the impact of human rights Flashcards
sytill need to do indepependant human rigts act review
what does section 1 of the HRA bring in
Articles 2-12 and 14 European Convention of Human Rights
First Protocol Articles 1-3
Protection of Property
Right to Education
Right to free elections
before the HRA, where did people take their cases to
ECtHR (European court of human rights)
what could they not do in a UK court
They could not argue a case based on a breach of the ECHR in a UK Court.
whats a case example of human rights not being protected very well prior to the HRA 1998
think newspaper
Sunday Times v UK (1979)
where did the HRA come from
labours 1997 manifesto
what were the 3 main purposes of the HRA when it was passed
To ‘bring rights home’ as promised in the Labour manifesto. This was based on allowing UK citizens to challenge human rights issues in UK courts rather than having to go to the ECtHR
Establishing a ‘rights culture’ in the UK
Enabling UK courts to contribute to and help shape the ECtHR case law and decisions
what section is about the impact of the HRA
section 6
what 3 things does section 6 state
it is unlawful for a public body to act in a way which is incompatible with the articles
proceedings can be brought by an individual in a court or tribunal
action can only be taken against a public body carrying out a public functions (not private business, companies, individuals need to be connected to gov)
what type of relationship must it be between the individual and the state
vertical (have more power in decision making e.g governemnt)
what relationships are not covered by the HRA
horizontal relatiosnhips between private individuals
what 3 sections are to do with judicial decisions
section 2
section 3
section 4
what does section 2 state
Any court/ tribunal deciding a case under HRA must take into account all past judgements, decisions, declarations and opinions of the ECtHR
what does section 3 state
UK law should wherever possible be interpreted so it is compatible with the ECHR (senior uk courts decide this)
what cases tell us there has been conflict in how these sections of the HRA have been interpreted by the courts in England and Wales
R (Alconbury) v Secretary of State for the Environment (2001)
Kay v Lambeth (2006)
what does section 4 allow
allows UK courts to make a declaration of incompatibility when a UK act of parliament is not compatible with the ECHR
who can overrule legislation
parliament not courts
can courts make a declaration of incompatibility
yah (ur doing great!)
why may they do this (3 reasons)
protects UK parliamentary sovereignty (supremacy)
after a courts declaration parliament can decide whether to repeal (get rid of). Amend (change) the legislation or simply to do nothing and ignore court judgement
if a change in law happens it only affects future cases- the decision in the case will not be change retrospectively
what does the case of R (Alconbury) v Secretary of State for the Environment (2001) state
house of lords held that UK courts should ‘‘in the absence of some special circumstances, follow any clear and consistent rulings of the ECtHR’’
what does the case of Kay v Lambeth (2006) state
if a UK court is faced with conflicting domestic UK precedent & a decision of the ECtHR, it should follow domestic precedent and refer a case for appeal.
whats the case for declaration of incompatibility
Bellinger v Bellinger (2003)
case facts
court made a declaration of incompatibility under the Human Rights Act 1998 regarding the non-recognition of gender reassignment for the purposes of marriage. This case significantly influenced the legal landscape regarding the recognition of gender identity and the rights of transsexual individuals within the context of marriage
Gender recognition act 2004
C was a transgender woman who wanted to marry a man
House of lords didn’t legally reconsider the marriage as UK law at the time did not recognize a change in gender
R (Anderson) v Secretary of State for the Home Dept (2002)
A and Others v Secretary of State for the Home Dept (2004)
what sections are to do with HRA and UK legislation
section 19
section 10
what does section 19 state
When parliament introduces a new law the relevant minister must make a statement of compatibility before second reading that is compatible with ECHR
what can this gov minister also do
However when promoting a Bill through Parliament, a government minister can state it will be necessary to depart from (ignore) ECHR.
This power has mostly been used to relax or suspend Articles 5 & 6
This must be approved by parliamentary resolution
what does section 10 allow
Gives relevant government ministers power to amends any UK legislation that has been declared incompatible with ECHR, without having to go through the full parliamentary process
what section is to do with remedies under HRA 1998 and what does this include
s8
If actions of a public authority are unlawful, any remedy that is ‘just and appropriate’ should be applied by the court
what can this include
This could mean damages (compensation) or an injunction.
whats a case example of this
Metropolis Police Commissioner v DSD, NBV (2015)
(Two female victims of John Worboys (serial rapist) awarded compensation as they said the police had not properly investigated their crimes)
Before 1998 citizens still had some protection of rights in UK domestic law. What was this under?
Magna Carta and under the Common Law.
what could gov depts be challenged under
judicial review
what type of rights have some acts of parliaments created
express rights (freedom of expression- key part of democracy)
whats an example of this
Police and Criminal Evidence Act 1984, which gives rights to suspects when they are detained by the police.
what is devolution
power being passed to Scotland, Wales and Northern Ireland to make laws for themselves in certain areas
what is entrenchment
procedure that makes an Act of Parliament very difficult to amend or repeal
what does it require for any repeals or amendments to take place (think %)
requires a 75% majority of votes in the house of commons, before any amendments or repeal can take place
why is entrenchment near impossible in UK law
parliamentary supremacy
as you can’t bind a future parliament therefore you can’t prevent a future parliament from repealing a law
what type of ‘entrenched’ are UK rights
politically entrenched
what may this mean
this means any government is unlikely to make the decision to repeal HRA as it would be political suicide and they would be unlikely to win another election
whats the gov commission that looks into issues of the HRA
Independent Human Rights Act Review
what have they recently suggested (2 things)
s.2 (court should ‘take into account’ past decisions of ECtHR) should be amended to clarify order of priority for UK courts to use when applying various types of laws, which should be:
UK legislation
Common law and other case law
ECtHR decisions
and that the UK approach to margin of appreciation should remain
