Human rights

Question 1

Intro:
What are human rights?
What are human rights often described as?
What does the HRA incorporate?

Answer 1

Human rights are fundamental freedoms that all humans should have like the right to privacy.
Inalienable - cant be taken away.
Universal - apply to everyone.
Interdependent - each relies on the other.
Incorporates most of the rights from ECHR into UK law.

Question 2

Before the HRA, what protection was there?
What have the Uk benefitted from?
Evaluative point - case?

Answer 2

Before, limited protection.
Uk have benefited from residual freedoms - what allowed to do not set out, what cant do is in the law.
Can be difficult to enforce as seen in Malone where the court held telephone tapping could be justified and was not recognised in English and welsh law.

Question 3

Prior to the HRA, the UK was what?
What was granted in 1966?
Evaluation point?

Answer 3

Signatory of the ECHR - not argue human rights in English and Welsh courts but had to apply to ECHR in Strasbourg.
Individual Petition 1966 - allows UK to argue cases in Strasbourg. Only available when the person had exhausted all domestic remedies.
Inaccessible to many, not enough time or money to go through long and expensive process.

Question 4

What happens even if individuals could afford to take their cases to the ECHR? case?

Answer 4

Any decision made would not always have a positive impact on fundamental rights protection as seen in the Malone case.
won his case for breach of privacy in the ECtHR, the Government responded by introducing into Parliament a law which explicitly allowed telephone tapping undermining the right to privacy. 

Question 5

What is the convention? When did they sometimes respond positively? Case?

Answer 5

Not binding in the UK as shown in R v Secretary of State ex parte brind.
Sometimes respond positively to ECHR rulings in Thalidomide case - contempt of court act 1981 passed after ECHR declared our common law illegally removed article 10.

Question 6

When did the HRA come into force?

Answer 6

2 October 2000.

Question 7

What was S.7?
Case?
Evaluative point?
2 cases?

Answer 7

Argue Human rights in domestic courts when the claim was brought within a year.
Steinfeld and Keidan v SSID - DOI in relation to the civil partnership act 2004 preventing opposite sex couples from entering a civil partnership. Incompatible with Articles 8 and 14.
Great impact on human rights - making it more affordable and accessible.
Example = Gillan and Quinton - stopped and searched with no grounds for suspicion. Changed anti terrorism laws.
S and Marker changes the law on retention of DNA.

Question 8

What is S.19?

Answer 8

All legislation should have a statement of compatibility. Meaning before a second reading, a minister must declare whether it’s compatible with the ECHR.

Question 9

Why is S.19 heavily criticised?

Answer 9

S.19 (b) - pass law without declaring compatible.
Examples - Local government bill and communication bill.
protection can be easily undermined as do not always need to be compatible.

Question 10

What is S.3?
Case that sets down the rues of interpreting laws?
When can changes also be made?
What cant judges do? Shown in what case?

Answer 10

Judges must attempt to interpret the law compatibly with the ECHR ‘as far as it is possible to do so’ which should maintain Parliamentary sovereignty’.
Ghaidan v Godin-Mendoza - word ‘spouse’ was interpreted to include same-sex partners.
Restricting the meaning of a word to one definition or using a wide definition. Judges can even add words.
Judges are not allowed to change fundamental parts of the law - use s.4 instead.
Anderson - Home Secretary in setting tariffs for mandatory life sentences.

Question 11

Why is S.3 criticised?
Case? what does this undermine?
Whats a recent reform?

Answer 11

Criticised - unelected judges too much power and it undermines Parliamentary sovereignty.
R v A , Lord Steyn rewrote s.41 Youth Justice and Criminal Evidence Act (1999) to admit evidence of previous sexual history for fair trial. Undermines Parliamentary sovereignty.
Parliament is the only body with the authority to change the law.
Reform - s.3 should be replaced so that Parliament has a greater say in the interpretation of laws. Conflicts with the doctrine of the separation of powers. Independent judges are best placed to interpret laws and decide whether a restriction is proportionate or not. 

Question 12

What is S.4? What is S.10?

Answer 12

Declaration of incompatibility may be issued. Offending legislation is sent back to parliament often using the fast track procedure under S.10.
Bellinger v Bellinger - DOI against a law preventing transgender people from marrying, which illegally removed Article 8. Led to the Gender Recognition Act (2004).
Can undermine the protection offered to human rights.

Question 13

Whats a criticism of S.4?
What is S.10(2)?

Answer 13

Judges cant strike down primary laws - undermining the protection offered to fundamental rights. Can issue a DOI, no guarantee it will be acted on.
S.10 2 - Ministers to initiate the ‘fast track’ when there is a compelling reason, and a DOI is not always considered a compelling reason. HRA does not always protect fundamental human rights as incompatible acts could continue removing human rights.

Question 14

What is S.6?
What is a public function? examples?
Whats a hybrid body?
Case?

Answer 14

Sue a public authority.
Court or tribunal and any person whose function is certain of whose functions are functions of a public nature.
E.g - NHS, Police and other organisations funded by the taxpayer.
Hybrid sued when performing public. Difficult to define.
YL v Birmingham CC - private care home housing local residents paid by taxpayer. Not hybrid.

