Revision Human Rights and Council of Europe

Key texts Morrison p271-272 King, The British Constitution Bingham, The Rule of Law, ch7

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

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)

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

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)

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, 27th February 2007 “We [Britain] have no need of a Bill of Rights because we have freedom”. John Major, 1997

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

Broadcasting ban The ban affected 11 loyalist and republican organisations but Sinn Fein, the political wing of the IRA, was the main target. It meant that instead of hearing Gerry Adams, viewers and listeners would hear an actor's voice reading a transcript of the Sinn Fein leader's words. Margaret Thatcher had long railed against ‘the oxygen of publicity’

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

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.

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

Topical issue Theresa May has fuelled speculation that the Home Office failed to obtain written confirmation from European judges over when the deadline was for Abu Qatada to appeal against his deportation. She refused six times to confirm that her department had proof from the European Court of Human Rights (ECHR) that it agreed the deadline expired on the night of April 16 rather than 24 hours later.

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

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

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

CRITICS OF HUMAN RIGHTS ACT The HRA “… protects killers, paedophiles and rapists instead of victims.” “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

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)

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)

Council of Europe The Council of Europe is not part of the EU 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.

Council of Europe investigation http://news.bbc.co.uk/1/hi/programmes/newsnight/9294175.stm