
correspondence
Article 8(1):
explain ‘Privacy’
citizens have the right to live their in a way the choose, in private
Article 8:
what are some examples of ‘privacy’
choosing sexuality
appearance
Article 8:
case illustration of ‘privacy’
Douglas v Hello! (2001)
Article 8:
Facts of Douglas v Hello! (2001)
Micheal DOuglas and Catherine sued Hello! magazine after they published unauthorised photographs of their wedding, they seeked injunction.
Article 8:
Held in Douglas v Hello! (2001)
Court had to balance couples right to privacy and magazines freedom of expression. Court sided with magazine as the couple allowed another magazine to take photos of wedding
Article 8:
explain ‘Family life’ + some examples
resecting another persons choices on how they conduct family relationships
- sexual activity
- whether they marry or not
Article 8:
Explain ‘Home’
respect a persons right to occupy or access their home without interference from public authority
Article 8:
Explain ‘Correspondence’
Respecting a persons post, emails, phone calls, texts etc…
Article 8(2):
when can article 8 (right to respect family life and private life) be restricted
- if their a law required in a democratic society
- benefits national security, protects economic-wellbeing and public safety
- prevents crime
- protects health and morals of citizens
- protects rights and freedoms of others
Article (10)
What does this article cover
freedom of expression
Article 10:
what are some examples of how the freedom of expression be achieved
- freely coverse with anyone about topics and ideas
- publishing newspapers, articles or magazines
- through arts, paintings and theatrical performance
Article 10:
What’s one misunderstanding of the freedom of expression by UK citizens?
some citizens believe it gives them freedom of speech, which it doesn’t due to restrictions.
Article 10:
What exactly does this freedom allow?
Recieve information and ideas…
… and communicate information and ideas
Article 10:
What case illustrates the role of the freedom of expression?
Handyside v UK (1976)
Article 10:
Facts of Handyside v UK (1976)
Handyside published ‘The Little Red Schoolbook’ in the UK. A chapter contained information about sex, to which he was charged with having in his possession an obscene publication for gain.
Article 10:
Held in Handyside v UK (1976)
European Court of Human Rights held there was no violation of Article 10, UK’s right to interfere with H’s freedom of expression was allowed by domestic laws
Article 10(2):
When can the freedom of expression be restricted?
- Benefits national security, public safety
- prevents crime
- protects health and morals of citizens
- protects reputation and rights of citizens who might be affected when exercising this right
- prevents revelation of info gained in trust
- Maintains nutrility in the judiciary
Article 10:
Why was section 12 of The Human Rights Act 1998 added?
to add further restrictions to Article 10, freedom of expression
Article 10:
What did section 12 of The Human Rights Act consist of
States courts must regard importance to article 10 when granting ‘relief’. For example a court should not impose an injunction without respondent being notified.
Article 11:
What does this article cover?
Freedom of assembly and association
Article 11:
define freedom f assebely and association
you are able to gather and associate with other people for peaceful reasons
Article 11:
What is the difference between ‘the freedom to come together’ and ‘the freedom to come together with individuals of their choosing’
‘The freedom to come togetehr with individuals of their choosing’ basically means no one can force you to join any trade unions or political parties etc…
Article 11:
What inspired for this right to be bron?
the restrictions the Nazi Party put in place to prevent associations coming together to try and overthrough them
Article 11:
Define ‘Assembly’
citizens can gather with other citizens as a group for lawful reasons
Article 11:
Define ‘Association’
citizens can form lawful groups, organisations or clubs for their own interest
Article 11:
Case that illustrates this article
ASLEF v UK (2007)
Article 11:
ASLEF v UK (2007) facts
Trade union expelled one of its members for being an activist for the Brittish Nationalist Party. Memebr took them to employment tribunal and was successfully readmitted.
Article 11:
ASLEF v UK (2007) held
European Court of Human Rights states there was a violation of article 11: ‘just as a person has a right to join a union, the union has a right to not admit a person for legitimate reasons’
Article 11:
ASLEF v UK (2007) point of law
The members views were at odd with the unions views
Article 11(2):
When are the justifiable exceptions where article 11 can be restricted
a) benefits national security or public safety
b) prevents disorder or crime
c) protects health and morals of citizens
d) protects rights and freedoms of others
Article 11(2):
what are some of the ways these restrictions can be put into place
By a curfew, the countries armed forces, police etc…
Enfrocement of rights and freedoms:
How can rights in freedoms be enforced in the UK?
