critisms of the HRA Flashcards
what are the 5 critisms
Powers given to judges under the HRA go against Parliamentary Supremacy
There has been inconsistency in the extent to which Courts in England and Wales apply ECtHR decisions
absolute nature of rights has been criticised must be upheld under all circumstances, without exception
The ongoing balance between human rights and national security regarding terrorism issues has been criticised
Judges are encouraged not to make declarations of incompatibility
Powers given to judges under the HRA go against Parliamentary Supremacy dev (think s4)
case examples
separation of powers
This allows judges to modify the meaning of laws in ways that align with human rights, effectively influencing legislation yet judges aren’t elected
s.4:bellingern(gender recognition act), anderson, a&others
Powers given to judges under the HRA go against Parliamentary Supremacy dev extra
separation of powers- despite judges having the s.4 power this is only a political power and puts no legal requirement on parliament to act which means the separation of powers is still respected as judges cannot actually change the law
Natural justice (gov taking away rights and courts correcting this)
+ point
+if judges making those decision in order to protect human rights of those involved in the case, then they are supporting human rights theory by securing natural justice for those whose rights have been taken away
There has been inconsistency in the extent to which Courts in England and Wales apply ECtHR decisions dev (think section to do with judicial decisions)
s.2 HRA- must take into account all past judgements, decisions. Declarations and opinions of the ECtHR, s.3 HRA- UK law should wherever possible be interpreted so it is compatible with the ECHR
Alconbury- the House of Lords held that UK courts should ‘‘in the absence of some special circumstances, follow any clear and consistent rulings of the ECtHR.
There has been inconsistency in the extent to which Courts in England and Wales apply ECtHR decisions dev extra (think case)
Kay v Lambeth court of appeal appeals to supreme court/ house of lords. states if a UK court is faced with conflicting domestic UK precedent & a decision of the ECtHR, it should follow domestic precedent and refer a case for appeal.
absolute nature of rights has been criticised must be upheld under all circumstances, without exception dev
Highest form of law- can’t be taken away
criminals- right to vote for prisoners, privacy of criminals
Thomas and Veneables v uk
Freedom of speech
Should people who violate other people’s rights- can be seen as prioritising harmful individuals over public safety
absolute nature of rights has been criticized must be upheld under all circumstances, without exception extra
Universality- everyone should have the same rights as everyone should be treated the same no matter what
The ongoing balance between human rights and national security regarding terrorism issues has been criticised dev (case)
Anti- terrorism, crime and securities act 2001- non-UK nationals suspected of terrorism could be detained indefinitely without trial. This was heavily criticized as a violation of the right to liberty (Article 5 of the ECHR), a&others, prevention of terrorism act 2005
May disproportionately affect ethnic and religious minorities, fostering perceptions of discrimination and alienation.
The ongoing balance between human rights and national security regarding terrorism issues has been criticised extra
Due process- Provisions for freezing assets of suspected individuals or groups were criticized for being based on suspicion rather than proof, raising concerns about due process (for anti- terrorism, crime and securities act 2001).
The ongoing balance between human rights and national security regarding terrorism issues has been criticised extra point
the Act was seen by some as a rushed response to the global climate of fear post-9/11, rather than a carefully considered legislative measure.
Judges are encouraged not to make declarations of incompatibility dev
Discouraging their use could lead to fewer challenges against laws that breach or disregard human rights.
Section 3 states that UK law should wherever possible be interpreted so it is compatible with the ECHR. If this has been incorporated into the HRA it can reinforce the rule of law as it prevents potential abuses of power by the government.
Judges are encouraged not to make declarations of incompatibility extra
precedent- allows the law to update and support human rights more through case law. beneficial as Judges can interpret laws in ways that reflect evolving societal values, ensuring legal principles remain relevant and fair. This prevents outdated or overly rigid laws from undermining rights.
Judges are encouraged not to make declarations of incompatibility extra point
this helps avoids cases escalating to the ECtHR which may lead to reputational damage for the UK, financial costs such as legal fees and compensation, and pressure to amend laws, which could have been avoided through judicial oversight.
