After the Enactment of the HRA 1998 Flashcards
(22 cards)
Human Rights Law
Laws governing fundamental rights and freedoms that exist in our legal system simply because we are human beings.
Incorporation and Interpretation of the European Convention on Human Rights
HRA 1998 was the first specific Act passed in the UK that solely enforced basic human rights.
The Act was designed to incorporate the majority of the Articles of the ECHR into domestic law.
Purpose of the 1998 Act
Purpose is declared at the beginning of the Act - ‘To give further effect to rights and freedoms guaranteed under the ECHR.’
Section 6 of the 1998 Act
‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
This makes it unlawful for any public authority to act in a way incompatible with any of the Articles in the ECHR, which were incorporated by the Act.
Public Authority
Covers organisations and persons in the public sector. Does not include government ministers or those connected to Parliament while exercising functions connected to parliamentary business.
Section 7 of the 1998 Act
‘A person who claims that a public authority has acted in a way which is made which is made unlawful by section 6 may:
a) Bring proceedings against the authority under this Act in the appropriate court or tribunal.
b) Rely on the Convention rights or rights concerned in any legal proceedings.’
As a result of Section 7…
Therefore if an individual believes a public authority is acting in a breach of a Convention right they can bring proceedings against them.
Section 2 of the 1998 Act
‘A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgement, decision, declaration or advisory opinion of the European court of Human Rights.’
As a result of Section 2…
This means that decisions and opinions of the E Court of HR must be taken into account by UK courts even if there is a conflicting decision of a UK court.
Section 19 of 1998 Act
‘A Minister of the Crown in charge of a Bill in Either House of Parliament must, before Second Reading of the Bill … Make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention Rights.
What is Section 19 known as?
This is known as a ‘statement of compatibility’. However s19 continues to say that the minister can make a declaration of incompatibility and still proceed with the bill, avoiding convention rights.
Section 3 of the 1998 Act
‘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.’ Any UK legislation should be harmonious and not contravene the Conventions rights.
But since Section 3 says the Compatibility is…
only ‘so far as it is possible to do so’, it allows the UK government to avoid the Convention’s rights.
Section 4 of the 1998 Act
‘if Court is satisfied that the provision is incompatible with a convention right, it may make a declaration of that incompatibility.’
When a court does this, it brings to the attention of the government the specific incompatibility, but does not affect either party to that action.
Under Section 10 of the 1998 Act
if an Act is found to be incompatible under s4, a statutory instrument can be used to amend the act in question to comply with the Convention.
Under s10(2) of the 1998 Act
the relevant government minister ‘may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.’
Meaning they do not have to amend the law to comply with the Convention.
Criticism 1 of the 1998 Act
Many loopholes in the Act which allow avoidance of the rights under the Convention, that the Act seems no more than an altruistic paper-exercise which only benefits the UK’s citizens if the government so wishes.
Criticism 2 of the 1998 Act
Removes sovereignty of the Supreme Court and replaces it with a E Court HR, allowing non-UK judges to decide domestic issues.
Criticism 3 of the 1998 Act
If found incompatible, the UK gov does not have to amend UK laws to make them compatible with the convention.
Criticism 4 of the 1998 Act
The Act relies on individuals, not organisations, to bring an action for a declaration of incompatibility.
Criticism 5 of the 1998 Act
There is no overarching security committee which monitors an Act’s adherence to the Convention. Instead, the Act relies on individuals pointing out incompatibilities.
Key Case on HR Law: R v DPP ex parte Kebilene
3 D’s charged with terrorist offences, but the trial judge stated that s16 A of Terrorism Act 1989 was contrary to Article 6 of the ECHR.
Outcome: HoL agreed with the trial judge.
