#14627 - Human Rights - GDL English Legal System

_______________________________________________________

Introduction to human rights

• Traditional view in Britain that our human rights were residual i.e. that which is left after taking into account lawful limitations

• The doctrine of residual freedoms was producing manifest injustice

  • Malone v Metropolitan Police Commissioner 1979; no law was found to justify phone tapping, but none found to explicitly prevent phone tapping, so it was lawful, though clearly a breach of a commonly held belief in the right to personal privacy

• Human Rights Act 1998 came into force in October 2000

  • Made ECHR part of UK law

  • ECHR drawn up by Council of Europe (47 members) and signed in Rome in 1950

    • UK refused to incorporate for many years until 1998

• Member states may decline duty to carry out obligations in time of war

Human Rights:

• Art. 2 Right to life

• Art. 3 freedom from torture, inhuman or degrading treatment

• Art. 4 freedom from slavery or forced labour

• Art. 5 right to liberty and security of person

• Art. 6 right to a fair trial

• Art. 7 prohibition of retrospective criminal laws

• Art. 8 right to privacy

• Art. 9 freedom of thought, conscience and religion

• Art. 10 freedom of expression (with restrictions)

• Art. 11 freedom of peaceful assembly and right to join a trade union

• Art. 12 right to marry and have a family

• Art. 14 right to enjoy these rights without discrimination

First Protocol:

• Art. 1 right to peaceful enjoyment of one's possessions

• Art. 2 right to education

• Art. 3 right to free elections

Institutions:

• ECtHR in Strasbourg

  • 47 judges

  • Any contracting state or individual claiming to have been violated by a contracting state can apply directly to Strasbourg, which is subdivided:

    • Committees of 3 judges

    • Chambers of 7 judges

    • Grand Chambers of 17 judges

  • Upon deciding that a member state is in breach, it can issue compensation or other 'just satisfaction'

Effect of Human Rights Act 1998:

• S.2: domestic courts 'must take into account' any relevant Strasbourg jurisprudence

• S.6: Unlawful for public authorities to contravene Convention rights - vertical effect

  • YL v Birmingham City Council 2007: the principle that a private body will be regarded as a public authority if it performs function of a public nature. This is on a case-by-case basis. In this case, a care home was not held to be a public authority because its powers were not great enough

• Limited horizontal effect:

  • Douglas v Hello! 2001: Convention rights treated as relevant to the case despite it being between private parties

• Limited retrospective effect

  • R v Lambert 2001: no retrospective effect

  • Wilson v Secretary of State for Trade and Industry: HL principle that some provisions of HRA can have retrospective effect if it would not be unfair to either party

• Acts that are not compatible with Convention rights are, importantly, STILL VALID

  • However higher courts can issue a declaration of incompatibility which the legislature can them amend if it so wishes

Commission for Equality and Human Rights

• Equality Act 2006 contained provisions for new commission

• Replaced Commission for Race Equality, Disability Rights Commission & Equal Opportunities Commission

• Charged with monitoring the operation of ECHR in domestic law, scrutinising new legislation, providing advice to people about their rights

European Charter of Fundamental Rights

• Incorporated into EU law by Article 6 of the Lisbon Treaty

  • Art. 6 makes ECHR 'general principles of the Union's law'

• Art. 53(2): Charter is without prejudice to ECHR

• Charter applies to EU institutions and member states when implementing EU law

• Charter does not create new legal rights in UK because of a legally binding protocol we insisted upon

Remedies for infringements of human rights

• Inconsistencies & variety of remedies:

  • Judicial review:

    • Where a public body has infringed human rights

  • Habeas corpus:

    • An ancient remedy for wrongful imprisonment; it ensures quick release for wrongful detention; once they are out they can then sue for damages (it is a short term measure to ensure freedom)

    • Application made to Divisional Court and takes priority over all other court business

  • Civil action for negligence

    • Sue a public body in tort

    • Exemplary damages may be awarded

    • Hill v Chief Constable of West Yorkshire 1989: gives police effective immunity from liability for negligence in their investigations

      • Osman v UK 1999: CA followed Hill, but it was referred to ECtHR which said that it amounted to an Art. 6 infringement & no blanket immunity could be given to police

      • Brooks v Metropolitan Police Commissioner 2005: HL suggested ECtHR did not understand the distinction between a substantive & procedural rule in English law, but admitted Hill may have been too strong to say the police never had a duty of care

  • Compensation for breach of Convention rights under...