Public Law II: HRA/ECHR

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The ECHR's origins are following WW2 as an attempt to ensure peace and avoid war

1948: Universal Declaration of Human Rights (UDHR) not binding! applicable to the world.

1949: Council of Europe (number of European states form together)

1950: Convention is signed (ECHR- quickly after WW2) (10 states joined here from Council of Europe and UK assisted with the drafting) Revolutionary mechanism of internation enforcement that is binding. Applicable to Europe only. 

1953: Covention comes into force (3rd September) and all new member states are expected to ratify at earliest opportunity

2013: Now 47 member states have signed the ECHR

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Interpretive role of the court

The various dimensions of the ECHR:

1. Principle of effectiveness

2. Evolving interpretation: acceptance in society evolves i.e. gay marriage and changes 

3. Autonomous concepts: different perceptions of the rights not applicable

4. Proportionality test: some rights not absolute and have to decide in proportion

5. Margin of appreciation: small degree given to member states for cultural differences

6. Subsidiarity: ECHR isn't 1st port of call. Domestic courts are. Convention = safeguard only


- Described as the 'most effective system of Human Rights in the world'

- Extremely busy and flooded and important legal doctrines have developed

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Content of ECHR

ECHR Substantive Rights: Article 2-14 = binding on all contracting states

UK only has to take into account Strasbourg law!!!!! 

  • Article 2: right to life (absolute)
  • Article 3: right to be free of torture and punishment (absolute)
  • Article 4: right to be free of slavery (absolute)
  • Article 5: right to liberty
  • Article 6: right to a fair trial
  • Article 7: prevention of retrospective criminal law
  • Article 8: right to privacy and family life (not absolute)
  • Article 9: freedom of thought and religion (not absolute)
  • Article 10: freedom of expression (not absolute)
  • Article 11: right to assocation (not absolute)
  • Article 12: right to marry and have a family
  • Article 13: right to a remedy
  • Article 14: right to be free of discrimination
  • Article 15: right of the state to derrogate i.e. national emergency from SOME rights
  • Additional protocols (optional) such as education, free and fair elections, death penalty
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ECHR problems


- Unmanageable case load and thus not time effective

- State defiance i.e. Russia and UK (prisoner votes, Abu Qatada)

- Effectiveness of HRA? 

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HRA 1998

Human Rights Act 1998 Content: (13 provisions)

  • Section 1: Convention rights
  • Section 2: Interpretation of convention rights
  • Section 3: Interpretation of legislation (UK to interpret so far as possible)
  • Section 4: Declaration of incompatibility (preserving Parliamentary sovereignty)
  • Section 5: Right for the Crown to intervene (preserving Parliamentary sovereignty)
  • Section 6: Acts of public bodies
  • Section 7: Proceedings
  • Section 8: Judicial remedies
  • Section 9: Judicial acts
  • Section 10: Power to remedial action
  • Section 11: Safeguard for existing rights
  • Section 12: Freedom of expression
  • Section 13: Freedom of thought and religion
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HRA problems

HRA main problems:

  • Too many rights for the individual
  • Too much power for the judges (law makers?)
  • Misrepresented in the media
  • Not wide enough in its ambit (limited in scope)
  • 3300 applications sent to ECtHR in Strasbourg in 2012, 21 declared admissable, 10 cases found against the UK in 2012 after trial
  • Dilution of Parliamentary Sovereignty? 
  • Prisoner votes and Abu Qatada: balancing rights with morals!!!!!


  • Bill of Rights: Commision on a Bill of Rights set up in 2011 by government. Made of 9 HR 'experts' (debatable) who were all white men except for 1 woman. Pinto-Dushinky resigned from Commission as felt was not effective enough in scrutinising human rights and only a small amount were consulted. Reported in Dec 2012 agreeing to Bill of Rights to improve ownership as HRA does not adequately do so. The Commission has been argued to have little effect and lack of consultation. 
  • Leveson Inquiry: VERY important!!!
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Leaving the ECHR?


