Mar
25
2014

Noise and Human Rights Regulation

Noise as a human rights issue often hits headlines – most recently in Copenhagen where residents won a case against construction work blighting their homes. Acoustic consultant and blogger on noise issues, Gwyn Mapp of Amledd, examines the evolution of human rights regulation and how this can be applied in noise cases.

The topic of human rights receives a lot of negative coverage from some elements of the British press. This coverage has led to the European Court of Human Rights taking the highly unusual step of challenging the stories, describing them as “frequent misrepresentation”.

The truth about human rights is the UK has a long and proud tradition of protecting the rights of individuals. It has been suggested that this tradition started with the signing of the Magna Carta in 1215 followed by the English Bill of Rights in 1689 and the works of philosophers such as John Locke and Thomas Paine in the 17th and 18th Centuries respectively. However, the beginnings of modern human rights can be traced back to the United Nations Universal Declaration of Human Rights (UDHR), signed on the 10th December 1948[i].

The UDHR created, for the first time, “a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community”[ii]. The UDHR inspired many regions and countries to incorporate human rights principles into their constitutions and Europe was no different.

The European Convention on Human Rights (ECHR) was signed on the 3rd September 1953 and has been described as a British-led pact against Fascism and Communism. The ECHR provides a list of rights, drafted in large part by Sir David Maxwell-Fyfe at the request of Winston Churchill, that were largely based upon the rights established by British Common Law.[iii]

This list of rights contains, amongst others, the right to life, the prohibition of torture, the right to liberty and security and the right to a fair trial. When considered together, the list of rights has been described as a blueprint for a democratic society”. It has been accepted that noise could cause an action under the article prohibiting torture[iv] but, for the majority of cases noise would be covered by:

Article 8 – the right to respect for private and family life
“There is no explicit right in the convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8….” Hatton vs. UK (2003); 37 E.H.R.R. 28 – Paragraph 96

and

Article 1 of Protocol 1 – the protection of property.

It should be noted that the ECHR works both ways in that it not only protects alleged victims, but also protects the alleged protagonists so that both sides are treated with equal regard. For example, in relation to a neighbour noise complaint, the complainant has the right to respect for private and family life, i.e. not to be troubled by excessive noise, and the alleged perpetrator has the right to respect for private and family life, i.e. not to be investigated using unfair surveillance methods, and has the right to a fair trial.

The impact of the ECHR was profound. For the first time citizens were given a mechanism to pursue their governments through the courts if they believed that their rights were being infringed. The European Court of Human Rights was established to hear grievances and after a modest start has become increasingly busy, hearing over 1,500 judgments in 2012 and carrying over a backlog of 128,000 cases.

At European level, the principles of the ECHR have long been recognised as essential to the smooth working of an economic union, but it was the Maastricht Treaty that first made mention of human rights. The ECHR has since been incorporated into the draft Charter of Fundamental Rights of the European Union.[v]

Despite being instrumental to the drafting of the ECHR and being one of the first signatories of the Convention the UK did not incorporate the principles of the ECHR into domestic legislation until a change of Government led to the enactment of the Human Rights Act 1998. This UK Human Rights Act adopted many of the articles of the ECHR and allowed grievances to be heard in the UK court system in addition to the European Court of Human Rights[vi].

If it could be argued that if the ECHR is based on British Common Law, why is there a need to consider the ECHR at all? What distinct role does the ECHR play? There is no one answer but it has been proposed that the ECHR plays four roles that occasionally overlap. The first role is to aid Statutory Interpretation; the second to develop common law; the third to aid Judicial Review and the fourth to form part of EU law.[vii] However, a recent case[viii] stated that the role of the ECHR was really one of benchmarking the efficacy of the common law in protecting the rights of an individual.

So, in relation to noise and human rights, the rights detailed by the ECHR are enforced by the common law nuisance in addition to the rights provided by statutory nuisance. The ECHR plays a shaping role for any new policies that aim to alter how noise is managed and the Human Rights Act 1998 provides a mechanism for individuals to take public authorities to court for failing to protect their human rights. In effect, the ECHR is a mechanism for keeping all public officials on the straight and narrow.

Gwyn Mapp

http://www.amledd.com/about/  @Amledd



[i] Chapman; (2007); Human Rights: A Very Short Introduction; Oxford University Press
[ii] Teheran International Conference as discussed by Chapman; (2007); Human Rights: A Very Short Introduction; Oxford University Press
[iii] Bates; (2010); The Evolution of the European Convention on Human Rights; Oxford University Press
[iv] Chapman; (2007); Human Rights: A Very Short Introduction; Oxford University Press
[v] Horspool & Humphreys; (2012); European Union Law; 7th Edition; Oxford University Press; Chapter 15
[vi] Chapman; (2007); Human Rights: A Very Short Introduction; Oxford University Press
[vii] Hunt; (1998); Using Human Rights Law in English Courts; Hart Publishing, Oxford.
[viii] Osborn vs. Parole Board (2013) UKSC 61;  http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0147_Judgment.pdf

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