Week 8- Nature and sources of Human rights

Question 1

How do decisions of the ECJ differ in their impact on domestic courts to ECtHR, and why does it spark some criticism of domestic courts?

Answer 1

-IT IS IMPORTANT TO NOTE THAT UNLIKE DECISIONS OF THE CJEU, WHICH ARE BINDING ON BRITISH COURTS ON MATTERS OF EU LAW, DECISIONS OF THE STRASBOURG BODIES ARE ONLY TO BE TAKEN INTO ACCOUNT. Domestic courts are not bound to Strasbourg jurisprudence, leading to criticisms that they too easily defer to the opinions of Strasbourg rather than developing their own approach or view.

Question 2

What are common law rights and what 3 examples are said to exist by Clayton?

Answer 2

Common law rights are fundamental rights protected by the common law before the enactment of the HRA, which many suggest became obsolete with the enactment of the HRA.

Examples include:

• The right to life
• The right to a fair hearing by an independent judiciary
• The right to freedom of movement in the UK

Question 3

Why is it argued by Clayton that common law protection of HR became obsolete following the HRA?

Answer 3

Constitutional rights which are protected under the common law and the benefit of the remedies which they provide are not needed after the enactment of the HRA, as ‘such heroic efforts aren’t necessary’ given the incorporation of the HRA in place of incorporating well established constitutional rights.

Question 4

Why might common law rights still be beneficial alongside the HRA?
What case can provide evidence for this??

Answer 4

-There are cases in which litigant proceedings have failed to proceed under protection from the HRA but instead they have found success under the common law instead, suggesting that common law rights are not obsolete despite HRA, and in fact extend the protection of rights further than the HRA may be able to.

Daly v Home Secretary

Question 5

R (Daly) v Home secretary [2001] UKHL 26 facts and significance (common law fundamental rights)

Answer 5

Facts–A prison policy requiring prisoners not to be present when their property was searched, and their mail was examined was unlawful.

Significance- -“ Lord Cooke of Thorndon said: ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice.
-“The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.’

Question 6

R (Osborn) V Parole Board [2014] AC 1115 54-63 Lord Reed facts and significance?

Answer 6

Facts- Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on licence but then recalled to custody.
-Procedural fairness was a common law fundamental right and it was contended whether art 5(4) required more than the common law provided on the matter.

Significance- -“The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court.
-Therefore to suggest that common law rights and convention law rights are competing is wrong; protection of rights ‘permeate’ our legal system, and their protection under the common law does not ‘begin and end with consideration of Strasbourg case law’

Question 7

What impact did the HRA have on the devolution settlements and specifically what did the Belfast agreement say about devolution to N Ireland??

Answer 7

• The devolution settlements introduced at the same time as the HRA also meant that devolved legislatures also had to comply with convention rights.
• A statutory safeguard has existed since the outset of HRA to ensure the devolved parliaments enact bills which are compliant with human rights.
• The Belfast agreement in particular provided that compliance with the ECHR was an essential ‘safeguard’ of the peace process. (ECHR and respect for HR was built into the devolved settlements from the start, indicative of political support for ECHR incorporation)

Question 8

What does the UNISON case say about the common law protection Human rights and the rule of law?

Answer 8

-R Unison V LC: a good case about striking down tribunal fees to protect access to courts for all, therefore upholding the Rule of Law too. With regards to Human rights, the case represents clear adjudication in favour of inherent constitutional rights grounded in the common law before the HRA 1998 was introduced.

Question 9

What is the mirror Principle?

Answer 9

The principle that domestic courts mirror the jurisprudence of the ECtHR rather than exercising their freedoms to make their own decisions and depart from the ECtHR.

Question 10

What 3 reasons does Masterman give for departing from the mirror principle?

Answer 10

3 Reasons for departing from the ‘mirror principle’: as per Masterman

1) When the application of the mirror principle would compel a conclusion which would be ‘fundamentally at odds’ with the UKs constitutional arrangements of a separation of powers or some other fundamental procedural or substantive aspect of the UKs law
2) When it is ‘reasonably foreseeable’ that the Strasbourg court would not come to a different conclusion than in the available authorities.
3) When the UK courts wish to enter into a ‘dialogue’ with the ECtHR, on the basis that the existing Strasbourg case law may be defective or difficult to apply in the context of the UK legal system.

