1. Revision Human Rights and Council of Europe

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

3. 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

4. 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)

5. 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

6. 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)

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, 27th 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. 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’

10. 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

11. 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.

12. 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

13. 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.

14. 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

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

16. 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

17. 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

18. 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)

19. 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)

22. 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.

26. Council of Europe investigation