Public law - Human Rights (EXM) Flashcards
What is the European Convention on Human Rights (ECHR)?
The ECHR is a list of common rights adopted by countries in the the council of Europe. They protect and enforce basic rights such as the right to life, right to a fair trail, right to marriage and others.
Why was the Human Rights Act 1998 (HRA) created? What does it do?
The Human Rights Act 1998 was created in the UK to incorporate the rights and freedoms enforced in the European Convention on Human Rights into domestic law. It provides rights to British citizens, and provides remedies in domestic court for public bodies infringing those rights.
Role of parliamentary sovereignty case - Miller 1 2017
Facts:
- In 2017, following the 2016 Brexit referendum, the UK Government announced its intention to trigger Article 50 of the Treaty on European Union (TEU) to withdraw from the EU
- Miller and others sought in the High Court to bring an action for judicial review, claiming that the Government did not have the right to give the notice under article 50 without a vote in Parliament permitting it.
Held:
Appeal dismissed; the Government could not issue a notice under article 50 without the approval of Parliament.
Judicial power case - Miller 2 2019
Facts:
- In August 2019 it was announced the Queen, on the advice of the Prime Minister, had given her consent to prorogue Parliament that September.
- This was widely seen as the Government attempting to prevent having their Brexit agenda blocked by Parliament
- An application for judicial review was made in the High Court by Gina Miller on the grounds that this violated the principles of parliamentary sovereignty and parliamentary accountability
Issues:
- Is the lawfulness of PM’s the advice to the Queen justiciable?
Held (Supreme Court):
Appeal allowed; the advice given to the Queen to prorogue Parliament was unlawful, and the prorogation itself is null
What does s.2 of the HRA say?
Section 2 requires that UK courts must “take into account” the decisions of the European Court of Human Rights (ECtHR) when interpreting the rights and freedoms.
UK courts are not strictly bound by the decisions of the ECtHR, but they are required to take them into account.
What does s3 of the HRA say? What powers does s3 of the HRA give the judiciary? Are there any limits to s3?
Section 3 grants the judiciary the power to interpret legislation in a way that is compatible with the rights and freedoms protected by the ECHR.
Limitations to this include: Only applies to primary and subordinate legislation. Has to be compatible with ECHR.
What does s4 of the HRA say? What powers does it give the judiciary? What are its limits? What effect does a ‘declaration of incompatibility’ have?
Section 4 provides the courts with the power to issue a “declaration of incompatibility” if they find that a provision of primary legislation is incompatible with the rights and freedoms protected by the European Convention on Human Rights.
The limitations to this are: A declaration does not invalidate the law in question, and the declaration is not binding to the parties involved in the specific case in which it is made
Case law for section 3 of the HRA
Ghaidan v Godin-Mendoza [2004]
Facts:
- The defendant, Godin-Mendoza (G) was in a homosexual relationship and shared a flat with his partner Wallyn-James
- The flat that was shared was under a statutory tenancy granted to Wallyn-James
- Following Wallyn-James’ death, the landlord (Ghaidan) brought proceedings against G to reclaim possession of the flat
- G argued in defendant that paragraph 2(2) [Schedule 1] of the Rent Act the RA which stated “for the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant” was inclusive of persons in a homosexual relationship
Held (House of Lords):
- Paragraph 2(2) was to be construed as inclusive of persons in a homosexual relationship
Who or what is a ‘public authority’? What does it mean to have a ‘public function’? What is a hybrid public authority?
According to Section 6(3) of the HRA, a ‘public authority’ includes:
Courts or tribunals and any person certain of whose functions are functions of a public nature.
The term ‘public function’ refers to functions or activities that have a public nature or are carried out for the public benefit.
A hybrid public authority is a concept that arises when a private entity or individual, in addition to its private functions, also performs functions of a public nature.
What are the reasons for the protection of freedom of expression in a constitutional democracy?
Democratic Governance/Informed Citizenry:
Freedom of expression allows citizens to access diverse information, opinions, and ideas.
Protecting freedom of expression in domestic law (Case law)
ex parte Simms (1999):
Facts:
- The Home Secretary placed a blanket ban on prisoners giving interviews to journalists, purportedly pursuant to Rule 33 of the Prison Rules 1964, a piece of subordinate legislation
- Simms and another appellant (both life sentence prisoners) brought forward a judicial review proceeding against the Home Secretary
- The appellants argued that this infringed on their right to free speech in common law
Held (House of lords):
- Appeal allowed; the blanket ban on prison interviews was contrary to the prisoners’ right to free speech
Protecting freedom of expression under the ECHR
Handyside (1976)
Facts:
- Applicant, Richard Handyside, was charged and convicted under the Obscene Publications Act 1959 due to his published book having contained sections educating teenagers on sex
- Applicant argued that the 1959 Act breached his respective Article 10 right to freedom of expression under the European Convention on Human Rights
Held (ECtHR):
Appeal dismissed; no breach of Article 10 had been established
What does article 10 of the ECHR state
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
What are the reasons for the protection of freedom of assembly in a constitutional democracy?
- Freedom of assembly helps foster democracy by allowing people to gather peacefully to discuss political issues, organize protests, or petition the government for redress of grievances.
- Freedom of assembly, like freedom of expression, serves as a safeguard against tyranny and authoritarianism.
DPP v Jones and another [1999]
Facts:
- Dr Jones and some 40 others gathered on the grass, at the fence of the Stonehenge monument to commemorate the 10th anniversary of a protest when police clashed with travellers.
- assembly was peaceful and non-obstructive upon the highway
- the Chief Constable of Wiltshire had obtained an order prohibiting trespassory assemblies under section 14 of the Public Order Act 1986
Held:
Neither of the Appellants, nor any member of their group, was “being destructive, violent, disorderly, threatening a breach of the peace or, on the evidence, doing anything other than reasonably using the highway.”
