ECHR HRA 2018 Flashcards
The EU is not…
the council of europe.
Recap of the limits of parliamentary sovereignty?
- The practical reality of states dealing with international and european bodies
- International law impacts upon national sovereignty
- The UK has engaged with international organisations - the effect of doing that is to give away something. The state joins an international body, and in doing that it agrees to give up part of its national sovereignty in particular areas e.g trade
- Most states accept in doing this, they are giving up a part of their sovereignty/powers
- Monist/dualist approaches
- The UK’s dualist approach to international obligations requires an act of parliament to give up aspects of national sovereignty - remember parliament is sovereign and can repeal any act e.g european communities act 1972 - brexit.
Human Rights & Civil Liberties before the HRA?
Historical perspectives:
- No written constitution or charter of rights (falls to the judges to guarantee individual freedom against other branches of the state - dicey)
- We have no list or catalogue of rights - we do have some written texts historically which go to the protection of our individual freedoms in Britain.
BUT…
Magna Carta 1215
Bill of Rights 1689
Writ of Habeas Corpus
^ All guarantees of individual freedom.
Can be described as:
negative freedom:
Freedom from state (regal) interference rather than a ‘right to xyz’ (we can do what we like as long as it doesn’t harm anybody)
Magna Carta 1215
- The principles behind this have been exported all over the world and is seen as being the symbol for individual freedom.
- Marks the centrality of individual liberty within the british constitution - Bad King John was forced by his barons to agree to this ‘great charter’ 800 years ago.
“no free man shall be taken or imprisoned, or be desseised of his freehold, or liberties, or free customs, or be outlawed or exiled…” - chapter 29.
The Bill of Rights 1689
core aims:
1) establish parliamentary sovereignty
2) establish the succession to the throne
3) provide some minimum basic freedoms.
^ elaborated with a number of objectives. Was not about individual rights/freedoms, more about the establishment of sovereignty of parliament. To say that the king should have no new powers, parliament power over monarchy..
Basic Freedoms in the bill of rights:
(parliament declare the rights of subjects…)
- Suspending power - king cannot extend laws without parliament’s consent.
- Levying money - the king levying money without grant of parliament is illegal.
- Right to petition.
- Subject’s arms - protestants may have arms for their defence suitable to their conditions and as allowed by law
- Freedom of election - election of members of parliament ought to be free
- Freedom of speech - in parliament ought not to be impeached or questioned in any court or place outside parliament
- Excessive bail - no cruel or unusual punishment inflicted.
Habeas Corpus
- It signifies freedom from unlawful detention
- Requires that the prisoner’s body be brought to the court and their detention explained
- If the detention is unlawful, the detainee should be freed (should not be detained unless there is a just cause)
- Codified in the habeas corpus 1679
- The phrase ‘habeas corpus’ means to have the body/see the body of prisoner before the court in order to assess legality of detention.
Core Freedoms and their limits?
- Significant core freedoms have been central to UK law:
1) freedom from unlawful detention
2) freedom of expression
3) freedom of assembly
4) freedom of association - ability to associate
Freedoms can be enjoyed unless restricted by law.
We have never had a comprehensive bill of rights in the UK…
Historically unnecessary, constitutionally impossible - we have no mechanism to entrench that bill of rights - could be repealed by parliament, politically undesirable.
The Council of Europe back story?
- After WW2, there was a desire to introduce in europe a convention to enshrine basic civil and political freedom. This was done under the auspices of the Council of Europe (not the EU - separate).
- CoE is a group of 47 states which was founded in 1949 - post ww2 - in order to pursue objectives of peace and the protection of human rights in europe.
- This group is wider than the EU - it includes all 28 EU countries but also other states e.g turkey, russia, ukraine.
The Council of Europe and the European Convention of human rights?
ECHR history - a regional response to the need to ensure protection of human rights.
ECHR contents - basic civil and political rights, right to fair trial, right to fair hearing, private life, non-discrimination etc.
European Court of Human rights enforces the ECHR - sits in strasbourg - completely separate to EU’s court of justice.
The ECHR and the UK?
- Britain was a founding member of the council of europe and one of the states which helped to draft the european convention.
- Britain ratified the ECHR in 1950 and accepted the jurisdiction of the ECHR and the rights of individual petition in 1966. We also had accepted an individual petition - which means individuals can take their case the European court of HR.
The Introduction of the Human Rights Act
The dualist approach:
- no act of incorporation
- ECHR applicable as international law
- Enforceable by the European Court of HR
- Victims must petition strasbourg to have their rights to claims under the convention heard; can’t petition a domestic court.
ECHR and Domestic Law historically
Law changes often in the light of political/social developments.
R V SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE BRIND AND OTHERS =
Case about the legality of a decision of the home secrerary to restrict the reporting and expression of opinions of members of terrorist organisations.
