Human Rights - Theory

Question 1

Which theorist introduced the concept of the separation of powers?

Answer 1

Montesquieu

Question 2

What is the concept of the separation of powers?

Answer 2

The power of a state should be shared between three bodies to prevent one becoming overmighty. Those three bodies are the executive (the government), the legislature (the law makers) and the judiciary (the judges)

Question 3

What system did the UK operate on before the HRA 1998?

Answer 3

Civil liberties

Question 4

The UK is a dualist system. What does this mean?

Answer 4

Legislation must be passed to make provisions from international treaties and conventions enforceable in UK Law

Question 5

What protected UK citizens’ rights before the HRA or the ECHR?

Answer 5

1) Common Law (e.g. the Magna Carta)
2) The Bill of Rights 1689
3) The right of Habeas Corpus
4) Judicial Review

Question 6

What is Habeas Corpus?

Answer 6

It is a writ which requires that a person cannot be imprisoned without an explanation or a trial - they must be brought before a judge

Question 7

When did the UK ratify the ECHR?

Answer 7

1951

Question 8

When could UK citizens take their case to the ECtHR in Strasbourg?

Answer 8

From 1966 onwards

Question 9

When was the ECHR formally incorporated into UK law?

Answer 9

1998 (came into force in October 2000)

Question 10

When could UK citizens argue the rights given to them by the ECHR in a UK court?

Answer 10

From 2000 onwards

Question 11

What were the consequences of ratifying the ECHR?

Answer 11

1) Parliament had to consider the compatibility of new legislation
2) Courts had to interpret ambiguous legislation in a way that is compatible with the ECHR
3) If the UK breached the ECHR, they would be obliged to change the law to eliminate the incompatibility

Question 12

What happened in Sunday Times v UK?

Answer 12

The ECtHR held that the UK government’s injunction violated Article 10 ECHR (Thalidomide case). Parliament passed the Contempt of Court Act 1981 as a result.

Question 13

What happened in Malone v UK?

Answer 13

The ECtHR found that the police intercepting correspondence was a violation of Article 8 ECHR. As a result, the government passed the Interception of Communication Act 1985

Question 14

How many references did the UK make to the ECtHR from 1960-97?

Answer 14

95 (47 were adverse)

Question 15

What duty did s3 HRA 1998 impose?

Answer 15

An interpretative duty - “so far as it is possible to do so” legislation should be interpreted in a compatible way

Question 16

Which section declared that legislation that cannot be interpreted compatibly remains valid and courts are still required to enforce it and why?

Answer 16

s3 (2)(b) HRA 1998 - to preserve parliamentary sovereignty

Question 17

What is reading down?

Answer 17

Introducing words to limit the meaning of the legislation

Question 18

What is reading in?

Answer 18

Introduces words to create safeguards

Question 19

What is reading out?

Answer 19

Where courts remove or don’t enforce provisions

Question 20

How is primary legislation pre-2000 dealt with?

Answer 20

It is subjected to the interpretative duty and dealt with on a case-by-case basis to avoid a ‘great repeal act’

Question 21

How is primary legislation post-2000 dealt with?

Answer 21

It is either compatible or declared incompatible but still valid

Question 22

How is secondary legislation dealt with?

Answer 22

If it is incompatible, it is declared null and void

Question 23

What section is a declaration of incompatibility issued under?

Answer 23

s4 Human Rights Act 1998

Question 24

How can the government respond to a declaration of incompatibility?

Answer 24

1) Do nothing
2) Change the offending legislation
3) Issue a remedial order

Question 25

What happened in Bellinger v Bellinger 2003?

Answer 25

A transgender woman wanted her marriage to be legally recognised, the HoL found that s11 Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 ECHR, so the Gender Recognition Act 2004 was passed

Question 26

What does s6 HRA do?

Answer 26

It places a duty on public authorities (e.g. the police, courts and tribunals etc.) not to act incompatibility with rights and freedoms under the ECHR.

Question 27

What does s7 HRA do?

Answer 27

It allows a person to bring a claim before a court or a tribunal if they believe they have been affected by a breach of an ECHR right - the claim must be brought within a year.

Question 28

Is the HRA entrenched?

Answer 28

no single Parliament can bind its successors meaning that, in theory, a future Parliament could amend or repeal the Human Rights Act 1998. Therefore, the Human Rights Act is not technically entrenched, however it is unlikely that this would happen