LAW STUDY

Law Study

Law Study

Purpose of the European Convention on Human Rights

The new act incorporates the European Convention on Human Rights into the law of the land. No longer will British citizens have to go through every stage of court process here (`exhaust their remedies,' in the jargon) before undertaking the arduous journey to the European Court of Human Rights in Strasbourg in order to claim basic civil and political rights. (The European Court of Justice is an entirely separate body, applying European Union law.) From 2000, when the act comes into force, Britons will be able to exercise their rights at home. The convention was drawn up in the aftermath of the atrocities committed during the Second World War; it aimed to safeguard democracy and ensure that dictatorship would never again get a toehold.

Britain was the first country to ratify it in 1951; indeed its final text was drafted largely by two British government lawyers. Yet while the convention became part of the law of other European countries, enforceable in their courts, successive British governments refused to import this alien code. For years the standard argument was that human rights were already protected under domestic law (Dren & Fisnik, 2011 Pp. 209-223). A flood of successful claims over the years at Strasbourg demolished it. Deficiencies in the protection of rights were also brought out by British court decisions. The failure of the case brought over photographs of the actor Gordon Kaye snatched while lying in his hospital bed exposed the paltry protection for privacy offered by English law (Dickson, 2010 Pp. 10-15).

European Convention Operate

The new act guarantees the 12 basic rights and freedoms enshrined in the convention: It also incorporates three rights added later: to education, peaceful enjoyment of property and free elections. People starting court cases will be able to invoke these rights against central or local government or other public bodies, including National Health Service trusts, the police, prison authorities or the judicial system itself - any court or tribunal, from magistrates to the House of Lords (Wolfgang, 2011 Pp. 64-70).

European Court of Human Rights

In a recent briefing, the civil rights group Liberty highlighted 70 areas which public bodies will need to address if they are going to avoid litigation which invokes the act(1). The right to life will mean, for example, that police officers, who can now use `reasonable force' during violent struggles or arrests, will be limited to using force which is `absolutely necessary'. The right imposes a positive duty to preserve life, so the Prison Service may be required to take stronger measures to prevent suicides by inmates in jail (Mowbray, 2007 Pp. 45-60).

Lawyers predict the Human Rights Act will be used most frequently in criminal cases. It's there that the right to a fair trial and the presumption of innocence guaranteed by the convention will come into play. Liberty expects the first challenges to focus on problems with the disclosure of evidence by the prosecution, claims of public interest immunity by ...