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
Measures can be taken to limit the freedom of expression in the interests of what:
- National security, public safety and prevention of crime and disorder
- Protection of health and morals
- Protection of reputation or rights of others
- Maintaining authority and impartiality of judiciary
- Prevention of disclosure of information in confidence
- Licensing and broadcasting enterprises
The degree of protection on freedom of expression is dependent on what ?
the subject matter of the expression
Article 9 split into 9(1) and 9(2)
what are the differences between these?
section 1 protects manifestations of religion from ineterfence
section 2 provides justification for when interference may happen by law
For what reasons may the law intervene with freedom of religion, thought and conscience?
- necessary in a democratic society
- interests of public safety
- protection of public order
- protection of health and morals
- protection of rights and freedoms of others
Will Brexit impact the protection of our human rights in the UK?
Not really…
The ECHR protects human rights in countries belonging to the council of Europe, different to the EU. The UK will still be signed up to the ECHR when it leave. And rights under the ECHR are protected in the HRA 1998, not likely to be repealed when we leave.
White Paper on Great Repeal Bill 2017 provides some clarity on how equality and human right concerns will be addressed
For example:
- EU law will be ‘preserved wherever possible’
- Workers rights arising from EU law will still be available in the UK
- Current CJEU case law will be preserved
Common law effect on Human Rights??
Brexit will not effect
Human Rights are already in our common law and so regardless of Brexit they will still remain
“Common law is a source of fundamental human rights”
Pro-life Alliance v BBC & Others
Facts
Pro-life produced a party election broadcast for 2001 general elections containing graphic images of an abortion. The BBC refused to show it on the grounds that it did not comply with guidelines and ITC programme regarding ‘taste and decency’.
Pro-life applied for Judicial Review
Pro-life Alliance v BBC & Others
Issue
Whether the BBC were wrong to refuse the broadcast on the grounds of offensive material
Pro-life Alliance v BBC & Others
Decision
Dissenting judgment - Lord Scott
BBC appealed to the House of Lords
Majority upheld the ban
- Abortions are legal and should not be accompanied by additional distress
- Weight must be given to the offence caused to women who chose to have abortions
Pro-life Alliance v BBC & Others
Dissenting judgment - Lord Scott
“The public in a mature democracy are not entitled to be offended by the broadcasting of such programme”
He claimed that a reasonable decision maker paying due regard to Article 10 could not conclude that the broadcast should be rejected as offensive to public feeling
Lee v Ashers Baking Company
Facts
Mr Lee wanted a cake with the words “support gay marriage”
Lee v Ashers Baking Company
Issue
Whether it is unlawful, based on sexual orientation or religious belief, for the bakery not to make the cake for Mr Lee
Lee v Ashers Baking Company
Decision
It was not direct discrimination on grounds of sexual orientation or political opinion for the owners of a bakery to refuse to bake a cake with ‘support gay marriage’ on it, when doing so is contrary to their sincere religious belief
Lee v Ashers Baking Company
Discrimination on grounds of sexual orientation
No discrimination = the bakers objection was to the message and not the man
Court emphasises that refusing to provide a service i.e. accommodation (Bull v Hall) based on sexual orientation or a protected characteristic would be discrimination which is unacceptable
Lee v Ashers Baking Company
Discrimination on grounds of political beliefs
No discrimination = Lady Hale suggests that the bakery would have served him in other ways, just not in this way
However, there is possibility for a link between the message and the man …
