By Amy Rees - Law Student @ Churchill College, Cambridge
The UK signed the European Convention of Human Rights (ECHR) in 1950 and as such became bound to protect your human rights under it. It means that if your rights are violated and the domestic Courts do not provide a remedy, you can go to European Court of Human Rights (ECtHR). Under this treaty, there have been many cases which have changed Britain – here are the top five (disclaimer: this is my opinion! There are many more cases which led to widespread change – have a look at some of the resources below for more).
1. A and Others v Secretary of State for the Home Department [2004] UKHL 56 (more commonly known as the Belmarsh case)
Following 9/11, the government passed legislation allowing them to detain foreign nationals suspected of being terrorists indefinitely without charge. Under article 15 of the ECHR, states are allowed to encroach on people’s rights (within reason) during a state of emergency. Parliament used this to pass the legislation, arguing that it allowed them to violate article 5 (the right to liberty). Prisoners who had been held in Belmarsh Prison for three years without being charged or put on trial took the case to Court and it reached the House of Lords. The majority judgement deferred to the government’s definition of a state of emergency but concluded that the measures taken were not strictly required in the emergency. This meant that article 15 could not apply and the legislation was incompatible (Courts cannot strike down parliamentary legislation, but they can make a declaration of incompatibility and ask parliament to review it).
This is an important case because it protects your right to liberty and puts limits on what governments can do, even in a state of emergency.
2. Goodwin v United Kingdom (1996) 22 EHRR 123
This is a case which went all the way to the ECtHR, as you can see from its title – it is against the United Kingdom (confusingly, there is another human rights case from 2002 with the same name – if you look up this case, check it was in 1996). Mr Goodwin was a journalist who worked for The Engineer magazine and had some exclusive information about a company called Tetra. Tetra was currently negotiating a £5million deal but Mr Goodwin had learnt that they were in extreme financial difficulties. However, his information clearly came from an inside source. The file containing the information had been left unattended for an hour within the company building and, in that time, someone had given it to Mr Goodwin.
Tetra took Mr Goodwin to Court to get an injunction which would prevent him from publishing the information. It was successful. The Court also ordered that the source must be released, allowing Tetra to sue them. Mr Goodwin refused to name his source and was fined £5,000. He took the case to the ECtHR, claiming that it violated freedom of expression (article 10). He succeeded – given that the injunction had been issued, it was not necessary to also release the source. This case protects the freedom of the press in a democratic society. Requiring journalists to release their sources would lead to a lack of information reaching the public.
3. Smith and Grady v The United Kingdom [1999] ECHR 72
One of the most utilised articles of the ECHR is article 8, the right to a private life. This could mean many things and is used to protect many people. Smith and Grady were soldiers in the Royal Navy and were discharged because they were lesbians. The domestic Courts concluded that there had been an interference with their right to a private life but that the interference was justified (there are a complicated set of circumstances for when interference with a right can be a justified). However, the ECtHR decided it was not justified as it was not necessary in a democratic society. In the UK, this ruling was highly controversial and led to many enraged parliamentary speeches. 22 years later, this is forgotten, and the Smith and Grady legacy is one where we celebrate legal prohibition of discrimination.
4. Dudgeon v United Kingdom [1981]
18 years before Smith and Grady, the first case on the criminalisation of male homosexuality was successful before the ECtHR. Jeff Dudgeon was a gay, northern Irish man and although male homosexuality had been decriminalised in England, Wales, and Scotland, it had not been in Northern Ireland. The ECtHR agreed with him that this violated article 8 and the judgement led to the enactment of the 1982 law decriminalising homosexuality in Northern Ireland. Furthermore, it provided the basis for the later case of Norris v Ireland, which led to decriminalisation in the Republic of Ireland.
5. Pretty v United Kingdom [2002] ECHR 427
Assisted suicide is still a controversial topic now and the issue is in no way resolved. Pretty was the first case on the topic to head to the ECtHR. Diane Pretty had motor neurone disease and by 2002 was paralysed from the neck down, could not speak and was fed through a tube. She applied to the UK government to get them to guarantee that her husband would not be prosecuted were he to help her die. This was a difficult judgement – it is a touchy political area and there is a very broad spectrum of views. The Court decided that her right to choose how to die was protected under article 8 but that the UK’s law which made assisted suicide illegal had a legitimate objective. This meant that her husband would still be prosecuted. Diane Pretty died a month after the judgement and famously said that ‘the law has taken all my rights away’.
Further reading:
50 Human Rights Cases That Transformed Britain: https://eachother.org.uk/50-human-rights-cases-that-transformed-britain/ - contains accessible resources on many notable cases, including the ones mentioned here.
Explanation of how the ECtHR works: https://eachother.org.uk/the-european-court-of-human-rights-explained/
The latest on the right to die issue in the UK: https://ukhumanrightsblog.com/2014/06/25/supreme-court-rejects-right-to-die-appeals/ (Nicklinson is a very complicated case and is often misunderstood)
When can a government interfere with a right? Which rights can be interfered with? https://www.coe.int/en/web/echr-toolkit/les-articles-8-a-11