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| Question | Answer |
| What is the ECHR and its background? | European Convention on Human Rights Created 1950 by Council of Europe to prevent WWII atrocities Churchill was the Head of the Council European Court of Human Rights (ECtHR) created by the ECHR |
| Pre-1998 (HRA) What were 'residual freedoms'? | What you are not allowed to do is set out by law What you are allowed to do is not set out by law Therefore, do anything you like unless there is a law prohibiting it |
| Pre-1998 Give an example case where residual freedoms are explained | E.g. Malone v Metropolitan Police Commissioner 1979 Malone's telephone tapped by police Claimed this removed his right to privacy However, no law forbidding the police to do this Therefore, action failed |
| Pre-1998 Residual freedoms are easy to.... and .... to enforce in court | Easy to remove Difficult to enforce in court |
| Pre-1998 What does 'incorporation' mean? | Combined with UK domestic law Given legal authority |
| Pre-1998 Did the ECHR alter the way Parliament protected our rights? | No - Parliament supreme, so they could ignore the ECHR However, agreed to uphold and mutually enforce No obligation to ensure they were followed |
| Pre-1998 What was the right of individual petition? | Granted 1966 Allowed a UK citizen to go to Strasbourg and claim their human rights against the UK Could only be done where all forms of remedy had been tried in the UK |
| Pre-1998 Was the right to individual petition popular? Why? | No Cost millions Took years However, huge number of cases against the UK - became the 2nd worst in Europe |
| Pre-1998 What happened if the ECtHR declared the UK had acted illegally in regards to an individual's human rights? | Would embarrass the UK Parliament may choose to alter the law However, no obligation because remained unincorporated Although it would undermine their diplomatic position if they did not alter the law |
| Pre-1998 Explain how the government responded to the alleged restriction on freedom of expression in regards to contempt of court laws (Sunday Times v UK 1979 case). What does this show about Parliament's attitude to the ECHR pre-incorporation? | ECtHR agreed with newspapers (common law contempt was a breach of FOE) Parliament passed Contempt of Court Act 1981, which reinforced the old common law However, it did allow more FOE and defences for contempt |
| Pre-1998 Could individuals try to use the ECHR in court? | Yes However, only used as an extrinsic aid to statutory interpretation |
| Pre-1998 What did the courts prefer to use as a source of human rights? | The old British Bill of Rights from 1689 Only 1 right remaining - right to fair trial |
| Pre-1998 What did Lord Ackner say in R v Secretary of State ex part Brind 1990, in regards to the use of the ECHR in court? | The Convention "cannot be a source of rights and obligations" And to impose a duty under Article 10 would be to "incorporate the Convention into domestic law by the back door" So judges not using ECHR to uphold rights |
| Pre-1998 What was said in Derbyshire County Council v Times Newspapers 1993, as opposed to Brind 1990? | There were limited circumstances where the ECHR could be used in UK courts E.g. where UK statutes are ambiguous, the ECHR could become an extrinsic aid to interpretation |
| Pre-1998 Summarise the effectiveness of the ECHR on the protection of human rights before incorporation | Protected Parliament under international pressure to alter law and protect HRs DCC v TN - use ECHR as an extrinsic aid in domestic courts Not protected ECHR not incorporated - no obligation to uphold Parliament could reinforce old law, e.g. Contempt of Court Act 1981 Courts preferred old Bill of Rights Brind 1990 - judges reluctant to use it as an extrinsic aid |
| HRA 1998 What did the Human Rights Act 1998 do? | Incorporated the ECHR into UK domestic law |
| HRA 1998 What does incorporation mean for the status of the ECHR? | Must be applied by the State to all Acts of Parliament, past and present unless they have a good reason not to Human Rights are directly enforceable against public authorities by any person who can demonstrate that their rights have been abused |
| HRA 1998 What Articles were incorporated? Which ones were left out? | Articles 2-12 and 14 Articles 1 and 13 left out |
| HRA 1998 Why was Article 1 and Article 13 not incorporated? | Article 1 unnecessary Article 13 - provides "effective remedy" for HR abuses - Parliament did not want to give too much power to the judiciary (this would allow judges to strike out Acts which breached HRs) |
| HRA 1998 What do we have instead of Article 13? | We have Section 8 of the HRA 1998 Courts can provide a remedy "within their jurisdiction" Not as good as Article 13 though, as a remedy within their jurisdiction may not be an 'effective' remedy |
