Week 7- Protection of Human rights

Question 1

What does section 19 of HRA 1998 relate to?

Answer 1

• A minister of the crown must make or choose not to make a declaration of incompatibility before second reading in relation to a proposed bill, to assess whether it is compatible with the HRA 1998.
• If he concedes that he cannot make a statement of compatibility, he can choose that the house nevertheless wishes to proceed with the bill.

Question 2

What is the importance of s19 of HRA with regards to parliaments process in protecting human rights?

Answer 2

• This shows the importance of parliaments role in the process of protecting HR because it prompts the government to provide intense scrutiny of bills by parliament, and for ministers to make careful consideration on the bills ability to protect HR,
• This must be done before the second reading of the bill, and collaboration/ work of the JCHR remains imperative.
• The minister must first come to a view that the bill is or isn’t compatible, and without an expertise on HR, they are to seek further advice from civil servants and lawyers, and more specific human rights committees, helps to improve the procedure of parliament.

Question 3

R(Animal defenders) v Culture secretary [2008] UKHL 15 facts and significance?

Answer 3

Facts- The appellants argued that the Communications act 2003 was incompatible with HRA art 10 on freedom of speech, when it implemented a ban on political advertising. It was held that whilst parts of the act may infringe on art 10, it was nonetheless lawful.
-Ministers could not make a statement of compatibility, but the courts also took the stance that it wasn’t necessary and didn’t effect the operation of the statute.

Significance- It was held to be in the interest of public policy to allow the ban on the freedom of expression of the political message, to stop the abuse of political groups using the ‘immediacy of TV and radio’ to spread propaganda.
-There is a trade off between protecting individual rights, and taking a wider stance in protecting the interests of the public; HR are not conclusive and cannot effectively provide for every persons interests.

Question 4

What are the argument in favour of parliament as the protectors of HR in comparison to the courts, according to M Hunt??

Answer 4

• Public Accountability: It is wrong to allow judicial review (as per Waldron), with scrutiny of law and policy attributable to parliament as they are politically accountable whereas it is wrong leaving it to unaccountable judges, due to ‘persistent and inevitable conflict both over what rights are and how they should apply’ (as per Evans and Evans).
• Internal accountability:Parliament also plays the role of holding the executive to account and ensuring they comply with HR, overseeing their work and bills.
• Democracy and PS: As our courts cannot strike down legislation, it is down to parliament to act on recommendations of incompatibility and amending bills appropriately; their accountability allows for a democratic approach and involvement from wider society

Question 5

What is the JCHR and what does it do?

Answer 5

Joint committee on Human Rights

-It has examined every bill since 2001 and has challenged ministers who can’t provide statements of compatibility.

Question 6

How has the JCHR upheld parliaments role as the guardians of HR?

Answer 6

-Overall the committee has upheld parliaments role by keeping their agenda during legislating focused on the HRA, its meaning and intention, to ensure adequate understanding and consideration of such rights, from different political and societal viewpoints, in order to provide intense scrutiny before laws are even subject to judicial review.

Question 7

What does S3 of the HRA 1998 do?

Answer 7

Section 3 of HRA 1998- Interpretation of legislation.

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 Convention 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

R v A facts and significance

Answer 8

Facts- a victims sexual history was admissible as evidence, despite statutory protection for victims from indignity and humiliating questions, where non-admissible evidence would impede on the defendants rights to a fair trial

Significance- Judges held that the right to a fair trial was fundamental and absolute, and D would be denied this if this evidence was not admissible. The rule of law would also regard it as fundamental.
-Trade-off to be had between the hierarchy and importance of the rights of different parties, as well as wider principles of fairness and legality.

Question 9

What did Lord Steyn famously say with regards to the use of s3 and s4??

Answer 9

“It will sometimes be necessary to adopt an interpretation which linguistically may appear strained. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so” (Lord Steyn)

Question 10

Ghaidan v Godin Mendoza facts and significance?

Answer 10

Facts- s3 of HRA 1998 dictated that the Rent act 1977 could be done so as to be compliant with article 14 of HRA. The rents act should be read and given effect to, as though the survivor of a homosexual couple living together was the surviving spouse of the original tenant.

Significance- Art 3 of HRA 1998 (judicial interpretation) triggered here in order to eliminate the adverse readings of a past act, in order to protect the rights of same sex couples in the way that heterosexual couples were protected, and that courts would read the HRA and said act as compatible, rather than declaring incompatibility and requiring amendment.
-The courts had the role here in protecting rights in an act of parliament which otherwise may not have done so.

