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How are Human Rights Protected - UK
The great A. V. Dicey believed that common law cases were the chief manner in which human rights are protected in the UK.
Several cases can be cited as good evidence for this.
Entick v Carrington
Here the courts simply said that because the warrant given was neither permitted by statute nor common law, it was unlawful. Thus, our liberties are protected by common law insofar as there is no statute or precedent that takes away from it.
Beatty v Gillbanks
Here the Salvation Army were bound over to not march on Sundays because doing so would often attract a large crowd of hostile opponents and lead to a breach of the peace. On appeal after marching anyway, the court held that the Salvation Army had done nothing unlawful in the first place and so should never have been bound over. In turn this protected their freedom of assembly.
A v Home Secretary (No.2)
The House of Lords ruled that the use of evidence which on the balance of probabilities was procured through torture is inadmissible in court. This was decided on the grounds that to allow otherwise would be against common law principles.
Criticism of the Law in A v Home Secretary (No.2):
Lord Nicholls makes the argument that it should be a requirement to remove all doubt that the evidence was not procured by torture. He suggested that the detainee will in most cases not be able to satisfy the balance of probabilities requirement for reasons out of his own control, allowing much application of this unwanted evidence.
Restrictions to the Role of the Common Law in Protecting Rights
1. The government can use the common law principle that an action is lawful unless prohibited by statute or case law to infringe our rights. In Malone v MPC it was held that the government had acted lawfully when it tapped and listened to someone's phone line. This was because (unlike in Entick v Carrington) there was no right affected that the government was legally obliged to protect, so nothing for Mr.Malone to rely upon. Since there was nothing to say it wasn't unlawful, it was lawful.
2. In certain cases, the common law has actually acted in a way that retracts from human rights, casting much doubt on how useful it is as the key protector of rights. In Moss v McLachlan, the Divisional Court extended the common law based police power to regulate and control public assemblies to include the power to prevent them from happening altogether.
3. The common law is subject to erosion from new legislation. Even though it provides the principle that something is lawful unless legislation says otherwise, obviously, new legislation can be implemented to make it unlawful.
The Scope of the European Convention on Human Rights in the UK
The convention does not address social or economic rights. Instead, it focuses on the most basic of rights and liberties. The UK incorporated the Convention via the Human Rights Act 1998.
Thus in the UK, the following rights are protected:
- The right to life. (Art.2)
- Freedom from torture and degrading treatment. (Art.3)
- Freedom from slavery. (Art.4)
- Security of the person - covers the right to know what one is arrested for. (Art.5)
- The right to a fair trial - covers the right to be presumed innocent until proven guilty and also the right to free legal aid where justice necessitates it. (Art.6)
- The right not to be subjected to retroactive laws. (Art.7)
- The right to respect for family and personal life. (Art. 8)
- The right to the freedom of thought, religion and conscience. (Art.9)
- Freedom of expression. (Art.10)
- Freedom of assembly and association with others - covers the right to form/join trade unions. (Art.11)
- The right to marry and start families. (Art.12)
Additionally, nine protocols have been added to the core list mentioned above. For example, protocol 1 recognises the right to the 'peaceful enjoyment' of one's possessions (art.1) and a right to education (art.2).
For the full convention and its nine protocols see: http://conventions.coe.int/treaty/en/treaties/html/005.htm.
Note: not all of the protocols have been ratified (agreed to) by the UK.
Who Can Bring a Case to the European Court of Human Rights?
Any individual, group of individuals or non-governmental organisation who feel their rights under the ECHR have been violated can bring a case to the European Court of Human Rights (ECtHR) after having exhausted all domestic remedies available to them.
A further requirement is that the case is brought to the ECtHR within six months after the final ruling of the domestic court is made.
One state may bring a case against another to the ECtHR if they feel that other has violated their duties under the ECHR.
Weaknesses of Relying on the Convention for Protection of Human Rights
Apart from the obvious lack of social and economic rights, the Convention may strike out an application on the basis that it felt the applicants did not suffer enough of a disadvantage because of what was allegedly done to them. This restricts the protection of many applicants whose rights may have been infringed but not to a serious degree, but is necessary for the ECtHR in order to deal with the more serious cases.
