Human rights

HRA 1998:

Represents a constitutional compromise: it preserves parliamentary sovereignty formally, while significantly enhancing judicial protection of rights in practice.

Before HRA 1998:

• EHR but it was not directly enforceable in the UK before HRA. I

• t was an international treaty protecting life, torture, liberty, fair trial, privacy, religion and expression.

• UK relied on civil liberties (freedom unless prohibited), not enforceable rights 

Why was it a problem before HRA

• Malone v Met PC: police wiretap allowed because no law forbade it, weak protection 

• Strasbourg: expensive, slow, inaccessible. Once a case was lost in the UK you had to apply to Strasbourg to take it to ECtHR  Malone v met pc won in strasbourg (breach of article 8) 

• Individuals were required to exhaust domestic remedies and petition the Strasbourg court, rendering human rights protection slow, costly, and largely inaccessible

HRA incorporates ECHR to UK law and now: 

• Public authorities must respect rights

• Courts must interpret laws compatibly with convention rights S3

• Courts can issue a declaration of incompatibility if incompatible S4

• Courts must take into account Strasbourg (ECtHR) case law, but they are not bound by it allowing for judicial discretion 

Ghaidan v Godin-mendoza:

Courts can read in words to the statute but cannot go against the fundamental feature. Courts must interpret legislation as far as possible compatibly with rights S3

Courts reading in words:

FOR: courts can fix injustice without striking down law, rights are protected immediately

AGAINST: possibility of judicial vandalism (courts rewriting legislation so aggressively they go beyond interpretation and make new law), undermines P intention- courts could be reshaping what P meant to do  

BUT: judicial vandalism may reflect P’s intention to protect rights within framework of HRA 

s4

S4 if interpretation is not possible, courts cannot strike down law because of PS, they must issue a declaration of incompatibility

s6

S6 public authorities must NOT breach convention rights but WHO is a public authority? Undermines effectiveness (YL v Birmingham CC)

Daly:

Rights can only be limited if justified and appropriate 

Campbell v MGN ltd:

• Naiomi campbell said she doesn’t take drugs but in reality she was a drug addict and was attending narcotics anonymous

• Newspaper published details of where she goes for these meetings 

• Two HR articles clash: right to privacy (8) of campbell and freedom of expression (10) of newspaper 

• You cannot fully protect them both, so courts balance them using proportionality 

• Allowed: publishing that she was a drug addict because she lied publicly and it was in public interest to know the truth

• Not allowed: publishing info about treatment and pics as it was too intrusive/private 

Remedies:

• Damages

• Injunctions

• Declarations 

• Remedies are only available where a breach of a Convention right is established and must be necessary to afford “just satisfaction”.

Parliamentary sovereignty?

• HRA preserves parliamentary sovereignty formally, but limits it in practice through the interpretative obligation under S3

Mirror principle:

UK courts should interpret HR to match Strasbourg exactly S2 as seen in R (ullah) v Special Adjudicator, Lord Bingham ‘no more, but certainly no less’. This is to be consistent, avoid appeals to Strasbourg and respect international law 

R v Horncastle

Move away from mirror principle UKSC disagreed with Strasbourg weakening mirror principle making UK more independent

Kennedy v Charity Commission 2014:

• A journalist wanted access to information from the charity commission

• He tried to rely on art 10 ECHR (f of exp)

• Lord Mance: common law itself protects openness/free expression, we do not need to rely on art 10

• Before: people thought rights protection came from HRA/ECHT

• Kennedy suggests CL itself can strongly protect rights

• Reflects common law constitutionalism, courts increasingly treat rights, legality and fairness as fundamental CL principles

Mark Elliot:

•  After HRA courts became more confident protecting rights through common law itself ‘common law renaissance’