Question 11

R(Wilkinson) v IRC 2005 (Lord Hoffman)

Answer 11

Facts- W appealed against the decision to refuse him a tax allowance equal to that of a widow, after becoming a widower when his wife died. He based his appeal on art 14 of HRA 1998 in that the relevant tax law was discriminatory based on sex.
-It was held that it wasn’t possible to read ‘widow’ as ‘widower’ by application of the interpretation act 1978 s6, since a contrary intention was abundantly clear from the tax provision act 1988.

Significance- Therefore, interpretation is limited to the small range of meaning which the words in legislation could reasonably take, and they don’t have unlimited scope for meaning. If the provision or act cannot be understood, in any way, as compatible with convention rights, art 3 becomes ineffective as the statute is none the less applied, even if at conflict with human rights. The courts can’t simply change the meanings of acts of parliament in order to ensure compatibility.
-Also illustrates the importance of the existence of s4 as a safety net in the event of the failure of s3.

Question 12

What is Foleys understanding/ model of deference??

Answer 12

-Foleys understanding of deference is where the courts “A” decide case “C” not through an independent assessment of the case, but through the decision of some other body (parliament) “b”. B provides authority for A’s decision about C. A must have respect for B when deciding C. Foley makes the distinction between a model of deference as respect for parliament, compared to submission to parliament. Respect through deference considers the opinion of parliament but doesn’t automatically reside with the decision.

Question 13

What is the basic definition of deference?

Answer 13

Deference= polite submission and gestures of respect.

Question 14

What does Alison Young say about the benefits of deference by the courts towards parliament? (constitutional dialogue)

Answer 14

1) The accountability of the government to parliament does not allow the executives views to stand unchallenged, as question times and opposition parties are still involved in debates, which provide that human rights are considered during scrutiny of bills before they even become a matter for the courts. It is not necessarily a bad thing to revert cases in which problems arise back to the legislature for further consideration by both accountable and non-accountable members with varied experiences, expertise and partisan views.
2) It is better for courts to hear from expert witnesses to determine constitutionality rather than deferring to the legislature just because of their greater expertise
3) The reason for deferring to the legislature based on their expertise and knowledge is done for constitutional reasons; not because the legislature has more facts or experience but because the legislature has the role of authoritatively determining outcomes where there is insufficient evidence to support the choice of one outcome over another.

Question 15

How might S3 of HRA blur the distinction between the legislature and the judiciary?

Answer 15

• s3 blurs the distinction between the function of the judiciary and the legislature, namely as it widens the scope of legislative intention, increasing the possibility of divergence between the intention of parliament and the meaning given to statues. (This is still limited by the meanings of the words, but in different contexts may be bent further than is reasonable.)

Question 16

How might s3 diverge from the Rule of law and its law guiding ability??

Answer 16

-It diverges from the rule of law as to allowing citizens to plan their lives around knowing the law, introducing uncertainty as there is ‘frequently a good deal of uncertainty regarding the true meaning and effect of convention rights which is then compounded with significant uncertainty about whether a rights-compatible interpretation of any particular domestic statute is possible’

Question 17

What does s4 of HRA 1998 do?

Answer 17

-It allows courts of high court status or higher to make a declaration of incompatibility of an act of parliament, but it does not affect the validity, continuing operation or enforcement of the provision.

Question 18

R(Anderson) v home sec facts and significance?

Answer 18

Facts- SS set a tariff determined the minimum period of imprisonment for a prisoner, impeding on his right to a fair trial under art 6. It was a job for someone independent of the executive and could not be read as compatible under s3

Significance- Express words could not be read to mean contrary to the express provisions on the statute. “Independent” was someone independent of parties of the case and the executive
–“It would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice. Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute”

Question 19

Bellinger v Bellinger facts and significance?

Answer 19

Facts- a transgender woman’s marriage with a man could not be valid without a radical change to the law. The marriage was not valid under the existing laws and extending the words ‘male’ and ‘female’ could not be read to be consistent with HR, prompting a declaration of incompatibility under s4, rather than an extended reading of compatibility under s3.

Significance- The issue was so wide-reaching that it was a matter for parliament to consider in a series of sweeping reforms in relation to the rights of transgender people. It prompted a wider discussion of social change and acceptance for transgender people which needed further parliamentary deliberation.
-Therefore, it becomes a job for parliament to honour this clear and highly important breach of HR, as once a declaration of incompatibility had been made it attracts more publicity and engages society in holding the government to account, as they expect the government to react positively.

