ELS 9 Human Rights

Lecture # 9
Human Rights
By: Salik Aziz Vaince
[0313-7575311]
 Introduction
 Human rights refer to the concept of human beings as having universal rights, or status, regardless of
legal jurisdiction or other localizing factors, such as ethnicity and nationality.
 It is said all human beings are born free and equal in dignity and rights. Everyone is entitled to all the
rights and freedoms without distinction of any kind, such as race, creed, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status. Everyone
has the right to life, liberty and security of person.
 The existence, validity and the content of human rights continue to be the subject to debate in
philosophy and political science. Legally, human rights are defined in international law, and further, in
the domestic laws of many states.
 Human rights abuse is abuse of people in a way that violates any fundamental human rights. It is a
term used when a government violates national or international law related to the protection of
human rights.
 Rights that belong to an individual as a consequence of being human. Human rights are basic to
humanity. They apply to all people everywhere. An understanding of human rights is an important
part of our individual status as human beings and of our collective status as members of the global
community of humankind.
 A human right is 'natural' in that everyone owns them, not because they are subject to any particular
system of law or religious or political administration. They can be asserted against individuals, but they
express the political objective: that government must respect, protect and promote them.
 Human rights are "commonly understood as inalienable fundamental rights to which a person is
inherently entitled simply because she or he is a human being.
 "Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for
everyone). These rights may exist as natural rights or as legal rights, in local, regional, national, and
international law. The doctrine of human rights in international practice, within international law,
global and regional institutions, in the policies of states and in the activities of non-governmental
organizations, has been a cornerstone of public policy around the world.
 The idea of human rights states, "If the public discourse of peacetime global society can be said to have
a common moral language, it is that of human rights.
 "Despite this, the strong claims made by the doctrine of human rights continue to provoke
considerable debates about the content, nature and justifications of human rights to this day. Indeed,
the question of what is meant by a "right" is itself controversial and the subject of continued
philosophical debate.
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 The first generation of civil and political rights, associated with the enlightenment and the English,
American, and French revolutions, includes the rights to life and liberty and the rights to freedom of
speech and worship.
 The second generation of economic, social, and cultural rights, associated with revolts against the
predations of unregulated capitalism from the mid-19th century, includes the right to work and the
right to an education.
 Finally, the third generation of solidarity rights, associated with the political and economic aspirations
of developing and newly decolonized countries, includes the collective rights to political self-
determination and economic development.
 Many of the basic ideas that animated the human rights movement developed in the aftermath of the
Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal
Declaration of Human Rights in Paris by the United Nations General Assembly in 1948.
 1st sentence of the Preamble to the Universal Declaration of Human Rights
- All human beings are born free and equal in dignity and rights (Article 1 of the United Nations
Universal Declaration of Human Rights (UDHR)
 Meaning
 The fundamental rights that humans have by the fact of being human, and that are neither created nor
can be abrogated by any government.
 Supported by several international conventions and treaties (such as the United Nation's Universal
Declaration of Human rights in 1948), these include cultural, economic, and political rights, such as
right to life, liberty, education and equality before law, and right of association, belief, free speech,
information, religion, movement, and nationality. Promulgation of these rights is not binding on any
country, but they serve as a standard of concern for people and form the basis of many modern
national constitutions. Although they were defined first by the Scottish philosopher John Locke (1632-
1704) as absolute moral claims or entitlements to life, liberty, and property, the best-known expression
of human rights is in the Virginia Declaration of Rights in 1776 which proclaims that "All men are by
nature equally free and independent and have certain inherent rights, of which, when they enter a
state of society, they cannot, by any compact, deprive or divest their posterity." Called also
fundamental rights.
 Definition
 The basic rights and freedoms, to which all humans are entitled, often held to include the right to life
and liberty, freedom of thought and expression, and equality before the law.
 According to United Nations of Human Rights
 Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex,
national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to
our human rights without discrimination.
 What are human rights?
 The basic notion of human rights lies in people’s recognition of the need to protect and affirm every
other person’s individual dignity. Human rights are important. No matter where people come from, or
what their age, culture, religion or income may be, they tend to talk about their concerns in terms of
human rights. Human rights issues are often seen as national or international in scope, but human
rights are equally relevant at an individual and community level.
 There is no universally agreed definition; indeed, people’s understanding of human rights is continually
evolving. There are general understandings, though, of what is meant by the term. One way of looking
at rights is to see them as a special kind of claim on others. For example, the right to education means
that everyone is entitled to a good education and, in particular, that governments have an obligation to
provide education facilities and services.
 Rights are related to the values that societies live by. These values have their origins in the world’s
great religions and philosophies. Value systems can vary in detail between one society and another
but the fundamental ideas are very similar. Concepts of justice and human dignity are at the heart of
these values.
 Rights also relate to what is lawful: that is, some rights may be laid down in law. If you have a legal
right to something, you may be able to defend it in court. In many situations, though, rights exist but
are not covered by law. These rights are often called moral rights. Moral rights are based on people’s
sense of what is fair or just.
 Universal and inalienable
 The principle of universality of human rights is the cornerstone of international human rights law.
 Some fundamental human rights norms enjoy universal protection by customary international law
across all boundaries and civilizations.
 Human rights are inalienable. They should not be taken away, except in specific situations and
according to due process. For example, the right to liberty may be restricted if a person is found guilty
of a crime by a court of law.
 Interdependent and indivisible
 All human rights are indivisible, whether they are civil and political rights, such as the right to life,
equality before the law and freedom of expression; economic, social and cultural rights, such as the
rights to work, social security and education, or collective rights, such as the rights to development and
self-determination, are indivisible, interrelated and interdependent. The improvement of one right
facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the
others.
 Equal and non-discriminatory
 Non-discrimination is a cross-cutting principle in international human rights law. The principle is
present in all the major human rights treaties and provides the central theme of some of international
human rights conventions.
 The principle applies to everyone in relation to all human rights and freedoms and it prohibits
discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on.
The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1
of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and
rights.”
 Both Rights and Obligations
 Human rights entail both rights and obligations. States assume obligations and duties under
international law to respect, to protect and to fulfil human rights. The obligation to respect means that
States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to
protect requires States to protect individuals and groups against human rights abuses. The obligation
to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.
At the individual level, while we are entitled our human rights, we should also respect the human
rights of others.
 European Convention on Human Rights
 The convention is an agreement on basic human rights; was drafted by the Council of Europe after
World War II; recognizes traditional civil liberties inevitable for democratic system of government;
signed by the European states including England; aimed to ensure humane treatment to all its citizens;
provided a mechanism for realizing civil and political rights and freedoms.
 The European Convention on Human Rights (ECHR) is an international treaty to protect human rights
and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,
the convention entered into force on 3 September 1953. All Council of Europe member states are party
to the Convention and new members are expected to ratify the convention at the earliest opportunity.
 This convention followed the Universal Declaration on Human Rights made by UNO in 1948. The
Articles in convention are according to the expectations of European people as fundamental rights.
 The English Courts observed the convention as guideline. England did not incorporate the convention
in to its legal system believing that its existing laws were sufficient to guarantee basic human rights,
but later in late 1990s it incorporated the convention in to its legal system by promulgating the ‘Human
Rights Act 1998’.
 The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or
her rights have been violated under the Convention by a state party can take a case to the Court.
Judgments finding violations are binding on the States concerned and they are obliged to execute
them. The Committee of Ministers of the Council of Europe monitors the execution of judgments,
particularly to ensure payment of the amounts awarded by the Court to the applicants in
compensation for the damage they have sustained.
 The establishment of a Court to protect individuals from human rights violations is an innovative
feature for an international convention on human rights, as it gives the individual an active role on the
international arena (traditionally, only states are considered actors in international law). The European
Convention is still the only international human rights agreement providing such a high degree of
individual protection. State parties can also take cases against other state parties to the Court,
although this power is rarely used.
 Factors behind the creation of European Convention on Human Rights
 The development of a regional system of human rights protection operating across Europe can be seen
as a direct response to twin concerns:
1. Humiliation of human beings notably event of Holocaust during the World War II.
- The aftermath of the Second World War, the convention, drawing on the inspiration of the
Universal Declaration of Human Rights can be seen as part of a wider response of the Allied Powers
in delivering a human rights agenda through which it was believed that the most serious human
rights violations which had occurred during the Second World War (most notably, the Holocaust)
could be avoided in the future.
2. Growth of Communism in Eastern Europe.
- The Convention was a response to the growth of Communism in Central and Eastern Europe and
designed to protect the member states of the Europe from communist subversion. This, in part,
explains the constant references to values and principles that are "necessary in a democratic
society" throughout the Convention, despite the fact that such principles are not in any way
defined within the convention itself.
 HISTORY OF UNIVERSAL HUMAN RIGHTS
 The term human rights have only come into common currency during the 20th century.
 The idea of 'human rights' is not universal - it is essentially the product of 17th and 18th century
European thought.
 The great religions of the world - Judaism, Hinduism, Christianity, Buddhism, Taoism, Islam, and others
- have all sought to establish comprehensive, coherent moral codes of conduct based on divine law.
All contain profound ideas on the dignity of the human being, and are concerned with the duties and
obligations of man to his fellow human beings, to nature and indeed to God and the whole of creation.
 After 17th century the attention moved from social responsibilities to the individual's needs and
participation. It was seen as fundamental to the well-being of society, under the influence of
philosophers such as Hobbes and Locke, then, these rights were called 'natural' rights, or 'the rights of
man'. These natural or moral rights became part of the political agenda.
 One of the first, and most important, battles was about politics. Could 'natural rights' be handed over
to rulers? People in their 'natural' condition have unlimited freedom. If they choose to be ruled, they
surrender either all, or some at least of this 'natural right' to their king or government, in exchange for
civil society and peace. If they could surrender 'all', then people could be subjected to absolute
government authority, and be under an absolute duty to obey. If only some could be surrendered,
then the question is what part of those freedoms do we give up?
 This issue became a tremendous cause in 17th century England. The protection of the people's rights
(especially the right to political participation, and freedom of religious belief) against an oppressive
government led to the English Bill of Rights, in 1689.
 The Bill of Rights dealt with the fundamental concerns of the time. It made the King subject to the rule
of law, like any citizen, instead of claiming to be the law's (divine) source. It required the King to
respect the power of Parliament - elected by the people, with the power to control the state's money
and property. It protected some basic rights to justice - excessive bail or fines, cruel and unusual
punishments and unfair trials: it guaranteed juries, impartial courts and independent judges. It
repeated some of royal promises made by King John, under duress, in the Magna Carta (though Magna

