- Created by: Jem
- Created on: 29-04-13 12:34
The European Convention of Human Rights
- A document drafted in 1950
- Lists our human rights
- Drafted by the council of Europe
- Winston Churchill was a major driving force
- Signed by UK, but not effective until Human Rights Act(which incorporated it)
Prior to Human Rights Act 1998, or HRA, UK citizens had residual rights: you can do something as long as the law doesn’t prohibit it.
Malone v Metropolitan Police Commissioner case; Malone (antique dealer) had phone tapped. There was no law stating that police couldn’t, so Malone could not argue breach of privacy.
Right of Individual Petition
Granted in 1966, allowed UK citizens to take human rights case to Strasbourg where all other remedies had been exhausted in the UK. Problem: this was a lengthy and costly procedure. But it became popular: the UK taken to court more than any other country in EU. Which was embarrassing for UK; European Court of Human Rights, or ECtHR, declared UK as infringing human rights in public. Though, did not force Parliament to change the law
Thalidomide Case and the Contempt of Court Act
Act passed because ECtHR decided common law contempt illegally removed Article 10; Freedom of Expression.
Lord Ackner on R v Secretary of State ex p. Brind: ‘The treaty, not having been incorporated into British law, can not be a source of rights and obligations and the question-did the Secretary of State act in breach of Article 10-does not therefore arise.’
To impose a duty under Art. 10: ‘would be to incorporate the convention into domestic law by the back door’
Derbyshire County Council v Times Newspapers: Judge stated: there were limited circumstances where the ECHR could be used in the UK courts.
Was the ECHR effective pre-HRA?
NO: -ECHR not a legal obligation
-Not part of British law, so could not be used by citizens
-Malone v Metropolitan Police Commissioner: no recognition in UK law of breached human rights
-HOWEVER: There was the option of appealing to the Court of Human Rights: a chance to take the case where the ECHR was effective and embarrass UK