Saturday, April 16, 2011

Human Rights - Continued

Incorporation of the Convention into UK Law

Convention did not become a part of UK law until 1998. Until this date, the Convention could merely be used as a guide to interpretation – in Waddington v Miah (1974) the Court of Appeal and the House of Lords held for the first time that as the ECHR prohibited prospective retrospective legislation then it was unlikely that parliament intended to retrospectively criminalize the actions of the applicant in the case. Attempts to directly incorporate the ECHR into UK Law occurred quite regularly during the 1980’s as members of the HL and the Backbench Mps. These efforts were all failures. All this was to change with victory of the labor party in 2007. The Labor party had made the incorporation of the ECHR into UK law one of the key platforms for its electoral victory. 

The UK Human Rights Act of 1998 was passed into law in 1998, but most of its provisions only came into effect in 2000. Section 1 of the 1998 Act gives effect in UK law to what the Act refers to as Convention Rights. These are defined as being articles 2-12 and 14 of the ECHR, and some of the rights encapsulated in the protocols of the ECHR. In interpreting the rights, the Act requires domestic courts to take into account the Jurisprudence of the ECHR together with the decisions of the Commission and other C of E institutions. However, the judges are not required to reach an interpretation consistent with the views of Strasbourg. Nevertheless, if an English Court gives an interpretation that is significantly different to the ECHR, a a citizen may still go the ECHR for redress in which case the view of the ECHR would prevail. This has raised the question of whether or not the position of the House of Lords as the supreme court of the unites kingdom.

If a court cannot interpret a statute in a manner which makes it compatible with convention rights, a declaration incompatibility can be issued. This informs the government that a particular statute requires amendment.

Public Authorities:-

The Act provides as follows in section 6 (1):\

It is unlawful for a public authority to Act in a way which is incompatible with Convention Rights.  Or the purposes of this Act, a public authority is not properly defined. However, it includes ; a court or an person who performs some functions of a public nature. Thus the act envisages two, perhaps even thee categories of public authorities. First there are courts and tribunals, secondly, there are bodies that are recognized by English Law as being public bodies. e.g. government departments, local authorities, prisons and the police. These are referred to in one case as being core public bodies. The third category consists of public authorities whose functions are of a public nature. In other words, they are not public bodies through and through, they merely perform functions that are off a public nature and this makes them appropriate subjects for the jurisdiction of the Human Rights Acts. In addition, this third category of bodies may perform functions that place them outside the scope of the HRA. Parliament is expressly excluded as a public body under the HRA. This means that if Parliament were to enact laws that were contrary to the ECHR, they would not acting unlawfully.

Given the open ended nature of what constitutes a public authority, this has been left to the courts to define. In the case of R (on the application of Heather) v Leonard Cheshire Foundation (2002) the local authority was under a duty provide accommodation for the claimants at public expense. It arranged with the defendants, a private foundation, to accommodate the claimants at the public expense. This arrangement continued for 17 years till the it was decided to close the home down. The claimants sought a judicial review of the decision under section 8 ECHR constesting the manner in which the public authority had closed down the building. They claimed that in having provided them with accommodation, the foundation had acted as a public body. It was held by the Court of Appeal that the functions of the foundation were not public as it was not exercising statutory powers in performing those functions. Also in Aston Cantlow and Wilmcote with Billesley Church Council v Walbank (2003), it was held that a parish church was not a public authority under the act. Its function was to carry out the religious mission of the Church of England.

In the case of YL v Birmingham City Council (2007) it was held that a private healthcare company, Southern Cross Healthcare, did not constitute a public authority.

The cases make it clear that the what constitutes a public authority under the act varies from case to case. In the words of Lord Nichols in the Ahton Cantlow Case,
Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or exercising statutory powers, or is taking the place of central government or local authorities or is providing a public service

In the YL Case, Baroness Hale held that the factors include:

  • Whether the state has assumed responsibility for seeing that the task is performed
  • The public interest in having the task undertaken
  • Public funding
  • Whether the task involves the use of the statutory coercive powers of the state
  • Whether there is a close connection between the service provided and the core values underlying the Convention Rights

Judicial Remedies:
HRA section 8 allows a court to grant whatever relief is deems to be appropriate, provided that it has the power to do so. This proviso is important because it precludes the courts from developing new remedies for acting contrary to a particular right. Typically damages are available only if the applicant was entitled to damages for a similar breach under domestic law.

Deference
The courts in certain kinds of matters brough under the act consider themselves incompetent to adjudicate – they believe those matters are best left for elected governments to determine. This is known as the doctrine of deference. This has become an important issue under the Act. R v BBC (2003) the courts considered the concept.

