Guest post: A Guide to Human Rights: Legislation & Making a Claim

Guest post: A Guide to Human Rights: Legislation & Making a Claim
By Barlow Robbins

Britons often learn about human rights when complex legal cases reach the highest courts in the land; for example, when a suspected terrorist fights an extradition order in the Supreme Court. The issue of human rights, therefore, is often portrayed by the media with a considerable degree of negativity. The tabloids have somehow managed to blend human rights, health and safety and political correctness into the same issue; an issue that many people use to explain what has gone wrong with the country. The problem is that few people are actually aware of their basic human rights, what they mean and when they can rely on them.

Legislation

People in the UK are subject to three important bodies of law on human rights: the Universal Declaration of Human Rights (UDHR); European Convention on Human Rights (ECHR); and Human Rights Act 1998 (HRA).

UDHR is a charter for all men, women and children in the world. The 30-article declaration covers fundamental rights and freedoms such as the “right to life, liberty and security” (Article 3) and the right to be recognised by the law (Article 6). UDHR provides the basis for all human rights legislation in the world.

ECHR, which came into effect in 1953, is a far more compelling document. The convention outlines 18 articles on human rights, including those pertaining to life (Article 2), torture (Article 3), servitude (Article 4), liberty and security (Article 5), fair trial (Article 6), privacy (Article 8) and discrimination (Article 14). Article 3 often gains a mention in the news as suspected terrorists who fight extradition orders tend to argue that they might face torture abroad.

HRA serves to entrench the articles of ECHR into domestic legislation. In doing so, however, Parliament left open the provisions to interpretation. Privacy laws, for example, are notably weak in the UK, so Britons who expect this as a fundamental freedom can encounter difficulties in court. HRA also implements human rights laws as prescribed by decisions of the European Community (though this area of the law is far too convoluted to explore at this opportunity). What matters is that the human rights of Britons are protected by international, European and UK law, but what exactly does this mean?

Making a Claim

The remedies available for a breach of human rights legislation in the UK are much the same as they are for other types of claim; for example, head injury compensation can be awarded in a workplace accident or clinical negligence case, while damages may also be available if human rights laws are breached. The problem is that any such breach must involve the HRA, which was passed by Parliament and is open to the interpretation of the domestic courts. Thus, if a person suspects that his fundamental human rights have been breached, he must initially rely on UK law to provide a suitable remedy. Because the HRA is not a word-for-word copy of the ECHR, problems sometimes arise.

A domestic court can submit a Section 4 (HRA) declaration of incompatibility if UK legislation is deemed to be incompatible with the ECHR, but the claimant is unlikely to be awarded a remedy in this scenario. Claims are often appealed in the domestic courts until they are passed to the European Court of Human Rights for clarification, but claims can also be submitted to the Court of Justice of the European Union, which can compel Member States to honour their European Community obligations. Whatever route is chosen, the process of defending fundamental human rights can be lengthy, complicated and expensive.

Written on behalf of Barlow Robbins who also offer support and advice relating to charity law 

Guest post: Will New Private Parking Law Cause More Confusion than Good?

Guest post: Will New Private Parking Law Cause More Confusion than Good?
By Denver

Members of the British Parking Association (BPA) have expressed concern over new laws governing parking on private land in England and Wales. Bundled with numerous other rights and obligations in the Protection of Freedoms Act 2012 (hereafter referred to as the “2012 Act”), which came into force earlier this year, the revised provisions were drafted in part to make wheel-clamping an offence in the UK. Has the 2012 Act achieved this objective, or will it merely serve to confuse motorists and landowners?

Vehicles Left on Land

In October, BPA chief executive Patrick Troy noted the concern of his organisation’s members by claiming the 2012 Act would inevitably confuse motorists.

Mr Troy argued that the regulations are neither compelling nor comprehensive, noting that some sections of the 2012 Act would not apply to all operators. The BPA chief added that a ban on wheel-clamping could not be considered to be a substitute for proper industry regulation.

One purpose of the 2012 Act was to provide motorists with protection from wheel-clamping. Of course, the rights of landowners could not be ignored by the Act, so separate provisions were drafted to define the various ways in which landowners could recover charges or damages from motorists who legally or illegally park on their land. The BPA’s concern is likely to focus on the grey area that exists between these competing rights.

Section 54 of the 2012 Act outlines the new offence of immobilising vehicles. Subsection (1)(a) states that a person commits an offence when he uses an immobilising device to render a vehicle inoperable, unless that person has legal authority to do so. Subsection (1)(b) further prohibits a person (specifically landowners and parking operators) from moving or restricting the movement of a vehicle “by any means” to prevent its removal by the driver or owner (or whoever is entitled to remove it).

Subsection (2) adds that lawful authority is not established if the person who is entitled to remove the vehicle expressly or impliedly consents to the restriction, immobilisation or movement. Whether or not such consent is legally binding is irrelevant for the purposes of the 2012 Act.

Fixed Barrier

Thus, motorists should not expect their vehicles to be clamped or immobilised under any circumstances described above, regardless of whether or not they consented to the immobilisation. Landowners should not even be able to restrict the movement of such vehicles. This ought to come as a relief to the majority of motorists in the UK, many of whom have had to increase their car loans to pay for clamping fines and associated penalties in the past.

Although the 2012 Act would appear to impose strict liability on landowners, there is an exception. Subsection (3) states that consent to restrict the movement of a vehicle “by means of a fixed barrier” constitutes lawful authority provided that the barrier was present (but not necessarily in position) when the vehicle was parked.

Section 54(3) is likely to cause confusion among landowners and motorists. Though (unlawful) immobilisation of any kind is prohibited by the 2012 Act, subsection (3) does provide an opportunity for landowners to effectively immobilise vehicles by restricting their movement and perhaps those of their owners or drivers.

A fixed barrier need not be lowered for express or implied consent to the immobilisation, movement or restriction of a vehicle to be constructed, so motorists need to take care when parking on private land. Motorists should also note that Schedule 4 of the 2012 Act outlines new powers for landowners to recover unpaid parking charges.

Written on behalf of Fincar. Click here for more car related news and advice