History of Human Rights

Question 1

What are the principles of the unwritten constitution

Answer 1

• Separation of powers
• Parliamentary sovereignty
• Rule of law (Dicey = no man above the law, no punishment without law)
• Others = judicial review, habeas corpus

Question 2

Describe the European Convention of Human Rights

Answer 2

• Living document
• International agreement
• Post WWII (divorce from humanity)
• Core set of fundamental human rights
• Ratified by UK
• Overseen by EU Council
• Most rights civil/political
• Absolute, limited and qualified rights

Question 3

Describe the European Court of Human Rights

Answer 3

• Dynamic insitutution
• Sits in Strasbourg (France)
• 1 Judge from every member state
• UK citizens could take there from 1966
• Must exhaust all domestic courts first
• Can now enforce HR through domestic courts so less need

Question 4

Outline the history of human rights in the UK

Answer 4

• Magna Carta (trial by peers, due process)
• Habeas Corpus (principles of fair detention)
• Bill of rights (monarchies power to uphold parliamentary sovereignty)
• Right to trade unions/workers rights developed over time
• ECHR ratified by UK, allowed to ECtHR
• UK passed HRA 1998

Question 5

Evaluate UK rights and freedoms

Answer 5

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

Question 6

Describe human rights in the UK circa HRA 1998

Answer 6

• Courts could not challenge primary legislation which breached human rights
• Courts could still declare secondary legislation in violation of human rights to be ultra vires
• Judges not have to consider ECHR in judgements
• Public authorities could breach human rights if not in violation of the law

Question 7

What are the main cases for the HRA 1998

Answer 7

• Sunday Times v UK
• Maloney v UK
• Brown v UK

Question 8

What are the provisions under the HRA 1998

Answer 8

• S.1(1) = ECHR brought under domestic law
• S.2 = decisions by the ECtHR form persuasive precedent (Kay v Lambeth LBC)
• S.3 = interpret legislation in line with ECHR (Bellinger v Bellinger)
• S.4 = declaration of incompatability
• S.5(1) = a public authority is an organsation/body acting on behalf of the state (Donogue v Poplar Housing, Leonard Cheshire Homes, Johnson v Havering LBC)
• S.7 =only a person with standing can apply for judicial review
• S.8 = domestic courts have the discretion to grant proportionate remedy
• S.10 = govt can fast track legislation correcting human rights breaches
• S.19 = new legislation must be compatible with ECHR

Question 9

Describe the entrenched nature of human rights in UK law

Answer 9

Not fully entrenched as parliament is not bound to follow own decisions, however HR present in too many laws to effectively repeal. Would cause problems with devolved nations/powers (Scotland, Wales, Northern Ireland)