Carta was intended to benefit the privileges of the aristocracy (A privileged class holding hereditary
titles) of the time, not the whole population).
 Towards the end of the 18th century, according to the philosopher John Locke, it was argued that it
was part of God's natural law that no-one should harm anybody else in their life, health, liberty or
possessions. These rights could never be given up. The existence of this natural law also established
the right to do whatever was necessary to protect such rights.
 This view limited the role of government. No-one could be subjected to another's rule unless they
consented. A government's responsibility became the duty to protect natural rights. This limited what
it could legitimately do and gave its citizens the right to defy and overthrow a government that
overstepped its 'legitimate' authority.
 European Convention on Human Rights (ECHR)
 Preamble: The Governments signatory hereto, being Members of the Council of Europe,
Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the
United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal
and effective recognition and observance of the Rights therein declared; Considering that the aim of
the Council of Europe is the achievement of greater unity between its Members and that one of the
methods by which the aim is to be pursued is the maintenance and further realization of Human
Rights and Fundamental Freedoms; Reaffirming their profound belief in those Fundamental Freedoms
which are the foundation of justice and peace in the world and are best maintained on the one hand
by an effective political democracy and on the other by a common understanding and observance of
the Human Rights upon which they depend; Being resolved, as the Governments of European countries
which are like-minded and have a common heritage of political traditions, ideals, freedom and the
rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the
Universal Declaration; Have agreed as follows:
 ARTICLE 1: Obligation to respect human rights
 The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in this Convention.
 ARTICLE 2: Right to Life
 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his conviction of a crime for which this penalty is
provided by law.
 The right to life has become particularly prevalent in relation to issues of state security in society,
illustrated by the decision in Nikolova & Velichkova v. Bulgaria [2007] ECHR 1128 regarding whether
the national police force in Bulgaria had violated Article 2.
 The possibility of obtaining compensation for the death of a person provided sufficient redress for an
alleged violation of Article 2.
 But the object and purpose of the European Convention requires Article 2 to be interpreted and
applied to make its safeguards practical and effective, supported by Anguelova v. Bulgaria, whilst also
imposing a duty on the State to secure the right to life with effective criminal law provisions, illustrated

by Menson v. The United Kingdom (dec.), - because of the positive obligations placed upon the state,
according to Nachova & Others v. Bulgaria [GC], - through an effective investigation to maintain public
confidence, supported by Paul & Audrey Edwards v. the United Kingdom, and trial process, in keeping
with Turkmen v. Turkey, 2006.
 Does right to life apply to an unborn child? Or when does right to life begin?
 Kara V. UK.
 A woman was mistaken for another patient and was treated for another diagnose. When it was
realised that she was pregnant and had a wrong operation had been performed, a therapeutic abortion
was carried out on health grounds.
 She failed in an action for unintentional homicide and made an application to the European Court to
determine whether the unavailability of criminal remedy for destruction of foetus amounts to failure
to protect by law the right to life within the meaning of Article 2 of the convention. The Court held that
a foetus is not protected but failed to define 'everyone' whose life is protected under Article 2 of the
HRA.
 ARTICLE 3: Prohibition of Torture
 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
 This aspect of human rights law has become particularly relevant in relation to immigration because a
country that knowingly sends someone into a situation where they are likely to be violently persecuted
is in breach of Article 3, illustrated by Soering v. UK (1989) 11 EHRR 439 a duty was owed to protect
the human rights of a non-national, according to the circumstances surrounding their removal or
extradition under Article 3, it has now been recognised a state's obligations are only exceptionally
engaged, illustrated by N v. SSHD [2003] EWCA Civ 1369, and this has since become well established in
the European Court of Human Rights jurisprudence, illustrated by Cruz Varas & Others v. Sweden
1991.
 ARTICLE 4: Prohibition of slavery and forced Labour
 1. No one shall be held in slavery or servitude.
 2. No one shall be required to perform forced or compulsory Labour.
 Detaining and working while serving a prison sentence does not constitute slavery and servitude under
Article 4 of the convention right.
 R V. Shayler [2003] 1 AC 247.
 The applicant was sentenced for theft for a period of two years imprisonment. He was also ordered to
be placed under governmental disposal for a period of ten years as a result of his tendency to commit
further crimes. After serving the sentence and while in recidivist in attempt to reintegrate him into the
society. He appealed against his continued detention to earn money to sustain a living when released
and his being placed at government disposal for 10 years as violating Article 4 of the Human Rights Act.
 The European Court rejected this claims and held that the detention was not an act of servitude as only
particularly serious' form of 'denial of freedom' could amount to this.
 ARTICLE 5: Right to liberty and security
 Everyone has the right to liberty and security of person.