'Individuals would be worse off if the UK was not party to the ECHR':

- Period of time where trial by jury in England was not secure in serious cases and without the ECHR membership of the UK, would still be the case now... no right to fair trial!

Politically and legally feasible?:

- Legally feasible yes. Politically more difficult: 'while common law norms might stage a limited fight back in such circumstances, ultimately it is the political domain that will decide whether the UK will continue to accept the judgements of Strasbourg, whether some prisoners will be allowed to vote, whether we lock up terror suspects without trial because its cheaper and makes us feel safe'. Politics have a domneering element to the future of Britain's membership to the ECHR and it is for this reason that the heart of human rights get mixed up in attempting to 'keep on the publics side to ensure party favouritism' and not ruffle their feathers!' = bureacracy!!!!

- It is the states role to protect human rights not a body of people sitting in Strasbourg. We have become a bureacratic state that is based on a culture of rights and paying attention to trivial issues and minorities demanded human rights when we live in a democracy that should favour the majority. 

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Draft Protocol 15 framework

2.1. the insertion, in the Convention’s Preamble, reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case-law;

2.2 as concerns the election of judges to the Court, the replacement of the age limit of 70 by that of a requirement that candidates be below the age of 65 on the date by which the list of three candidates is to be received by the Assembly (thereby extending de facto the age limit to the age of 74);

2.3. the removal, from Article 30 of the Convention, of the words “unless one of the parties to the case objects” concerning relinquishment of jurisdiction by a Chamber in favour of the Grand Chamber;

2.4. the shortening, from six to four months, of the time-limit within which an application can be brought before the Court after all domestic remedies have been exhausted, as stipulated in Article 35, paragraph 1, of the Convention, and

2.5. The deletion of the present admissibility requirement, in Article 35, paragraph 3, (b) of the Convention, which specifies that no case be rejected under this provision if it has not been duly considered by a domestic court.

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Draft Protocol 15

Draft Protocol No. 15: was prepared in order to implement the decisions reached at the Brighton Conference to make five amendments to the ECHR. Three of these were suggested by the Court, in its Preliminary Opinion for the preparation of the conference, namely the repeal of the compulsory retirement age (Article 23), the removal of the parties’ veto over the relinquishment of a case to the Grand Chamber (Article 30), and the reduction of the time-limit for making an application from six months to four months (Article 35). A 4th amendment to the ECHR was reference to the margin of appreciation + principle of subsidiarity in the Preamble.

  • Reduction from 6 months to 4 months:  we would like to re-emphasise that this amendment may unduly restrict the ability of individuals to apply to the Court. This proposal has been introduced without adequate time for reflection on its potential impact on applicants, on the substantive quality of applications and on the Court’s effectiveness. The six-month time period is crucial in many jurisdictions, in particular where there is a failure or a prolonged delay in notifying applicants of final domestic decisions. A reduction of this time period may have particularly detrimental effect. 
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Draft Protocol 15

Reference to margin of appreaction and subsidarityany amendment to the substantive provisions of the Convention would be inappropriate. The delegates, in rejecting a proposal for such an amendment, were aware of the other core principles of interpretation equally important to the implementation of Convention rights by the Court. These include the principle of proportionality, the doctrine of the Convention as a living instrument and the principle of dynamic and evolutive interpretation; the principle that rights must be practical and effective rather than theoretical and illusory; and the principle that the very essence of a right must never be impaired. Together with the margin of appreciation and the principle of subsidiarity the Court uses these judicial principles of interpretation to apply the Convention standards to the many specific and complex circumstances that are brought before it. Respect the fundamental principle that defining the parameters of subsidiarity and the doctrine of the margin of appreciation is a function of judicial interpretation and to ensure that the proposed reference to those principles in the Preamble of the Convention does not trespass on that role.

