ECHR

• What are the two aims of human rights protection?

  1. For international law to impose obligations on states to protect the rights of people in their jurisdiction through treaties (which they are not enforced to follow) or international law (binding on states even without their expressed agreement)
  2. Gives victims methods on how to bring their case of violation to international bodies
• What is the aim of human rights?

  Aim: to provide basic protection for individuals against arbitrary exercise of power by the state
• What is required for public authorities to follow?

  Public authorities ‘must also act compatibly with certain ‘Conventional rights’ in…ECHR.
• What is the main role of the Human Rights Act 1998? (& reason for its role)

  To enable proceedings to be brought to enforce these rights in UK domestic courts and tribunals

  (done to remove the need to take lengthy proceedings to ECtHR in Strasbourg & stopped lengthy process of UK having to change domestic law if the violation was recognised by ECtHR)
• What was the UN's priority after WW2?

  to “reaffirm faith in fundamental human rights"
• What occurred before the HRA/ECHR?

  States had the freedom to decide how to treat their own people…’greatest threat to people came from the states which they lived’
• What changed post-WW2 regarding human rights?

  
  

  Pre-WW2: violations of human rights often went unpunished because citizens were unable to bring the State to court (had no procedure to bring a claim against the State)
• What belief by other states is now no longer believed?

  Belief that what happens within a State is not an international concern is no longer believed
• What are the aims of the Universal Declaration of Human Rights?

  • “a political commitment to end the worst forms of violence and persecution”
  • To protect “the populations at risk of genocide, war crimes, ethnic cleansing and crimes against humanity”
• How was the Universal Declaration of Human Rights so significant?

  Defined for the first time the basic human rights entitlements in international law HOWEVER it is non-enforceable
• How is the ECHR the most significant way to protect human rights?

  • Is the most developed system for international human rights protection
  • Legal commitment by the states to abide by certain standards of conduct by ECHR & to protect the fundamental rights and freedoms of individuals.
• What can the ECHR do?

  • Provides a legal mechanism to challenge states (can force countries to change morals/policies that led to human rights violations)
  • Requires UK courts & tribunals to take account of the case law developed by ECtHR
  • Requires HRA legislation to be compatible with Convention rights: if not senior/higher courts state a declaration of incompatibility
• What must a minister in charge of a Bill state?

  Ministers in charge of a Bill must state whether it is compatible with Convention rights OR if it doesn't, it must state that the government wishes to Bill to proceed anyways
• What cases does the ECHR cover?

  Covers claims from both public & private bodies that exercise ‘functions of a public nature’
• What are the three types of Convention Rights?

  1. Absolute Rights
  2. Limited Rights
  3. Qualified Rights
• What is the meaning of Absolute Rights?

  States can under no circumstances suspend or restrict them
• What is the meaning of Limited Rights?

  Absolute rights that can be restricted in specified circumstances e.g Article 5
• What is the meaning of Qualified Rights?

  Rights that can be restricted under certain circumstances if it is prescribed by law and are necessary in a democratic society (provides the State a good margin for the justification for the restriction of human rights)
• What is stated in section 2 of the HRA?

  Section 2: imposes duty to UK courts & tribunals to ‘take into account’ the case law of ECtHR
• What does Lord Irvine state about section 2 of the HRA?

  States that term ‘take into account’ “means that the domestic courts always have a choice…"
• What is the Council of Europe?

  Is a pan-European organisation of 46 member states that aims to promote human rights, democracy and the rule of law across the continent.
• What were the two reasons for the establishment of the Council of Europe?

  • Lester: To guard against the rise of new dictatorships, avoid the risk of relapse into another disastrous European war”
  • Established to prevent governments from using the argument that actions/violations committed against citizens are not permitted authorisation from international communities (is their business, not theirs)
• What is the reason why the UK was hesitant to conform to the ECHR?

  Because of Parliamentary Sovereignty
• What is the meaning of Margin of Appreciation?

  Enables the Court to balance the sovereignty of Member States with their obligations under the Convention (ECtHR can take into account the customs & culture of State in the trial in their decision whether a violation occurred)
• What is the meaning of the Principle of Subsidiarity?

  Idea that ECtHR should only intervene when a country has grossly breached human rights (ECtHR has to be the last option)
• What is s4 of the HRA?

  Says that if a higher court considers that part of an Act of Parliament is incompatible with human rights, it can make a declaration of incompatibility
• What is the L.P of Hirst v UK?

  L.P: exclusion from voting imposed on convicted prisoners in detention is disproportionate as it stripped a large group of people of the vote; it applied automatically irrespective of the length of the sentence or the gravity of the offence; and blanket ban were arbitrary regardless of Government's legitimate expectation
• What was the Prison Reform Trust;'s view on the blanket ban for prisoners to vote?

  "It argued that social exclusion was a major cause of crime and reoffending, and that the ban on voting militated against ideas of rehabilitation and civic responsibility by further excluding those already on the margins of society and further isolating them from the communities to which they would return on release. It neither deterred crime nor acted as an appropriate punishment.”
• According to Kings, how would the UK government ignoring the ECtHR decision from Hirst be seen as a threat?

  “The UK’s non-compliance represents a threat to the future effectiveness of the Convention machinery.”
• How does Kings state that the UK's refusal to follow the Hirst decision could damage the UK's status?

  “would show that the UK does not take human rights seriously, which amongst Western countries is almost unheard of. International relations would be seriously hindered and any negotiating power the UK has regarding international affairs would be severely undermined”
• Why does Kings state about the reason why the UK needs to follow the ECtHR's decisions in Hirst?

  • Non-compliance from UK goes against key principle of the Convention e.g “by applying this principle the Court forces countries with poor human rights records to follow the example of more progressive States."
  • "By complying with rulings of the Court these more progressive countries pave the way for others to raise their human rights standards."
• According to Kings, what major risk may occur if the UK continuously refuses to follow the ECtHR?

  "Countries less friendly towards human rights will no longer feel an obligation to raise their standards, with catastrophic consequences for their citizens”