The Nature and Protection of Human Rights in the United Kingdom:

Human Rights 

The video is concerned with the protection of human rights. The first task is to determine what is meant by human rights: there is a great deal of terminological inconsistency in this area with a number of terms frequently used- human rights, civil liberties- often referring to the same thing. For our purposes, human rights take two forms. On the one hand, there are the classical civil and political rights - the rights to liberty of the person, the rights to form political parties and to participate in elections, and the rights to freedom of conscience, religion and expression. On the other hand, there are social and economic rights - the right to employment, health care, housing and income maintenance during periods of ill health, unemployment or old age. Human rights lawyers have traditionally confined their concerns to the former category, to the exclusion of the latter even though social and economic security is indispensable to effective participation in the civil and political life of the community.

The classical approach of Human Rights:

The traditional British approach to the protection of civil liberties and human rights has been greatly influenced by Dicey. For him there was no need for any statement of fundamental principles operating as a kind of higher law, because political freedom was adequately protected by the common law and by an independent Parliament acting as watchdog against any excess of zeal of the executive. Under the common law, a wide measure of individual liberty was guaranteed by the principle that citizens are free to do as they like to do unless expressly prohibited by law. So people already enjoy the freedom of religion, the freedom of expression and the freedom of assembly, and may be restrained from exercising this freedom only if there is clear common law or statutory restrictions. This approach is illustrated by a number of classical decisions, the first of which is Entick V Carrigton where the Secretary of State issued a warrant to search the premises of John Entick and to seize any seditious literature. When the legality of the conduct was challenged, the minister claimed that the existence and exercise of such a power were necessary in the interests of the state. But the court upheld the challenge on the ground that there was no authority in the common law or in statute for warrants to be issued in this way. A second example is Beatty V Gillbanks, where members of the Salvation Army in Weston-super-Mare were forbidden to march on Sundays because their presence attracted a large crowd of people, thereby causing a breach of the peace. When the Salvationists ignored the order not to assemble, they were bound over to keep the peace for having committed the crime of unlawful assembly. The order binding them over was set-aside on appeal because they had done nothing wrong. In the view of the court, they could not be prohibited from assembling merely because their lawful conduct might induce others to act unlawfully.

European Convention on Human Rights:

The protection of human rights which is primarily a matter for the state in whose territory the rights may be enjoyed, cannot today be confined within national boundaries. The European Convention on Human Rights was signed at Rome in 1950, was ratified by the United Kingdom in 1951, and came into force among those states which had ratified it in 1953. The Convention is a treaty under international law and its authority derives solely from the consent of those states who have become parties to it. Now one of a number of human rights treaties, which include the International Convent on Civil and Political Rights of 1966. The making of the ECHR was a direct result of the movement for cooperation in Western Europe which in 1949 created the Council of Europe. Inspiration for the Convention came from the wide principles declared in the United Nations Universal Declaration of Human Rights 1948. The Convention declares certain human rights which are or should be protected by law in each state. It also provides political and judicial procedure by which alleged infringements of these rights may be examined at an international level. In particular, the acts of public authorities may be challenged even though they are in accordance with national law. The Convention thus provides a constraint on the legislative authority of national parliaments, including that at Westminster.

The scope of  The European Convention on Human Rights:

The Convention does not cover the whole field of human rights. It omits economic and social rights and is confined to certain basic rights and liberties which the framers of the Convention considered would be generally accepted in the liberal democracies of Western Europe. These rights and liberties include:

✓The rights to life; (article 2)

✓Freedom from torture, or inhuman or degrading treatment or punishment, freedom from slavery or forced labour; (article 4)

✓The rights to liberty and security of the person including the right of one is arrested be informed promptly of the reasons for his or her arrest and of any charge against him or her; (article 5)

✓The right to a fair trial by an impartial tribunal of a person's civil rights and obligations and of criminal charges against him or her, including the right to be presumed innocent of a criminal charge until proved guilty, and the right to be defended by a lawyer and to have free legal assistance when the interests of justice so require; (article 6)

✓The prohibition of retroactive criminal laws; (article 7)

✓The rights to respect for a person's private and family life, his or her home and correspondence; (article 8)

✓Freedom of thought, conscience and relation and freedom of expression; (article 10)

✓Freedom of peaceful assembly and of association with others including the rights to form and join trade unions; (article 11)

✓The right to marry and found a family; (article 12)

By article 14 the rights declared in the Convention are to be enjoyed without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.

All persons within the jurisdiction of the member states benefit from the Convention regardless of citizenship although a state may restrict the political activities of aliens.

Institutions and procedure of the Convention:

One novel feature of the Convention was the right which it gave to individuals to complain of breaches of the Convention by the states party to it. The enforcement procedure initially made use both of the Committee of Ministers of the Council of Europe (a committee of political representative of the member states) and of two institutions created by the Convention: (a) the European Commission of Human Rights, which comprised individual members, elected by the Committee of Ministers but in office acting independently, and (b) the European Court of Human Rights, comprising judges elected by the Consultative Assembly of the Council of Europe. No two members of the Commission or the Court respectively could be citizens of the same state. The function of the Commission was to receive and inquire into alleged breaches of the Convention either at the request of any state party to the Convention which alleged that another state had breached the Convention (known as inter state cases); or where a state had recognized the competence of the Commission to receive such petitions on the receipt of a petition from an individual or a non government organization alleging a violation of rights by the state in question.

Cases involving the United Kingdom:

Under the original scheme of the Conventions enforcement depended essentially on a state recognizing both the right of individuals to apply to Strasbourg and the compulsory jurisdiction of the Court. In 1966 the British government first made the two optional declarations for which the Convention provided, and these declarations were renewed at intervals. One result of the changes in 1998 is that member states today have no choice in these fundamental matters and must accept the right if individuals to apply to the Court. Since 1966 a wide variety of individual petitions have brought against the UK government and there have also been inter- state reference to the Commission by the Republic of Ireland. Although individuals may now enforce Convention claims before the domestic court, significant number of cases continue to be referred to Strasbourg from the United Kingdom. In the three years from 2002 to 2004 no fewer than 4,287 applications were lodged, of which 179 were declared admissible. In the same period the European Court of Human Rights held in 69 cases that the United Kingdom had violated at least one provision of the treaty, holding in only six cases that there had not been any violation, with a friendly settlement being reached in another 13 cases. These figures are all the more remarkable when contrasted with statistics of an earlier era. Thus in the period 1975 to 1990 the Court decided only 30 cases involving the United Kingdom in which at least one breach of the Convention was found in 21 cases. By 2000 (when the Human Rights Act came into force), there had been only 64 decisions of the Court in which a violation of the Convention had been found against the United Kingdom. In other words, the United Kingdom was found in breach of the Convention in the three years between 2002 and 2004 more often than in the 25 years between 1975 and 2000.

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