Critically analyse if the European Convention on Human Rights and Fundamental Freedoms protect citizens(TM) rights in the UK.

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Critically analyse if the European Convention on Human Rights and Fundamental Freedoms protect citizens’ rights in the UK. (Focus your answer on public law issues)

In order to critically analyse whether the European Convention on Human Rights (ECHR) protects the rights of UK citizen’s this essay will start off by looking a brief history of the convention and examining why is was only brought into domestic law in 2000. The essay will then go on to explain the three different categories of articles within the convention; absolute, limited and qualified. Focusing firstly on absolute articles, the essay will state which articles are absolute, and why. It will then examine case law and intellectual opinion surrounding the area in order to come to a conclusion over whether absolute articles protect our rights. The essay will then move on to limited articles, following the same steps in order to assess how efficiently they protect our rights. The essay will pay particular attention to the third category of article, which is often viewed as the weakest, stating examples of which articles are qualified and looking at case law and journals to asses how effectively they protect our rights. Finally, the essay will conclude with how well the individual articles, and the European convention in its entirety, protect the rights of UK citizen’s.

In 1950 the ECHR was formulated with the purpose of protecting the human rights of all the people in the member states of the Council of Europe, which was formed following World War Two. Even though the UK played the largest part in writing the convention, and was the first to sign, it did not come into force in the UK until 2nd October 2000, when the Human Rights Act (HRA) incorporated the ECHR into domestic law. Previous to this the UK did not amalgamate the ECHR because it was believed that the English Common Law which protected civil liberties was sufficient. Also, as signatories to the ECHR, UK citizens already had the right to take domestic cases to the European Court of Human Rights (ECtHR) in Strasbourg. However, as the government stated in its White Paper preceding the HRA, it aimed to “increase individual rights” and would do so by introducing “new rights based on bringing the ECHR into UK law”. In theory, this should be a positive development as it appears to give UK citizens more rights whilst allowing them to maintain the right of appeal to Strasbourg.  

The HRA did not incorporate the ECHR in its entirety. “The rights which are to have effect under the Act are listed in s.1. Articles 2-12, 14 and 16-18 of the ECHR”. These rights (or articles) are split into three categories, absolute, limited and qualified.

 

An absolute right is one which the state is never justified to restrict or interfere with. Article 2 is an absolute article as it cannot be derogated from. It states that everyone has the right to life, and that deprivation of life does not conflict with article 2 when the use of force is absolutely necessary, and is in defence of any person from unlawful violence, or in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, or finally, in action lawfully taken for the purpose of quelling a riot or insurrection. This right is considered highly important, and seen to protect UK citizens efficiently; it was referred to by the Human Rights Committee as, “the supreme human right… basic to all human rights”.

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Article 2 imposes an obligation on the state to protect potential victims from “violence or abuse by state agents”, and “self harm”. This is a positive obligation which ensures that the state does whatever is in its power to protect citizens. One major issue with article 2 is that it does not give people who are terminally ill the right to be helped to die, which many feel it should. This suggests that there are even aspects of article 2, an absolute article and the safest from interference from the state, that are not entirely sufficient, and therefore the ...

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