Human Rights(Y) Flashcards
The Human Rights Act 1998.
This Act incorporates the European Convention on Human Rights into British law and it makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. ‘Public authority’ is defined as including courts as well as any person who has some public functions. However, there is a major limitation since ‘public authority’ does not include either House of Parliament or a person exercising functions in connection with proceedings in parliament. This appears to mean that Parliament and Government Ministers may disregard the Conversion.
Effect of the Act on interpretation of the Law.
When judges are deciding cases in which a question about a Convention right has arisen, s2 of the Human Rights Act 1998 States that the court must take into account any judgement, decision, declaration or advisory opinion of the European Court of Human Rights instead of a conflicting decision by a UK court. This was seen in the case of Re Medicaments (No2), Director General of Fair Trading v Proprietary Association of Great Britain (2001) where the Court of Appeal refused to follow the decision of the House of Lords in R v Gough (1993) on the test for bias because it was slightly different to decisions of the Europeam Court of Human Rights. The Act also states that, so far it is possible, courts in England and Wales have to interpret legislation in a way that is compatible with the Convention. This can mean that the courts read the provisions of an act in a very broad way in order to make it comply with the European Convention.
The fact that judges are required to interpret legislation in a way which is compatible with the rights set out in the European Convention on Human Rights has had an impact on statutory interpretation in this country. In human rights cases a judge may interpret an Act in a very wide manner, in order to make the Act compatible with the rights given by the Convention.
Declarations of incompatibility.
Although courts have to read legislation and give it effect in a way which is compatible with the rights set out in the European Convection, the Act recognises that some legislation may be worded in such a way that it is impossible to give effect to the Convention. If this is so the court must apply the legislation as it stands but may make a declaration that the legislation is incompatible with the Convention.
Section 10 of the Act gives Government Ministers the power to amend the legislation to bring it into line with the Convention. Any such amendment must be approved by Parliament. This, of course, will not help the person who is complaining their rights have been breached, though it does mean that I’m the future other people’s rights will not be breached.
Government’s response to declarations of incapability.
After a declaration of incompatible the Government will usually change the law. However, there is no need for the Government to do so. In fact, if parliament wishes it can deliberately pass new legislation which contravenes the Convention. However, the Government has usually changed the law following such a declaration.
This can be done by an Act of Parliament or, where on,y a small part of an Act is incompatible it can be done by a remedial order. A remedial order is a statutory instrument which amends the incompatible provision in order to comply with the Convention rights. An example of the law being changed was following the House of Lords’ decision in A and another v Secretary of State for the Home Department (2004). In this case the House of Lords declared that the Anti-terrorism, Crime and Security Act (2001) was incompatible with the Convention. The Act allowed foreign nationals to be detained indefinitely without trial where there was suspicion that they were involved in terrorist activity, the Lords held trial where there was suspicion that they were involved in terrorist activity. The Lords held that this breached both Article 5 (the right to liberty) and Article 14 (no discrimination on basis of nationality). This decision forced the Government to change the law and release the detainees. However, they were not given full liberty but released on strict conditions.
Joint Committee on Human Rights.
There is a Joint Committee on Human Rights in Parliament which scrutinises all Government draft legislation and picks out those with significant human rights issues for further examination. It will then report on whether, in their view, that legislation is compatible with European Convention Rights. The Committee also looks at Government action to deal with breaches of human rights which have been identified by the courts. This includes looking at proposed remedial orders.
Bringing a case.
The Act provides that a person whose rights are violated by a public authority may bring proceedings against the authority. Where an individual establishes that one of their rights has been breached the court is able to make any order it considers just and appropriate. However, a court can on,y award damages if the court is satisfied that it is necessary ‘afford just satisfaction’. Decisions have been made on human rights in a number of different areas of law. Two main areas I’m which human rights points have been raised are criminal law and immigration law, but there have also been issues on many other areas, for example, housing law, planning law and consumer credit law,
Convention Rights: The right to life and liberty.
Article 2 of the Convention states that everyone’s right to life shall be protected by law, although it does recognise that States have the right to impose the death penalty for those convicted of certain crimes. Article 3 states that no one shall be tortured, or suffer inhuman or degrading treatment or punishment. The United Kingdom has been found to be in breach of this Article in respect of the way prisoners in Northern Ireland were treated during interrogation. Article 4 declares that slavery is not allowed.
Article 5 sets out that everyone has the right to liberty and that no one shall be deprived of his liberty, except where the law allows arrest or detention. Even in these cases, the arrested person has the right to be told of the reason for the detention. Article 5(4) provides that ‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his declaration shall be speedily decided by a court’. This includes those who have been given a custodial sentence, and in most cases this right is satisfied by the fact that there is the possibility of an appeal against conviction and/or sentence. However, the United Kingdom was held to be in breach of this article because the date of the release of young offenders convicted of murder used to be decided by the Home Secretary and not by a court.
Convention Rights: The right to a fair trail.
Article 5 is backed up by Article 6 which states that people have the right to fair and public hearing within. Reasonable time (this is so for both civil and criminal cases). On the reasonable time element the European Court of Human Rights in Darnell v United Kingdom (1993) held that the United Kingdom was in breach of the Article. The case involved a question of whether a doctor had been unfairly dismissed. The dismissal had taken place in 1984 and proceedings started soon afterwards, but the final decision of the Employment Appeal Tribunal on the case had not been made until 1993.
