Protection of the individual’s human rights and freedoms in the UK Flashcards
first generational right
types of right
- seen as fundemental in a democratic society
- include right to life, freedom from torture, right to fair trial , right to privacy
- negative rights bc they stop the state from acting in a certain way
- are justiciable bc they can be challenged in court
second generational rights
types of rights
- inlcude the right to food , water, employment , healthcare, housing and education
postive rights bc they make sure the state ensure people have these rights - are social and economic
third generational right
types of right
- new and developing such as environmental issues
- the right to econmincally develop , self determination and the right to have peace
- associated with new states that emerged after WW2
human rights are….
- universal - apply to all humans
- inalienable - cannot be taken away
- can only be limited in certain situation - (some never can)
- indivisble - the state can not pick and choose
- owed by the state to the people - postive obligation to people
levels of human rights
- absolute right - can not be restricted by the government
- limited right - can be restircted in some identifed situations
- qualified right - rights balanced against another right
natural justice
- refers to the basic fundamental principle of fair treatment
unwritten constitution
rules for running a country/gov powers are not written in one clear document
speration of powers
3 branches of governement are seperate to avoid abuse of power
parliamentary sovereignty
parliment is the most powerful body
judicial review
type of case for challanged a HR breach
civil liberty
what rights are protected in a specifc question
habeas corpus
“have a body”, principles we base a right to a fair trial
pluralism
- lots of cultures , views and religion = tolerated
in the UK
how do we enforce rights protection in the UK?
- human rights are protected by the ECHR (european convention of human rights) and Human rights act
ECHR
how do we enforce rights protection in the UK?
- the ECHR is the orginak document we get our human rights from
- however werent able to enforce them until we made the HRA 1998
who can make a human rights claim
how do we enforce rights protection in the UK?
- only if the person is directly affected by the act or decision
- have “standing”
- Section 7 of HRA
who is the defendant going to be
how do we enforce rights protection in the UK?
- a public body whos functions are of that body
- e.g council , MOJ, police
- section 6 HRA
what is the main efefct of the HRA on domestic uk courts
how do we enforce rights protection in the UK?
- makes judges consider persuasive precedent not just ignore them (section 2 HRA)
- (the ECHR and ECtHR dont bind our courts bc they need to be flexable as many different cultures and relgions )
- interpret acts so they are compatable with the ECHR (section 3 HRA)
- section 4 + 8 of HRA - give the power to do something - decleration of incombaility (gives power to the public to say that the gov are taking our HR)
- section 4 - not actually binding on government
how can the gov restrict rights
protection of rights in the UK
- bc they are not absolute rights they can be resitricted
- states can derogate (legally restrict) key rights
- they must do this based on proportionality
- states can make their own margin of appreciation to decide what is okay and not
derogation
protection of rights in the UK
- legal restriction
- usally for threat of nation
- E.G covid , terroism
breach/violation
protection of rights in the UK
- illegall/ excessive/ disproportionate
proportinality
protection of rights in the UK
- “neccessary” , “propertionate”
- not to intrusive
margin of appreciation
protection of rights in the UK
- leway in each country
- flexable , persusavie precedant
- Buckley v UK - wanted to live on caravan on their own land, got told no bc of planning permision, put through A8 (home life), said it was within margin of appreciation
- A, B, C v Ireland - two women came to england to get an abortion, not okay in ireland , said there was no breach due to wide margin of appreciation, even if goes against other europeanan states
- Pretty v UK - wished to end her life but didnt want her husband to get punished for aiding , went for A8 claim, ECtHR disagreed that the life part covered how she wanted to end it
key cases for s4 of HRA (incompatibilty)
- bellinger v bellinger - the matrimonial cause act 1937 - didn’t recognise a legitamate marriage between trans women and man , breached article 8 and 12 , led to the gender recognition act 2004
- r v secretary state for the home department - crime (sentence) act 1997 - home sec had power to fix a tarif for murders , this was incompatable with article 6 , criminal justice act 2003 - moved power to judges
- a v secretary state for home department - c arrested under anti terror legislation, allowed under article 15 if was a public emergency , claimant disagreed, so did HOL agreeded, prevention of terrism act 2005
before the HRA 1998
impact of the HRA
- courts couldnt set an act of parliament aside or even question its validity
- courts had no duty to interpret domestic laws in an ECHR friendly wy
- ECtHR cases are rearely use in UK courts
- claimants had no right to argue ECHR rights in domestic courts - had to go to stasbourg (ECtHR)
after HRA 1998
impact of the HRA
- courts can issue a declaration of incompatability or interpet acts in a way to make it more comptible
