Topic 5 - Human Rights Protection in UK Flashcards
Reasons for introducing HRA 1998
- UK is a dualist system – international agreements do not have automatic effect domestically
o HRA 1998 incorporated ECHR domestically
o White Paper, Rights Brought Home – HRA makes ‘directly accessible the rights which British people already enjoy under the Convention. Bring those rights home’
o International Transport Roth Gmbh – Laws LJ described HRA as providing a ‘democratic underpinning to the common law’s acceptance of constitutional rights and procedural means for their enforcement’
o R v Lambert – HRA gave further effect to rights and freedoms guaranteed under the Convention domestically - Pre-HRA, protection in UK was fragmented
o HRA incorporated all human rights protection together - Pre-HRA, there were no domestic remedies available for human rights claims
o HRA introduced domestic remedies - Pre-HRA, Parliamentary acts could interfere with human rights
o HRA introduced way for courts to challenge incompatible legislation – gives judicial weight to human rights
o Since HRA is an Act of Parliament, they consented to the limits to Parliamentary sovereignty however still restricts PS as have to ensure compatible with ECHR - HRA gave way to challenge actions of public authorities
- HRA introduced legal certainty and predictability
- HRA introduced legal accountability – strengthened rule of law
Structure of HRA
- Section 1
o Incorporates rights protected under ECHR, First Protocol, Thirteenth Protocol
o Protects civil and political rights (excludes cultural and economic) - Section 2(1)
o Domestic courts must take into account any Strasbourg jurisprudence - Section 3
o So far as is possible to do so, primary and subordinate legislation must be read and given effect in way that is compatible with Convention rights
o Court will resolve issue of incompatibility through interpretation
o Bellinger v Bellinger – court declared that law is incompatible as not possible to interpret ‘man and woman’ to encompass right for transgender to marry - Section 4
o If interpretation not possible, courts will issue a declaration of incompatibility
o Court cannot set aside incompatible primary legislation, but can disapply subordinate legislation – RR v Sec of State for Work and Pensions - Section 6
o Unlawful for any public authority to act in way that is incompatible with Convention rights
o Defence if action is based on primary legislation – respect of Parliamentary Sovereignty - Section 7
o Only victims of unlawful acts may brin legal proceedings or rely on Convention rights - Section 8
o Domestic remedies available - Section 10
o When declaration of incompatibility is made, a minister responsible for legislation has to make changes to make it compatible with Convention rights
HRA and Covid-19
- Violations of negative obligations
o Detention powers interfering with art 5 right to liberty
Restriction of gatherings and restriction on leaving house
However, Protection of health was a legitimate aim
The restrictions were legally prescribed and proportionate
Rights they interfered with were qualified rights
o Prohibition of assembly and meeting family members – interfered with article 10
o NHS staff not allowed to perform assessments and care support, withholding and withdrawing ventilatory support, impact on elderly – interference with art 2
o Remote court hearings interfered with art 6
o Closure of schools interfered with right to education
o Delayed information regarding virus, death toll – interfered with article 10 right to information - Violations of positive obligations
o Exempted liability of health care workers
o Prevented operational measures to not overwhelm hospitals – life-saving treatment deprived
o Lack of PPE – breach to right to life/health - UK did not invoke article 15 ECHR derogations
- Coronavirus Act s19 – statement of compatibility with HRA
- House of Commons, House of Lords Joint Committee on Human Rights - It is incumbent on the Government to ensure it can justify its decisions as necessary and proportionate, and based on relevant scientific evidence with a precautionary approach to minimising the overall risks to life.
Relationship between ECtHR and British Courts
- Concerns that if all HRA does is to incorporate rights protected under ECHR and domestic courts have an obligation to take consideration of ECtHR jurisprudence, it does not leave much scope to domestic courts for interpretation outside provisions of ECHR and expand court further
- Domestic judges have to follow take into account judgment of ECtHR.
- There is no precedent in ECtHR so ECtHR does not have to follow its own judgments so why should domestic courts have to follow previous ECtHR judgments – Sales
- Sales - However since purpose of HRA is to give effect on domestic plane to Convention rights set out in ECHR, and it is the ECtHR empowered to give authoritative rulings as to the meaning and effect of those rights, domestic courts ought properly to be guided by what the ECtHR has ruled
- ECHR is a living instrument and so open to change (e.g. in context of extra-territorial protection of human rights) so why should domestic courts be constrained to follow ECtHR?