Article 7 States that no one shall be found guilty of a criminal offence if his act was not a crime at the time he committed it. This means that the law is not allowed to change retrospectively. However, I’m R v R (1991) a man was convicted of marital rape when the House of Lords overruled the previous precedent which had held it was not a crime. R challenged this decision I’m the European Court of Human Rights, but that court decided that there had been a breach of Article 7 because the law had changed in an earlier case to allow a man to be convicted of raping his wife when they were legally separated.
The right to privacy.
Article 8 States that every person has right to respect of his private and family life, his home and his correspondence. English law has given some protection to homes under the law of tort, and there is also protection of correspondence, nut prior to the Human Rights Act there was no general right in English law to privacy. In the past there have been many incidents where people with a high public profile, such as the Royal Family, sports personalities, film and television stars have suffered from media intrusion into their private lives.
Since the Human Rights Act has come into force, Courts in the United Kingdom have taken a more positive attitude towards the right to privacy. In Douglas and others v Hello! Ltd (2001) the Court of Appeal had to consider whether there was a breach of Article 8 when Hello! Magazine published unauthorised pictures of Michael Douglas and Catherine Zeta-Jones. The court stated that there was a right to privacy but it had to be balanced against the right to freedom of expression under Article 10. However, the court refused to make an injunction preventing Hello! From publishing the pictures. This refusal was mainly because Douglas and Zeta-Jones were prepared to have publicity of their wedding and had actually agreed that another magazine could publish pictures.
Other freedoms.
Under Article 9 everyone has the right to freedom of thought, conscience and religion, while Article 10 States that everyone has the right to freedom of expression (this is the principle of freedom of speech). Article 11 also states that people have the right to freedom of peaceful assembly, and the freedom of association with others. This right includes the freedom to join trade unions. Article 12 States that everyone has the right to marry. Article 14 says that all rights and freedoms should exist without any discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, national minority, property, birth or status.
European Court of Human Rights.
The European Court of Human Rights was established in 1959, in order to protect the rights set put on the European Convention on Human Rights. This court must not be confused with the European Court of Justice, which is one of the institutions of the European Union. The European court of Human Rights sits at Strasbourg and deals only with breaches of the European Convention on Human Rights.
Procedure. (Part one)
Member States can report another Member State to the court for apparent breaches of the Convention, though this has on,y happened on a handful of occasions. Individuals have the right to make an application to the Court. However, an application is only admissible if the alleged to have occurred. For example, in the case S and Marper v UK (2008).
Up to November 1998, there was a separate Commission on Human Rights which investigated the complaint and decided if the vase should go to the court. With an increase in cases, this became too slow a process, so the Commission was abolished and the court became larger. The court now has 47 judges (one for each Member State) and sits full-time in Strasbourg.
Procedure. (Part two)
Under the present system, individuals who feel that their rights have been breached by their State apply direct to the court. Administrators check each application to decide if it is admissible. If there is still doubt about admissibility, the case may then be sent to a Chamber of the Court, consisting of a committee of three judges, to decide if the complaint is admissible. If it decides that if is, the Government of the State concerned is asked for its comments. There is then the possibility of the State and the complaint coming to a friendly negotiated settlement, but if this does not occur, then the court will hear the case in full and give a judgement on it. As well as deciding whether a State has breached the Convention, the court has the power to award compensation or other ‘just satisfaction’ to a successful complainant.
Some cases may go straight to a a Chamber of seven judges to decide both the admissibility and the merits. In exceptionally important cases, a Grand Chamber of 17 judges will hear the case. Of the court upholds a complaint and rules against a State, that decision is final, but there is no method of forcing the Member a State to comply with that ruling. However, most States tent to accept the rulings.
Introduction.
Up to 1998 the United Kingdom did not have a Bill of aright a giving it’s citizens the right to certain basic freedoms. However, as early as 1950 the United Kingdom Government signed the European Convention on Human Rights. This Convention was drawn up after the second World War in order to try to protect people’s rights from the abuses that had been seen under Hitler’s rule of Germany, and followed the Universal Declaration on Human Rights made by General Assembly of the aunties Nations in 1948. The Convention in its Articles set out the rights and freedoms that the people of Europe are entitled to expect.
The Convention was adopted by the Council of Europe in 1950. The Council of Europe was formed in 1949 and is not part of the present European Union and is not part of the present European Union, but a separate international organisation - it has a bigger membership than the EuropeN Inion, covering most of European Countries. During the 1990s the membership has grown rapidly, with countries from Eastern Europe joining. There are now 47 Member States. Although the United Kingdom signed the Convention in 1950, it was not part of our law until October 1000 when the Human Rights Act 1998 came into effect.
S and Marper v UK (2008).
The applicant complained that their DNA samples were being retained indefinitely on the police database, even though they had not been found guilty of any offence. They took a case of judicial review of this, alleging breach of their right to privacy under Article 8. The case started in the High Court; there was then an appeal to the Court of Appeal and a further appeal to the House of Lords. The House of Lords ruled that there was no breach of Article 8. At this point the applicant had exhausted their rights within their legal system, so they then applied to the European Court of Human Rights. The application was admissible and the European Court of Human Rights ruled that there was a breach of Article 8 as keeping samples indefinitely was not a proportionate action where a defendant had not been charged or had been found not guilty.
