20. Applications: police powers

2021 ◽  
pp. 414-432
Author(s):  
Howard Davis
Keyword(s):  
Personal Data ◽  
European Convention ◽  
General Level ◽  
Human Rights Law ◽  
Police Powers ◽  
The United Kingdom ◽  
Key Points ◽  
Article 5 ◽  
Domestic Law ◽  
Public Evidence

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on the authority of the police in the United Kingdom and on issues which are affected by human rights law under the HRA. Police powers are exercised with the authority of both common law and statute—the latter (e.g. the Police and Public Evidence Act 1984) must be interpreted for compatibility with Convention rights so far as section 3 HRA allows. The police are considered a ‘core’ public authority, and policing is self-evidently a public function. The following sections also discuss the extensive powers of the police in relation to, in particular, Article 5, regarding arrest and detention, and Article 8, regarding searches and seizure. English and Welsh courts adjudicating on these powers have generally found them to be compatible with Convention rights at the general level. Some important cases, such as over the retention, storage and use of personal data, have led to disagreements with Strasbourg and consequential changes to the law.

11. Article 5: right to liberty and security

2021 ◽  
pp. 224-251
Author(s):  
Howard Davis
Keyword(s):  
Mentally Ill ◽  
Personal Autonomy ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Social Subordination ◽  
Immigration And Asylum ◽  
The Right ◽  
Article 5 ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 5 the right to liberty. This is liberty in its classic sense, addressing the physical liberty of a person (as opposed to broader concepts of liberty, such as the sense of personal autonomy and the lack of individual or social subordination). Article 5 deals with restrictions of liberty like arrest and detention by the police, imprisonment after conviction, detention of the mentally ill in hospitals, and the detention of foreigners in the context of immigration and asylum. It defines and restricts the purposes for which a person can be deprived of his or her liberty and, importantly, requires that people have access to judicial supervision so that the lawfulness of any deprivation of liberty can be examined and, if necessary, remedied. The overriding guarantee of Article 5 is the right not to be detained in an arbitrary manner.

21. Applications: prisoners’ rights

2021 ◽  
pp. 433-447
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
The Uk ◽  
Article 5 ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of Convention rights in the field of prisoners’ rights; the impact of Convention rights on prisoners in the UK is considered. Prisoners remain within the protection of the European Convention on Human Rights, though the application of these rights will take their position into account. Prisoners’ rights include not only rights to the non-arbitrary loss of liberty (Article 5) and rights to fair procedures (Articles 5 and 6), but also not to be disproportionately denied the rights and freedoms in Articles 8–11. Imprisonment deprives individuals of their liberty and, therefore, is a public function for which the state is responsible under the Convention. The controversy over prisoners’ right to vote is discussed in Chapter 25.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

scholarly journals After the Honeymoon: The Uneasy Marriage of Human Rights and the Environment Under the European Convention on Human Rights and in UK Law Under the Human Rights Act 1998

2014 ◽  
Vol 43 ◽  
pp. 317-368
Author(s):  
Karen Morrow
Keyword(s):  
Human Rights ◽  
European Convention ◽  
The Right To Privacy ◽  
The United Kingdom ◽  
Protection Of Human Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
The Right ◽  
Domestic Law

The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) regime has, in the absence of specific coverage of environmental rights, developed a “creative” approach in its jurisprudence in this area, pressing a variety of other rights, notably: Article 6 (the right to a fair hearing); Article 8 (the right to privacy and family life); and Article 1 to the First Protocol of the ECHR (the right to enjoyment of property) into service. This creativity has achieved much in according indirect protection to individuals in this regard, but has also placed additional pressure on the already congested Convention system. The entry into force of the Human Rights Act 1998 (HRA) made long-held rights under the ECHR directly accessible in domestic law in the United Kingdom. This naturally spawned a wave of litigation. One of the most prominently litigated areas concerned the pursuit of a variety of environment-based rights claims. In the intervening decade, the application of the ECHR to environmental claims in the UK courts has generated somewhat mixed results. This is in part a result of the “patchwork” approach that has developed toward environmental claims within the Convention regime itself, but it is also a product of the nature of the relationship between the ECHR and domestic law and the content and ethos of both regimes. This article will conclude by briefly considering the on-going role of the ECHR regime in environmental cases in light of subsequent developments in this area of law, notably under the Aarhus Convention.

17. Article 10: freedom of expression

2021 ◽  
pp. 360-389
Author(s):  
Howard Davis
Keyword(s):  
Hate Speech ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Convention ◽  
Liberal Democratic ◽  
Key Points ◽  
Liberal Democratic Society ◽  
The Right ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.

