Human Rights

Question 1

Pre-HRA 1998

Answer 1

• Under the common law, a wide measure of individual liberty was guaranteed by the principle that citizens are free to do as they like unless expressly prohibited by the law.
• This was the “civil liberties” approach.

Question 2

Civil liberties in the courts

Answer 2

Access to justice:

• Witham: interpretive principle to remove court fees.
• Anisminic: interpretive principle to circumvent ouster clause.
• Leech: censor letters to solicitors.

Freedom of expression

• Simms: indiscriminate ban on journalists in prison was unlawful.

Rule of law

• Pierson: refusal to change tariff contrary to principle of non-retrospective increase of citizens.

Question 3

ECHR incorporation

Answer 3

• The ECHR was incorporated into the UK through the HRA 1998.
  s3: required courts so far as possible to read and give effect to legislation in a Convention-compatible way. Note s3(2)(b) - no horizontality
  s4: allows the courts to issue declarations of incompatibility.
  s6: requires the public authorities to act compatibly with Convention rights - Convention rights have become a ground of review.
  s19: before a Bill’s second reading, the Minister must make a statement of compatibility or explain why Parliament should enact the Bill anyway.

Question 4

How far should the courts go - s3

Answer 4

• Marshall argues that it is a misguided power, confusing legislative and judicial functions.
• Allan believes Marshall’s comments to be based on misapprehension. Legislation should be read in accordance of the standards of fairness and justice. s3 is tapping into a deeper common law constitution that the courts were already upholding.

Question 5

HRA and the constitution

Answer 5

• Klug: the answer is to be found in the dialogue between the executive, legislature and the judiciary.
• Irvine: legally, there is no undermining of Parliamentary sovereignty. Politically:
  s3 - affects the scope of Parliamentary sovereignty
  s4 - political undermining (Ghaidan)
  s19 - political pressure
• Irvine: the rule of law has been affirmed by greater responsibility tow courts.
• Jowell: major shift in the constitution: substantive rule of law endorsed.
• Allan: sees the rule of law as a dangerous distraction from rule of law principles.

Question 6

Ghaidan and s3

Answer 6

Lord Nicholls:

• The s3 obligation is a strong one. It is possible to depart from the intention of Parliament.
• The courts are limited to what is possible: the meaning imported through s3 must be consistent with the overall concept of the legislation.
• The meaning must not conflict with essential principles.

Lord Millett:

• Placed more emphasis upon the wording of Parliament.
• He examined the legislative history to come to his dissenting judgment.

Question 7

Doctrine of deference

Answer 7

The doctrine involves the court yielding its judgment to another legitimate part.

• Laws points out that tallows the resolving of the tension between PS and HRA.
• Klug argued that if ss 3 and 4 are correctly applied, there is no need for the doctrine.
• Lord Steyn held that it is not abdication of responsibility.
• Hunt and Allan are critical of the doctrine.

Question 8

Repeal of the HRA?

Answer 8

• Masterman and Wheath: the common law is more resilient than often credited and is resurgent as a vehicle for protecting human rights.
• Gearty and Clayton: are more sceptical - the common law cannot on current principles replicate the positive rights created by the HRA.
• Lady Hale: UK constitutionalism is on the move, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of inspiration.

Question 9

Common law constitutional principles

Answer 9

Recently, SC has places renewed emphasis upon the common law as a source of fundamental constitutional values and rights.

• Osborn: the board had breached both its common law duty of fairness and art 5(4) in refusing an oral hearing.
• Scott: demonstrates the resilience of the common law as a protector of rights.
• A (no.2): third party torture evidence would be withheld from consideration: the common law even on its own “compelled the exclusion… as unreliable, unfair and offensive to ordinary standards of humanity and decency”.
• Kennedy: obiter the SC mentioned how C could have relied on the common law requirement of openness rather than the ECHR breach.
• A v BBC: the court has common law powers to prevent publication of a party’s name in a legal proceeding. Open justice should be the starting point.
• Moohan: Lord Hodge - it is very likely that the common law, informed by democracy/separation of powers/international norms would declare legislation restricting the franchise as unlawful.
• AXA: (obiter) SC would be willing to strike down devolved legislature contrary to the rule of law.

Question 10

Limitations of the common law

Answer 10

Elliott:

• Normative reach: there is rule of law and cultural value in having rights clearly expressed.
• Protective rigour: lack of s4 at common law level. Would the courts uphold their obiter comments? There is no guarantee.
• Constitutional resilience: ECHR have international significance giving them a stronger effect. In contrast, common law is domestic. There may not be as great a political/international incentive for conformity.