Human Rights in the UK

Question 1

Magna Carta

Answer 1

Magna Carta sought to establish the rights of subjects against the authority and maintained the principle that authority was subject to law.

Question 2

Bill of Rights

Answer 2

The Subject’s Rights”

-Rights against the King, such as freedom of speech

Question 3

US Declaration of Independence

Answer 3

• Men are created equal, given certain unalienable Rights

- These rights are life, liberty and the pursuit of happiness

Question 4

European Convention of Human Rights**! (ECHR)

Answer 4

• First comprehensive international Human Rights Treaty
• First international complaints procedure
• First international court for determining human rights matters

Question 5

European Court of Human Rights (ECtHR)

Answer 5

• Equal number of judges to states
• ECtHR can order breaching State to pay compensation
• Contracting parties undertake to abide by the final judgment of the Court

Question 6

PRE HRA: Domestic legal effect

Answer 6

• unincorporated ECHR could not be relied on directly in UK courts
• Violated party must go to the ECtHR in Strasbourg to make a case for violation of rights

Question 7

Malone v UK

Answer 7

Breach of Art. 8 By telephone tapping the individual illegally. The Response was the enactment of the Communications Act 1985

Question 8

Brogan v UK

Answer 8

Article 5 breach of detention without charge violating a right to be brought promptly before judge. Response was Derogation through Article 15.

Question 9

Human Rights Act 1998

Answer 9

The purpose of the [Human Rights Act 1998] is to give further effect to the rights and freedoms guaranteed under the ECHR. This is done by making the rights in the ECHR accessible to people in Britain so that they can be directly relied on in domestic courts.

Question 10

Strasburg Jurisprudence

Answer 10

-s. 2: Requires UK courts and tribunals to take into account Strasbourg jurisprudence

Question 11

HRA: Reading of Primary and Secondary Legislation

Answer 11

-s. 3: So far as possible, primary & secondary legislation must be read and given effect to be compatible with Convention rights

Question 12

HRA: Declaration of incompatibility

Answer 12

-s. 4: If incompatible with Convention right court can make a declaration of incompatibility

Question 13

HRA: Views of Bradley

Answer 13

• DOI stems from courts reviewing statute legislation - courts would not have been able to do before the HRA
• courts do not quash primary legislation is a limitation on remedy

Question 14

R v A

Answer 14

argued s. 41 of the Youth Justice & Criminal Evidence Act 1999 of the general prohibition on admissibility of sexual history evidence of complainant in a rape trial was incompatible with Article 6 ECHR

Courts used s.3 to provide a convention compatible reading that evidence of questioning required to ensure a fair trial could be admitted by the trial judge, agreeing on a test of admissibility on whether the evidence is relevant to the issue.

Question 15

Lambert Case

Answer 15

argued s. 28 Misuse of Drugs Act 1971 of legal burden on accused to prove ignorance that substance was a controlled drug was incompatible with Article 6 ECHR

Held to be incompatible thus courts provided a convention compatible interpretation to impose an evidential burden only on the accused.

Question 16

Ghaidan

Answer 16

same sex partner who had lived in a close relationship with someone who had a statutory tenancy under the Rent Act 1977 of a ‘surviving spouse as wife or husband’ could succeed to the statutory tenancy

be incompatible with Article 14 and 8 ECHR of discrimination and private life. Issue became over whether it was ‘possible’ to interpret through s.3 HRA, majority thought s.3 was a prime remedy

Question 17

Kavanagh Issue with S.3 HRA

Answer 17

• critic of R v A is that it went against what Parliament intended
• s.3 shifts the interpretive focus away from what Parliament originally intended, towards fulfilling the overriding goal of achieving compatibility of the Convention.

Question 18

Section 4: Declarations of incompatibility HRA

Answer 18

Enables senior or higher courts to make a declaration that legislative provisions are incompatible with Convention rights.

Question 19

S.4 HRA Validity after DOI

Answer 19

A DOI does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, allowing Parliament legislation to remain valid and effective

Question 20

Anderson

Answer 20

-The claimant was sentenced to mandatory life imprisonment for two murders

the Secretary of State would play no part in fixing the claimant’s tariff as it was not independent or impartial to the executive. A DOI (s.4) was the only appropriate relief which was available to the claimant. The legislative response was the Criminal Justice Act 2003.

Question 21

Bellinger v Bellinger

Answer 21

• transsexual female who was born and registered as a male at birth.undergone a sex change operation, and wanted to marry a man.
• ruled for a Declaration of Incompatibility because of the difficulties this incompatibility causes and legislative response was Gender Recognition Act 2004.

Question 22

Belmarsh Prison case

Answer 22

-9 men challenged the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security. Majority were detained under the Anti-terrorism, Crime and Security Act 2001

House of Lords held that detention was lawful but was incompatible with convention rights, thus made a declaration of incompatibility under s.4 HRA. By the declaration of incompatibility, Parliament decided to replace part 4 of the ATCSA 2001 with the Prevention of Terrorism Act 2005.

Question 23

Lord Steyn views on S4 HRA

Answer 23

S.3 is the prime remedial remedy and resorting to s.4 must always be an exceptional course.

A DOI is a measure of last resort. It must be avoided unless it is plainly impossible to do so.

Question 24

Bradley: argument in favour of HRA s.3/4

Answer 24

• Facilitates ‘dialogue’ between the courts, the legislature and executive.
• Powerful effect on Parliament; 19 DOI’s remedied

Question 25

HRA & Terrorism: Chahal v UK

Answer 25

Chahal was an Indian resident in the UK. Home Secretary believed that he had been involved in terrorist activities and sought to deport him.
Chahal argued that the procedure was unlawful and is incompatible with Article 5 and Article 13
ECtHR found in his favour: Led to creation of the Special Immigration Appeals Commission (SIAC)

Question 26

Anti-Terrorism, Crime and Security Act

Answer 26

Allowed indefinite detention to foreign nationals without charge or trial if suspected as international terrorists

Question 27

Prevention of Terrorism Act 2005,

Answer 27

Control orders of derogating and non-derogating, supervised by SIAC
Derogating control order: Breach Article 5 ECHR
Imposed if derogation from Article was in place, intended for individuals considered to pose a high risk of public safety.

Non-derogating control order: Compatible with Article 5 ECHR Made by Secretary of State when reasonable grounds for suspecting someone is or has been involved in terrorism activity

Question 28

JJ v SSHD

Answer 28

a non-derogating control order that prevented a person from leaving a one-bedroom flat for 18 hours in every 24 and imposed restricted controls that meant the person’s life was wholly regulated by theHome Office, was contrary to Article 5 ECHR.

Question 29

E v SSHD

Answer 29

Curfew of 12 hours is within range which Strasbourg accepted merely restricting liberty.

Question 30

AF & MB v SSHD

Answer 30

AF is both UK and Libyan nationality, and lived in UK since 2004. Control order confined him to his flat for 14 hours a day
-reliance on closed material that he was not able to see by the procedure of the SIAC was contrary to rights to a fair hearing required by Article 5 and 6 ECHR. House of Lords were unsure in their judgments, but held procedure unfair.

Question 31

Terrorist Prevention and Investigation Measures Act 2011 (TPIM)

Answer 31

• Now a reasonable belief requirement
• No powers of Relocation
• 2 year maximum duration only renewable with new evidence

Question 32

SSHD v AP

Answer 32

A requirement for the individual subject to a control order to move away from his home to an undisclosed location was held the be contrary to his Human Rights