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The amount and type of media coverage currently given to human rights in the UK could easily lead people to think they are used inappropriately to protect the rights of criminals and terrorists. Newspaper headlines often claim that European judges are telling our politicians and judges how to do their jobs, even going as far as to tell the UK to change its laws. Following the decision that the UK’s blanket ban on prisoner voting was in violation of human rights, and the case of Muslim cleric Abu Qatada resisting extradition, many people have criticised the accuracy of human rights law.
These two cases aside, it is important to understand how human rights law can be used to protect the interests of the common citizen. In reality, human rights law is used by many different people every single day; whether it is an employee arguing that he or she was unfairly dismissed, or a tenant fighting back against an unruly landlord. Human rights law can help all of us.
This guide aims to explain the background of human rights law in Europe and the UK. The fundamental root of the European Convention on Human Rights (ECHR) – the leading human rights law instrument – was introduced to ensure that the atrocities committed during the Second World War would never be repeated again in Europe. This convention is not just another treaty; it, along with the European Court on Human Rights, is completely separate from the European Union (EU) and has practical legal effect in Scotland. This introductory guide will outline how all citizens can use it if their rights are being threatened.
Many people have difficulty getting their heads around the numerous institutions and entities within Europe. It is worth noting that the ECHR was not created, nor is it controlled by, the EU.
The ECHR was, similarly to the EU, created in the aftermath of the Second World War, but it is instead linked to a separate institution: the Council of Europe. The Council of Europe has 47 member states, most of which are EU members (for example, the UK is a member of both) but also includes countries which are not members of the EU (for example, Turkey). Like most political institutions, the Council of Europe’s functions are governed by three [LH8]main branches, all of which are based in Strasbourg, France:
The ‘jewel in the crown’ of the Council of Europe, as they themselves say, is the ECHR. The Council of Europe is primarily focused on human rights, unlike the EU which deals with competition law, free movement of persons, and so on.
Changes and reform of the ECHR come about as a result of the executive and legislative branches adopting resolutions, recommendations and protocols. But the entity which receives most of the spotlight is the European Court of Human Rights. These judges are often criticised for ‘overruling’ our British judges and stepping on the toes of the UK’s sovereignty. The reason for this is that:
The ECHR, available here, contains numerous articles. The main rights which we, as ordinary citizens, will recognise can be found in Articles 2–14 and include things like: the right to life; the prohibition against torture and ill-treatment; the right to private and family life; the right to freedom of religion; the right to freedom of expression; and more. Other parts of the convention also contain rights, for example, Article 1 of Protocol 1 protects the right to hold property and Article 3 of Protocol 2 contains the right to hold free elections. These are all rights which we expect the UK to uphold. They are a mixture of negative obligations – rights which the state must not violate – and positive obligations – rights which the state must take positive steps to protect. The text of these articles are very short; none of the articles mentioned are longer than two paragraphs.
With the exception of the prohibition against torture, which is ‘absolute’ (meaning that a state can never legally justify torturing someone), all of the other rights are ‘qualified’ (meaning that the right can be interfered with by a state if certain criteria are met). It is worth understanding the distinction between ‘interferences’, where someone’s right has been infringed in a way which may or may not be justified, and ‘violations’ or ‘breaches’, where an interference has occurred which a state cannot justify.
This is a fundamental part of human rights law because often two or more people will be relying on opposing human rights. For instance, a journalist has the right to freedom of expression and to publish information in a newspaper, but this might interfere with another person’s right to a private life. Whether the interference is justifiable, or is unjustifiable and a violation, is a question of fact. This type of conflict is seen daily between celebrities and the paparazzi.
As a result of these difficulties and the constant need to balance rights with responsibilities, legislators must balance rights, and the courts are required to resolve complicated disputes. Due to the importance of balancing different people’s human rights, courts must do so on a case-by-case basis. The following criteria will help you understand how a balance can be met:
1: An interference with a right is ‘prescribed by law’. This means that there is a law which allows the state to interfere with a right. Such an example in the UK would be the law of defamation: you cannot use your freedom of expression as a writer to publish information which is knowingly a lie and which can damage the private life of another person.
2: The interference pursues a ‘legitimate aim’. In the previous example of publishing an untrue claim which damages somebody’s reputation, the state clearly has a legitimate aim of preventing this behaviour and it is for this reason they have made legislation to protect people.
3: The interference is ‘necessary in a democratic society’. This requires balancing the interests of everyone within society and asking the particular question, in this example, of whether a democracy ought to accept damaging someone’s reputation on the basis of spreading lies.
With the example used, most people would agree that interfering with a journalist’s human right to freedom of expression would be justified by creating laws surrounding defamation; in other words, the innocent victim’s right to protect his or her private life supersedes the journalist’s right to expression. But, even if it seems obvious that telling and spreading lies should be illegal, the state is interfering with a human right when creating laws against it. The same applies for putting someone in prison; every individual has a right to not be deprived of his or her liberty.
