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 ECHR is not efficiently protecting all of UK citizens rights.
Another example of an absolute right is article 3; the prohibition of torture, inhumane or degrading treatment. This also includes the state being unable to deport illegal immigrants or asylum seekers if they will be tortured by the state upon their return; this is often referred to as the Soering Principal. This article in particular has been seen to increase the protection of children’s rights within the UK, by strengthening the legal framework when dealing with children’s services. For example in the case of Z v UK [2002], the UK was found in breech of article 3 of the ECHR because there had been a failure to protect the children concerned from serious long-term neglect and abuse. This seems to show that this particular article does indeed protect UK citizen’s rights, and has a highly positive effect on the rights and protection of children.
However, there have been issues which have arisen causing complications, often over what level of inhumane or degrading treatment is necessary in order to violate article 3. There have been references to this in case law such as in Ireland v UK [1978], in which it was stated that the minimum level of severity is, “behaviour that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim, and possibly breaking his physical or moral resistance”. It was also stated in the judgement of Campbell and Cosans v UK that the minimum level depends on the sex, age, and state of mind of the victim. This means that there is no set test for what constitutes torture, inhumane or degrading treatment, therefore article 3 may be violated and go unrecognised by the Courts. As the article does not have a clear definition it may be viewed as fairly ambiguous, and possibly be taken advantage of by people who are undeserving of its help. For example prisoners who claim they are suffering inhumane or degrading treatment at the hands of police officers, when this is not the case.
Overall it appears that absolute articles within the ECHR do protect the rights of UK citizens to a decent extent. As the state is unable to interfere or alter these rights they give UK citizens a certain degree of power, which admittedly could be taken advantage of, but on the whole benefits the fundamental freedoms of UK citizens.
A limited right is an article within the ECHR that the state can limit in defined circumstances and ways. An example of a limited right is article 5. This states that everyone has the right to liberty and security of person; however, the state can deprive people of this liberty in accordance with a procedure prescribed by law. For example, the lawful detention of a person after conviction of a competent court. Whilst these exceptions do compromise the civil liberties of UK citizens, it is necessary to do so, as without these the state would be unable to make arrests or detain criminals in prison.
There have been acts brought in since the introduction of the HRA which have conflicted with article 5, such as the Anti-terrorism, Crime and Security Act 2001 which allowed for the Home Secretary to indefinitely detain any non-British citizen suspected of being a terrorist. However, following the case of A and Ors v Secretary of State for the Home Department, in which eight appellants were detained under sections 21 and 23 of the Anti-terrorism, Crime and Security Act 2001, there was a declaration of incompatibility. It was held that this violated article 5 of the ECHR and the Government repealed the act, introducing new compatible legislation.
This is a prime example of how the judiciary will change legislation in order to make UK law compatible with the ECHR, and demonstrates how the ECHR can protect UK citizen’s rights exceeding well. Overall, whilst limited articles may not appear to protect our rights very well due to the fact that the Government has the limited power to interfere with them, case law has demonstrated that they do infact have a very positive effect on our fundamental freedoms, and the judiciary will protect our rights when necessary.
The third and final category of rights within the ECHR is qualified rights. These are rights that the state is able to interfere with provided that interference is proportionate and within the qualifications listed. These are likely to be the least effective in protecting UK citizens rights as they can be interfered with by the state the most.
Article 8 of the ECHR states that everyone has the right to respect for his private and family life. This is a qualified right due to the fact that the limitations placed upon it are incredibly wide. When acting in accordance with the law and necessary in a democratic society, public authority may interfere with this right on five very broad grounds; in the interests of national security, in the interests of public safety, for the economic well-being of the country, for the prevention of crime and disorder, for the protection of health and morals, and for the protection of the rights and freedom of others. These ‘lawful’ ways in which the state is able to limit UK citizen’s rights are so far reaching that there is very little the state could not fit into these categories if it really wanted to.
An immense problem facing this article is the use of police surveillance, especially covert surveillance, such as CCTV cameras. This is often seen to violate article 8, for example in the case of Klass v Germany. In this case the European Court held that police surveillance was necessary, but this did not mean that the police have unlimited discretion. The court stated that there are principals for requirement, such as surveillance carried out by the police must have a proper basis in law. This case can be used to argue that the ECHR does protect the rights of UK citizens as the police do have limits placed over their surveillance measures, and the state’s actions must have a proper basis in law. However, this case also demonstrates that the police do not have to stringently stick to article 5, which does somewhat undermine the ECHR and suggest that it is not effectively defending our rights. Overall, there are conflicting views and cases over how efficiently article 5 protects the UK citizens freedoms, but if this article does not look after us successfully then it is safe to say that neither does the ECHR.
Article 9 is another example of a qualified right; this is the right to freedom of thought, conscience and religion. Section 2, however, states that freedom to manifest ones religion or beliefs is subject to limitations, such as the protection of public order. This article has come under scrutiny, for example in the case of R (Shabina Begum) v Head Teacher and Governors of Denbigh High School, in which a student was not allowed to wear her traditional Muslim dress to school as it was against the school rules. The House of Lords ruled that this was not an infringement on her right to article 9. This decision had support from those who believed it was necessary, for example in one article it was written, “It appears the House of Lords has struck the right balance between the rights of individuals and the needs of the wider community”. However, others were not quite so convinced, for example Dr P. Kearns who wrote, “In the realm of ‘freedom to manifest religion’, protection under Art 9 is rather scant”. This shows that there are two conflicting oppinions over the same issue, one that the ECHR does protect us; the other, that it does not, because our rights are so easily infringed on.
