How does the European court of Human Rights affect the UK?

European Convention on the Protection of Human Rights and the HR Act 1998:

A) The non-direct applicability of the ECHR:

In 1950 the convention was adopted signed by some countries in Europe. Nowadays there are many countries which are member of ECHR: 47. The European Convention became binding in 1972.

A convention need to be incorporated in the English legal system to have effect. But for a very long time the UK refused to incorporate the convention. Consequently the convention wasn’t recognized by English courts as far of English law. Citizens in the UK who thought that their rights under the convention had been reached couldn’t claim their rights before domestic courts. They still could go in Strasbourg before the ECHR because the UK accepted in 1966 the right of individuals to bring their cases before the ECHR.

For a very long time English courts couldn’t apply the convention and citizens needed to go to Strasbourg. And if the UK was sanctioned then the government was expected to modify its law which violated the rights.

This lake of incorporation didn’t mean that fundamental rights could be bridged. Fundamental rights, freedoms were protected by the Common Law but in the Common Law way that is to say protection depended on individual cases. It didn’t bring really a sufficient amount of predictability regarding the protection of fundamental rights. A piece of legislation is protected: a statute delete a discrimination. But there was not a general statute protecting the fundamental rights. This changed in 1998 when the Human rights Act was adopted in 1998.

B) The Human Rights Act 1998:

This act incorporates the European convention. It incorporates the articles which protect fundamental rights and also the first protocol is incorporated. It has the effect to strength the protection of individuals.

What are the Convention Rights?

• – The right to life (art 2). Provision which has been used in cases relate into about aversion.
  • =>Pretty v the UK (ECHR 29 april 2002): it was Liam Pretty, she was a British citizen and she was ill, a motor neuron decease, degenerative decease. There was no remedy for that illness. She wanted to be able to legally coming suicide with the help of her husband. She asked the authorities in UK to have that right and she wanted to ensure that if her husband helped her that he wouldn’t be prosecuted. The right of euthanasia doesn’t exist in the UK the authorities denied this claim. The claim was before the ECHR. She said that the convention protects the right to life. A corollary of that right is also the right to die. The court didn’t accept that arguments and refused to say that UK violated the article 2 when it refused to allow her to legally coming suicide.

• – Freedom for torture, inhuman or degrading treatment (art 3)
• – Freedom slavery of forced labour (art 4)
• – The right to liberty and security of the person (art 5)
• – The right to a fair trial (art 6)
• – The prohibition of retrospective criminal laws (art 7): the no member states may adopt criminal laws that would be retrospect.
• – The right to respect for a person’s private and family life, home and correspondence (art 8).
  • =>Christine Goodwin v the UK (ECHR, 11 July 2002): the court said that a transsexual, a man who became a woman has the right to marry a person of the opposite sex. The question would be irrelevant since they have adopted the same sex Marriage Act. Before it wasn’t possible, it was consider that the changing wasn’t total change. Christine Goodwin won and the UK has violated the art 8 and the art 12 which is the right to marry.
• – Freedom of thought, conscience and religion (art 9)
• – Freedom of expression (art 10)
• – Freedom of assembly and association (art 11)
• – Right to marry (art 12)
• – + enjoyment of these rights without discrimination (art 14)
• – 1^st Protocol:

=> The right to peaceful enjoyment of one’s possessions (art 1)

=> The right to education (art 2)

=> The right to take part in free elections by secret ballot (art 3)

How the Convention rights should be applied in England?

This isn’t only a copy based on the convention, this act states something else.

– English judges should take the case of law of the convention of Human Rights into account.Judicial duty to take case-law under the Convention into account (s. 2 of the act)

– English courts should interpret all legislation in a way which is compatible with Convention rights (s. 3)

– Declaration of incompatibility (s. 4) : it says that a court of the level of the high court are above have the power to make declarations of incompatibility where primary legislation conflict with convention rights. It affects the parliamentary sovereignty, the courts may make a declaration of incompatibility, it doesn’t mean that the court won’t be able not to apply legislation but just make a statement that this legislation is incompatible with Convention rights. They need to change the law to make it compatible with convention rights.

– When a statute is about to be adopted then the government, the ministers should make a statement of compatibility of that Bill (s. 19)

– Vertical and horizontal effect? (s.6) whether they could have a horizontal effect or just had a vertical effect.

There was some doubt about the horizontal effect of the convention because section 6 of the HRA provides that it is “unlaw for public authorities to act in a way which is incompatible with Convention rights”. It should have only a vertical effect because only public authorities but some other said that courts are a public authorities so they apply the convention rights, that means that it’s also an horizontal effect.

Horizontal effect in Douglas v Hello! [2005] EWCA Civ 595: when he was married they were contracted specific magazine but some pictures of the weddings were published in Hello! The question was whether the couple could rely on art 8 which protect the right to private life. The court of appeal relate on art 8 of the convention to say that art 8 was applicable, it could be evocable by individual against individual, so it had a horizontal effect.