| HRA 1998 What rights to Articles 2-12 and 14 give us? | Article 2 - right to life Article 3 - prohibition of torture Article 4 - freedom from slavery Article 5 - right to liberty and security Article 6 - right to fair trial Article 7 - freedom from retrospective law Article 8 - right to privacy and family life Article 9 - freedom of religion Article 10 - freedom of expression Article 11 - freedom of association and assembly Article 12 - right to marry and family life Article 14 - freedom from discrimination |
| HRA 1998 What is Section 2 HRA? | Judges to 'take into account' the precedents of the ECtHR Strongly persuasive, but not binding |
| HRA 1998 What was decided in Ullah 2004, in regards to Section 2 HRA? | If the precedent from the ECtHR is clear and there is no domestic precedent on the matter, then the ECtHR precedent should be followed |
| HRA 1998 What was decided in Leeds City Council v Price 2006, in regards to Section 2 HRA? | ECtHR precedents should not be followed where there is a conflicting domestic precedent UK precedent will be used unless it is clearly unlawful in the light of the HRA |
| HRA 1998 What is Section 3 HRA? | Allows judges to interpret UK laws compatibly with the Convention 'as far as it is possible to do so' (bear in mind Parliamentary sovereignty) Use any form of interpretation to make the law HRA-compatible (preferred method is the purposive approach) |
| HRA 1998 What is Section 4 HRA? | If an Act cannot be read compatibly, then a Declaration of Incompatibility can be issued Judge sends declaration to the minister responsible that the statute cannot be interpreted compatibly Judge must still apply incompatible law |
| HRA 1998 What 4 cases explain how Sections 3 and 4 should be used? | R v A 2001 - DOI is a "measure of law resort" - S3 preferred Re W & B 2002 - words can be read into a statute unless it changes the fundamental aspect of the law Anderson 2003 Ghaidan v Godin-Mendoza 2004 - 3 significant points on the use of S3 and S4 |
| HRA 1998 Explain what was said in Ghaidan v Godin-Mendoza 2004 | 1 - if words in an Act illegally remove a HR, they can be changed using S3 2 - changes made to restrict or widen definition of a word; judges may add words 3 - judges not allowed to change fundamental aspects of the law (Parliamentary sovereignty) - S4 should be used instead (as a last resort) |
| HRA 1998 What is Section 6 HRA? | An individual can sue a public authority for a breach of their human rights |
| HRA 1998 What two types of organisations can you sue under S6? | Standard PAs - never provide a private function, e.g. police, prison, local authority Functional PAs - have some private and some public functions, but only bound when doing their public function, e.g. doctor bound when working under NHS, but not when working for a private healthcare patient, e.g. BUPA |
| HRA 1998 Can you sue a private body under S6? | No - not a public authority Private bodies make profits whereas public bodies do not - they provide a service to the public (However, implied horizontal direct effect as in Douglas v Hello 2005 - see later) |
| HRA 1998 Which Acts are private bodies bound by, which help to uphold HRs? | Equality Act 2010 Contempt of Court Act 1981 |
| HRA 1998 In deciding whether an organisation is a functional public authority, what did the judge say in Poplar Housing and Regeneration Association v Donoghue 2001? | Courts will assess the organisations' proximity of relationship with the State to determine whether they are a FPA or not |
| HRA 1998 What did the Poplar Housing case say about Housing Associations being a FPA? | Not normally considered a PA (Peabody v Green), but a council representative was sent to sit on the governing board Therefore, council had a say in how things were done, so close proximity to the State Poplar to be regarded as a FPA |
| HRA 1998 What happened in YL v Birmingham CC 2007? | Private care home providing service to the elderly (vulnerable) Resident sued for breach of HRs - use of tax payer's money meant the care home was a FPA However, judge decided it was not as there was no proximity with the State, and the care home was using the money to make a profit |
| HRA 1998 What is Section 7 HRA? | Individuals can take a case to a domestic court for a breach of their HRs Strasbourg only an appeal court |
| HRA 1998 What is Section 8 HRA? | Courts to provide a remedy 'within their jurisdiction' for HR abuses |
| HRA 1998 What is Section 10 HRA? | Fast track procedure for an amendment to UK law after a S4 DOI Helps to uphold Parliamentary sovereignty |
| HRA 1998 What is Section 19 HRA? | Statement of Compatibility All Acts of Parliament need one to say whether it does or does not comply with the HRA |
