Human Rights

Question 1

Responses to declaration of incompatibility

Answer 1

• Ignore
• Minister use remedial order to arbitrarily amend (MASSive Henry VIII Clause); rarely used though but as 2ndary lit. open to court review

Question 2

Bamforth on HRA effects on parliamentary sovereignty

Answer 2

Lord Simon:S.4’s political obligation overrides implied repeal something essential to P.S.

Bamforth argues that s.4 orde does not saying incompatible with HRA, just that if outside scope of S.3 then is beyond scope of HRA and so there’s no Q. of implied repeal

Question 3

Not Beyond Strasbourg

Answer 3

Ullah
Animal Defenders
Ambrose

Question 4

Animal Defenders International

Answer 4

The judgements of ECtHR are not binding on domestic courts. [Need only ‘take into account’] Although, Parl. can leg. for greater protection it did not intend to give courts power to leap ahead of Strasbourg

Question 5

Horncastle

Answer 5

It is open to the domestic court to decline to follow the Strasbourg decision

Question 6

Al-Khawaja and Tahery v UK

Answer 6

The Grand Chamber took on board the views of the UK Court, and modified its case law in response

Question 7

Ambrose

Answer 7

It was not for the court to expand the scope of rights under the Convention further than the jurisprudence of the ECtHR justified.

L. Kerr dissented saying is duty of dom. court to resolve whether a claim to a convention right is viable or not, with s.2 of HRA imposing such duty

Question 8

Ullah

Answer 8

L. Bingham: Courts should follow any clear and constant jurisprudence from Strasbourg.
National courts must keep pace with Strasbourg no more, no less

Question 9

Beyond Strasbourg

Answer 9

Lord Kerr [Dissent] in Ambrose

Rabone

Question 10

Don’t have to follow Strasbourg

Answer 10

Animal Defenders: ECtHR judgements are not binding on domestic courts

Horncastle: Open to dom. courts not to follow Strasbourg where there’s no grand chamber decision

Question 11

Rabone

Answer 11

The courts can go beyond Strasbourg through an application of the common law, but not through an extension on the definition of Convention rights.

Question 12

Strasbourg should be presumptively followed according to case law unless

Answer 12

Rabone: Area is governed by common law and court is permitted to exercise its discretion to depart from Strasbourg line

Animal Defenders International: The court attaches ‘great weight’ to a legislative decision which determines the balance to be struck between rights and interests in a way that might be interpreted as inconsistent with the Strasbourg authority

Horncastle: Wheere the court wants to enagae in dialogue with the ECtHR on basis applicable case law may be wrong and/or badly informed

Question 13

Views of Lord Irvine

Answer 13

Ullah set ‘Mirror’ principle w/ Strasbourg as floor and ceiling.
Ambrose used reasoning in its verdict that because Strasbourg had not considered a type of situation, the claim could not succeed [not the place of UK courts!]