Advanced Level in Law (A-Level prospectus) pre-legal studies in UK: Part 5 – Human Rights
Abstract: Modern human rights laws originate from agreements made by the international community in the immediate post Second World War years. The Universal Declaration on Human Rights 1948 is the first statement of these rights; it is a General Assembly Resolution and as such is not legally binding. These rights were brought into from as a regional instrument within the European Convention on Human Rights and Fundamental Freedoms 1950. These rights are legally binding by States that have ratified the Convention and in the present day can be enforced against governments of Member States of the Council of Europe by other states parties or by individuals within the jurisdiction of a Member State. The Human Rights Act 1998 illustrated a further commitment to human rights laws within the United Kingdom. It introduced the rights within the Convention into UK domestic law. This meant that complainants no longer need to take their case to the European Court on Human Rights to uphold their Convention rights, but could argue in a UK court that their human rights had been breached by government legislation. When a piece of legislation is challenged under human rights grounds the higher courts can either interpret the relevant law in accordance with the Convention right, or make a declaration of incompatibility if a provision was not capable of being interpreted in accordance with human rights guarantees. The Human Rights Act 1998 was introduced by the previous Labour government which was in power in the UK between 1997 and 2005. Since the Conservative party have taken power, both David Cameron and Teresa May have vowed to repeal the Human Rights Act 1998 and there has also been some discussion of withdrawing from the European Convention on Human Rights.
Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.
UK’s human rights law lays down the obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.
One of the great achievements is the creation of a comprehensive body of human rights law — a universal and internationally protected code to which all nations can subscribe and all people aspire. The UK has defined a broad range of internationally accepted rights, including civil, cultural, economic, political and social rights. It has also established mechanisms to promote and protect these rights and to assist states in carrying out their responsibilities.
The foundations of this body of law are the Charter of the United Nations and the Universal Declaration of Human Rights, adopted by the General Assembly in 1945 and 1948, respectively. Since then, the United Nations has gradually expanded human rights law to encompass specific standards for women, children, persons with disabilities, minorities and other vulnerable groups, who now possess rights that protect them from discrimination that had long been common in many societies.
5.1 Rules in Human Rights Law
We do not have a written constitution (like the USA, however we do work on the ‘Golden Principle’ which states that unless it is prohibited by law, we are able to do what we Like.
Freedom of Movement or Liberty
We are not allowed to be detained by the police/courts unless it is:
- Following a lawful arrest.
- On the order of a court while awaiting trial.
- A sentence of imprisonment after being found guilty of a crime.
- Under the Mental Health Acts.
If a person has been unlawfully detained, he may sue in the civil courts and claim damages for false imprisonment.
Where the person is still being detained and there is a special writ (court order) that can be obtained; this is the writ of habeas corpus. An application for this is made to the QBD of the High Court and its effect is order that the detained person be brought before the court immediately. It will be heard first that day and the court have to decide whether the detention is lawful or not.
Freedom of Speech
Defamation is a tort and anyone who has been defamed has the right to sue for damages. This protects people from having untrue statements made about them which could damage their reputation. Defamation can also be a crime if the statement is in a permanent form and likely to lead to a breach of the peace.
There are certain laws relating to films, theatres, videos and printed words such as the age ratings for films. The following statutes can apply:
- Cinematograph Acts 1909 and 1952
- Local Government Act 1972
- Theatre Act 1968
- Protection of Children Act 1978
- Video Recordings Act 1984
- Obscene Publications Act 1959–1964
- Criminal Justice and Public Order Act 1994
- Children and Young Persons (Harmful Publications) Act 1955
- Terrorism Act 2000
- Racial and Religious Hatred Act 2006
Publishing information that could put the security of the country at risk is forbidden. The Official Secrets Acts create various criminal offences which forbid disclosing information. There is also the crime of treason, which among other things, prevents broadcasting enemy propaganda in times of war. Another offence which restricts freedom of speech is sedition. A person saying or publishing material which would bring the Government into hatred or contempt or encourage a rebellion could be prosecuted for sedition, although in practice prosecutions are very rare.
