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MELS > Human Rights > Flashcards

Human Rights Flashcards

1
Q

HRA 1998, s 3?

A

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

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2
Q

HRA 1998, s 4?

A

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

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3
Q

HRA 1998, s 6?

A

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

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4
Q

HRA 1998 s 19?

A

A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—

(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

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5
Q

HRA 1998: advantages?

A
  • Makes ‘never again’ a reality (along with ECHR): legislation can’t be passed that isn’t Convention compliant (s 6)
  • Makes claims of breaches of HR actionable in national courts
  • Doesn’t technically impinge on Parliamentary Sovereignty: isn’t entrenched
  • Can be used as a sword or shield: bring claims forward or use it in defence of actions
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6
Q

HRA 1998: disadvantages?

A
  • Creeping authoritarianism?: ECtHR above national courts
  • Narrow scope: only public authorities (YL v BCC) and only the victims
  • is the declaration of incompatibility even effective?: - can cause confusion where legislation is incompatible but is still the law
  • narrow: range of rights don’t cover socio-economic and cultural rights, only civil and political
  • only has vertical effect
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7
Q

HRA 1998, s 7?

A

Makes claims of breaches by public authorities actionable in national courts, but only if they are the victim of said alleged breach

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

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8
Q

HRA 1998, s 2?

A

Obligation to consider but not duty to follow decisions of ECtHR

–

A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
…
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

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9
Q

Human Rights cases?

A
  • Hirst v UK: prisoner’s right to vote
  • YL v BCC: narrow approach to what a ‘pub auth’ is
  • Ghaidan v Godin-Mendoza: ‘reading in’ of words allowed
  • Bellinger v Bellinger: fundamental feature
  • Carlile: proportionality and judicial review
  • Abu Qatada’s Case (2012): deportation and the ECtHR
  • X and Y v The Netherlands: indirect effect
  • Wainwright: s 6 couldn’t be used to create a ‘tort of privacy’, could only develop existing tort law
  • Campbell: proportionality and prisoners’ mail
  • R v A: accusation of rape, Lord Steyn and linguistic strain
  • Bank Mellat: proportionality
  • A v Sec of State for Home Dept: detention of foreign nationals w/o trail: legal constitutionalism + less deference because of rights involved
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10
Q

Proportionality and human rights?

A
  • Lord Reed, Bank Mellat: objective must be sufficiently important so as to justify limitation of a protected right
  • State interference with human rights should be proportionate to the objective that such interference is aimed to achieve
  • was there a less intrusive measure that could have been taken
    e. g. Campbell: reading prisoner mail wasn’t proportionate to the objective of stopping illicit materials being transported into prisons
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11
Q

Free-standing Model?

A

The idea that the UK is not bound by a duty to follow the decisions of the ECtHR in its domestic courts

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12
Q

Absolute, Limited and Qualified rights?

A
  • Absolute: cannot be derogated from, upheld in all circumstances (e.g
  • Qualified: can lawfully be interfered with by the state in special circumstances, only when necessary in a democratic society (e.g. state of emergency or war)
  • Limited: come with exceptions and are restricted in specific situations
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13
Q

Reservations and Derogations?

A
  • Reservations: when a signatory state recognises and announces that some of its legislation contravenes the ECHR
  • Derogations: when a state, in times of war or when there is an extreme threat to the existence of said state, restricts or limits certain rights.
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14
Q

Reservations and Derogations?

A
  • Reservations: when a signatory state recognises and reserves position that some of its legislation is inconsistent with the ECHR
  • Derogations: when a state, in times of war or when there is an extreme threat to the existence of said state, restricts or limits certain rights.
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15
Q

ECHR articles: absolute rights?

A
  • Art 2: Right to life (although not breached in some circumstances involving the state)
  • Art 3: freedom from torture or inhumane or degrading treatment
  • Art 4: freedom from slavery
  • Art 7: protection from unlawful imprisonment
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16
Q

ECHR articles: qualified rights?

A
  • Art 8: right to respect for private and family life
  • Art 9: freedom to manifest your religion or belief
  • Art 10 freedom of expression
  • Art 11: freedom of assembly
17
Q

The ECHR?

A
  • 1950: convention on human rights, Council of Europe (47 states)
  • Articles and 11 Protocols
  • enforced in the UK through the HRA 1998
  • deal with failures of democracy and ethics in 20th century Europe
18
Q

HRA 1998: general?

A
  • Effected in 2000 (Labour govt)
  • statutorily enforces the ECHR in English law: makes Convention rights statutory rights in the UK
  • only parts of the ECHR, however: Arts 2-12 and 14 and arts 1-3 of First Protocol and arts 1 and 2 of Sixth Protocol
  • only VICTIMS of breach + only VERTICAL effect (although, indirect horizontal effect)
  • a claim can be brought in a case where another area is being adjudicated: e.g. contract, employment, tort
19
Q

Why did UK organisations campaign for a UK HRA?

A
  • No sense of ownership of rights: Strasbourg and European:
  • Cases could only be brought to Strasbourg after all UK remedies had been exhausted ECHR Art 35)
  • It took a long time to bring a claim forward: avg of 5 years: HR issues usually pressing
  • expensive: avg of £30,000 to bring a claim all the way to Strasbourg
  • Idea that ECtHR judgement doesn’t change UK law in general
20
Q

What is a public authority?

A

HRA 1998, s 6(3): ‘public nature’ ‘public capacity’ ‘not Parliament’

  • narrow interpretation
  • YL v BCC: private care home funded by public local authority does not constitute a public authority
21
Q

Enforcing HRA 1998 s 3: making compatibility?