Remaining problems:

=>Compliance with case law of the European Court: the act says that English court should take into account a case. The problem was real in a case where in a decision:

– R v Saunders: the court of appeal accepted some evidence in the criminal case. But that person who had been condemned on the basis of that evidence brought his case before the European Court saying that to admit such evidence was unlawful and violated to art 6. The European court agreed with Mister Saunders saying that admitting such evidence was a violation of art 6 of the convention. When the same fact arose in 2 different cases in R v Morrissey and R v Stainesthe court of appeal was faced in difficult problems. It had 2 different cases: they apply the precedent of the domestic court and apply a solution that already had been sanctioned, condemned by European court. Because of the lake of binding precedent then inconsistences may apply and judges may be confronted into difficult to choice.

=>Legal status: the HRA is a simple act, an act as any other act; it doesn’t have a superior force than other acts. It’s not considered to be part of the constitution. That means that any act maybe removed by another act. It’s very existence to put into danger because it’s not considered as constitutional law. Nobody can be guaranty that this act will not be repeal one day.

C) An illustrtion of European court decision and the English response:

=> Prisoner’s right to vote.

– ECHR hirst (number 2) v the UK, 6 October 2005: judgment given by the grand chamber. A prisoner who had been convicted in England and pursued to English law because he was a prisoner and he couldn’t vote, he couldn’t participate to any elections. He claimed that he is right to vote, it’s a right protected by article 3 of the first protocol of the ECHR. His right was violated because he is ban on voting. The European court found that the applicant before the European court had been subject during the time and due to his statutes as a convict prisoner so that this person had been subject to an discriminate restriction and his right to vote. The court held that there had been a violation of the ECHR. The court didn’t make any reference to disenfranchisement and it was a violation of article 3. Section 46 of European Convention provides that the state should perform, enforce the decision of the court. As a result, UK should do something when it had been condemned by the European court.

=> Response of the UK government:they would take an action plan for legislative reform, in other words, they promised to do something about the act that prohibit prisoners to vote in England but it was just a promise. There is a specific body in the Council of Europe: the comity of ministers. It’s the body which controls the execution, the enforcement of the courts decisions.

Dec 2009: no action was taken. The comity of ministers expressed serious concern about the delay in implementing the judgment.

Because the comity of ministers saw that UK government didn’t make anything to comply the decision, they accepted a new case:

– ECHR Greens and M. T. v the UK, 23 November 2010: the same question was asked to the court. Whether the legislation imposing blanked ban on voting in national European elections for convicted prisoners is violate or doesn’t violate the first protocol?

The decision was easy to take for the European court, same problem, same solution. The court said that the UK violated again the article 3 of the first protocol.

It begins more and more urgent for the UK to try to do something to demonstrate the wish of make some changes.

The court wanted to warn the UK. Next time, the court will have the same request from prisoners then the court might take a pilot judgment: specific procedure in European court.This is a procedure developed in order to identify the structural problems underlying repetitive cases against one or several countries and imposing an obligation to state, to address those problems. It’s one judgment for many cases => the pilot judgment. The impact of this pilot judgment is very big, very intense it means that a state has been (reelected ?) to enforce a previous case and that….

No state is reel in to have a pilot judgment against it. The court decided to adjourn more than 2000 cases concerning the same question: adjournment of examination of 2353 other cases. A lot of pressure was on the UK.

Finally, the government drafted a proposal to reform the existence legislation. In November 2012, the government published a draft bill on prisoners voting eligibility.

– The first proposal: to prohibit to voting sentence to 4 years imprisonment or more.

– Second proposal: a ban of voting the prisoner’s sentence to more than 6 months. Only the prisoners who were less than 6 months in prison can vote.

– Third proposal: proposal for voting to all prisoners.

It was noted by the comity of ministers. They would wait until the bill is examined by the parliament. The comity of ministers givessometimes: 30 September 2013. The bill wasn’t adopted in the Parliament.

David Cameron: “giving prisoners the right to vote would make me physically sick”.

The UK Supreme Court gains a decision:

Arguments:

– They argued that English law was incompatible with ECHR. They asked the court to make a declaration of incompatibility between the act which prohibit prisoners to vote and ECHR.

=>The Supreme Court denied this argument. => October 16 2013

– The second argument was based on EU law: they argued that provisions of the treaties should allow prisoners the right to vote and to prohibit the contrary to EU law : direct application of EU law (elections to the European Parliament and municipal authorities).

– The court said that the EU treaties don’t guaranty any right to vote paralleling that recognized by the ECHR in its case law.

– The Supreme Court said finally that eligibility to vote in member states is basically a matter for national legislatures.

• Bad relationships between English press and the ECHR :

Ex : “European Courts of human rights…” (the Guardian, 14 october 2013).

Bad relationships between English politics and the ECHR :

Ex : “David Cameron…” (the Guardian, 16 october 2013).

IV) Foreign law:

There are many cases in England where English courts apply a foreign law.