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What is the European Convention on Human Rights

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What is the European Convention on Human Rights Powered By Docstoc
					ENSURING EQUALITY:
DO WE NEED PROTOCOL12?

The principle of equality is a fundamental and essential human right. It is recognised as such
in all the main international human rights treaties. Over the past decade there has been
increasing recognition that access to equality and to protection from discrimination is
piecemeal and, at times, ineffective. To ensure improved access to equality within Europe,
changes have now been made to the European Convention on Human Rights (ECHR).

What is the European Convention on                   must now act compatibly with Convention
Human Rights?                                        rights. To this extent, the HRA should be
                                                     considered to be a Bill of Rights for the
The European Convention on Human                     UK.
Rights (ECHR) is a Council of Europe
human rights treaty. Over forty countries            What does the         ECHR     say    about
are now members of the Council of                    discrimination?
Europe. People in countries whose
government has ratified the Convention               Article 14 states:
can take a case to the European Court of
Human Rights and seek to establish that              “The enjoyment of the rights and
their rights have been breached.                     freedoms set forth in this Convention
                                                     shall be secured without discrimination on
The Convention is principally designed to            any ground such as sex, race, colour,
guarantee civil and political rights, such as        language, religion, political or other
the right to life, the right to liberty, the right   opinion, national or social origin,
to a fair trial and protection from slavery          association with a national minority,
and torture. The Convention also includes            property, birth or other status.”
a right to privacy, a right to freedom of
expression and right to freedom of religion.         What are the limitations of this?
Most of the rights in the Convention are
designed to be qualified or limited in some          Article 14 does assert a right to protection
way. For example, it can be lawful to                from discrimination, but it is insufficient
interfere with certain rights in the interests       because it only offers protection in relation
of the general community. However, any               to the enjoyment of other rights in the
limitation to those rights has to be                 Convention. It does not provide a universal
proportionate.                                       guarantee of equality. Therefore a
                                                     discrimination   claim     will   only     be
The Human Rights Act 1998                            considered under Article 14, if any
                                                     difference of treatment falls within the
The Human Rights Act 1998 (HRA) made                 ambit of another Convention right. If it
the bulk of Convention rights part of UK             does not, regardless of how bad the
law. Before then, to all intents and                 discrimination is, the claim will be
purposes, it was impossible to argue a               dismissed. This means that for those
breach of the Convention before the courts           areas outside the scope of the
in the UK. Now that the Convention is UK             Convention, it will be impossible to rely
law, it is possible to argue that it has been        upon the ECHR for protection from
breached before any appropriate court or             discrimination.
tribunal. Additionally all public authorities
What is the definition of discrimination         increase     the    importance   of   non-
for the purposes of the ECHR?                    discrimination rights within human rights
                                                 law. The European Court of Human Rights
Discrimination is a difference in treatment      has supported the adoption of the new
that cannot be objectively and reasonably        protocol saying that “certain forms of
justified. For there to be an objective          discrimination cannot be brought within the
justification, the difference of treatment       ambit of Article 14”
must have a very good reason and be
proportionate.                                   What is happening to Protocol 12 in the
                                                 Council of Europe?
What is Protocol no 12?
                                                 Protocol 12 is now part of the ECHR, but it
Protocols are used to add to, or extend,         is not yet in force. Ten Member States of
the rights protected by the Convention.          the Council of Europe have to ratify it
The Council of Europe, conscious of the          before it takes effect. At that stage it will
limits of Article 14, has agreed an              be binding on those countries that have
additional Protocol (no. 12). This Protocol      ratified it and people from those countries
strengthens the ECHR’s ability to protect        may then take cases to the European
against discrimination.                          Court of Human Rights arguing a breach
                                                 of the Protocol.
Protocol 12 says:
                                                 What is the UK’s position?
“(1)    The enjoyment of any right set
forth by law shall be secured without            The UK Government has said that they
discrimination on any ground such as sex,        “have no plans at present” to ratify it.
race, colour, language, religion, political or   They have also said that in principle they
other opinion, national or social origin,        are in favour of it but that the time is not
association with a national minority,            yet right for it.
property, birth or other status.
                                                 What can organisations in the UK do?
(2)    No one shall be discriminated
against by any public authority on any           A free standing right to equality is an
ground such as those mentioned in                important, necessary and effective tool in
paragraph 1.”                                    the fight against unjustified discrimination.
                                                 The UK government should ratify it and
Protocol 12 is a free standing provision to      then incorporate it within the Human
protect individuals from discrimination:-        Rights Act. It offers an opportunity for the
                                                 government to honour it’s commitment to
•   In enjoying any right within national        prevent unjustified discrimination.
    law
•   By public authorities carrying out their     The UK government should be urged to
    legal obligations, including when using      take this action.
    discretionary powers such as grant
    making
•   Any other act, or failure to act, by a
    public authority.                            Please feel free to copy and distribute this
                                                 leaflet. It is available on our website:
It would strengthen the ECHR by                  www.justice.org.uk
protecting individuals from discrimination
with regards to all of their legal rights, not   JUSTICE, 59 Carter Lane, London
                                                 EC4V 5AQ. Tel 020 7329 5100.
just rights protected by the Convention. It
                                                 Email admin@justice.org.uk
will provide a general guarantee of the
fundamental human right to equal                 JUSTICE Registered Charity No 1058580 A company
treatment without discrimination. It will        limited by guarantee and registered in England No
                                                 3216897 Registered office address as above

				
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