Lecture 3 (Oct. 2024) PDF

IN THE NEWS Lecture 3  In this lecture History of Human rights European Convention on Human Rights and the Articles Human Rights Act 1998 Recent developments Remedies available when rights are infringed Seminars 3 & 4  What are human rights?  Human rights are the basic rights a...

IN THE NEWS Lecture 3  In this lecture History of Human rights European Convention on Human Rights and the Articles Human Rights Act 1998 Recent developments Remedies available when rights are infringed Seminars 3 & 4  What are human rights?  Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.  They apply to everyone  They can never be taken away  These basic rights are based on shared values like dignity, fairness, equality, respect and independence.  These values are defined and protected by law.  In Britain our human rights are protected by the Human Rights Act 1998.  History of Human Rights legislation in England and Wales  1689 English Bill of Rights  1945 United Nations Charter  1948 Universal Declaration of Human Rights  1950 European Convention on Human Rights  1965 Race Relations Act  1965 International Convention on the Elimination of All Forms of Racial Discrimination  1966 UK signs up to the ECtHR  1975 Sex Discrimination Act  1979 Convention on the Elimination of all forms of Discrimination against Women  History continued  1984 UN Convention against Torture and other cruel Inhuman or degrading treatment or punishment  1989 UN Convention on the Rights of the Child  1995 Disability Discrimination Act  1998 Human Rights Act  2006 Universal Periodic Review  2010 Equality Act  Law relating to rights evolving  European Convention on Human Rights  Drawn up by the Council of Europe, signed in Rome in 1950  Although the UK ratified the Convention in 1951and was bound by the Convention, it refused to incorporate the Convention into domestic law  January 1959 European Court of Human Rights was set up  UK citizens would have to bring any claims in the ECtHR  If successful the ECtHR would order the UK to amend legislation but problems with this  Eventually in 1998 the Human Rights Act was passed.  HRA came into force in 2000  The Articles  Article 2 – right to life  Article 3 – freedom from torture, inhuman or degrading treatment  Article 4 – freedom from slavery or forced labour  Article 5 - right to liberty and security  Article 6 – right to a fair trial  Article 7 - prohibition of retrospective criminal law  Article 8 – right to private and family life  Article 9 – freedom of thought, conscience and religion  The Articles  Article 10 – freedom of expression  Article 11 – freedom of peaceful assembly , including right to join a trade union  Article 12 – right to marry and have a family  Article 14 – people should enjoy rights free from discrimination on grounds of sex, age race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status  European Court of Human Rights 47 judges 3 member committee, Chamber of seven judges and the Grand Chamber Significant backlog of cases Brexit and ECtHr  The Human Rights Act 1998  Protects individual rights and provides remedies where rights are violated.  UK courts must interpret all legislation in a way which is compatible with Convention rights  An individual can bring a claim against public authorities which act in a way which is incompatible with Convention rights (s.7)  Known as the vertical effect  What is a public authority?  The government  Police  NHS  Claims by individuals against other individuals  Known as the horizontal effect  S6 HRA makes it unlawful for a public authority to act in a way which is incompatible with Convention right  Has been interpreted that Courts (public body) must ensure that they respect claimant’s human rights when deciding cases  Example – right to private and family life – Article 8  Douglas v Hello!  Also need to balance such rights against others – in cases involving celebrities – right to freedom of expression - Article 10 (see section 12(4) of Human Rights Act 1998  Opinion divided regarding horizontal effect. HRA and other legislation  S.19 of the HRA – Government ministers must publish a written statement as to whether or not a Bill is compatible with the Convention  House of Lords Committee Report (2007) identified that statements were ‘optimistic’  Recommended the involvement of Law Officers to ensure all statutes are compatible with HRA.  Equality and Human Rights Commission  Launched in October 2007 following the Royal assent of the Equality Act 2006  Responsible for the promotion of human rights and equality of opportunity  Functions of the Commission include: advise and guidance for those wishing to assert their rights conducting inquiries – e.g. Windrush enquiry bringing legal proceedings monitoring domestic law scrutiny of new legislation (checks and balances) publishing reports  Advantages and Disadvantages of the Human Rights Act 1998 Advantages ☺ Disadvantages  Improved access Judicial power Remedies Difficult to police/ evidence Avoids conflict between domestic and Not everyone is aware of their rights international law Encourages conformity Problems raising concerns International image Difficult to challenge in Court Clarity Education Remedies and recent examples of breach of human rights  Remedies for infringement of rights Judicial review Gardner & Harris v Secretary of State for Health and Social Care & Ors EWHC 967 (Admin). Article 2  Civil claims Sir Cliff Richard OBE v BBC and CC of South Yorkshire Police EWHC Privacy – Article 8 v Freedom of expression Article 10 Belfast Bakery Cake case 2018 Lee v Ashers Baking Company Ltd UKSC 49 https://www.theguardian.com/uk-news/2018/oct/10/uk-supreme-court-backs- bakery-that-refused-to-make-gay-wedding-cake Remedies continued Compensation s. 133 Criminal Justice Act 1988 Criminal proceedings Independent Office for Police Conduct Right to exercise self-defence Parliamentary controls The Ombudsman  The Windrush generation – Article 5 Joint Committee on Human Rights Held that action taken by Home Office in detaining individuals and depriving them of their liberty was unlawful This is an example of vertical effect – individuals against the State (Government)  Human trafficking, forced labour and modern slavery– Article 4  June 2019 JW brought a claim against her Saudi employer diplomat  Employer had brought her to UK as a domestic servant  Diplomat asserted that claim had no basis and should be struck out due to his diplomatic immunity  There is an exception to diplomatic immunity for a : “commercial activity exercised by the diplomatic agent in the receiving state outside his official functions” (Article 31(1) (c) of the Vienna Convention on Diplomatic Relations 1961, incorporated into English law by the Diplomatic Privileges Act 1964) AM (Zimbabwe) v Secretary of State for the Home Department UKSC 17 – Article 3 Last week’s lecture – case of Pretty, Purdy and Nicklinson All of the Claimants argued that the current law of England and Wales breaches a variety of rights : Articles 2,3,8 and 14 See Schedule 1 of the Human Rights Act 1998 Abortion – unlawful discrimination against those born with Downs syndrome? Crowther and Others v Secretary of State for Health and Social Care 2021 EWHC 2536 (Admin) The Appellants sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 in respect of section 1(1)(d) of the Abortion Act 1967. They contend that section 1(1)(d) is incompatible with Articles 2, 3, 8 and 14 of the European Convention on Human Rights, which are all “Convention rights” as set out in Sch. 1 to the Human Rights Act.  Saviour Siblings No recent case law in UK but many ethical and human rights issues arise  Article 2  Article 3 – slippery slope  Article 8  Article 14 Case in Belgium in November 2021 – parents awarded compensation when hospital planted wrong embryo in the mother Government attempts to deport refugees to Rwanda We believe the proposals would: damage the rule of law prevent access to justice reduce or remove rights lead to more cases being taken to the ECtHR impact devolution damage the UK’s international reputation create legal uncertainty Recent case Judgement of the Court of Protection https://caselaw.nationalarchives.gov.uk/ewcop/20 23/40#start-of-document