Freedom to Protest or Demonstrate
Meetings in private places are generally allowed unless there is likely to be a crime. However, there are several restrictions on meetings in public places.
The Public Order Act 1986 creates 2 different offences about people using violent conduct in both public and private places. These are:
- Riot: this is committed when 12 or more people present together use or threaten violence for a common purpose which would cause a person of reasonable firmness to fear for his personal safety.
- Violent Disorder: this is committed if there are three or more persons present together using or threatening violence in such a way that a person of reasonable firmness would fear for his personal safety.
The Public Order Act 1986 makes several rules about processions. The organisers should give written notice to the local police of any intended procession at least 7 days before it is due to take place. They must give details of the venue, how long it is to last and the maximum number of people that may attend. However, annual processions such as local carnivals or May fairs are not included in this provision.
When a procession takes place, the most senior police officer present may impose any conditions necessary if he reasonably fears that serious public disorder is likely to result. So, the police can then redirect the proposed route of the procession.
Finally, the Chief Constable for any area can apply to the district council for an order banning all (or certain types of) procession within a local area for up to 3 months.
5.2 Theory in Human Rights
Human rights might be considered as a minimum level of protection that should be afforded in law by a government to its citizens. They are inherent to all humans and a manifestation of human dignity and they are inalienable.
Human rights differ from civil liberties in that the former are those considered to be universal and therefore apply to everyone. The latter are the rights and freedoms which are recognised by a particular country. For example, in England we are only permitted to have one spouse, whereas in other countries some men have many wives.
Civil liberties are therefore governed by the country’s own legal system which will create and enforce their laws using their own methods of implementation. For example, in the English Legal System we will pass an Act of Parliament. Many Civil liberties laws include human rights and a citizen will automatically be protected by these and would not have to earn the same. Governments are prevented from abusing their powers and restricted in their level of interference in peoples’ lives. The level of protection will differ from country to country depending on their circumstances and some countries have a more authoritarian stance to others.
Where Do Civil Liberties Come From?
The first historical event occurred in 1215 under the realm of King John of England. At that time medieval barons were rebelling against the supreme power of the throne and in order to placate them he signed what is known as the Magna Carta. This was a document which guaranteed certain basic levels of treatment and limited the power of the government to act without reason or abuse its power. It is considered by many people to be the blueprint for constitutions and bills of rights all over the world.
In 1787 the United States of America enacted the Bill of Rights and created the Constitution of the United States. Certain civil liberties were created to provide citizens and residents with various rights, including the right to speak or write freely, to assemble when they want, to practise the religion of their choice and to “bear arms”. These rights are frequently relied upon in the American courts.
Human Rights and Civil Liberties in the UK
In the UK we do not have a written constitution, however various civil liberties have evolved throughout time and we have an extensive common law history which recognises various freedoms, and these are upheld by our courts. Our common law has influenced many written constitutions around the world.
An old example of a common law right is the principle of “”Habeas corpus “”, This has been operational since at least the 14th Century and potentially before the Magna Carta. This rule provides that anyone who has been arrested, or deprived of their liberty, may request that they are presented before a judge to determine the legality of their detention.
Although we have an extensive common law to rely upon, the UK gave effect to the European Convention on Human Rights by implementing the Human Rights Act 1998 which came into force in 2000. The Act protects breach of a person’s rights by ‘public authorities’ and enables a case for a breach of the European Convention to be brought in the UK courts. Before this was implemented dissatisfied citizens would have to go to the European Court of Human Rights in Strasbourg.
In unit 1 we looked at judicial precedent and statutory interpretation. Following the Human Rights Act decisions of the European Court of Human Rights are binding on our judicial system and must therefore be considered when hearing cases. When interpreting legislation, judges must do so in a way which is compatible with the European Convention unless it is not possible to do so in which case, they would have to issue a ‘declaration of incompatibility’. The UK Act would not be invalid due to the declaration however an appeal can still be made to the European Court of Human Rights.