Question 11

Who does Sumption favour as the chief protectors of human rights, and how could I argue this?

Answer 11

LJ Sumption makes the final big point that the democratic process of parliament is more legitimate in deciding issues of social policy and therefore protecting the rights of citizens than judges and judge-made law. Whilst there are recognisable merits to a non-partisan judicial resolution to protecting rights, in that they are free from external pressures and are often seen to be transparent and consistent, we should approach such resolutions through a democratically elected parliament, in which we can all indirectly contribute through our voting, or our representatives

Question 12

How does Lord Sumption criticise the role of courts in regards to HR, using UNISON as an authority for this?

Answer 12

• Courts have a tendency to turn possibly political questions into a question of law, rather than keeping them as questions of politics. The question of whether the state should provide free/ subsidised legal aid is one of politics, due to the political and economic implications of such a decision, relating to trade-off between public sector spending etc.
• However, in UNISON the courts treated the raising of tribunal fees (a political and economic question) into a question of law, citing the importance of the Rule of law in an otherwise non-justiciable issue.

Question 13

R (Ullah) V special adjudicator [2004] UKHL 26 facts and significance?
(significance of Strasbourg jurisprudence cases)

Answer 13

Facts- The issue in the case was whether a person can be deported from the United Kingdom to a state where there are known human rights abuses, or refused asylum to the United Kingdom when the applicant is from such a state.

Significance- Established the Ullah principle as explained by Lord Bingham, that Whilst not strictly binding” on the domestic courts, the courts should “in the absence of special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”.
-“Domestic courts should not, without good reason, dilute or weaken the effect of Strasbourg case law”

Question 14

What is the Ullah principle?

Answer 14

Whilst not strictly binding” on the domestic courts, the courts should “in the absence of special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”.

Question 15

R v Horncastle [2009] UKSC 14 facts and significance?

Answer 15

Facts- -The SC was faced with the question of admissibility of ‘hearsay’ evidence, of which such evidence was the ‘sole or decisive’ evidence the accused.

• The accused relied on art 6 and the infringement of the right to a fair trial.
• This was unanimously rejected by 7 judges.

Significance- -Courts may be willing to set a low standard of HR protection than that of Strasbourg, under special circumstances.

• Here the courts strayed away from a very similar decision from Strasbourg a few months earlier.
• The judges held that the inadmissibility of hearsay evidence which was the sole or decisive evidence against the accused would have serious implications on the British legal system if ignored.

Question 16

What does art 6 of HRA provide?

Answer 16

Provides for the right to a fair trial by an impartial and independent tribunal within a reasonable amount of time, alongside the presumption of innocence.

Question 17

R(Nicklinson) V Ministry of justice [2014] UKSC facts and significance?

Answer 17

Facts-The majority of the court decided not to grant a declaration of incompatibility under s4 because the legal issue in question- assisted suicide- was a sensitive already warranting parliamentary debate

Significance- -‘Interference with a qualified right will only be objectively justified if it is prescribed by law and ‘necessary in a democratic society’ ie if it satisfies the proportionality test set out by Strasbourg court

Question 18

What does animal defenders case say about common law approaches to rights protection binding on lower courts, as well as the significance of Strasbourg case law?

Answer 18

-The common law that follows from a domestic court of interpretation (by a higher court) therefore becomes binding on lower courts. Once interpreted by a higher court, a statute no longer retains any authority other than that given to it by the higher court; it is not the Strasbourg courts interpretation that is binding. Whilst influential, and under our international obligations, courts must take into account “judgements, decisions and declarations” of Strasbourg, it infers no duty to follow them.

Question 19

Rabone v Pennine Care NHS trust [2012] UKSC 38 facts and significance??

