The European Convention on Human Rights - Essay Example

The European Convention on Human Rights & A Scenario Type of Question Table of Contents Table of Contents 2 Question 3 Introduction 3 Explain: ‘The European Convention on Human Rights (ECHR) Exists To Guarantee Legal Protection to Fundamental Rights’ 4 Critical application of the The European Convention on Human Rights (ECHR) Exists to Guarantee Legal Protection to Fundamental Rights 6 Conclusion 8 Question 2: 9 References 13 Question 1: Introduction Society is the place that lays an extensive impact on differentiated human factors. In accordance, societal rules, rights along with justice play a vital role in the decision-making activities of undertaken by the people dwelling within. In the societal context, there exist two types of rights, which can be identified in terms of moral and legal rights. It is worth mentioning in this context that moral rights endure few basic characteristics and are natural and by virtue pertaining to the humanity. Moral rights are also universal and exist within the society irrespective of the caste and race. Again, the universal rights are observed to remain uniform in the various paradigms of the society and are applied equally irrespective of gender, mental capacities, physical aspects and the ethnicity as persisting within the society. The moral rights are inalienable. Taking into consideration the legal rights, these are artificial and are mainly created by the governments. Similarly, legal rights are usually applied to people within a particular society under the particular legal system. In this regard, various human rights legislation has been determined in order to protect the human rights within the society. In order to maintain the human rights of the people, the government of the UK had introduced the Human Rights Act in the year 1998 (HRA) (The Open University, 2012; The Open University, 2011). Correspondingly, this essay intends to discuss about the application of The European Convention on Human Rights (ECHR). Furthermore, the essay will discuss about the implementation of the HRA 1998 within the UK. This particular essay further intends making critical evaluation as to whether or not UK protects the fundamental rights being mentioned in the ECHR. Explain: ‘The European Convention on Human Rights (ECHR) Exists To Guarantee Legal Protection to Fundamental Rights’ The Human Rights Act 1998 mainly delivers direction to the European Court of Human Rights conventions that binds the other courts of the UK. This reflects that the decisions being undertaken by the ECHR become the benchmark for the UK courts to follow it. The enactment of the ECHR mainly resulted from the work pertaining to the Council of Europe succeeding the Second World War. The aim of the Council of Europe being framed was mainly to achieve accelerated unity amidst the existing members with a motive to safeguard as well as realise the principles pertaining to the common heritage. Besides, the particular body also facilitates the social along with the economic progress in this regard. The Council of Europe further aims at applying the strategies being undertaken in the form of the action plan pertaining to the economic, cultural, scientific and the administrative powers. The ECHR is regarded as the document that include within its various conventions over the years. In this regard, it has been further mentioned that the ECHR incorporates various rights under it that are protected by the Human Rights Act 1998. Right to life, Right to a fair deal, Right to marry and found a family, Right to an effective remedy and Freedom of thought, conscious and religion among others are few of those rights being inscribed under ECHR (The Open University, 2012; The Open University, 2011). However, the ECHR also takes into account the importance of maintaining a balance between the individual and the collective rights. As discussed, the ECHR rights are generally interpreted on the basis of the international legal principles. According to the provisions of ECHR is regarded as the living instrument. In the UK, it was difficult for the individuals to bring in the proceedings to the court. After the enactment of HRA 1998, this problem of the individuals was abolished. The significance of the ECHR mainly delivers emphasis on the rights required to be respected. The ECHR significance is also viewed by its application on the existing as well as the future laws. The UK’s supreme law body, the parliament and the other courts follow the rights mentioned under ECHR. It is worth mentioning in this context that these laws are taken into concern to make the legislation of the UK compatible with that of the ECHR. Furthermore, it will be considered as unlawful pertaining to the public body for following the conventions that are not compatible with the ECHR legislations (The Open University, 2012; The Open University, 2011). International human rights are part of the much wider diversified area pertaining to legal rights and power and duties. In the context of the UK, it has widely been identified that the constitutional rights are flexible by nature. This further provides a question mark on the applicability of the ECHR legislations on the UK. An in-depth discussion has provided various reasons for the application of the ECHR, which is the international law for monitoring the humanitarian rights. It has also been observed that at first instance, the UK was not willing to adapt the legislation of the ECHR, with scepticism that the international legislations might dominate the local laws. In the early twenties, the politicians along with the constitutional lawyers however, gradually became concerned regarding the unwritten constitutional rights of the UK. This concern accelerated during