The European Convention on Human Rights

Do citizens in the UK need the protection of the ECHR and HRA 1997? Why? Use examples to illustrate your answer.

The European Convention on Human Rights (ECHR) and Human Rights Act 1998 (HRA 1998) appear to be the foundation of human rights of the citizens of the UK. ECHR provisions are incorporated in the HRA 1998. Hence, this research will review the provisions of the HRA 1998 and its provisions. If one reads the provisions of these laws, they could figure out that they are an exhaustive set of laws that governs all the aspects of rights of an individual. For example, Article 1 to Article 5 require states to respect human rights and freedom including right to life free from torture and forced labour with the right to liberty and security. Many such rights are provided under ECHR and the states are provided duties to provide a system that could enable enforcement and protection of the rights. In this context, research will look at relevant materials, including primary sources and secondary sources to validate or examine why the two set of laws are important in regard to protection of the rights of the UK citizens.

This research will discuss the role of judiciary to enforce rights under ECHR and HRA 1998. Common law has been protecting certain civil rights and liberties of the individual from a very early period. In that regard, old cases which principles are still relevant and enforceable will be discussed. Examples of cases are Entice v Carrington and Malone v Metropolitan Police Commissioner that stress on individual liberties. Also, cases such as Ashby v White recognises non-interfere with a person right to vote; Armory v Delamirie recognises right to property over found objects; R v Knowles, ex parte Somersett recognises right against slavery; and Bird v Jones that recognises the right to freedom of movement. Relevant scholarly books will be reviewed, including Gary Slapper and David Kelly, The English Legal System;Alastair Mowbray, Cases, Materials and Commentary on the European Convention on Human Rights; Albert Dicey, Introduction to the Study of the Law of the Constitution, and Ivor Jennings, The Law and the Constitution (University of London Press).

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While doing so, this research will also review the legal system to understand how the courts could enforce the human rights provision. For example, this research will review the scope of Section 4 of HRA 1998 to understand the role and the extent of the authority of the judiciary to validate legislation in conformity with the HRA 1998 and ECHR. This research will select certain core human rights in order to assess the research question in hand. For example, the right to private life and family, right to freedom of movement, and the right to access to justice will be discussed with other such rights in context of the research question. For clarity on the research, a brief framework concerning the right to access to justice is provided in the paragraphs below.

ECHR and UK recognise the UK citizens’ right to access to justice. The Equality and Human Rights Commission provides that this right is enforced in common law. This research will review the right to access to justice. In this context, there are many books, journals, ECtHR and UK courts’ cases and reports of agencies that could provide authority to the fact that citizens in the UK need the protection of the ECHR and HRA 1998.

Cases like R v Secretary of State for the Home Department ex p Leech and Steel and Morris v United Kingdom will be reviewed in context to the social justice. Social justice is considered an extension of distributive justice, which indicates a fair distribution of benefits amongst the members of various associations. David Miller, Principles of Social Justice provides an interesting perspective to how right to justice is associated with seeking social justice. Relevant discussing covering the views of the Equality and Human Rights Commission will also be mentioned. In this regard, the right to fair trial provided under Article 6 of the European and relevant corresponding opinion of the Bach Commission on Access to Justice will be discussed.

To strengthen relevant argument, provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will be discussed in particular reference to how it has led to legal exclusion of individuals from justice. In that regard, works including Lisa Wintersteiger’s Legal exclusion in a post–‘LASPO’; Tim Eicke’s journal article, Speaking in Unison? Access to justice and the Convention’; and Ema Uncovska’s journal article, The impact of legal aid cuts on the right to a fair trial’ will be discussed. In addition, in order to support the argument, reports of independent agencies will be discussed. Relevant cases such as Unison v Lord Chancellor and Medical Justice will be mentioned.

This research framework is created using online search of literature using Google Books and Google Scholars. Basic keywords directed at the core words used in the research question were used. For example, ECHR, Human Rights Act, protection human rights, and similar languages were employed. This led to further information of how courts enforce particular human rights. For example, research lead to assessing the scope of Section 4 of HRA 1998 that empowers the court to declare a legislation not in conformity with Convention rights. It further led to identifying the relevant cases laws to support the arguments in questions by identifying common law principles.

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The research of the laws and arguments led to finding scholarly materials and journals that deal with specific area of topic. For example, books were found related to right to access to justice with relevance to seeking social justice. While creating the research framework, other secondary materials were also found Even though they were relevant, they were not suited to be included in this research as the research question is specific and requires specific examples. For example, research found The Approved Mental Health Professional Practice Handbook, which provides information on provision about laws, but no analysis relevant with the research question. Also, research found work of Stephen Hardy, Social Security Law in the United Kingdom, which is more specific to social security laws. Or G. Gori, Domestic Enforcement of the European Social Charter: the way forward, which focuses more on social security. However, they could also be discussed from the perspective of the research question. For example, cases such as Feldbrugge v the Netherlands and Salesi v Italy could be mentioned, which the research will, to assess whether social security issues could be dealt with a human rights approach.

Legislations

The Human Rights Act 1998

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

Cases

Armory v Delamirie (1722) K.B., 1 Strange 505, 93 ER 664

Ashby v White (1703) 1 Sm LC (13th Edn) 253

Bird v Jones (1845) 7 QB 742 Entice v Carrington [1765] 19 St. Tr. 1029

Feldbrugge v The Netherlands App. No. 8562/79, 8 Eur. H.R. Rep. 425 (1986).

R (on the application of Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710

R v Knowles, ex parte Somersett (1772) 20 State Tr 1

R v Secretary of State for the Home Department ex p Leech (No 2) [1994] QB 198

SALESI v ITALY 13023/87 [1993] ECHR 14

Steel & Morris v United Kingdom [2005] E.M.L.R. 15

Unison v Lord Chancellor [2017] UKSC 51.

Books

Dicey A, Introduction to the Study of the Law of the Constitution (London: McMillan 1959)

Jennings I, The Law and the Constitution (University of London Press)

Gori G, ‘Domestic Enforcement of the European Social Charter: the way forward’ in G. deBurca and B. de Witte, Social Rights in Europe (Oxford University Press 2005)

Hardy S, Social Security Law in the United Kingdom (3rd Ed. Kluwer International B.V. 2019)

Miller D, Principles of Social Justice (Harvard University Press 1999)

Mowbray A, Cases, Materials and Commentary on the European Convention on Human Rights (Oxford University Press 2012)

Slapper G and David Kelly, The English Legal System (Oxon: Routledge 2009)

Stone K, Sarah Vicary and Tim Spencer-Lane, The Approved Mental Health Professional Practice Handbook (Policy Press 2020)

Wintersteiger L ‘Legal exclusion in a post–‘LASPO’ era’ in Liam Foster, Anne Brunton, Chris Deeming and Tina Haux, In Defende of Welfar (Policy Press 2016)

Journals

Eicke T, ‘Speaking in Unison? Access to justice and the Convention’ (2018) 1 E.H.R.L.R. 22

Uncovska E, , The impact of legal aid cuts on the right to a fair trial’ (2019) 24(1) Coventry Law Journal 136-142

Reports

Equality and Human Rights Commission, ‘Following Grenfell: access to justice’ accessed on 26 March 2021 .

The Bach Commission on Access to Justice, ‘The crisis in the justice system in England & Wales’ (2016) accessed on 26 March 2021

Others

Amnesty International, “United Kingdom: Cuts that hurt: The impact of legal aid cuts in England on access to justice’ (2016) accessed on 26 March 2021

Saxon Norgard, ‘New report says legal aid cuts are harming access to justice’ (2016) accessed on 26 March 2021


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