Lecture 17 Notes

Lecture 17 Notes

What are rights?

There are two schools of thoughts as to where rights are derived from. On the one hand, natural law school believes that rights are derived from natural law – i.e. they are rights which people enjoy simply by virtue of being a human being. On the other hand, the legal positivist school hold the view that rights are derived from legal systems; they are conferred by positive laws.

Political Rights are a common feature of human rights documents. They involve things such as the right to life, equality of treatment before the law, freedom of expression, freedom of peaceful assembly and association, and freedom from discrimination.

Social and Economic Rights are rather different in nature. They are concerned with matters such as the right to work, the right to equal pay for work, and the right to education.

The key distinction between political rights and social and economic rights is evident under this provision. While the former tend not to require much in the way of government expenditure for their enjoyment , social and economic rights clearly place financial burdens on the state.

Human Rights & Individual Freedoms

The Council of Europe Represents the first attempt by the state’s of Europe to put in place a mechanism to ensure lasting peace after the Second World War. It is Europe’s first international organization dedicated to promoting international co-operation. It was established by the Treaty of London in 1949, after a famous speech by Winston Churchill at which he implored for the creation of a United States of Europe. 

It groups together 47 countries, including 21 countries from Central and Eastern Europe. It has also granted observer status to five other countries (the Holy See, United States, Canada, Japan and Mexico). The Council of Europe is distinct from the 27-nation European Union, but no country has ever joined the Union without first belonging to the Council of Europe. It is headquartered in Strasbourg, in north-eastern France.

The main institutions of the Council of Europe are:

• the Committee of Ministers, composed of the 46 Foreign ministers or their Strasbourg-based deputies (ambassadors/permanent representatives), which is the Organisation's decision-making body; This should not be confused with EUs Council of Ministers
• the Parliamentary Assembly, grouping 630 members (315 representatives and 315 substitutes) from the 47 national parliaments: This is not to be confused with the European Parliament
• European Court of Human RightsThe Court is the judicial body competent to adjudicate complaints brought against a state by individual or associations on grounds of violation of the European Convention of Human Rights

The Council of Europe and the EU are not to be confused. They are completely different organizations. However, the 27 members of the EU are all members of the Council of Europe.

The Council was set up to defend human rights, parliamentary democracy and the rule of law, develop continent-wide agreements to standardize member countries' social and legal practices, and promote awareness of a European identity based on shared values and cutting across different cultures. It does this through public international law. The main vehicle through which the Council Seeks to do this is through the European Convention of Human Rights.

The European Convention on Human Rights is a European Treaty signed by 47 countries in Europe. It is not an EC Treaty – though it is important as it has been signed by all 27 EU countries. It was drafted largely by British draftsmen, and was signed in 1953. The rights outlined by the Commission are enforced by the Council of Europe through the European Court of Human Rights. This body formerly consisted of three separate institutions. These have however been merged to create a single institution with the capacity to hear individual petitions and make rulings in respect of them. The European Court of Human Rights consists of 47 judges who are all appointed for a six year term. While in office, they are supposed to act independently. They are elected by members of the Parliamentary Assembly. Judges are nominated by the member states, and they “must either possess the qualifications required for appointment to high judicial office or be of recognized competence”.

 Each case is heard by a “Chamber” of seven judges – but only after a unanimous decision of 3 judges had determined that the matter should be considered by the ECHR. In certain circumstances, i.e. if the case:

·                     raises a serious a question affecting the interpretation of the ECHR; or

·                     The question before the chamber might have a result inconsistent with previous judgments of the court.

The matter will be referred to a Grand Chamber. A decision of a Chamber of the Court can also be appealed to a Grand Chamber.

The Grand Chamber consists of 17 judges which have been chosen to take into account the variety of legal traditions in the Union, as well as geographical and gender balance.

The functions of the Court extends to all matters concerning the interpretation and application of the Convention and related protocols. In the event of a dispute as to whether or not the court has jurisdiction, the court will decide that issue. The procedure of the court is adversarial – and the courts hearings are held in public. Where the court finds that there has been a violation of the Convention, and there is no remedy for compensation under domestic law, the court can instruct that compensation be paid to the victim.

The court always gives reasons for its decisions.

The Substantive Rights outlined by the European Convention of Human rights include the following:

• The Right to Life
• Freedom from Torture or degrading treatment
• Freedom from slavery and forced labor
• Right to liberty and security of the person
• The Right to a fair trial
• Freedom from retrospective laws or increased sentencing
• Right to respect for private and family life
• Freedom of thought, conscience and religion
• Freedom of assembly and association
• The right to marry and found a family
• The right to an effective remedy in national law where convention rights or freedoms have been violated and
• Freedom from discrimination in the enjoyment of the conventions rights and freedoms.

Most of the rights delineated by the convention are political – there are very few social and economic rights – such as the right to be paid a fair wage etc. It should also be noted that the rights and freedoms stated in the ECHR are not absolute. The only ones that are absolute are the rights against torture and freedom slavery and forced labor. All other rights are subject to various qualifications. Thus – in the case of the right to life, a person may be deprived of this right “in the execution of a sentence of a court following his conviction for a crime for which this penalty is prescribed by law”. Elsewhere, the qualifications are more general, and include a generic qualification allowing restrictions where they are “necessary in a democratic society in the interests of national security or public safety”.

The convention also allows for derogation of its tenets in times of war or other public emergency threatening the life of the nation, i.e. However, the derogation is only permitted to the extent required to address the exigencies of a situation, and the measures should not be inconsistent with the country’s other obligations under international law. Any country wishing to derogate from the treaty should keep the Council fully informed about its decision.

The Convention allows for individuals to bring petitions against states, or for states to bring petitions against other states. However, applications can only be made to the court where – all domestic remedies have been exhausted, and less than six months have passed from the date the final decision was taken.

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 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.