Week 5 - Human Rights and Legal Accountability Flashcards
(25 cards)
What are Human Rights?
Human rights have a dual function:
- Values & Principles – Ethical claims on fairness and dignity.
- Legal Rights – Defined in laws & treaties, granting enforceable entitlements.
- Rights are not universally accepted and have been contested since the UN debates.
- Some argue they originate from Western traditions, while others claim global roots.
The UKs Traditional Approach to Rights
- The UK follows a presumption of liberty, meaning rights exist unless restricted.
- Rights are protected through common law and specific legislation.
- However, Parliamentary Sovereignty means rights can always be overridden.
- Legislation may expand or restrict freedom:
- Sex Discrimination Act 1975 – Expanded rights.
- Public Order Act 1986 – Imposed restrictions.
ECHR & Common Law before the HRA
- English courts viewed the ECHR as guidance in interpreting UK laws
- Scottish courts took a stricter view—ECHR was not part of Scots law unless incorporated.
- Courts interpreted laws to protect individual liberties
- Courts scrutinized government decisions more carefully in rights cases
Parliaments Role in Rights Protection
- Parliamentary Sovereignty means Parliament can override rights.
- Rights depend on legislation, which can either protect or restrict freedoms.
Characteristics of the ECHR
- They are agreements between states to “respect, protect, or fulfil” the rights of their citizens.
-Importantly, these treaties allow for individual complaints—meaning a citizen can bring a case against the state for a breach.
The ECHR - FRCE
Focus:
- The Convention primarily protects civil and political rights (with additional rights available through various Protocols).
Reach:
- Article 1 commits that “everyone within its jurisdiction” must have the Convention rights secured.
Claims and Applications:
- Both state-to-state claims and applications by individuals are possible.
Enforcement:
-The European Court of Human Rights (ECtHR) can award “just satisfaction” (usually financial compensation) for breaches.
- Enforcement is carried out in cooperation with the Committee of Ministers.
Rights Protected by the ECHR
Articles 1-14 set out core rights such as:
- Right to Life
- Prohibition of Torture
- Right to Liberty and Security
- Right to a Fair Trial
- Right to Respect for Private and Family Life
- Freedom of Expression
- Articles 15–18 detail derogations, restrictions, and limitations.
- The final articles (19–51) outline the functioning of the ECtHR
State Obligations for the ECHR
- Negative obligations: States must refrain from interfering with individual liberties.
- Positive obligations: States must take proactive measures to protect rights (e.g., privacy protection may require administrative reforms or preventive measures as illustrated by the case X and Y v Netherlands).
Different levels of rights protections under the ECHR
Absolute Rights:
- Rights that can’t be limited at all (e.g., Article 3’s prohibition of torture).
Limited Rights:
- Rights subject to specific and clearly defined limitations (e.g., Article 5, where deprivation of liberty is permitted only under prescribed legal procedures).
Qualified Rights:
- Rights that require a balancing act between the interests of the individual and broader community interests (e.g., Article 10, freedom of expression, can be limited for reasons such as public safety or protecting the rights of others).
What is Derogation
- Derogation allows states to temporarily suspend certain Convention obligations in times of war or other public emergencies that threaten the nation.
Limitations on Derogation:
- Certain rights are non-derogable (e.g., Article 2 on the right to life, Article 3 on torture, Article 4(1) on slavery, and Article 7 on non-retroactive criminal law).
Case Reference:
- “Emergency” standards as discussed in Lawless v Ireland (No.3) illustrate the strict nature of what constitutes an emergency.
Object and Purpose of the ECHR
- When the text of the Convention is ambiguous, the court looks to the object and purpose, often consulting the Preamble.
- The Court stresses that the Convention is meant to secure practical and effective rights, not abstract ideals, citing cases like Airey v Ireland and Soering v UK.
- The “objects and purpose” of the Convention include protecting individual human rights and upholding the ideals of a democratic society.
Evolving Interpretation of the ECHR
- The Convention is seen as a “living instrument” subject to interpretation in the light of present-day conditions.
- Cases such as Tyrer v UK and Goodwin v UK illustrate how the Court has adjusted its understanding of rights to reflect societal change.
- This approach underscores that states must continually update their practices to meet evolving standards.
Subsidiarity
- Subsidiarity in the context of the ECHR means that member states are primarily responsible for securing the rights and freedoms guaranteed by the Convention.
- States are given some discretion (a “margin of appreciation”) to interpret and implement the rights according to their own social and cultural contexts.
- However, this margin is subject to the supervision of the ECtHR to ensure that minimum standards are met.
Why allow Subsidiarity?
National authorities, because of their immediate contact with social realities, are viewed as better placed to decide on the “necessity” of restrictions.
