Lecture 15: HRA 1998 Flashcards
What is the main purpose of the Human Rights Act (HRA) 1998?
The main purpose of the HRA 1998 is to provide a faster, less expensive domestic remedy and strengthen the protection of human rights in the UK.
Does the Human Rights Act 1998 undermine the Sovereignty of Parliament?
No, the Human Rights Act 1998 does not undermine the Sovereignty of Parliament. It is designed to protect human rights while respecting parliamentary sovereignty.
When did the Human Rights Act 1998 receive Royal Assent and when did it commence?
The Human Rights Act 1998 received Royal Assent in 1998 and commenced in 2000.
What is the purpose of Section 1 of the Human Rights Act 1998?
Section 1 outlines the protected rights under the Act, which are based on the European Convention on Human Rights.
What does Section 2 of the Human Rights Act 1998 require?
Section 2 requires that courts must take account of Strasbourg decisions when interpreting Convention rights.
What is the duty under Section 3 of the Human Rights Act 1998?
Section 3 imposes a duty on courts to interpret primary legislation in a way that is compatible with Convention rights, “so far as possible.”
What power is granted by Section 4 of the Human Rights Act 1998?
Section 4 grants the power to make a declaration of incompatibility when legislation is found to be incompatible with Convention rights.
What does Section 6 of the Human Rights Act 1998 require from public authorities?
Section 6 requires public authorities to act in a way that is compatible with the Convention rights.
What right is provided under Section 7 of the Human Rights Act 1998?
Section 7 gives individuals the right to bring legal proceedings against public authorities or to rely on Convention rights in legal proceedings.
What does Section 10 of the Human Rights Act 1998 allow?
Section 10 gives the power to make fast-track remedial legislation if a declaration of incompatibility is made.
What is required under Section 19 of the Human Rights Act 1998?
Section 19 requires that ministers introducing a bill must make a statement that the bill is compatible with the Convention rights, or if not, explain why the government wishes to proceed despite the incompatibility.
What is Section 2 of the Human Rights Act 1998 about?
Section 2 requires UK courts to “take account” of ECtHR decisions and jurisprudence when interpreting Convention rights.
What does Section 3 of the Human Rights Act 1998 require from UK courts?
Section 3 requires that primary and subordinate legislation must be interpreted in a way that is compatible with Convention rights “so far as it is possible to do so.”
What was established in R (Ullah) v Special Adjudicator [2004]?
In Ullah, the court held that national courts must follow clear and constant jurisprudence of the Strasbourg court, keeping pace with its evolving case law.
What did Manchester CC v Pinnock [2010] confirm about interpreting Convention rights?
Pinnock confirmed that if there is a clear and constant line of Strasbourg decisions consistent with UK law, UK courts must follow that line unless there is a fundamental contradiction.
What did R (Elan-Cane) v Secretary of State for the Home Department [2021] clarify about domestic courts?
Elan-Cane confirmed that domestic courts can develop the law beyond Strasbourg case law, but not further than what they can be confident the European court would endorse.
What is the significance of Bellinger v Bellinger [2003] regarding Section 3 HRA?
Bellinger highlighted that when consistent interpretation of a law is not possible (e.g., in cases of gender and marriage), it is for Parliament to legislate, not the courts.
What did Ghaidan v Godin-Mendoza [2004] reveal about Section 3 HRA?
Ghaidan established that Section 3 may require courts to depart from the plain meaning of legislation to interpret it in a way compatible with Convention rights, such as including gay partners under “spouse.”
What did Secretary of State for Business and Trade v Mercer [2024] conclude about Section 3?
Mercer clarified that while Section 3 allows courts to read in words to make legislation compatible with Convention rights, it does not allow a court to completely change the substance of a provision.
What does Section 4(2) of the Human Rights Act 1998 state about declarations of incompatibility?
Section 4(2) of the HRA 1998 states that “if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility.”
When can a court make a declaration of incompatibility under Section 4 of the HRA 1998?
A court can make a declaration of incompatibility when determining the compatibility of legislation with the Convention and when it is not “possible” to interpret the provision compatibly under Section 3.
Which courts may make a declaration of incompatibility under Section 4 of the HRA 1998?
Under Section 4(5) of the HRA 1998, the superior courts—such as the Supreme Court, the Court of Session, and the High Court of Justice—may make a declaration of incompatibility.
