Human Rights/Freedom of Expression Flashcards
Article 9 of the ECHR:
Freedom of thought, conscience and religion: Everyone is free to hold a broad range of views, beliefs and thoughts, and to follow a religious faith. The right to manifest those beliefs may be limited only in specified circumstances.
Article 10 of the ECHR:
Freedom of expression: Everyone has the right to hold opinions and express their views on their own or in a group. This applies even if these views are unpopular or disturbing. This right can be restricted only in specified circumstances.
Where does the HRA come from?
The ECHR
When did the HRA come into force?
Given Royal Assent in 1998… but came into force in 2000
What was its aim?
To incorporate into UK law, the rights contained in the ECHR
Why did Tony Blairs labour government describe it as ‘bringing rights home’?
“By statue rights will be incorporated into the UK & it allows our people to access them in their national court”
Citizens now able to take any human rights complaints straight to British Courts, whereas previously these would have been heard in the ECHR
Pre HRA, what did we rely on in the UK?
The common law system … a pure liberties based approach: morally neutral examination of facts and so rights were no where near as comprehensive as they were in ECHR
Case law for the limited approach pre HRA?
Pure liberties approach
Smith and Grady v UK
Why would some argue that the HRA is not fully incorporated into the UK?
Parliamentary Sovereignty
Examples of how the HRA has protected peoples rights and freedoms in the UK?
1) Right to a fair trial
2) Protest rights
3) ‘Unlawful killings’ - Hillsborough disaster where 96 people died at a football match.. HRA protecting the ‘right to life’ was essential in uncovering the truth in the event, that the 96 deaths were not in fact ‘accidental’ but ‘unlawful’
What are the three branches of the gov in the UK and how does the HRA alter the balance of power between these three?
1) Judiciary (Court)
2) Legislative (Parliament)
3) Executive (Prime Minister, Cabinet)
A subtle, but undeniable shift in power from Parliament to judges
Why does a shift from Parliament to judges worry some?
By allowing judges to apply the convention in their own courts, Parliament has drawn them too closely into the political process
…this may lead to questions by the people, as to how they are appointed
…the political stance of judges would come under scrutiny, just as it does in America
What does Lord Chief Justice of England and Wales say about the shift in power to judges from Parliament?
That it will not politicise judges. They already have to decide difficult questions in court, often with political elements; they are used to it and now just have to do it more often
How has Parliament retained its sovereignty?
i.e. still hold the power over judges
Judges are told that “so far as it is possible, they must give effect to legislation compatible with ECHR, and if this is not possible, the Act still remains law. Judges still have no power to declare legislation unconstitutional, unlike Parliament, who do.
What 2 parts is Article 10 of ECHR split into?
1) The freedom of expression, without interference from public authority… no prevention of states requiring the licensing of broadcasting however (note: ProLife)
2) Where limitations are given: subject to restrictions when prescribed by law and are necessary in a democratic society