Proportionality of ECHR
- Proportionality means there must be a fair balance between the interference with an individual’s rights and the public interest served.
- The interference must be necessary, suitable, and not excessive in relation to the aim pursued.
- Cites Soering v UK and Huten-Czapska v Poland as examples where the Court examined whether interference was in acceptable proportion to the legitimate aim.
- Must have state action to be justified, suitable means to achieve aims, weighing and balancing competing interests.
Proportionality Analysis
- Interference: Has there actually been an interference with the right?
- Legal Basis: Was the interference clearly “prescribed by law” (i.e. is it accessible and precise)?
- Legitimate Aim: Was the interference pursued in the service of a legitimate aim?
- Necessity and Proportionality: Was the interference necessary in a democratic society and proportionate to that aim?
Remedies for ECHR
Friendly Settlement:
- Before a full judgment, many cases are resolved by mutual agreement (friendly settlement) once the case is declared admissible.
Just Satisfaction:
- Under Article 41, if the ECtHR finds a violation of the Convention, it may award “just satisfaction” (typically financial compensation if domestic remedies were insufficient).
Reasons for introducing the HRA 1998
- Purpose of the HRA 1998: – To provide a faster, less expensive domestic remedy for human rights violations. – To strengthen the protection of human rights in the UK.
- Key Balancing Act: – While expanding rights protection, the HRA must not undermine Parliamentary Sovereignty.
- Timing: – Received Royal Assent in 1998 and came into force (commenced) in 2000.
Key Provisions of the ECHR
- s.1: The protected rights
- s.2: Duty to take account of Strasbourg decisions
- s.3: Duty to interpret primary legislation ‘so far as possible’ compatibly with
Convention rights - s.4: Power to make a declaration of incompatibility
- s.6: Duty of public authorities to act compatibly with Convention rights
- s.7: Right to bring proceedings against public authority/rely on convention rights in legal proceedings
- s.10: Power to make fast track remedial legislation
- s.19: Minister introducing a bill must make a statement that the “provisions of the bill are compatible with the Convention” or that although not compatible, government wishes
to proceed
Interpretive Provisions - sections 2 and 3
- Section 2 – Interpretation of Convention Rights: – UK courts must “take account” of decisions of the European Court of Human Rights (ECtHR) when interpreting human rights issues. – Key Case: R (Ullah) v Special Adjudicator [2004]
- Section 3 – Interpretation of Legislation: – Requires that, wherever possible, both primary and subordinate legislation be read and applied in a way that is compatible with Convention rights. – Important Cases: Bellinger v Bellinger [2003]
Incompatibility with the ECHR
- If a court finds that a legislative provision cannot be interpreted compatibly with Convention rights, it may issue a declaration of incompatibility.
- When Can Declarations Be Made? – In cases where a statute is clearly not compatible and it is not “possible” under s.3 to give it a compatible interpretation.
- Which Courts Have the Power? – Only superior courts (e.g., the Supreme Court, the Court of Session, the High Court of Justice).
- Effect of a Declaration: – It does not invalidate or alter the law; Parliament retains sovereignty and may choose to amend legislation in response. – It can trigger fast-track remedial legislation via s.10.
- R (Nicklinson) v Ministry of Justice [2014] UKSC 38: – The applicant, who had suffered a severe stroke, sought legal assistance for suicide (assisted dying). – The key question was whether criminalizing assisted suicide constituted a proportionate restriction on the right to private life. – Outcome: A majority of justices (7 out of 9) declined to issue a declaration of incompatibility.
HRA Section 6 - Public Authorities Obligations
- It is unlawful for a public authority to act in a way that is incompatible with Convention rights.
- Exceptions: – Exceptions apply if the authority could not have acted differently (s.6(2)(a)) or if the action was required by primary legislation that cannot be interpreted compatibly (s.6(2)(b)).
- Definition of “Public Authority”: – Includes courts, tribunals, and any person whose functions are public in nature (but notably excludes either House of Parliament or entities directly connected with parliamentary proceedings).
- Supporting Case Reference: – Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] is mentioned to illustrate what constitutes “functions of a public nature.”
HRA Proceedings and Remedies
- Who May Bring Proceedings: – A person who believes they have been a victim of an unlawful act by a public authority may launch proceedings under the HRA. – The applicant must satisfy the “victim” requirement under Article 34 of the ECHR, as incorporated by the HRA (see s.7).
- Available Remedies: – Courts or tribunals can grant relief or make orders they consider “just and appropriate.” – However, damages can only be awarded by a court that has the power to do so in civil proceedings
Relevance of the Scotland Act 1998
- In addition to the HRA 1998, the Scotland Act 1998 incorporates similar human rights protections into the devolution settlement for Scotland.
- The Act sets out the framework for legislative and executive competence in Scotland and mirrors some HRA provisions.
