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How is the European convention on human rights kept up to date?
Using protocols which member states can decide to adopt them or not when they come in. The text of the convention doesn’t actually change as it was a treaty.
What rights does the convention give?
Civil and political rights. Article 2 - the right to life; article 5 - the right to liberty; article 6 - fair trial rights; article 10 - freedom of expression.
How can you seek redress for breach of convention rights?
States can use the mechanisms set out in article 33 and individuals article 34.
Do you have to be a citizen of the state you’re complaining about?
No, article 1 says the countries who sign up to it guarantee the rights to everyone in their jurisdiction.
Who hears complaints on the ECHR?
The court of human rights.
Give a case example of one member state bringing an action against another member state under the ECHR?
Ireland v UK - suspected IRA terrorists were arrested and detained and interrogation techniques were used on them. Ireland claimed the techniques amounted to torture which is a breach of article 3 of the convention. Surprisingly the court said it was not however the treatment was inhumane and degrading.
Following protocol 14 what is the admissibility criteria?
Applications cannot be anonymous
Applications will be rejected if the applicant has not exhausted all available domestic remedies first. You cannot go straight to the ECHR.
Applications must be made within 6 months of he final domestic decision on the matter.
The court must establish whether the applicant themselves has been the victim of the violation. This is part of the filtering process. Applicants must have also suffered a serious disadvantage as a result of one of the breaches of their human rights. Again to filter claims.
When the court has the facts of the case what is its first course of action?
It tries to reach a friendly settlement (trying to get the parties to settle their differences and reach a resolution), if this is not possible the court will conduct a full hearing and decide whether there has been a violation or not.
What is the remedy if a violation of the ECHR is found?
Satisfaction. This could be a number of things depending on the circumstances e.g. Damages or a declaration the convention has been breached.
Is international law binding in domestic courts?
No, unless it has been incorporated into domestic law through an act of parliament.
Where does a citizen of the UK go if they want to make a legal claim relying on the ECHR?
They cannot go to domestic courts, they must go to the European Court of Human Rights.
What are positive rights?
Countries with a written constitution usually have a bill of rights which expressly sets out the rights individuals have which the state promises them.
Does the UK have positive rights?
We have civil liberties which means we have the freedom to do something rather than the right e.g. A can do whatever he wants as long as he doesn’t breach some kind of law.
What does the human rights act 1998 do?
It sets out positive rights governing this constitutional relationship between the individual and the state.
Why did it take so long for the UK to incorporate the ECHR into domestic law?
Due to parliamentary supremacy, the law cannot be entrenched as one parliament cannot bind its successors.
What is the white paper, rights brought home about?
The labour government were trying to bring the rights from the European court of human rights into domestic law so citizens could seek redress from domestic courts, this turned into the human rights act 1998.
How does the human rights act 1998 overcome the hurdle of parliamentary supremacy?
It makes it unlawful for public authorities (the state) to act in a manner inconsistent with the convention rights; unless an act of parliament says a particular activity or behaviour can take place, it can’t be overridden, parliamentary supremacy is therefore maintained.
What does s2 of the HRA deal with?
The interpretation of human rights.
What is the purpose of s2 of the HRA?
For the case law, decisions etc of the European court of human rights to be incorporated into the UKs case law.
What is the issue caused with s2 HRA and parliamentary supremacy?
If UK courts are bound by the decisions of the ECHR then UK Parliament is not supreme. However, it says ‘must take into account’ not follow, in order to maintain parliamentary supremacy.
In the case of Alconbury what was said about ‘take into account’?
Lord Slynn said unless there are special circumstances, UK courts should follow the decisions of the ECHR. Lord Hoffman said that the UK is not bound by the decisions of the ECHR and if their decision conflicts somewhat with the British constitution then we shouldn’t have to follow it.
What are the facts of the AF case 2009?
It concerned close evidence in terrorism cases and there was an argument about the level of information that had to be given to a person who was subject to a control order in order for them to be able to counter allegations made against them. Before this case the UK said it did not breach article 6 however the grand chamber (highest chamber) of the ECHR said it would be in breach of article 6.
What was lord hoffman’s view on the opinion of the ECHR in the AF case?
That it was wrong, and although s2 says he doesn’t have to follow it, he feels bound by it because we signed up to the convention itself. He felt it would have a massive impact on the control order regime within the UK.
What are the facts of the Horncastle case?
It was an argument regarding criminal convictions that were based solely or largely on hearsay evidence. Horncastle claimed it breached article 6, right to a fair trial, the ECHR agreed however the UK disagreed and didn’t follow. It was a chamber decision and not a grand chamber decision so should be contrasted with the AF case.
