The Concept of the European Convention on Human Rights

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This essay will be assessing the validity of whether Professor Ewing’s statement is correct upon the actions of judges. Professor Ewing states that “rather than use new powers which they craved; judges failed to engage in areas which concern the protection of the individual who comes face to face with the state” in the statement above. Furthermore, this essay will be conveying whether judges have failed to utilise their powers under the Human. 

Rights Act 1998 to protect individual liberties? The UK as a democratic country does not have a written constitution or a bill of rights, unlike various democratic countries around the world. The Human Rights Act 1998, which came into force on the 2nd October 2000 meaning that the European Convention on Human Rights (ECHR) is now enshrined within domestic law of the UK. Furthermore, the ECHR has evolved its own court called The European Court of Human Rights, this oversees claims of breaches of the ECHR.

Moreover, the UK courts are obliged to follow the Convention rights of the HRA 1998 when interpreting legislation if it is possible to follow them. The rights and freedoms of the European Convention on Human Rights are set out using articles; art2 right to life; art3 freedom to torture or inhuman or degrading treatment, art4 freedom from slavery and forced labour, art 5 the right to liberty and security of the person and art 6 the right to a fair trial. 

There are 14 articles in total which set out the individual rights and liberties of British citizens which must be adhered to when possible in UK courts when interpreting legislation. However, the UK courts have come under great scrutiny and have several complaints that they have failed to use their powers in a sustainable way to protect individual rights. It can be perceived that the courts and the judicial system have surplus power in determining the results and success of the HRA 1998. 

Thereby, it is their duty to culminate decisions within the British courts which adhere by the individual rights and liberties of citizens. The Lord Chancellor stated the vital of the judiciary in relation to the HRA 1998, “I am confident that all courts and tribunals will be able to give full effect to the rights recognised by the convention”. Section 4 states that courts may declare legislation to be incompatible with the ECHR, meaning that judges have the delegated power to protect individuals. Although the courts cannot strike down an act of parliament and the powers are restricted to higher courts within the UK. There have been numerous cases filed through judicial review whereby British citizens rights have not been protected.

The HRA 1998 fundamental principles state that the judges must consider caselaw of the ECHR, interpret legislation made by parliament in accordance to the European Convention and to declare piece of legislation passed by parliament to be incompatible with HRA. The judiciary has increased power due to the HRA meaning that they have a wider discretion when interpreting legislation. It can be found that Ewing’s point that the courts sometimes do not use their powers to protect induvial rights is found to be wrong, in P v S and Cornwall County Council. 

P was dismissed from her stand for being transsexual, this breached the fundamental principle of equality and the court referred to the ECHR judgement in Re Rees. This proves that the courts took into consideration their role to take into consideration the EHRA when possible to do so. When the implementation of the Human Rights Act occurred, it was agreed that public bodies and government ministers would have to adhere to set of key rules enforced by British judges in the courts. Ewing’s point states that the judges within UK courts did not enforce these Human Rights laws correctly.

However, it can be conveyed that some judges failed to use their given powers in order to enforce the rules and instead did not protect the individual rights and liberties of British citizens. It can be depicted that Ewing’s point that the judges do not use their powers to the full potential in order to protect individual liberties and rights within the HRA can be supported through various cases. The ECHR court in Strasbourg is used as a last resort in some cases in order to find a conclusion to cases that are made against public bodies breaking the fundamental laws of the Human Rights Act 1998. It can be argued that the judges have not significantly improved the state of liberty for British citizens since before 1998. 

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This is proven by the DNA database within the UK, in the case of Marper V United Kingdom. S and M had their DNA entered into the database despite them not committing any criminal offence as they were acquitted. The result of this case was that Law Lords dismissed the case, despite a clear breach of human rights being performed. However, the ECHR at Strasbourg took a different view and heard that to keep the DNA of individuals that had not committed a criminal offence was a violation of interference with their private life and thereby their basic rights. This is an indication of one of many times the judges have not used their powers to protect individual liberties.

Furthermore, it can be portrayed that judges within the UK have failed to use their powers in order to protect the liberties of the citizens, there have been surplus controversial decisions made by the judges. During the May day strikes of 2001, the judges granted the police powers to attempt to prevent striking minors from getting to the picket line which meant they were forced back. The House of Lords upheld the judgement that the police could “kettle” individuals, thereby protestors were subsequently detained in the cold weather conditions for several hours. 

Law Lords culminated that this was not affecting the individual liberties of any individual. However, these controversial decisions should never have been made if the rights and liberties were at the centre of the court’s judgment process. Throughout time, judges’ decisions have received criticism in regard to the HRA 1998, especially when they have found cases successful against parliament and the government.

On the other hand, it can be depicted that the courts do take individuals liberties into consideration when hearing a court case. As it is sought that the functioning of a democratic state such as the UK must adhere to the respect of individual liberties for it to work as a democracy. The UK can be viewed as an advocate for the improvement of human rights implemented into society, thereby it can be perceived that the courts enable this to happen by integrating the act into society through judgements. 

During executive review, the courts can penalise the government and hold them accountable for wrong doings, the courts check that parliament has abided by the law during legislations being made. Therefore, if a law were to go against the human rights act 1998 then the courts would hold the government accountable and hold the executive accountable for the exercise of mistreatment of power. In the case of R (on the application of Daly) V Secretary of State for the home department, courts had to decide whether it was a breach of human rights and a breach of individual liberties to search prisoner’s cells. 

The courts concluded that to search prisoners’ cells was a breach of the right to a private life under the ECHR terms. The court sided with the prisoners and declared that it would be a breach of the individual liberties of the prisoners, this is an indication of the courts taking individual rights and liberties into consideration and utilising their powers correctly thereby disagreeing with Ewing’s point.

To conclude, Ewing’s point that the courts and judges within the UK do not use their powers to the full extent in order to protect individual liberties of the citizens of the UK can be supported by various cases and evidence. There have been many times where the courts have failed to use their powers under the Human Rights act 1998. The validity of Ewing’s point upon the judge’s attitude towards individual liberties while interpreting legislation is proved to lack complete respect for the HRA. 

Prior to the 1998 Act, the Labour party adopted the incorporating of the ECHR in 1993. Moreover in 1996 the Labour party published ‘Bringing Rights Home’ explaining how they aimed to allow British citizens “to bring grievance against the state by the Convention to a British court whilst still retaining a right of ultimate recourse to the Strasbourg court”. The key aim of ‘Bringing Rights Home’ was to allow citizens to take up their concerns of their rights being breached by the state with the British courts. 

Subsequently, reducing the chances of citizens having to go to Strasbourg court initially, also the Labour government sought to create a “better balance between rights and responsibilities, between the powers of the state and the freedom of the individual”. This quote portrays how the courts should deal with cases with the rights of the individual at the forefront of decisions made, however there is a lot of evidence which proves against this. It has been proven that the point that Ewing made upon judges not using their power in the correct way is a valid point within the UK.      

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