Of course, the time restriction of giving only 6 months since the last domestic decision on the matter may in some cases prevent an application from being filed in time due to arbitrary and irrelevant reasons out of the control of the applicant. A particularly busy time in a person's life, therefore, may render the protection of his rights under the Convention worthless.
When considering parliamentary sovereignty it is important to remember that Parliament retains the right to make legislation contrary to Convention rights.
The Convention therefore suffers the same problem that the common law does as a protector of human rights: Parliament can legislate against it at any time it wishes.
What did the Human Rights Act 1998 do?
- It made it so violations of the ECHR can be dealt with in domestic courts, instead of requiring travel to Strasbourg in order to carry out the proceedings.
- The domestic courts, as Lord Bingham explained in R (Ullah) v Special Adjudicator, should follow the caselaw of the ECtHR when deciding on an issue around Convention rights so long as there are no special circumstances.
- S.3 of the Act means that the courts must now interpret legislation to be, 'as far as possible', in accordance with the convention. Importantly, this interpretation may even skew the clear meaning of the words Parliament has chosen, so long as it does not alter its fundamental features. (Lord Nicholls in Ghaidan v Godin Mendoza).
- If the provision in question cannot be construed to be compatible with the ECHR the High Court (or higher) can make a declaration of incompatibility. This does not affect the validity of primary legislation or prevent its operation but merely flags up the issue. In reality, a declaration puts great pressure on Parliament to change the primary legislation since being perceived to be contra-human rights is politically unfavourable.
- As for the actions of public authorities which are not based on primary legislation, acting in a way that contravenes Convention rights is unlawful. This is made clear in S.6 of the Act.
- S.7 makes it so those who are victims or potential victims of an act that conflicts with their Convention rights may seek judicial review of that action. The damages awarded by civil courts must taken the jurisprudence of Strasbourg case law into account.
- Additionally, S.19 dictates that the minister in charge of each new bill must make a statement that it is either compatible or incompatible with the Convention before it is enacted.
- The Joint Commission on Human Rights was created in order to oversee and scrutinise those statements of compatibility (as well as consider whether human rights were being broken according to other international human rights sources).
Unbeknownst to many, membership of the EU provides protection of many human rights we take for granted. Since Costa v Enel it has been well established that EU law has primacy over its domestic counterparts. In short, this means that the rights best protected are those given to us by the EU, since even parliament cannot retract them by altering UK law - except of course, by pulling out of the EU altogether.
Taking an example, the freedom to leave the UK and go to another EU Member State is a right created through EU law.
The Citizens Rights Directive (CRD) 2004/38 provides that all citizens of Member States have the right to move and then:
Article 6 CRD: reside in any other Member State for three months without having to fulfill any condition or requirement other than holding a valid passport (or even just identity card).
Article 7 CRD: reside in another Member State for more than three months after satisfying one of the following three criteria:
- Be self-employed or working in that Member State,
- Have sufficient resources to maintain themselves and their families so as not to become a burden on its social assistance system, and have comprehensive sickness insurance cover,
- Be enrolled in a private or public establishment accredited or financed by the Member State for the purposes of education - including vocational training.
Article 8 CRD: gain the right to permanent residence in another Member State after having lived there for five years (allowing for interruptions of under six months and military service).
Moreover, family members that don't reside in an EU Member State but are either i) dependants of the EU citizen ii) household members of an EU citizen or iii) in a (duly attested) durable relationship with the citizen are allowed to move or join with him without fulfilling any criteria but that of holding a valid passport. Thus, in this limited manner, the CRD also protects the right to family life.
Convention of Fundamental Rights of the European Union
In order to reconcile and allow for greater exposure to the rights protected by the European Union, the Charter was created.
The rights included are based on the ECHR, constitutional traditions common to the Member States, case law of the European Court of Justice (ECJ) and the social charters adopted by the EU.
Notably, the Charter includes the right of access to healthcare and the right to freedom of the arts and sciences which are not included in the Convention.
What is the significance of the Charter?
Unfortunately, citizens of the EU can only take a State to court for breaching a Charter right when EU law is concerned. Otherwise, in purely domestic matters the Charter rights cannot be invoked.
Whilst this greatly restricts the protection of these rights, as has already been touched upon, these rights are far better protected in the situations they do apply than they are under domestic, and especially Convention, law.