Parliamentary Assembly has approved Protocol 15 for ratification without the need for amendment

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Protocol 16

Draft Protocol 16: not ratified yet

The proposal to extend the jurisdiction of the European Court of Human Rights (the Court) to give advisory opinions was made to introduce a system whereby the national courts could apply to the court for advisory opinions on legal questions relating to interpretation of the Convention and its protocols at a last instance and opinions would not be binding. Owing to the overwhelming number of applications before the European Court of Human Rights (ECtHR), Draft Protocol No.16 proposes the introduction of a new advisory opinion procedure. This procedure aims at alleviating Strasbourg’s judicial workload by enabling the domestic courts of the contracting parties to request advisory opinions on alleged human rights violations, which could in turn serve as precedents for future applications. Reform of Strasbourg court and devolve a degree of decison making power. 

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Problematic cases of HR

1. Catgate: Illegal immigrant could not be deported because he had a cat. Asylum and Immigration Tribunal by Senior Immigration Judge Gleeson, dated 1 December 2008. the inappropriate weight placed on the appellant having to leave behind not only his partner but also their joint cat. Home Secretary Theresa May arguing the effect of the HRA 1998 on society and why we need to repeal it!!!!!

2. Lord Neuberger: "It is a sign of a healthy democracy that there are different views within society and that the outcome of individual cases, and the balance struck between individual rights, can be vigorously debated. But such debates must be based on fact not misconception, deliberate or otherwise. Persuasion should be based on truth rather than propaganda."

3. Prisoners votes: call by ECtHR following a murderer John Hirst’s argument that it breached his human rights to not allow prisoners to vote but UK not done anything about it. Council of Europe called on the UK to "move forward" and comply with the ruling. UK attempted to get round this by: The bill will now undergo detailed pre-legislative scrutiny by a parliamentary committee, and Mr Grayling said he could not be sure when the options would be put to a vote in the Commons but this will take many years!!! Very contervsial. Because Parliament was sovereign, Justice Secretary Mr Grayling said, MPs could decide to "legislate contrary to fundamental principles of human rights" with the constraints against doing so "ultimately political and not legal". not complying with the EHCR could lead to thousands of compensation claims by prisoners. ‘That would be hugely politically embarrassing for the government, but it may feel that that's a price worth paying for standing firm in the face of the European court's ruling.

4.Lord Hoffman: ‘The Strasbourg Court has taken upon itself an extraordinary power to micromanage the legal systems of the member states of the Council of Europe. The very concept of human rights is being trivialised by silly interpretations.’

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Abu Qatada case

1.  Abu Qatada: deportation impossible due to torture evidence in Jordan: The Court of Appeal 2007 held that deporting Abu Qatada would create such a risk. In doing so, it was influenced by the fact that the focus of concern related to the procurement of evidence through torture, the prohibition on which, said Buxton L.J., was a “fundamental, unconditional and nonderogable [one] that stands at the centre of the Convention protections”. Lord Hope's enthusiastic endorsement of the principle that member states must secure to everyone within their jurisdiction the rights set out in the ECHR, such that “aliens” and nationals must be protected alike - without discrimination, and however “dangerous”, “despicable” or “disgusting” they might be.

Theresa May, Home Secretary and supporter of leaving the ECHR has vowed to ensure Abu-Qatada leaves the country and will exhaust all appeals and won't stop until he is gone. Qatada has subsquently agreed to leave following a treaty between Jordan and UK that the evidence used in torture against him will not be used and he will have a fair trial.

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Abu Qatada case

Foster 'The fight against terrorism, detention without trial and human rights' 2009:  Maintaining a balance between the protection of individual liberty and the safeguarding of national security and public safety is an ongoing legal and moral dilemma. The case law outlined above adds to that debate, but shows that a balance can be achieved if the courts are sufficiently sympathetic to both the claims of the individuals and the need to accommodate those claims in the context of crime prevention and the protection of society as a whole. From one perspective, the awarding of compensation to those suspected of acts of terrorism has caused great concern to those who believe that the fight against terrorism should transcend the enjoyment of individual human rights and that such awards prove their contention that the Convention and the Human Rights Act often serve as a ‘rogue's charter.’ On the other hand, civil libertarians would see the cases as not only upholding the rule of law, but also the basic principles of democracy; vindicating as they do the role of the courts in upholding fundamental principles of justice, liberty and government accountability that are part and parcel of both domestic and international law. Indeed, they would use the European Court's decision in to illustrate the need for a moreeffective system of human rights' protection at the domestic level than currently provided by the Human Rights Act.

