Human Rights Act 1988

When did Britain raitifies the European Convention of Human Rights?

1966

What did this enable British citizens to do?

Bring claims against the state in the European Court of Human Rights

When did the Labour Government pass the Human Rights Act?

1998 which comes into effect in 2000 incorporating the convention into British Law

What does the Act allow convention cases to be heard in without the need to go where?

The Act allows convention cases to be heard in the UK directly without the need to go to Strasbourg as a last resort.

The Human Rights Act 1998 is an ordinary Act which is not what?

it’s not entrenched (protected) from the ordinary way acts can be changed or repealed

unlike the US constitution for example which requires a special procedure before it can be changed, amended or repealed.

Section 6: Who does it state the case can be brought against under section 6?

A wide range of public authorities

Section 6: What is it unlawful for a public body (one controlled by the state) to do?

to act in a way which is incompatible with a convention right.

Section 6: What are public bodies?

“functions are functions of public nature”

Section 6: What does it mean if it does not have horizontal effect?

(non-state bodies can’t be sued; I cannot sue a private person/company for violating my human rights).

Section 6: What is vertical effect?

; i.e a private company provides a service that is public/normally state run (think of private prisons).

Section 6: What did the Supreme Court accept that the courts are in Campbell V MGN?

The Supreme Court accepted that the Courts are public bodies and must change the common law to be compliant with the convention

Article 7: Who does it state can also bring a case under Section 7?

People who believe that their rights have been infringed can claim only if their right has been infringed or it’s possible their right will be.

Article 7: On top of showing Locus standi what must claims be brought within?

claims must be brought within 3 months of awareness of the above.

Section 2: What does it state under Section 2(1)?

The Court must ‘take into account… any judgement, decision, declaration or advisory opinion of the European Court of Human Rights’

Section 2: Where was it seen that Domestic (UK) ratios still take priority over the ECtHR’s decisions?

(Leeds City Council V Price, Kay and Another V Lambeth)

Section 2: If it’s an original precedent, but the ECtHR has ruled on it then what should happen?

the ECtHR should be followed (Ullah)

Section 2: Where was it seen that The Supreme Court has a discursive relationship with the ECtHR and may depart from the ECtHR’s judgements – explaining why in its

judgements – allowing the ECtHR to consider the dissent?

(Manchester City Council V Pinnock)

Section 3: What does it state the court must do under Section 3(1)?

Interpret statutes in line with the convention

Section 3: What did Lord Steyn stated in R V A this goes further than?

the purposive approach and that a S4 declaration of incompatibility is a last resort.

Section 3: This created new methods of interpretation including:

• Reading down – Introduces limiting words or meanings (usually used if ministers were given too much power to limit their power).

• Reading in - adds words or meanings into an act to create safeguards to ensure compliance.

• Reading out – removes words or ignores provisions that would make the act not compliant.

Section 3: How was this seen in Ghaidan V Godin Mendoza?

the word spouse was interpreted to include a homosexual couple prior to gay marriage being legal –changing the meaning of a word to comply with the Human Rights Act.

Section 4: What can the supreme court issue if law does not comply with the ECHR?

Declaration of incompatibility

Section 4: This returns it to Parliament to consider, but what does it not do?

does not change the law

Section 4: How was this seen in Bellinger V Bellinger?

The Marriage Recognition Act 1973’s inability to recognise transgender marriage violated articles 8 (privacy) and

12 (marriage) of the ECHR. Parliament responded to the S4 order with the Gender Recognition Act 2004 removing the infringement.

Section 8: What can a court grant?

“any just and appropriate remedy” within its power this can include damages or injunctions

Section 8: When do the courts tend to only award damages?

if the court views them as absolutely necessary

Section 8: What is the case that shows that The Courts tend to only award damages if the court views them as absolutely necessary?

Commissioner of Police for the Metropolis V DSD, NBV

Section 8: What is the common practice to view a declaration of infringement as?

Common practice is to view a declaration of infringement to be sufficient.

Section 10: What does Section 10 enable a minister to do?

Enables a minister to amend all forms of legislation (primary or secondary) if a S4 declaration is issued to make the legislation convention compliant.

Section 10: When can this be done under Section 10?

This can only be done when the minister considers there is a “compelling reason” to do so – it’s at the minister’s discretion (choice).

Section 14: When a bill is going through Parliament what can a minister do?

a minister can certify it’s necessary to derogate (move away) from the convention - this is primarily used in terrorism cases.

What does section 19 put an obligation on?

Ministers to outline whether or not any new bill, in their opinion is compliant with the human rights act (statement of compatibility)

How does the Human Rights Act not always protect rights?

Parliament is not obliged to change non-compliant law

How does Section 4 show that Parliament is not obliged to change non-compliant law?

Only brings attention to issues and does not require them to change the law

What would Parliament argue that their is insufficient time to?

consider legal amendments

What does Parliament being the ultimate law maker mean?

That violations against individuals Human Rights are never resolved

However, how can it be argued that it protects parliamentary sovereignty?

House of Commons are partly elected

How can it be argued that there is a judicial overreach in protecting human rights?

Because judges are able to rewrite laws rather than interpreting them in S5

Where was it seen as problematic that judges can rewrite laws?

R V A where Lord Steyen notes that this goes further than the purposive approach

When did Lord Steyen argue that S4 declaration of incompatibility should be used?

As a last resort

Where is the judicial overreach evident in the ability in judges?

To read down (ability to limit words)

Read in meaning (add words)

Read out ( remove words)

What is a positive of section 3 allowing immediate remedies and giving judges power?

Results in sacred time for Parliament and effectively protects human rights as violations are able to be resolved speedily

How is the Human Rights argued to be unacessible?

Limit window placed on when bring a case to court following your awareness of it

What is the time you have to bring it to the attention of the courts?

Within three months

Why is it unaccessible for some by setting a window frame?

Challenging for the disadvantaged to acquire the money within three months

Why is it an advantage on insisting locus standi?

Means that the court is not overwhelmed with cases as there is more genuine cases being brought to attention

How is The European Convention on Human Rights has been interpreted to be a ‘living document’?

Citizens rights continue to improve over time

Why is it an advantage if Citizens right continue to improve over time as it is a living document?

This means that rights are consistently adapted to meet modern society- adjusting rights to best protect people: especially minorities

Why has the courts included themselves under s6 which constitues “functions are functions of a public nature”?

The courts, being a public authority, have interpreted themselves to be so bound

Where is evidence of the court interpreting themselves to be a public authority so are bound?

Douglas V Hello the court re-interpreted the tort of Misuse of private information to give effect to article 8

What is a counter to the argument of S6 including the courts?

As a counter point there is some academic literature that suggests an action must exist in the common law already for S6 to have this effect