Articles - The Convention - Declarations of Incompatibility - Derogation - Equality of Arms - Horizontality - The Human Rights Act (HRA) - Legitimate Aim - Living Instrument - Margin of Appreciation - Proportionality - Protocols - Public Authority - The Purposive Approach to Interpretation - Rights
Whilst UK laws are made up of sections, the Convention is composed of Articles each of which contains a different basic Human Right.
The Convention was written to ensure the citizens of Europe would have basic Human Rights and be free from oppression. The Convention's full title is the European Convention on Human Rights and Fundamental Freedoms.
If the High Court or above finds that a UK law cannot be interpreted in a way which is compatible with the convention, it may make a 'declaration of incompatibility'. Such declarations cannot be made by Magistrates' Courts.
Individual states may enter into a derogation (opting out) in respect of certain Articles during times of war or other national emergency. The UK government has entered into a derogation in respect of Northern Ireland which has the effect of limiting the effect of certain Rights under the Convention.
The Right to a Fair Trial (Article 6) provides certain basic rights which must be accorded to those standing trial. The Court of Human Rights has interpreted Article 6 as requiring that both sides have a reasonable opportunity to present their case. At its most basic it means that a level playing field is necessary for a trial to be fair.
The basic aim of the Convention was to protect the individual from the tyranny of the State. As such the effect of the Convention is usually vertical or hierarchical as between the government and the citizen. However, in its role as a public authority, courts must ensure when settling disputes between citizens that each individual's Rights are respected thus taking a horizontal approach.
The Human Rights Act 1998 incorporates those Rights contained in Schedule 1 of the Act into our law. The Act also requires that existing laws are interpreted in a way which are compatible with the Convention.
Interference with a qualified Right can only be lawful if the purpose of the measure is to safeguard an interest set out in the Article. For example, it may be a legitimate aim of a particular measure to prevent crime.
The Convention signed in 1950 was intended to provide the basic Human Rights needed at that time. The Court of Human Rights recognised that if the Convention was going to remain relevant to the population, it needed to be seen as a living instrument. As a result, the Court does not regard itself as being bound by its previous decisions and will interpret the Convention in line with current morality and values.
This concept is used only by the Court of Human Rights, national courts cannot apply a margin of appreciation. The national courts' view of the needs of that State's society will sometimes be used by Strasbourg rather than its own view being imposed.
When determining whether the State's action was in pursuit of a legitimate aim, regard must be had as to whether the action of the State was necessary in a democratic society. Using a 'sledge hammer to crack a nut' is not allowed.
This is the name given to new Rights which have been added to the original Convention over the years.
The HRA 1998 states that courts are 'public authorities' for the purposes of the Convention. As such the courts are under a duty to ensure that the Rights of others are respected. The Act also provides that it is unlawful for the courts to act in a way which is not compatible with the Convention.
The need to look at the purpose and intention of the relevant Article so as to give effect to the aim of the Convention.
Each guarantee within the Convention is called a Right. There are three types of Rights: absolute, qualified and limited.