Answer 19

Facts- The European Convention on Human Rights 1950 art.2 imposed an operational obligation on states to protect mentally ill patients who were not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

Significance- There is no necessity to await authoritative interpretation of a case which has not been decided by Strasbourg.
-“Rather what the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this.”

Question 20

How could a divergence from Strasbourg jurisprudence regarding the understanding of a convention right be adverse for the rule of law, and therefore what does this say about the Ullah principle?

Answer 20

• If there was no clear reason for departure from the ECtHR, this could have adverse impacts on the FORMAL VIEW of the rule of law because there would be a lack of clarity for citizens as to their rights and obligations under the law.
• They would have to contend with two opposing streams of reasoning by the two different courts. As said in Chapman, ‘it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases’
• Therefore, there would be far-reaching constitutional implications for domestic courts exercising complete discretion and departing from clear and logical Strasbourg jurisprudence if it is not expedient.

Question 21

What does s2 of the HRA say?

Answer 21

-The wording of s2 of the HRA dictates that it is for the domestic courts to interpret the phrase ‘must…take into account’. THEY ARE NOT BOUND by decisions of the ECtHR or their precedence. There is discretion to be determined by domestic courts in line with principles determined by the Supreme court. Parliament left it open to the courts to bring about their own approach to Strasbourg jurisprudence.

Question 22

Why does Sale argue that the Ullah principle is important and what other constitutional principle does he say that it compliments??

Answer 22

-Sales is arguing that the mirror principle (in that domestic courts mirror the decisions of ECtHR as best they can and when appropriate to do so) is one that can work in unity with the Rule of Law, and as cases have shown, only when there is adverse constitutional implications should courts divert away from decisions

Question 23

Why does Lady Hale talk of the ECHR as a living instrument?

Answer 23

-Convention rights are not specific enough and use general words which are open to interpretation by domestic courts, under the margin of appreciation.
There are ever-changing social and moral situations surrounding the enforcement of human rights which will inevitably influence the decisions of judges when applying convention rights overtime.

Question 24

What does Hale say with regards to the margin of appreciation?

Answer 24

-Margin of appreciation epitomises the role of domestic courts to find their own interpretations of convention rights which sit effectively alongside our own constitutional principles. Bingham himself has explained the desire of the courts to make ‘significant contributions in the development of human rights law’. It does not matter that we may hold different interpretations of convention rights to Strasbourg or Germany or Spain or any other jurisdiction, as they pay as little attention to our decisions as we do theirs.

Question 25

What does Hale say with regards to Differing cultures across Europe and the benefit to British society for balancing protection for individual rights with those of wider society? (uses Jackson as an example of differing cultures)

Answer 25

• We have our own British cultures and national traditions which should play a part in our determination of human rights, and where necessary the breach of individual rights for the benefit of British society; our traditions differ across Europe and therefore the importance we attribute to different rights and the way we exercise proportionality ought to differ too. In relation to the Jackson case about banning hunting with dogs; such an activity was found ‘morally offensive’ by our courts but may have had a different interpretation elsewhere in Europe.
• Animal defenders would have a very different outcome in the USA, where a restriction on the freedom of political speech would not comfortably sit alongside their commitment to democracy and freedom set out in their constitution.

Question 26

What is the 3 stage test of proportionality decided in Daly (prisoners rooms being searched in their absence)

Answer 26

3 Stage test of proportionality:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

Question 27

What did Lord Cooke say in the Daly case with regards to the common law as a source of human rights protection, and the effect of human rights protection under the HR?

Answer 27

• Some rights are inherent in our constitution and existed under the protection of the common law, such as the right to confidentiality with a legal adviser. Therefore the creation of the HR did not also create these rights, it “responded” to them instead.
• ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice.

Question 28

When might it be necessary for a court not to grant a declaration of incompatibility under s4 even if the legislation is in express conflict with human rights?

Answer 28

-In the case of Nicklinson v ministry of justice, the legislation was regarding assisted suicide was a contentious and sensitive subject area, but the appellants raised the argument that the current law intended with the right to respect for family and private life.