And what are the exceptions of these enforcements
Enforced in the UK courts
- unless restrictions apply
Enfrocement of rights and freedoms:
What will happen when domestic law cannot provide a solution to Human Rights issues
Issue will be taken up with the European Court of Human Rights.
Claims before the European Court of Human Rights:
Describe the features of the European Court of Human Rights.
Based in Starsbourg France
- Judges represent each member of states
- Judges are independent, don’t represent their countries interests
- Panel of 7 Judges
Claims before the European Court of Human Rights
What happens when a claim is brought to the European Court of Human Rights
Panel of 3 judges hear the cases’ merits, if they believe cases has an arguement, then it’s taken to panel of 7 judges.
Claims before the European Court of Human Rights:
How and when can citizens bring a claim to the ECoHR
When citizens exhaust all means of redress for their complaints in domestic courts, petetion can be made to the European Commission of Human Rights.
Claims before the European Court of Human Rights
Role of the European Commision of Human Rights.
Hear merits of the case before giving the petetion to the full court.
- Will attempt to resolve it with member states’ government in amicable manner before sending case to court
Claims before the European Court of Human Rights
What is the time period that a petittion can be made
6 months after redress has been denied from domestic court at the top of the hierachy of their respective court structure.
- In UK this would be the Supreme Court
Claims before the European Court of Human Rights
How were rights and freedoms protected in UK laws before the Human Rights Act 1998
UK, statute and common law all protected some rights and freedoms from the Convention befroe the introduction of the 1998 act.
Claims before the European Court of Human Rights
Before the enactment of the Human Rights Act 1998, how were some rights and freedoms protected in the UK.
Protected through UK, common and statute law
Claims before the European Court of Human Rights:
Under the Human Rights Act 1998, when can citizens bring a claim to domestic courts
In arguement that a public body has breached their rights and freedoms. If court agrees, remedy issued
Claims before the European Court of Human Rights
What is a case that demonstrates conflict between domestic law and the Convention
H v Mental Health Review Tribunal (2001)
Claims before the European Court of Human Rights
Facts of H v Mental Health Review Tribunal (2001)
Court of Appeal held that certain subsection of s72(1) of mental health act were incompatible with Article 5(1) and 5(4) of the Convention.
- Court could only declare incompatibility, not change the law
Effects of decisions on states and claimants
What are the effetcs of the decisons of the European Court of Human Rights on states?
find state in breach and award compensation to a claimant
- cannot make state change laws
- relies on state to voluntarily change the laws
Effects of decisions on states and claimants
What are the effects of the decisions of the European Court of Human Rights on claimants
Most appropriate decision is to award compensation, but this isn’t guaranteed.
- courts can’t force states to compensate
Judicial Review
define ‘judicial review’
process that allows citizens to challenge certain decision of the government or other public bodies, if ‘reasonable’
Judicial Review
Outline the process of judicial review
Reinforces the canon that everyone is equal beneath the law, like public bodies and their officials
Judicial Review
What does judicial review challenge
Decisions in courts
Judicial Review
Where is judicial review carried out
The Queens Bench Division of the High Court
Judicial Review
What are the 3 main principles of the judicial review
- Illigality
- Irrationality
- Irregularity
Judicial Review
Define ‘Illigality’
decisions of public body includes a mistake of law, or if public body has gone beyond what the law allows
Judicial Review
Define ‘Irrationality’
Decision of public body is so unreasonable, no reasonable public body would make the same decision
Judicial Review
Define ‘Irregularity’
decision of public body has not followed a correct procedure
Judicial Review
What are the 3 different remedies for Judicial Review, other than compensation or injunction
- Prohibition
- Certiorari
- Mandamus
Judicial Review
Define ‘Prohibition’
preventspublic body from continuing with the decision and preventing it from happening again
Judicial Review
Define ‘Certiorari’
Allows High Court to quash decision made by public body
Judicial Review
Define ‘Mandamus’
Forces public body to do something,
example: hearing a case they refused to hear
Judicial Review
Case example of Judicial Review
Council of Civil Service Unions vs Minister for the Civil Service (1984)
Judicial review
Facts of Council of Civil Service Unions v Minister for the Civil Service (1984)
All employees of the Governemnt Communication HQ were prohibited from joining any trade unions. Decision justified by potential threat to national security
Judicial Review
Held in Council of Civil Service Unions v Minister of Civil Service (1984)
Lords stated ‘where prerogative power was delegated from the monarch, the exercise of that power could be amendable vio Judicial Review’
- therefore ministers decision could still be reviewed