- Is ECtHR case-law a ceiling or a floor of rights?
o Campbell v Mirror Group Newspapers Ltd - demonstrates that there is nothing to prevent domestic courts from expanding scope of protections embedded in HRA. Right to privacy (art 8) was interpreted by domestic courts before ECtHR gave interpretation in Von Hannover v Germany. Shows that s2 does not place domestic judges in shadow of ECtHR
o Marckx v Belgium; Handyside v UK – it is for the respondent state alone to take the measures it considers appropriate to ensure domestic law is coherent and consistent. Since ECtHR allows states discretion, domestic courts should also have discretion on when to apply s2
o R (Ullah) v Special Adjudicator – while Strasbourg case law is not legally binding on UK courts, they should follow cleat and constant ECtHR jurisprudence
Seems UK courts have restricted themselves, as they actually only have to ‘take into account’ ECtHR jurisprudence, not follow it
o B v Secretary of State for Home Department – took broader view on protecting article 8 right to family life – main importance of Strasbourg case law is to illuminate the core value which article 8 exists to protect. ECtHR not an appellate court so domestic courts have more flexibility
o Horncastle v United Kingdom – taking Strasbourg jurisprudence into account is entirely different to being bound by it. ECtHR role is complementary not decisive
o Sir L Blom-Cooper – Strasbourg Court is the guardian not the determiner of Convention rights
o Clayton – there are no self evident reasons for prohibiting the domestic courts from taking their own direction when deciding Convention cases – the Ullah principle is not based on firm foundations and is ripe for reconsideration. ECtHR should not define the ceiling of Convention rights under HRA.
o Lord Irvine – domestic courts have proceeded on the false premise that they are bound to follow any clear decision of ECtHR. However s2 HRA means domestic courts always have a choice to follow ECtHR and it is domestic courts judge’s duty to decide cases for themselves
Proposed reforms to HRA
Modern Bill of Rights
o That the ECtHR is no longer binding on Supreme Court – Repeal of s3 HRA under Bill of Rights Clause 2
o That the ECtHR is no longer able to order a change in UK law and becomes an advisory body only
o Break formal link between UK courts and the ECtHR. UK courts will have final say on interpretation of ECHR – Bill of Rights Clause 3
o Re-interpretation
o Limit use of human rights laws to most serious cases
o Limit use of human rights to UK and not extraterritorially
o Permission stage
o Higher threshold for bringing claim
o Require greater weight to views of Parliament than ECtHR
Reasoning for reforms of HRA
o Protection of Parliamentary Sovereignty
Othman v UK - individual suspected of involvement in Al-Qaeda activity. ECtHR ruled UK could not deport Othman to Jordan as if deported would be tortured in Jordan. ECtHR confirmed that UK was legally bound under obligations of ECHR to not deport Abu Qatada. UK believed European court has impacted their sovereignty as ECtHR has expanded its jurisdiction extra-territorially
Democratic deficit – ECtHR can make decisions which may have impact on finance of states. Concern that UK has spent millions making its case before ECtHR to deport individual in Othman case– HRA posed significant restraint on ability to take action (damages sovereign interest)
o Protect Margin of Appreciation
the fact states have to measure their actions has raised concerns from states. States want to feel unrestrained when applying what is in the best interest (margin of appreciation)
o New Bill of Rights would create legal certainty
Current confusion over whether states have to comply to Strasbourg jurisprudence and also confusion over context of specific rights
Reasoning against reform of HRA
o Impact on universality of human rights
Professor Francesca Klug – additional hurdle for individuals to bring claim through permission stage by having to demonstrate they have suffered a significant disadvantage
o Making threshold higher to bring claim to domestic courts means more cases go to Strasbourg
Baroness Sarah Ludford – we would be gong back 25 years with people going to Strasbourg to get rights enforced as they didn’t have channels under UK domestic law
o Tyrell – fact that wording of new Bill of Rights is to replace HRA rather than repeal, shows HRA act has significantly contributed to embedding human rights as part of our constitutional landscape. Before implementing a new Bill of Rights, first need to build public engagement and endorsement and ensure there is internal coherence within the party promoting the new Bill to actually gather support for it
