- Created by: hroper
- Created on: 08-03-19 15:45
History of the Human Rights Act 1998
Basis of rights in society: These documents made assenting individual rights
Magna Carta 1215: Document containing key rights such as the fact that nobody is above the law
Petition of Rights 1628: A document that set out the specific liberties that the King could not infringe from his subjects
US Bill of Rights: Set out basic rights that all US citizens have
Impact of WW2: Discovery of the holocaust and the treatments of prisoners of war in Japanese prisons led to the United Declarations of Human Rights being adopted in 1948 which set out basic inalienable human rights that everyone had access to. However, the Universal Declaration of Human Rights is merely an advisory document as it has no enforcement power.
European Convenction of Human Rights: Adopted by the council of Europe and was based off the UDHR. Gurantees specfic rights and freedoms. Enforced by the ECtHR in Strasbourg
Human Rights Act 1998: Passed the ECHR in to UK domestic law, allowed people to argue their human rights granted to them by the ECHR before a UK court.
Difference between civil liberties and human right
- Are political rights. Includes the right to free elections and the right to silence
- Are contextual. They reflect the society they're from.
- Are rights that any human being should've in order to surive.
- Article 2 Right to life.
Article 2 The Right to life
- Absolute right = limited in a very few excepetions
- Right to life should always apply even in times of war
- Posistive duty: states must protect life and investigate death
- Negative duty: not to take a life
- Police must use minimal force to protect life
- Impact of Article 2 on the English legal system: Proctol 13 abolished the death penalty in the ECHR countries although states don't have to sign up. Abortions that are allowed under the English legal system aren't a breach of Article 2. Suicide and Article 2: The Suicide Act 1961 decriminalised suicide so that it's not an offence to take one's own life however the same act made assisted suicide illegal which is seen as being compatible with Article 2
- McShane v UK: McShane was killed during a protest and his death wasn't properly investigated. ECtHR ruled that if a death is disputed it must be investigated independently.
- Evans v Amicus Healthcare Ltd: Supreme Court ruled that embyros aren't alive so don't have human rights.
- Mcann v UK: Forced used by armed forces must be "aboslutely necessary" and "strictly proportional"
- Pretty v UK: ECtHR ruled that without the disortion of language, the right to die couldn't be found
Article 5: The Right to liberty
- Qualified right meaning it can be limited: Stop+Search, Power of arrest, school detentions + forcred hospitalisation
- Negative right: states should not interefere with a citizen's liberty.
- Collins v Willock: An arrest can be breach A5 if the suspect is not read their rights
- Austin v Commissioner of Police for the Metropolis: Three thousand demonstrators were corned in Oxford Circus for 7 hours. Not a breach of as HOL held that measures for crowd control fell outside the right to A5 as long as they were not arbitary or enforced for longer than necessary
- James v UK: Given a sentence with no end but was not offered any rehabilitation services. Breach of Article 5 as there was no prospect of being released.
- P v Cheshire West and Cheshire council: A severely disabled man was taken from the care of his mother and placed in the care of social services. He lacked the mental capacity to make decisions about his own welfare. Supreme Court held that P was not free to leave and therefore it was a breach of his A5
- Article 5 and the NELS: P v Cheshire West and Cheshire council led to the Acid test being established which rules that an individual is detained of their liberty if they lack the consent to make decisions.
Evaluation of Article 5
- Potential conflict with Article 10 and Article 11. Balance of interests
- Creates state obligations: everyone has the right to liberty and security
- Is it flexible for the state? States are allowed some flexibility when it comes to Article 5
Article 8 - Right to respect for one's private and
- Qualified right - can be limited in certain situations that are in 'accordance with the law' and 'necessary in a democratic society'
- Limitations must be to meet a legitimate aim
- Can be restricted for national security, public safety or economic well being of the country, prevention of disorder or crime, protection of health and morals, protection of the rights and morals of others
- A8 needs to be balanced agaisnt the interests of the individual and those of the community as a whole
- Article 8 grants four rights: family life, private life, home, correspondence
- Proportionality + Margin of appreciation