European Convention on Human Rights (OCR A-Level Law): Revision Notes
European Convention on Human Rights
Introduction to evaluation
When evaluating human rights protection in the UK, it is essential to critically assess both the European Convention on Human Rights and the Human Rights Act 1998. This involves examining the strengths and weaknesses of individual Articles, general criticisms, and proposals for reform.
The Human Rights Act 1998 was introduced to bring rights home by making the provisions of the ECHR directly enforceable in UK courts. For many citizens, this legislation was long overdue. The Act received cross-party support in Parliament and was designed to promote mutual respect and consideration of others, rather than serving as a political tool.
The historical context is important. The horrors of the Second World War led to the creation of the ECHR as a means to prevent such atrocities from occurring again. Human rights and freedoms form the foundation of any democratic society.
However, despite broad support for the Act, laws and rights must adapt to reflect a changing society. While the fundamental principles of rights and freedoms remain constant, the laws supporting them must evolve with the times.
Exam guidance: When analysing a particular Article of the ECHR, always include both criticism and support. Consider any reform proposals relevant to the question. It is not necessary to know every criticism - focus on common proposals or develop sensible arguments based on the material studied.
Evaluation of specific Articles
Article 5: the right to liberty and security of the person
Key principle: Liberty requires that an individual's autonomy is guaranteed and that any arrest or detention must be lawful.
Criticism: While most citizens' right to liberty is generally respected, there are several significant restrictions on that freedom.
Analysis of the criticism:
- Article 5 is not an absolute right
- The police can restrict this right without reservation during an arrest
- During the arrest process, a police officer is permitted to fully remove a person's liberty without question
Case Example: Jean Charles de Menezes (2005)
The shooting of Jean Charles de Menezes in 2005 provides an important illustration of the tensions surrounding Article 5 and the right to liberty when balanced against public safety concerns. This tragic incident demonstrates how security considerations can override individual liberty rights in practice.
Article 6: the right to a fair trial
Criticism: Although a citizen's right to a fair trial is generally upheld in practice, there are several significant restrictions on this right.
Analysis of the criticism:
- Article 6 is a qualified right, as demonstrated by the Diplock courts in Northern Ireland
- The Crown Prosecution Service can prosecute a defendant due to public pressure or the popularity of a topic, leading to perceptions that judges and magistrates are prosecution-biased
- A jury may not be truly impartial because of the summons system - jury members may be reluctant and apathetic, which undermines the quality of the trial
The concept of a "fair trial" extends beyond the courtroom itself. It encompasses the entire justice system, from investigation through to verdict. Questions about impartiality, bias, and public influence challenge whether Article 6 protections are sufficient in modern practice.
Article 8: the right to respect for private and family life
Key principle: An individual's privacy is essential to a functioning democracy, but the State can interfere where it considers this necessary.
Criticism: The balance between individual privacy and State interests remains contested.
Analysis of the criticism:
- Article 8 introduced a right to privacy in UK law for the first time
- This right must be balanced with the rights of the majority - see Hatton v UK (2001)
- The Article protects a person's correspondence, but counterterrorism laws have potentially overridden the sanctity of post, email or phone calls
Contemporary issue: Instant messaging systems such as WhatsApp or Telegram are used by millions of people worldwide. These systems claim to be end-to-end encrypted from user to user.
This raises important questions about what might happen if governments could access users' conversations - would this be justified in the interests of national security, or would it represent an unacceptable erosion of privacy rights?
Article 10: the right to freedom of expression
Key principle: The ability to say what we want, how we want to say it, and to whom is a fundamental human right.
Criticism: The right to express an opinion is vital in a democratic society, whether we agree or disagree with that opinion. However, this right must be balanced with an individual's or the State's right to challenge.
Analysis of the criticism:
- Article 10 is a qualified right - see aggravated offences where racial comments are made, or the tort of defamation
- A free press is enshrined in this Article, yet UK newspapers often align with particular political allegiances, which can undermine objectivity
- Outright freedom of expression is curtailed to protect the law and prevent abuse of moral standards - see Handyside v UK (1976)
Contemporary consideration: How many times do we read an opinion on social media that we disagree with? Should such opinions be banned, and if so, what rules would be appropriate to determine which opinions should be prohibited?
This question highlights the ongoing tension between protecting free speech and preventing harm in the digital age.
Article 11: the right to freedom of peaceful assembly and association
Key principle: The right to present an individual's views to a wider public is crucial to democracy.
Criticism: Despite the irritation and frequent disruption that protests may cause, a person's right to protest, voice an opinion, or counter a popular opinion must be allowed in a democratic society.