What is the effect of a declaration of incompatibility under Section 4 of the HRA 1998?
The effect of a declaration of incompatibility is that it has no effect on the validity or operation of the legislation. It is not binding on the parties to the proceedings in which it is made (Section 4(6)(a)), but it may trigger a fast-track amendment under Section 10 or lead to legislative changes through the full legislative process.
What was the outcome in Bellinger v Bellinger [2003] UKHL 21 regarding gender reassignment?
In Bellinger v Bellinger, the court found that Section 11(c) of the Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 of the ECHR. The court declared it incompatible, leading to the Gender Recognition Act 2004, which came into force in April 2005 in response to Goodwin v UK (2002).
What was the issue in A v Secretary of State for the Home Department [2004] UK HL 56 regarding detention of suspected international terrorists?
The court considered whether the Derogation order (under Article 15 ECHR) and Section 23 of the Anti-Terrorism, Crime and Security Act 2001 were compatible with Articles 5 and 14 ECHR. The court ruled NO, quashing the derogation order and declaring Section 23 incompatible. The provisions were repealed by the Prevention of Terrorism Act 2005, which came into force in March 2005.
What was the issue in R (Nicklinson) v Ministry of Justice [2014] UKSC 38?
The applicant, who had suffered a severe stroke, wanted a doctor to assist him in dying and sought a declaration that either it was lawful to do so, or that the law criminalizing assisted suicide was incompatible with Article 8 of the ECHR.
How many justices were involved in R (Nicklinson) v Ministry of Justice?
Nine UKSC justices were involved in the case.
What was the main question addressed in R (Nicklinson) v Ministry of Justice?
The main question was whether the legislation criminalizing assisted suicide was a proportionate restriction of the right to private life under Article 8 of the ECHR.
What was the outcome of R (Nicklinson) v Ministry of Justice?
The majority (7 of 9 justices) declined to issue a declaration of incompatibility. Four justices felt the case raised controversial and complex questions of fact, while three justices thought that since the legislature was actively considering the issue, it was not appropriate to issue a declaration at that time. They suggested it might be appropriate in the future.
What does Section 6(1) of the Human Rights Act 1998 state?
It is unlawful for a public authority to act in a way that is incompatible with a Convention right.
Are there any exceptions to Section 6(1) of the Human Rights Act 1998?
Yes, Section 6(3) provides exceptions where the public authority could not have acted differently (Section 6(2)(a)) or was acting under primary legislation that could not be interpreted compatibly with Convention rights (Section 6(2)(b)).
What does Section 6(3) of the Human Rights Act 1998 define as a public authority?
A public authority includes a court, tribunal, and any person whose functions are of a public nature, but does not include either House of Parliament or a person acting in connection with proceedings in Parliament.
What is the significance of the case Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37 in relation to public authorities?
The case distinguishes between core public authorities and hybrid public authorities, helping define when an entity qualifies as a public authority under the Human Rights Act 1998.
How can a person bring a claim under the Human Rights Act 1998?
A person who believes they have a claim under the HRA may bring proceedings against the authority in the appropriate court or tribunal or rely on the Convention right in any legal proceedings (Section 7, HRA). However, they must be a ‘victim’ of the unlawful act (Article 34, ECHR).
What remedies are available under the Human Rights Act 1998?
The court/tribunal may grant relief or remedy within its powers as it considers just and appropriate. Damages may be awarded only by a court with the power to do so in civil proceedings (Section 8, HRA).
What does Section 29(2) of The Scotland Act 1998 state about legislative competence?
An Act of the Scottish Parliament is not law if any provision is outside the legislative competence of the Parliament, such as being incompatible with any of the Convention rights (Section 29(2)(d)).
What does Section 57(2) of The Scotland Act 1998 say about the power of Scottish Ministers?
A member of the Scottish Government cannot make subordinate legislation or do any act if it is incompatible with Convention rights or EU law (Section 57(2)).
How does Section 101 of The Scotland Act 1998 guide the interpretation of Acts of the Scottish Parliament?
Any provision that is outside legislative competence must be read narrowly to be within competence, if such a reading is possible, and is to have effect accordingly (Section 101(2)).
What does Section 100 of The Scotland Act 1998 state regarding bringing proceedings?
A person must be a victim under Article 34 of the Convention (as defined by the Human Rights Act 1998) to bring proceedings and rely on a Convention right.