 During anti-capitalist demonstrations in London on May 1 2001, the police cordoned in up to three
thousand demonstrators in Oxford Circus for up to 7 hours.
 The House of Lords held that measures of crowd control undertaken in the interests of the community
will fall outside of Article 5 right to liberty as long as they are not arbitrary, are resorted to in good
faith, and are proportionate and enforced for no longer than necessary. It was held that the use of the
cordon, which had resulted in people being held in one place without food, water or shelter, was not a
deprivation of liberty. There was no breach of Article 5, A v United Kingdom ECtHR 2009.
 S and Marper v United Kingdom ECtHR 2008.
 Derogation from right to liberty, whether justified on grounds of national security. Right of D to know
reason for arrest and any charge against him.
 In the UK, non-national terrorist suspects may be detained indefinitely without charge. This case
considered 11 applicants subject to detention on the grounds that they were suspected terrorists. The
UK had issued a derogation order, stating that a breach of Art 5 right to liberty was necessary to
protect national security. The suspects were not permitted to hear all the evidence against them,
because of national security fears, and so Special Advocates were appointed.
 It was held by the European Court of Human Rights that some of the applicants had suffered breaches
of Article 5(1) and 5(2). The UK had discriminated unjustifiably between national and non-national
terror suspects, and that the measures adopted were disproportionate. The Special Advocate
procedure was justified, but that the suspect must be given specific details sufficient to mount a
defence.
 Ever since the 9/11, as policing has tightened up in the wake of terrorist attacks, the right to liberty and
security for minorities in particular has often been called into question.
 By way of illustration, in R (on the application of Al-Jedda) v. Secretary of State for Defence [2005]
EWHC 1809 this case concerned A, who had been born in Iraq, and had been granted asylum in the UK
and was later granted British nationality. He had travelled to Iraq in 2004 and was detained by British
armed forces on suspicion of terrorist activities and argued his detention breached his rights under
Article 5 of the ECHR 1950.
 But in this case it was held refusing a claim for judicial review and rights under the Human Rights Act
1998 were capable of being overridden by a UN Security Council Resolution 1546 to detain A that
overrode the UK's obligation under Article 5 to the extent permitted by the resolution as a reflection of
the circumstances at the time - i.e. the fear of terrorist attack.
 ARTICLE 6: Right to fair trial
 1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law.
 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according
to law.
 The right to a 'fair trial' is fundamental in a democratic society, such as the UK, according to Thompson
v. United Kingdom (2005) 40 EHRR 11.

 This is effectively illustrated by Dowsett v. United Kingdom (2003) 38 EHRR 845, where it was held
there had been a violation of Article 6 because the prosecution had failed to disclose the material
evidence, also supported by Edwards & Lewis v. United Kingdom (2005) 40 EHRR 24.
 Moreover, in the context of legal representation it was held in Hooper v. United Kingdom 2004
(unreported) there had been a violation of Articles 6 when the applicant and their legal representative
was denied the opportunity to address the magistrate.
 Issues regarding a fair trial have also been considered with regards to young people, illustrated by SC v.
United Kingdom [2004] 40 EHRR 121 where it was held there had been a violation of Article 6(1) when
a young person of 11 years of age was tried in an adult court and convicted for attempted robbery, it
was held the boy had been incapable of fully understanding the proceedings and their consequences
so the court could not conclude the applicant was capable of participating.
 Ghaidan v Godin-Mendoza [2004] UKHL 30
 In the UK, intercept evidence is currently inadmissible. However, there is currently a call on the
Government to bring in an intercept evidence regime in order to support increased prosecutions.
 In this case the applicant was suspected of drugs trafficking. Telephone intercept evidence was used in
the investigation and pre-trial investigation material contained details of 21 telephone conversations.
On appeal the applicant contended that other telephone conversations could have proved his
innocence, and that the intercepts of these conversations had never been disclosed. The prosecution
maintained that the recordings were destroyed because they were not connected to an offence, and
could not have been retained without breaching the law.
 It was held by the European Court of Human Rights that Article 6(3)(b), which guarantees the accused
the right to prepare his defence without restriction, had been breached. The accused had not been
given an opportunity to acquaint himself with the results of the investigations. The public prosecutor's
duty to act fairly and impartially in assessing what recordings were relevant was insufficient to
safeguard the applicant's rights.
 ARTICLE 7: No punishment without Law
 No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal
offence was committed.
 ARTICLE 8: Right to respect for private and family life
 Everyone has the right to respect for his private and family life, his home and his correspondence.
 Retention of DNA from individuals not convicted of an offence.
 In 2001 the law in the UK was changed to allow the retention of fingerprints, cellular samples and DNA
profiles of individuals who have not been convicted of a crime or even charged with an offence. The
statutory basis of the system is contained in section 64(1A) of PACE 1984.
 Natunen v Finland ECtHR 2009
 S was arrested in January 2001, aged 11, and charged with attempted robbery. His fingerprints and
DNA were taken. He was then acquitted in June 2001. Marper was arrested in March 2001, aged 38,

and charged with harassment. His fingerprints and DNA samples were taken but charges were not
pressed and the case was discontinued.
 Both applicants requested that their fingerprints and DNA samples be destroyed. The police refused,
indicating that the Chief Constable had a policy of retaining samples in all cases. The applicants
contended that retention was incompatible with their right to respect for private life under Art 8.
 The Grand Chamber of the ECtHR held that the UK's blanket approach to the retention of DNA from
individuals not convicted of an offence was a disproportionate inference with respect for private life
under Art 8.
 Prior to 1995, English law did not protect an individual's privacy and largely protected breaches of
confidence only, supported by Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41, until the decision in
Peck v. UK (2003) 36 E.H.R.R. 41.
 As a result, there is no longer a need for a 'special relationship' because it was recognised in Attorney
General v. Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 that "a duty of confidence arises when
confidential information comes to the knowledge of a person ... with the effect that it would be just in
all the circumstances that he should be precluded from disclosing the information to others" and this is
also supported by Campbell v. MGN Ltd [2004] UKHL 22.
 In Douglas v. Hello! [2001] 2 WLR 992 to comply with its duties the court recognised they were obliged
to interpret 'breach of duty' as including all the rights protected under the European Convention in
relation to privacy.
 As was further illustrated by decisions, including Theakston v. MGN Ltd [2002] EWHC 137 QB, there is
a need to strike a balance between these two rights that will vary considerably depending on who is
involved (i.e. in certain situations someone who actively courts publicity may be less entitled to
protection than someone who does not - the difference between celebrity and the rest of society - in
keeping with the decision in Woodward v. Huchins [1977] 1 WLR 760).
 ARTICLE 9: Freedom of thought, conscience and religion
 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.
 Often in looking to provide medical care, medical personnel have to be aware of the fact that patients
may refuse treatment where they believe this will contravene their beliefs and was considered
indirectly in the decision in Hoffmann v. Austria (1993) Series A, No. 255.
 But in Arrowsmith v. UK (1978) 19 DR 5 it had previously been indicated that 'religious practice' does
not cover every act motivated by religion so such a right is likely to be ignored.
 Therefore, with this in mind, to at least assert such a right it will be necessary to determine whether
there is any advanced directive in place that gives effect to an individual's beliefs and carried a card
that effectively prohibited their treatment, on the basis of Malette v. Schulman (1990) 67 DLR (4th)
321, "to speak in circumstances where the card carrier cannot".

 ARTICLE 10: Freedom of expression
 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority. This article shall
not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
 Directorate of Public Prosecution V. Jones (Margaret) and Anor [1999] 2 AC 249
 This case clearly showed that the sections 1(1) and 4(1) of the Official Secrets Act, which prohibits
member of the intelligence service form disclosing information, is not incompatible with the Article 10
of the Human Rights Act 1998 which guaranteed the freedom of expression.
 Shayler, a secret service agent, sold information to a newspaper company. This information was
matters of national security and intelligence which he came across by virtue of employment with the
service. He pleaded that the disclosure was made on the ground of public interest.
 The court held that the combined effect of Ss. 1 (1) and 4 (1) was that a defendant could not rely on a
defence of public and national interest to disclose information protected by these sections.
Furthermore, this does not amount to restriction on freedom of expression as article 10 "did not ban
absolutely any disclosure. Rather it restricted disclosure unless lawful authority has been gained."
 ARTICLE 11: Freedom of assembly and association
 Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
 Taking part in a lawful assembly in public places does not amount to trespass.
 The Defendant and others were part of a peaceful demonstration on a highway where there was a
prohibition of trespasser assembly in force according to Section 14A of the Public Order Act 1986.
 They appealed against their conviction and it was held that a public highway is a place of lawful
assembly. Acts which does not involve nuisance should not be regarded as trespass and a right of
peaceful assemble to lawfully use the highway can exist subject to complying with the restriction.
 In looking to discuss some of what are considered to be the key human rights in this country, it is
important to also look to show where they have been applied. Therefore this section will look to
present some of the rights within the contexts that they commonly arisen in recent times to allow for a
better understanding.
 ARTICLE 12: Right to marry
 Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.
 ARTICLE 13: Right to an effective remedy
 Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by persons
acting in an official capacity.
 ARTICLE 14: Prohibition of discrimination
 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, color, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.