Civil Liberties Around the World
People will continue to argue for greater freedoms and the level and type of rights they campaign for will depend upon that country’s existing recognised rights. For example, in the UK same sex marriage became law in 2013, however other countries who are still very restrictive may still be seeking basic civil liberties such as the right of free speech.
5.3 Human Rights in International Law
The Second World War was outrageous and barbaric. This resulted in some countries getting together in 1950 to agree some fundamental human rights that all citizens should be given and if these were not forthcoming, help and protection would be given by the other countries. The agreements were put in writing in a document known as the European Convention on Human Rights and were signed by the participating countries. Britain signed this convention in 1951 and it came into force in 1953 when it bound all members who signed it. Further rights have since been added, these being the protocols at the end of the Convention.
5.4 Human Rights in the United Kingdom
5.4.1 Prior to the Human Rights Act 1998
England has two systems of aw, which run side by side.
- Domestic Legal System: This is our own legal system and made up of our common law and legislation (see module 1 for further information).
- International Law: law we must abide by having signed agreements with other countries around the world such as the European Convention of Human Rights. The English Courts do not have authority to enforce international laws. Therefore, unless they have passed their own Act of Parliament to bring the international law into the UK system, the only redress would be to seek assistance from the international law court. For example, before the Human Rights Act 1988 was brought in, citizens would have to go to the European Court of Human Rights.
Our system is known as ‘dualistic’. A contrast to this is ‘monistic’ which can be seen in France. International Treaties automatically become part of French Law without them needing to pass their own legislation due to the international treaties they have signed. They therefore only have one system.
The European Convention of Human Rights can be viewed here: http://osclinks.com/4414
5.4.2 After the enactment of the Human Rights Act 1998
European Convention on Human Rights
Although the Human Rights Act 1998 is now in force, up until the date of enactment, UK citizens were protected by the Convention as soon as it came into force in 1953.
In 1948 the General Assembly of the United Nations made the Universal Declaration on Human Rights and in 1950 the European Convention of Human Rights was adopted by the Council of Europe.
A separate international organisation was formed in 1949 known as the Council of Europe which is separate to the European Union. 20 out of 21 members in 1950 signed the European Convention on Human Rights. Several other European countries have joined the Council of Europe and signed the Convention bringing the number up to 50 countries that have signed the Convention.
The Convention sets out the rights and freedoms that the people of Europe should be entitled to:
Article 2 provides that everyone’s right to life shall be protected by law. Although the death penalty has been abolished in England, it is still used in other countries and the Articles do permit this for those convicted of certain crimes.
Article 3 prohibits torture. The UK were found to be in breach of this in respect of treatment of prisoners in Northern Ireland.
Article 4 declares that slavery is not allowed.
Article 5 states that everyone has the right to liberty, and they will not be deprived of this expect where the law allows arrest or detention.
Article 6 states that there is a right to a fair and public hearing within a reasonable time and this applies to both criminal and civil cases.
Article 7 states that no one shall be held guilty of a criminal offence if his act was not a crime at the time he did it.
Article 8 states that everyone has the right to respect for their private and family life.
Under Article 9 everyone has the right to freedom of thought, conscience and religion. In the UK individuals have the right to follow any religion they choose.
Article 10 states that everyone has the freedom of expression. This is the principle of freedom of speech and it is often regarded as being one of the key features of a democratic society.
Article 11 gives the right to freedom of peaceful assembly and to the freedom of association with others, including the right to join trade unions.
Article 12 states that everyone has the right to marry.
Article 13 gives the right for an ‘effective remedy’ before national authorities for violations of rights under the Convention.
Article 14 says that all these 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.
