Human Rights Act 1998 Flashcards
1
Q
HRA incorporates provisions of ECHR into domestic law
A
- designed to ensure every domestic court and tribunal is obliged to declare common law, interpret statutes, review administrative decisions consistently with Convention rights, grant remedies
- while UK signed since fifties, not given binding force domestically so individuals had to go to ECtHR which was politically embarrassing for gov.
2
Q
History of incorporation of ECHR law in UK
A
- recommended by early Fabian Society pamphlet in sixties
- Bingham gave address on ECHR in 1993 arguing for incorporation into UK domestic law, said common law unable to protect citizens against increasing power of executive
- Labour election manifesto 1997 promised gov committed to protection of human rights, led to enacting of HRA came into being a year later
3
Q
Rights covered by HRA
A
- Section 1 HRA gives effect to ECHR rights and freedoms in domestic law
4
Q
Main provisions of HRA
A
- three new obligations:
- in determining legal questions, including common law development, courts must take into account relevant ECHR case law: HRA 1998 s2
- legislation must be read and given effect in a way that is compatible with ECHR rights: HRA 1998 s3: if this is not possible, court can make declaration of incompatibility: HRA 1998 s4
- unlawful for ‘public authorities’ to act in way incompatible with ECHR rights: HRA 1998 s6(1)
5
Q
Strasbourg Jurispurdence
A
- HRA s2(1): provides UK courts and tribunals have obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with ECHR right
- first decision to consider this was R (Alconbury Developments Ltd) v SoS for Environment - HoL held that while case law of ECtHR not binding, domestic courts should follow clear and consistent jurisprudence unless special circumstances
- R (Ullah) v Special Adjudicator - made following comments: Bingham said duty of national courts to keep pace with Strasbourg jurisprudence as it evolves over time, no obligation to do more or less
6
Q
Strasbourg jurisprudence: mirror approach
A
- Klug and Wildbore first discussed
- example in SoS for Home Sec v AF, AM and AN: law lords followed ECtHR decision in A v UK dealing with question of withholding closed evidence from terror suspect and right to fair trial, departed from own previous decision in SoS for Home Dep v MB
- Lord Hoffman disagreed with Strasbourg’s decision and felt it to be wrong but felt bound by it
- Klug and Wildbore: mirror approach not simply right or only approach: in UK 2010 judgements and wording of s2 HRA some scope for departure from the ‘straightjacket’ of ECHR jurisprudence
7
Q
UK departure from ECtHR jurisprudence
A
- R v Spear first decision in which HoL declined to follow jurisprudence of ECtHR
- R v Horncastle also departure because of differing legal culture etc. and desire to create a dialogue
- judiciary also seen possibility of extending application of Convention rights under HRA s2(1) for wide margin of appreciation where there is no settled ECHR case law
8
Q
Idea of dialogue between UK courts and ECtHR
A
- relationship increasingly described, first coined by Lord Phillips, argue legal reasoning should have influence in Strasbourg
- i.e. Animal Defenders International v UK - ECtHR strongly influenced by how analysed in UK domestic court to depart from approach it took in VgT v Switzerland
9
Q
Lord Mance and Lord Hughes laid out current position between domestic and Strasbourg jurisprudence in R (Haney and Others) v SoS for Justice
A
“It follows from the wording of the Act that domestic courts in interpreting and applying such rights are not bound by the jurisprudence of the European court, but are bound to take it into account.”
10
Q
Interpretation of legislation
A
- HRA 1998 s3(1) provides: “so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights”
- applies to legislation existing at time of HRA enacted and in future
- strong interpretative obligation
11
Q
HRA approach to interpretation of legislation has at times been controversial - as was seen in R v A (no 2)
A
- Youth Justice and Criminal Evidence Act designed to restrict circumstances in which evidence and questioning about complainant’s prior sexual offences could be permitted
- issue whether new provision prejudiced defendant’s right to fair trial under art 6
- HoL held s41 of YJCE Act incompatible with right to fair trial, went to consider their obligations under s3 HRA 1998
- said s3 places duty on court to find possible interpretation compatible with Convention rights
- sometimes be necessary to adopt interpretation may appear linguistically strained
- Lord Hope believed went too far, recognised unlike no previous rule of statutory interpretation and could be applied even if no ambiguity but found difficult to accept permissible to read in implied provision Steyn advocating
- believed entire s41 contradicted such implied provision
- he was more sympathetic to idea could be read down to render compatible
12
Q
Re S (Children) and Re W (Care Orders) CoA relied on Steyn’s approach in R v A
A
- to undertake radical reinterpretation of provisions of Children Act concerning care plans for children
- read into act new procedure for star milestone system
- found star system contrary to cardinal principle of Children Act, no provision in Act which seemed interpretable, far-reaching ramifications
- seemed where use of interpretative power in s3 would bring major change in law with far-reaching consequences, court less willing to use it
13
Q
Bellinger v Bellinger link to interpretive power of s3
A
- transsexual person who had been born man, undergone gender reassignment to become woman, married man
- problem was section of Matrimonial Causes Act had been interpreted by courts on basis of biological sex of person fixed at birth, made her man in eyes of law and marriage void
- ECtHR already established in Goodwin v UK that failure of UK to recognise new transsexual gender for purpose of marriage violated art 8 and 12 ECHR
- issue for HoL was to decide whether possible under s3 HRA to interpret ‘male and female’ as extending to transsexuals
- HoL held not possible, Nicholls gave three reasons:
1. far from self-evident what criteria and procedures should be satisfied before transsexual person legally recognised as having acquired new gender
2. recognition of gender reassignment for purposes of marriage cannot be made in isolation
3. marriage institution deeply embedded in UK culture as being two persons of opposite sex - would fundamentally change traditional concept of marriage
However… Ghaidan v GM
- HoL used s3 HRA to read in additional words as ‘husband and wife’ into Rent Act to make it compatible with ECHR
- held should take broad approach to interpretation of s3
14
Q
More on interpretive power
A
- what ultimately matters for courts is substance of provision rather than phraseology i.e. Ghaidan v GM and Bellinger
law lords indicated use of interpretive power will go too far if…
- changes substance of provision completely
- runs counter to fundamental feature of legislation or to underlying thrust of it
- contradicts provisions in legislation
- repeals or deletes language used in legislation
- involves policy decisions beyond court
15
Q
Post Ghaidan Lord Hoffman made comments on scope of s3 HRA and interpretive obligation, in the case of R (Wilkinson) v IRC
A
- “important change in process of interpretation which was made by s3 was to deem Convention to form significant part of background against which all statutes, whether passed before or after 1998 came into force, had to be interpreted.”