 As a reflection of the way which society has changed where, at one time, no violation was involved in a
failure to change the birth certificate of a transsexual but, in Goodwin v. United Kingdom [2002] 35
EHRR 447, it was held there was no justification for barring the legal recognition of a transsexual under
any circumstances within this country's margin of appreciation.
 Vo V. France 40 EHRR 12
 Whether a section referring to a person who had lived as the wife or husband of a deceased could be
interpreted to include same-sex couples.
 The case concerned the right of succession to a tenancy of the spouse of the deceased or the person
who had lived with them as his or her wife or husband. On a straight interpretation of the section, the
applicant could not benefit as he was the homosexual partner of the deceased man.
 It was found by the House of Lords that such an interpretation would render the section incompatible
with Art 8 of the Convention, when read along with Art 14, in that it discriminated against same-sex
couples. It was held that section 3 of the Human Rights Act 1998 allowed the section to be read as
applying to homosexual couples.
 Protocols
 This is the name given to new Rights, which have been added to the original Convention over the
years.
 Enforcement of certain Rights and Freedoms not included in Section I of the Convention
 The Governments signatory hereto, being Members of the Council of Europe, Being resolved to take
steps to ensure the collective enforcement of certain rights and freedoms other than those already
included in Section I of the Convention for the Protection of Human Rights and Fundamental Freedoms
signed at Rome on 4th November, 1950 (hereinafter referred to as 'the Convention'),
 Have agreed as follows:
 ARTICLE 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
 ARTICLE 2: No person shall be denied the right to education. In the exercise of any functions which it
assumes in relation to education and to teaching, the State shall respect the right of parents to ensure
such education and teaching in conformity with their own religions and philosophical convictions.
 ARTICLE 3: The High Contracting Parties undertake to hold free elections at reasonable intervals by
secret ballot, under conditions which will ensure the free expression of the opinion of the people in the
choice of the legislature.
 HUMAN RIGHT ACT 1998
 Introduction
 The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent
on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect"
in UK law to the rights contained in the Convention for the Protection of Human Rights and
Fundamental Freedoms, but more commonly known as the European Convention on Human Rights.

 The Act makes available in UK courts a remedy for breach of a Convention right, without the need to
go to the European Court of Human Rights in Strasbourg.
 In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with
the Convention, unless the wording of any other primary legislation provides no other choice.
 It also requires the judiciary (including tribunals) to take account of any decision, Judgement or opinion
of the European Court of Human Rights, known as the Strasbourg court, and to interpret legislation, as
far as possible, in a way which is compatible with Convention rights. However, if it is not possible to
interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not
allowed to override it. All they can do is issue a declaration. This declaration does not affect the validity
of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of
Parliamentary sovereignty. However, judges may strike down secondary legislation, so long as the
legislation does not derive its power from primary legislation.
 Under the Act, individuals retain the right to sue in the Strasbourg court.
 The situation before the Human Rights Act 1998
 The Convention was in force, so far as international law was concerned, from 1951. A considerable
number of cases against the U.K. arose prior to the Human Rights Act 1998 and, in many of those
cases, the European Court found against the U.K. This necessitated changes to the law which were
usually effected by legislation. A good example is the case of Malone v U.K. (1984) 7 EHRR 14 (Malone
v United Kingdom (1984) 7 EHRR 14, said that UK allowing the phone tapping is in breach of its
obligations under the ECHR) which concerned interception of communications. The finding against the
U.K. led to the Interception of Communications Act 1985 which is now replaced by the Regulation of
Investigatory Powers Act 2000 (or "RIPA").
 In a number of cases in U.K. courts points were raised regarding the convention and this had an effect
on the outcome of some of those cases. An example here is Derbyshire County Council v Times
Newspapers Ltd [1992] QB 770, Article 10 (Freedom of Expression) was persuasive in the House of
Lords decision that a local authority could not sue in libel.
 Background to the Human Rights Act 1998
 For many years, a number of reasons were advanced for not giving full effect within the U.K. to the
Convention. These included the risks of: damaging the doctrine of parliamentary sovereignty; judges
gaining too much power; difficult questions being decided by judges rather than by elected politicians.
Many argued that the rights were already adequately protected by the common law though, in reality,
this was never a very sound argument since common law rights were often ill-defined and could be
altered or removed by legislation.
 In manifesto for the 1997 general election, the Labour party pledged to incorporate the European
Convention into domestic law. When the election resulted in a landslide Labour victory, the party,
under the leadership of Tony Blair, fulfilled this pledge through Parliamentary passage of the Human
Rights Act the following year.
 The 1997 white paper "Rights Brought Home" stated: It takes on average five years to get an action
into the European Court of Human Rights once all domestic remedies have been exhausted; and it

costs an average of £30,000. Bringing these rights home will mean that the British people will be able
to argue for their rights in the British courts – without this inordinate delay and cost.
 Aim
 "To give further effect to rights and freedoms guaranteed under the European convention on human
rights; to make provision with respect to holders of certain judicial offices who become judges of the
European court of human rights."
 Human Rights Act 1998
 The Convention on Human Rights contains twelve fundamental rights and sovereignties. A further five
are added by the first and sixth practices.
 Some moralities are 'unqualified rights' which means they are absolute. There is no need for the Court
to consider whether the action of the body making the decision was reasonable. It only has to look at
whether a Convention Right was violated.
 Some of the truths are qualified rights and these only apply so long as there is no conflict with some
other, equally weighty, rights or interests.
 Creates an obligation on British courts to take case law from the European court of human rights into
account and to interpret legislation in a way that is compatible with the convention on human rights.
 Places an obligation on public authorities, including courts and tribunals and some private
organisations exercising public functions, to act in a way compatible with human rights.
 Requires the courts to pay particular regard to the importance of the right to freedom of expression in
order to protect press freedom.
 Requires the courts to recognize the importance of "freedom of thought, conscience and religion"
when a case involves a religious organisation.
 Incorporates into British law key elements of the European convention on human rights including:
 Article 2: Right to life
 Article 3: Prohibition of torture
 Article 4: Prohibition of slavery and forced Labour
 Article 5: Right to liberty and security
 Article 6: Right to a fair trial
 Article 7: No punishment without law
 Article 8: Right to respect for private and family life
 Article 9: Freedom of thought, conscience and religion
 Article 10: Freedom of expression
 Article 11: Freedom of assembly and association
 Article 12: Right to marry
 Article 14: Prohibition of discrimination
 Protocol No. 1
 Article 1 : Protection of property
 Article 2 : Right to education
 Article 3 : Right to free elections
 Protocol No. 6
 Article 1 : Abolition of the death penalty
 Article 2 : Death penalty in time of war
 Reasons for and application of Human Rights Act 1998
 Many members of the business and insurance communities still tend to view the Act as largely
confined to the spheres of criminal law, civil liberties and the like. However, the Act has a Spreading
and analyzes effect across the whole range of English law.
 It also impacts on the role of the judiciary and, in particular, the relationship between the media and
the judiciary.
 The Act incorporates the European Convention on Human Rights (ECHR) into UK law and requires all
domestic legislation and law to be read and given effect to in a way that is compatible with the ECHR.
 If it is not compatible, the courts will be able to make a declaration and refer the matter back to
Government to consider making a remedial order.
 In effect, the Act introduced a new rule of statutory interpretation.
 Lawyers have to take account of the jurisprudence of the European Court of Human Rights in
Strasbourg.
 This jurisprudence imports new concepts into English.
 English lawyers need to have regard to a far wider range of case law than that before the Act.
 The broad moral statements of the convention rights are new to most English lawyers. They are not
used to construing terms such as a "right to privacy" or a "right to family life".
 English lawyers, who have spent more time interpreting contracts and conveyances than articles in a
constitution, have had to learn how to interpret these rights and apply them to specific problems.
 The Act makes it unlawful for any "public authority" to act in a way which is incompatible with a
convention right.
 There is also provision for hybrid bodies that perform both public and private functions and they are
required to comply absolutely with the rights in the Act in the performance of the public function.
These types of bodies include the privatised utilities, Railway authorities and private schools.
 All bodies subject to judicial review proceedings and bodies, which carry out some function, which
could be defined as public, are caught by the Act.
 The media continue to make use of this Article not least because the Act also introduces a right to
privacy, which is increasingly used to challenge it.
 One of the driving forces behind the swift passage of the Human Rights Bill through Parliament was the
concern over the absence of a privacy law in the. The Courts may, over time, develop such a law from
the existing laws of nuisance and trespass. This can be seen to be happening with the use of the tort
of breach confidentiality.
 Judges at all levels have found themselves subject to greater media scrutiny. When applying the Act
they are required to make moral and ethical decisions of great emotive value.
 The impact of the Act has not been as enormous as expected, because some of the rights already
existed in UK law.

