Are Rights Well Protected Flashcards
1A: common law tradition
Even before the HRA98, rights had been protected for centuries. For example the right to have a trial without a biased judge was established in Dimes v Proprietors of Grand Junction Canal (1852), where the judge owned the Grand Junction Canal Company. By precedent of the then House Of Lourds heing the highest court, every case following had to follow this principle, ensuring the right to a fair trial, which was included in the latter ECHR, was to be respected.
1B: common law can be confusing and outdated
Common law is 1) potentially inconsistent, distinctions can be made by unelected judges, creating new, potentially contradictory precedent on slightly different cases, it 2) can be confusing due to legal terms and outdated language being used. This means people may not understand their rights, so they cannot hold those infringing their rights accountable. 3) some common law may be centuries old and simply not aligned with current society, for example until R v R 1991, martial rape was legal in the UK, showing the development of rights is not always consistent with development of society
2A: HRA 1998
The HRA 1998 enshrined the ECHR into UK law, providing statutory protection of rights, this allows judges to rule that any law, old or new can be declared as incompatible with the HRA, for example the Belmarsh Case in 2004 ruled that the imprisoned non Uk citizens under the Anti-terrorism, Crime and Security Act 2001 was incompatable. So Prevnetion of Terirrism Act 2005 replaced it.
2B: human rights act could be repealed at any moment, and it is a Decleration not a binding decision
Firstly, as seen in the Rwanda plan decision, which was deemed as incompatible as Rwanda was seen as un unsafe country, the CON govt pushed through a bill simply claiming Rwanda was safe (The Safety of Rwanda bill 2024), so Decleration basically didn’t matter as parliament is sovereign, although Labours 2024 victory meant Rwanda plan didn’t continue.
Also been fears of uk leaving ECHR, 2015, 2017 and 2019 CON manifestos said they would withdraw, replacing it with a BBOR over fears of parliamentary sovierinfit, also included in Ron Jenrick 2024 leadership campaign and Reform 2024 manifesto.
3A: ultra vires holds govt officials and ministers to account
In Limbu v Sec State for the Home Dept. 2008, by JR it was challenged that the discretionary policy, used to deny Gurkhas of citizenship was unlawful. It was decided that the home secretary’s actions where unlawful discrimination and Limbu won the case.
This shows that the independent and apolitical nature of the judiciary allows a fair judgement on whether the govt is infringing on the rights of people. They act as a check and balance to the executive giving affected citizens a direct route.
3B: judicial review is limited
judicial review can only change a law if a) if it is by a secondary body, as parliament is sovereign it cannot overturn parliamentary legislation.
B) the legislation cannot just simply be wrong, it must be UNLAWFUL, either in the case the secondary body goes beyond the powers granted to it, the correct procdefure was not followed or in very rare cases the law is absolutely unreasonable.
Therefore, it is more of a protection of rights against individual ministers than by the govt, a govt could simply pass parliamentary legislation directly addressing the issue or giving minister the power (Coronavirus Act 2020)
