Human rights II
Pre-human rights act 1998
Civil liberties in England and wales were protected in common law
- But that does not include all ECHR rights (privacy, article 8, not protected.)
- Always subject to change by parliament legislation
- For example, entick v Carrington (1765) 95 ER 807, protects individuals from a police search of
their property except by powers given by legislation
Constitutional protection in English law is through the use of the common law- entick v Carrington is an
action in tort.
ECHR in the uk pre-HRA
- The uk was party to the ECHR treaty, but a uk court was limited in using it
- Could interpret legislation in accordance with the ECHR, but not against express statutory
language.
R v secretary of state for the home department ex parte brind [1991] 1 AC 696, 718
• The Home Secretary used his statutory powers to prohibit the BBC from broadcasting
interviews with IRA members.
• The HL agreed this was in breach of ECHR article 10 (free speech). But the statutory
language gave the minister such discretion.
• “…The convention which is contained in an international treaty to which the United
Kingdom is a party has not yet been incorporated into English domestic law. The
appellants accept that it is a constitutional principle that if Parliament has legislated and
the words of the statute are clear, the statute must be applied even if its application is in
breach of international law”.
App. No. 8691/79 Malone v. UK [1984] ECHR 10
• Malone, on trial for handling stolen property; Malone’s phone had been tapped by the police;
evidence used against Malone at trial.
• Government acting under non-statutory powers; UK law recognised no right to respect for
private and family life.
• Could not be deemed unlawful.
• Malone applied to the ECtHR. English law on this point was determined to be contrary to Article
8 ECHR.
R v ministry of defence ex parte smith [1996] QB 517
- Ministry of defence policy prevented LGBT persons from serving in the armed forces. The
claimants were dismissed from the forces when their sexual orientations became known.
- PRE HRA CASE- so had to rely on the traditional grounds of review, argued irrationality
- Despite human rights context, the applicants did not prevail.
Smith and grandy v uk
- The claimants in smith took their case to the European court of human rights as – smith and
grady v uk- they succeeded
- The ECTHR criticised the strict application of the Wednesbury unreasonableness test, stating
that: the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy
irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question
of whether the interference with the applicants' rights answered a pressing social need or was proportionate to
the national security and public order aims pursued, principles which lie at the heart of the Court's analysis of
complaints under Article 8 of the Convention’ .
- The case clearly shows how the limitations of the unreasonableness approach in light of the
proportionality test required by the ECHR.
- In this situation applicants could only go to Strasbourg to argue their case in the ECTHR
- This promoted the labours program in 1998 to ‘bring rights home’ by legislation the HRA.
Section 2
Pre-human rights act 1998
Civil liberties in England and wales were protected in common law
- But that does not include all ECHR rights (privacy, article 8, not protected.)
- Always subject to change by parliament legislation
- For example, entick v Carrington (1765) 95 ER 807, protects individuals from a police search of
their property except by powers given by legislation
Constitutional protection in English law is through the use of the common law- entick v Carrington is an
action in tort.
ECHR in the uk pre-HRA
- The uk was party to the ECHR treaty, but a uk court was limited in using it
- Could interpret legislation in accordance with the ECHR, but not against express statutory
language.
R v secretary of state for the home department ex parte brind [1991] 1 AC 696, 718
• The Home Secretary used his statutory powers to prohibit the BBC from broadcasting
interviews with IRA members.
• The HL agreed this was in breach of ECHR article 10 (free speech). But the statutory
language gave the minister such discretion.
• “…The convention which is contained in an international treaty to which the United
Kingdom is a party has not yet been incorporated into English domestic law. The
appellants accept that it is a constitutional principle that if Parliament has legislated and
the words of the statute are clear, the statute must be applied even if its application is in
breach of international law”.
App. No. 8691/79 Malone v. UK [1984] ECHR 10
• Malone, on trial for handling stolen property; Malone’s phone had been tapped by the police;
evidence used against Malone at trial.
• Government acting under non-statutory powers; UK law recognised no right to respect for
private and family life.
• Could not be deemed unlawful.
• Malone applied to the ECtHR. English law on this point was determined to be contrary to Article
8 ECHR.
R v ministry of defence ex parte smith [1996] QB 517
- Ministry of defence policy prevented LGBT persons from serving in the armed forces. The
claimants were dismissed from the forces when their sexual orientations became known.
- PRE HRA CASE- so had to rely on the traditional grounds of review, argued irrationality
- Despite human rights context, the applicants did not prevail.
Smith and grandy v uk
- The claimants in smith took their case to the European court of human rights as – smith and
grady v uk- they succeeded
- The ECTHR criticised the strict application of the Wednesbury unreasonableness test, stating
that: the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy
irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question
of whether the interference with the applicants' rights answered a pressing social need or was proportionate to
the national security and public order aims pursued, principles which lie at the heart of the Court's analysis of
complaints under Article 8 of the Convention’ .
- The case clearly shows how the limitations of the unreasonableness approach in light of the
proportionality test required by the ECHR.
- In this situation applicants could only go to Strasbourg to argue their case in the ECTHR
- This promoted the labours program in 1998 to ‘bring rights home’ by legislation the HRA.
Section 2
