Week 8- Nature and sources of Human rights Flashcards Preview

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How do decisions of the ECJ differ in their impact on domestic courts to ECtHR, and why does it spark some criticism of domestic courts?

-IT IS IMPORTANT TO NOTE THAT UNLIKE DECISIONS OF THE CJEU, WHICH ARE BINDING ON BRITISH COURTS ON MATTERS OF EU LAW, DECISIONS OF THE STRASBOURG BODIES ARE ONLY TO BE TAKEN INTO ACCOUNT. Domestic courts are not bound to Strasbourg jurisprudence, leading to criticisms that they too easily defer to the opinions of Strasbourg rather than developing their own approach or view.


What are common law rights and what 3 examples are said to exist by Clayton?

Common law rights are fundamental rights protected by the common law before the enactment of the HRA, which many suggest became obsolete with the enactment of the HRA.

Examples include:
-The right to life
-The right to a fair hearing by an independent judiciary
-The right to freedom of movement in the UK


Why is it argued by Clayton that common law protection of HR became obsolete following the HRA?

Constitutional rights which are protected under the common law and the benefit of the remedies which they provide are not needed after the enactment of the HRA, as ‘such heroic efforts aren’t necessary’ given the incorporation of the HRA in place of incorporating well established constitutional rights.


Why might common law rights still be beneficial alongside the HRA?
What case can provide evidence for this??

-There are cases in which litigant proceedings have failed to proceed under protection from the HRA but instead they have found success under the common law instead, suggesting that common law rights are not obsolete despite HRA, and in fact extend the protection of rights further than the HRA may be able to.

Daly v Home Secretary


R (Daly) v Home secretary [2001] UKHL 26 facts and significance (common law fundamental rights)

Facts--A prison policy requiring prisoners not to be present when their property was searched, and their mail was examined was unlawful.

Significance- -“ Lord Cooke of Thorndon said: ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice.
-“The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.’


R (Osborn) V Parole Board [2014] AC 1115 54-63 Lord Reed facts and significance?

Facts- Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on licence but then recalled to custody.
-Procedural fairness was a common law fundamental right and it was contended whether art 5(4) required more than the common law provided on the matter.

Significance- -“The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court.
-Therefore to suggest that common law rights and convention law rights are competing is wrong; protection of rights 'permeate' our legal system, and their protection under the common law does not 'begin and end with consideration of Strasbourg case law'


What impact did the HRA have on the devolution settlements and specifically what did the Belfast agreement say about devolution to N Ireland??

-The devolution settlements introduced at the same time as the HRA also meant that devolved legislatures also had to comply with convention rights.
-A statutory safeguard has existed since the outset of HRA to ensure the devolved parliaments enact bills which are compliant with human rights.
- The Belfast agreement in particular provided that compliance with the ECHR was an essential ‘safeguard’ of the peace process. (ECHR and respect for HR was built into the devolved settlements from the start, indicative of political support for ECHR incorporation)


What does the UNISON case say about the common law protection Human rights and the rule of law?

-R Unison V LC: a good case about striking down tribunal fees to protect access to courts for all, therefore upholding the Rule of Law too. With regards to Human rights, the case represents clear adjudication in favour of inherent constitutional rights grounded in the common law before the HRA 1998 was introduced.


What is the mirror Principle?

The principle that domestic courts mirror the jurisprudence of the ECtHR rather than exercising their freedoms to make their own decisions and depart from the ECtHR.


What 3 reasons does Masterman give for departing from the mirror principle?

3 Reasons for departing from the ‘mirror principle’: as per Masterman
1) When the application of the mirror principle would compel a conclusion which would be ‘fundamentally at odds’ with the UKs constitutional arrangements of a separation of powers or some other fundamental procedural or substantive aspect of the UKs law
2) When it is ‘reasonably foreseeable’ that the Strasbourg court would not come to a different conclusion than in the available authorities.
3) When the UK courts wish to enter into a ‘dialogue’ with the ECtHR, on the basis that the existing Strasbourg case law may be defective or difficult to apply in the context of the UK legal system.


