Enforcement Of Human Rights

Question 1

Introduce + Describe

Enforcement of Hunan Rights * Role of UK Courts

Answer 1

• If a breach occurred, C exhausts domestic courts and appeals until going to France to appeal to ECtHR.
• Citizens can challenge public bodies through judicial review
• Taken to Kings Bench Division of Hight Court in an Administrative Court
• C needs locus standi in case and make within 3 months of breach.
• Courts consider
  1) Was power of public authority exercised in good faith?
  2) Was it fair?
  3) Was power used unbiased?
  4) Did the person affected have right to be heard?

Question 2

Describe

Three grounds for Judicial Review.

R v Home Secretary, Ex Parte Fire Brigades Union, Aylesbury Mushroom Case, R(Rogers) v Swindon Primary Care Trust

Answer 2

Illegality

• Public Authority can only do what they are governed in enabling act and can’t go ultra vires.
  R v Home Secretary, Ex Parte Fire Brigades Union - Change to compensation scheme, beyond power so ultra vires.

Fairness
* Public body acts unfairly by not following procedure in Enabling Act or act biased.
Aylesbury Mushroom Case - Labour Minister did not follow correct procedure, unfair so ultra vires.

Proportionality
* Public Body must balance individual right protection against state right, if not a reasonable decision then ultra vires
R (Rogers) v Swindon Primary Care Trust - No clear reasoning for not allowing some people a particular treatment, disproportionate decision.

Question 3

Describe

Remedies for Human Rights breach

Answer 3

• Damages - Compensation
• Quashing Order - Overturn action of public body.
• Prohibiting Order - Stop public bodies future action.
• Injunction - Prevents or requires body to do something until final decision.
• Mandatory Order - Makes public body follow law
• Declaration - Court declares law or parties rights.

Discretionary, courts don’t have to give one if C was unreasonable, can go to CoA and Supreme Court with leave to appeal.

Question 4

Describe

The role of ECtHR

A34, A35

Answer 4

• Can only go after exhausting domestic court.
• Person must have suffered a significant disadvantage due to breach, can’t be anonymous and can be referred by initials, must be a new issues and not death with before, and within 6 months of final domestic court decision

A34 - Must be directly affected by complaint..

A35 - Must exhaust all domestic courts, can still go if Supreme Court refused to hear the case.

Question 5

Describe

The principles of ECtHR (4)

Answer 5

• Considered when deciding a case, persuasive precedent in the UK

1) Autonomy - not bound by national court decision, separate meaning to words, consistent across all member states.

2) Living Instrument Principle - Not bound by precedent, interpret rights to changing social attitude, allowing to law to evolve.

3) Proportionality - Consider is state interference is proportional and fairly balanced rights of society vs individual rights.

4) Margin of Appreciation - Narrow and Wide. Amount of discretion given to states to interpret convention based on own society morals, narrow is important has to have intervention, wide is rare interference.

Question 6

Evaluate

Margin of Appreciation

• Doctrine provides strong HR protection.
• How are rules applied across member states? Fair for other countries and morals? How much are rights protected from this?
• How is there inconsistency, mention the case of Pretty and Belgium.

Answer 6

• Differently, fair, adequate protection of human rights.
• Different application, Pretty v UK, ECtHR supported UK decision when assisted suicide was legal in Belgium

Question 7

Evaluate

Living Instrument Principle

• Principle is strong human rights protection.
• How this make law compatible with society? Example of policy?
• Keeps the law? What was UK criticised for before 2004? What was made as a result?

Answer 7

• Member state and ECtHR make law compatible by altering past decisions, such as policies surrounding transgender people changing over time to be more accepting.
• Up to date with modern morals, discriminatory laws against transgender people so Gender Recognition Act 2004 was made to change this.

Question 8

Evaluate

Delay

• Difficult and time consuming to take case due to court system.
• What must C do before going to ECtHR? How long can this take? What is ongoing?
• How does cost get increased? What’s the good in this though?

Answer 8

• Exhaust all domestic courts and appeals, many years as breach is still ongoing, affecting C emotionally.
• Higher cost as need to pay for representation and case management and then go to France, still good as a further appeal options protects rights beyond UK courts.

Question 9

Evaluate

ECtHR decision

• Do not fully protect rights as only persuasive.
• What precedent is this in the UK? What does this dilute? How long do Parliament take for change? what do courts still have to follow during this?
• What can state chose to do with decision? Leads to? Hirst V UK, ECtHR decision? What did UK not do? Why is it good for UK to do this?

Answer 9

• Persuasive, effectiveness, many years, still follow old law and not new change until law
• Ignore the decision, leading to injuries, ECtHR said UK should let prisoner vote but UK refused to follow this decision, not protecting human rights. But better for society as UK morals should be more important and ECtHR isn’t elected in the UK fully, so foreign interference and foreign morals shouldn’t be fully followed.