The human rights act 1998 (1) Flashcards
Is the UK a dualist state or a monist state
Dualist
What happens in a dualist state
treaty ratified by the government does not alter the laws of the state unless and until it is incorporated into national law by legislation
what does the HRA 98 do
it incorporates the conventions rights into domestic law
what does the HRA provide
a charter of rights no enforceable before the domestic courts
what is the effectiveness of the Human Rights Act 1998
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
summary of what the three foundations where the effectiveness of the HRA rests
- 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
Does the HRA incorporate the ECHR in its entirety
No, only rights listed in section 1
Why is Article 1 (obligation to respect human rights) of the ECHR not incorporated
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
Why is article 13 also not incorporated
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
What was another reason to why article 13 was not incorporated
it might cause confusion with the remedies envisaged in the Act - Section 7 - proceedings
What does section 7 of the HRA say
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
what does appropriate court or tribunal mean
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
what do rules mean
section 7(9) HRA says rules made by the secretary of state for those purposes of the section or rules of court
what does section 7(1)(b) HRA 98 say
…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
what does section 7(7) HRA 98 say
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…
Using Article 34 of the ECHR, what can a victim be
an individual, group of people, non-governmental organisation (could be a private company)
what case proves that parties ‘must’ be a victim
Lancashire CC v Taylor
what does the case of Lancashire CC v Taylor say
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
what did the CA hold in the case of Lancashire CC v taylor
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
What was held that includes ‘victims’ by the ECtHR
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
what case supports where family members are victims if the actual victim died from the infringement
McCann v UK
what case supports family members to be victims when the actual victim died after starting proceedings
Loukanov v Bulgaria
What is the time limit of proceedings for being brought
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
What section essentially safeguards the existing human right
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
can common law and statutory rights continue to exist alongside the HR 98/Convention rights?
Yes it can
what does article 14 of the ECHR say
prohibition of discrimination - enjoyment of the rights and freedoms shall be secured without discrimination on any ground….