Question 20

What assumption about parliament does the use of s3 rely on?

Answer 20

-This view (incorporationists) relies on the assumption that parliament intends to conform to human rights when enacting legislation and therefore believe in the strength of their scrutiny processes, with the courts relying on s3 most of the time to read all statutes as compatible with human rights, taking as a wide an interpretive stance as is possible, given the range of possible understandings available within the words.

Question 21

What argument does Hickman recognise against the use of s4 and the role of the courts in applying it?

Answer 21

-Arguments against s4 of HRA suggest that it transforms the role of the judiciary into a ‘form of privileged pressure group whose function it is to raise a good reason why a litigants interests should be respected’ going further than just providing checks and balances but ‘counsel’ instead.

Question 22

What arguments are there for constitutional dialogue according to Hickman??

Answer 22

• The second view recognised by Hickman is that human rights are too important and intricate to be left solely to an unaccountable judiciary rather than wider society through democratic representation. This view allows courts to participate more so in political debate (deference) rather than removing HR from politics completely. This view resonates with constitutional dialogue. S4 allows for the courts to declare their view of interpretation to the legislature, leaving it to them to implement change, with the relevant minister making statutory amendment if there are ‘compelling reasons to do so’.
• Therefore s4 appears to provide for an effective communication between the 3 main branches of the state without over-stepping their boundaries associated with the partial separation of powers theory. This does still rely on the relevant minister finding ‘compelling reasons’ to make sufficient amendments to provide compatibility.

Question 23

What is the relationship between s3 and s4??

Answer 23

The two sections co-operate, with s3 firstly providing the courts with very reasonable powers to construe legislation as compatible with human rights. S4 then becomes useful when construing legislation as compliant with HRA is impossible, given the limitations of the meaning of the words used within the statute. The public engagement that is triggered in declarations of incompatibility can ensure that the executive takes account for the relevant statute and may explain why parliament is yet to ignore a declaration

Question 24

How is the relationship between s3 and s4 satisfactory?

Answer 24

The relationship between the two is a satisfactory one because it ensures the protection of HR is not done solely by one branch of the state, when contention around the protection of a right arises.

Question 25

How many declarations of incompatibility have been made between 1998 and 2013 and what does it suggest about the relationship between s3 and s4?

Answer 25

-For this reason, only 20 declarations were made between 1998 and 2013, suggesting that art 4 falls as a last resort, acting as a safeguard in the event of a failure to exercise art 3.

Question 26

What could be the practical implication of using s3 and assuming parliament always legislates in accordance with HR??

Answer 26

-There can be very large disagreements between what parliament intended when enacting a statute, compared to the extended and strange meaning that the courts may give it in order to uphold HR, because courts are inclined to give meaning to the suspected meaning that parliament intended rather than the actual reason for the legislation or the meaning that parliament actually intended to give a statute.

Question 27

What benefits to society have there been in cases of incompatibility according to J King?

Answer 27

–Another strength of s4 is demonstrated by Kings table in his article, which recognises that a substantial majority of successful claimants are from marginalised groups eg homosexual men and transgender people, which illustrates a desire for s4 in filling ‘blind spots and burdens of inertia’ (Rosalind Dixon) where the legislature hasn’t considered the rights at that point in time or ‘the act was adopted at a time when the concept of rights was substantially different from that which society has presently legally embraced through its constitution’ suggesting s4 allows for social evolution and important legal remedies in times of social progression.

Question 28

What convention does Kavanagh suggest exists following the use of s4?

Answer 28

-Possible suggestions of a political convention emerging whereby legislative amendment always follows a section 4 amendment (as per Kavanagh).

Question 29

What does the infrequency of s4 use suggest about parliament as the protectors of HR?

Answer 29

-Parliament are generally effective in legislating in accordance with HR, indicative of the effectiveness of the JCHR which scrutinises bills and asks ministers questions,

Question 30

What does s5 of HRA do?

Answer 30

When a court is considering giving a declaration of incompatibility, the relevant minister should be noted, to allow them to engage in constitutional dialogue between the court and parliament/ executive.

Question 31

What does s10 of the HRA do?

Answer 31

Legislation for which a declaration of incompatibility has been made, can be amended to be compatible with human rights if the minister finds compelling reasons to do so.

Question 32

What is Ekins reasons for arguing against Youngs encouragement of domestic dialogue?

