Human Rights, The ECHR And The ECtHR

Question 1

Who set up the ECHR and why was it set up?
The UK and the ECHR
Types of rights

Answer 1

The European Convention on Human Rights (ECHR) have fundamental rights for everyone.
This was drafted by the Council of Europe so that human rights were upheld after World War ll and never to be repeated.
The UK signed the ECHR but did not incorporate convention of rights into domestic law until Human Rights Act 1998.
ECHR contains fundamental rights as freedoms.
E.g.
Absolute - Article 3 (torture)
Limited - Article 5 (liberty)
Qualified - Article 10 (expression)

Question 2

UK and residual rights

Answer 2

Rights are traditionally residual.
Not allowed to do - Set out by law
Allowed to do - Not set out by law

In Malone:
Telephone tapped by police.
Claimed it removed right to privacy.
No law forbidding it; failed in domestic court.

Residual freedoms are easy to remove and difficult to enforce.

Question 3

What is individual petition and what does it allow you to do now?

Answer 3

Individual petition = 1966
Allowed UK citizens to brimg human rights cases to ECtHR.
Only when all remedies in domestic courts are exhausted.

Question 4

Before 2000 …

Answer 4

Could not generally argue breach of rights under ECHR before domestic courts.
Confirmed in Brind where the judge held that the ECHR is not a source of domestic law and to hold otherwise it would amount to the incorporation of the rights in the ECHR ‘through the back door’.

Question 5

Decisions in the ECtHR

Answer 5

No absolute binding force and adverse ruling against the UK does not always imorove the protection of human rights.
In the case of Malone v the UK it was ruled that English and Welsh law breached article 8 in which the government explicitly allowed.
ECtHR judgement resulted in less protection for human rights.

However, it declared that the UK illegally removed an individual’s human rights.
This would embarrass the UK and Parliament could alter the law.
E.g. Times v the UK (Thalidomide case) passed the Contempt of Court Act 1981 deciding domestic common law illegally removed an individual’s right to freedom of expression under article 10.

Question 6

Part 1 conclusion

Answer 6

The ECHR protected human rights to a lesser extent as convention rights were not incorporated into English and Welsh law.
Convention rights could not be argued directly in English and Welsh courts.
Cases could only be taken to the ECtHR where all domestic remedies have been exhausted.
Time consuming and costly.

Question 7

Human Rights Act 1998

Answer 7

Parliament passed Human Rights Act 1998 to ‘bring rights home’.
Effectively incorporates most convention rights into domestic law.
Allows citizens to rely on convention rights and freedoms directly in domestic courts for the first time.
Residual freedoms to some extent are positive rights: individuals can claim conventionrights in domestic courts.
Rights are harder to remove as the state must justify their removal.

Question 8

Section 7

Answer 8

Allows individuals to take the case to a national courg if they believe their rights have been removed.

Question 9

Section 19 and 19(1)(B)

Answer 9

Further protection ensured by s.19 setting out that all legislation passed after the Human Rights Act came into force should have a statement of compatibility.
Ensures that ministers have human rights issues in mind when introducing new laws and therefore offering protection.

However, under s.19(1)(B) parliament can pass a law even though the minister cannot declare the bill compatible.
E.g. Communications Bill 2003
Problem = Proposed laws do not always have to be compliant with human rights, therefore undermining the protection.

Question 10

Section 4

Answer 10

Judges can issue a declaration of incompatibility, although it is a measure of last resort as set out in R v A.
Judges apply the law to the case but when declaration of incompatibility is issued it usually results in the law being amended by Parliament either through a) full parliamentry process or b) through using s.10 and the fast track procedure.
E.g. Belmarsh Detainees (A and Others) - House of Lords declared that continued detention of suspected foreign terrorists was disproportionate and issued a declaration of incompatibility, leading to the las being changed.
E.g. Bellinger v Bellinger - House of Lords issued a declaration of incompatibility against the law preventing transsexuals marrying due to article 8. Led to the Gender Recognition Act 2004.

Question 11

Section 4 and Section 10(2)

Answer 11

Appears to protect human rights.
Criticised as judges are not allowed to strike down offending laws as they can do in America.
S.10(2) only requires a minister to initiate a change to the law when there is a ‘compelling reason’. Declaration of incompatibility not necessarily a compelling reason.
When declared incompatible, it may not always be changed quickly or at all.
Could be a law which is not amended and continues to remove human rights.