The Doctrine of a Margin of Appreciation

This is a doctrine that arose out of the understanding and interpretation of the regime of derogation available in ECHR. Its born out of the recognition of the fact that a member state may be in a better position than the ECHR to determine when a departure from a Convention Right is justified by the circumstances. The justification given by the court for this was stated in the case of Handyside v UK  (1976)

By reason of their continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements (of morals) as well as on necessity of a restriction or penalty intended to meet them. 

There is of course, inherent danger here – if the State is allowed too much latitude, there is a danger that it may ride roughshod over the rights that it purports to grant to citizens. Accordingly, it ought to be noted that the operation of the doctrine is subject to supervision by the ECt of Human Rights. Where necessary, the court will be prepared rule that a state measure has gone beyond that which was required by the circumstances – i.e. that it is disproportionate to the legitimate aim being pursued. 

The Human Rights Act 1998, Provisions, Cases

Articles
Article 1
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.
2Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a)in defence of any person from unlawful violence;
(b)in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)in action lawfully taken for the purpose of quelling a riot or insurrection.

– this was held to mean euthanasia
Airedale National Health Trust v Bland 1993
Euthanasia where prescribed by the court does not amount to an infringement on the right to life.
R v Lord Saville of Newdigate 2000
Where there was a serious risk to the life of former soldiers through their giving evidence, before a tribunal enquiring into the shootings in Northern Ireland on Bloody Sunday, CA held evidence should be given elsewhere
Gentle v PM 2008
Right to life does not place obligation on government  to take reasoned steps to ensure that it did not send servicemen to face the risk of death without ensuring that the action was lawful.




Article 3 Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Napier v Scottish Ministers 2001
Prison conditions violate Article 3 The prisoner complained that the cell in which he detained while on remand was grossly inadequate in living space, lighting and ventilation, that the sanitary arrangements involved ‘slopping out’, that the extent to which he was confined in his cell was excessive and that the periods of exercise and recreation outside the cell were inadequate.  An interim injunction was granted ordering the transfer of a prisoner from Barlinnie Prison to a prison which complied with Article 3. 
Article 4Prohibition of slavery and forced labour
1No one shall be held in slavery or servitude.
2No one shall be required to perform forced or compulsory labour.
3For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a)any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b)any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c)any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d)any work or service which forms part of normal civic obligations.

















Article 5Right to liberty and security
1Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)the lawful detention of a person after conviction by a competent court;
(b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Anderson v Scottish Minister 2001
Restriction of security based on grounds of public safety is acceptable
R v Mental Health Review Tribunal
Burden of proof placed on the prisoner to show that he is not suffering from mental disorder according to Mental Health Act - violates article 5-HL issues a degree of incompatibility-
Article 6Right to a fair trial
1In 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)to have adequate time and facilities for the preparation of his defence;
(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

A lot of cases here – basically everyone who has issues with legal processes brings case under this provision. Rule in a nutshell is that courts will look at overall process in determining if trial is fair or unfair, not just specific portions of the trial fair.

Mathews v Minister of Defence 2003
Inability to sue govt for tort not violated – other means of obtaining redress
R v Sec of State for Home Affairs 2002
Violated by the ability of Minister to determine the length pof prison sentences – even where the minister was acting on the advice of another body e.g. health review tribunal Benjamin and Wilson v UK
R v Abdroikov 2007
Freedom from  bias not violated where jury includes an acting policeman and an employed crown service prosecutor
King v Walden 2001
5 year lapse between  when the person is charged , and when person is tried, was only marginally acceptable
HM Advocate v MacIntosh 2001
Presuming that property of drug dealer from proceeds of a drug trial does not violate the presumption
R v Benjafield 2002
Presumption of innocence not violated by laws reversing the burden of proof also does not violate the presumption






Article 7No punishment without law
1No 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.
2This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Gough v Chief Constable of Derbyshire
Footballers prevented from leaving the country after a conviction does not amount to a restrospective conviction
R v Home Secretary 2004
Change in terms of parole during sentence does not violate retrospectivity rules






Article 8Right to respect for private and family life
1Everyone has the right to respect for his private and family life, his home and his correspondence.
2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

R v Ashworth 2001
Random monitoring of phone calls of mentally challenged peoples is not a violation of this right
R v Home sec ex parte mellor
imprisonment incongruent with the exercise of conjugal rights
Article 9Freedom of thought, conscience and religion
1Everyone 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.
2Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.



Article 10Freedom of expression
1Everyone 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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.



Article 11Freedom of assembly and association
1Everyone 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.
2No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.



Article 12Right 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.

R v Home Sec 2007 ex p bahai
law requiring certain categories of immigrants to require permission to marry unconstitutional
Article 14Prohibition 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, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.



Article 16Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.



Article 17Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.



Article 18Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.



Part IIThe First Protocol
Article 1Protection of property
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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 2Right to education
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 religious and philosophical convictions.
Article 3Right to free elections
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.




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