 Contribution of the HRA 1998 to the development of English law
 The passage of the Human Rights Act 1998 was an important step in the development of the rights of
individuals.
 The Human Rights Act represents a turning point in the development of the rights of individuals,
because the major emphasize of HRA is on individual’s rights, because the rights protected under HRA
such as freedom of movement, family life, religion, the right to a fair trial etc. are relevant to
individuals.
 The basic aim of the incorporation into UK law is the well-being of the society as a whole.
 When I think why it’s necessary to incorporate the ECHR into English Law? Then one reason is UK was
one of the early signatories to the ECHR in 1950 but citizens of Uk going for basic human rights to the
Court of Human Rights in Strasbourg rather than in their own country which causes delay, cost and
difficulties of taking a case in a foreign court, that was a big question mark on the court system of Uk,
as R v Secretary of State for Home department ex p Brind (1991).
 ECHR now incorporated into the UK law by the HRA in 1998. Some rights are absolute and cannot be
interfered with by the state, others are subject to limitations.
 The impact of the Act can be seen in constitutional terms e.g. the effect of the HRA on the doctrine of
Parliamentary Sovereignty, that HRA also gave a direction to UK parliament to consider fundamental
rights while doing legislation in simple words we can say Legislation must include a statement of
compatibility. The judiciary cannot simply declare a piece of legislation to be unenforceable but simply
state that it is incompatible.
 The Act also requires courts to take into account any previous decision of the ECHR.
 Bringing a case to the court
 The procedure provide under this Act is that a person whose right is violated by any public authority
may bring a case against that authority. If your claim is justified that your right has been breached then
court can only order damages. The major areas of cases are criminal and immigration law.
 For example a school’s refusal to allow one of its pupils to wear a purity ring – Held by the Queen’s
Bench Division in Playfoot v Millais School Governing Body (2007)
 The question arose in the above case regarding the freedom of thought, conscience and religion, so the
aggrieved party will go to the domestic court.
 The major issue under discussion is whether Celebrities enjoy extra right to privacy, (Potter J. in
Murray v Express Newspapers PLC and others (2007)) the reference is to the photographing of
J.K.Rowling's son by some ‘celebrity’ magazine, whilst the child was on a shopping trip in Edinburgh. It
was held not to be an invasion of his right to privacy.
 The one other example from daily life is the collection and storage of information by an employer of an
employee’s telephone, e-mail and internet usage at the place of work. Copland v United Kingdom
[2007] a breach of Article 8 was found in this case which is similar breaches of the right to privacy.
 Declaration of Incompatibility
 If any piece of legislation is not compatible with the ECHR then the court is bound to apply the
legislation but may make a declaration of incompatibility with the convention.
 Section 10 of the Act gives the power to the minister to amend the legislation and bring it into
compatible with the convention. Any such amendment to the legislation must be approved by the
parliament.
 The main point in this regard is that the action will not help the aggrieved person who is complaining
about the breach of right but in future other people’s rights will not be breached by bringing that piece
into compatibility.
 The first case in this regard that was declared incompatible with the convention was H v Mental Health
Review Tribunal (2001) The appellant argued that his right to liberty under Article 5 was violated by
the Mental Health Review Tribunal, who denied his request for discharge. He argued that the standard
used by the Tribunal under the Mental Health Act 1983 - that he was no longer suffering from a mental
illness that made it appropriate for him to be detained and that he was no longer a danger to the
public - impermissibly placed the burden of proof on him to prove that he was eligible for discharge.
The Court of Appeal agreed with the appellant and issued a declaration of incompatibility.
 Declaration of incompatibility made: Sections 72(1) and 73(1) of the Mental Health Act 1983 are
incompatible with Articles 5(1) and 5(4) of the European Convention of Human Rights in that, for the
Mental Health Review Tribunal to be obliged to order a patient's discharge, the burden is placed upon
the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist;
and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria
justifying the patient's detention in hospital for treatment continue to exist before refusing a patient's
discharge.
 Government’s response in case of declaration of incompatibility
 Usually after the declaration of incompatibility Govt. change the law by following the declaration of
incompatibility.
 The parliament can pass a new Act to replace the incompatible one or in case of small part a remedial
order can be passed.
 An example of the law being changed by following the HOL decision A and another v Secretary of state
for the home department (2004) The applicants had been imprisoned and held without trial, being
suspected of international terrorism. No criminal charges were intended to be brought. They were
foreigners and free to return home if they wished, but feared for their lives if they did. A British
subject, who was suspected in the exact same way, and there were many such, could not be similarly
held. The Government had derogated from their obligations under the Convention to allow such
detentions.
 Held: The holding of a person without trial must require the strongest justification. Article 5 does not
permit internment on security grounds. Other countries faced with similar threats had not issued
derogations from the Convention. Derogating measures must go no further than is strictly required by
the exigencies of the situation and the prohibition of discrimination on grounds of nationality or
immigration status has not been the subject of derogation. The SIAC set too low a standard for the
scrutiny that the national court must carry out in order to test the proposition that the derogation is
strictly necessary. The derogation was not proportionate. ” There will be a quashing order in respect of
the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under
section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act
2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate
and permits detention of suspected international terrorists in a way that discriminates on the ground
of nationality or immigration status. “
 Remedial order
 A remedial order is a statutory instrument which amends the incompatible provision in order to
comply with the ECHR.
 An example of a remedial order was used to amend an Act in a case B and L v UK (2006) English law
prohibited a parent-in-law from marrying their child-in-law unless both had reached aged 21 and both
their respective spouses had died. B was L’s father-in-law, and they wished to marry. L’s son treated his
grandfather, B, as ‘Dad’. The court accepted the government’s argument that the legislation had the