Question 15

Can private bodies be sued?
Case?
Evaluative point?

Answer 15

Sued using the implied horizontal direct effect - take to court for a British law like contract and then claim human rights during the case.
Court must hear as they’re a public body.
Douglas and Jones v Hello!
major impact on the protection of fundamental human rights in the UK as it (indirectly) allows individuals to sue both public and private bodies, ensuring that a wide variety of organisations comply with human rights as they do not want to be sued.  

Question 16

What is S.2?
What are the precedents? Confirmed in what case?
Not be followed? case?
Why is this section criticised?

Answer 16

‘take into account’ precedents set by the ECtHR.
Precedents are strongly persuasive but not legally binding as confirmed by the case of Alconbury Ltd.
ECtHR precedents not be followed if conflicting domestic precedent, as shown in Leeds City Council v Price unless the domestic ruling is blatantly removing human rights.
Criticised - affordability problems may occur again as people may end up taking their cases all the way to the ECtHR after not getting the answers they want in domestic courts and so vulnerable individuals may be unable or reluctant to take their cases to the ECtHR. 

Question 17

Under S.2, when should the ECHR precedent be followed?
Case?
Why has it been criticised?

Answer 17

Ullah  - ECtHR is clear and there are no domestic precedents, then the ECtHR followed. Often applied by the Supreme Court anyway.
Re P and Others - preventing unmarried couples from adopting.
Despite the clear wording of s.2, judges have been criticised for giving too much weight to the decisions of the ECtHR.
S.2 has also been described as a ‘rogue section’ by the former Attorney General, Dominic Grieve.
Government’s current consultation on the HRA - amend s.2 so that judges have regard to the rights in the ECHR and domestic court decisions only.
Unnecessary as only persuasive.

Question 18

What type of act is the HRA?
case?
Repeal?

Answer 18

Ordinary act of parliament.
HRA - major problem due to parliamentary sovereignty.
Parliament could repeal whenever and HRA revert back to pre October 2000. Still have ECHR protection but more limited undermining protection.

Question 19

When did the HRA become more controversial?
Placed under pressure by whom?

Answer 19

9/11.
Placed under pressure by the right wing press and conservative party - used by suspected terrorists like Abu Qatada and was stopping counter terrorist measures .

Question 20

who can a claim be brought by?
Why would people by unwilling?
Partially solved by who?
What have critics said?

Answer 20

Victim - directly affected by alleged infringement.
Unless pressure groups/trade unions are directly affected they cant lodge claims. Problems as unable/unwilling to bring claims to court without support.
Partially solved by the Commission for Equality and Human Rights (CEHR) which was created by Part 3 of the Equality Act 2006.
CEHR doesn’t actually resolve this issue though, can only promote and monitor human rights and can’t investigate or enforce changes when human rights are breached. They can, on the other hand, advise and assist victims.  

Question 21

Why are UK rights limited?
3 types of rights?
which can easily be removed?
Therefore what can be said?

Answer 21

Protection of rights in the UK are limited due to the way rights are formulated. There are three types of rights: absolute rights (which can never be removed), limited rights (which can be removed only under specific situations listed in the article), and qualified rights (which can be removed as long as the removal is set down in law, necessary and proportionate).
Limited and qualified rights can quite easily be removed – freedom of assembly, among others, was removed at the height of the COVID-19 pandemic. It could be argued therefore that the HRA does not provide that much protection because most rights in the HRA  are non absolute. 

Question 22

One reform was a bill of rights - what is it?
Prominent topic since when? Looks at what?

Answer 22

Repealing  the HRA and replacing it with a Bill of Rights.
The Bill of Rights has been defined as ‘a document which protects the fundamental freedoms of individuals’. Prominent topic since Panel of the Independent Human Rights Act Review (IHRAR) was established in December 2020 to look at the relationship between UK and ECtHR courts and the impact the HRA has had on relationships between the judiciary, the government and Parliament.

Question 23

When did the IHRAE publish their report? What did the government propose?
5 key areas?
After it ended?
Change?

Answer 23

IHRAR published their report on the HRA on December 14th, 2021, and the government proposed a consultation to overhaul the HRA at the same time.
Looks at five key areas: respecting our common law traditions and strengthening the role of the UK Supreme Court; restoring a sharper focus on protecting fundamental rights; preventing the incremental expansion of rights without democratic oversight; introducing responsibilities within the human rights framework; and facilitating dialogue with Strasbourg, while guaranteeing Parliament and the devolved legislators their proper roles. Report summing up the responses and conduct an impact assessment to check how any changes would affect different groups of people. Change the HRA, a Bill must be proposed.

Question 24

Conclusion?

Answer 24

Hugely positive.
39 declarations of incompatibility have been made (as of July 2018) with only 10 of these being overturned on appeal. These figures are beyond those predicted by the then Lord Chancellor, suggesting that judges are willing to embrace human rights law whereas before the HRA was implemented they were less likely to be open to human rights arguments, showing that the HRA has had a positive impact on protection of human rights in the UK.