Article 10 is also a qualified right. It states that everyone has the right to freedom of expression. This article should be “one of the essential foundations of a democratic society”, however there is evidence to suggest that it is infact one of the least effective articles of the ECHR at protecting our rights. There have already been numerous reports of incidents which suggest that article 10 is violated by the state. For example, that of Steven Jago, who was arrested for demonstrating at Parliament Square in London, which is a very popular spot for protestors. He was arrested under s.132 of the Serious Organised Crime and Police Act 2005, which states that “demonstrating without authorisation in [a] designated area” is unlawful. Steven Jago could not claim that his rights to article 10 of the ECHR had been violated due to the limitations within the article.
Overall, these vast limitations within qualified rights allow the state to push them to their very limits. Including such wide limitations may appear to be protecting the citizens of the UK, however they are effectively making the articles pointless, as the state can almost always claim that it is acting within the conditions laid out in the ECHR.
In conclusion, there is no straight forward answer as to how effectively the ECHR protects citizen’s rights in the UK, because it varies depending on each article, each case and the different opinions surrounding it. It is fairly safe to say that absolute articles provide the most protection of our rights as they are free from state interference. Limited articles should, in theory, be less efficient than absolute articles at protecting citizen’s freedoms. Case law regarding limited articles, however, does show how the judiciary will alter legislation in order to protect our rights. This provides the huge argument that the ECHR does infact protect UK citizen’s rights, and has a major effect over the judiciary. Qualified articles are unarguably the frailest type of article within the ECHR. Some could argue that the rights have so many limits, conditions and exceptions placed on them that they need not be there at all. This is an incredibly worrying notion when considering that articles 8, 9, 10 and 11 are all qualified articles, and the rights contained within them are vital to the ECHR and a democratic society.
Bibliography
Books
E. Martin and J. Law, A Dictionary of Law, 6th edition, (Oxford University Press, 2006)
R. Stone, Textbook on Civil Liberties & Human Rights, 6th edition, (Oxford University Press, 2006)
M. O’Boyle, C. Warbrick, E. Bates, D.J. Harris, Law of the European Convention on Human Rights, 2nd edition, (Oxford University Press, 2005)
I. Loveland, Constitutional Law, Administrative Law, and Human Rights, 4th edition, (Oxford University Press, 2006)
F. G. Jacobs & R. C. White, The European Convention on Human Rights, 2nd edition, (Clarendon Press, 1996)
Journals
B. Mensah, ‘A Nutshell Interview: ECHR and HRA Notes’, [2000], 164 JPN 777
R. Epstein, ‘School Rules and Human Rights’, [2006], 156 NLJ 773
Dr. P. Kearns, ‘Religion and the Human Rights Act’, [2006], 151 NLJ 498
Online Articles
R. Harvey and E. Mugnai, ‘The Right to Life’, [2002] at:
www.childrenslegalcentre.com/shared_asp_files/uploadedfiles/5D3B5C10-1FEA-4C43-9941-4701F3294E56_FINALRighttoliferichtextformat.pdf
Websites
www.cafcass.gov.uk/English/Lawaboutchildren/HumanRights.htm, [25 January 07]
www.opsi.gov.uk/acts/acts2005/50015--l.htm#132 [26 January 07]
Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
E. Martin and J. Law, A Dictionary of Law, 6th edition, (Oxford University Press, 2006), Pg. 202
B. Mensah, ‘A Nutshell Interview: ECHR and HRA Notes’, [2000], 164 JPN 777
R. Stone, Textbook on Civil Liberties & Human Rights, 6th edition, (Oxford University Press, 2006), Pg. 30
www.cafcass.gov.uk/English/Lawaboutchildren/HumanRights.htm, [25 January 07]
Convention for the Protection of Human Rights and Fundamental Freedoms (1950), as amended by Protocol 11 (ETS No 5)
The Human Rights Committee, ICCPR, (1966)
Lord Bingham’s judgement in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51
Re Z (Local Authority Duty) [2005] UKHRR 611
Soering v UK [1989] 11 E.H.R.R 439
Z v UK [2002] 34 E.H.R.R 3
Ireland v UK [1978] ECHR 5310/71
Campbell and Cosans v UK 4 E.H.R.R. 293
M. O’Boyle, C. Warbrick, E. Bates, D.J. Harris, Law of the European Convention on Human Rights, 2nd edition, (Oxford University Press, 2005)
Anti-terrorism, Crime and Security Act 2001
A and Ors v Secretary of State for the Home Department [2005] UKHRR 175
Prevention of Terrorism Act 2005
Klass v Germany [1978] 2 E.H.R.R 214
R (Shabina Begum) v Head Teacher and Governors of Denbigh High School[2006] UKHL 15
R. Epstein, ‘School Rules and Human Rights’, [2006], 156 NLJ 773
Dr. P. Kearns, ‘Religion and the Human Rights Act’, [2006], 151 NLJ 498
Serious Organised Crime and Police Act 2005 s.132
www.opsi.gov.uk/acts/acts2005/50015--l.htm#132 [26 January 07]