A Guide to the Human Rights Act 1998 (HRA 1998)
s2 HRA 1998 relates to the interpretation of Convention Rights.
s2(1) states the court or tribunal in determining a question arising in connection with a Convention Right must take account of any:
(a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights
(b) opinion of the Commission in any report under Article 31
© decision of the Commission under Articles 26 or 27(2)
(d) decision of the Committee of Ministers under Article 46
whenever given or made, insofar as, in the opinion of the Court/Tribunal, it is relevant to proceedings in which that question has arisen.
s2(2) states that evidence of any judgment, decision, declaration or opinion must
be given in accordance with the rules.
s2 requires domestic courts to have regard for the rulings of the European Court of
Human Rights together with the opinion and decisions of the Commission and the
Committee of Ministers. This does not mean that the court is bound to follow the European Court of Human Rights, rather draw broad principles which the Convention establishes.
s3 HRA 1998 relates to the interpretation of legislation.
s3(1) provides that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(a) to primary legislation and subordinate legislation whenever enacted.
(b) does not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and
(c ) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation or (disregarding the possibility of revocation) primary legislation prevents removal of the incompatibility.
s3 places courts under a duty to interpret legislation in a manner which is ECHR compliant. It imposes an interpretive obligation on courts to interpret in in line with Convention Rights but only as far as it is possible to do so. If it is unable to do so then under s4 a Declaration of Incompatibility must be made. s3 does not affect validity or continuing operation of any incompatible primary legislation, thus preserving the principle of Parliamentary Supremacy. It should be used as last resort.
The courts must distinguish between their interpretive obligation and legislating. I.e., they must not create new legislation.
An Incompatible or ‘Bad’ Law
Many of our laws were created before the Human Rights Act existed and, therefore, there are going to be times where they conflict, or the existing law does not comply with the Human Rights Act. If the courts and public authorities are not able to comply with the Human Rights Act they should try to interpret the law in accordance with the Convention Rights in order to comply with the same. If the law needs to be quickly amended the government can follow a “‘fast track procedure’” to amend the bad law.
Making ‘Good’ Law
Following the Human Rights Act, any laws which have been passed by Parliament since it was implemented must state whether it follows the Human Rights Act. This is called a ‘Statement of Compatibility’.
Who is Bound to Uphold these Rights?
s6(1) states “it is unlawful for any public authority to act in such a way that is incompatible with a right under the Convention.”
You will note from the definition that only ‘public authorities’ are noted and therefore the duty does not extend to individuals. The definition of ‘public body is quite wide and includes the Government, courts, schools, hospitals, local councils and other organisations who conduct government work.
The Act does not apply if the authority court would not, by virtue of primary legislation, have acted differently; or acted to give effect to enforce a provision which is incompatible with a Convention right.
Who May Bring Proceedings?
s7 (1)(a)(b) a ‘victim” of any act (or proposed act) of a public authority who says that the act is unlawful may bring proceedings against that authority or rely on the Convention rights in any legal proceeding.
s7(5) provides that the time limit is 12 months from the date of the act complained of or such longer period as the Court/Tribunal “considers equitable having regard to all the circumstances”. There is also a power to reduce the limitation period which Parliament can give effect to.
Freedom of Expression
If a claimant seeks relief in terms of stopping the defendant from their expression, for example, if it could damage the claimant’s reputation, when a court grants relief to a claimant, they must consider whether or not such relief would be in contravention of the Convention right to freedom of expression. Such circumstances are covered by st2(1) and the outcome depends upon whether they were present or represented. If they were not, then the court will require evidence that all practical steps to notify the respondent were taken or there is a compelling reason why they were not. The courts will balance between the respondent’s right to write journals, literary or create artistic matters which will be made public against the claimant’s privacy.
Freedom of Thought, Conscience and Religion
If a religious organization may be affected by a court (or tribunal’s) decision in its freedom of thought, conscience and religion then Section 13(1) states that the court must have particular regard to the importance of that right.
The Principles of Interpretation
The Court at Strasbourg uses the following principles:
- Rule of law
- Legitimate aim(s)
- Margin of Appreciation see Handyside v UK 
- Interpretation of the Convention
Therefore, so must practitioners in the UK.
S8 provides that the Courts retain their powers to grant remedies including in the Civil Courts the power to award damages. s8(1) provides the relief or remedy is to be ‘as it considers just and appropriate’.
- Judicial Review
• quashing orders
• mandatory orders
s8(4) provides that in determining whether to award damages or the amount of an award, the court must consider the principles applied by the ECHR in relation to the award of compensation under Article 41. Under Article 13 everyone has a right to an effective remedy.
