Impact of Human Rights : Evaluation Flashcards
INTRO
What are human rights?
Human rights are 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 to live your life.
In 1949 the council of Europe was founded ( Led by Sir Winston Churchhill) and was responsible for drafting the European convention of humran rights (ECHR). In 1950 it was approved by a number of member states including the UK. The Convention was a moral obligation but it was not legally binding and was used by our judges as an extrinsic aid.
What did the passing of the 1998 HRA do?
It honoured the pledge to incorporate the ECHR into UK law and made the convention legally binding. The act came into force un October 2000 and gave people positive rights they could rely on even where there was no law on it as opposed to residual freedoms that we had previously.
What did Section 2 of the HRA do?
Section 2 of the HR gave a direction to our courts to take into account any previous decisions from the EctHR in strasbourg. Leeds v Price demonstrated that Uk courts can choose UK precedent over ECHR decision. if there is a conflicting UK precedent, then the UK precedent will be used instead. However, in Ullah the court held that if the ECHR precedent is clear and there is no UK precedent, then the ECHR precedent should be followed.
What did section 3 of HRA say?
Section 3 of HRA required our judges to read legislation in light of the conversation. In R v A, Lord Steyn said ‘ when interpreting an act so it is compatibale with the convention may involve linguistically straining words so far as it is possible to do so’. The use of section 3 can be seen in the case of Ghaidan V Godin Mendoza.
The courts had to interpret the rent act 1977 so that it did not discriminate against homosexual couples. The act said that the couple must be ‘living together as though they were husband and wife’. The court read the act as though it said ‘his or her husband or wife’ so that it would apply to same sex couples.
What does section 3 of the HRA give the judges an option to do?
Section 3 of HRA gives judges much wider powers of interpretation using the purposive apprach than a judge would normally have and this leads to judicial law making which is against the seperation of powers. However, Parliament is supreme and they wrote the human rights act which directed judges to interpret widely.
What does section 4 of the HRA say?
Section 4 of the HRA is used to give a declaration of incompatability, when section 3 does not work. In Re W and B: Lord Nicholls said ‘if the part of the law that illegally removes human rights is fundamental then the judge cannot alter it and it should be sent back to parliament to be changed using S.4 HRA.’
The application of section 4 can be seen in the belmarsh case - The anti terrorism and crime and security act 2001 allowed the foreign nationals to be held indefinitely without fair trial if they were detaned under suspicion or terrorist activity.
The purpose of the act was to remove these rights so to change the act would be changing its fundemental purpose. Therefore, the courts issued a declaration of incompatibility.
This means that the offending legislation gets applied to the case, but then sent back to Parliament. In Belmarsh the detianees had to go back to detention. However, the judges are respecting parliamentary supremacy by not changing fundemental laws.
What does section 7 of HRA say?
Under section 7 of the HRA individuals can rely on domestic courts to uphold human rights and they may no longer have to use the right to individual petition and go to Strasbourg. This means individuals no longer need to spend the time and money to have their case of human rights answered.
This means more people may be able to challenge human rights.
CONCLUSION
In conclusion..
The HRA has strengthened our commitment to the convention on human rights as it is now a legal obligation. The HRA has brought a lot of changes but they have all been measured chnaged allowing for the fundemental principles of seperation of powers and parliament supremacy to be taken account of.
