HRA - Challenges Flashcards
What are the challenges headings?
Introductory paragraph?
Immigration Removal of 'undesirables' Anti-terrorism measures Surveillance Prisoners' voting rights
Need to think about Liberty vs National Security (e.g. AF Litigation Phillips cf. Hoffmann). What is the role of the courts in negotiating these issues post-9/11? (Deferring to govt has decreased as a result of s.6)
So start with s.6 and its horizontal impact (courts=public body). Under a duty to give effect to convention rights cf. old law where would defer on matters of public interest and national security.
The idea of deference is one of parliamentary sovereignty. However it was selectively applied, so it is hard to see that the HRA has actually made much practical difference.
Has the schism between natural justice and positive law become more profound? Who are the Bs of human rights?
Are we moving to a notion of universal human rights where non-nationals get to enjoy the same rights as nationals just by virtue of the fact they are on UK soil? Is this a bad thing? (yes in deportation cases)
Case to mention on immigration? Points to remember?
Chahal saga on deportation. Focused on evidence obtained in contravention of art 3, so saying art 6 and 13 (effective remedy) breached as couldn’t appeal as no evidence which could be heard, so created:
Special Immigration Appeals Commission Act 1997 introduced as a result of this case
Created closed-door hearings with special advocates. Based on the Canadian model. Only used for deportation cases (narrow application).
An attempt to balance demands of due process with demands of national security.
Special advocates - created to deal with secret evidence. An intermediary position (govt don’t want to disclose the full extent of allegations to terrorist suspect son grounds of national security).
Not D’s lawyer, but has access to all the evidence. Adversarial hearing.
Started off dealing with a narrow set of cases in the 90s, but their use has now expanded into areas that arguably don’t concern national security!
Outline the anti-terrorism legislation and the patterns involved.
Theme/pattern: increasing entrenchment. Mission creep.
Pre-9/11 Irish troubles (Ireland v UK) led to:
Prevention of terrorism act 1974
To be renewed every year, then every 5 years.
9/11
Terrorism act 2000. Permanent.
Anti-terrorism crime and security act 2001
Allowed foreign nationals to be detained indefinitely without charge. So couldn’t be deported in the basis of Chahal.
Can detain st 6 month review
Prevention of terrorism act 2005
Derogations and non-derogations control orders.
What happened in the Belmarsh prison case?
Foreign nationals being held indefinitely without charge in Belmarsh prison under 2001 Anti-terrorism act (introduced v swiftly after 9/11)
Breach of art 5 (Liberty), 14 (discrim), 6 (fair trial)
The q was if breach of art 5 was justified due to the state of emergency (ie. was it justified on art 15 grounds?)
Majority: said it was a state of emergency, but the steps taken in response to it were not shown to be necessary.
Made s.4 declaration of incompatibility for one part of the act. This out pressure on parliament to repeal UK law, so parliament decided to repeal the whole thing to bring into line with the rights recognised by ECtHR.
Led to prevention of terrorism act 2005
Derogations and non-derogations control orders - under SIAC supervision, closed sessions, special advocates, annual review of legislation.
What is the difference between a derogations order and a non-derogations order? Which act introduced these measures?
2005 prevention of crime and terrorism act
Derogating order means derogations from Art 5 (Liberty and security) - would be permitted in extremely grave circs.
No derogating order has ever been successfully issued, the 2001 derogations order in the Belmarsh Prison Case was quashed.
These orders don’t breach art 14 (discrim) since they can be imposed on nationals and non-nationals alike. The orders impose a range of controls against a person.
Are non-derogating orders legal? Case?
Yes if they don’t breach art 5!
SoS HD v JJ 2008
28 hours curfew - amounted to an art 5 breach, so was illegal. It was a derogating order - indefinite solitary confinement in practice!
There is no art 14 breach since applies to nationals and non-nationals alike.
AF Litigation - there was an art 5 breach - 14 hour curfew in a small area.
Are closed hearings procedurally fair and legal?
A, d, c v sos HD 2005
Torture evidence should not be admitted
Where doubts over evidence’s origin it should be admitted, but should bear the doubt in mind. It is a question of deference - a degree of leeway is given to the gift in light of secret evidence, so shouldn’t just be barred.
AF Litigation
Evidence heard in secret challenged: court said failure to inform (of rights since evidence was heard in secret, so wasn’t informed of his rights so they couldn’t defend themselves through the special advocate)
HoL followed ECtHR decision (mirror principle) - said it was an art 6 breach.
Lord Phillips: in favour of following ECtHR decision
Cf.
Lord Hoffmann: thought ECtHR decision was wrong but was bound to follow it. He thought national security legitimised the measures so thought it wasn’t a breach of art 6.
The purpose of a fair trial hearing is not merely to improve the chances of the tribunal reaching the ‘right’ decision.
TENSION: Liberty vs national security.
New surveillance act?
DRIPA: data retention and investigatory powers act 2014
Was drafted as a result of the Edward Snowden revelations and the GCHQ line of litigation triggered.
Was immediately challenged. This challenge has been referred to the CJEU as there are significant overlaps with convention rights.
What is the UK in breach of wrt prisoners’ voting rights? For how long has it been in breach? Line of cases?
Protocol 1, Art 3. 11 years.
The ban is not proportional as it is a blanket ban.
Hirst (No 2) - declared unlawful as not proportional. All Dom remedies exhausted.
Frith and others; McHugh v UK; Green and MT v UK - all confirm Hirst case.
UK says lose right to vote as soon as incarcerated, ECtHR disagrees: right is inalienable, shouldn’t lose it just because incarcerated.
Which cases should you contrast the prisoners’ voting ban with?
2 Scottish cases:
Smith v Scott (Scottish case)
Issued a s.4 declaration of incompatibility.
Chester and McGeoch
The SC said s.4 declaration is a discretion and not an obligation. ‘May’ not ‘must’, so SC refused to grant a s.4 declaration of incompatibility.
French case
Thierry Delvigne 2015
French ban is proportionate since not blanket.
The ECtHR has come under criticism for its reasoning in this case.
What is the most recent update to the prisoners’ voting rights debate?
2015: decision of council of europe’s committee of ministers - called upon uk govt to introduce a bill to respond to Hirst, Green, Frith, McHugh
Bill proposal plans have been shelved pending the EU referendum outcome.
What are the three bases to cover for challenges to HRA?
Has the HRA significantly altered the balance between parliament, court, and executive? Critic?
Liberty v National security
Protection of HRs v parliamentary sov
Judicial overreach v parliamentary sov
Think about legal constitutionalism, separation and balance of powers, the appropriate scope of the court’s jurisdiction when assessing the enhanced role of the judiciary.
Tony Bradley
Has the judiciary’s power extended too far?
There has been an increase in criticism by the govt and MPs on the courts - this isn’t a good thing. Press criticism has also increased.
HRA HAS significantly altered the balance between parliament, court and executive. But there is a significant limitation to this change since the remedies provided have no teeth (court has no power to scrap legislation), so the HRA only allows for a weak form of legislative scrutiny. This is a good thing, and there is power in pressure.
Bradley says this is a procedural limitation, rather than a substantive one. So overall thinks courts have gained more power.
