Nature and Sources of Human rights

Dickson

protection of individual rights now considered part of ‘mission statement’ of judicial branch’

O’Cinneide

UK should protect not just core civil and political rights but also socio economic rights

What is it argued that the HRA limits?

political branches

Civil Liberties vs Human Rights

historic freedoms that subjects of the crown enjoy as a result of self-restraint of govt

vs

positive entitlements that individuals enjoy by virtue of inherent human dignity

Magna Carta

1215

Edward Coke (17th cent)

common law imposed limits on monarchical power

Entick v Carrington

exercise of executive power must be expressly authorized by the law

Dicey

respect for RoL and civil liberties had become deeply ingrained in British political culture

Lester

prevailing constitutional ideology … treated subjects as subjects of the crown

lack of fundamental constitutional rights, rights were residual and negative

What promoted the legal positive protection of social rights?

welfare state legislation

What led to repressive measures?

National security and immigration control

Commonwealth Immigrants Act 1968

post-war expansion of discretionary powers

Lester - the ECtHR

exposed blind spots of UK law

Change in role of the courts re human rights

ensure public authorities had legal basis and applying presumption of liberty in interpretations

→ closer scrutiny over PPs and discretionary powers

What does the HRA empower the courts to do?

public authorities: overturn acts

parliament: declarations of incompatability

Kavanagh HRA

healthy addition to UK constitutional system

Malcom

ECtHR lacks legitimacy as a supranational court

Domestic legislation that supports the HRA

Equality Act 2010

Klug

international HR law sought to define fundamental rights that all should enjoy by virtue of their inherent dignity

ECHR

wrriten 1950, largely British representatives

R (SG) v Secretary of State for Work and Pensions

CRC doesn’t generate binding legal obligations

majority: unwilling to consider that UK breached obligations under international law, remedy could only be sought by political process (Carnwarth)

Kerr (minority): international HRs to be regarded with special treatment in the UK and capable of giving rise to legally enforceable obligations

Concerns of the Attlee government

ECtHR might lead to effectively external judicial review

How many cases has UK been in breach of?

300

What happens to most casts re the UK at the ECtHR?

dismissed

IS there a requirement for judgments of ECtHR to be given dirrect effect in national law?

no

Hirst v UK

held that blanket ban on prisoners voting in elections was disproportionate

change resisted until 2018 when admin procedures were implemented

Should UK conform to Strasbourg?

For: living jurisprudence

Against: lacks legitimacy, abstract and interpreted rights, expansionist

What is the default position of the courts in interpreting legislation?

that parl did not intend to permit violation of common law rights unless clearly implied

Simms 2000

Hoffman: substantive understanding of RoL

‘principle of legality means that parliament must sequarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words’

risk of passing unnoticed in the parliamentary process

AG v Guardian Newspapers Ltd 1990

Goff: in principle no difference between English law on freedom of expression and convention provisions

Reed in Osborn v Parole Board

HRA did not supersede the protection of HRs under the common law or statute, importance of continuing development of the common law

Reed in UNISON 2017

access to justice is inherent in the rule of law

What is the ‘common law constitutional perspective’?

courts should not convert political questions to legal ones

Watkins v Home Office 2006

Rodger: doubts whether possible to identify what constituted a constitutional right

Strasbourg review v UK review

more structured than ‘reasonableness’

1997 Labour Government White Paper

‘argue for their rights in the British Courts’

section 3 HRA

courts required to interpret legislation as far as possible as to be ECHR compatible

section 4

courts can issue declaration of incompatibility

legislation can be amended by fast-track legislation

section 6 .1

public bodies must act in accordance with ECHR otherwise courts can grant relief/remedy

What must ministers make regarding their legislation?

declarations of compatibility on ECHR

Jameel v Wall Street Journal 2006

reformed defamation law by extending protection in line with HRA

Why is new legislation primarily used rather than fast-track?

enhance transparency e.g. Mental Health Act 2007

Weaver v London and Quadrant Housing Trust 2009

multi factor approach to determining whether public body

Williams: poor friend to the important legal values of certainty and predictability

section 2

British courts take into account strasbourg jurisprudence

Alconbury 2001

ECtHR case law not binding in a strict sense but courts should follow clear and constant jurisprudence (Steyn)

Ullah - Bingham

convention international instrument

HRA designed to ensure compliance with international law

correct interpretation only authoritatively expounded by the Strasbourg court

national court should not weaken case law without good reason

duty of the court to keep pace - no more but certainly no less

Lord Kerr

British judges under duty to develop own interpretation of the convention rights, should have a dialogue with Strasbourg on how to achieve this

Masterman - circumstances where courts willing to depart

• compel conclusion fundamentally at odds with key constitutional principle

• reasonably foreseeable that Strasbourg court would now come to a different conclusion

• defective/difficult to UK law e.g. R v Horncastle

  • margin of appreciation e.g. Nicklinson

Are courts still bound by mirror principle?

not necessarily eg Commissioner of Police of the Metropolis v DSD 2018

Kavanagh on section 3

only if an innovative, rights compliant interpretation is ‘so radical and wide-ranging beyond the typical expertise of the judicial body that it deserves the label of legislation’

R v A 2001

read into Youth Justice and Criminal Evidence Act 1999 to make sexual history evidence permissible where necessary - ensure right to fair trial

Steyn: may be necessary to be linguistically strained, declarations of incompatibility are a last resort

Re S (Minors) 2002

Nicholls ‘meaning which departs substantially from a fundamental feature of an AoP likely to have crossed a boundary between interpretation and amendment’ esp re practical reprecussions

Ghaidan 2004

underlying thrust of the legislation

Sheldrake v DPP 2004

Bingham: shouldn’t read in way which would … violate a cardinal principle of the legislation

Nicklinson 2014

did not grant declaration of incompatibility on the basis that the issue was particularly controversial (assisted suicide) and parliament was giving active consideration

Hale and Kerr strongly disagreed

Northern Ireland Human Rights Commission case 2018

would not grant declaration because applicant lacked standing to bring the claim

Hale: courts might be better equipped with legal skill to protect fundamental rights

Reed: stressed political accountability

When is interference with a qualified convention right be objectively justified?

prescribed by law

necessary in a democratic society - proportional

Neuberger in Nicklinson

rationally connected measures, no more than necessary, fair balance between individual and community

Belmarsh

HRA conferred a distinct constitutional role on the coruts

Jowell: ‘courts charged by parl with delineating the boundaries of a rights-based democracy’

Bogdanor

new constitutional tradition of centring around RoL and protecting rights

Feldman

HRA enriches political debate by placing rights considerations at the centre

Reasons not to get rid of HRA

devolution issues

rights across europe

separation from strasbourg jurisprudence could lead to uncertainty

Ekins

undue limits on political accountability

Scott in Animal Defenders

articles become part of domestic law but remain part of international law that is binding on the UK, whereas the ECtHR is not

Bingham in Brown v Scott

implication of terms should be cautious to avoid parties becoming bound by judicial interpretation by obligations which thay did not expressly accept and may not have been willing to accept

Hale in Animal Defenders

correct interpretation ultimately lies with strasbourg

Lord Wilson in Moohan (dissent)

ECtHR authorities on referendums not directly on point

opens possibility for supreme court to go further than strasbourg case law in developing a convention right