Does not offer comprehensive protection to human rights.
However, Parliament has not tovdate refused to respond to a declaration of incompatibility, so concerns could be unjustified in practice.

Question 12

Section 3

Answer 12

Judges must interpret the law compatibly with convention ‘as far as it is possible to do so’.
R v A - Judge effectively rewrote s.41 of the Youth Justice and Criminal Evidence Act 1999 to allow courts to admit evidence of a complainant’s previous sexual history to ensure a fair trial.
Re W and B - Court held that if part of the law that illegally removes human rights is fundamental then the judge cannot alter it and a declaration of incompatibility should be issued under s.4 and it be up to parliament to changw the law.
Anderson - Home secretary’s role in the setting of triffs for prisoners serving life sentences illustrates a law that was held to be fundamental and so a declaration of incompatibility under s.4 was made, rather than using s.3 the current approach set out in Ghaidan v Godin-Mendoza.

Evaluation:
Appears to offer good protection to individual’s human rights as judges have been shown to adopt a flexible approach to interpret laws so that they are compliant.
However, it is argued that the flexibility is giving judges a greater role than Parliament intended and in effect, judges are making the laws which is not in accordance with the doctorine of parliamentry sovereignty.

Question 13

Section 6

Answer 13

A person can sue a lpublic authority who illegally removes human rights.
Makes it unlawful for public authorities to act in a way which is incompatible with the ECHR.
Public authority = Courts or tribunals and ‘any person certain of whose functions are functions of a public nature’. Covers core public authorities e.g. the NHS but alos hybrid public authorities e.g. a private prison.

Implied horizontal direct effect has been created by the courts to allow an individiual to sue a private body for removing human rights.
Douglas and James v Hello Ltd - Hello magazine was successfully sued under the law of breach of confidence for publishing the celebrities’ wedding photographs.
Concept extends the protection of human righgs as against private bodies too in certain situations.

Question 14

Section 2

Answer 14

Domestic courts must ‘take into account’ the precedents of thr ECtHR.
Precedents are strongly persuasive but mot binding.
If precedent is clear and no domestic precedent, then it should be followed (Ullah).
May not be followed when there is a conflicting domestic precedemt (Leeds CC v Price)
UK precedent used instead unless UK precedent is clearly unlawful considering the HRA.

Creates lots of difficulties.
E.g. Alconbury - Showed that ECtHR precedents are just persuasive and not binding, meaning people may be forced to go to Strasbourg to get what they want.
Vulnerable individuals who have their human rights removed may not be able to take their case to the ECtHR which is unfair and does not protect them of their human rights.

Question 15

Criticism 1

Answer 15

It is an ordinary act, and so can be removed anytime by Parliament.
Protection of individual’s human rights would be diminished and revert to the position prior to October 2000, with individual’s not being able to claim in national courts.

Question 16

Criticism 2

Answer 16

A claim can only be brought by a victim; a victim is a person directly affected by the alleged infringement.
Can also include companies as well as individuals and relatives where the victim has passed away.
Pressure groups and trade unions cannot bring action unless they are directly affected by the unlawful removal of human rights.
Problem for individuals who are unable or unwilling to take claims.

Question 17

Criticism 3

Answer 17

Under s.6 protection is limited to claims against public and hybrid bodies.
Greater clarity in definition of public bodies - in particular with councils delegating many public services to private bodies.
Lack of clarity may affect protection.
Private residential care home held to br within definition of public/ hybrid body in YL v Birmingham CC.
Parliament passed a law which effectively reverses this decision, but it is an illustration of the compexitids and uncertainty surrounding the interpretation of s.6 whichbmay undermine protection of human rights.

Question 18

Criticism 4

Answer 18

Formulation of rights which allows the state the right to interfere lawfully with some human rights.
Qualified rights are the weakest and can be removed lawfully.
State must prove that 1) removal is set down in law, 2) removal fulfills a legitamate aim and 3) be necessary are proportionate.
Most rights within HRA are qualified rights.
E.g. right to privacy and freedom of expression.
Formulation of rights adversely affects the protection of human rights.

Question 19

British Bill of Rights

Answer 19

Protect the fundamental freedoms of individuals.
Entrenched = Not easily removed or amended by subsequent parliaments, unlike the current HRA.
Former coalition government set up a Bill of Rights commission to explore the possibility of one. December 2012 = Cost of £700,000.
Failure to reach unanimous conclusion but seven commissioners recommended it.
Belief that people do not accept the HRA because it is not ‘British enough’.
Re-writing the rights to reflect the historic values of Britain will provide ownership and a better understanding and acceptance of human rights.

