- Austria changed its rules in relation to treatment of prisoners in hospitals.
- Denmark amended the law on custody of illegitimate children.
- Germany had to accept transsexuals.
- Scotland was not able to use temporary sheriffs.
Although it was thought that that the convention was forced upon the United Kingdom, it was them in fact who was one of the first members of the Council of Europe to ratify the convention when it passed through Parliament in 1951. The convention protects a series of fundamental rights, including;
- The right to life.
- Freedom from torture, inhuman and degrading treatment.
- Freedom from forced labour or slavery.
- The right to liberty and a fair trial.
- A right to privacy.
- Freedom of conscience.
- Freedom of expression.
- Freedom of assembly.
- The right to marriage and a family.
- Freedom from discrimination.
It can be argued that because the convention covers a wide range of rights there is no specific guide for judicial interpretation. The convention recognises the fact that there must be a balance between the general interests of society and the protection of individual rights. This is central to the way in which the European Court of Human Rights has applied and interpreted the convention. An example in section 3 of the Human Rights Act which requires all legislation to be read so that it an give effect to the rights provided under the convention. This section provides the courts with new and extended powers of interpretation. In R v A the defendant in a case of alleged rape claimed that the provisions of the Youth Justice and Criminal Evidence Act 1999 were contrary to Article 6 of the convention to the extent that it prevented him putting forward a full and complete defence. The House of Lords held that,
‘In section 41 of the 1999 act where prima facie capable of preventing an accused from putting forward relevant evidence that could be crucial to his defence.’
Other examples include Mendoza v Ghaidan where the Court of Appeal held that the Rent Act as in Fitzpatrick, was incompatible with Article 14 of the convention on the grounds of the discriminatory treatment of surviving same sex partners.
The convention is limited in the fact that it only protects some rights, due to the fact that it was not drafted for modern technicalities. A prime example being Article 8 of the Convention, Freedom from discrimination of the grounds of sexual orientation. Here the leading authority Cossey v Uk where he was born male but later opted for an operation for a sex change, wanting also to marry further down the line. However according to British Law sex is defines at birth, thus in the eyes of the law he was still a man, therefore a man trying to marry another man. According to the European Convention on Human Rights there was no consensus, discretion in how it should be used, there was also a lack of understanding within society. However according to the margin of appreciation a gap was given in order for a personal decision to be made. As time moved on there was also a subtle change in the courts’ attitude. In Goodwin v Uk it was determined that the words did not change but attitudes did,
‘The European Court of Human Rights determined that because of changes in societal attitudes the prohibition on, inter alia, the right of transsexuals to marry was in violation of the ECrtHR and such difference in treatment no longer be claimed by the Uk Government to fall within its margin of appreciation.’
Following on from this in Bellinger v Bellinger & Another The House of Lords made it clear that a marriage between a woman who was male at birth and a man was not valid under section11 of the Matrimonial Causes Act 1973. However because of the change in attitude in Goodwin v Uk the decision was classed incompatible with regards to Articles 8 and 12 of the convention.
Article 14 again highlights the limitation of the convention with regard to discrimination on race, sex and social origin. This is centralised in Abdul Aziz v Uk which also has a reference to article 8, Right to a family life. Here immigration rules did not allow entry to a fiancé. It was argued that the right to a family life was being violated under article 8 however it was not under 14. Highlighted the discrimination on sex. The courts made it clear that if sex discrimination was involved a robust attitude be taken with strong reasons to show off the advantages. This can be linked with the leading authority of Belgian Linguistics Case No 2 where concerned parents in Belgium argued that there was a division in the area and as a result were unable to find French schooling for their children. Showed that it violated the right to an education under Article 2 and argued this in conjunction with Article 14 referring to the language barrier. The court accepted that discrimination had occurred as they were denied the right to go to the school of their choice, in many ways it was showed as indirect discrimination.
Article 2 can be defined in two stages, firstly that everybody’s right to life shall be protected by law, and the second describes the test which must be placed on the state to show no more force than absolutely necessary. Here protocol 6 insists limitations on the death penalty. Distinctions have to be made between positive and negative obligations on the state.
Areas of this article begin to point towards limitations of the convention. In
Pretty v United Kingdom the courts stated that the right to life implied that a person should be able to die with dignity. In relation to modern day ethics an individual who is of sound mind should be able to decide for themselves whether or not continuing as they are would be any better off then if they were not alive. The question to be asked here is how much dignity can one have once they have lost control of all their bodily functions, is this a dignified way to live? Once again showing the time of the original draft of the convention being un able to relate to today’s times. In
Jordon & Others v United Kingdom the European Convention on Human Rights had failed to investigate the killings, putting an obligation on the state to rule and take action, forcing them to launch a fresh investigation.
‘Since an individual lives in society with other individuals, the exercise by him of his rights must necessarily be regulated to the extent necessary, to enable others to exercise their rights. The permissible restrictions on the exercise of rights must be distinguished from the power of the state to derogate from some of its obligations in time of public emergency. While a restriction prescribed by law may remain in force indefinitely, derogation is essentially a temporary measure limited to the period of the public emergency threatening the life of the nation.’
The rights and freedoms set out in the convention cannot be properly understood without case-law developed by Strasbourg Institutions. It is also emphasised that the convention is a living document and must be interpreted in the light of changing attitudes and values in society generally.
Fact, The European Convention was drafted in light of the Second World War and as expected its content does express concerns of its period. However all rights have their limits, how far is one to go before they are seen to be ‘crossing the line’, for example in Medical Law, advances in medicine over the years have increased the chances of life, whether it be with machines or drugs, there is a blurring of the boundary, how far does some bodies right to life go. It can be successfully argued that the rights are too broad, the convention could be said to have been successful for the time it was made for but with ever changing attitudes its limitations do highlight a cause for concern. The legislation passed at the end of the 1990’s had been expected unleash a wave of high profile cases, however in Scotland 98% of cases that tried to use the convention fell at the first hurdle. The impact has therefore been to make public bodies think about human rights and act in anticipation of avoiding problems rather than facing their critics in court.
‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’
Bibliography
- Lecture Notes –
- Seminar Notes – Richard Ryder
- Human Rights in the United Kingdom, Richard Gordon, QC and Richard Wilmot-Smith QC
- The Judicial Application of Human Rights Law, Nihal Jayawickrama
- Dickinson (1997) HR & EC (London: Sweet & Maxwell)
-
Ovey and White (2002) Jacobs and White, European Convention On Human Rights 3rd Edition
Human Rights in the United Kingdom, Richard Gordon, QC and Richard Wilmot-Smith QC, page1
Human Rights in the United Kingdom, Richard Gordon, QC and Richard Wilmot-Smith QC, Page 1
A report taken from the judicial interpretation of legislation under the Human Rights Act, internet.
[2002] 4 ALL ER 1162 (CA)
(1990) 13 EHRR 622 (EcrtHR)
The Judicial Application of Human Rights Law, Nihal Jayawickrama page 182