Human Rights

Council of Europe Created in 1949 47 Member states which undertake to respect the minimum standard of human rights set out in the convention Procedure Member states can bring a complaint against a fellow state Any person, non-governmental organisation or group of individuals may bring a complaint against a state but only if the victim exhausted local remedies Can appeal to Grand Chamber Judgment of the court is final and binding - usually requires "just satisfaction" e.g. compensation or changes in policy or law Enforced politically

Interpretation ECHR kept up to date by amendments ("protocols") No doctrine of binding precedent so judges can teach the convention as a "living instrument" which reflects social change in Europe States have a margin of appreciation - Brannigan and McBridge v UK 1993

Article 1 - Obligation to respect human rights Not given force by the Human Rights Act 1998 State has juridiction, wherever it can exercise authority and control over a person - Al Skeini v UK 2011 British soldiers protected by ECHR when serving outside UK - Smith v Ministry of Defence 2013 Article 2 - Right to life Derogable if use of force is no more than absolutely necessary: Self defence, to effect a lawful arrest, prevent escape of a detainee, lawful action when preventing a riot McCann, Farrell and Savage v UK 1995 - Shooting of alleged provisional IRA terrorists was not absolutely necessary Article 3 - Prohibition of torture Non derogable See exam case - A v Secretary of State for the Home Department No2 2005 Article 4 - Prohibition of slavery and forced labourDoes not include: Military work, work done in ordinary course of detention, etc

Article 5 - Right to liberty and security Derogable in the case of lawful detentions and arrest Arrestees shall be informed promptly, in a language they understand, why they were arrested and the charges against him Arrestees and detainees must be brought prompty before a judge Victims of unlawful arrest or detention shall have an enforceable right to compensation Republic of Ireland v UK 1978 - Detention without trial Article 6 - Right to a fair trial Innocent until proven guilty according to law Certain minimum rights for those charged with a criminal offence Golder v UK 1975, Silver b UK 1981 - Prisoners' access to lawyers and the courts Article 7 - No punishment without law Must be criminal offence at time it was committed Must not be a heavier penalty than at time it was committed Welsh v UK 1995 - Seizure of assets of convicted drug smuggler - Retrospective criminal penalty

Article 8 - Right to respect for private and family life Derogable in the interests of national security, public safety or the economic well-being of the country, prevention of crime, protection of health or morals, protection of rights and freedoms of others Malone v UK 1984 - telephone tapping without legal authority Dudgeon v Uk 1981 - Homosexual acts in private Article 9 - Freedom of thought, conscience and religion Eweida and Others v UK 2013 - Right to manifest your religion at work is protected, but must be balanced against the rights of othersArticle 10 - Freedom of Expression Campbell v Mirror Group Newspapers 2004 - Freedom of expression has to be balanced with other rights such as right to a private lifeArticle 11 - Freedom of assembly and association Redfearn v UK 2013 - Membership of the BNPArticle 12 - Right to marry R (Aquilar Quila) v Secreatary of State for the Home Department 2012 - Spouses under 21 may not enter the UK - Not a necessary proportionate response to the problem of forced marriagesArticle 14 - Prohibition of discriminationArticle 15 - Derogation from the ECHRCannot derogate from article 2 (except in lawful acts of war), article 3,4 or 7

Reasons for legislating ECHR can be enforced in domestic courts Cost and delay of taking case to Strasbourg Criticism from UN human rights committee Intended to preserve parliamentary sovereignty and independence of judiciary Rights Protected All articles of convention besides 3 & 13 Articles 1 to 3 of the First Protocol (Protecting of property, right to education, right to free elections) Article 1 of the Thirteenth Protocol S14 and S16 provide suspension of some rights for five year periods such as detention without trial Statements of CompatibilityS19 - Minister in charge of bill must declare the bill not to infringe the convention or state that he is unable to do so but would like to proceed anyways e.g. Communications Act 2003

Are UK courts bound by decision of the ECHR? Must "take into account" ECHR and the commission but not binding as per S2 All lower UK courts must follow decisions of the higher courts on matters concerning interpretations of convention rights Supreme Court does NOT have to follow ECHR decisions Al-Khawaja & Tahery v UK 2012 - Grand Chamber accepted Uk view that hearsay evidence is acceptable if absent witness is dead but not if scared to come to courtParliamentary Sovereignty reserved Must interpret UK legislation so that it conforms to convention rights " so far is possible to do so" as per S3 Ghaidan v Godlin-Mendoza 2004 - Succession to tenancy by surviving husband or wife - Homosexual couple Declaration of Incompatibility S4 says High court or above must make one if not act is not compatible with convention Does not affect validity of Act - it is for Parliament to correct R (Anderson) v Home Secretary 2002 - Home Secretary deciding minimum period and release not compatible S10 says there is a "fast track procedure" to do this using delegated legislation

Public AuthoritiesUnlawful for public authorities to act incompatibly except where as a result of primary legislation it could not have acted differentlyRemedies and proceedings S7 - only a victim can bring or defend proceedings against a public authority S8 says damages may be awarded and the UK courts must "take account of the principles applied by the ECHR" R (Greenfield) v Home Secretary 2005 - Remedy was a rehearing rather than damages - courts are generally reluctant to award damages Prisoners' right to vote Hirst v UK (No2) 2006 - Grand Chamber said UK must change law Greens and MT v UK 2010 - 6 months to change law Chester v Secretary of State for Justice, Wakefield MDC 2013 - Courts cannot interpret compatibly until Parliament amends or repeals the act Reform of the ECHR Commission reported in December 2012 - Majority recommended UK Bill of Rights Brighton Declaration aims: Only most serious cases to go to ECHR, allow member states to decide other cases, improve selection of judges for ECHR

Article 10 of ECHR Limited by many factors such as: national security, territorial integrity, public safety, prevention of crime, protection of health or morals, protection of rights of others, preventing disclosure of information received in confidence, maintainig authority or impartiality of the judiciary Contempt of Court Disobedience to court orders - M v Home Office 1994 Contempt in the face of court - R v D (Contempt of Court: Illegal Photography) 2004 Jury forbidden to research case on internet - AG v Dallas 2012 Goodwin v UK 1966 - Protection of journalistic sources was one of the basic conditions of press freedom Breach of Confidence Stories of ex-marriage - Argyll v Argyll 1967 Confidential relations such as solicitor/client and banker/customer - AG v Guardian Newspapers (No2) 1990 AG v Jonathan Cape 1976 - Cabinet secrets AG v Blake 2000 - Government took profits of book within the UKs jurisdiction

The Right of Privacy Article 8 ECHR No right to privacy pre-HRA 1998 Wainwright v Home Office 2004 - Strip search of visitors to a prison Venables v News Group Newspapers 2001 - more than one human rights may have to be considered Mosley v News Group Newspapers 2008 - Even a public figure can have a private life if no legitimate public interest Rio Ferdinand v MGN Limited 2011 - In public interest The media have a voluntary code of practice - The Press Complaints Commission Code Leveson Inquiry Statutory backing for a genuinely independent body to replace the Press Complaints Commission Newspapers that do not join would be regulated by Ofcom An arbitration system should be set up through which victims of the press could seek redress

The European Convention of Human rights General

ECHR Articles

Human Rights Act 1998

Freedom of Expression v Right of Privacy