Written by Chanaka Edirisinghe (Feb 2012)

Transcription

1 'How are human rights protected in the UK? (PLAN) Introduction Definition of human rights Human Rights Act 1998 Constitution/single document Acts of Parliament Advantages and disadvantages of having an unwritten constitution Human Rights Act 1968 Came into full force in October main roles of the Human Rights Act 1998 Section 2 of the Human Rights Act Re Medicaments (No 2), Director General of Fair Trading v Proprietary Association of Great Britain (2001) R v Gough (1993) Mendoza v Ghaidan (2002) Fitzpatrick v Sterling (2001) R v A (2001) Statement by Lord Woolf in the case of R v A (2001) European Convention on Human Rights Council of Europe Sir Winston Churchill Second World War ECHR Applications to the European Court of Human Rights S and Marper v UK (2008) Convention Rights 16 basic rights under the Human Rights Act 1968 ECHR Articles 2-14 (article 13 is not included in the Human Rights Act 1968) Darnell v United Kingdom (1933) R v R (1991) Douglas and others v Hello! Ltd (2001) Conclusion Summarise all the facts

2 Slavery in Sri Lanka My opinion on human rights Written by Chanaka Edirisinghe (Feb 2012) Introduction How are human rights protected in the UK? (ESSAY) Human rights are basic rights and freedoms to which all humans are entitled and examples of human rights can be; right to life and liberty, freedom of thought and expression, and equality before the law. The human rights that citizens have are protected by the Human Rights Act Many countries have one single document that outlines and guarantees a citizen s rights and liberties however UK does not have either a written constitution or one single document outlining a citizen s rights and liberties. The rights and liberties of citizens in the UK are contained within combinations of Acts of Parliament that have been passed over the last eight centuries, common law traditions and unspoken conventions. 1 There can be advantages and disadvantages of having an unwritten constitution. The advantages can be the ability to evolve, adopt or change however the disadvantages are that it lacks of one single document outlining the rights and liberties of citizens and it is vague and unstated so they are not rights at all. Human Rights Act 1968 The Human Rights Act 1998 is a law, which came into full force in October It gives further effect in the UK to the fundamental rights and freedoms in the European Convention on Human Rights. The above Act has three main roles which are, a) it makes it unlawful for a public authority, like a governmental department, local authority or the police, to breach the Convention rights, unless an Act of Parliament meant it couldn t have acted differently b) it means that human rights cases can e dealt with in a UK court or tribunal. Until the Act, anyone who felt that their rights under the Convention had been breached had to go to the European Court of Human Rights in Strasbourg c) It states that all UK legislation must be given a meaning that fits with the Convention rights, if that s possible. If a court says that s not possible it will be up to parliament to decide what to do. 2 For judges when deciding a case upon the convention rights, section 2 of the Human Right Act states that, the court must take into account any judgement, decision, declaration or advisory opinion of the European Court of Human Rights. 3 This means that the court must follow decisions of the European Court of Human Rights instead of other decision by UK courts. This was clearly shown in the case of Re Medicaments (No 2), 1 Citizenship in Modern Britain by Trevor Desmoyers- Davis (page 35) pdf 3 The English Legal System 6 th Edition by Jacqueline Martin (page 289)

3 Director General of Fair Trading v Proprietary Association of Great Britain (2001). In the above case the, Restrictive Practices Court did not to stop a trial because of the alleged lack of independence of one member of the Court (Dr Rowlatt had applied for a post at an economic consultancy, one of the directors of which gave expert evidence on behalf of the Director General). 4 The court of Appeal refused to follow the decision of the House of Lords in R v Gough (1993) on the test of bias because it was slightly different to decisions of the European Court of Human Rights. The courts in England Wales have to interpret legislation in a way that is compatible with the Convention this means that the courts read the provision of an Act in depth in order to comply with the European Conventions. This happened in the case of Mendoza v Ghaidan (2002) when the Court of Appeal looked at the decision that was made in the case of Fitzpatrick v Sterling (2001). It is vital for judges to interpret legislation in a way which is compatible with the rights set out in the European Convention on Human Rights has had an impact on the statutory interpretation in UK. This was shown by Lord Woolf in the case of R v A (2001) when he said: Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under the ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive approach: s 3 is more radical in its effect... It will sometimes be necessary to adopt an interpretation which linguistically may appear strained. 5 In the cases that are based on human rights the judge may interpret an Act in depth in order to make the Act compatible with the rights given by the Convention. European Convention on Human Rights This is one of the treaties passed by the Council of Europe, a group nations invited by Sir Winston Churchill to come together after the Second World War to stop cruelty acts happening again. The Council of Europe has its own Court of Human Rights in Strasbourg. For Human rights matters citizens are able to go to the Strasbourg court to claim your rights under the European Court of Human Rights. The European Court of Human Rights was established in 1959 in order to protect the rights set out in the European Convention of Human Rights. Citizens have the right to make an application to the court however the applicant must be exhausted the effective remedies in the country in which the breach of rights is alleged to have occurred. 6 In the case of S and Marper v UK (2008) the, first applicant, Mr S., was 4 General of Fair Trading v The Proprietary Association of Great Britain (2001) CA 5 The English Legal System 6 th Edition by Jacqueline Martin (page 290) 6 The English Legal System 6 th Edition by Jacqueline Martin (page 293)