The issue of human rights constantly affects us and there will always be conflict and need for balance. How this balancing act is carried out by UK institutions, and particularly by the European Court of Human Rights, will therefore be open to scrutiny in difficult cases.
The ECHR was created soon after the Second World War, but what is more often referred to is the Human Rights Act 1998 (HRA) which was adopted far later. What the HRA did was to bring the ECHR into the UK’s legal system.
Before the HRA, a person could go to the European Court of Human Rights, but that was – and still is – an extremely long and arduous process (discussed in further detail below). You could also still use the articles of the ECHR in an argument before a UK court of law, but the extent to which a British judge had to interpret the text was very open and not subject to any real scrutiny.
What the HRA did was to make these rights real. For example, as mentioned in section 6 of the HRA, it is now unlawful for a public authority (in other words, a body or person deriving its powers from the UK Parliament) to act in a way that is incompatible with the rights protected under the ECHR. And if they do act in such a way, a person no longer needs to go straight to Strasbourg; they can make arguments based on the ECHR in any of the UK courts. That court must then apply the ECHR, interpreting UK legislation in light of the ECHR and taking into account any relevant decisions of the European Court of Human Rights, which may provide additional issues to consider (see section 2 and 3 of the HRA for more details). This can provide victims with remedies, and, as per section 7, it allows courts to declare a piece of legislation incompatible with the convention rights.
However, a declaration does not ‘strike out’ that piece of law. It merely informs the UK that the law needs to change – and most of the time, the UK Government and Parliament will then seek to amend the law. But, ultimately, Westminster is considered sovereign and cannot be forced to change its laws. The UK’s unwillingness to implement a judgment from Strasbourg was seen recently when its policy on sensitive data retention was deemed incompatible with ECHR rights, as was its blanket ban on prisoner voting rights.
There is a slight difference in Scotland, where, according to The Scotland Act 1998 s.57 , if an act of the Scottish Parliament is not compatible with the ECHR then a judge can say that such a piece of legislation is simply not law. This is because the Scottish Parliament derives its powers from Westminster (which remains in overall control) and therefore can be subjected to greater constraints by the legal system.
Aside from this slightly legalistic distinction, the HRA 1998 makes the ECHR far more real for the average British citizen. An individual can go to a local sheriff court and plead human rights arguments in his or her defence. This has become relatively standard in criminal cases now.
Consequently, some argue that human rights are used by people who are not deserving of their rights. It is true that terrorists and convicted murderers make human rights arguments based on the ECHR in our courts, and have been successful.
But, in defence of the current system, it was not long ago that the general consensus was that the death penalty was appropriate; or that it was acceptable to beat children in schools; or that it was fine for people detained by Scottish police to not have access to a lawyer. In hindsight, most would look back and be shocked that these beliefs were considered mainstream and legal. It is only in the last 40 years, with legal challenges based on the ECHR, that such measures are no longer accepted. With the latter example, it was only four years ago that the UK’s highest court found that the lack of access to a lawyer upon detention was incompatible with an individual’s human rights.
As a democratic society, the UK must always justify any interferences with human rights, no matter what the person has done.
The European Court of Human Rights, based in Strasbourg, is not another UK appeal court (or at least it is not meant to be). It is a guardian and watchdog of the ECHR and seeks to ensure that human rights are upheld by all member states. It can tell the UK that it ought to change its laws, and has the power to order financial remedies and to use political measures as persuasive tools. But importantly, it cannot directly change the law of the UK. This is why the decision by the European Court that prisoners ought to have the right to vote in general elections does not mean that prisoners in the UK now have this right, and the UK Government has seemingly now put the issue to the side.
A whole guide could be dedicated to how to take a case to the European Court of Human Rights and how a decision will then be made, but the basics are:
There are a lot of issues with such a system; one court dealing with the problems of 47 member states is obviously going to have difficulties. There is often a backlog of cases, meaning it is not a quick process to apply to the court. Interim measures can be sought if the case is urgent enough (for example, if deportation is imminent), but realistically it takes a lot of time and money to have a case heard there.
These difficulties – alongside the previously mentioned issue of judges and their method of appointment – opens the system up to a great deal of criticism.
It is worth emphasising that the ECHR is not the only human rights law mechanism available in the UK. There are other international treaties and conventions which the UK is a party to. The UK’s common law has recognised human rights since well before the ECHR, and those judge-made rules still apply today. But, importantly, the ECHR, backed up by the HRA, gives real enforceable rights to those living within the boundaries of the Council of Europe.
The system is far from perfect, and there are multiple issues, particularly with a court system that tries to simultaneously deal with 47 countries, but, for many, it provides a last opportunity to see justice carried out.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.