Week 2 - Human Rights in Public Law

Question 1

What are rights?

Answer 1

Human rights are the basic freedoms that belong to every person in the world, from birth until death

They apply regardless of where you are from, what you believe or how you choose to live your life

They can never be taken away, although they can sometimes be restricted - for example if a person breaks the law, or in the interests of national security

These basic rights are based on shared values like dignity, fairness, equality, respect and independence

These values are defined and protected by law [equality and human rights commission]

Question 2

What are statutory rights

Answer 2

Race Relations act

Sex discrimination act

Question 3

What are common law rights

Answer 3

Habeas Corpus - Right to liberty

Right of access to the courts

R (on the application of privacy international) v Investigatory powers tribunal and others

Question 4

What is the Human Rights Act 1998

Answer 4

Social rights

Civil rights

Citizenship rights

Question 5

S1: incorporating the ECHR rights

Answer 5

The convention rights
1. In this act ‘the convention rights’ means the rights and fundamental freedoms set out in

a. Articles 2 to 12 and 14 of the convention
b. Articles 1 to 3 of the First Protocol, and
c. [F1 article 1 of the Thirteenth protocol]

Question 6

S2: Interpretation of Convention rights

Answer 6

They have to take them into account

(1) A court or tribunal determining a question which has arisen in connection with a convention right must take into account any

a. Judgement, decision, declaration or advisory opinion of the European Court of Human Rights

b. Opinion of the commission given in a report adopted under Article 31 of the convention

c. The decision of the commission in connection with Article 26 or 27 (2)

d. The decision of the Committee of Ministers taken under Article 46 of the Convention
- Whenever made or given, so far as, in the opinion of the court of tribunal, it is relevant to the proceedings in which that question has arisen

Question 7

S3: Interpretation of Legislation

Answer 7

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the conventions rights

(2) This section
a. Applies to primary legislation and subordinate legislation whenever enacted
b. Does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
c. Does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility

Question 8

S4. Declaration of incompatibility

Answer 8

(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a conventional right

(2) if the court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility

(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with. a convention right

(4) If the court is satisfied
a. That the provision is incompatible with a conventional right, and
b. That (disregarding any possibility of revocation) the primary legislation concerned prevents the removal of the incompatibility

(6) A declaration under this section (“a declaration of incompatibility”
a. Does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and;
b. Is not binding on the parties to the proceedings in which it is made

Question 9

S6: Acts of Public Authorities

Answer 9

(1) it is unlawful for a public authority to act in a way which is incompatible with a conventional right

(2) Subsection (1) does not apply to an act if
a. As the result of one or more provisions of primary legislation, the authority could not have acted differently; or
b. In the case of one or more provisions of or made under, primary legislation which cannot be read or given effect in a way which is compatible with the convention rights, the authority was acting so as to give effect to or enforce those provisions

(3) In this section “public authority” includes
a. A court tribunal and
b. Any person certain of whose functions are functions of a public nature,
- But does not include either the House of Parliament or a person exercising functions in connection with proceedings in parliament

Question 10

Section 7

Answer 10

This specifies that only the direct victim can make a claim on the basis of human rights

Question 11

What are the two key procedural articles

Answer 11

Article 1: States must secure this convention rights in their own jurisdictions (fulfilled by passing the HRA)

Article 13: Right to an effective remedy (fulfilled by the right to argue these rights in court)

Question 12

What are the 16 substantive rights

Answer 12

Article 2 - Right to life - right to an effective investigation when there’s been a death and the state is involved

Article 3 - Freedom from torture and inhuman or degrading treatment

Article 4 - Freedom from slavery and forced labour

Article 5 - Right to liberty and security

Article 6 - Right to a fair trial - right to a fair public hearing

Article 7 - No punishment without law

Article 8 - Respect for your privacy and family life, home and correspondence

Article 9 - Freedom of thought, belief, and religion - you have the right to not follow a religion as well

Article 10 - Freedom of expression

Article 11 - Freedom of assembly and association

Article 12 - Right to marry and Start a family

Article 14 - Protection from discrimination in respect of these rights and freedoms