4 arrested in January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken but he was subsequently acquitted. The second applicant, Mr Marper, was arrested in March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre- trial review took place, he and his partner had become reconciled thus the charge was not pressed and in June 2001 the case was formally discontinued. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. 7 The applicants put in application to the European Court of Human Rights. The applicants complained under the Article 8 and 14 that the police have refused to destroy the DNA samples after the criminal proceedings against them had ended with an acquittal or had been discontinued. The Court of Human Rights ruled that there was a breach of Article 8 as keeping samples indefinitely was not a proportionate action where a defendant had not been charged or had been found not guilty. Convention Rights There are sixteen basic rights under the Human Rights Act 1968 which was taken from the European Convention on Human Rights. Human rights are written in separate articles. Article 2 of the Convention Rights states that everyone s right to life shall be protected by law, however the states have to the power to impose the death penalty for the criminals who have committed murder. Article 3 states that, you have the absolute right not to be tortured or subjected to treatment or punishment which is inhuman or degrading. 8 However UK has been found breach of this Article in respect of the way that prisoners in Northern Ireland were treated during interrogation. Under the article 4 citizens have the absolute right not to be treated as a slave or forced to perform certain kinds of labour. Under the article 5 citizens have the right not to be deprived of your liberty except where the law allows arrest or detention. Under the article 6 citizens have the right to a fair and public hearing within a reasonable period of time. In the case of Darnell v United Kingdom (1933) the, doctor had been unfairly dismissed. The dismissal had taken place in 1984 and proceedings started soon afterwards, but the final decision of the Employment Appeal Tribunal on the case had not been made until It was held that the UK was in breach of the Article. Under the article 7 citizens have the right not to be found guilty of an offence arising out of actions which at the time you committed them were not criminal. This means that the law may be changed so as to make future acts of the type prohibited criminal offences, but it cannot look back at acts that have already been committed and declare that those are now criminal. In the case of R v R (1991) the, D raped his wife. They lived apart and he forced his 7 and- marper- v- uk html pdf 9 The English Legal System 6 th Edition by Jacqueline Martin (page 292)

5 way into her parents' house where she was living. 10 In this case the House of Lords overruled a previous precedent which held that this was not a crime so R challenged this decision in the ECHR. However the court decided that there had not been a breach of article 7 because the law had changed in an earlier case to allow a man to be convicted of raping his wife when there was legally separated. Under the article 8 citizens have the right to respect for your private and family life, your home and your correspondence. Since the Human Rights Act has come into force, courts in the UK have taken a more positive attitude towards the right to privacy. In the case of Douglas and others v Hello! Ltd (2001) the, Hello! Magazine published unauthorised pictures of the wedding of Michael Douglas and Catherine Zeta- Jones. 11 The court stated that there was right to privacy but it had to balance against the right to freedom of expression under Article 10. However the court refused to make an injunction preventing Hello! from publishing the pictures. The reason for the refusal from the court was because it was the idea of couple to have their wedding publicly and they agreed that another magazine could publish pictures. Under article 9 citizens are free to hold a broad range of views, beliefs and thoughts, as well as religious faith while article 10 states that citizens have the right to hold opinions and express your views on your own or in a group. Under article 11 citizens have the right to assemble with other people in a peaceful way also we have the right to associate with other people, which can include the right to form a trade union. Under article 12 men and women have the right to marry and start a family. Under the article 14 citizens have the right not to be treated differently because of your race, religion, sex, political views or any other status also everyone must have equal access to Convention rights, whatever their status. Conclusion In conclusion every citizen has human rights under the Human Rights Act 1998 however if any of the rights and freedoms are breached, you have the right to an effective solution in law. For human rights matters citizens are able to go to the Strasbourg court to claim your rights under the European Court of Human Rights. There are 18 articles under the convention rights each article has different human rights stated. In my opinion I think it s a great advantage for all the citizens because they are covered under the Human Rights Act 1998, also I wish other countries had the above Act in their countries too because some citizens in this world today haven t got their human rights for example; in Sri Lanka slavery still exists. The reason for this could be that they might not know that they have human rights if this is the case it is the job of the countries parliament to tell the citizens and state the rights citizens have v R (rape - marital exemption) [1991] HL 11 The English Legal System 6 th Edition by Jacqueline Martin (page 293)

6 Bibliography The English Legal System 6 th Edition by Jacqueline Martin Human Rights and the European Convention by Sweet & Maxwell (edited by Brice Dickson) Citizenship in Modern Britain by Trevor Desmoyers- Davis UK Government & Politics 2 nd Edition by Mark Garnett & Phillip Lynch _ and- marper- v- uk html