Human Rights Flashcards
What is the European Convention of Human Rights?
It was a treaty made by countries who signed it, agreeing to give their citizens the basic rights contained within it. The treaty was signed in 1950 and ratified in 1951, it became binding in 1953. It came about due to the recognition that many of the horrors of the Second World War were inflicted on citizens because they’re human rights had not been protected. It was originally created by the Council of Europe but now 45 countries have signed the ECHR. Any citizens of a state that has signed the ECHR can take their case to the European Court of Human Rights in Strasbourg.
Human rights in the UK?
Most democratic countries outline the rights of their citizens in their constitutions, the UK doesn’t have a written constitutions but concepts of rights and civil liberties have existed in the UK for hundreds of years through long standing customs and practice. Human rights have more recently been protected by the Human Rights Act 1998, this is an act of Parliament incorporated the European Convention of Human Rights (ECHR) into English law.
What is the HRA 1998?
The human rights act 1998 is an act of parliament which encompassed the ECHR into English law. It came into force on October 2000 and was created by Tony Blair’s Labour Governments Manifesto ‘bring rights home’. It allows use to seek redress for a breach of human rights in any British court.
What is the main way that the HRA has had an impact on the way judges interpret statutes?
Through the main sections of the HRA and what they say.
What does section 2 of the HRA say?
‘Judges must take into account any relevant jurisprudence’, this requires the courts to take into account any relevant judgements from the European Court of human rights but they are not bound by them. It has a weak obligation on judges.
What does section 3 of the HRA say?
It states that as far as it is possible to do so legislation must be read and given in effect in a way which is compatible with the ECHR. This was illustrated in Ghaidin V Godin-Mendoza 2004 relating to the right of succession of tenancy in homosexual relationships, it was found that not allowing succession of tenancy in homosexuals relationships was contrary to article 8, the right to privacy and article 4, the right to freedom for discrimination. However, section is shown to be ineffective in Re S (Children) appeal where the House of Lords rejected the use of it as it undermined a main feature of the Children’s Act 1989.
What does section 4 of the HRA say?
It states the the HRA has limitations, laws which are incompatible with human rights are still valid and judges cannot strike them out due to the upholding of the principle of Parliaments sovereignty. So instead judges can issue a declaration of incompatibility if they find the legislation to be incompatible with the HRA. This allows a minister to amend the law in a fast track process. In Wilson V First County Trust 2003, the House of Lords issued a declaration that a provision of the Consumer a Credit Act 1974 was incompatible with the convention. This has has a big impact on how judges interpret statues as it allows laws which are not compatible to be changed quickly.
What does section 6 of the HRA state?
It states that it is unlawful for public authorise to act in a way which is incompatible with the convention of rights. In Donaghue V Popular Housing and Regeneration Community Association 2001 it was held that ‘public authority’ could include a housing association as it was fulfilling the local authorities statutory obligation by providing accommodation. In YL V Birmingham City Council 2007, it held that a private body could be included in Section 6 if it performs functions of a public nature, however this is decided case by case. This means that judges must consider the conventional rights and act in a way which is compatible with them or face breaking the law.
What does section 7 of the HRA state?
It states that the convention of rights is now directly applicable in UK courts and there is no need to go to the European Court of Human Rights but it is possible for a last resort. This has had a big impact on judges as it allows them to make decisions which previously could only be made in the European Court of Human Rights.
What does section 19 of the HRA state?
It states that all bills must contain a written statement as to whether the bill is compatible with the convention. This has made interpreting statutes a lot easier for judges, as the statement helps them to decide easily and quickly if the statue is compatible with the convention.
What does the ECHR contain?
It contains rights known as articles. A few examples are; article 2 the right to life, article 3 the right to a fair trail, article 10 the right to freedom of expression and article 14 the rights are enjoyed free from discrimination. New rights were added in 1952 in Protocol 1, these include; article 1 the right to peaceful enjoyment of your possession, article 2 the right to education and article 3 the right to free elections by secure ballots. The rights in the conventions are not absolute rights, the articles contain exceptions as to when the rights can be withheld from us. The exceptions vary depending on the right but an example is if it is necessary to protect national security.
What’s the European Court of Human Rights?
The European Court of Human Rights were set up in 1959 in Strasbourg. It considers cases brought by individuals, organisations or states against countries bound by the ECHR. The court aims to protect civil and political rights of the continents citizens. The court will only hear a case when all the domestic legal avenues have been exhausted. Plaintiffs must show that they have been a direct victim of alleged violation and that they cannot bring cases against individuals or private bodies. The UK agreed to allow the UK citizens the right of individual petition to the European Court of Human Rights in 1996. Even after the passing of the HRA it is still possible for cases to be bought against the UK in the European Court of Human Rights.
An example of a judgement against the UK?
A V UK 1999, a 9 year old boy was beaten by his stepfather, the stepfather was prosecuted for the assault but was acquitted using the defence of reasonable chastisement. A a case was bought against the UK alleging that his human rights were infringed by allowing his stepfather to beat him. The European Court of Human Rights under Article 3 of no torture, inhuman and degrading treatment were infringed.
Arguments for human rights legislation?
- rights of all citizens have been strengthened by the HRA.
- even if the HRA was repealed by parliament the UK is still a signatory of the ECHR.
- it gives rights to all humans equally.
- the HRA avoids conflict between domestic and international law.
- the wrongdoer can be made to pay compensation in cases of human rights violations.
- it’s cheaper for a citizen to seek a remedy for a violations of rights under HRA.
- it’s more convenient and less time consuming to seek redress for human rights breaches in the UK as the HRA means that a citizen can take a case to any British court, previously it took 6 years to take a case to the European Court of Human Rights.
Arguments against human rights legislation?
- citizens enjoyed rights in many countries before the ECHR was created and the HRA is not entrenched and can be repealed at any time.
- countries are still allowed to stray from their obligations to carry out most rights in time of emergency.
- the HRA gives to much power to judges that must interpret it possible causing conflicts between parliament and the courts.
- the HRA should not apply to all as some people in society should not be entitled to all of their rights e.g. Convicted criminals.
- the ECHR was not drafted in the same way as a UK statute. EU legislation is drafted in wider terms, whereas UK statutes tend to be more detailed. This leads to variations in how it is interpreted in different EU countries.
