The effect of the HRA Flashcards
What is residual liberty?
Residual liberty is the notion that you are free to do anything as long as the law does it expressly forbid it.
Dicey on Human Rights protection?
Dicey purposes the idea that the UK does not need special rights protection as Parliament is to be treated as supreme and will not legislate contrary to human rights.
Give examples of common law rights protection.
Prior to the enactment of the HRA 1998, the common law acted as a primitive defender of human rights.
This can be seen in the case of Entick v. Carrington (1765) where the court established a basic right to privacy. Golder v. UK (1976) was an example of a ECtHR decision which provided a common law right to a fair trial, similarly the case of Sunday Times v. UK (1979) provided a common law base for freedom of expression within British law.
The Principle of Legality (the basics).
The principle of legality establishes that the courts will presume that any legislation passed by parliament is implied to be complaint with international treaties such as the ECHR.
Article 13 of the ECHR.
There is no requirements placed on a state to incorporate the ECHR into domestic law by virtue of article 13 of the ECHR.
When bringing a case to Strasbourg.
When bringing a case to Strasbourg, it must comply with articles 34 and 35 of the ECHR, which outlines the requirement of a victim and the need to exhaust all domestic remedies.
What are the powers of the ECtHR and consequences of non-compliance.
The powers of the ECtHR are outlined in article 41 of the ECHR, which grants the court the power to award compensation to aggrieved parties. Article 46 states that by ratifying the Convention the states are agreeing to abide by the ruling of the Court. However in circumstances where a state has not done so the committee of ministers will commence infringement proceedings, and this can potentially result in expulsion from the Council of Europe.
What are examples of parliament legislating against Human Rights (against Dicey)
However the Public Order Act 1989 part 2 and Obscene Publications Act 1959 are both examples of act which have been deemed contrary to rights protection despite being passed by parliament.
Majoritarian Bias in legislation?
O’Cinnedie (2015) also comments that a majoritarian bias in the formation of rights is negative as it endangers the minority rights, this could be expressly demonstrated in parliamentary sovereignity
In which case did the court outline the principle of legality?
This was outlined by Lord Hoffmann in the case of R v. SofS , ex parte Simm [2000], where he stated that “we presume even the most general words in legislation were intended to be subject to the basic rights of an individual”. He goes on to note that parliamentary sovereignty allows Parliament to legislate contrary to human rights, however the courts will push Parliament to be express about that deviation.
Principle of legality applies to which acts?
The case of R v. SofS, ex parte Pierson [1998] establishes that the principle of legality applies to primary acts of legislation.
Principle of legality’s current relevance?
the case of R v. Davis [2008] clarifies that this principle is continued past the enactment of the HRA, although its influence in now dampened by s.2(1) HRA 1998.
What is the problem with the principle of legality?
This comparison with s.2(1) HRA highlights the problems of the principle, as it is unable to combat an express statute, and it is reliant on pre-existing common law rights.
The impact of the HRA?
The HRA establishes legislative scrutiny at various stages, including prior to implementation (s.10 HRA), as well as during interpretation by the courts. this scrutiny subjected the legislative system to review in order to cultivate a culture more aware of human rights (Bringing Rights Home 1997).
What was established by the HRA?
The act had far reaching implication including a Joint Committee on Human Rights.
