Role of the Council of Europe

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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 right to private life (Article 8)[21] can be limited for matters of national security.[22] All of the previously mentioned Convention rights, including: the right for a fair trial (Article 6),[23] the right to marry (Article 12),[24] the to protection of property (Article 1 or Protocol 1),[25] right to education (Article 2 of Protocol 1),[26] right to free elections (Article 3 of Protocol 1)[27] and the abolition of capital punishment (Article 1 of Protocol 13)[28] were incorporated domestically into UK law (including Scotland) by the Human Rights Act 1998[29] on the 2nd of October 2000.[30] The Human Rights Act 1998 makes it ‘unlawful’ for public authorities to act or legislate in a form that is incompatible with the Convention rights.[31] It also gives the higher courts the power to make a declaration of incompatibility towards any legislation.[32] However, the UK Parliament maintains its Parliamentary Sovereignty by allowing legislation to become and stay active in the law at their discretion, no matter its compatibility with the Convention rights.[33] Scotland was subject to the Convention rights before the Human Rights Act 1998, thru the Scotland Act 1998.[34] The Scotland Act 1998 came into force on the 6th of May 1999.[35] The Act establishes the Scottish Parliament[36] and set its legislative competence.[37] According to the Act, any legislation by the Scottish Parliament is deemed outside its legislative competence and is therefore not law, if: it has effect outside of Scotland,[38] relates to reserved matters laid out in Schedules 4 and 5,[39] amends ‘special’ statutes listed in Schedule 4,[40] removes the Lord Advocate,[41] or is incompatible with Convention rights or Community Law.[42] The Act further gives power to the Convention rights, by limiting Scottish Ministers power outside the compatibility of the Convention rights.[43] The Scottish Parliament is required to submit a statement of compatibility with new legislation.[44] Any...
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