Who does Sumption favour as the chief protectors of human rights, and how could I argue this?

LJ Sumption makes the final big point that the democratic process of parliament is more legitimate in deciding issues of social policy and therefore protecting the rights of citizens than judges and judge-made law. Whilst there are recognisable merits to a non-partisan judicial resolution to protecting rights, in that they are free from external pressures and are often seen to be transparent and consistent, we should approach such resolutions through a democratically elected parliament, in which we can all indirectly contribute through our voting, or our representatives


How does Lord Sumption criticise the role of courts in regards to HR, using UNISON as an authority for this?

-Courts have a tendency to turn possibly political questions into a question of law, rather than keeping them as questions of politics. The question of whether the state should provide free/ subsidised legal aid is one of politics, due to the political and economic implications of such a decision, relating to trade-off between public sector spending etc.
-However, in UNISON the courts treated the raising of tribunal fees (a political and economic question) into a question of law, citing the importance of the Rule of law in an otherwise non-justiciable issue.


R (Ullah) V special adjudicator [2004] UKHL 26 facts and significance?
(significance of Strasbourg jurisprudence cases)

Facts- The issue in the case was whether a person can be deported from the United Kingdom to a state where there are known human rights abuses, or refused asylum to the United Kingdom when the applicant is from such a state.

Significance- Established the Ullah principle as explained by Lord Bingham, that Whilst not strictly binding” on the domestic courts, the courts should “in the absence of special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”.
-"Domestic courts should not, without good reason, dilute or weaken the effect of Strasbourg case law"


What is the Ullah principle?

Whilst not strictly binding” on the domestic courts, the courts should “in the absence of special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”.


R v Horncastle [2009] UKSC 14 facts and significance?

Facts- -The SC was faced with the question of admissibility of ‘hearsay’ evidence, of which such evidence was the ‘sole or decisive’ evidence the accused.
-The accused relied on art 6 and the infringement of the right to a fair trial.
-This was unanimously rejected by 7 judges.

Significance- -Courts may be willing to set a low standard of HR protection than that of Strasbourg, under special circumstances.
-Here the courts strayed away from a very similar decision from Strasbourg a few months earlier.
-The judges held that the inadmissibility of hearsay evidence which was the sole or decisive evidence against the accused would have serious implications on the British legal system if ignored.


What does art 6 of HRA provide?

Provides for the right to a fair trial by an impartial and independent tribunal within a reasonable amount of time, alongside the presumption of innocence.


R(Nicklinson) V Ministry of justice [2014] UKSC facts and significance?

Facts-The majority of the court decided not to grant a declaration of incompatibility under s4 because the legal issue in question- assisted suicide- was a sensitive already warranting parliamentary debate

Significance- -‘Interference with a qualified right will only be objectively justified if it is prescribed by law and ‘necessary in a democratic society’ ie if it satisfies the proportionality test set out by Strasbourg court


What does animal defenders case say about common law approaches to rights protection binding on lower courts, as well as the significance of Strasbourg case law?

-The common law that follows from a domestic court of interpretation (by a higher court) therefore becomes binding on lower courts. Once interpreted by a higher court, a statute no longer retains any authority other than that given to it by the higher court; it is not the Strasbourg courts interpretation that is binding. Whilst influential, and under our international obligations, courts must take into account “judgements, decisions and declarations” of Strasbourg, it infers no duty to follow them.


Rabone v Pennine Care NHS trust [2012] UKSC 38 facts and significance??

Facts- The European Convention on Human Rights 1950 art.2 imposed an operational obligation on states to protect mentally ill patients who were not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

Significance- There is no necessity to await authoritative interpretation of a case which has not been decided by Strasbourg.
-"Rather what the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this.”


How could a divergence from Strasbourg jurisprudence regarding the understanding of a convention right be adverse for the rule of law, and therefore what does this say about the Ullah principle?

-If there was no clear reason for departure from the ECtHR, this could have adverse impacts on the FORMAL VIEW of the rule of law because there would be a lack of clarity for citizens as to their rights and obligations under the law.
-They would have to contend with two opposing streams of reasoning by the two different courts. As said in Chapman, ‘it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases’
-Therefore, there would be far-reaching constitutional implications for domestic courts exercising complete discretion and departing from clear and logical Strasbourg jurisprudence if it is not expedient.


