Human Rights and Council of Europe Joy Johnson

Key texts Morrison p King, The British Constitution Bingham, The Rule of Law, ch7 2

Convention rights scheduled to the Human Rights Act – provide framework for Tom Bingham (Britain’s former senior law lord) The law must afford adequate protection of fundamental human rights The right to life The prohibition of torture Prohibition of slavery and forced labour Right to liberty and security Right to a fair trial No punishment without law Right to respect for private and family life Freedom of thought and conscious Freedom of expression Freedom of assembly and association Right to Marry Rights in the convention to be secured without discrimination First protocol Article 1 – Protection of property First protocol Article 2 – Right to Education 3

A response to tyranny and oppression European Convention 1950 Human Rights Act and the Convention have been under attack. Bingham asked which of the rights would you give up? His contention is that the rule of law requires that the law afford protection of fundamental human rights. ( Bingham p 84) 4

Safeguarding human rights Human Right Act 1998 established by Labour government Came into force 2000 Basic freedoms introduced – age of consent and heterosexual sex, equalised Introduction of civil partnerships 5

Potentially revolutionary According to King the Act was potentially revolutionary in its implications, including its constitutional implications (p 133) Law Lord Browne-Wilkinson was emphatic that moral attitudes which have previously been the actual but unarticulated reasoning lie behind judicial decisions will become the very stuff of decisions on Convention points. (King p 133) 6

7 LIBERTY AS FOUNDATION OF BRITISH POLITICAL SYSTEM “When people are asked what they admire about Britain, more usually says it is our values - British tolerance, the British belief in liberty and the British sense of fair play. Even before America said in its constitution it was the land of liberty and erected the Statue of Liberty, I think Britain can lay claim to the idea of liberty.” Brown on Britishness, 27 th February 2007 “We [Britain] have no need of a Bill of Rights because we have freedom”. John Major, 1997

8 EXECUTIVE ENCROACHMENT ON INDIVIDUAL RIGHTS Banning of union membership at GCHQ Bans on homosexuals serving in army … … and on local councils promoting homosexuality Broadcasting in N Ireland

9 GOVERNMENT AND ‘RULE OF LAW’ Legal constraint of government Government acting outside its authority Procedural impropriety Irrationality or unreasonableness Focus on administration of decisions, not on their substance

10 EUROPEAN CONVENTION ON HUMAN RIGHTS ECHR derives from the Council of Europe (est 1949) ECHR provides various civil/political rights: - To life- To liberty - To fair trial- To private/family life - To non-discrimination - To freedom of thought, expression, assembly Britain ratified ECHR in 1951 But no right of appeal until 1966.

11 USE OF THE E.C.H.R. Since 1966, many decisions against UK government: - Corporal punishment in schools - Treatment of terrorist suspects in NI - Votes for prisoners Anomaly of petitioning Strasbourg, but not domestic courts Also, petitions to Strasbourg lengthy and costly

12 HOW DOES THE HUMAN RIGHTS ACT WORK? Legislation must comply with HRA Judges must try to interpret legislation as meeting the terms of HRA If HRA not met, judges issue a ‘declaration of incompatibility’ Ultimate responsibility for amending legislation rests with ministers/Parliament

13 IMPACT OF HUMAN RIGHTS ACT Since 2000, twenty ‘Declarations of Incompatibility’ Mandatory sentences Indefinite detention of terror suspects Afghan plane hijackers

Human Rights/ Privacy law Max Mosley Naomi Campbell Footballers ‘rights’ 14

Human rights judgements european-court-human-rights-mediahttp:// european-court-human-rights-media

JUDGES AND DEMOCRACY Negative Who are judges? - Socially unrepresentative - Ideologically conservative Risk of politicising judiciary Power without accountability 16 Positive Judges not actively seeking policy role; ‘stop-gap’ against abuses Protection of individual rights against (majoritarian) electoral democracy

Liberty rights.org.uk/human-rights/human- rights/index.phphttp:// rights.org.uk/human-rights/human- rights/index.php Director of Liberty – Shami Chakraborti 17

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19 CRITICS OF HUMAN RIGHTS ACT “the rules of the game have changed” Aug 2005 “It is an experiment that has failed. It should go.” July 2006 "We ought to abolish the Human Rights Act and replace it with a British Bill of Rights that we can write ourselves that sets out clearly our rights and responsibilities. Aug 2007 The HRA “… protects killers, paedophiles and rapists instead of victims.”

Established quangos to safeguard equal opportunities On entering government 1997 – 1998 Labour established Equal Opportunities Commission (EOC) Commission for Racial Equality Disability Rights Commissions (DRC) 20

Quangos merged Ten years later merged to become Commission for Equality and Human Rights (CEHR) Enforce the law in relation to equal opportunities and rights Influence the development of government policy and law Promote good practice Fosters better relations between communities (Morrison p 271/2) 21

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Justice Secretary – prisoners votes of_commons/newsid_ / stmhttp://news.bbc.co.uk/democracylive/hi/house_ of_commons/newsid_ / stm 24

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Council of Europe The Council of Europe is not part of the EU. It has 40 members and was set up to promote European cultural values. The European Court of Human Rights is based in Strasbourg and applies the principles contained in the European Convention on Human Rights. It was set up by the Council of Europe and is not an institution of the EU. 26

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Religious symbols and the ECHR ECHR ruled British Airways had breached Nadia Eweida’s human rights, in particular her right to freedom of thought, conscience and religion, when it banned her from wearing a crucifix before changing its uniform policy to accommodate the 60-year-old. 3 others were disallowed 30

Next week Supreme Court And round up of the course 31