Human Rights- Booklet 1- Human Rights

Question 1

Theories of human rights

Answer 1

Inalienable- cannot be taken away
Universal- applies to everyone
Interdependent- each human right, in some way, contributes to a person’s dignity. Each right relies on another

Indivisible- all human rights have an equal status and aren’t positioned in a hierarchical order

Question 2

People theories of human rights

Answer 2

Aquinas - natural rights come from God
Locke - social contract, govt. should guarantee rights
Bentham - rights provided on greatest happiness for greatest no.
Rawls - require citizens to decide society without knowing what place they’d occupy

Question 3

Residual freedoms

Answer 3

Sir Robert Megarry: “everything is permitted except what is expressively forbidden”
What you can’t do is set out by law
Malone v Metropolitan Police Commissioner - no law forbidding Malone’s telephone being tapped so was allowed
Residual freedoms = easy to remove + difficult to enforce

Question 4

Balancing Rights/Freedoms

Answer 4

Must balance rights + freedoms
(e.g. privacy and expression)
Cliff Richards case

Question 5

European Convention on Human Rights

Answer 5

ECHR– signed 1950, force 1953
Council of Europe
Includes many rights of Universal Declaration of Human Rights
Originally signed by 10 countries
Article 5– right to liberty
Article 6– right to fair trial
Article 8– right to privacy
Article 10– right to freedom of expression
Article 11– right to freedom of association

Imposes -ve and +ve obligation of member states (negative duty not to interfere, positive to protect them)

Some absolute (e.g. Article 3 (no torture))
Some limited (Article 5- certain exceptions)
Some qualified (8,10,11- good reason)
The state must prove:
- The removal of the right is prescribed by law
- It’s necessary- ‘good enough reason’– e.g. national security, public order
- It’s proportionate

Derogation– state avoids its obligtions. Article 15- times of war (most common for 8, 10, 11)

Also margin of appreciation – neither +ve nor -ve obligation absolute – account of cultural and political differences

Question 6

Impact of ECHR pre HRA

Answer 6

Individual petition (granted in 1966)– go to Strasbourg, but only when all remedies exhausted in UK (e.g. appeals)
Citizens before 2000 couldn’t generally go to UK courts for breach of human rights– confirmed in Brind case – ruled ECHR not a source of domestic law and to say otherwise would incorporate ECHR into UK law ‘through the back door’
UK is a dualist system– Parl must pass legislation to make provisions in a treaty part of UK law

It didn’t incorporate human rights into UK law. Couldn’t go before UK court.
Going to Strasbourg- expensive and long

Case of Malone:
UK Court- didn’t breach Article 8
ECtHR- did breach Article 8 (Malone v UK)
In response UK Parl passed law that allowed this telephone tapping

After the Thalidomide Case, Parliament passed the Contempt of Court Act

In Derbyshire v Times Newspapers, judge said: limited circumstances ECHR could be used: either where statute law was ambiguous, or as an extrinsic aid

Question 7

Section 7 of HRA

Answer 7

Allows a person to take a case to national courts (no need to go to Strasbourg unless all domestic remedies have been tried)

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Claim can only be brought by a victim, not a TU or pressure group
Partly resolved by the Commission for Equality and Human Rights, but can’t investigate, only make recommendations
People who don’t get an answer in UK courts may have to go to Strasbourg

Question 8

Section 19 HRA

Answer 8

All legislation passed after the HRA should have a statement of compatibility with it before the 2nd reading of the Bill

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Under s.19(1)(b) – Parl can pass an act despite a minister not being able to declare it compatible with human rights
e.g.Local Government Bill 2000, Communications Bill 2003
+ Anti-Terrorism, Crime and Security Act, but successfully challenged in Belmarsh case

Question 9

Section 3 HRA

Answer 9

Judges must interpret the law compatibly with the Convention ‘as far as possible to do so’ (bear in mind Parl Sov). They should try this before the Dec. of Incompatibility

R v A – Lord Steyn – judges should interpret the law in a very flexible way – sometimes ignoring or adding words. Section 4 should be a last resort
(In R v A judge effectively rewrote s.41 of the Youth Justice and Criminal Evidence Act)

Re W and B – words could be added but Lord Nicholls said judges couldn’t always do it – can’t change fundamental aspects

Current approach – Ghaidan v Godin-Mendoza – interpreted the word ‘spouse’ in the Rent Act to include a same-sex partner:
1. If Act illegally removes human rights, can be changed using S.3
2. Judges can add words / use wider definitions
3. Judges can’t change fundamental parts of the law, if it’s fundamental- S.4 used

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Violating Parliamentary sovereignty?
Limited- can’t change fundamental aspects

Question 10

Section 4 HRA

Answer 10

Declaration of incompatibility
Still have to apply bad law though (eval)
Fast-track= S.10

Belmarsh case (A and Others 2004)
A and others 2005- HoL wouldn’t allow evidence gained through torture