What does s2 of the HRA say?

-The wording of s2 of the HRA dictates that it is for the domestic courts to interpret the phrase ‘must…take into account’. THEY ARE NOT BOUND by decisions of the ECtHR or their precedence. There is discretion to be determined by domestic courts in line with principles determined by the Supreme court. Parliament left it open to the courts to bring about their own approach to Strasbourg jurisprudence.


Why does Sale argue that the Ullah principle is important and what other constitutional principle does he say that it compliments??

-Sales is arguing that the mirror principle (in that domestic courts mirror the decisions of ECtHR as best they can and when appropriate to do so) is one that can work in unity with the Rule of Law, and as cases have shown, only when there is adverse constitutional implications should courts divert away from decisions


Why does Lady Hale talk of the ECHR as a living instrument?

-Convention rights are not specific enough and use general words which are open to interpretation by domestic courts, under the margin of appreciation.
There are ever-changing social and moral situations surrounding the enforcement of human rights which will inevitably influence the decisions of judges when applying convention rights overtime.


What does Hale say with regards to the margin of appreciation?

-Margin of appreciation epitomises the role of domestic courts to find their own interpretations of convention rights which sit effectively alongside our own constitutional principles. Bingham himself has explained the desire of the courts to make ‘significant contributions in the development of human rights law’. It does not matter that we may hold different interpretations of convention rights to Strasbourg or Germany or Spain or any other jurisdiction, as they pay as little attention to our decisions as we do theirs.


What does Hale say with regards to Differing cultures across Europe and the benefit to British society for balancing protection for individual rights with those of wider society? (uses Jackson as an example of differing cultures)

-We have our own British cultures and national traditions which should play a part in our determination of human rights, and where necessary the breach of individual rights for the benefit of British society; our traditions differ across Europe and therefore the importance we attribute to different rights and the way we exercise proportionality ought to differ too. In relation to the Jackson case about banning hunting with dogs; such an activity was found ‘morally offensive’ by our courts but may have had a different interpretation elsewhere in Europe.
-Animal defenders would have a very different outcome in the USA, where a restriction on the freedom of political speech would not comfortably sit alongside their commitment to democracy and freedom set out in their constitution.


What is the 3 stage test of proportionality decided in Daly (prisoners rooms being searched in their absence)

3 Stage test of proportionality:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."


What did Lord Cooke say in the Daly case with regards to the common law as a source of human rights protection, and the effect of human rights protection under the HR?

-Some rights are inherent in our constitution and existed under the protection of the common law, such as the right to confidentiality with a legal adviser. Therefore the creation of the HR did not also create these rights, it "responded" to them instead.
- ‘It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice.


When might it be necessary for a court not to grant a declaration of incompatibility under s4 even if the legislation is in express conflict with human rights?

-In the case of Nicklinson v ministry of justice, the legislation was regarding assisted suicide was a contentious and sensitive subject area, but the appellants raised the argument that the current law intended with the right to respect for family and private life.

-So long as the suspension of a human right conforms to the proportionality test set out in Daly, it may be acceptable if It is deemed necessary in a democratic and civilised society/.
-It was held that it would be inconsiderate to grant a declaration of incompatibility without giving parliament the chance to deliberate on the sensitive matter themselves. The courts were giving respect for parliament's constitutional position with regards to their protection of HR.


What does Baroness Hale say the difference is between common european Values vs the same law on contentious issues?
-What is she actually referring to?

"It is one thing to have common European Values but another to have the same laws on such contentious areas eg abortion"
-She is referring to somewhat objective moral standards shared across Europe, but suggests that it is wrong to go further and say that these should be pushed as unitary legal standards across Europe too


What does Baroness Hale suggest is the difference between our regard of the Strasbourg case law and other countries regard for it?

-Other EU countries eg Austria and Germany have written constitutions and pay no where near as much notice to the Strasbourg case law as we do. They get on with interpreting and applying their own constitutions.