legitimate aim of protecting the family and any children of the couple. However, it nonetheless
considered that there had been a violation of the right to marry. The prohibition was based primarily
on tradition. There was no legal prohibition on a couple in this situation engaging in an extra-marital
relationship. Moreover, on several occasions couples had obtained exemptions from the prohibition by
personal Acts of Parliament. This showed that the objections to such marriages were not absolute.
 The ECtHR held that there was a breach of Article 12. Following this the Marriage Act 1949 (remedial)
order 2006 was passed. This order removed the prohibition on in-laws marrying.
 Parliament, Joint Committee on Human Rights
 The Joint Committee on Human Rights consists of twelve members, appointed from both the House of
Commons and the House of Lords. The Committee is charged with considering human rights issues in
the UK but cannot take up individual cases. It undertakes inquiries on human rights issues and reports
its findings and recommendations to the House. It scrutinises all Government Bills and picks out those
with significant human rights implications for further examination.
 The committee has the following functions:
1. to examine Bills for Acts, and legislative instruments, that come before either House of the
Parliament for compatibility with human rights, and to report to both Houses of the parliament
on that issue;
2. to examine Acts for compatibility with human rights, and to report to both Houses of the
Parliament on that issue;
3. to inquire into any matter relating to human rights which is referred to it by the Attorney-
General, and report to both Houses of the Parliament on that matter.
 The committee is to report on each of these matters to both Houses of Parliament.
 European Court of Human Rights
 The European Court of Human Rights is an international court established by the European Convention
on Human Rights. It hears applications alleging that a contracting state has breached one or more of
the human rights provisions concerning civil and political rights set out in the Convention and its
protocols.
 An application can be lodged by an individual, a group of individuals or one or more of the other
contracting states, and, besides judgments, the Court can also issue advisory opinions.
 The Convention was adopted within the context of the Council of Europe, and all of its member states
are contracting parties to the Convention. The Court is based in Strasbourg, France.
 History and Structure
 The Court was established on the 21 January 1959 on the basis of Article 19 of the European
Convention on Human Rights when its first members were elected by the Consultative Assembly of the
Council of Europe.
 The Convention charges the Court with ensuring the observance of the engagement undertaken by the
contracting states in relation to the Convention and its protocols that is ensuring the enforcement and
implementation of the European Convention in the member states of the Council of Europe.
 The jurisdiction of the Court has been recognized to date by all member states of the Council of
Europe.
 Protocol 14 amended the Convention so that judges would be elected for a non-renewable term of
nine years, whereas previously judges served a six year term with the option of renewal. Amendments
were also made so that a single judge could reject plainly inadmissible applications, while prior to this
protocol only a three judge committee could make this final decision. In cases of doubt, the single
judge refers the applications to the Committee of the Court. A single judge may not examine
applications against the state which nominated him. The three judge committee has jurisdiction to
declare applications admissible and decide on the merits of the case if it was clearly well founded and
based on well-established case law. Previously the three judge committee could only declare the case
inadmissible, but could not decide on the merits of the case, which could only be done by a chamber of
seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee
decides on the merits of a case, the judge elected to represent that state is no longer a compulsory
member of this committee. The judge can be invited by the committee, to replace one of its members,
but only for specific reasons, such as when the application relates to the exhaustion of national legal
remedies.
 Protocol 14 empowered the Court to declare applications inadmissible where the applicant has not
suffered a significant disadvantage and which do not raise serious questions affecting the application
or the interpretation of the Convention, or important questions concerning national law. The European
Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written
comments and taking part in hearings. In order to reduce the workload of the Court, Protocol 14 states
that the Court should encourage the parties to reach a settlement at an early stage of the proceedings,
especially in repetitive cases. The Committee of Ministers supervises the settlement's execution.
Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgment if
there are difficulties in the execution of a final judgment. In order to prevent repetitive applications
concerning structural problems in contracting states on which the Court has previously made a final
decision, the Committee of Ministers can in exceptional circumstances and with a two-thirds majority,
initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court.
Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the
Lisbon Treaty, which entered force in December 2009, provides that the European Union should
accede and become a party to the Convention. The Committee of Ministers is to evaluate in 2012 to
2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the
Court. The Committee of Ministers is to decide before 2019 whether more reforms of the Court are
necessary.
 Judges
 Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of
renewal of this term. Now judges are elected for a non-renewable nine year term.
 The number of full-time judges sitting in the Court is equal to that of the contracting states to the
European Convention on Human Rights.
 The Convention requires that judges are of high moral character and to have qualifications suitable for
high judicial office.

 Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the
three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's
term has expired or when a new state accedes to the Covenant.
 The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected
or until the cases in which they sit have come to an end.
 The judges perform their duties in an individual capacity and are prohibited from having any
institutional or other type of ties with the contracting state on behalf of whom they were elected.
 To ensure the independence of the Court judges are not allowed to participate in activity that may
compromise the Court's independence. A judge cannot hear or decide a case if he has a family or
professional relationship with the parties. Judges can only be dismissed from office if the other judges
decide, by two-thirds majority, that the judge has ceased to fulfill the required conditions. Judges
enjoy, during their term as judges, the privileges and immunities provided for in Article 40 of the
Statute of the Council of Europe.
 Plenary court and administration
 The plenary court is an assembly of all of the Court's judges. It has no judicial functions.
 It elects the court's president, vice-president, registrar and deputy registrar.
 It also deals with administrative matters, discipline, working methods, reforms, and the establishment
of Chambers and the adoption of the Rules of Court.
 Jurisdiction
 The jurisdiction of the court is generally divided into inter-state cases, applications by individuals
against contracting states, and advisory opinions in accordance with Protocol No.2.
 Applications by individuals constitute the majority of cases heard by the Court.
 A Committee is constituted by three judges, Chambers by seven judges and a Grand Chamber by 17
judges.
 Applications by individuals
 Applications by individuals against contracting states, alleging that the state violates their rights under
the European Convention on Human Rights, can be made by any person, non-governmental
organisation or group of individuals.
 Although the official languages of the Court are English and French, applications may be submitted in
any one of the official languages of the contracting states.
 An application has to be made in writing and signed by the applicant or by the applicant's
representative. Once registered with the Court, the case is assigned to a judge, which can make the
final decision that the case is inadmissible.
 A case may be inadmissible when it is incompatible with the requirements of ratione materiae (by
reason of the subject matter), ratione temporis ( The court can either lose temporal jurisdiction
because the deadline for litigation of the particular action has expired) or ratione personae (by reason
of his person), or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of
domestic remedies, lapse of the six months from the last internal decision complained of, anonymity,

substantial identity with a matter already submitted to the Court, or with another procedure of
international investigation.
 If the judge decides that the case can proceed the case if referred to a Chamber of the Court which,
unless it decides that the application is inadmissible, communicates the case to the government of the
state against which the application is made, asking the government to present its observations on the
case.
 The Chamber of Court then deliberates and judges the case on its admissibility and its merit. Cases
which raise serious questions of interpretation and application of the European Convention on Human
Rights, a serious issue of general importance, or which may depart from previous case law can be
heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing
jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts
the referral.
 Inter-state cases
 Any contracting state to the European Convention on Human Rights can sue another contracting state
in the Court for alleged breaches of the Convention, although in practice this is very rare.
 Advisory opinion
 The Committee of Ministers may, by majority vote, ask the Court to deliver an advisory opinion on the
interpretation of the European Convention on Human Rights, unless the matter relates to the content
and scope of fundamental rights which the Court already considers.
 Procedure and decisions
 After the preliminary finding of admissibility the Court examines the case by hearing representations
from both parties.
 The Court may undertake any investigation it deems necessary on the facts or issues raised in the
application and contracting states are required to provide the Court with all necessary assistance for
this purpose.
 The European Convention on Human Rights requires all hearings to be in public, unless there are
exceptional circumstances justifying the holding of a private hearing.
 In practice the majority of cases are heard in private following written pleadings. In confidential
proceedings the Court may assist both parties in securing a settlement, in which case the Court
monitors the compliance of the agreement with the Convention. However, in many cases, a hearing is
not held.
 The judgment of the Grand Chamber is final. Judgments by the Chamber of the Court become final
three months after they are issued, unless a reference to the Grand Chamber for review or appeal has
been made. If the panel of the Grand Chamber rejects the request for referral, the judgment of the
Chamber of the Court becomes final.
 The Court's chamber decides both issues regarding admissibility and merits of the case. Generally, both
these issues are dealt with in the same judgment. In final judgments the Court makes a declaration
that a contracting state has violated the Convention, and may order the contracting state to pay

material and/or moral damages and the legal expenses incurred in domestic courts and the Court in
bringing the case.
 The Court's judgments are public and must contain reasons justifying the decision.
 Article 46 of the Convention provides that contracting states undertake to abide by the Court's final
decision. On the other hand, advisory opinions are, by definition, non-binding.
 The Court has to date decided consistently that under the Convention it has no jurisdiction to annul
domestic laws or administrative practices which violate the Convention.
 The Committee of Ministers of the Council of Europe is charged with supervising the execution of the
Court's judgments. The Committee of Ministers oversees the contracting states' changes to their
national law in order that it is compatible with the Convention, or individual measures taken by the
contracting state to redress violations.
 Judgments by the Court are binding on the respondent states concerned and states usually comply
with the Court's judgments.
 Chambers decide cases by a majority. Any judge who has heard the case can attach to the judgment a
separate opinion. This opinion can concur or dissent with the decision of the Court. In case of a tie in
voting, the President has the casting vote.
 Relationship with other courts
 The European Court of Justice
 The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights.
However, since all EU states are members of the Council of Europe and have signed the Convention on
Human Rights, there are concerns about consistency in case law between the two courts.
 The ECJ refers to the case-law of the European Court of Human Rights and treats the Convention on
Human Rights as though it was part of the EU's legal system, since it forms part of the legal principles
of the EU member states. Even though its member states are party to the Convention, the European
Union itself is not a party, as it did not have competence to do so under previous treaties. However, EU
institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the
Convention.
 Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign
the Convention. This would mean that the Court of Justice is bound by the judicial precedents of the
Court of Human Right’s case law and thus be subject to its human rights law, avoiding issues of
conflicting case law between these two courts.
 National courts: Most of the Contracting Parties to the European Convention on Human Rights
have incorporated the Convention into their own national legal systems, either through constitutional
provision, statute or judicial decision.
 Criticism: The court's interpretation of the Convention's reach is at times subject to criticism as
either too narrow or too wide.
 For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticized the Court for
“reluctance".