15. Article 8: right to respect for private and family life

2021 ◽  
pp. 311-342
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Family Life ◽  
The State ◽  
Private Life ◽  
European Convention ◽  
Legal Knowledge ◽  
Key Points ◽  
Self Test ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 8. Article 8 is concerned with matters that are considered personal, over which individuals are sovereign, and with which the state should not interfere. In its first paragraph, it recognises ‘private life’, ‘family life’, ‘home’, and ‘correspondence’ as the general concepts in terms of which this sphere of the personal is to be protected under the European Convention on Human Rights. These terms are defined and discussed in the chapter. The second paragraph presents the general legal conditions that must be satisfied before such interference can be considered justified and compatible with the Convention. Much of the chapter is concerned with the application of Article 8 to various situations such as surveillance, the environment, deportation, abortion, and euthanasia. Article 8 is also invoked in respect of important and controversial matters such as the situation of transgendered persons and the duties of states towards homosexual families.

The struggle against torture

1998 ◽  
Vol 38 (324) ◽  
pp. 433-444 ◽  
Author(s):  
Walter Kälin
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Text ◽  
Central Concern ◽  
The Past ◽  
Convention Against Torture ◽  
United Nations Convention ◽  
Article 5

Over the past fifty years, the struggle against torture has become a central concern of human rights law. The first international legal text specifically outlawing “torture” was the 1948 Universal Declaration of Human Rights (Article 5). The first treaty prohibiting torture — the European Convention on human rights (Article 3) — was adopted soon afterwards, in 1950. In 1984, the United Nations Convention against torture became the first binding international instrument exclusively dedicated to the struggle against one of the most serious and pervasive human rights violations of our time.

scholarly journals The protection of human rights in domestic law: learning lessons from the European Court of Human Rights

2020 ◽  
Vol 53 (3) ◽  
pp. 232-267
Author(s):  
Steve Foster
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
Human Rights Protection ◽  
The United Kingdom ◽  
Parliamentary Sovereignty ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Domestic Law

The Human Rights Act 1998 came into force in October 2000, its purpose to allow victims of alleged violations of rights contained in the European Convention on Human Rights (1950) to pursue a remedy in the domestic courts. Thus, central to the Act’s purpose is to enable the access of the rights and remedies already provided by the machinery of the European Convention, subject only to those provisions of the Act which seek to retain the principle of parliamentary sovereignty. The purpose of this article is to study the case law of the European Court of Human Rights in relation to cases brought against the United Kingdom in order to examine the United Kingdom’s record under the Convention and, hopefully, of identifying common themes of human rights violations for which the United Kingdom has consistently been held responsible, and for which they may remain vulnerable to challenge in the future. At this stage it will be submitted that the European Convention has exposed the limitations of human rights protection in domestic law, and that on many occasions both the courts and Parliament have failed to adopt the necessary jurisprudence of the European Court in their respective roles. Finally, in the light of that evidence the article will examine the provisions of the Human Rights Act 1998 in order to assess the likely impact of that Act on the protection of rights and liberties in the United Kingdom.

26. Anti-terrorism law and human rights

2021 ◽  
pp. 500-522
Author(s):  
Howard Davis
Keyword(s):  
Human Rights ◽  
Private Life ◽  
European Convention ◽  
Key Points ◽  
Definition Of ◽  
The Uk ◽  
The Right ◽  
Special Circumstances ◽  
The Impact ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of la and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of human rights in the special circumstances of the threat of terrorism and counter-terrorism measures taken in the UK. It considers the compatibility of the Terrorism Act 2000, and other subsequent measures, with human rights. This includes matters such as the definition of terrorism, police powers under the Act (such as random stop and search), and measures, such as TPIMs, to control terrorist suspects. The impact of these measures on the right to liberty and on private life are important themes. The chapter also considers the effect of such measures on the right to a fair hearing (in Articles 5 and 6). These special powers are often controversial giving rise, as they do, to important tensions between the rule of law and the duty on states to uphold the safety and security of the population.

14. Introduction to Articles 8–11

2021 ◽  
pp. 305-310
Author(s):  
Howard Davis
Keyword(s):  
Family Life ◽  
Freedom Of Expression ◽  
The State ◽  
General Idea ◽  
European Convention ◽  
Legal Knowledge ◽  
Individual Freedom ◽  
Key Points ◽  
The Media ◽  
Domestic Law

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter introduces the general idea of qualified rights under the Convention. These are the subjects of the next four chapters. Articles 8–11, involve individual freedom: freedom to live a private and family life (Article 8); freedom to hold and demonstrate religious and other beliefs (Article 9); freedom of expression, including the freedom of the media (Article 10); and the freedom to ‘assemble’ and ‘associate’ (Article 11). The articles have a similar, two-paragraph structure that requires the courts to decide, first, whether some action for which the state is responsible interferes with a protected freedom and, if it does, whether the state has shown that the interference is justified in terms of the second paragraph of the Article involved.

Sign in / Sign up

Export Citation Format

Share Document