Helga Law Journal - 01.01.2021, Síða 145

Helga Law Journal Vol. 1, 2021
150
International Legal Research Group
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is one of the articles which is excluded from the HRA since its very own
implementation is seen as securing this, especially within Smith and Grady v UK,97
where it was held that judicial review does not provide an effective remedy due
to the fact that the irrationality standard is too high thus requiring the courts to
carry out more intensive reviews of each case.98 Many hold the view that the very
narrow character of judicial review proceedings does not make them suitable for
the resolution of human rights issues.99
2.5 Conclusion
In conclusion, the remedies provided are limited in their effectiveness. The
process and procedure which is required of the individual is difficult and complex
and portrays itself as being designed in order to deter complaints of human rights
violations. Assuming the claimant is successful, the remedies are limited by the
constitutional structure of our legal system which provides the option of simply
declaring itself incompatible with human rights. Judicial review may be seen as
an alternative option, however, it too throws up issues of procedure as well as
being narrow in its analysis, failing to provide an effective alternative for the
weaknesses within the default system of seeking an effective remedy. When
returning to the beginning of these sections, it was held that a balance is often
struck, and when this balance is left uneven the remedy should aim to correct it.
3 What is the impact of the European Convention
on Human Rights and the case law of the
European Court of Human Rights on the right to
protest in your country?
3.1 Introduction
The European Convention on Human Rights (ECHR) was ratified by the UK in
1951, making it the first country to do so.100 However, it was not until 1966 that
the UK accepted the right of individuals to challenge the state in the European
Courts of Human Rights (ECtHR) regarding claims of human rights
violations.101 The ability of individuals to challenge the UK in Strasbourg ensured
that any human rights violations committed by the UK could be held to account
by the ECtHR. In this regard, the introduction of the ECHR has not only

97 Smith and Grady v The United Kingdom [1999] ECHR 27 Sep 1999.
98 ibid (n 22) Fenwick et al 176.
99 ibid (n 13) 522.
100 Chart of signatures and ratifications of Treaty 005, Council of Europe,(n.d.). Retrieved July 01,
2018, from https://www.coe.int/en/web/conventions/full-list/-
/conventions/treaty/005/signatures?p_auth=r0w2hXdi.
101 Alice Donald, Jane Gordon, and Philip Leach, ‘The UK and the European Court of Human
Rights’ [2012] Research Report 83 The Equality and Human Rights Commission v-vi.
changed the British legal system’s approach to the right to protest but all human
rights claim incorporated within the ECHR.
3.2 How has the ECHR Affected the UK Domestic
Legal System Generally?
The introduction of the right of individual petitions to the ECHR demonstrated
the occasional limitations of the common law in protecting human rights and
civil liberties. The British Courts have a rather checkered track record in
protecting human rights and civil liberties through the common law. Whilst cases
such as Entick v Carrington102 do demonstrate the existence of “fundamental
Common Law right(s),”103 the effectiveness of the British courts can be
sometimes be questioned. For example, in Malone v Metropolitan Police
Commissioner,104 Malone was subject to police wire-tapping through his telephones
lines by the police outside his property. The High Court failed to find any
violation of the right to respect for privacy under Article 8 of the ECHR.
However, when the case was taken to the ECtHR, Malone was successful.105 For
example, in the 1942 case of Liversidge v Anderson,106 the House of Lords concerned
“the power of the Home Secretary to intern persons where there was a
reasonable suspicion that they posed a threat to national security.”107 The House
of Lords decided that the Home Secretary should be allowed to exercise this
power; it was characterised as a dismissal of the rule of law both by their
contemporaries and later legal scholars.108
Any discussion in the respect of how the ECHR affects the UK system must
now be conducted with the Human Rights Act 1998 in mind. The purpose of
the HRA was to give further effect to the rights and freedoms guaranteed under
the ECHR.109 Although the declarations do not have legal effect and ultimately
rely on government and parliament to usher in the changes required, more often

102 Entick v Carrington [1765] 95 E.R. 807. “The defendants broke into Entick’s home ‘with force
and arms’ and then proceeded over the next four hours to break down doors and open locks in an
effort to find evidence of seditious libel that could lead to a criminal prosecution,” Richard Epstein,
‘Entick v Carrington and Boyd v United States: Keeping the Fourth and Fifth Amendments on Track’
[2015] 82(1) The University of Chicago Law Review 27.
103 Robert Alderson Wright, ‘Liberty and the Common Law’ [1945] 9(1) The Cambridge Law Journal
2, 6.
104 Malone v Metropolitan Police Commissioner [1979] Ch. 344
105 Malone v United Kingdom (1984) 7 EHRR 14.
106 Liversidge Appellant v Sir John Anderson and Another Respondents [1942] A.C. 206.
107 Francis Bennion, ‘The terrorists should not be allowed to win’ [2004] 13(1) The Commonwealth
Lawyer 36, [Abstract].
108 David Edmond Neuberger, ‘Reflections on the ICLR top fifteen cases: a talk to commemorate
the ICLR's 150th anniversary’ [2016] 32(2) Construction Law Journal 149, 162.
109 The HRA makes the rights in the ECHR accessible to people in Britain so that they can be directly
relied on in domestic courts, while section 3 requires all British legislation to be read in a way that is
compliant with the ECHR, at section 3(1). In addition, section 4 of the HRA grants the courts with
the ability to issue declarations of incompatibility when legislation breaches human rights, at section
4(4).