Human Rights Enforcement Flashcards
Enforcement: HRA 1998
Human Rights Act 1998 - into force in October 2000
- incorporated ECHR into UK Law
- individual can assert rights in national courts (ie. the case can be argued in English courts)
Before this, the only way to argue human rights was to go to the ECtHR which was £££
Enforcement: s.2 (1) HRA Interpretation of Convention Rights
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any:
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights
- Courts must ‘take into account’ prior decisions of ECtHR where relevant.
- embarrassing for them to ignore it - Hurst v UK (prisoners right to vote)
- If there is a conflicting UK precedent with a decision form the ECtHR, the court should follow the domestic precedent and refer the case to the UK appeal courts - Kay v Lambeth LBC (2006)
Enforcement: s.3 (1) HRA Interpretation of Legislation
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 the Convention rights.
Mendoza - Rent Act 1977
Basically, judges cannot change the law but as far as possible they can allow for Convention rights as much as they can without changing the law. If they cant allow for the right, they make a declaration of incompatibility
Enforcement: s.4 HRA Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
The court can make a declaration of incompatibility with a Convention right.
The law remains intact unless parliament decide to change the law accordingly.
Bellinger v Bellinger (2003) HL made a declaration of incompatibility in that the Matrimonial Causes Act 1973 was in breach of Article 8 and 12 of the ECHR. This led to parliament passing the Gender Recognition Act 2004 to remedy the situation.
^^^ good evaluation point as it shows the listened to the declaration and changed the law
Enforcement: How can we enforce out human rights?
- courts/tribunal - interpret law in accordance with HRA
- normal appeal routes
- Legal Ombudsman
- Judicial review - QBD High Court
- ECtHR - individual/state v state
Private corporate bodies cannot rely on the convention
Judicial Review
- Administrative Court (QBD High Court) - reviews the case to see if the law was applied correctly and the correct procedures were followed
- Individual must have ‘standing’
- ie. must have been impacted by the piece of legislation
- All other domestic routes followed, eg appeal
- civil: county - high - CoA - Supreme Court (or leap frog from high to SC)
- criminal: magistrates - crown - CoA - SC
- magistrates - QBD - SC
- crown - QBD - SC
- crown - CoA - SC
- Time limit – 3 months
- Must show ‘public body’:
- under legal duty to act and failed to do so
- or acted beyond powers – ultra vires (invalid)
- Right of appeal from Administrative Court to CA/SC (must have leave)
- Remedies can include quashing order, injunction, damages
Judicial Review: Public bodies can be challenged on the basis of:
Illegality – a public body given powers from an Act of Parliament can only do what the Act allows. Any action or failure to act that does not come from Act of Parliament, is unlawful and will be declared void
- procedural and substantave ultra vires
Fairness – the public body must use its powers fairly. They should not be biased and should be impartial
- wednesbury unreasonable
Irrationality and proportionality – a decision of action made by a public body may be considered irrational or unreasonable if no reasonable authority would have made it
- ‘Wednesbury unreasonableness’
Judicial Review: Types of ultra vires
- Procedural Ultra Vires - didn’t complete the correct procedure
- Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd (1972)
- Substantive Ultra Vires - the content is incorrect
- Attorney- General v Fulham Corporation (1921)
- Unreasonable Ultra Vires - Wednesbury
- R (Rogers) v Swindon NHS Trust (2006)
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 1
Claim must be between states or an individual and the state
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 2
The applicant must have exhausted all domestic avenues – i.e. must have tried the appeal routes open to them (Article 35) – have they done this or would they need to appeal using the national courts first?
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 3
The applicant must be directly affected by the act complained of (Article 34) – how are they personally impacted by the decision? Does it affect them?
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 4
The applicant must be at a significant disadvantage – how are they disadvantaged?
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 5
Within the time limit of 6 months (to be reduced to 4 months by Protocol 15) – the time runs from the final decision in the last court to the date of the application. Any issues with the time limit?
In order to be eligible to take the matter to the ECtHR the following must apply:
Step 6
The claim must be substantially new (not much law around this legal issue) – Article 35. Is the matter ‘new’ or is the area of law on this matter quite established?
3 judges: The merits of a repetitive claim (one with well established case law made by the ECtHR) will be decided by a Committee
7 judges: If it is not a repetitive claim, the Chamber will decide the merits of the case.
17 judges: If the case raises a serious issue of interpretation and importance, the Grand Chamber can be requested.
The ECtHR:
Step 7
Interprets the rights in the ECHR – if the matter is not related to the convention then they cannot deal with the case. Does it relate to the convention in your scenario?
