Human Rights

Question 1

The United Nations (2)

Answer 1

• Founded 1945 after WW2
• Adopted the Universal Declaration of Human Rights 1948 – ‘a common standard of achievement for all peoples and all nations’

Question 2

European Convention on Human Rights (ECHR) (4)

Answer 2

• Adopted by Council of Europe 1950
• Accepted by all 46 Member States
• Lists many rights and treaties from UN treaties
• European Court of Human Rights (ECtHR) was established by the Convention to hear cases – guarantees the rights enshrined in Convention for everyone under the jurisdiction of a contracting state – enforcement mechanism

Question 3

ECHR as a ‘living Instrument’ (3)

Answer 3

• Human rights are not static – they constantly evolve to reflect changing societal norms and attitudes
• ECtHR judgment are not a binding precedent for each country and is not binding on itself – allows ECHR to change easily
• Tyrer – Sentenced to birching (type of corporal punishment) in Isle of Man where it was acceptable. Argued was type of torture so contrary to Art 3 ECHR – Court decided did violate ECHR and treaty was changing

Question 4

Absolute Rights (2)

Answer 4

Never acceptable to breach this right
Article 3 Prohibition on torture

Question 5

Limited Rights (3)

Answer 5

Can be compromised in certain specified circumstances
Articles 2 and 5
McCann, Farrell and Savage v UK – terrorists passing through Spain intending to attack in Gibraltar. When in Gibraltar UK forces shot and killed them before planting bomb – did not have bomb on them at that time. However, there was no violation to life but UK forces should have acted before they had no option but to shoot them

Question 6

Qualified Rights (2)

Answer 6

Has there been interference with enjoyment of right or freedom that was prescribed by law, pursuing a legitimate aim, necessary in a democratic society?
Articles 8-11

Question 7

Balancing Rights and Freedoms (5)

Answer 7

• Courts determine which right or freedom to be prioritised
• Hatton v UK – Had to balance property rights with public policy/economic necessity (noise of planes at Heathrow Airport was disrupting private life but was economic necessity to UK for Heathrow airport to be extended and more hours for planes to fly – court permitted expansion of Heathrow airport)
• Mosley v UK – Had to balance loss of privacy with press freedom of expression (Head of F1 seeking to prevent publication of pictures of his sex life – ruled newspaper did not have right to publish)
• HRH Duchess of Sussex v Associated Newspapers – argued right to privacy over press freedom of expression – however newspaper still published letter between Duchess and father
• Campbell v Mirror Group Newspapers – newspapers exercised right to freedom of expression when publishing photos of model entering NA meeting when denied had a drug problem (argued in public interest to show that had a drug problem and had lied about it) – Model argued it violated right to privacy

Question 8

Derogations from Treaty (5)

Answer 8

• Article 15 provides when can do so
• Option for country to opt out of articles 2,3,4 and 7)
• Lawless v Ireland – derogation of article 5 allowed Ireland to detain without charge during period of violence in NI
• Brogan v UK – Had not obtained derogation but was still detaining people without charge
• Covid-19 – countries put in derogations as would be taking measures which was contrary to rights and freedoms

Question 9

Subsidiarity (4)

Answer 9

• How rights of ECHR are applied in national courts
• States are the primary obliges in Convention so must ensure rights/freedoms are protected – the European Court has a supervisory role in this
• Handyside - ‘The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights’
  ‘The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted’
• ECtHR respects national sovereignty by allowing country to fulfil rights themselves first

Question 10

Margin of Appreciation (5)

Answer 10

• Incorporated by Protocol 15
• State has discretion to give effect to rights in the context of the national situation
• Handyside – margin of appreciation extended to UK court
• Lord Lester of Herne Hill – ECHR ‘as slippery and elusive as an eel’ (since human rights are decided differently in each individual state, they will never be consistent – no binding precedent)
• ECtHR states that national courts are nest placed to decide matters of national security (more latitude to the state)

Question 11

Bringing a Case to the European Court (ECtHR) (3)

Answer 11

• Outlined in Articles 34-46 ECHR
• Must exhaust all domestic remedies first
• Judgments are legally binding on the government – Committee of Ministers enforces the judgment

Question 12

Results from taking case to Strasbourg (5)

Answer 12

• Friendly settlement – Art 39
• Decision against the state – Art 44
• ‘Just satisfaction’ – Art 41 (similar to comopensation
• Monitoring by Committee of Ministers of implementation
• CofM can return case to the Court if State has not complied with judgment – Art 46(4) (Kavala v Turkey)

Question 13

Civil Liberties (1)

Answer 13

• Civil Liberties – usually passive and requiring that government does not act on something e.g. not stopping freedom of speech, freedom of assembly etc

Question 14

UK Approach before HRA (4)

Answer 14

• Reference to the European Convention could be made to resolve ambiguities in Parliament’s intention
• Ex parte Brind - ‘…it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the [European] Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it.’
• UK has DUALIST APPROACH to international law
• Miller - ‘…treaties between sovereign states have effect in international law and are not governed by the domestic law of any state… [A]lthough they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law.’

