Role of the Council of Europe

Parliamentary sovereignty, Human Rights Act 1998, Scotland Act 1998

On the 5th of May 1949 during the aftermath of the Second World War, the Treaty of London created the Council of Europe.[1] Originally signed by ten states[2], its mission was to protect human rights and freedoms. Their legal instrument was the Convention for the Protection of Human Rights and Fundamental Freedoms[3] – now known as the European Convention on Human Rights (‘the Convention’). The UK ratified the Convention rights in March of 1951 and came into force the 3rd of September 1953.[4] Today the primary goal of the Council of Europe is to “create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law.”[5] It encompasses 47 member states that have ratified the Convention rights.[6] The Convention rights cover a broad range of issues. Not only does it protect the life of citizens under a member states jurisdiction, it also ensures that everyday freedoms are maintained as well. These rights are separated into three categories: absolute, limited and qualified rights. Absolute rights can never be taken away by the state.[7] These rights protect from torture, inhumane treatment (Article 3),[8] slavery or forced labor (Article 4),[9] discrimination (Article 14)[10] and retrospective prosecution (Article 7).[11] Limited rights can be limited by the state, but specific and defined circumstances must be met.[12] For example the right to life (Article 2)[13] and liberty (Article 5)[14] can be limited by lawful order or lawful act – a police officer kills in lawful self-defense[15] or lawful prison sentence.[16] Limiting qualified rights requires: there be some legal basis, it is necessary in a democratic society, and it is in relation to some legitimate aim.[17] The rights to freedom of thought, conscience, religion (Article 9)[18] and assembly (Article 11)[19] can be limited for the sake of public safety and/or public order.[20] Additionally, the...
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