11- Human Rights in the UK before & after the HRA 1998 Flashcards
How were HR issues dealt with in the UK before the enactment of the HRA 1998?
Law on HR considered law on civil liberties.
The scope of the liberties represented what remained after establishing any restrictions imposed by statute/common law or any other procedure.
Have UK citizens always been able to take cases to the ECtHR?
Not until 1966.
When was the ECHR formally incorporated into UK law?
Passing of the HRA 1998.
Which 3 effects did the UK ratifying the ECHR in 1953 have on the country?
- Par required to consider compatibility of proposed new legislation with the ECHR.
- Courts required to interpret the law in a way consistent with the UK’s obligations under the ECHR.
- After 1966, where the ECtHR found the UK to be in breach of the ECHR, the UK is obliged to change the law to make it compatible.
Which case shows the effect of decisions of ECtHR after 1966?
Sunday Times v UK (1979)
Facts of the case:
- Gov applied for an injunction to stop the publication of an article relating to the cause of birth defects in children whose mothers had used a particular drug during pregnancy.
- The gov thought this might result in contempt of court if it influenced negotiations between the drug company and the victims.
- The ECtHR held a violation of Art 10, arguing this disaster was of public concern and the victims had a right to know about it.
Point of law or Legal Principle:
- As a result of the ECtHR decision, Par passed the Contempt of Court Act 1981, which gave more weight to freedom of expression of newspapers.
- It provided media are prohibited from publishing information that will prejudice ongoing legal cases, in particular jury trials.
What does s 3 HRA 1998 impose?
An interpretative duty on the courts, to interpret legislation in a way compatible with ECHR.
How does s 3 HRA 1998 apply?
It applies only ‘so far as it is possible to do so’.
This means legislation which can’t be read in a way that is compatible with ECHR remains valid and courts are required to enforce it.
What are the 3 general techniques the courts will use when interpreting a statute to ensure it is ECHR compliant?
- ‘Reading down’
- Introducing limiting words (ex: a provision might be inserted limiting someone’s powers so that the law is ECHR compliant.)
- ‘Reading in’
- Introducing words to create safeguards.
- ‘Reading out’
- Courts remove/not enforce provisions which would make the statute incompatible with the ECHR.
When does s 3 HRA 1998 apply?
When under the literal, golden or mischief rule it isn’t possible to interpret the legislation so that it’s compatible with the ECHR.
How is primary legislation made compatible with ECHR?
Legislation in force before the HRA 1998 is subject to the interpretative duty of s 3.
Legislation brought into force after 2000 is either:
- capable of being read in an ECHR compatible way or - is put into effect as legislation which is incompatible but still valid.
How is secondary legislation made compatible with ECHR?
If they cannot be interpreted in a compatible way, they are not to be enforced.
This is bc Par cannot have intended to authorise secondary legislation that violates fundamental rights. If it does, it should sau so expressly.
What happens if a senior court finds legislation incompatible with ECHR?
If SC/CofAppeal finds this, by s 4 HRA 1998 they have the discretion to make a declaration of incompatibility.
- This doesn’t affect the validity of the law.
- It should only be made as a last resort, courts are required to
do all they can to find compatibility.
If this declaration is made, gov has the choice to:
- Do nothing
- change the law
- make a remedial order- can include amending an Act or piece of sec legislation.
Which case can be used to illustrate courts finding legislation incompatible?
Bellinger v Bellinger (2003)
Facts of the case:
- A person who had gone through gender reassignment surgery sought a declaration that she was validly married to her husband.
- Under UK law, this wasn’t possible as her birth certificate couldn’t be changed.
Point of law or Legal Principle:
- The HoL found a section of the legislation that applied to the case incompatible with Articles 8 and 12 ECHR, as it made no provision for the recognition of gender reassignment.
- The Gender Recognition Act 2004 was passed as a remedy.
How does the HRA 1998 affect private law?
The main point of the ECHR is to provide rights against the state, so it doesn’t directly affect private law.
It doesn’t allow a case to be brought against an individual, private company or commercial organisation.
However, the duty under s 3 applies to all legislation.
Could the HRA 1998 be repealed?
Under the principle of parliamentary sovereignty, Par is the supreme law-making body in the UK, and no single Par can bind its successors.
This means that, in theory, Par could repeal/amend this Act.
Doing this would mean withdrawing from respecting the ECHR, which would be unlikely to happen as it would suggest the UK doesn’t respect human rights.