 On the other hand, the British Law Lord, Lord Hoffmann argued in 2009 that the Court has not taken
the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to
aggrandize its jurisdiction and to impose uniform rules on Member States. It considers itself the
equivalent of the Supreme Court of the United States, laying down a federal law of Europe". Lord
Hoffman considered that the ability of the court to interfere in the detail of domestic law ought to be
curtailed. He was joined in the criticism by the president of the Belgian Constitutional Court, Marc
Bossuyt.
 Criticism from Russia, a country held to be in violation of the Convention by the Court in many
decisions, is frequent. The Court's judge in respect of Russia, Anatoly Kovler, explaining his frequent
dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary
(Refah v. Turkey)". The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the
Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court
decisions "touching the national sovereignty, the basic constitutional principles".
 There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules
a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of
the Court organs according to the Convention".
 Impact of the HRA on the Judiciary of UK
 Today’s Independent reports that the High Court ruled that the HRA’s right to life applies to the armed
services in a case brought by the family of Private Jason Smith, a soldier who died of heat stroke in
Iraq. It seems likely that the government will appeal to the Law Lords, but senior military officers do
not expect the High Court decision to be overturned.
 The following points could be used to suggest that the role of the judiciary has been changed to a
large extent since the passage of the HRA:
 Since the Human Rights Act (1998) came into force judges have been unafraid to declare government
policy incompatible with the European Convention on Human Rights (particularly in relation to
terrorism).
 In 2002 the Law Lords unanimously ruled that the Home Secretary’s power to increase the minimum
tariff recommended by the trial judge for convicted murderers is ‘incompatible’ with Article 6 of the
ECHR (the right to a fair trial).
 In 2004 the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in
Belmarsh and Broadmoor prisons.
 In 2005 judges declared that evidence gained under torture was inadmissible.
 In October 2007 the Law Lords ruled that 18 hour curfews were in breach of civil liberties under the
ECHR.
 Charlie Falconer, the former Lord Chancellor talks of the effect of the HRA in opening traffic to the
ECHR: “There is no doubt that the Human Rights Act has also established a “dialogue” between English
judges and the European Court of Human Rights. The close analytical attention paid by the English
courts to the European Convention on Human Rights case law is respected in Strasbourg, and have
become influential on the way it approaches English cases.”

 Cynics have also suggested that the security of the nation has been threatened as a result of the newly
granted powers: we have to question whose civil liberties it is that judges are protecting by overturning
large chunks of the government’s anti-terrorist legislation (via judicial review often with reference to
the Human Rights Act). To allow hijackers to remain in the UK because it is supposedly unsafe for them
to return to their home country may protect individual liberties, but potentially undermines the
collective security of the UK.
 It could be argued that the HRA and incorporation of the ECHR has given the judiciary a new sense of
legitimacy, especially in the field of terrorism: judges can also act as a pressure group via their
comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases:
in 2003 Lord Woolf (the ex-Lord Chief Justice) attacked Blunkett’s plans to restrict the sentencing
powers of judges; in 2004 Lord Hoffman declared during the Belmarsh trial that the government’s anti-
terrorism laws were a greater threat to liberty than terrorism itself.
 Further evidence that judges have become more politicised as a result of the HRA is the impact they
have had on politicians: in the summer of 2006, Tony Blair was sufficiently outraged by a High Court
decision which allowed Afghan hijackers temporary leave to remain in Britain as ‘barmy (strange)’, an
unprecedented attack on a ruling by a Prime Minister.
 The following points could be used to suggest that the impact of the HRA on the judicial branch has
been overstated:
 Much has been made about the passage of the Human Rights Act, but this change does not give power
to the judicial branch to strike down actions of Parliament.
 In the highly controversial Belmarsh case, for instance, Parliament could have ignored the Judgement
declaring indefinite detention for foreign nationals. Further, even though Parliament chose not to
ignore the judgment, the suspected international terrorists had to remain in prison until new
legislation was written since the principle of parliamentary sovereignty makes it impossible to strike
down primary legislation. Hence the HRA has provided a moral rather than legal check on the
legislature.
 On a related note, according to the Department for Constitutional Affairs, the ‘vast majority’ of cases
tried within senior courts which contain a human rights aspect ‘would have been lodged
notwithstanding the implementation of the Act’. Further surveys indicate that of the cases that are
tried under the HRA most were determined in favour of the status quo. In short, the HRA has been
used sparingly and in only around 1% of cases since the act came into force have the courts declared
British law incompatible with the ECHR.
 Charlie Falconer supports this point: “Moreover, there have been only 11 occasions upon which the
superior courts have upheld Declarations that Acts of Parliament were incompatible with the
Convention rights, and on each occasion Parliament has passed further legislation putting the law back
into conformity. Arguments that the Human Rights Act has significantly altered the constitutional
balance between Parliament, the Executive and the Judiciary has therefore been considerably
exaggerated.”
 He goes on: “The impact of the Human Rights Act upon the development of UK law has been
significantly less, and significantly less negative, than some predictions made for it from 1997 onwards.
Arguments based on the Human Rights Act have been raised across a whole range of civil and criminal
litigation, and have been explicitly considered in about one third of the cases considered by the House
of Lords since the Act came into force. But in many instances the courts would either have reached the
same conclusion under common law, or found that the decision being challenged had been properly
taken. And, in very many cases, human rights arguments have been rejected by the courts as being
either misconceived or irrelevant to the case.”
 The tremendous growth in judicial review predates the passage of the HRA. Growth in judicial review
indicates an increased willingness of the judicial branch to exercise its powers in declaring actions of
ministers ultra vires (i.e. beyond their statutory power):
 Kenneth Baker: was found in contempt of Court for failure to comply with court order in asylum case.
 Michael Howard: extension of sentences for Bulger killers unlawful.
 Jack Straw: ban on journalists investigating miscarriages of justice overturned.
 All these cases suggest that the HRA has had little effect since they happened before it came into
effect.
 The media has a tendency to report cases where the HRA is referred to, but tend not to focus as
heavily on the outcome of the case being largely unaffected by the existence of the HRA. Falconer
again: “There are a number of reasons why the HRA does not affect the outcome of cases in which it is
raised in argument. First, Convention rights may not be relevant on the facts of the particular case. For
example, Diane Pretty’s attempt to challenge the Director of Public Prosecution’s refusal to provide an
undertaking not to prosecute her husband if he assisted her to commit suicide failed because the
European Convention on Human Rights did not contain an implied right to euthanasia (R (Pretty) v
DPP [2002] 1 AC 800). The recent unsuccessful HRA challenge to the Hunting Act 2004 (R (Countryside
Alliance) v Attorney-General [2006] EWCA Civ 817) failed, in part, because Article 8 was not engaged
at all. Second, even if Convention rights are engaged, the court may hold that interference with the
right is justified. For example, it has been held that the present statutory regimes relating to matters as
disparate as the supply of water (Marcic v Thames Water [2004] 2 AC 42), the regulation of the
solicitors profession (Holder v Law Society [2003] 1 WLR 1059) and the preservation of embryos
(Evans v Amicus Healthcare [2005] Fam 1) are compatible with the European Convention on Human
Rights. In R (Begum) v Denbigh High School ([2006] 2 WLR 719) the House of Lords held that, if
(contrary to the view of the majority) a school’s refusal to allow a pupil to wear a Hijab at school
interfered with her Article 9 rights, the interference was justified… The former Lord Chief Justice, Lord
Woolf, has suggested that if the HRA had not been enacted, human rights would have been absorbed
into the common law in any event as a result of “the changing legal environment and the increased
importance attached to the rule of law around the globe”. The courts have increasingly been prepared
to recognise “common law constitutional rights” similar in content to those found in the European
Convention on Human Rights but independent of it. For example, the House of Lords’ conclusion in A
(No.2) v Home Secretary ([2005] 3 WLR 1249) that the Special Immigration Appeals Commission in
particular and the courts in general could not receive evidence obtained by torture was based not on
the HRA, but on the common law, reinforced by international Conventions. It seems highly unlikely
that the result of this case would have been any different before the HRA was enacted.”
 The rise in profile of judges could be said to have more to do with a drift to the right by successive
Home Secretaries (and now Judicial Secretaries) than the HRA.
 In 2005 senior judges revealed their anger in a newspaper interview about laws passed by the Labour
government which, it was argued, curbed their powers; the former Lord Chief Justice, Lord Phillips,
aired his reservations about England’s prisons crisis. In ‘leaked’ papers of a meeting, Phillips attacked
the Criminal Justice Act 2003 for placing pressure on a prison system that is at record numbers; All of
these points could have been made without the passage of the HRA.
 Human Rights Interpretation and Application in UK Law
 Prior to the enactment of the Human Rights Act 1998, the European Convention was directly relevant
to statutory interpretation because it could not be a source of rights and, unless a statute was
ambiguous, it could not be used for statutory interpretation, according to R v. Secretary of State for
the Home Department ex p. Brind [1991] AC 696 & R (Khail) v. Home Secretary [2006] EWHC 2139.
 Therefore, with this in mind, the Human Rights Act 1998 has given effect to the rights contained in the
European Convention to be enforced in our domestic courts so they can consider the decisions of the
Strasbourg court, but are not bound to follow it under section 2.
 On this basis - (a) section 3 of the Human Rights Act 1998 has imposed on the courts an obligation to
interpret domestic legislation in a manner compatible with European Convention rights, supported by
the declaration of incompatibility means if the courts cannot construe a statute compatibly with the
European Convention they may make such a declaration, illustrated by R (Carson) v. Secretary of State
for Work & Pensions [2005] UKHL 37.
 However, it is still to be appreciated that, ostensibly, the Human Rights Act 1998 still leaves it open for
Parliament to enact legislation violating European Convention rights if it wishes to do so and, for added
clarity, Parliament might specifically state legislation applies - notwithstanding any violation of the
European Convention, according to the decision in Ghaidan v. Godin-Mendoza [2004] UKHL 30.
 But, whilst the interpretation of European Convention rights is dynamic, supported by Soering v. UK
[1989] 11 EHRR 439, and changes from time to time, special problems may arise for the statute law of
member states, illustrated by X Council v. B (Emergency Protection Orders) [2004] EWHC 2015 (Fam),
because jurisprudence may then have moved on, in keeping with Beaulane Properties Limited v.
Palmer [2005] EWHC 1460 (Ch).
 Therefore, with this in mind, section 3 of the Human Rights Act 1998 requires the UK's domestic courts
to construe legislation in the context of European Convention rights as they stand at the time of the
Judgement, so the meaning of statutes may change as interpretations of European Convention rights
change over time.
 Moreover, it is also to be appreciated that the 'retrospectivity' of section 3 of the Human Rights Act
1998 was further clarified by the decision in R (Hurst) v. HM Coroner for Northern District Council
[2005] EWCA Civ. 890.
 Human Rights Cases
 A v. B plc [2003] QB 195
 Anguelova v. Bulgaria, Application No. 38361/97, ECHR 2002 IV