• So long as the suspension of a human right conforms to the proportionality test set out in Daly, it may be acceptable if It is deemed necessary in a democratic and civilised society/.
• It was held that it would be inconsiderate to grant a declaration of incompatibility without giving parliament the chance to deliberate on the sensitive matter themselves. The courts were giving respect for parliament’s constitutional position with regards to their protection of HR.

Question 29

What does Baroness Hale say the difference is between common european Values vs the same law on contentious issues?
-What is she actually referring to?

Answer 29

“It is one thing to have common European Values but another to have the same laws on such contentious areas eg abortion”

-She is referring to somewhat objective moral standards shared across Europe, but suggests that it is wrong to go further and say that these should be pushed as unitary legal standards across Europe too

Question 30

What does Baroness Hale suggest is the difference between our regard of the Strasbourg case law and other countries regard for it?

Answer 30

-Other EU countries eg Austria and Germany have written constitutions and pay no where near as much notice to the Strasbourg case law as we do. They get on with interpreting and applying their own constitutions.

Question 31

What is the overall ‘Uk constitutional values’ view of the HRA/ EU convention?

Answer 31

• Had we not given so much early allegiance to the Strasbourg jurisprudence and taken s2 of the HRA so seriously, we may not have given HR such a bad name, because we would have been more focused on a British undertaking of rights protection by British courts, imposing our own moral constitutional standards and attributing British levels of importance to different rights. Taking into account Strasbourg case law is not the same as acting as though we are bound by it, because we simply are not.
• We should be giving UK constitutional related reasons for our case decisions and the supposed limitations on human rights may be justified here but not elsewhere.
• Even where they do not relate to human rights eg in the Jackson case, decisions are made which reflect British values eg for animals where we view their hunting to be inhumane.
• Our constitution is different in a number of ways from other European constitutions, most obviously due to its lack of codification but also because we may have different values as inherent to our constitution and give them legal effect as a result.

Question 32

What example in Germany was there supporting the idea that European countries develop their own human rights, which sit alongside mutual European values?

Answer 32

• The Omega case where laser-gun shooting at human targets was banned as they conflicted with the preservation of human dignity enshrined in their constitution.
• This is not found to be morally offensive in Britain, even though Europe shares some objective level of European values and morality.

Question 33

Why was Animal defenders decided how it was and how might it conflict to American values with regards to free speech?

Answer 33

• British judges decided that political propaganda should not be distributed based off of monetary power and that it was inherent to protect British citizens from being burdened with monetarily fuelled political advertising, even if it was a restriction on free speech.
• In America it would be regarded as unconstitutional to put an express statutory limit on political advertising due to the entrenched provision of free speech in their constitution.

Question 34

What is the difference between taking into account and giving effect to?
Is a question of interpretation the same as a question of application or can they be distinguished?

Answer 34

• Taking into account is a kind of interpretive standard expected of our courts, with regards to taking into account the jurisprudence of Strasbourg.
• Giving effect to means giving legal effect to, as if the decision or ratio is binding, which is the case for the ECJ in relation to the overriding supremacy of EU law, but not in terms of human rights.

-Interpretation is a question of reasoning and understanding, whilst application gives effect to the interpretation.

Question 35

What does the HRA derive from and why should it be considered a living instrument?

Answer 35

• The source of our human rights laws derives from the European Convention on Human Rights, and is a blunt instrument for enforcing human rights because there is some margin of appreciation as to how it can be interpreted by domestic constitutions, owing to the lack of clarity in the words that it uses.
• It can therefore be considered a living instrument because it is open for domestic courts to give effect to its meaning by applying their own interpretations of the HRA, which derives from the the European convention on human rights.

Question 36

What duty does s2 of the HRA actually impose on British courts.?
How does it differ to British courts in relation to the ECJ?

Answer 36

That they MUST take into account any Strasbourg jurisprudence; judgements, decisions and opinions. Whilst they are not strictly bound to apply it, they must still consider it, it can’t simply be ignored.

-With regards to the ECJ, British courts are instead required to give effect to their judgements, not simply honour them by taking them into account but instead replicating them domestically.