human rights act 1998 and civil liberties in the UK Flashcards
context of civil liberties and common law
england and wales = long history of CL - linked to magna carta 1215
generally passive government (in)action e.g. freedom of speech, freedom of assembly
can be claimed/enforced in the courts using various legal means including JR e.g. police powers
Austin v metropolitan police commissioner - protests in mayday around london and oxford circus, detained in police for 6-7 hrs along several thousand ppl to maintain public disorder - concerned about damage of property and riots - argued being held 7 for hours is against article 5 (being prevented from leaving) - HoLs had to decide whether article 5 was relevant - argued inapplicable as austin not deprived of liberty but temporarily restricted - taken to ECHR but failed as held same judgement
tort - duty of care and negligence
e.g. breach of confidence
argyll v argyll - duke and dutchess divorced as wife allegedly committed adultery and after publication of her life and wife stated obligation of confidence which can arise from marriage relationship
injunctions (e.g. press publications) - venables v news group newspapers 2021 - injunction on venables and thomson new names should be revealed - now protected as if names and identities known high chance either violence or killed - right to live freely after sentence
common law remains in place - HR dont replace common law - R(osborn) v parole board 2013 - osborne refused oral hearing before parole board - courts aked if had to be oral or if it could be written exercise - argued oral hearing should be provided when fairness demanded them
HR treaties and UK courts last century (pre HRA)
UK adopts dualist approach to international law - adopts international law - adopts international and national but they dont overlap
reference to the european convention could be looked at to resolve ambiguities in parliaments intention - parl doesnt intend to breach treaty as signed up to it so would comply with it
miller case - treaties between sovereign states have effect in international law and are not governed by the domestic law of any state… although they are binding on UK in international law, treaties not par of UK law and give rise to no legal rights or obligations in domestic law
UK and european convention
UK involved in drafting the EC and ratified it in 1951 (accepted as legally binding) bound from 1953 when came into force
into to HRA 1998
trad UK courts considered cases claiming breaches of HR - cases decided on basis of national law and occasional reference to international law but not too persuasive
many cases engaging HR ended up in the CoE - labour gov which was elected in. 1997 w/ landslide maj made commitment to bring rights home - HRA designed to give effect to this
what does HRA 1998 do
gives further effect to aspects of ECHR - doesnt incorporate them - acts more as a bridge between ECHR and national law in UK
doesnt directly change/replace common law but courts must bring consideration of HR
labour manifesto = a ‘floor’ not a ‘ceiling’ - entered into force in october 2000 - delay = training of judiciary
HR = Uk statute interpreted and applied by UK courts
Re McKerr 2004 - court states rights rising under convention and rights created by HRA by reference to the convention - these 2 sets of rights now exist side by side - makes distinction between them
former = before enactments of HRA and continue to exist but not part of UK law as doesnt follow this convention
latter is part of UK law
HRA = not always popular - can be derided by politicians and media e,g. immigrants bring more crime heading in newspaper
Key sections of the HRA
Section 19: requires a minister to make a statement of compatibility when proposing legislation - permits government which may be incompatible with convention rights - respecting parliamentary sovereignty - can be controversial as act in itself may lead to JR - joint committee on HR will often report on whether legislative provisions meet the convention - reviews bills/ act and its not legally binding
E.g. Covid laws
S.2 HRA: how to interpret and apply convention rights domestic courts must ‘take into account’ the Strasbourg jurisprudence - determine Qs and give direction on how to apply them - must ooh at any judgement or advisory opinion or any commission decision, committee of ministers about decisions and must take into account countries they come from, Means taking consideration of cases are decided on the UK and courts must look at cases from other jurisdictions, ECHR cases decided with margin of appreciation and balancing of rights
S.3 HRA: interpretation of statutes - guidance is as far as it is possible to do so primary legislation should be given effect in way which is compatible with convention rights
R V A 2001 - interpretation of s.41 which had general prohibition on the admissibility of sexual history of the complainant in rape offences and the trial judge said that the complainant was not to be cross examined and there was no evidence to be laid about the sexual relationship with the defendant - are these provisions compatible with convention?
Statutory interpretation - ‘reading down’ - courts must try to read the statute to give effect to convention rights - R V A - general prohibition of sexual history would remain unless exclusion would lead to unfairness and go against article 6
Section 4: permits courts to declare primary legislation incompatible with the convention - declarations of incompatibility - no effect on validity or operation of provision, purely applies to that case - only 47 declarations between HRA being in enforce to July 2023 - not often
Bellinger v bellinger - MTF unable to marry a man as s.11 matrimonial causes act 1973 defines sex as determined at birth - Q whether sex determined at birth would include trans ppl - incompatible - led to gender recognition act 2004
Section 4 leads to section 10 which allows fast track remedial orders enabling change to any incompatible law
Belmarsh detainees case - indefinite detention of suspected foreign terrorists (no evidence) who could not be deported as risk torture in own country - anti terrorism, crime and security act 2001 replaced by prevention of terrorism act 2005
Section6: HRA: makes it unlawful for a public authority to act incompatible with convention
Vertical effect on the HRA - state protecting individuals
‘Acts’ of public authorities can include a failure to act (though not a failure to legislate - excludes parliament)
S6(2) - reflects supremacy of national law - courts had to act this way as told by primary legislation
Public bodies = explicitly includes courts and tribunals - those entities acting as the state for the purpose of the European convention
White paper - what constitutes a public authority = in wide terms - central government, local government, police, immigration officers, prisons, courts, tribunals, companies responsible for areas of activity which were previously in public sector such as privatised utilities (para 2.2)
Donoghue v poplar housing - housing in London, court had to determine whether or not public authority for purpose of s.6 - poplar provided housing accommodation on behalf of local authority - private housing association - is this public or private body? - court= held just because help public not necessarily a public function - found providing public functions - functional public authority
Elements of the test suggested in poplar - combination of features which impose a public character or stamp on the act - extent of control over function exercised by another body which is a pubic authority, statutory authority for what is done and supervised by a public regulatory body (doesn’t necessarily indicate they’re of a public nature)
Parochial church council of Aston cantlow v wallbank - church council not pure public authority as religious entity, enforcing a private liability - is this church pubic? = wallbank liable for repairs of the church under the chancel repairs act of 1932 - argued breach of rights to property and discrimination - church not pure public authority but a religious organisation - private liability not public function - court said clearly no single test for public authority - need to think about the extent to which in carrying out the relevant function the public body is publicly funded or is exercising statutory powers or is it taking place of central government/ local authorities
Hybrid public bodies - can be deemed pubic for some functions and private for others - poplar
Section 7: victims and time limits - explains rules of standing and gives information on bringing cases under the act - direct course of action or rely on convention if victim of unlawful act s.7(1) usually a one year limit
The duality and HR commission is a national rights institution (NHRI)
NHRIs should be able to take up HR issues on behalf of victims and can also intervene in relevant cases providing a HR perspective
