Introduction to the HRA Flashcards
What sparked the modern concept of fundamental rights?
The liberal revolutions of the 18th–19th centuries (e.g., French and American revolutions), which asserted universal rights like liberty and equality
Why did human rights gain prominence in the 20th century?
Atrocities like WWII and the Holocaust revealed the need for universal protections, leading to the Universal Declaration of Human Rights (1948)
How are rights defined and why are they contested?
Rights are legally protected interests, contested over what rights exist (substantive) and who should interpret them (institutional)
What was unique about Britain’s approach to rights before the HRA 1998?
Britain relied on “liberties” rather than codified rights—freedom existed unless prohibited by law
What is Dicey’s view on rights in the UK constitution?
He argued that Britain had no formal declarations of rights—freedoms arose from the common law and parliamentary supremacy
What are key criticisms of Britain’s liberty-based approach?
It lacked entrenched protection—rights could be repealed by Parliament and were vulnerable to political change
How did courts protect rights pre-HRA using statutory interpretation?
Through the “principle of legality”—rights can’t be overridden unless Parliament uses clear, express language (ex p. Simms)
What role did judicial review play pre-HRA?
Courts reviewed executive actions to uphold natural justice and access to courts (Ridge v. Baldwin, Anisminic)
How did courts enhance scrutiny in rights-related cases?
They developed “most anxious scrutiny” and required strong justifications for interferences (Bugdaycay, ex p. Smith)
What were the limitations of pre-HRA judicial protection?
Common law rights were weak, inconsistent, and often deferred to executive power (Liversidge v. Anderson, Malone)
What is the ECHR and when was it drafted?
The European Convention on Human Rights (1950) protects civil and political rights. Britain ratified it in 1951
Why was the HRA 1998 introduced?
To “bring rights home”—allow domestic enforcement of ECHR rights, reduce Strasbourg litigation, and align with UK legal traditions
How does the HRA maintain parliamentary sovereignty?
Through Section 3 (rights-compatible interpretation) and Section 4 (non-binding declarations of incompatibility)
What is meant by ‘weak-form judicial review’ under the HRA?
Courts can identify rights breaches without striking down laws, allowing Parliament the final say
What are key criticisms of the HRA from both sides?
- Left-wing: Undermines democracy, neglects social rights
- Right-wing: Mischaracterised as a criminal’s charter, seen as limiting national sovereignty
