topic 7 intro to hra

Question 1

doyle and wells

Answer 1

2 limtations pre hra
1. parliamentary sovereignty - any legislation could override rights recognised/protected by common law
2. matter of technique - the fact we are free to do anything not required by common law reflects are rights are residual

Question 1

pre hra position

Answer 1

-civil liberties based on freedoms - individuals were free to act how they wanted as long as it wasnt prohibited by law
- liberties suseptible to enroachment by primary legislation

Question 2

domestic effect of the convention pre hra (3)

Answer 2

1. individuals could go to the echr after exhausting all domestic remedies
2. costly and time consuming
3. judicial remedies at domestic level were hard to come by

Question 3

limits of the conventions role in the uk pre hra

Answer 3

• direct reliance on convention rights was not possible
• ambiguity in the statute courts would assume parliament legislated in a way that was compatible with the uks treaty obligations

Question 4

simms lord hoffman

Answer 4

• principle of legality, yes parliamaent is sovereign and could legislate contrary to fundamental rights but they would have to consider the political cost

Question 5

incorporating the convention

Answer 5

• wanted to determine hr cases at domestic level
• hra gave a route to determine cases in uk courts
• hra requires that the courts must take into account the european courts decisions (art 2 hra)
• if uk courts could develop echr rights as they chose it would result in loads of appeals to strasbourg, defeating the point of the hra

Question 6

protests - detained

austin v met police commissioner

Answer 6

• protests and austin detained for 6/7 hours
• said it was a deprivation of his liberty art 5
• court argued it was innacplicbale to austins case as his libetty hadnt been deprived just temporarily restricted
• echr - also said art 5 not applicable and recognised subsidiarity - reluctant to question polices decisions on what was best to protect public order

Question 7

section 19 hra

Answer 7

• requires a minister to make a statement of compatibility when proposing legislation
  o of gov want to introduce a contrary law they can but could lead to jr and echr

Question 8

section 2 hra

Answer 8

requires domestic courts to take into account the judgment, decision or advisory opinion of the echr
- tells the courts how to interprst and apply convention rights covered by s5 hra

Question 9

section 3 hra

Answer 9

• primary and subordinate legislation must be read and given effect in a way which is compatible with the convention rights
• interpret national law and give effect to it in a way which is compatible

Question 10

R v A

Answer 10

s 41 of the youth and criminal evidence act which had a general prohibition on the admissibility of sexual history of the claimant in rape offences

Question 11

section 4 hra

Answer 11

• permits courts to declare primary legislation as incompatible with convention

Question 12

bellinger v bellinger

Answer 12

• post operative trans women
• to do with section 4 hra to declare something incompatible

Question 13

a and ors

Answer 13

belmarsh detainees case

Question 14

section 6 hra

Answer 14

• makes it unlawful for public authorities to act in a way thats incompaitble with convention rights

Question 15

section 7 hra

Answer 15

who can bring proceedings before the hra (standing)

Question 16

cases

Answer 16

• austin v met police (detained for 6/7 hours)
• R V A (youth and criminal evidence act sexual history)
• bellinger v bellinger (matrimonial causes act post op trans women)
• a and ors (belmarsh detainees case)