5.5 The European Convention on Human Rights 1953
5.5.1 Article 2
Article 2: The Right to Life
Everyone’s right to live shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence
(b) in order to effect a lawful arrest or to prevent the escape of a person
(c ) in action lawfully taken for the purpose of quelling a riot of insurrection
The aim of this right is to prevent an individual from unreasonable force from the police or security forces. The difficulty arises where there are two lives at stake the accused and the police officer. Both must be taken into regard and the circumstances and facts will be taken into account. For example, should a police officer shoot a hostage if it would save many other hostages? Compare this to if the police use a ‘shoot to kill’ strategy and there are no hostages. Lethal force should not be used unless it is absolutely necessary.
There are two elements to this article: positive and negative. On one hand, we must protect life, however on the other we must also prevent death. Death in custody is always thoroughly investigated as police should avoid methods of restraint that are dangerous for individuals.
Bubbins v UK (2005]
Killing of the applicant’s brother by armed police was not a breach of Article 2.
Van Colle v Chief Constable Hertfordshire 
Police failure to protect witness who was subsequently murdered was incompatible with Article 2.
5.5.2 Article 5
Article 5: The right to liberty and security of the person
Everyone has the right to the liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court.
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law.
(c ) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. Everyone arrested or detained must be brought promptly before a judge or other office authorised by law to exercise pending trial. Release may be conditioned by guarantees to appear for trial. Everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. A victim of arrest or detention in contravention of the provisions of this Article has an enforceable right to compensation.
In general, there are strict rules as to how long a person can be kept in custody or prison before they appear before a judge for an initial appearance and before trial. There are some exceptions to this for more serious crimes particularly where the public need to be protected. For example, a suspected murderer. Guzzardi v Italy 
Meaning of the term ‘deprivation’
Cheshire West & Chester Council v P 
“person is under continuous supervision and control and is not free to leave” Lady Hale-Supreme Court judge
5.5.3 Article 8
Article 8: Respect for private and family life, home and correspondence
This Article introduces a new concept into UK law- the idea that our private lives should be protected. It means that public bodies, like the Government, cannot listen in to people’s phone conversations, or film them secretly, unless there is a very good reason for doing so. It also protects people from laws that might unnecessarily infringe their private lives.
Everyone has the right to respect for his private and family life, his home and his correspondence. The expanse of this article is very broad.
There shall be no interference by a public authority with the exercise of this right except in accordance with the law and it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others.
- family life
- private lie
Maric v Thames Water Utilities (2003]
Right to damages for flooding
Lambeth LBC v Annette Grant (2004]
Illegal immigrants right to welfare support
Blackburn-Smith v Lambeth LBC (2007]
Provision of local authority accommodation for illegal immigrant
Connors v UK 
Eviction from local authority of a gypsy caravan site
5.5.4 Article 10
Article 10: Freedom of Expression
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by the public authority and regardless of frontiers. This Article does not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
(Legislation GOV UK, 2018)
This is a very important right which has been strongly protected by the European Court of Human Rights. It protects political opinions, journalism, literature and even unpopular views that might upset sections of the community. This right also ensures that democracy continues, and that the Government is held accountable, so people can be free to speak out against the Government and ask them why they are behaving in such a manner. This right, although it is important, must be balanced with other rights. For example, Article 8 might come into direct conflict with this right. A journalist might have the right to freedom of speech to write an intrusive article about a famous person, but that famous person similarly has a right not to have their private life violated in this fashion, The courts must balance the two rights and reach a compromise.