| Limits of the HRA How is the manner of incorporation a limitation to the effectiveness of the HRA? | It is only an Act of Parliament - it can be removed at any time Would lose the protection of our HRs Probably be kicked out of the EU ECHR go back to being an extrinsic aid Go back to the times of residual freedoms |
| Limits of the HRA Why is the decision to omit Article 13 from incorporation a limitation? | People who have had their rights breached may not be able to get an effective remedy i.e. remedy would be striking out the Act, of which the judiciary cannot do |
| Limits to the HRA Why is Section 19 a limitation? | Ministers can say they are unable to declare an Act compatible - pass it anyway Reasons kept secret |
| Limits to the HRA What Act has been introduced without a S19 Statement of Compatibility? | Communications Act 2003 Continued ban on political advertising which may be incompatible with Article 10 FOE |
| Limits to HRA Why is S10 a limitation? | It fails to force amendments quickly Minsters only required to change if there is a 'compelling' reason to do so - a DOI is not 'compelling' |
| Limits to the HRA Give an example of where a DOI has not been acted upon quickly, highlighting the ineffectiveness of S19? | Blood & Tarbuck v Secretary of State for Health 2003 DOI issued Conservative Minister blocked new legislation Eventually went through |
| Limits to HRA Why is S19 bad for those who want the law changed quickly? | If the law is not changed quickly, our HRs are still being abused by the government |
| Limits to the HRA What alternatives are there for us if the government does not change the law quickly? | -new government may come into power and push through new legislation -judges can find a way to interpret the law -ECtHR may rule against the UK and bring pressure on them to change the law |
| Limits to the HRA S2 says judges should take into account the precedents of the ECtHR. What law is included in this area? | ECtHR decisions Commission decisions Council of Europe decisions |
| Limits to HRA Why is it a negative that courts are asked to take into account other forms of legal authority? | ECtHR, Commission and Council are foreign law makers - there are no safeguards against political opinions or ambitions European countries do not use precedent like the UK - decisions not followed |
| Limits to the HRA Why is it a negative that only victims can bring a Human Rights case? | Pressure groups and trade unions cannot bring cases This is bad because it means vulnerable, poor, weak and least educated people cannot be represented or have their rights enforced Therefore, not everyone protected effectively by HRA |
| Limits to the HRA How has the problem of claims only being brought by victims been partly solved? | Creation of Commission for Equality and Human Rights - created by Part 3 Equality Act 2006 However, only promotes and monitors HRs Cannot investigate breaches or enforce changes Can only make recommendations, unless they find a victim whom they can assist |
| Limits to the HRA Why is Section 6 a limitation? | Can only bring claims against PAs and FPAs Cannot claim against private bodies, as shown by YL v Birmingham CC 2007 HRs not completely protected or fully enforceable |
| Limits to the HRA How has the problem of S6 been partly resolved? | Found an ingenious method to help protect Article 8 from HR abuses Implied horizontal direct effect E.g. Douglas v Hello Magazine 2005 Bring a case to court under UK law, e.g. trespass and declare HR in court - court is a PA under S6 so have to uphold |
| Limits to the HRA What are the categories of rights? | Aboslute - cannot be interfered with at all, e.g. right to life, freedom from torture Limited - situations listed in the Article where they can be interfered with, e.g. right to liberty and security Qualified - can be lawfully removed although there is no defined list of situations - only have to prove there is a good enough reason (prescribed by law, necessary in a democratic society and it is proportionate), e.g. freedom of expression |
| Limits to the HRA Why is the categorisation of rights a limitation? | Means that we do not always have our rights upheld Most of them can be interfered with and lawfully removed Categories are vague and widely drafted |
| Positives of the HRA Between October 2000 and January 2009, the courts have issued only 26 DOIs. Why is this a positive? | Implies government has been upholding HRs quite well Otherwise, courts have been interpreting the law in order to uphold citizens' rights (have shown that S3 is the preferred method - R v A 2001) |
| Positives of the HRA Give some examples of DOIs which have resulted in amendments to the law | A & Others v Home Secretary 2004 - courts forced government to release detainees Bellinger v Bellinger 2003 - led to Gender Recognition Act 2004 |