the economic crisis. As highlighted, the UK lacked defined human rights that made it more vital for the UK to rely upon the legislations being framed by ECHR. Correspondingly, the application of the HRA 1998 on the UK can only be determined considering the effects of ECHR on its imposition. HRA mainly used to impose its legislations on the UK courts by following basic two ways. At first instance, the HRA imposed obligations on the UK courts pertaining to the interpretation of the domestic law. The obligation reveals about the compliance of the UK courts with that of the ECHR legislations. Furthermore, the HRA make permissible for the UK courts to imply direct actions with regards to the public authorities concerning the breaches pertaining to the ECHR rights. However, it has been greatly argued that the law pertaining to the UK is adequate to provide protection to its citizens. Furthermore, it has also been argued that ECHR legislations might challenge the UK’s sovereignty. The applicability of the ECHR over the UK can be well ascertained by few case examples provided in the next segment (The Open University, 2012). Critical application of the The European Convention on Human Rights (ECHR) Exists to Guarantee Legal Protection to Fundamental Rights In the case of Campbell and Cosans v. the United Kingdom (25 February 1982) the judgement was based upon the ECHR legalisations, which overruled the verdict given in the UK court concerning the minority rights of corporal punishment that was used to be followed in state schools of the nation. The case was based on the complaint of Jane Cosans and Grace Campbell against the application of the corporal punishment as a measure to maintain discipline in the State School in Scotland. The parents of the children, who faced the corporal punishment in school, took the petition to the UK court, which was ruled in favour of the school and the practice of corporal punishment. Latter, the case was further registered in the European Court of Justice (ECJ), where it was determined that the UK court was in breach with respect to the European convention provision to minority rights. In this respect, according to Article 3 of the ECHR, prohibition of any kind of inhuman treatment is regarded to act against the rights of the minor in schools that held the authority practicing corporal punishment on suspending the students because of their denial to undergo the punishment. Eventually, Article 2 of the ECHR also discusses about the right to education for every individual that was denied by the school authority owing to the refusal of the students to undergo the corporal punishment levied on them. Thus, the European court’s judgment was made in favour of the plaintiff and against the UK courts (The Open University, 2012). With reference to the case of Diane Pretty v. the United Kingdom (29 April 2002), the implication of ECHR judgements on the UK courts decisions can also be justified accordingly. As observed from the case background, Diane Pretty was in the verge of dying due to motor neurone. She demanded the medical professionals for euthanasia, which they denied. She took the petition to the UK court and argued that individuals have the right to choose whether to live or die, which supported the ideology of euthanasia. However, this particular right was in contrast with the right to live and therefore, was protected according to the UK’s legal convention. On further note, Diane also asked for permission from the UK court that her husband should not be prosecuted, if he assists her to commit suicide. She further took her petition to the European Court of Justice. Accordingly, the European court provided the judgement in favour of the UK court. It supported the judgement made by the UK court, as it was in parity with the ECHR. In this particular case, numerous violations to human rights were determined. Right to life, right for respecting the private life, prohibition of inhuman treatment and prohibition of discrimination were few of these human rights provisions that justified the decisions taken by both the UK court and the ECJ (The Open University, 2012; The Open University, 2011). Conclusion This particular essay revealed about the implications of the rights mentioned under the ECHR on the UK courts legislation. The two case examples reflect two different scenarios concerning the relationship of the UK courts judgment with that of the European Court of Justice. One case example reflects about the conflict within the UK courts and the European Court of Justice with regards to the decisions related to protection of fundamental rights [Campbell and Cosans v. the United Kingdom]. The other scenario reflects about the similarity in the decision of the UK Court and the European Court [Diane Pretty v. the United Kingdom]. This proves that the European Convention on Human Rights (ECHR) exists to guarantee legal protection to fundamental rights, which might be in conflict with the national regimes to human rights protection as witnessed in the context of the UK. Question 2: The breach of the right to confidence occurs when a person alleged about his/her privacy being invaded. This particular right represents the common law in ECHR that has been enacted with a motive to protect the confidential information of a person. In this regard, as ascertained that English courts have imposed various decisions with regards to either obtaining or publishing the unauthorised photograph is considered as the breach of confidence. The duty towards the confidence usually occurs, when a person takes over the possession of another’s information. Eventually, it has been discussed that the law pertaining to the breach of contract have effectively protected the sensitive and the commercial information in many