There have been many high-profile cases examining article 10:
McVicar v UK 
A V BPIC & Another [(2002]
Footballer and ‘ladies’ right to report
Theakston v MGN (2002]
TV presenter and right to report
Douglas & Zeta Jones v Hello (2001]
No right to privacy under English Law
Steel v Morris v UK 
Open Door and Dublin Well Woman v Ireland 
Right to provide information
Yildirim v Turkey 
Blanket blocking of access to internet breach of freedom of expression
5.5.6 Article 11
Article 11: Freedom of assembly and association
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
No restrictions shall be placed on the exercise of these rights other than as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder of crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
(Legislation GOV UK, 2018)
This Article gives people the right to peaceful assembly and to take part in peaceful demonstrations. This means that the Government cannot stop people from meeting together to talk about things or from demonstrating in public against something the Government might want to do. At present, Britain has a relatively good record of allowing such demonstrations compared to many other countries; think about pictures on the television of protesters marching to the Houses of Parliament. The right of people to speak out and demonstrate against the Government is believed to be important for democracy. Countries such as China do not permit such demonstrations (the trouble in Tiananmen Square in 1989 was evidence of this). Under this Article, people are also given the right to join trade unions, which fight collectively for better working conditions for their members. It also means that people have the right not to join trade unions and they cannot lose their jobs by refusing to do so.
Redfearn v UK (2012]
Freedom to associate
In the event that an individual has been denied a remedy under UK law, for example, if it is incompatible with the Convention or there is a gap in the legislation which cannot be filled with common law, the individual can petition to the European Court of Human Rights in Strasbourg but only as a last resort. All domestic remedies must first have been exhausted (including the Human Rights Act 1998).
The procedure is as follows:
- A complaint is first addressed to the Secretary of the Court of Human Rights (a single judge). No special form is required.
- A chamber of the court is made up of 7 judges and they will determine accessibility in accordance with Articles 29 and 35 of the European Convention of Human Rights. The court may rule on admissibility in exceptional cases, however generally claims cannot be brought six months from the date of final decision; anonymous or repeat applications are not accepted; abusive, unmeritorious and ill-founded applications will be rejected; the power to reject applications as inadmissible at any stage of the proceedings and al Domestic remedies must first be exhausted. Around 90% of complaints are ruled inadmissible.
- Once the Committee (made up of 3 judges) have judged the complaint as being admissible the European Court of Human Rights will try to reach a settlement with the government concerned which may include reform of the rules.
- If no settlement is reached, further submissions will be made including an oral hearing where the parties may be represented.
- The European Court of Human Rights may award compensation as part of its judgement.
- The judgement does not change the UK as this is matter for the UK Government.
- There is a right of appeal to the Grand Chamber (which consists of 17 judges) on issues of general importance provided the first chamber gives their permission.
5.7 Human Rights and English Law
The Right to Life: An Outline of Criminal and Civil Law Provisions and Investigatory Procedures
You will recall from module 1 that our English legal system is made up of common law and legislation. The right to life is protected by the common law to ensure that no person is deprived of live intentionally. Homicide isa crime where both murder and manslaughter are recognised. It is a human right to defend yourself and protect your right to life.
In civil law, the Fatal Accidents Act 1976 provides for damages to relatives of those who are killed by the wrongdoing of others.
In certain circumstances, a death must be investigated in accordance with the Coroners Act 1988.
Perhaps one of the most difficult debates is whether a person should be able to end their own life. Both aiding and abetting suicide and euthanasia are unlawful. Medical professionals have a duty to keep patients alive unless to do so would be contrary to the patient’s best interests. In order to ascertain these the standard of care is assessed according to the practices accepted by the professional body or other experts in that field.
Bolam v Friern Hospital Management Committee : http://osclinks.com/4418
Termination of a pregnancy under certain conditions is now legal under the Abortion Act 1967. Human embryos can also be stored provided they are done s under licence under the Human Fertilisation and Embryology Act 1990.
Civil Law Negligence.
Articles 2 and 8 both apply to negligence.
Obligations on Police and Others in Planning Dangerous Operations and Others in Planning Dangerous Operations and Positive Policing
Article 2 concerns the right to life, and this will have a bearing on the use of force in policing. Under Article 3 the use of torture, inhuman or degrading treatment is prohibited.
As a person’s liberty may be deprived if they are found guilty, Article 5 ensures their liberty and security is protected.
