Protection of Rights

Question 1

What is meant by the term residual freedom?

Answer 1

We are free to do anything in which is not deemed illegal.

Question 2

What is the role of Parliament?

Answer 2

To protect these residual freedoms - Public Interest Disclosure Act 1998

Question 3

What is the role of the courts?

Answer 3

If the state interferes with your freedom, it must point to some legal authority to do this. (Entick v Carrington 1765) and Redmond-Bate DPP (1999)

Question 4

What is held in the case of Malone v Commissioner for the Metropolitan Police (1979)?

Answer 4

The executive has the freedom to do anything that is not unlawful. Phone tapping wasn’t expressly unlawful and no legal rights had been infringed.

Question 5

What does Parliament dominate?

Answer 5

The executive - must do anything parliament instructs it to do.

Question 6

What was held in R v Inland Revenue Commissioners ex parte Rossminster 1980?

Answer 6

Premises search was too vague and did not claim intention for why. Court held search complied with the act of Parliament so give effect to parliaments intention.

Question 7

(Background info) The European Convention on Human Rights Outline

Answer 7

Formed from council of Europe, not an EU treaty. Developed as a WW2 aftermath to maintain peace.

Question 8

Has the UK signed all protocols?

Answer 8

no

Question 9

What is the composition of the European Court of Human Rights?

Answer 9

47 nominated judges - 1 from each state sits in Strasbourg - Switzerland has two judges. UK accepted the right of individual petition in 1966.

Question 10

What is meant by the white paper? (Human Rights Act 1998)

Answer 10

Bringing rights home (white paper), aims to respect both the constitution and parliamentary supremacy. Obliges public authorities to perform functions in a convention friendly manner. Gives the convention significant influence over domestic law. Does not allow the courts to declare acts of parliament as invalid.

Question 11

What does Section 6 state of the Human Rights Act?

Answer 11

Public Authorities must act in accordance with convention rights.

Question 12

Is Parliament a public authority?

Answer 12

No

Question 13

What are the three sections to defining a public authority?

Answer 13

1. Standard/core p.a must always comply with convention rights
2. hybrid/quasi-public authorities – only subject to section 6 when performing public functions
3. private bodies – not subject to a duty under section 6 at all

Question 14

What was held in Poplar Housing v Donoghue 2001?

Answer 14

Functional Test - specially created to take over local authority within that area.

Question 15

What was held in Aston-Cantlow and Wilcote v Wallbank 2003?

Answer 15

Church council is deemed not a public authority as not acting on behalf of the state

Question 16

What was thew principle established in YL v Birmingham City Council (2007)?

Answer 16

Care Home was not subject to Section 8 as was not deemed a public authority.
This was overturned by the Health and Social care Act 2008.

Question 17

What is the Horizontal effect?

Answer 17

Courts must perform their functions compatible with human rights due to be a public authority. Impacts cases of individuals v individuals even when the case involves common law

Question 18

Can the courts change common law in order to comply with the Human Rights?

Answer 18

Douglas v Hello! 2001 - Court questioned and developed the common law for the right to privacy and freedom of expression.

Question 19

What was held in Thomson and Verieables v News Group Newspaper Ltd 2001?

Answer 19

Protection from Media, trying to get injunctions removed. Courts had to consider right to free speech and privacy. Due to right to life injunction should remain.

Question 20

What is the margin of appreciation?

Answer 20

Margin of appreciation – Convention itself allows margin as to application of the precedents.

Question 21

What was held in R on the application of Alconbury v Secretary of State for Environment 2001?

Answer 21

Lord Slynn court should follow any clear and constant jurisprudence of the European Court of Human Rights. (We should be following cases) – narrow slopes.

Question 22

R v Secretary for the Home department 2002?

Answer 22

Sentencing in which judge recommendation could be influenced by ministers (Stafford – two-way dialogue)

Question 23

R v Homcastle 2009?

Answer 23

Lord Phillips – There will be rare occasions when the court has concerns as to whether a decision of Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. It is open to this court to decline this Strasbourg decision.

s.3 - interpret legislation in an convention friendly way so far as it is possible

Question 24

R v A (Rape offence) 2001 -

Answer 24

Legal team were trying to question victim about sexual history. 1999 Youth Justice and criminal evidence Act – Changed way defence lawyers can deal with victim’s sexual history – cannot be cross examined. Encourage victims to come forward.

Question 25

Ghadian v Godin - Mendoza 2004

Answer 25

Spouse in rent act 1977 provision could be interpreted to include same sex couples. S3 – to an extent bounded only by what is possible a court can modify the meaning and hence the effect of primary and secondary legislation. (Lord Nicholls)

Question 26

Re S Children Care Order

Answer 26

Lord Nicholls; parliament could not have intended for the courts to go so far that they adopt a meaning which is completed inconsistent with a fundamental feature of legislation.
Section 10 – remedial orders; The power to make a remedial order arises when a declaration of incompatibility has been made and when there are compelling reasons for acting quickly.
Ministers can

Question 27

A v Secretary of the State for the Home Department (2004)

Answer 27

Section 4 – (Goes with s.3) If convention friendly interpretation isn’t possible, the court must declare an issue of incompatibility. 
Gov has three options – 
1.	Do nothing
2.	Introduce the bill to reform the law
3.	Make a remedial order s.10

Question 28

Consider the future and proposal change of the Human Rights Act -

Answer 28

• Strengthens the separation of powers and enhances the roles of judges (current)
• Clashes over prisoner voting acts (Hirst v UK 2005) and The Draft Voting Eligibility Bill 2003