Prior to the HRA

Notes on the ECHR and UK prior to the Human rights Act

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  • 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.

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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

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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.

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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

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