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Human Rights - Coggle Diagram
Human Rights
convention rights
right to life & liberty
article 2 - everyones right to life shall be protected by law - although it doesnt recognise that states have the right to impose death penalty
article 3 - no one shall be tortured or suffer inhuman aor degrading treatment or punishment
article 5 - sets out that everyone has right to liberty and that no one shall be deprived of it except where law allows arrest or detention.
s4 - everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which lawfulness of his detention shall be speedily decided by a court
right to fair trial
article 5 is backed by article 6 - people have right to fair and public hearing within reasonable time
article 7 - no one shall be found guilty of a criminal offence if his act wasnt a crime at the time he committed it - means that the law isnt allowed to change retrospectively
sander v uk
ECHR ruled defendant had not had a fair trial and there was breach of article 6 - during trial one of jurors had written note to judge raising concern over the fact that other jurors had been making openly racist remarks and jokes - judge asked jury to search your consciences - next day judge recieved 2 letters one signed by all jurors in which they denied any racist attitudes and other one from juror who admitted he may have been the one making the jokes - judge allowed case to continue with same jury - ECHR held that the facts should have alerted the judge to hte fact that wherre there was something fundamentally wrong and he should have discharged the jury allowing the trial to continue was infringement
R v R - art 7 doesnt allow law to change retrospectively - man was convicted of marital rape when the HOL overruled a previous precedent which was held that this wasnt a crime - r challenged the decision in ECHR and ECHR decided that there hadnt been a breach of art 7 as law had changed in earlier case to allow a man to be convicted of raping his wife when they were legally seperated
right to privacy
article 8 - every person has a right to respect his private and family life, his home and correspondence
article 9 - everyone has the right to freedom of thought, conscience and religion,
article 10 - everyone has right to freedom of expression
article 11 - people have right to freedom of peaceful assembly and to freedom of association with others
article 12 - everyone has right to marry
article 14 - rights and freedoms should exist without any discrimination on any ground such as gender, race, colour, language, religion, political opinion, national/social origin, satus
effect of the act on interpretation
of the law
when judges are deciding case in which a question about a convention right has arisen, s 2 of HRA states that the court must take into account any judgement decision, declaration or advisory opinion on the ECHR - means that court must follow decisions of ECHR instead of conflicting decision by UK court
re medicaments director general of fair trading v proprietary association of great britain - where coa refused to follow decision of house of lords r v gough on the test for bias because it was slightly different from decisions of ECHR
act also states that so far it is possible for courts have to interpret legislation in a way that is compatible with convention - means that courts read tehe provisions of an act in very broad way in order to make it comply with ECHR
Mendoza v ghaidan - when COA revisited a decision made by HofL in fitzpatrick v sterling. the court pointed out that it must if it can read the rent act so that its provision are rendered compatible with convention which meant reading words differently
the fact that judges are required to interpret legislation in a way which is compatiblewith rights set out in ECHR has had an impact on statutory intrpretation
so in human rights cases a judge may interpret an act in a very wide manner in order to make act compatible with rights given by ECHR
declarations of incompatibility
although courts have to read legislation and give it effect in a way which is compatible with rights set out in ECHR - act recognizes that some legislation may be worded in such a way that its impossible to give effect to convention - if this is so the court must apply the legislation as it stands but may make declaration that legislation is incompatible with ECHR
s10 of the act gives government ministers the power to amend legislation to bring it into line with convention - must be approved by parliament
H v mental health review tribunal 2001 - as this involved the liberty of the subject, it was a breach of article 5 - although domestic law was incompatible with the convention so court could not give effect to rights - only declare that the law was incompatible
governments response to declarations of incompatibility
after a declaration of incompatibility the government will usually change the law - however this is no need for government to do so - in fact if parlaiment wishes it can deliberately pass new legislation which contravenes the convention
however, government has usually changed the law following a declaration of incompatibility - can be done by a new act of parliament which replaces the incompatibe or where only a small part of an act is incompatible it can be done by a remedial order
remedial order is a statutory instrument which amends hte incomaptible provision in order to comply with convention rights
a & another v secretary of state for the house department - declared that anti-terrorism, crime and security act 2001 was incompatible - act allowed foreign nationals to be detained indefinitely without trial where there was suspeicion that they were involved in terrorist activity - article 5 (right to liberty) and article 14 ( no discrimination on basis of nationality) were breached - decision forced government to change the law and released detainees, but released on strict conditions
ECHR
up to 1998 UKK didnt have bill of rights giving its citizens the right to certain basic freedoms - as early as 1950 the UK government signed the ECHR
ECHR drawn up after WW2 in order to try and protect peoples rights from the abuses that had been seen during the holocaust and followed the UN declaration on Human rights made by general assembly of UN - convention in its articles sets out rights and freedoms that people of europe are entitled to expect
although UK signed convention in 1950 it was not part of law until october 200 when HRA 1998 came into force
HRA 1998
this act incorporates the ECHR on human rights into british law and makes it unlawful for public authority to act in a way which is incompatible with convention right
appears very wide ranging protection as public authority is defined as including courts as well as any person who has some public functions
there is limitation on since public authority doesnt include either house of parliament or a person excerising functions in connections with proceedings in parlaiment. this appears to mean that parliament and government ministers may disregard the convention