The investigation and integrity of the criminal process falls under Articles 6 and 8. There are various positive obligations arising under the Convention to investigate allegations of criminal activity in order to protect the rights of individuals. Furthermore, when preventing or investigating a crime Article 8 will have an impact upon the procedures used for surveillance and obtaining evidence through searches. The use of undercover officers etc. will fall under Article 6.
Article 6 covers both the guarantee of a fair hearing and the detainee’s rights whilst in police custody including questioning and access to legal representation. It will also impact on the evidence that is admissible it is was irregularly obtained. All persons accused of a crime are innocent until proven guilty.
Policing democratic freedoms falls within Articles 8–11.
A handbook published in the framework of the Joint Program between the European Union and the Council of Europe entitled ‘Reinforcing the fight against ill-treatment and impunity’ can be found here: http://osclinks.com/4419
The Police and Justice Act 2006 states that “Police authorities shall monitor the performance of the police force maintained for its area in complying with the duties imposed on that force by the Human Rights Act 1998.” Guidance from the Association of Police Authorities can be located here: http://osclinks.com/4420
Independent Investigation of Deaths in Custody or Attributable to Agents of the State
The Joint Select Committee on Human Rights published a report regarding inquiries into deaths in custody. The report can be viewed here: http://osclinks.com/4421
Further guidance can be found on the Crown Prosecution’s website: http://osclinks.com/4422
There have been many articles in the media recently regarding deaths in custody: http://osclinks.com/4423
The Bill of Rights
Ever since it came into force the Human Rights Act has attracted criticism, most notably from right-wing newspapers and politicians. This has been published heavily in the media and examples can be viewed below:
It is therefore not surprising that former leaders have pledged to reform the same. David Cameron pledged to reform the Human Rights Act in 2006 as part of his manifesto. When the Supreme Court was created in 2009 this further called for reform so that it would be the highest court in our hierarchy instead of the European Court of Justice. The coalition government from 2010 to 2015 saw a conflict between the conservatives who were for reform and the liberal democrats who were in favour of the current law. In 2012 the coalition government set up a ‘Commission on the Bill of Rights’ to investigate reform, however no agreement was reached.
(BBC News, 2015)
Human rights are moral principles or norms for certain standards of human behaviour and are regularly protected in municipal and international law. They are commonly understood as inalienable, fundamental rights “to which a person is inherently entitled simply because she or he is a human being” and which are “inherent in all human beings”, regardless of their age, ethnic origin, location, language, religion, ethnicity, or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They are regarded as requiring empathy and the rule of law and imposing an obligation on persons to respect the human rights of others, and it is generally considered that they should not be taken away except as a result of due process based on specific circumstances.
The doctrine of human rights has been highly influential within international law and global and regional institutions. Actions by states and non-governmental organisations form a basis of public policy worldwide. The idea of human rights suggests that “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights”. The strong claims made by the doctrine of human rights continue to provoke considerable scepticism and debates about the content, nature and justifications of human rights to this day. The precise meaning of the term right is controversial and is the subject of continued philosophical debate; while there is consensus that human rights encompasses a wide variety of rights such as the right to a fair trial, protection against enslavement, prohibition of genocide, free speech or a right to education, there is disagreement about which of these particular rights should be included within the general framework of human rights; some thinkers suggest that human rights should be a minimum requirement to avoid the worst-case abuses, while others see it as a higher standard. It has also been argued that human rights are “God-given”, although this notion has been criticized.
Many of the basic ideas that animated the human rights movement developed in the aftermath of the Second World War and the events of the Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. Ancient peoples did not have the same modern-day conception of universal human rights. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval natural law tradition that became prominent during the European Enlightenment with such philosophers as John Locke, Francis Hutcheson and Jean-Jacques Burlamaqui and which featured prominently in the political discourse of the American Revolution and the French Revolution. From this foundation, the modern human rights arguments emerged over the latter half of the 20th century, possibly as a reaction to slavery, torture, genocide and war crimes, as a realisation of inherent human vulnerability and as being a precondition for the possibility of a just society. Human rights advocacy has continued into the early 21st century, centred around achieving greater economic and political freedom.