Analysis of the criticism:
- Article 11 is a qualified right, and necessarily so
- People can gather but not to the extent that they curtail another person's right to freedom of movement, unless permitted by legislation such as the Public Order Act 1986
- Groups can gather to voice an opinion under this Article, but the right to associate with others must be curtailed where there is criminal intent, for example with organised terrorist groups
General criticisms of the ECHR
Several broad criticisms have been made of the ECHR and its implementation in the UK:
Key Criticisms to Consider:
- The Equality Act 2010 was passed to rationalise anti-discriminatory law, but breaches of human rights law in this area are often ignored by businesses
- Human rights law has been criticised as protecting the perpetrators of crime more than the victims - often referred to as a "burglar's charter"
- Before incorporation into domestic law by the Human Rights Act 1998, the use of the Convention by UK citizens was a time-consuming, expensive and exhausting process
Additional structural and procedural criticisms include:
- The ECtHR is based in Strasbourg, France, which requires additional costs for travel and accommodation for claimants and defendants
- To use the Convention, citizens had to use and exhaust all domestic means of challenge before being able to petition the ECtHR
- Even when the Convention was signed by a Member State such as the UK, this did not mean that the Convention automatically became incorporated into domestic law
- Each Article under the Convention allows an individual state to impose restrictions, such as to protect national security. This limits the impact of the aims of each Article
- There is no automatic right to be heard by the European Court of Human Rights, as cases can be rejected
- The UK has a poor record when it comes to its citizens arguing breaches of the Convention. It is argued that the UK has more breaches than any other signatory country
Ideas for reform
Potential introduction of a Bill of Rights
If a Bill of Rights were introduced to replace the Human Rights Act 1998, a more UK-focused set of rights and responsibilities could be established, rather than the current pan-European approach. This would have the following effects:
Proposed Benefits of a UK Bill of Rights:
- The UK Government could pass legislation appropriate to the UK that could not be challenged by EU membership
- Any potential incompatibility with EU law would be removed, along with any restrictions
- UK courts would not have to consider, nor be bound by, decisions of the European Court of Justice in Strasbourg
- The Supreme Court would be reasserted as the primary court over Strasbourg
- Civil laws would be more laissez-faire and less consumer-focused, which supporters argue has hampered and restricted the growth of many UK businesses
Other reform proposals
Additional ideas for reform include:
- Allowing national courts to have a greater say over local domestic laws
- National courts should be given wider interpretation rights under the Convention and from decisions of the ECtHR
- Reform of the wording of the Convention to address criticism of decisions by the ECtHR that have prevented terrorists from being deported from the UK and given prisoners the right to vote
- The ECtHR should only review decisions taken by national authorities to ensure they are within EU law; if they are not, the court should advise but not decide on the matter
- The ECtHR should simply be an advisory mechanism, providing guidance to national authorities and allowing them to pass ultimate judgment
Advanced research: Students should investigate the purpose of the independent review of the Human Rights Act in 2020 to understand contemporary debates about reform.
Human Rights Act 1998: criticisms
Despite its importance in bringing rights home, the Human Rights Act 1998 has faced significant criticism:
- There are numerous loopholes in the Act which allow avoidance of rights under the Convention, leading to arguments that the Act is no more than an altruistic measure without real teeth
Evaluation point: It is important to consider how the Human Rights Act 1998 might actually restrict human rights in the UK, despite its stated purpose of enhancing protection. This paradox arises from the qualified nature of many rights and the derogations permitted under the Act.
Key cases and statutes
| Case/Statute | Relevance |
|---|---|
| Hatton v UK (2001) | Article 8: balancing individual privacy rights with the rights of the majority |
| Handyside v UK (1976) | Article 10: curtailing freedom of expression to protect the law and prevent abuse of moral standards |
| Public Order Act 1986 | Article 11: limiting freedom of assembly where it interferes with others' rights |
| Equality Act 2010 | Rationalisation of anti-discriminatory law |
| Human Rights Act 1998 | Incorporation of ECHR into domestic law |
Exam technique
Exam Command Words and Approach:
When answering evaluation questions on the ECHR:
- Analyse command word: Examine the Article's provisions, identify criticisms, and assess their validity using case law and examples
- Evaluate command word: Weigh up the strengths and weaknesses of the Article or the ECHR more broadly, and reach a supported conclusion
- Discuss command word: Present different viewpoints on the Article's effectiveness, including reform proposals
- Apply command word: Use the Article's provisions to resolve a legal problem, considering any limitations or qualifications
Always support your arguments with relevant case law, statutory provisions, and contemporary examples. Be prepared to discuss the tension between individual rights and broader societal interests.
Remember!
Key Points to Remember:
- The ECHR was created following the Second World War to prevent future atrocities and protect fundamental freedoms
- The Human Rights Act 1998 brought rights home by making ECHR provisions directly enforceable in UK courts
- Most ECHR rights are qualified, not absolute, meaning they can be restricted in certain circumstances to protect public safety, national security, or the rights of others
- Key criticisms include: the "burglar's charter" perception, expensive and time-consuming processes, loopholes in the HRA 1998, and the UK's poor compliance record
- Reform proposals focus on either a UK Bill of Rights or giving national courts greater autonomy from Strasbourg
- Important cases to remember: Hatton v UK (2001) for Article 8, Handyside v UK (1976) for Article 10