Question 20

Conservative party

Answer 20

2015 = Conservative party manifesto set out proposal and anticipated that it would be implememted.
Brexit referendum = Bill of Rights put on hold until UK’s exit from EU was concluded.
After Brexit = Conservative government moving away from plans.
December 2020 = Independent Human Rights Act Review announced to examine how HRA is ‘working in practice and whether any change is needed. Reported back in 2021.

Question 21

Limitations and criticisms of HRA

Answer 21

ECtHR decision to block the deportation of the radical Muslim cleric, Abu Qatada, in the case of Othman (Abu Qatada) v UK (2012).
Repealling the HRA would not mecessarily mean leaving the Council of Europe and the protection of the ECHR.

Question 22

Commission

Answer 22

Conservative- LibDem coalition established commission.
Commission published final report in 2012 titled ’A UK Bill of Rights? The Choice Before Us’.
Findings largely inconclusive, majority of members supported Bill of Rights.
Main reason = Lack of public support for the HRA.
Featured in Conservatives’ 2015 election manifesto but suspended until Brexit concluded.
14th Decembef 2921 = Publication of Independent Report on the Human Rights Act by the Panel of the Independent Human Righgs Act Review (IHRAR).
Own consultation, Human Rights Act Reform: a Modern Bill of Rights’.

Question 23

IHRAR

Answer 23

Established in December 2020.
Looked at 1) relationship between domestic courts in the UK and the European Court of Human Rights, and 2) the impact that the Human Rights Act has had on the relationship betwedn the Judiciary, the Government and, Parliament.
Report summarises Panel’s findings and how the Human Rights Act 1) works in practice, 2) who it protects, 3) how it is used and 4) make suggestions of how it should work in the future.
Government’s consultation sets out plans to replace Human Rights Act with a Bill of Rights.
Further than IHRAR recommended.

Question 24

Government

Answer 24

Wednesday 22nd June 2022 = Introduced Bill of Rights to parliament.
If passed, it would repeal the Human Rights Act 1998.
Passage suspended at time of writing.
Provided indication of whag could be different if it were to be replaced.

Question 25

What could remain the same with a British Bill of Rights?

Answer 25

1. UK will remain party to the ECHR and be obliged under Article 1 to secure everyone within its jurisdiction the rights and freedoms in Section 1 of the convention.
2. Clause 2 confirms that the Bill gives effect to the same set of Convention rights rights as the HRA. Arguably, in different and in some cases lesser ways than the HRA.
3. Declarations of incompatibility - Will continue. Policy of the Bill signifies a greater tolerence for divergence from the ECHR and possibly less willingness for ministers to make amendments.
4. Duty of public authorities - Clause 12 of the Bill mirrors Section 6 of the HRA and requires public authorities to act compatibly with Convention rights.

Question 26

Evaluation

Answer 26

Although Dominic Raab asserted that the Bill enhances human righgs protection, it, to some exteng, preserves it but arguably diminishes the level and forms of protection when compared to the position under the HRA.

Question 27

What will be changing if the Bill is passed?

Answer 27

1. Section 3 of HRA - No similar provision. No requirement for judges to interpret domestic legislation compatibly with human rights. Takes back parliamentry sovereignty. Issues more declarations of incompatibility as jjdges unabke to ‘correct’ offending legislation first-hand. Clause 26 of Bill to remedy offending legislation. UK remains bound to remove incompatibilities to ensure Article 1 ECHR obligation is fulfilled and so arguably the removak of S.3 means politicians frequently having to make these decisions or risk litigation and adverse judgements in thr ECtHR.
2. Living instrument - Seeks to ensure that domestic courts interpret convention rights in more of a literal, narrow way. Impede the creative or generous interpretations of rights under the ECHR. Will force courts to focus on the original meaning of the text of the 1950s Convention.
3. Section 2 HRA - UK courts are required to take into account ECtHR jurisprudence. Rulings are strongly persuasive but not binding. Section 2 is replaced by clause 3 of the bill saying that the UK Supreme Court is the ultimate judicial authority on questions arising under domestic law in connection with convention rights.
4. Challenges to deportation under Article 8 - Higher threshold will be set for foreign national offenders seeking to challenge deportations based on article 8 of the bill: the right to a private life. The offender will have to show that deportation would result in manifest harm to a qualified member of the offender’s family that is so extreme thag the harm would override the paramount public interest in removing the offender from the UK. This would likely be viewed favorably in the ‘court of public opinion’.
5. A new permission stage for human rights challenges - A victim of a human rights violation to convince the court that they have suffered a significant disadvantage because of the violation. Significant barrier to human rights challenges. Remains unlawful for public authority to act in compatibly with convention rights. How will that be known if a challenge cannot be made?

