Human Rights Act 1998 Flashcards
(6 cards)
Introduce + Describe
Human Rights Act 1998 + Vertical Direct Access
- Act allows someone to bring a claim to UK courts, if breach of Human Rights by public body.
- A citizen couldn’t claim to UK Court. Wife act but now they can go to UK courts first.
- This offers a greater protection of human rights
Vertical direct access - Can only claim against public body, horizontal is private company who you can’t claim against.
Describe
S.2 / 3 / 4 / 4(6) / 8
Bellinger v Bellinger, Hirst v UK
S.2 - Court must consider all past judgement and decisions by ECtHR,
If conflicting decision, refer case for appeal and use domestic decision.
S.3 - Courts should interpret domestic law in line with convention.
If not possible apply domestic law as is.
S.4 - If can’t interpret law with convention, and declaration of incompatibility and leave it for P to consider.
Bellinger V Bellinger - Declaration of incompatibility made, P passed Gender Recognition Act 2004 as a result.
S.4(6) - Declaration of incompatibility does not change the law, valid under P changes it.
Hirst v UK - P chose not to change law relating to prisoner voting.
S.8 - If courts find breach, grant remedy if necessary.
Evaluate
Inconsistent Application
- HRA can lead to injustice
- Who can you only claim against? Who can’t you claim against? Does Parliament count? Can you challenge them on Legislation?
- Why is HR not protected as a result? What about private bodies how is it inconsistent?
- Public bodies not private bodies, Parliament is not a public body, can’t challenge them on legislation created that breach Hunan Rights
- Not protected as Parliament controls a huge part of society and you can’t challenge them, private voices can also freely breach your rights and you can’t claim against them?
Evaluate
Time Consuming
- Act added extra delays and cost to cases.
- Before going to ECtHR what must you do? Adds on? Ongoing breach?
- How was this shown in Wainright v UK? Breach in 1997, up to 2006, what could this lead to for C?
- Exhaust all domestic routes of appeal and court structure, more delays and costs added, breach is ongoing during all of this time it take.
- Breach happened in 1997, but final decision by ECtHR was in 2006, this meant that a long delay occurred but during this the C still is affected by a breach emotionally.
Evaluate
S.4 Declaration of incompatibility
- Grants limited power to courts to protect Human Rights
- What can judge only make? What can’t they do? Hirst v UK shows?
- Positive of this declaration, what can it highlight? What did Bellinger v Bellinger cause? What does it allow P to see?
- Declaration of incompatibility nothing else, can’t change law to make it compatible with human rights so no justice. Hirst v UK, P ignored this declaration so no justice.
- Highlights need for reform, Bellinger v Bellinger, P responded to the incompatibility by passing Gender Recognition Act 2004, allows P to know if reform is needed for the law.
Evaluate
HRA and P supremacy
- HRA respects principles of P supremacy.
- What is a judges constitutional role? How do they stay in this (S.2), which body can only make change? Is this act entrenched? What does it let P do?
- What happens if no UK precedent? This new law hasn’t? Judges aren’t? How else is this unfair?
- Apply the law, S.2 mean they only apply UK precedent any changes is left to Parliament. This act isn’t entrenched so it allows for future Parliament to change act in future.
- Judges use ECtHR precedent made by a foreign body and not Parliament, changing the law going against conditional role, unfair as well as judge can’t change any law so there is limited Human Rights Protection.