R v Mental Health Tribunal ex parte H– Mental Heath Act violated Article 5 – switched burden of proof from patient to doctor

Bellinger v Bellinger – dec. of incomp. against law that prevented transsexuals from marrying (violated Article 8) – led to Gender Recognition Act

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Still have to apply bad law
Parliament not obligated to amend it- e.g. prisoners voting (however, only one outstanding dec. of incomp.- usually change it)
S.10– must be a ‘compelling reason’ – dec. of incomp. not in itself a compelling reason

Question 11

Section 6 HRA

Answer 11

Person can sue a public authority who illegally removes human rights – makes it unlawful for public authorities to act in a way that is incompatible with human rights

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But can’t take private bodies to court directly for human rights issues –** YL v Birmingham City Council**- controversial definition

Question 12

Section 2 HRA

Answer 12

UK courts must ‘take into account’ precedents of ECtHR – precedents strongly persuasive but not binding – Alconbury
HOL has decided if precedent from ECtHR is clear + there’s no domestic precedent, it should be followed (Ullah)

ECtHR precedents must not be followed when there’s a conflicting domestic precedent (Leeds City Council v Price)

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But don’t always follow ECtHR rulings- Hirst v UK (prisoners voting) + Malone

Question 13

Implied Horizontal Direct Effect

Answer 13

Loophole to s.6– take private bodies to court then courts obligated to protect your human rights

Seen in Douglas and Jones v Hello!

YL v Birmingham City Council- care home

Question 14

Bill of Rights

Answer 14

Document that protects fundamental human rights.
Entrenched- difficult to remove- would need cross-party support
HRA has been criticised that it undermines Parl Sov and is a ‘charter for criminals and the undeserving’
2008: 42% people agreed with this statement

Question 15

Past moves to introduce BOB

Answer 15

2005: Michael Howard complained about the “rights culture”
2006: Cameron wanted a BOB
2009: Labour- launched a consultation on “Rights and Responsibilities: developing our constitutional framework”
2010: Cameron coalition–> Commission on a Bill of Rights - published in 2012:
‘A UK Bill of Rights? The Choice Before Us’ = recommended a BOB and said because public opinion not in support of HRA
2015: Cons. manifesto- “scrap HRA” + introduce a BOB
However issue put to the side during Brexit

Question 16

Current govt plans to introduce a Bill of Rights

Answer 16

IHRAR, established in December 2020 wrote the ‘Human Rights Act Reform: a Modern Bill of Rights’ = looked at the impact of the HRA on the relationship of Parliament, Judiciary and Government + how the HRA works, who it protects. E.g. more education on rights

Government Consultation
Looks at 5 key areas:
1) Respecting our common law traditions and strengthening the role of the Supreme Court
2) Restore a sharper focus on protecting fundamental rights
3) Prevent the incremental expansion of rights without democratic oversight
4) Emphasise role of responsibilities
5) Facilitate dialogue with Strasbourg, while guaranteeing Parliament its proper role

Introduced the Bill of Rights Bill = 22 June 2022

Question 17

What would remain the same with a Bill of Rights

Answer 17

[I] UK will remain a party to the ECHR
[II] Clause 2 confirms it will be the same set of rights as the HRA
[III] Declarations of Incompatibility - will continue to use
[IV] Duty of public authorities - Clause 12 mirrors s.6

Question 18

What would be different with a Bill of Righhts

Answer 18

[I] Section 3 - not a thing. No provision for judges to interpret law flexibly. S.4 default. Take back parl sov, but apply more bad laws
[II] ‘Living Instrument’ - Ensure domestic courts interpret Convention rights more narrowly
[III] Section 2 - s.2 (‘take into account’) replaced by Clause 3 = Sup court “ultimate judicial authority on questions arising under domestic law in connection with the convention rights”
[IV] Deportation - Easier to deport national offenders. Reduce defence of s.8. Would have to show it would result in harm to a qualifying family member that is so extreme it would override the public benefit (e.g. prev. difficulty in deporting Abu Qatada- cost £1.7m)
[V] New permission stage - Prove that they’ve suffered ‘significant disadvantage’
[VI] Greater weight under Article 10 - Clause 4 ‘great weight’ to foe but not when there is an exercise of state power in criminal proceedings. Arguably aimed at preventing rulings like the ‘Colston four’
[VII] Move away from +ve obligations
[VIII] Henry VIII clause – Clause 40 gives Lord Chancellor power to pass secondary legislation - step back from 2005

Question 19

Disadvantages / problems of Bill of Rights

Answer 19

• Good Friday Agreement specifically mentions HRA - could disrupt peace
• Devolution include reference to ECHR
• Entrenched- out of date
• HRA flexible
  -look at pol.

Question 20

Advantages of Bill of Rights

Answer 20

• Entrenched- diff. to remove
• Clear statement of rights
• More ‘British’
• Reduce judicial activism as judges wouldn’t need to develop common law to protect rights
• look at pol.