 Arrowsmith v. UK (1978) 19 DR 5
 Attorney-General's Reference (No 4) The Times (15th October 2004)
 Beaulane Properties Limited v. Palmer [2005] EWHC 1460 (Ch)
 Beets & others v. United Kingdom, The Times, 10 March 2005
 Brown v A-G for Scotland 2000 JC 328
 Campbell v. MGN Ltd [2004] UKHL 22
 Coco v. A.N. Clark Engineers Ltd. [1969] R.P.C. 41
 Cullen v. Chief Constable of the RUC [2003] 1 WLR 1763
 Cumming & others v. Chief Constable of Northumbria Police [2003] EWCA Civ 1844
 Delcourt v. Belgium (1970) 1 Eur. H.R. Rep. (ser. A) 355
 Douglas v. Hello! [2001] 2 WLR 992
 Dowsett v. United Kingdom (2003) 38 EHRR 845
 Edwards & Lewis v. United Kingdom (2005) 40 EHRR 24
 Ghaidan v. Godin-Mendoza [2004] UKHL 30
 Goodwin v. United Kingdom [2002] 35 EHRR 447
 Henworth v. United Kingdom (App. No. 515/02)
 Hoffmann v. Austria (1993) Series A, No. 255
 Hooper v. United Kingdom (App. No. 42317/98) (16th November 2004) (unreported)
 Kansal v. United Kingdom [2004] ECHR 179
 King v. United Kingdom (App. No. 13881/02)
 Massey v. United Kingdom (App. No. 14399/02)
 Mellors v. United Kingdom (App. No. 34723/97) (21st May 1998)
 Murray v. United Kingdom App. No. 18731/91, (1996) 22 Eur. H.R. Rep. 29
 Nachova & Others v. Bulgaria [GC], (Application Nos. 43577/98 & 43579/98), ECHR 2005 VII
 Peck v. UK (2003) 36 E.H.R.R. 41
 R v. A (No.2) [2002] 1 AC 45
 R v. Altham [2002] 2 AC 545
 R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326
 R v. Lambert [2002] 2 AC 545 at paragraph 157
 R v. Secretary of State for the Home Department (Respondent), ex parte Bagdanavicius & another
[2005] UKHL 38
 R (Home Secretary) v. Mental Health Review Tribunal [2004] EWHC 2194 (Admin)
 R (Khail) v. Home Secretary [2006] EWHC 2139
 R (R) v. Durham Constabulary [2005] UKHL 21
 R (S) v. Waltham Forest Youth Court [2004] EWHC 715
 R (Wright) v. Home Secretary [2006] EWCA Civ 68
 SC v. United Kingdom [2004] 40 EHRR 121
 Theakston v. MGN Ltd [2002] EWHC 137 QB
 Turkmen v. Turkey, (Application No. 43124/98), 19 December 2006
 Vasquez v. The Queen [1994] 1 WLR 1304

 Woodward v. Huchins [1977] 1 WLR 760
 X Council v. B (Emergency Protection Orders) [2004] EWHC 2015 (Fam)
 Austin v Commissioner of Police for the Metropolis [2009] UKHL 5
 Questions from past papers
 Q1. Evaluate the contribution made by the Human Right Act 1998 to the development of English law?
[MAY / JUNE 2004]
 Q2. Assess the impact of the introduction of the Human Rights Act 1998 on the rights of an individual
in the UK. [October/November 2005]
 Q3. The Human Rights Act represents a turning point in the development of the rights of individuals.
Consider, with appropriate examples, the validity of this statement. [October/November 2006]
 Q4. Discuss the origins and nature of the human rights of the citizen under English law. Has too much
attention been paid to individual rights at the expense of the interests of the wider community?
[October/November 2008]
 Q5. A school’s refusal to allow one of its pupils to wear a purity ring … did not infringe her right of
freedom of thought, conscience and religion protected by the European Convention on Human Rights’.
-Held by the Queen’s Bench Division in Playfoot v Millais School Governing Body (2007) What are the
main rights protected by the European Convention? Consider critically the ways in which they can be
enforced. [May/June 2009]
 Q6. ‘Celebrities enjoy on extra right to privacy’. (Potter J. in Murray v Express Newspaper PLC and
other (2007)) Discuss the right to privacy and other rights protected by the Human Rights Act 1998.
Giving examples assess critically the effectiveness of the legislation. [October/November 2009]
 Q7. ‘The collection and storage of information by an employer of an employee’s telephone, e-mail and
internet usage at the place of work was, in the absence of any legal provisions, unjustified’. – Copland
v United Kingdom (2007) Identify and discuss the breach of human rights found by the Court of
European Human Rights in the above case. How adequately are this and other human rights protected
in the United Kingdom? [October/November 2011]
 Q8. Critically assess the effect which the Human Rights Act 1998 has had on the protection of human
rights in England and Wales. [May/June 2013]
 Q9. ‘The passage of the Human Rights Act 1998 was an important step in the development of the rights
of individuals.’ Consider the validity of this statement using appropriate examples.
[October/November 2013]
 Class activity
 Explanation of historical background to current legislation and issues.
 European Convention and ECHR. Evaluation of effectiveness of legislation and examination of current
and relevant case law.
 Research into current cases.

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