Human Rights

 Introduction

You may be familiar with pupils quoting their human rights.  Very few, however, are likely to be able to list or explain them.  Some knowledge of human rights is useful as the subject is frequently mentioned in the media. 

Your attention is drawn to The Liberty Guide to Human Rights on their YourRights.org.uk website that provides a useful overview of the HRA. This has five sections explaining: the background to the HRA in terms of the history of the European Convention; the Convention Rights in some detail; how the HRA works; how proceedings are taken under the HRA; and how a case is taken to the European Court.  These are essential reading for a proper understanding unless you are already familiar with the subject.  The section on the Rights of Workers will be of interest to teachers.

The Fundamentals

•  The origins of the ECHR go back to 1950 and the aftermath of the Second World War.  The United Kingdom (UK) ratified the ECHR in 1953.

• In the UK, freedoms from oppression by the state are guaranteed by the Magna Carta and the Bill of Rights with the legal theory that we are free to do everything except that which we are forbidden to do by law.  In much of mainland Europe their legal systems stem from the Code of Napoleon in 1804 in which rights are granted by statute. 

•  The basic purpose of the ECHR is to provide humans with rights as a protection against overmighty governments as these are not universally guaranteed.  The ECHR is operated by restricting the powers of 'public authorities' to act in compliance with a set of broad human rights principles laid out in the Convention that are known as 'Convention rights'.  These are particularly important in the UK with the increasingly vast number of unelected and largely unaccountable non-departmental public bodies (NDPBs) better known as Quangos.  In summary, the ECHR is intended primarily to regulate the acts of the state in relation to individuals and not the relationship in law between individuals.  However, the courts are obliged to take note of Convention rights in relation to individuals as courts are within the scope of public authorities. 

• Since the UK become a signatory to the ECHR cases had to be taken before the European Court of Human Rights (ECtHR) at Strasbourg.  More conveniently, the Human Rights Act 1998 (HRA) incorporates the ECHR into UK law for consideration directly by UK courts.  The ECHR applies in Scotland under the provisions of Scotland Act 1998 s 100.  Cases can still be taken to Strasbourg but only after all domestic avenues have been exhausted.

•  The HRA incorporates the ECHR into our law in curious way.  UK courts and tribunals are required to interpret all primary and subordinate legislation as far as possible to comply with Convention rights and case law.  If this is not possible, the higher courts may declare primary legislation incompatible with Convention rights but they cannot disapply such legislation.  It is for Parliament to decide whether to amend incompatible legislation.

• If you are keen to develop a more in-depth understanding of human rights you will need to broaden the scope of your reading to include legal portals, texts, journal articles, primary and secondary legislation, and case law.  The following suggestions may help you to start.

Further Reading

The Scottish Office produced a preparatory booklet on Human Rights in Scotland in 1999 that is now linked to the Scottish Executive website.  This provides an explanation of the human rights implications of the Scotland Act 1998 and the HRA.  Scottish Law Online is also a useful source of links on Human Rights. 

The website of the Department of Constitutional Affairs has a section with information on the HRA and the rights and freedoms protected by the act. There is also information about the United Kingdom's involvement in international human rights treaties.

The countries that have entered into the European Convention on Human Rights are members of the Council of Europe based in Strasbourg, France.  This Council is not part of the European Union but a quite separate organisation.

The European Court of Human Rights (ECtHR) is also in Strasbourg.  The ECtHR is quite separate from the Court of Justice of the European Communities referred to as the European Court of Justice or ECJ.  The ECtHR website holds a considerable amount of information on case law in its HUDOC database and provides lists of cases pending for public hearings.  Its Library has facilities accessible from the website with a research catalogue.