Answer 32

• Ekins recognises that there is no room for domestic constitutional dialogue, because domestic courts are to consider what the ECtHR would do, and imitate them where possible.
• There is an international dimension to be considered before declarations of incompatibility can be made, in which domestic courts attempt to use s3 and ECtHR precedence to find compatibility between the statute and the relevant right.

Question 33

What does s6 of HRA do/say??

What are ‘public authorities’ considered to be??

Answer 33

It says that it is unlawful for a public authority to act in a way which in incompatible with a convention rights.

• This does not apply if the authority could not have acted differently
• “public authority” includes a court or tribunal, and any person certain of whose functions are functions of a public nature.

Question 34

In Re G (adoption:unmarried couple) HL in N Ireland

Answer 34

Facts-“The House of Lords declared that it was unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject the appellants as prospective adoptive parents on the ground only that they were not married, notwithstanding the Adoption (Northern Ireland)

Significance- This was not primary legislation and therefore could simply be dis-applied if courts failed to construe it as compatible with human rights under s3 of HRA. Declaration of incompatibility under s4 only available for primary legislation.
-Unlawful for courts to act in a way incompatible with HR under s6, but the court could avoid this by simply dis-applying the secondary legislation.

Question 35

What power does the European charter of rights Give domestic courts?

Answer 35

• Domestic courts will strike down legislation which contravenes the charter, disapplying UK statutes to the extent that they are incompatible with the charter..
• This continues to uphold the supremacy of EU law over domestic law.

Question 36

What effect will Brexit have on the European charter?

Answer 36

The charter will not be retained following withdrawal, and therefore the primacy of its provisions will not exist in our constitution; incompatible domestic law will not be dis-applied in favour of the charter.

Question 37

Benkharbouche v Embassy of SudanJanah v Libya (Rev 1)

Answer 37

Facts- workers litigated against their employers for unfair treatment in the work place

Significance- The EU charter had horizontal application and applied to non-nationals working in EU countries

• Some articles of the charter have direct effect, even if they aren’t implemented in national law
• Therefore the courts had to disapply the relevant domestic statute to the extent to which it was incompatible with charter rights.

Question 38

What actually is the margin of appreciation?

What is the reason for the margin of appreciation?

Answer 38

The margin of appreciation is a doctrine legitimised by the ECtHR, which allows for national courts to make their own interpretation as to whether a convention right is satisfied, because of the possibility that national interests come before the protection of an individual or groups Human rights.

-The margin of appreciation allows a trade-off to be a sufficiently struck between the protection of human rights, and the wider interests of economic, social and political factors which affect all citizens.

Question 39

What is the proportionality test clarified in Nicklinson?

What does this test seek to protect or at least be compatible with??

Answer 39

a) is the legislative objective sufficiently important to justify limiting a fundamental right?
b) is the method of achieving the legislative objective sufficiently connected
c) is no more than is necessary done to achieve the legislative objective?
D) do they strike a sufficient balance between the interests of the individual and the community?

-It has to be compatible with our constitutional arrangements, such as the SOP or the functions of parliament as the chief legislature.

Question 40

What contention between the courts and parliament does the HRA create?

Answer 40

• S3 give the courts extensive powers to interpret legislation in order to understand it as compatible with human rights, but this keeps the contentious issue within the court.
• S4 brings the issue back to parliament when a dialogue is initiated after a declaration of incompatibility is given. The point of doing so is to respect the importance of political accountability, and the constitutional role of parliament as the UK’s legislature

Question 41

What intention does s3(1) of the HRA 1998 empower the Courts to seek with regard to parliament?

Answer 41

Rather than simply presuming that parliament intended to enact legislation as compatible with Human rights (especially legislation passed prior to the JCHR in 2001), s3(1) requires courts to find the presumed intention of parliament when enacting legislation, rather than the actual intention, which may or may not be fulfilled and therefore may or may not be compliant with human rights.

Question 42

What are the facts and significance of Ghaidan v Godin Mendoza??

Answer 42

Facts- Whether the surviving spouse of homosexual couples could claim possession of the shared rented property under the rent act 1977

Significance- the first set of judges followed on from Fitzpatrick and held that a homosexual couple was not equal to that of a spousal relationship.

