History

Question 1

What are the principles of the unwritten constitution

Answer 1

• Separation of powers
• Parliamentary sovereignty
• Rule of law
• Others = judicial review, Habeas Corpus

Question 2

Explain the 6 major milestones in UK history developing rights/freedoms
(HINTS* = MC, HC, BoR, TU, ECHR, HRA)

Answer 2

• Magna Carta (trial by peers)
• Habeas Corpus (fair detention)
• Bill of Rights (parliamentary sovereignty)
• Trade unions, women’s rights, civil campaigns
• UK ratified ECHR
• UK passed HRA 1998 (incorporated ECHR)

Question 3

Evaluate the development of rights and freedoms in the UK

Answer 3

• Time delays (Wainwright)
• Low volume of cases heard
• CJEU binding before brexit (Factortame)
• ECtHR only every pursuasive (Kay v Lambeth BC, Hirst v UK)
• UK must be compatible with HRA not ECHR

Question 4

What is the ECHR

Answer 4

• Living document
• International agreement
• Post WWII (divorce from humanity)
• Core set of fundamental rights
• Ratified by UK
• Mostly civil/political rights
• Overseen by council of Europe

Question 5

What is the ECtHR

Answer 5

• Dynamic institution
• Sits in Strasbourg, France
• 1 judge from every member state
• UK citizens could take cases there from 1966

Question 6

What was enforcing human rights in the UK like before the HRA

Answer 6

• Courts could not challenge primary statute under the ECHR
• Could declare secondary legislation ultra vires
• No duty to consider HR in judgements
• Citizens could go to ECtHR
• Public bodies could breach ECHR

Question 7

What notable cases were brought under the HRA

Answer 7

• Sunday Times v UK
• Maloney v UK
• Laskey/Jaggard/Brown v UK

Question 8

Explain the provisions of the HRA

Answer 8

• S.1 = ECHR provisions
• S.2 = ECtHR form pursuasive precedent (Kay v Lambeth BC)
• S.3 = interpret law in line with HR (Bellinger v Bellinger)
• S.4 = declaration of incompatability
• S.6(1) = PA can act against ECHR if allowed by law (PA = any body functioning on behalf of the state: Donogue v Poplar Housing, Leonard Cheshire Homes, Johnson v Havering LBC)
• S.7 = person with standing can bring action to Ct
• S.8 = domestic Ct can grant remedies
• S.10 = govt can fast track HR legislation
• S.19 = new legislation must comply with HR

Question 9

Explain the entrenched nature of the ECHR

Answer 9

• Not fully entrenched (parliament not bound by own decisions)
• Would be hard to repeal as in so many laws
• Repealing would cause problems with devolved powers
• Must consult devolved nations before repealing

Question 10

Evaluate the Human Rights Act 1998

Answer 10

• Pros
  –> Access to enforce HR more easily
  –> Encourage conformity
  –> Avoid conflict (between domestic and international Cts)
  –> Improve awareness
  –> ECHR is tried and tested
  –> Future statute must comply
  –> Interpretation in line with ECHR promotes individual rights and prevents arbitrary abuse of state power
• Cons
  –> Diminished parliamentary sovereignty
  –> Gives more power to unelected judiciary
  –> Limits ability to enforce punishments
  –> Uncertainty in interpretation by devolved nations
• Important of Commission for HR
  –> Advise/ guide/ bring cases/ conduct enquiries/ monitor domestic legislation/ scrutinse new law/ publish regular reports
• Reform
  –> 2015 tory manifesto (replace with British Bill of Rights to prevent foreign nationals using HRA to stay in UK and stop ECHR overruling parl sov)
  –> UKSC replace ECtHR as final HR arbitrator (6 years to get to Strasbourg)