Question 15

Introduction of the HRA (4)

Answer 15

• The Labour Government which was elected with a ‘landslide’ majority in 1997 had made a manifesto commitment to ‘Bringing Rights Home’.
• The Human Rights Act was designed to give effect to this, providing a route for determining human rights cases in the UK courts, rather than necessitating most cases be brought before the European Court in Strasbourg
• Tony Blair 1997 – ‘The Bill marks a major step forward in the achievement of our programme of reform. It will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy’
• Sec of State for Home Department 1997 – ‘It takes an average five years to get an action into the European Court of Human Rights… and it costs an average £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.’

Question 16

Section 19 HRA (Parliamentary Sovereignty) (1)

Answer 16

Parliamentary Sovereignty
o Permits Gov to introduce bills which MAY be incompatible with Convention rights – Joint Committee on Human Rights will report on whether legislative provisions meet the convention

Question 17

Section 2 HRA (Interpretation of Convention Rights) (5)

Answer 17

Interpretation of Convention Rights
o Requires domestic courts to take into account European issues when trying to interpret and apply Convention law
o Striking a balance between European and domestic cases:
N v Sec of State for Home Department – deportation of woman receiving medical treatment and argued if she was deported the access to healthcare was less and so would jeopardise her health and right – gov argued that she had no right to stay regardless
D v UK - former prisoner had served sentence and had final stages of AIDS and being deported back to Caribbean meant his life treatment would be diminished. European Court held that he should be allowed to stay in UK
N v UK – ECtHR made decision that N should be deported
o Balancing Act:
Pinnock - Court is not bound to follow every decision of European Court (s2 does not require this). It may be impractical and inappropriate to follow European Court in every situation. European Court is not a higher court, it is only supervisory. Domestic courts only have to take into account European Court decisions, not follow them.

Question 18

Section 3 HRA (Interpretation of Legislation) (3)

Answer 18

Interpretation of Legislation
o Legislation must be read in a way that is compatible with Convention rights ‘so far as it is possible to do so’
o R v A – ‘In accordance with the will of Parliament as reflected in section three it will sometimes be necessary to adopt an interpretation which linguistically may appear strained’ – applies even if there is no ambiguity in the language
o Ghaidan v Godin-Mendoza - same sex couple. Partner died and council was threatening to evict the other partner. Was applying different rights to husband and wife than same-sex partners. Interpreted it for this couple to have the same rights

Question 19

Section 4 HRA (Declaration of Incompatibility) (3)

Answer 19

Declaration of Incompatibility
o Is a last resort – does not change the law but states that the provision is incompatible with the Convention right – pressurises Parliament to change it (links to s10 to allow them to quickly change any incompatible law)
o Bellinger v Bellinger – controversial s11 matrimonial causes act 1973 as determined sex at birth for purpose of marriage – declaration of incompatibility led to Gender Recognition Act 2004
o A and Ors (Belmarsh detainees case) – Anti-Terrorism, Crime and Security Act 2001 introduced to detain without a trial a foreign national who was reasonably believed to be an international terrorist and at risk to UK. Declaration of incompatibility declared that this was incompatible with articles 5 and 15 ECHR

Question 20

Section 6 HRA (Acts of Public Authorities) (8)

Answer 20

Acts of Public Authorities
o Criteria to be a public body:
1. Explicitly includes courts and tribunals (s6(3) HRA)
2. Central gov, local gov, the police, immigration officers, prisons (White Paper, Aston Cantlow v Wallbank)
3. Statutory authority for what is being done (Donoghue v Poplar Housing, Aston Cantlow v Wallbank)
4. Extent of control over the function exercised by another body which is a public authority (Donoghue v Poplar housing)
5. Supervision by a public regulatory body does not mean public body – could be deemed public but activities which are regulated may be private (Donoghue v Poplar Housing)
6. Extent to which the body is publicly funded (Aston Cantlow v Wallbank)
7. Providing a public service (Aston Cantlow v Wallbank)
8. Assumed responsibility in the shape of the state in the public interest (YL v Birmingham City Council)