• The rents act 1977 was eventually read to include partnerships where surviving spouses were equivalent to spousal couples, whether the relationship was homosexual or heterosexual. This was in order to protect art 8 of the HRA and therefore protection for family life and privacy in the home.
• A very positive and important use of art 3 to fill in gaps burdens of inertia (Rosalind Dixon) at a time where the conception of rights was substantially different to a more modern conception of HR; beneficial to provide courts the power to presume an intention of parliament to be compliant with human rights, not what their actual intention might have been.

Question 43

What is the principal weakness of s3 of HRA, as best illustrated in Wilkinson??

Answer 43

The primary weakness of s 3 (1) is one of common sense. Although s 3 (1) gives the judiciary a more flexible role in the interpretation of acts, (resting on the presumption that Parliament always intends to legislate in compliance with human rights), it isn’t without limitations. It cannot simply change the meaning of words used within the statute. Statutory interpretation cannot always allow statutes to bend to conform with human rights without clearly departing from the wide range of meanings that a statute might reasonably take. On its own art 3 lacks the ability to allow courts to always defend rights because some acts simply conflict with Human rights and are impossible to read as being otherwise without radical change being required in the area of the concerned law.
-Sometimes there are sufficient reasons for the limitation of an individuals human rights, often linked with theories of proportionality and the protection of the wider communities own human rights, which may be in competition.

Question 44

Which case is a good example of the limitations of s3(1) of the HRA and why? What was the outcome and what does it show about the operation of the HRA in relation to other constitutional aspects, such as PS?

Answer 44

Bellinger is a good example of this; The Matrimonial Causes Act 1973 act excluded transgender persons from valid marriage, containing the words of “male” and “female” in the act. The judges ruled that ‘male’ and ‘female’ couldn’t be given ‘an extended and novel meaning’ without having ‘far reaching ramifications’. The case illustrated an area of law in need of much reform, in relation to the recognition of transgender people, which couldn’t be achieved through generous interpretation. However, Bellinger simultaneously showed the shortcomings of art 3 as well as illustrating how art 4 can mitigate such constraints to the use of art 3, which will be explained next.

-The appeals were dismissed by the Lords, as any attempt to construe the relevant legislation as compatible with HR would lead to far reaching implications; a s4 approach would be more beneficial because it would cause the courts and parliament to engage in constitutional dialogue on the issue of transgender persons rights. Such an issue would be prevalent in a wide-range of legislation, and would allow for parliament to reach their own conclusion with regards to the wider issue of the rights of oppressed minority groups.

Question 45

What is the main strength of s4 of HRA as a last resort (Steyn)

Answer 45

One practical strength of art 4 has been its use in ensuring legislation evolves with a changing social environment, notably empowering and protecting minority groups (such as homosexual and transgender people) who may not have been considered previously by parliament. This is clearly shown in Bellinger (as previously mentioned), because the Lords recognised that s3 alone could not provide the far-reaching remedies required for an emerging minority social group, and instead the legislative scrutiny of parliament (alongside JCHR) would be more effective in addressing changes to the law. S4 therefore provided the mechanism for the issue to return to parliament. King recognises reasons for acts of parliament not previously accommodating for these minority groups when he says “the act was adopted at a time when the concept of rights was substantially different from that which society has presently legally embraced through its constitution’. This therefore suggests s4 is critical for social evolution and providing substantive changes to the law in times of social progression, which otherwise would not have been provided by parliament.

Question 46

What evidence is there that s4 falls as a last resort?

Answer 46

Declarations of incompatibility appear to highlight areas of law requiring mass reform and therefore attract greater publicity than statutes given an extended meaning to comply with human rights. For this reason, only 20 declarations were made between 1998 and 2013, suggesting that art 4 falls as a last resort, acting as a safeguard in the event of a failure to exercise art 3. The two sections are necessary in our constitution to govern a collaborative approach to upholding Human rights by all areas of the state.

Question 47

Why did the decision in Horncastle show a departure from the mirror principle and the clear and consistent jurisprudence of the ECJ, who had made a decision on a similar case prior to Horncastle??

Answer 47

• In Horncastle, hearsay evidence from witnesses who were not called to trial was admitted as the sole/ decisive evidence on which the trial was based on; a similar case in the ECJ dictated that Hearsay evidence was inadmissible as it impeded on the fairness of the trial and therefore art 6 of the HRA.
• This was a clear departure from the mirror principle, justified on the basis that the failure to allow hearsay evidence which happened to be of utmost importance for the trial would have ‘serious implications for the British legal system’.
• The common law rules governing evidence would not be appreciated if the sole or decisive rule favoured by the ECJ was followed; it was not applicable to the British legal system.