- courts now have a duty to interpret domestic laws to comply with the ECHR as far as possibe
- ECtHR decisions must be taken into account by UK courts
- claimants now can direstly argue their rights in UK courts (directly enforeable)
critisms of HRA
evaluation of human rights act impact on UK
- delays
- the case wainwright v UK took 9 years to be resolved as it had to go through all the UK courts system first before they were reffered to the ECtHR
- different treatment of laws from ECtHR and the EU court
- EU law is supreme so we have to follow the decisions of the ECJ and parlimant cant legislate against it
- However, as ECtHR decisions arent directly applicable to the UK , means the UK can go against it e.g anti terrotist law Hirts v UK
- if there was a breach of EU law , it has an immediate consequence but if there was breach in UK they could just ignore it completly
to what extent do courts in the uk have to follow decisions of the ECtHR
evaluation of human rights act impact on UK
- the uk must consider any ECtHR decisions according to section 2 HRA - but do not have to follow them as its not binding precedant
- Uk judges must interpret acts to comply with ECHR if possible - section 3
- UK courts dont have the power to strike out acts that are incompatable
- margin of appreciation - the ECtHR cant tell each country what to do in a uniform way - not binding
to what extent would the recent proposals to repeal the HRA 98 be damaging to both the protection of basic liberties and the Uks relationship with the ECHR
evaluation of human rights act impact on UK
- HRA enshines into UK law so we can claim in UK courts, people wouldnt be able to bring succesful cases as easily - too expensive , too long - ECtHR admissibility criteria
- impact relations with ECHR countries and set the UK in a bad light in terms of protecting rights
- ECHR us good to have another court to appeal to above the supreme court
to what extent has the HRA remedied the deficiencies in the recognition of human rights in the UK
evaluation of human rights act impact on UK
- judges can now declare incompatibility
- UK judges must try to interpret laws to be compatable with human rights
- claimants can bring cases to uk courts - cheaper , quicker , more accessible, strain taken off ECHR
- damages from UK court
- gives judges a basis to have more judicial cases
to what extent does the HRA protect UK citizens from infringements of their human rights
evaluation of human rights act impact on UK
- doesnt protect them as well as it should because HR infringement can only be brought against a public body - limited sections 6 and 7
- reduces delays in cases - bring to uk laws
- lots of success where Uk courts have upheld human rights vs many where there werent
to what extent does the HRA destroy the principle of parlimentary supremacy in the UK
evaluation of human rights act impact on UK
- Uk parliment are allowed to pass acts that are incompatible
- but Uk courts can issue a decleration of incompatibility - UK parlimants can ignore this but it wouldnt make them popular
- they changed the law on control orders and detaining terror suspects indefinitley
Ineffective
Evaluations of human rights act protecting our rights
- Courts are not bound to rulings in strasbourg (S2) , and uk courts are known to ignore rulings alongside the government
- Hint v uk - Government ignored ruling that denying prisoners to vote is a violation of human rights
- The human rights act is not entrenched due to parliamentary sovereignty
- human rights act could be scrapped and rights would be limited to residual freedoms
- The european conservation of human rights allows for wide margins of appreciation
- Leander v sweden
article 5
Evaluations of human rights act protecting our rights - ineffective
- Not an absolute right
- Police can restrict eight during arrest without reservation - without question
article 6
Evaluations of human rights act protecting our rights - ineffective
- Qualified right
- Prosecution bias on judges - prosecute due to public pressure
- Jury may not be impartial due to the summons system
article 8
Evaluations of human rights act protecting our rights - ineffective
- State can interfere when necessary
- Hatton v Uk - balanced right of majority
article 10
Evaluations of human rights act protecting our rights - ineffective
- State can challaned - used to protect from abuse (racism)
- Uk newspapers side with political allegiances
- Handyside v uk
article 11
Evaluations of human rights act protecting our rights - ineffective
- Gatherings ‘not to an extent’
- No criminal intent (organised terrorist groups)
- Act relies on individuals, not organisations
- Can be misunderstood and misinterpreted
effectiveness
Evaluations of human rights act protecting our rights - effectivness
- Section 7 - only bring human rights case against public body directly affected
- Do not have to take case to strasbourg as made enforceable in the UK
- Section 6 - public body
- Public authorities cannot act in a way that doesn’t line up with convention
- Section 3 - interpreting acts
- Contrasts with literal interpretation and so can interpret allowing judicial power
- Section 4 - declaration incompatibility
- Decisions are binding and cannot be undone
remides
Evaluations of human rights act protecting our rights
- British bill of rights
- Unite uk citizens around a common set of valses
- Judges could strike out ‘unconstitutional’ laws
- Parliamentary sovereignty and weak political will make this unlikely
