HRA /BOR

Question 1

pros of a BOR

Answer 1

• control on the executive - - courts could refuse to apply legislation that is incompatible with the bill
• Goes further than s3/4 of the human rights act.
• More power for the judiciary
• Under s3 HRA, an act that breaches rights in the convention still prevails
• This would not be the case with the bill of rights.
• Rule of law would be upheld
• Not entrenched
• Introduces new rights
• NO ECTHR influence e.g abu hamza echr intervioeened heavily

Question 2

cons to a bor

Answer 2

The bill could be seen as unnecessary
- Our rights are already protected
- Belmarsh prisoners 2004 challenged their human rights under the Anti terrorism, crime and security act 2004 which was deemed not compatible with the convention.
- Is there point having a whole new bill?
Bill of rights seen as being undemocratic
- increases power of the judiciary
- Breaches parliamentary sovereignty and separation of powers
inflexible
- Shown by america unable to remove their gun laws
- UK has unwritten constitution which is flexible and keeps up to date with society e.g. health act 2006

Uncertainty
The bill of rights is only as effective as the government that underpins it

Question 3

pros of hra

Answer 3

• it has incorporated the ECHR into domestic law by Section 1 it now takes significantly less time to go to court as when previously people would have to travel to Strasburg, it could take up to 6 years to be heard.
• the decision being made in the court being binding as previously the decisions made in Strasburg did not have to be accepted by the UK as seen in Steele V UK. In this can Steele produced a leaflet slandering McDonalds claiming he had freedom of speech; he won his case in Strasburg and in this case the result was accepted by the UK.
• section 4- courts can issue a declaration of incompatibility if they find legislation to go against human rights. This means that they can ensure human rights are protected in every case even which older laws which could be considered out of date and may go against some human rights. This can be seen in the case of Bellinger V Bellinger. In this case a transsexual female married a man and wanted a declaration from the court confirming their lawful marriage. The Matrimonial Causes Act 1973 states that a marriage may be entered into as between a “male” and “female” only. The court therefore refused to issue the declaration: since the transsexual female was at birth as a classified male. However, the courts issued a declaration of incompatibility as it was recognised that this went against Article 12, the right to marry.

Question 4

cons to HRA

Answer 4

not entrenched, the parliament could get rid of it if they wanted to meaning people could lose their human rights
- UK can refuse to implement the results of the ECOHR
-section 10- government does not have to listen to the declaration of incompatibility