The human rights act 1998 (1)

Question 1

Is the UK a dualist state or a monist state

Answer 1

Dualist

Question 2

What happens in a dualist state

Answer 2

treaty ratified by the government does not alter the laws of the state unless and until it is incorporated into national law by legislation

Question 3

what does the HRA 98 do

Answer 3

it incorporates the conventions rights into domestic law

Question 4

what does the HRA provide

Answer 4

a charter of rights no enforceable before the domestic courts

Question 5

what is the effectiveness of the Human Rights Act 1998

Answer 5

It rests on three foundations

1) the willingness of the judges to defend rights robustly, i.e. to interpret convention rights in a manner favouring individual protection against governmental encroachment;
2) Parliament’s willingness to amend the law to ensure compliance with declarations of incompatibility with the convention rights; and
3) the effort with which individual citizens are prepared to asser their rights in courts of law

Question 6

summary of what the three foundations where the effectiveness of the HRA rests

Answer 6

• willingness of judges to interpret convention rights against govenrmental encroachment
• parliament’s willingness to amend the law ensuring compliance of incompatibility
• effort which individual citizens are prepared to assert their rights in courts of law

Question 7

Does the HRA incorporate the ECHR in its entirety

Answer 7

No, only rights listed in section 1

Question 8

Why is Article 1 (obligation to respect human rights) of the ECHR not incorporated

Answer 8

UK’s explanation to the public is -
article 1 is introductory and is not incorporated into the human rights act - this would have established the UK’s obligation under international law to abide by the ECHR - and arguably is not appropriate for this to have effect in domestic law

Question 9

Why is article 13 also not incorporated

Answer 9

By creating the human rights act, both article 1 and 13 of the ECHR has been fulfilled by the UK
Article 1 - HRA is the main way of doing this for the UK
Article 13 - ensures where rights have been violated they are able to access effective remedy - HRA designed to make this happen

Question 10

What was another reason to why article 13 was not incorporated

Answer 10

it might cause confusion with the remedies envisaged in the Act - Section 7 - proceedings

Question 11

What does section 7 of the HRA say

Answer 11

person who claims that an authroity has acted (or proposes to act) in a way which is made unlawful by section 6(1) … may bring proceedings against in appropriate court or tribunal

Question 12

what does appropriate court or tribunal mean

Answer 12

section 7(2) HRA says that it means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority, including a counterclaim or similar proceeding

Question 13

what do rules mean

Answer 13

section 7(9) HRA says rules made by the secretary of state for those purposes of the section or rules of court

Question 14

what does section 7(1)(b) HRA 98 say

Answer 14

…rely on the convention right so rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act

Question 15

what does section 7(7) HRA 98 say

Answer 15

for the purpose of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34…

Question 16

Using Article 34 of the ECHR, what can a victim be

Answer 16

an individual, group of people, non-governmental organisation (could be a private company)

Question 17

what case proves that parties ‘must’ be a victim

Answer 17

Lancashire CC v Taylor

Question 18

what does the case of Lancashire CC v Taylor say

Answer 18

T appealed against an order for possession made in respect of his agricultural holding, respondent was T’s landlord and owner of the land
t’s tenancy required him to use the holding for agricultural purposes only
BUT, respondent discovered stuff was not being produced on the holding

Question 19

what did the CA hold in the case of Lancashire CC v taylor

Answer 19

A person could not apply under the HRA unless he was adversely affected by it, did not depend on their status or property but solely on the content of the covenant alleged to be breached
T could not be regarded as a victim for the purposes of s.7 of the HRA act or the convention

Question 20

What was held that includes ‘victims’ by the ECtHR

Answer 20

family members where the actual victim died as a result of the infringement - McCann v United Kingdom

family members when the victim died after starting proceedings - Loukanov v Bulgaria

Question 21

what case supports where family members are victims if the actual victim died from the infringement

Answer 21

McCann v UK

Question 22

what case supports family members to be victims when the actual victim died after starting proceedings

Answer 22

Loukanov v Bulgaria

Question 23

What is the time limit of proceedings for being brought

Answer 23

Section 7 (5)(a) - period of one year beginning with the date on which the act complained of took place; or
s7(5)(b) - such longer period as the court or tribunal considers equitable having regard to all circumstances

Question 24

What section essentially safeguards the existing human right

Answer 24

Section 11 of the HR where it says - a person reliance on a convention right does not restrict -

a) any other right or freedom conferred
b) his right to make any claim

Question 25

can common law and statutory rights continue to exist alongside the HR 98/Convention rights?

Answer 25

Yes it can

Question 26

what does article 14 of the ECHR say

Answer 26

prohibition of discrimination - enjoyment of the rights and freedoms shall be secured without discrimination on any ground….