Human Rights statutory protections

Question 1

human rights act 1998

Answer 1

background-
-the council of europe drafted the ECHR (created the european court of human rights)
-UK incorporated ECHR into domestic law through HRA 1998 (individuals dont need to go to strasburgh can go to local court)

Question 2

what did the human rights act do

Answer 2

main effects:
-sc6-obligation that PA cannot violate convention rights
-sc3-courts must interpret legislation so that it is compatible with convention rights

Question 3

HRA and parliamentary sovreignty

Answer 3

-does not offend parliamentary sovereinty as this is just judges applying what parliament hastold them to do when it passes the HRA, can easily be suspecnded or removed by parliament

Question 4

sc1 HRA- convention rights

Answer 4

can be asolute (cannot be restricted) e.g right to life, prohibition of torture/slavery, right to libebrty and security
can be qualified (can be restricted) e.g freedom of thought, respect for private and family life, protection of property

Question 5

sc2- interpretation of convention rights

Answer 5

(1)- courts must take into account any-
a) judgement, decision, declaration of advisory opinion of the European court of Human rights
so far as in the opinion of the court or tribunal is relevant

must- makes the interpretation too eurpoean, UK has a proud history of defending human rights and dont need to rely on ECHR
take into account- dont have to follow

-R(daly) v SOS for the home department 2001-prison kept correspondence with lawyer in cell, prison rules required daly to leave cell for inspection, complained violated article 8(1) ECHR, referring to ECHR case decision decided interfernce was greated than the extent necessary for the prevention of disorder and crime

Question 6

sc3-interpretation of legislation

Answer 6

(1) so far as is possile, primary and subordinate legislation must be read in a way which is compatible
(2)(b) does not affect the validity of any incompatible primary legislation
(c) same for subordinate legislation if primary legislation prevents removeal of it

-R v A 2001- d charged with rape and claimed consent, both young people so sc41 of youth justice and criminal evidence act 1999 said claimant can be cross examined, d appealed as article 6 right to fair trial, HOL decided implied provision in sc41 that would allow questioning here

Question 7

sc4- declaration of incompatibility

Answer 7

-if legislation cannot be read compatible, make declaration of incompatibility
does not effect validity of act of parliament

-R v Mental health tubunal north and east londong region 2001- sc73 of mental health act 1983 stated restricted patient should only be discharged if could prove ot suffer from mental illness, breach od article 5 right to liberty due to burden of proof, created declaration and parliament made mental health act 1983 and flipped burder

Question 8

sc6- public authorities

Answer 8

(1) unlawful for PA to act incompatibly
(3) PA includes-
(a) court or tribunal
(b)any person certain of whose functions are function of a public nature

-R v partnerships in care ltd 2002- managers of nursing home carrying out a public nature so PA

Question 9

sc7- victim

Answer 9

only the victim themselves

Question 10

sc8- remedies

Answer 10

(1) can use any such relief or remedy or make such order, within its powers as it considers just and appropriate

Question 11

sc10- remedial orders

Answer 11

(1)if provision declared incompatible
(b) or a minister decide that a provision of legislation of incompatible
(2) they may order amendments to the legislation as he consider necessary to remove the incompatibility