Human Rights Flashcards
Fundamental Rights - debate
Hobbes = the state of nature is wothout rights
Bentham = the law creates rights
Dworkin = there should be some fundamental rights
Loke = limited government
Human Rights Origin
Entick v Carrington
= there must be a statute or common law authority that gives ministers their powers
– developed by the Padfield principle = ministers must use powers as intended
Fundamental rights cases
- UNISON = access to justice is a fundamental right, as it is ‘inherent in the rule of law’ [Lord Reed], so raising employment tribunal fees is unlawful
- Simms = Parliament can ‘legislate contrary to fundamental human rights’ [Lord Hoffmann], if clearly in express words = principle of legality
Fundamental Human Rights include freedom/liberty - Osborn v Parole Board: written representations rather than oral hearings as economic hardship, Lord Reed said to find the resoirces as oral hearings are a better form of protection as it leads to better decision-making
- Doody = representation to HS
Human Rights Act 1998
- Encorporates the ECHR into domestic legislation
- Schedule 1 = articles
- Schedule 2 = remedy orders
- Schedule 3 = derogation and reservation
- Schedule 4 = judicial pensions
- Key provisions = section 2(1) (interpretation of convention rights), section 3 (interpretation of legislation), section 4 (declaration of incompatibility - it is not binding), and section 6(1) (acts of public authorities - they must act in a way compatible with this Act and teh Convention)
- The Joint Committee on Human Rights scrutinises bills for their compatibility
Margin of Appreciation
There is flexibility to find balance - a degree of discretion to account for varying legal and cultural traditions
Departure from the ECHR = German Consititutional court said that if there was a clash between core German consitiutional principles and EU law, they would not give primacy to EU law
+ R v Horncastle = the SC declined to follow ECHR
Reform
- The Labour Party manifesto 2024 = clear pledge to remain a member of the ECHR
- The Conservative Party manifesto 2024 = ‘stop the boats’ with the Rwanda policy, and if forced to choose between security and following the ECHR, they would choose security
- Reform UK Party Manifesto 2024 = they pledge to leave the ECHR
Conflict between the Supreme Court and Parliament
- Rwanda =
AAA (Syria) v Home Secretary held that the rewanda policy was unlawful
Vs. Parliament responed with the Safety of Rwanda Act 2024 = forced the SC to declare Rwanda a safe country, when immigration cases arose, although this was repealed by the new government, before the SC could respond - YL v Birmingham City Council and Others = HoL held that private care homes were not a public authority, Parliament passed the Health and Social Care Act 2008 so they legislates to include them, so that they were covered by teh HRA
- Nicklinson [right to die case] = left it to Parliament
