Human Rights Act 1998

Question 1

What is the ECHR?

Answer 1

The European Convention on Human Rights
– Drafted and negotiated with the Council of Europe (not the EC/EU)
– 15 original ratifying states but now 47
– Established the ECtHR in Strasbourg
– UK ratified in 1951 but only incorporated into domestic law in HRA 1998

Question 2

Will Brexit mean the UK will leave the ECHR?

Answer 2

No

Question 3

How were rights protected in the UK before the HRA?

Answer 3

A model of ‘residual liberty’, i.e. you are free to do anything provided the law does not forbid it

Question 4

What is s 3 of the HRA?

Answer 4

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 Convention rights

Question 5

What is s 4 of the HRA?

Answer 5

If a provision is incompatible with a Convention right (and cannot be read down under s 3), the court may make a declaration of incompatibly

Question 6

What happens after a s 4 declaration of incompatibility is made?

Answer 6

– Gives a Minister power (but not obligation) to make a remedial order
– Incompatible primary legislation could be amended using the normal legislative amendment procedure
– The Minister/Government may do nothing

Question 7

What was significant about the case Ghaidan v Godin-Mendoza (2004)?

Answer 7

Rent Act 1977 (amended by 1988 legislation) was incompatible with ECHR, so blatantly clear terminology in the Act was given a different meaning by the Courts

Question 8

Are UK courts bound by the interpretation of Convention rights adopted by the ECtHR?

Answer 8

No

Question 9

What was significant about the Belmarsh detainees case?

Answer 9

– 9/11 emergency legislation allowed non-national suspected terrorists to be held indefinitely without trial if they could not be deported
– Courts made a declaration of incompatibility and the Act was subsequently amended

Question 10

What was significant about the case Hirst v UK?

Answer 10

– The Representation of the People Act 1983 prevented any convicted person who was incarcerated from voting at an election
– Hirst’s case at the High Court was rejected as not being in breach of Convention rghts
– Hirst went to ECtHR who ruled that it breached Article 3 ECHR