Civil liberties, HRs, citizenship and equality

Liberty overview

Reflects Dicey’s 1st principle of he RofL - negative liberty, free to do anything not outlawed

Liberty is a shield against the state

People free - all subject to the same laws (Dicey) / Entick v Carrington - state must be authorised to intervene

Limits to liberty

R v Malone 1978 - phone tapping case, allowed for national security

HRA 1998 - overview + Lester quote

Gave effect to the ECHR, can enforce rights in the UK / Anthony Lester QC: ‘individuals would be able to exercise personally enforceable rights under international law’

Effect of breaking convention

Govt has to reconsider or change the law / e.g. R v Malone (passed in UK - went to ECHR) - Malone v UK 1984, UK breached ECHR, phone tapping unlawful

Key elements of HRA

All laws must be compatible with ECHR/HRA / courts can issue declaration of incompatibility

Reading - Lord Irvine - expansive approach

Lord Irvine - courts don’t have to follow ECHR rulings, can decide for themselves (but only positively, ECHR supreme = can’t remove rights) / can take on a more expansive approach to rights

Expansive approach - R (U) v SA, Lord B quote + M and F principles

R (Ullah) v Special Adjudicator 2004 / Lord Bingham: ‘the duty of the courts is to keep pace with the Strasbourg jurisprudence’ (mirror principle) / also established flagrant principle (violation of ECHR must be flagrant to be actionable)

Contrasting the mirror principle - Cmmr P v DSD 2018 (Lord K and M)

Cmmr of Police v DSD 2018 / Lord Mance - English courts should go beyond ECHR to better enforce rights / Lord Kerr: ‘in recent cases, a departure from the mirror principle can be detected’

G v GM 2004 - read-in method

Ghaidan v Godin-Mendoza 2004 / GM denied succession to home after male partner died, question if this was incompatible with ECHR / Lords ruled could ‘read-in’ provisions to include same-sex couples

G v GM 2004 - Lord N quote (tying in HRA to read-in)

Ghaidan v Godin-Mendoza 2004 / Lord Nicholls: ‘the intention of Parliament in enacting s3 (of HRA) was that a court can modify the meaning’

G v GM 2004 - Lord M dissenting

Ghaidan v Godin-Mendoza 2004 / Lord Millet dissented - argued read-in method oversteps courts’ power

R (W) v IRC 2005

R (Wilkinson) v IRC 2005 / Lord Hoffman outlined how interpretation isn’t just focused on Parliament’s intention, but what the reasonable reader would see

Academic - A. Kavanagh

Kavanagh: ‘there is no denying that interpretation under s3 brings about significant changes in the role of parliamentary intention’ / now shifted from Parl’s intention to what’s compatible with the convention

But - limits to HRA + incompatibly - R (SK) v Sec of State

R (Steinfeld and Keidan) v Sec of State / Lord Kerr: ‘a declaration of incompatibly does not oblige the government or parliament to do anything’

R (N) v MOJ

R (Nicklinson) v MOJ / N paralysed, wanted to die, refused - starved himself to death, case still continued to SC / SC dismissed rthe appeal - judges cannot override Parl on fundamental moral and ethical issues like assisted suicide / prohibition justified to protect vulnerable individuals (proportionality - balanced rights)

Expanding HRA JR to private individuals - C v MGN 2004

Campbell v MGN 2004 / Daily Mirror published things about Naomi Campbell, C sued for breach of confidentiality / Lord Nicholls: ‘the values embodied in articles 8 and 10 are as much applicable in disputes between individuals’

Citizenship - key law (BNA)

British citizenship governed by British Nationality act 1981

Citizenship - C’s case 1608

Calvin’s Case 1608 / Calvin born in Scotland, denied right to his own property (considered alien) / court ruled in Calvin’s favour - allegiance owed to King, not realm of England + Scotland under King / Establiushed naturalised citizens

D. Prabhat on citizenship

Prabhat argues citizenship is increasingly conditional and stratified (naturalised citizens/migrant face greater vulnerability) / citizenship rights aren’t equal

R. Karatani on citizenship - supporting Prabhat

Karatani highlights how citizenship law is intertwined with immigration law / citizenship law has a hierarchy

SB case 2021

Shamima Begum case 2021 / Begum, British born, travelled to Syria to join ISIS / then tried to return to UK (denied for NS) / SC ruled in govt favour - deserved fair hearing, but interest of fairness didn’t require Begum to be present in the UK to appeal / court prioritised right of her returning over right to make representation

Further reading on citizenship - Barber

Barber argues the lack of a codified constitution = ambiguity around rights attached to citizenship / citizenship is a ground right - leads to other rights, but a secondary one nonetheless

Equality ECHR case - T v G 2000

Thlimmenos v Greece 2000 / T denied job due to prior conviction (but conviction was refusing to wear uniform for religious beliefs) / ECHR ruled this punishment was disproportionate, Greece failed to differentiate between crimes based on conscience and crimes based on dishonesty

EA 2010

Equality Act 2010 / 9 protected characteristics - strengthened / but asymmetric definitions (e.g. Jew/Sikh = racial group, but not Muslim)

Expanding protected characteristics - M v L 1983

Mandla v Lee 1983 / Sikh boy refused admission to private school due to turban / Lords ruled Sikhs = racial group, ruled against school / broadened meaning under EA

G v N 2009 - further expanding protections

Grainger v Nicholson 2009 / N argued belief about climate change to just an opinion, but a philosophy (affected his way of life) / court ruled in his favour, belief protected in jobs

J v E 1990 - but for test in discrimination

James v Eastleigh BC 1990 / Eastleigh allowed citizens of pensionable age free entry into pool, but higher age for men / Lords ruled this was direct discrimination (but for James being a man, wouldn’t have had to pay)

B v H 2013

Bull v Hall 2013 / Bull devout Christians, double rooms for married couples only / Hall = gay couple, unmarried (not legal at the time) / SC ruled in Hall’s favour - Bulls directly discriminated against gays as they couldn’t marry at the time / religion is protected - but can’t be used to justify discrimination against other PCs