Question 21

Section 7 HRA (Proceedings) (4)

Answer 21

o Amenability:
s.6 HRA ‘Public Authority’
s.6(3)(b) ‘exercising functions of a public nature’
o Can bring proceedings against the authority through reliance on the Convention right only if they are a VICTIM of the unlawful act – s.7 HRA
o Usually one year time limit – but if bring through CPR it is the ordinary time limit of 3 months
o Standing and NHRIs: National Human Rights Institutions (NHRIs) can take up issues of human rights on behalf of individuals (Equality Act 2006 section 30(3))

Question 22

Section 8 HRA (Judicial Remedies) (2)

Answer 22

o Remedies must be in accordance with ‘just satisfaction’ requirement of Art 41 ECHR
o If bring a case through judicial review, can gain judicial review remedies in CPR but if bring claim through HRA, limited to s8 remedies

Question 23

Section 12 HRA (Freedom of expression) (1)

Answer 23

o Controversial as often have to balance this right with right to privacy with regards to claims against the media

Question 24

Section 13 (Freedom of thought, conscience and religion) (1)

Answer 24

o Settled fears from religious bodies that may be forced to adopt practices contrary to their own to comply with Act

Question 25

Human Rights Awareness Training (Impact of HRA) (1)

Answer 25

• 1998-2000 huge upsurge in training of judges etc as specific obligations were put upon them through HRA

Question 26

Increase in Number of UK Court Cases (Impact of HRA) (9)

Answer 26

• Vertical effect: Against the state
• Increase in Horizontal effect: s.6 explicitly laid grounds for disputes between private parties regarding human rights
  Even if case is between two private parties, the court has obligation to consider human rights (this is how a party could challenge decisions of another private party)
  Ghaidan v Godin Mendoza – court had to give effect to human rights between the two private parties of landlord and tenant
  Campbell v Mirror Group Newspapers – court had to give effect to human rights between the two private parties of newspaper and Naomi Campbell
• Sword and Shield analogy
  Sword – HRA can be used by individuals to challenge public authorities who have infringed their convention rights
  Section 7(1)(a) – outlines requirements to make claim e.g. time limit of 1 year
  Shield – HRA can be used by individuals when proceedings are brought against them by a public authority that breach convention rights
  Section 7(1)(b)

Question 27

Impact on Freedoms of expression and information (Impact of HRA)

Answer 27

• HRA has meant that there is always conflict between art 8 and art 10 ECHR when the press conflict with celebrities over sharing information
• Campbell case – conflict between art 8 and 10
• Venables case – court added lifetime anonymity order to protect the young boys convicted with murder identities as there were death threats out against them (art 2 and 3 rights protected)
• Less use of internet etc when HRA was enacted so further intervention is needed e.g. Online Safety Bill 2023 (currently in HofL) which will impose limitations 0on tech companies to protect online users from harmful content – (however gov have to ensure that these limitations on tech companies are compatible with convention rights)

Question 28

Impact on religious beliefs and practices (Impact of HRA) (4)

Answer 28

• Section 13 HRA had to ensure it would not restrict religious freedoms
• Strengthening of protection for religions and beliefs since HRA 1998 e.g. Equality Act 2010 and Racial and Religious Hatred Act 2006 inserted part 3A into Public Order Act 1986
• Regina v Governors of Denbigh High School – prohibition on wearing jilbab in school. Court said limitation on freedom of religion/belief was acceptable so long as it was proportionate
• Eweida v British Airways – employee prohibited from wearing cross necklace as against uniform policy – EctHR said rights violated and upheld her freedom of religion as BA had not reached fair balance between religious beliefs and corporate appearance

Question 29

Impact on deportations/extraditions (impact of HRA) (4)

Answer 29

• Art 8 – claim cannot be extradited to another country as family and life is in UK so deportation would violate art 8
• Art 3 – UK can be liable if they know there would be a strong chance of torture when sent to another country
• Hesham Ali - Entered UK from Iraq (unlawful entry) and failed to be recognised as a refugee. Had drug conviction and sentenced to 4 years. When released the UK sought to deport them back to Iraq as were not recognised as a UK national. Argued Article 8 right to family life meant should be allowed to stay in UK. Supreme Court argued that public interest in deportation outweighed Article 8 right.
• Abu Qatada cases - If AQ was dispatched back to Jordan and Jordan was keen to receive AQ as wanted for multiple crimes in Jordan. However was risk if deported as Jordan would expose him to torture when on trial and imprisoned so would not be appropriate for UK to deport him. UK only allowed to deport him once made agreement with Jordan that any confessions obtained under torture would not be used in his trial