Question 28

Evaluation

Answer 28

Weakening of human rights protection. Though Section 3 was rarely used its removal could generate an increase in declarations of incompatibility. If a challenge is difficult to make because of the new permission stage this becomes irrelevant and the offending legislation remains. The higher threshold of deporting foreign nationals will no doubt appease the right wing conservatives. Could undermine the protection afforded by article 8.

Question 29

Other changes

Answer 29

1. Greater weight given to article 8 (freedom of expression).
   Clause 4 of the bill directs the court to give ‘great weight’ to the importance of freedom of expression but not when there is an exercise of state power in criminal proceedings. Though this strengthens the Article 10 protection and provides greater clarity on the balancing of, for example, article 8 and article 10, it is noticeable that this ‘weight’ afforded to article 10 is not valued when used against the state. Arguably this is aimed at avoiding rules like the ‘Colston Four’. If this clause is enacted unchanged it will expand state power and will impair the ability to hold the government to account.
2. A move away from positive obligations.
   Clause 5 prevents UK courts from interpreting convention rights as imposing positive obligations (i.e. it prevents convention rights from being interpreted in a way that requires public authorities (or others) to perform positive acts). Again this change reflects the desire of the government to restrict the interpretation of conventional rights to more literal conservative readings, again eroding the ‘living instrument’ sentiment with which the convention was passed and constraining its ability to adapt to social change. Moreover, in relation to convention rights but have already been interpreted as imposing positive obligations, UK courts are strongly discouraged by clause 5 from continuing to interpret them in that way. Depending on how seriously UK courts take this provision, it may result in further divergence from ECtHR case law and their forces are breaches by the UK of its treaty obligations.
3. Henry VIII clause - Clause 40 of the bill provides the Lord Chancellor (as Secretary of State for Justice) with the (arguably judicial) power to pass delegated legislation to ‘amend or modify any primary legislation or subordinate legislation so as to preserve or restore (to any extent) the relevant judgement of the court’. This is arguably a step back from the CRA 2005 which removed the Lord transfer as head of the judiciary and from his judicial role. The power conferred by clause 40 refers to what the Lord Chancellor used to do as a judge, and confers a judicial power on the Lord Chancellor, thus diminishing the separation of powers in the UK.

Question 30

Further potential problems with the Bill of Rights

Answer 30

1. The Good Friday Agreement includes reference to the HRA and repeal of the script undermine the Northern Ireland peace process.
2. Devolution settlements (e.g. for the Scottish parliament) include reference to the ECHR.

Question 31

Part 3 conclusion

Answer 31

On the one hand, the bill makes sense from the government (political) perspective in the sense that it will make it more difficult to bring domestic human rights claims, especially those viewed by the court of public opinion as ‘undeserving’. In addition it asserts the position of the Supreme Court as the ‘ultimate authority’ and limits its subordination to Strasbourg. Legally, however, the bill diminishes human rights protection and, in some ways, it’s alignment with the rule of law is questionable. Ultimately, the bill makes it much more difficult for people to enforce the human rights. More cases will go to Strasbourg and therefore domestic human rights protection is weaker than the present position under the HRA. Devolution settlement of the Good Friday Agreement continue to pose difficulties.

Question 32

Conclusion

Answer 32

To conclude, before the HRA, individuals had some protection of human rights in the form of individual petition to the ECtHR but this was, at times ineffective as it was time-consuming and costly. When the HRA was passed many of the convention rights were incorporated into domestic law and individuals were offered stronger protection through positive rights. The various sections of the act of improve protection such as section 7, section 3 and section 4. It could be argued that the UK should not introduce a bill of rights and should retain the HRA as having a Bill of Rights will be difficult to amend to fit society’s changing needs. The HRA has indeed ‘brought rights home’ and ensured the protection of individuals’ rights.