| Positives of the HRA How has S3 been used effectively by the courts? | R v A 2001 - Youth Justice and Criminal Evidence Act read in a way to allow the D to have a fair trial (cross-examination of a rape victim despite previous law preventing this from happening) Ghaidan v Godin-Mendoza 2004 - 'as his wife or husband' interpreted to mean 'as if they were his wife and husband' |
| Positives of the HRA How are do the courts have a central role in upholding HRs? | S19 is useless - some Acts accompanied by Declarations which are clearly wrong Up to the judges to do what they can Use of S3 - R v A; Anderson; Re W and B; Ghaidan v Godin-Mendoza However, not prepared to re-write fundamental aspects of the law Have S4 DOIs Award any remedy within their jurisdiction - S8 |
| Bill of Rights If the HRA is ineffective in protecting our HRs, the alternative is a Bill of Rights. What is a Bill of Rights? | Document that protects the fundamental freedoms of individuals It is usually entrenched, so it cannot be easily removed or changed by subsequent parliaments |
| Bill of Rights How is a BOR different to the HRA? | HRA can be removed easily BOR needs public permission - two-thirds of population for it to be changed or removed |
| Bill of Rights What have the Conservative Party said they will do in regards to the HRA? | Remove it and replace it with a British Bill of Rights (won General Election of 2015, so this is likely to happen now) |
| Bill of Rights If we do remove the HRA, how will the UK be affected by the ECHR? | Still be protected by it, as Britain is a signatory of the Convention (although may go back to times of residual freedoms and ECHR being an extrinsic aid) |
| Bill of Rights What two ideas do the Conservatives have to strengthen the protection of human rights in the UK? | 1 - add to the protection in the ECHR with rights such as right to healthcare, trial by jury and 5 yearly parliaments (and therefore improve public perception of rights) 2 - strengthen the role of Parliament; remove the fast track procedure (S10) and replace it with a requirement that amendments are to be done by full parliamentary debate |
| Bill of Rights What are the difficulties associated with the Conservative ideas? | 1 - Judges do not like being told how to interpret - that is their job 2 - Adding to the human rights may not improve public perception. It is the judges' decisions that people don't like sometimes 3 - May not be possible to add to the content due to devolution of powers 4 - May not be possible for politicians to agree on what should be included 5 - HRA still new; needs to be given a chance before it is removed |
| Bill of Rights Give an example of who is in favour of a Bill of Rights | QC Geoffrey Robertson - "without an entrenched BOR there is no liberty in Britain that is safe from the meddling of politicians" |
| Bill of Rights What are the 4 main reasons for why we need a Bill of Rights? | 1 - curbs on the Executive 2 - attitude of the judiciary 3 - updates human rights in line with the needs of the 21st Century 4 - provides the UK with British rights |
| Bill of Rights What would curbs on the Executive do? (Positive for BOR) | Protect citizens of the UK from the wide-ranging powers of the government and its agencies |
| Bill of Rights Why is a BOR needed in regards to the attitude of the judiciary? | Allow them to better protect and uphold human rights Judges currently rarely challenge the laws that remove fundamental freedoms - a BOR would change this |
| Bill of Rights Why is it important that a BOR updates rights in line with today's society? | The ECHR was written in the 1950s and enshrines the rights perceived to be needed at the time Modern days - some people think it is necessary to have environmental and technology rights, etc. |
| Bill of Rights Why do people say a BOR is needed to prove us with British rights? | ECHR was drafted by European countries British people feel they have no ownership over it and therefore, a BOR would be completely British |
| Bill of Rights What are the 3 main reasons against a BOR? | 1 - increased powers for the judiciary 2 - inflexibility 3 - unecessary |
| Bill of Rights Why is it a bad thing if the judiciary has increased powers? | A judge would be able to strike down Acts of Parliament which remove an individual's human rights - this would mean they are overstepping their powers (infringement of the separation of powers), and going against Parliamentary sovereignty |
| Bill of Rights How does a BOR create inflexibility? | It is not easy to alter a BOR As society changes, it would be difficult to update the rights For example, the American BOR contains the right to bear arms. Currently, gun laws in the USA are being criticised due to the high level of gun crime, but it is difficult to restrict possession of guns as the BOR allows it |
| Bill of Rights Why would a BOR be unnecessary? | Some people argue that we have all the protection we need from the HRA |
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