Question 30

Impact on Judicial Review Proceedings (Impact of HRA) (7)

Answer 30

• Section 6 sword and shield right to defend or challenge rights via judicial review
• UK Courts have evolved principle of ‘deference’ – UK courts will defer to Parl to make decision not the courts to respect PS
• Proportionality (Bank Mellat):
  … objective is sufficiently important to justify the limitation of a fundamental right;
  …rationally connected to the objective;
  …a less intrusive measure could have been used; and
  …. a fair balance has been struck between the rights of the individual and the interests of the community.
• Bank Mellat: Strasbourg court recognised that it may be less well placed to decide if a fair balance has been struck in the national context than a national court (‘deference’/margin of appreciation)
• Nicklinson case – Tried to apply to court to get declaration that legal regime for assisted suicide is incompatible with art 8 right to respect family life. Supreme Court held that this was a decision for Parliament not the courts. Took claim to ECtHR but said that it would be inappropriate for them to interfere due to the sensitive issues raised and Parl was best placed to make decision
• Belmarsh Detainees case –
  Lord Bingham - It is the function of political and not judicial bodies to resolve political questions
  Lord Reed – courts should intervene in matters like liberty, checking that the political decisions were proportionate
• COVID-19 RESTRICTIONS (Dolan case) – restrictions of art 11 were permitted as were under the prescribed laws and were proportionate

Question 31

Impact on Parliamentary Sovereignty (Impact of HRA) (5)

Answer 31

• Section 19 HRA
• House of Lords Reform Bill 2012 – unable to make a declaration of compatibility under section 19 HRA but still proceeded with the Bill regardless
• Devolution Agreements –
  Devolution agreements included requirement for any legislatures created to act in accordance with convention rights
  Scotland Act 1998 (Scottish Executive has no power to make any subordinate legislation so far as it is incompatible with any Convention rights) came into force before HRA so first cases on convention rights were on devolved measures
  Gender Recognition (Reform) Scotland Bill 2023 – triggered section 35 Scotland Act 1998 meaning Westminster can block bill for Royal Assent – shows Westminster gov still have authority over devolved governments and ensures they do not go beyond their powers

Question 32

Original Aim of the HRA (1)

Answer 32

• Labour gov at time - ‘bring rights home’ – saves people delays and expense involved in taking case to ECtHR and can influence the development of case law on the convention on basis of familiarity with UK laws and practices

Question 33

Response of Reform Proposals for HRA (2)

Answer 33

• Joint Committee on Human Rights:
  ‘the Government should not proceed with this Bill: 1. it weakens rights protections, 2. it undermines the universality of rights, 3. it shows disregard for our international legal obligations; 4. it creates legal uncertainty and hinders effective enforcement; 5. it will lead to an increased caseload in Strasbourg; and 6. will damage our international reputation as guardians of human rights….’
• Following Dominic Raab’s departure from Government, the proposed Bill of Rights has been ‘scrapped’ and are not continuing to pursue it (May 2023)

Question 34

Affirm Parliamentary Sovereignty over Strasbourg (Reasons FOR Replacing HRA with Bill of Rights) (2)

Answer 34

• Bill of Rights 2022 (Clause 2)
  Repeals s3 HRA about courts having to give effect to Convention rights and instead insures decisions about Convention rights are made by Parliament
• Bill of Rights 2022 (Clause 3)
  National court may not adopt interpretation of right that expands protection conferred unless have ‘no reasonable doubt’ that ECtHR would also adopt that interpretation
  National court (subject to above point) may adopt interpretation that diverges from Strasbourg jurisprudence

Question 35

Creating ‘Universality’ of Rights and Freedoms (addressing public concerns)
(Reasons FOR Replacing HRA with Bill of Rights) (4)

