Human Rights Flashcards
When was the European convention on human rights established?
After the Second World War
Why was the ECHR established?
To prevent to atrocities of the war happening again
What are the main rights you need to know for the exam?
Article 2 - right to life
Article 6 - right to a fair trial
Article 10 - freedom of expression
Article 12 - right to respect for private and family life
When was the convention ratified?
1953
What happened in 1953?
The ECHR was ratified
Initially, why did the uk no want to incorporate the ECHR into its domestic legislation?
Because it would not be bound by the decisions made in the court in Strasbourg
What was established in 1951?
The European court of human rights and grand chamber
When was the The European court of human rights and grand chamber established?
1951
What is the role of The European court of human rights and grand chamber?
It handles claims made by one state against another and by individuals against a state
What did the uk agree to in 1966?
The right of individual petition
When did the uk agree to the right of individual petition?
1966
What is meant by ‘individual right to petition’ ?
A case cannot be taken to Strasbourg unless all domestic remedies have been exhausted and the case has been filed within 6 months of the final domestic decision
What act was created in 1998?
The human rights act
When was the human rights act created?
1998
What was a key element of the labour party’s manifesto?
The human rights act 1998
What was the governments White paper which included the human rights act 1998 called?
Rights brought home
What was the aim of rights brought home?
To create a human rights culture
What was the purpose of the human rights act 1998?
For the ECHR to be incorporated into domestic law
What does s7 of the human rights act 1998 allow?
For an individual to take their case into uk courts rather than having to apply to Strasbourg (if their case involves their rights)
With s7 in place what purpose does the ECHR have to the uk?
It acts as a last resort appeal court
What does s2 of the human rights act state?
It requires judges to consider previous case law from the ECHR however they are not bound to follow it
What is the problems with s2?
It creates a weak obligation upon judges and therefore is near enough pointless
What does s3 of the human rights act 1998 set out?
The court to interpret and subordinate legislation in a way which is compatible with the convention rights ‘so far as is possible to do’
What is the problem with s3?
The terminology is wide
What case is relevant to s3?
Ghaidan v Godin-Mendoza (2004)
What happened in the case of Ghaidan v Godin-Mendoza (2004)?
The case concerned the succession to a tenancy of the spouse of the deceased. Under the literal rule, the applicant could not benefit as he was homosexual. It was found this was contrary to article 8 (right to privacy) and article 14 (the right to freedom from discrimination)
What is an example of the problems with s3?
In the case of Re A the House of Lords rejected the use of section s3 because it undermined a fundamental feature of the children’s act 1989 (child’s welfare comes first) (contrary article 2 right to life)
What does s4 of the human rights act state?
It allows for the courts to make a declaration of incompatibility if the human rights act is not compatible with domestic law
What do the government do in response to a declaration of incompatibility?
Change the law. The law is still valid until parliament have formally changed it
What is an example of s4 in use?
Wilson v first country trust
What happened in the case of Wilson v first country trust?
The House of Lords issued a declaration that a provision of the consumer credit act 1974 was incompatible with the convention
Briefly, what are the advantages of the human rights act 1998?
It has enabled individual liberties to be protected
It has improved access as cases can be pursued in uk courts
It prevents conflict between uk and international law
Strasbourg can be utilised as a further court of appeal and this another check on the uk government ensuring democracy
Briefly, what are the disadvantages of the human rights act 1998?
It gives judges too much political power
Insufficient power of s4
Nothing to prevent the human rights act being replaced by a future government
Explain why people feel the human rights act gives judges too much political power…
Unlike parliament the judiciary is not elected and should not make such political decisions as seen in Secretary of State for the home department v jj
What is the argument that human rights does not give judges too much power?
Judges have to make sensitive decisions all the time and it is essential that the government can be kept in check by the judiciary
What is the problem with s4?
It gives judges insufficient power as s4 only enables them to make a declaration and not allow them to completely strike out a statute (but if they could do this they’d have to much power)
What is the problem with the fact that the human rights can be removed by another government?
It’s a limited constitutional safeguard. The way legislation has adapted could become pointless at any time because it could be removed
What was established in 2007?
The commission for equality and human rights
When was the The commission for equality and human rights operational?
2009
What was operational by 2009?
The commission for equality and human rights
What is the role of the commission for equality and human rights?
It’s responsible for providing legal advice and guidance, conducting enquiries, bringing cases and monitoring the compatibility of domestic law with the ECHR
What was suggested by the Conservative party?
Repealing the human rights act and replacing it with a British bill of rights
Briefly what would be the advantages of a British bill of rights?
The bill of rights would provide a control of the executive
It would allow an incompatible section to be cut out
It could not be over ridden
A new bill could allow for more modern rights
What are the disadvantages of a British bill of rights?
It’s unnecessary because our rights are already adequately protected
Once entrenched it would be difficult to change
It would be difficult to draft
Would only be as effective as the new government that underpins it
It would give huge power to the judiciary and make them overly political. This is questionable as they are not elected