A

Creativity: Judges can:

  • ‘read in words’: implying that words are there when a literal approach wouldn’t find them: Ghaidan v Godin-Mendoza
  • ‘read down’ Act’s words: create a narrow scope so words/provision becomes compliant
  • ‘translation’: e.g. Lord Hope in Lambert, where incompatible words are changed and read as if they are compatible
22
Q

Enforcing HRA 1998 s 3: reluctance in making compatibility?

A

Complex: hard to draw the line between interpreting and then creating law/legislating. There must be a point where Parliament steps in

  • interpretation means ‘reading in’ a substantially new provision
  • interpretation conflicts with foundational aim or function, e.g. in Bellinger v Bellinger (judicial deference)
23
Q

Enforcing HRA 1998 s 3: Hansard and compatibility?

A

Reluctance to use Hansard in human rights cases

  • Lord Nicholls: ‘careful not to treat ministerial statements as indicative of the objective intention of parliament’
  • YL v BCC: reluctance to use Hansard to determine scope of ‘public authority’
24
Q

Enforcing HRA 1998 s 3: process of interpreting for compatibility?

A

1) Identify precisely which provision contravenes Convention rights
2) If contravention, don’t have to declare incomp. immediately
- -> std interpretation methods can be used
- -> if not, consider pre-HRA (teleological interp.) or post-HRA: evident intent to contravene (no=teleological interp.)
3) Unable to make compatible: declare under HRA s 4
4) Minister can make amends, HRA s 10

25
Q

Margin of Appreciation?

A

ECHR principle that allows for interpretation to take local variation into consideration: leeway for cultural, social, political differences; wide, judges consider the circumstances the state is in as they don’t want to be seen to be interfering with national issues
- degree of defence for cultural, historical, philosophical reasons

26
Q

Ghaidan v Godin-Mendoza (2004)?

A
  • claimant sought to succeed the tenancy previously held by their late partner, but as they were a homosexual couple, claimant was not eligible to do so as they were not husband and wife
  • used HRA to argue that Rent Act 1977 para 2, sch 1 contravened their right to property (First Protocol, Art 1)
  • Judges ‘read in’ words ‘as if they were’ to make the provision compatible
27
Q

Bellinger v Bellinger (2003)

A

Matrimonial Causes Act 1973: marriage was void if parties are not respectively male and female

  • Could it be interpreted to allow for a MtF transexual to be considered a woman and then marry a man
  • Held: no - doing so would change the foundational feature or fundamental feature of the Act
28
Q

Future of the HRA 1998?

A

Bill of rights?

  • Repealed and replaced with British Bill of Rights: proposal by Conservatives under DC 2010
  • Previous Labour govt: UK Bill of Rights, still tied with ECHR, built on HRA and balance rights with responsibilities
  • NGOs e.g. Justice campaign for more progressive legislation: to cover economic, social, cultural rights: better protection of marginalised groups
29
Q

Enforcing HRA 1998 s 3: restrictive interpretation?

A

Marshall (1998)
- The courts must interpret legislation consistently with Convention rights, only where it’s possible within the scope of established tools of statutory interpretation

30
Q

Enforcing HRA 1998 s 3: expansive interpretation?

A

Hunt (1999): courts are obliged to interpret legislation consistently with Convention rights, except to where it’s manifestly impossible on the legislation’s language.

  • Lord Nicholls: non-compliant literal approach must readily give way except for when this conflicts with a fundamental feature of the legislation
  • incompatibility should only be declared where it’s impossible to create compatibility
31
Q

R v A (2001)?

A
  • accusation of rape
  • defendant tried to bring the sexual history of victim into court:
  • Youth Justice and Criminal Evidence Act prevented this being brought in as evidence, without permission of court
  • Judges, HofL held that this Act went too far: didn’t distinguish relevant history between irrelevant history
  • Legislators went too far, judges tried to rectify
  • -> Lord Steyn had a strong consistency approach: consistency must be achieved, even if the resulting interpretation is linguistically strained
32
Q

When making a human rights breach claim?

A

1) Does the case fall within the ambit of the right? -> s 2: consideration of ECtHR decisions
2) Is interference proportionate: proportionality test
3) Should the court defer to the public authority in question?: principle of deference (margin of appreciation)

33
Q

What affects judicial degree of deference?

A

effort to maintain a fair and balanced society

  • Margin of appreciation
  • When the ECHR itself allows for a balance to be struck between rights and interests; therefore, more deference where the right is qualified
  • More deference where the subject matter is better left to Parliament (e.g. security matters) –> political constitutionalism
  • Less deference where subject matter falls within remit of the courts to decide upon (e.g. right to a fair trial, Art 5) –> legal constitutionalism (A v Sec of State for Home Dept.)
34
Q

Common controversies surrounding HRA?

A
  • National Security v Prohibition of torture: Abu Qatada’s case (2012), A v Sec of State for Home Dept
  • Expression v Privacy: Campbell v MGN (2004)
  • Conflicting morals: Re A
35
Q

The impact of the HRA on the ELS?

A
  • The courts v parliament: judicial creativity, deference,
  • Compatibility: obligatory rule of statutory interpretation and legislative impact
  • Remedy for breaches of HRA: public authorities accountable for actions
36
Q

Conservatives and the HRA?

A

Pledge to scrap it, 2010:

  • To curb its use by foreign terrorists who want to avoid deportation
  • Rectify the issue of it being used more and more, with there often being little regard the interests of society as a whole (e.g. in Hirst)
  • but stay true to the principles UK signed up for aa signatory state of the ECHR (so what difference will actually be made?)
37
Q

ECtHR?

A

Strasbourg

  • not binding on itself
  • not binding on domestic courts, should just be considered in interpretation and decision-making
  • binding in cases brought up to the court: their decision must be followed

MELS (6 decks)

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