^ challenged by a group of journalists using article 10 ECHR (freedom of expression) - argued the measures being introduced were against the rights and freedoms particularly article 10.
Lord Ackner in Brind Case sets out why Act 10 is irrelevant in this case:
The convention had not been incorporated in the way its construed under Art 10 - had not been incorporated in our domestic system.
^ ECHR had not yet been incorporated into our domestic law system.
explain the meaning of “bringing rights home”
- In 1980’s there was a private members bill proposing incorporation - there was no time.
- in 1990’s:
Institute of public policy research proposed a written constitution and written bill of rights - EU law - gradual incorporation of the convention by ‘the back door’ - EU system now started to incorporate the convention in EU law.
“bringing rights home”:
- new labour under Tony Blair elected to power in 1997
- Agenda to bring in a bill of rights and mark a change
- introduced white paper ‘bringing rights home’ which became the HRA - nationalising rights - adopting the New Zealand model.
- Still means parliament is sovereign
- the solution: HRA 1998 - an act incorporating ECHR into national law.
- Rather than writing a bill of rights, this was an easier step - just incorporating the convention rights into domestic system.
The Changes introduced by HRA (to individuals, parliament, executive, judiciary)
- Introduced important changes for ALL three branches of the state as well as invidivudlas (parliament, executive, judiciary)
PARLIAMENT =
- Parliamentary sovereignty is still retained. Still number one law making body. This legislation is weaker than the European Communities Act 1972 - government couldn’t go whole way to entrench this new bill of rights, it is just an act of parliament and can be repealed.
- BUT there are some provisions in the act that affect parliament:
1) pre-enactment - scrutiny of leglisation - obliged to scrutinise bills prior to enactment to ensure they are convention compliant. Should not be a clash - should respect rights under convention.
2) Post-enactment - the duty to interpret - s3(1) so far as possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights (judges must intepret legislation in order to give effect to those convention rights)
3) Post-enactment - the declaration of incompatibility - s4(2) ‘if the court is satisfied that the provision is incompatible with a convention rights, it may make a declaration of that incompatibility’ - where judges feel there is an incompatibility, they can issue a declaration - doesn’t mean they can overturn legislation, but, judges can declare it - there is a fast track for amendment of whatever is the offending provision in english law - for parliament to change the law.
EXECUTIVE =
- Acts of the executive to be subject to human rights scrutiny. Administrative acts can now be checked and controlled by the judges to make sure they are human rights compliant.
s6 = it is unlawful for a public authority to act in a way which is incompatible with a convention right.
JUDICIARY =
- The winners of the HRA changes - they become more powerful in the sense that they have responsibility for checking the human rights compliance of legislation.
- Increase in judicial power
- scrutiny for compatibility with ECHR jurisprudence
- Declaration in incompatibility
- Could say the HRA is unconstitutional as the judges are not elected and parliament is.
INDIVIDUALS =
- A new language - the language of ‘rights’ - we have the rights that are guaranteed under the convention.
- A new tool kit - new legal arguments - enables them and their lawyers to use new arguments in court
- A new legal culture - mainstreaming human rights - makes individuals more powerful against the state.
Case Law under the ECHR?
Early beginnings - R v A:
‘rape shield law’
- Parliament enacted the Youth justice and criminal evidence act 1999 - aim was to protect victims of sexual violence from having to discuss previous relationship history with the D
- D’s side would question the victim in an aggressive way in order to establish she had consented etc - Feminist groups angry at this
- ‘A’ challenged the inability to question a victim as contrary to his right to a fair hearing (ECHR Art 6)
- HOL intepreted 1999 Act as to enable questoning and the protection of the fundamental rights of the accused - meant defence lawyers could continue to question victim - judgement received badly by women’s rights groups
PRETTY V DIRECTOR OF PUBLIC PROSECUTIONS =
- Terminally ill lady sought assurance from the DPP that her husband would not be prosecuted if he assisted her to die
- assisting suicide is unlawful s2(1) suicide act 1961
- DPP gave no assurance and Mrs pretty argued this was violated of Art 2 (right to life), 3 (inhuman family life), 9 (freedom of conscience), and 14(non-discrimination) ECHR
- HOL said no violation of convention
- Case went to European court of HR - unsuccessful - right to life does not include a right to die.
BELLINGER V BELLINGER =
- Case about transgender rights and right to mary - marriage had to be bwteen man and woman - could not change gender stated at birth - compability with Art 8 and 12 - declaration of incompatibility - gender recognition act 2004 introduced.
R V HEAD TEACHER AND GOVERNORS OF DENBIGH HIGH SCHOOL =
- Case about the right to education and freedom of religion.
- Muslim girl wanted to wear full muslim dress to school, excluded, argued her exclusion was contrary to the right to education and freedom of belief art 4 - CoA won her case.
- HOL - school won appeal - HL said school had acted reasonably, consulting on its dress code, and admitting some forms of muslim dress.