Answer 35

• Concern over judges going too far in making the law (s3 HRA)
  Elan-Cane case – Courts were asked to consider application requesting right to have a gender neutral passport. It would be against human rights to deny the request – it would be going too far for the courts to change the interpretation for the law, it was up to Parliament to change the law
• Concern over police powers going too far
  Leigh & Ors case – Protests/vigil for Sara Everard due to happen in London when Tier 4 lockdown – police interfered to break up protests. Found police acted unlawfully – proportionality (it was unclear that infringement of articles 10 and 11 had been prescribed clearly by law. Had not considered the reasonable excuse to exercise article 10 and 11 rights)
• Public Concerns
  Consultation response June 2022 – ‘Our proposals for the Bill of Rights focus on creating a domestic framework that strikes the proper balance of rights and responsibilities, individual liberty and the public interest, judicial interpretation, and respect for the authority of elected lawmakers’
  Bill of Rights Bill ‘explanatory Memorandum’ –
  ‘The Bill will protect people’s fundamental rights while safeguarding broader public interest and respecting the will of elected representatives in Parliament’

Question 36

Criminality Concerns (Reasons FOR Replacing HRA with Bill of Rights) (5)

Answer 36

• Deportation of foreign criminals post-sentence
  ‘Afghan hijackers case’ - Hijackers hijacked plane and landed it in Stanstead airport – were arrested and sentenced to 5 years imprisonment. Could they remain in the UK after serving sentence? – gov had given men ‘temporary leave to remain’. Courts used human rights argument to defend the hijackers right to remain in the UK. This was contentious
  2015 Conservative Party Manifesto – ‘the Bill will stop terrorists…from using spurious human rights arguments to prevent deportation’
• Asylum and determination of refugee status – interpretation and application of ‘family rights’
  Soering case - German man in US murdered gf’s parents. UK asked US to give assurance that if extradited would not be subject to death penalty. Would be contrary to Article 3 if extradited when UK knew risk of death penalty
  Hesham Ali - unlawful entry to UK from Iraq. refused refugee status. Had drug conviction and sentenced to 4 years. when released Uk sought to deport back to Iraq. Public interest in deportation outweighed Article 8 right
• Prisoners’ voting rights
  Hirst (No.2) v UK – Concerned whether prisoners could vote or not – under law, prisoners are not allowed to vote but Hirst argued they should be allowed – Protocol 1 Convention provides the basics of democratic voting

Question 37

The Relationship Between UK Courts and ECtHR (Reasons AGAINST replacing HRA with Bill of Rights) (2)

Answer 37

• Joint Committee on Human Rights
  Do not support gov’s proposals to weaken obligation in s2 HRA for UK courts to take into account judgments of ECtHR. Risk of human rights law being unable to change and evolve in modern society. Would lead to legal uncertainty and claimants may need to pursue claims before EctHR more often due to difficulties in enforcing human rights in UK
• Baroness Sarah Ludford
  Proposed Bill of Rights would make more cases go to Strasbourg
  ‘We’d be back to where we were 25 years ago with people having to go to Strasbourg to get their rights enforced because they didn’t have the channels of redress under UK domestic laws’

Question 38

Devolution Concerns (Reasons AGAINST Replacing HRA with Bill of Rights) (3)

Answer 38

• Joint Committee on Human Rights
  ‘Given the importance of the HRA in the devolved nations, we are concerned that the Government proposals could have unintended consequences for the constitutional settlement in the UK.’
• Professor Francesca Klug
  ‘A new Bill of Rights, which mandates the courts to override or ignore certain ECHR principles is indeed likely to breach the Good Friday Agreement as well as create legal confusion, not just in Northern Ireland, I should say, but in Scotland and Wales, where the ECHR is also part of the devolution settlement quite separately from the Human Rights Act, but would now apparently, be interpreted differently depending whether you’re looking at this new Bill of Rights or the original devolution law’
• Inconsistency between devolved nations and England as Westminster could repeal HRA and act contrary to it but the devolved legislatures are bound by it as part of their devolution agreements and so would not be able to act contrary

Question 39

Impact on Universality of Human Rights (Reasons AGAINST replacing HRA with Bill of Rights) (2)

Answer 39

• Joint Committee on Human Rights
  Limiting scope for human rights arguments in deportation cases would make it virtually impossible for the courts to conduct the balancing and proportionality exercise, denying those subject to deportation full Convention rights – would man that the fundamental principle of human rights being universal would be undermined
• Professor Francesca Klug
  ‘the bill would introduce a new hurdle for individuals seeking to claim their rights in the courts known as a permission stage. Now, there are already defined limits of eligibility before someone’s case can be heard under the Human Rights Act, but this extra new filter requires claimants to demonstrate they have suffered a significant disadvantage, which shifts the burden onto them to demonstrate the merits of their claim before case has even been heard’