Human Rights Act 1998 Flashcards
What are human rights?
What are they often described as?
What does the HRA incorporate?
Human Rights are fundamental freedoms.
Inalienable - can’t be taken away
Universal - apply to everyone.
Interdependent - each relies on the other.
HRA incorporates most of convention into UK law.
Before the HRA, what was there limited protection of?
What have UK individuals benefitted from?
case?
Limited protection of human rights.
Benefitted from residual freedoms - not allowed to do is set out by the law and what they can do isn’t.
Malone v Uk - phone tapping could be justified and right to privacy was not recognised by English and welsh law.
Prior to the HRA, the UK was what?
What is individual petition? When was it available?
Why was it inaccessible?
Signatory to the ECHR, could not argue human rights in English and welsh courts but had to apply to the ECtHR in Strasbourg.
individual petition - argue cases in Strasbourg not granted until 1966. Only available when all remedies exhausted.
Inaccessible to many - not enough time and money to go through long and expensive process.
What would happen even when individuals could afford to go to Strasbourg ?
Case?
Could afford, not always have a positive impact on fundamental rights protection.
Malone - won his case for breach of privacy in ECtHR, government responded by introducing a law explicitly allowing telephone tapping.
What was not binding ?
Shown in what case?
When did the Uk respond positively to the ECtHR? Case?
The convention was not binding.
Shown in r v Secretary of State ex parte Brind.
Sometimes respond positively to ECtHR rulings - Thalidomide case, contempt of court act passed after ECtHR declared our common law illegally removed article 10 - expression.
When did the HRA come into force?
Following the implementation?
2 October 2000.
Major impact on the protection of human rights.
Most of rights into domestic law - positive rights that are harder to remove than residual freedoms.
What does S.7 allow?
case?
Why is this a strength?
Cases? - anti terrorism law and retention(2)
S.7 - argue in domestic courts when claim Brough within a year.
Steinfield and Keidan v SSID - Supreme Court issued a DOI in relation to the Civil Partnership Act which prevented opposite sex couples from entering a civl partnership. Court - incompatible with Articles 8/14.
Bringing a claim is easier as the process is more affordable and a accessible.
Gillan and Quinton - stopped and searched with no grounds for suspicion. Led to changes in anti terrorism laws.
S and Harper - changed law in relation to retention of DNA when not convicted of a crime.
What does S.19 require?
What must happen before a second reading ?
S.19 (b)?
Examples?
What does this suggest about the protection?
S.19 - statement of compatibility
Before second reading, minister must make a stamens whether the Bill is compatible.
S,19 (b) - pass law even when not declared compatible.
e.g - Local government bill and Communications bill.
Suggests the protection can be undermined as proposed laws do not aways have to be compatible.
What does s.3 state?
Where were the rules set down ?
When can changes to the act be made?
What are judges not allowed to do to the act? Use what instead - case?
Criticism? whats an example of this?
why is this case criticised? Whats a recent proposal?
Judges must attempt to interpret the law compatibly with the ECHR as far as it is possible to do so which should maintain parliamentary sovereignty.
Rules set down in Ghaidan v Godin Mendoza - Words that illegally remove human rights can be changed. This case changes spouse to include same sex partners.
By restricting the meaning of words to one definition or using a wide definition. Can even add words.
Not allowed to change fundamental aspects of the law. Incompatible? Use S.4 instead - Anderson (tariffs for mandatory life sentences).
Unelected judges too much power and it undermines parliamentary sovereignty.
R v A - Lord Steyn rewrote S.41 Youth justice and criminal evidence act - admit evidence of previous sexual history to ensure fair trial.
Parliament only authority to change laws. S.3 replace so parliament has greater say in interpretation. Conflicts doctrine of seriation powers. Independent judges best placed to interpret laws and decide whether a restriction is proportionate
What is s.4?
What is S.10?
What does parliament do?
case example?
what can’t judges do?
S.10(2)?
Declaration of incompatibility when s.3 cant be used.
legislation is sent back to parliament - fast track procedure? s.10
parliament may alter act so it no longer removes human rights.
Bellinger v Bellinger - prevented transgender people from marrying - Gender recognition act 2004.
Judges cant strike down primary laws, undermining the protection.
No guarantee it will be acted on by parliament.
S.10(2) - compelling reason and a DOI is not necessarily compelling.
Can continue to remove rights.
what is S.6?
What is this defined as?
an example?
What other authority is there?
case?
S.6 - sue public bodies. unlawful to act incompatibly with ECHR.
‘court or tribunal or any person certain of whose functions are functions of public nature’
e.g NHS, police and other functions funded by the taxpayer.
hybrid public - private and public but can only be sued when performing public functions.
Struggled to define - YL v Birmingham City Council - private care home housing residents paid by taxpayer - court said not hybrid.
Can private bodies be sued?
case?
sued using the implied horizontal direct effect.
Takes body to court using British law like contract and claim human rights during the case. Court must hear as they are a public body - sued if refused.
Illustrated in Douglas and Jones V hello!
Sue - wide variety of organisations comply to avoid being sued.
What is s.2?
What type of precedent - case?
When should it not be followed? case?
what problems are there?
When should it be followed - case? Who’s it usually applied by?
Criticised? Amend?
take into account the precedents of the ECHR.
Persuasive - Alconbury
Not be followed if conflicting domestic precedent - Leeds city council v price unless domestic ruling is blatantly removing rights.
Problems with affordability as take case to Strasbourg when they get the answer they don’t want and vulnerable people may be unable/reluctant.
Ullah - ECHR precedent clear and no domestic precedent, follow. Often applied by supreme anyways.
Re pe and others prevented unmarried couples from adopting.
judges criticised for giving too much weight to decisions of ECHR. ‘Rogue section’ by former attorney general Dominic grieve
amend S.2 so judges have regards to the rights in ECHR and domestic courts only. Seems unnecessary as only persuasive.
What type of act is the HRA?
Why could this pose major problems?
Would they still have protection?
Ordinary act of parliament.
HRA could pose major problems as principle of parliamentary sovereignty, parliament could repeal whenever they wished and protection of HR would revert to position pre October 2000.
Still have ECHR protection but more limited. Undermines HRA upon protection of fundamental rights.
When did the HRA become more fundamental?
Who were they placed under pressure by?
Cases?
Following 9/11.
Placed under pressure by right wing press and Conservative Party - discredited as it was used by suspected terrorists like Abu Qatada and was stopping counter terrorist measures.
Another - Hirst v UK.