Protocol 1, Article 1: Right to peaceful enjoyment of your property

Protocol 1, Article 2: Right to education

Protocol 1, Article 3: Right to participate in free elections

Protocol 13: Article 1: Abolition of the death penalty

Question 13

Understanding rights

Answer 13

Qualified and absolute rights - some rights and qualified and limited as opposed to some being absolute

Rights and duties

Positive and negative obligations - A negative obligation is an obligation to not interfere, does the state then have a positive obligation to protect someone from not being enslaved by someone else

Question 14

Article 8 Right to respect for private and family life

Answer 14

1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary for a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Question 15

Article 9 Freedom of thought, conscience and religion

Answer 15

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance
2. Freedom to manifest one’s religion or beliefs shall be subjected only to such limitations as are prescribed by law and are necessary for a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others

Question 16

Article 3: Prohibition of torture

Answer 16

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Question 17

Interference with a protected right must be:

Answer 17

In accordance with the law

Intended to achieve a legitimate objective

Necessary ina. democratic society ie. proportionate

Question 18

Proportionality: The Huang test

Answer 18

Does the policy/measure in question pursue a sufficiently important objective? Sometimes called a ‘legitimate aim’

Is the rule or decision under review rationally connected with that objective?

Are the means adopted no more than necessary to achieve that objective?

Does the measure achieve a fair balance between the rights of the individual affected and the wider community? In other words, is it a proportionate means of achieving the legitimate aim

Only a negative obligation can be absolute

Question 19

The constitutional effect of the HRA

Answer 19

All legislation has to be compatible with the HRA

AND

All public authorities have a duty to comply with the HRA (including the courts)

AND

The court has to interpret all legislation in a way which is compatible with human rights if possible

Question 20

Article 14

Answer 20

Prohibition on discrimination specifically that affects your human rights

All legislation has to be compatible with the Human Rights Act

All public authorities have to comply with the Human Rights Act

You can fight your human rights in domestic courts

Question 21

What if something is NOT compatible

Answer 21

Judges to interpret/read down as compatible where possible (s3)

Judges CAN disapply or quash secondary legislation:

Judges CANNOT disapply primary legislation (s4)

Judges may make a declaration of incompatibility (s4)

Question 22

Arguing human rights in practice

Answer 22

Protocol 1, Article 2: Right to education - public law projects case - failing to meet the needs set out in education and health care plan (settles out of court)

Art 9 - right to freedom of religion - R (on the application of Begum) v Headteacher and governs of Denbigh High School [2007] 1 AC 100

Question 23

The HRA and the Rwana sage

Answer 23

Two types of challenges, challenge to an individual removal or challenge to a policy as a whole

The vast majority of people were taken off the flight (individual removal)

Question 24

Art 14 discrimination

Answer 24

Not a free-standing prohibition on discrimination

Specifically a prohibition of discrimination in relation to access to your substantive rights

Eg. discrimination affecting your access to the right to education, discrimination in relation to the right to freedom of assembly

Question 25

Other international human rights instruments and courts

Answer 25

Three regional human rights courts: European, African, and inter-American

African Charter on Human and Peoples Rights, with the African Court on Human and Peoples Rights, established by the African Union

American Convention on Human Rights, with the inter-American Court of Human Rights - ratified by most central and South American states

Question 26

What ‘right’ is NOT included

Answer 26

Economic

Social

Socio-economic

Cultural

NOT enforceable in the UK: Universal Declaration on Human Rights, International COnvention on Economic, Social and Cultural rights

Question 27

What are the four schools of thought

Answer 27

1. The ‘natural’ school - rights as universal and god-given, possessed by every person by virtue of being human - exists even when not recognized
2. The ‘deliberative’ school - human rights as political choices in liberal countries, which are negotiated and agreed on;
3. The ‘protest’ school - rights as claims and aspirations by or for the poor and opposed and as a constant struggle towards justice
4. Discourse scholars - skeptical of human rights - are too individualized as opposed to communitarian - ie they belong to individuals rather than to communities, and are often imposed in an imperialist manner