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A v UK 2009 House of Lords Case

4. A v United Kingdom 2009, Lord Bingham, Nicholls, Baroness Hale: When a terrorism suspect challenged his certification and detention before the Special Immigration Appeals Commission, if the open material consisted purely of general assertions and the Commission's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of the European Convention on Human Rights 1950 art.5(4) would not be satisfied.Suspected terrorists had been detained without trial by the UK, complained of breaches of the European Convention on Human Rights 1950 art.3, art.5(1), art.5(4), art.13 and art.14. 11 foreign nationals living in the United Kingdom whom the government suspected of being international terrorists after the attacks on the United States in 2001. However, the government considered their deportation would be contrary to art.3 and their prosecution would not be possible. Accepting that their extended detention under the Anti-terrorism, Crime and Security Act 2001 might be inconsistent with art.5(1), the government availed itself of the derogation under art.15(1). Terrorists were then certified under s.21 of the Act and detained in prison. They appealed to the Special Immigration Appeals Commission, which examined open and closed material. 

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A v UK 2009 House of Lords Case

Decision: Although the majority of the House of Lords found there was a public emergency threatening the life of the nation under art.15(1), it quashed the derogation order and declared thats.23 of the Act was incompatible with art.5(1) and art.14 insofar as it was disproportionate and permitted discriminatory detention of suspected international terrorists who were non-nationals. However, the declaration being non-binding, terrorists remained in detention until they either elected to leave the UK, were released on bail on conditions amounting to house arrest, or were released and made subject to control orders under the Prevention of Terrorism Act 2005Terrorists submitted that (1) contrary to art.3, they had suffered an intense degree of anguish due to their indeterminate detention in high security conditions; (2) contrary to art.13, they were denied an effective remedy for their art.3 complaints; (3) contrary to art.5(1), (a) their detention was unlawful; (b) the derogation was invalid because an inchoate fear of a terrorist attack was not sufficient for a "public emergency threatening the life of the nation" under art.15(1); and (c) the enactment of Pt.4 of the 2001 Act and the power contained therein to detain foreign nationals indeterminately without charge was not "strictly required by the exigencies of the situation" under art.15(1); (4) contrary to art.5(4), the proceedings to challenge the lawfulness of their detention involved closed material.

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A v UK 2009: ECtHR decision

President Judge Costa ECtHR Decision: Complaints upheld in part. (1) Ill-treatment had to attain a minimum level of severity if it was to fall within the scope of art.3. The imposition of an irreducible life sentence on an adult, without any prospect of release, might raise an issue under art.3, but national law which afforded the possibility of review of a life sentence would be sufficient. In the instant case, whilst the uncertainty regarding C's position and the fear of indefinite detention must undoubtedly have caused them great anxiety and distress, sufficient to affect the mental health of some of them, they were not without any prospect or hope of release. They were able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act and the decision to certify; and the Commission was required by statute to review the continuing case for detention every six months. Therefore, C's situation was not comparable to an irreducible life sentence capable of giving rise to an issue under art.3, Kafkaris v Cyprus (21906/04) (2009) 49 E.H.R.R. 35distinguished. Their detention did not reach the high threshold of inhuman and degrading treatment.In the instant case, the open material against five detainees included detailed allegations and so their rights under art.5(4) were not violated. However, the key evidence supporting the allegations against four others was largely to be found in the closed material and so they were not in a position to effectively challenge the allegations against them and their art.5(4) rights were violated. (5) It was not necessary to separately consider the alleged violations of art.5(1) in conjunction with art.14 or art.5(4) in conjunction with art.13.

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