cases (The Open University, 2012). According to the given scenario, Charlotte is recognised as a singer and who gained immense significance with regard to her songs i.e. ‘First Love’ and ‘Melancholy’. Subsequently, she entered into a contract with the UK record label Tepid with a motive to release her album. Due to her familiarity in the society, an interview was held with her estranged fiancé David, which was published in the newspaper. David revealed certain confidential information about her, which greatly resembled the story of the two songs. He alleged that her childhood friend of school named Paul was her ‘first love’. He further revealed that, Charlotte has faced tremendous domestic violence in the hands of Paul that resulted in her anorexia. Charlotte denied the allegation made by David. However, publication of their childhood photos reflected certain amount of truth in David’s allegation, which resulted in affecting the popularity and privacy interests of Charlotte (The Open University, 2012). Not only did such an action affect the privacy issues of Charlotte but also caused problems in the married life of Paul and Sarah (The Open University, 2012). With regards to this case scenario, the facts can be apparently observed to reflect the leakage of confidential information and breach of confidentiality in subsequence. In case of Charlotte, it is likely that her estranged fiancé, David will have confidential information about her. David has the possession of her childhood information but on his part, it was not accepted to reveal the confidential information in the public given his duty of confidence. This can surely be regarded as the breach of right to confidentiality. However, there were no evidence about the persons being involved in providing the pictures of Paul and Charlotte. This is also considered as the breach of the right pertaining to confidentiality. As discussed, the right to confidentiality aims to protect the person’s personal information from being displayed in the public. In accordance to the right to confidence, the mentioned provisions rely upon two broader prospects (The Open University, 2012). It is considered that the breach of confidence occurs on the basis of the quality of the information being revealed. As apparent from the case, when Charlotte imparted the information to David, he subsequently imported an obligation of confidence that proves his breach of contract. Another key concern, based on which Charlotte can file for a lawsuit against David is his unauthorised use of the information. However, there are factors under which the confidence is not protected. If it is ascertained that the information has already entered the domain of the public, the confidence is not protected any more. Again, if the information being provided has no or negligible effect on the privacy interests of the people involved, it is not protected. Lastly, if information favours disclosure with regard to the public interest, the information is not protected (The Open University, 2012). As apparently, observable, in case of Charlotte, the protestation will be provided under the breach of right to confidentiality. The information being provided by David in the interview maintained a quality in it and needed to be kept under confidence as the information was shared David during his relationship with Charlotte. Furthermore, Charlotte has also provided the information to David under imposed confidentiality, as he was her fiancé. This supports one of the factors mentioned above, where it reflects about the unauthorised use of the information and thus, Charlotte can lodge a lawsuit on the ground that a breach has occurred with regard to her right to confidence. Apart from this, the information was provided by David under unauthorised circumstances, hence protection will most likely be provided with regard to confidentiality to Charlotte (The Open University, 2012). This can be further explained with the case example of Prince Albert v Strange (1849) I H & TW I 21—22. This case provides considerable knowledge about the protection of privacy of any person under right to confidence. In this case, the defendant was identified as a publisher who derived the copies of the picture carvings of the Royal family. He obtained these paintings from the printer upon whom the Prince Albert had his faith. Certainly, in this case, an imposed obligation of confidentiality arises. Therefore, following the breach of confidence conducted by the printer, in the court, the decisions were made in favour of Queen Victoria and Prince Albert. According to the court judgment, it is likely to happen that the Royal family might have wished to keep their personal carvings under confidence as also applicable in case of Charlotte (The Open University, 2012). Correspondingly, in case of Sarah, no breach of confidence can be observed and hence, she shall not be liable to take the assistance of court in this matter. The information received by Sarah was public, as it was through newspaper. On further note, the information given in the newspaper cannot be considered to be of much interest to her though it might have created a certain degree of impact on her personal life. This ensures that no breach of right to confidentiality has occurred in case of Sarah. This can be explained by the case Lord Goff in Attorney General v Guardian Newspapers [1990] 1 AC 109 that provided a clear picture about the factors that depicts the right to confidence will not be protected under the mentioned aspects (The Open University, 2012). References The Open University, 2012. W100 Rules, Rights and Justice: An Introduction to Law. Law School, pp.6-158. The Open University, 2011. W100 Rules, Rights and Justice: An Introduction to Law. Law School, pp. 7-235. Read More