Human Rights in Public Law

Question 1

What are ‘rights’? What are Liberties?

Answer 1

Liberties
- anything not prohibited by law
Rights
- the basic rights and freedoms that belong to every person in the world, from birth until death
- They apply regardless of where you are from, what you believe or how you choose or live your life
- They can never be taken away, although they can sometimes be restricted
- based on shared values like dignity, fairness, equality, respect and independence
- are defined and protected by law

Question 2

Statutory rights

Answer 2

Rights that were written down in the statute.
Ex;
- Race relations act
- Sex discrimination Act

Question 3

Common Law Rights

Answer 3

Rights not in statute but in case law
Examples;
- Habeas corpus - right to liberty (limited under certain circumstances)
- Right of access to the courts

Question 4

What is the Human Rights Act 1998?

Answer 4

• Protects some rights but not all

Question 5

What does section 1 say?

Answer 5

Incorporating the ECHR rights
- the rights and freedoms set out in the convention

Question 6

What does section 2 say?

Answer 6

Interpretation of Convention rights
- compels the courts to take decisions, declarations, judgements and advisary of the ECHR into account
- doesnt mean they have to follow them but that they need to take it into account

Question 7

What does section 3 say?

Answer 7

Interpretation of legislation
- legislation should be interpreted, read and given an effect in a way that is compatible with the convention rights, if possible
- part of the way the HRA ensures compliance

Question 8

What does section 4 say?

Answer 8

Declaration of incompatibility
- deals with what happens if its not compatible
- judges can make a declaration of incompatability
- the section explains when it can be made and when it must be made, as well as what effect that has.
example;
- secondary legislation can be ignored only if it doesnt go against primary legislation
- allows the possibility that parliament chooses to retain a piece of legislation that has been found to be in breach of a human right

Question 9

What does section 6 say?

Answer 9

Acts of public authorities
- It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
- only exception is if they couldnt act differently as a result of primary legislation
- talks about who we mean as a public authority (includes court of tribunal and anyone who has authority, DOESNT include the house of parliament)

Question 10

Two key procedural articles:

Answer 10

• Article 1: States must secure these Convention rights in their own jurisdictions (fulfilled by
  passing the HRA)
• Article 13: Right to an effective remedy (fulfilled by the right to argue these rights in court)

Question 11

How many substantive rights?

Answer 11

16

Question 12

Qualified and absolute rights?

Answer 12

• some are absolute (cant be breached in any circumstances) and some are qualified or limited due to the law

Question 13

Interference with a protected right must be

Answer 13

• In accordance with the law (must be written somewhere)
• Intended to achieve a legitimate objective (medically treatment, safety of individual or other people)
• Necessary in a democratic society → ie proportionate

Question 14

Proportionality: The Huang test

Answer 14

• went through a list of question

Question 15

The constitutional effect of the HRA

Answer 15

• All legislation has to be compatible with the HRA AND
• All public authorities have a duty to comply with the HRA (including the courts) AND
• The court has to interpret all legislation in a way which is compatible with human rights if possible.

Question 16

What if something is NOT compatible?

Answer 16

• Judges to interpret / read down as compatible where possible (s3);
• Judges CAN disapply or quash secondary legislation;
• Judges CANNOT disapply primary legislation (s4);
• Judges may make a declaration of incompatibility (s4)

Question 17

Consequences of a declaration

Answer 17

• fewer than 2 a year
• 45 have been fully addressed
• not something that is common
• HRA is hugely important in ensuring human rights are protected and its woven into the fabric of legislation

Question 18

The HRA and the Rwanda saga

Answer 18

• to take people seeking asylum to Rwanda
• went against human rights

Question 19

Art 14 discrimination

Answer 19

• NOT a free-standing prohibition on discrimination
• Specifically a prohibition of discrimination in relation to access to your substantive rights
• Eg. discrimination affecting your access to the right to education, discrimination in relation to the right to freedom of assembly

Question 20

Four schools of thought

Answer 20

1. The ‘natural’ school - rights as universal and god-given, possessed by every person by being human - exist even when not recognized;
2. The ‘deliberative’ school - human rights as political choices in liberal countries, which are negotiated and agreed on;
3. The ‘protest’ school - rights as claims and aspirations by or for the poor and opposed and as a constant struggle towards justice
4. Discourse scholars - sceptical of human rights - too individualised as opposed to communitarian
   - ie they belong to individuals rather than to communities, and often imposed in an imperialistic manner

Question 21

Positive and negstive obligations

Answer 21

refers to what the state actually has to do
Neg
- obligation not to interfere with a right which is protected, except if the law allows that
- can be absolute (theres an absolute on torture)
Pos
- obligation to make a proactive step to prevent someone else from doing something
- mainly in relation to human trafficking (relevant in section 4)
- will always be resource dependent