Human rights act 1998

What is the difference between a liberty and a right?

A liberty means freedom to act unless prohibited by law; a right is a legal entitlement to require or prevent action by reference to a legal rule.

How did the UK historically protect freedoms?

Through negative liberties, meaning individuals were free unless the law expressly restricted them.

What did Malone v Metropolitan Police Commissioner show?

Telephone tapping was lawful because no statute or common law rule prohibited it.

Why is Malone important?

It shows the weakness of relying only on liberties where there is no positive legal protection.

What did Wheeler v Leicester City Council say about freedoms?

Fundamental freedoms are immunities from interference unless the law restricts them.

What did the HRA 1998 create more clearly?

Positive legal rights that individuals can rely on against public authorities.

What is a positivist approach to rights?

Rights are protected because they exist in statute or case law.

What is a natural law approach to rights?

Rights deserve protection because morality requires it, regardless of statute or case law.

What is a transcendental approach to rights?

Rights are justified by a higher power or deity.

What is an immanent approach to rights?

Rights are inherent in human nature and human dignity.

What is Dworkinian interpretivism?

Rights are identified by finding the best fit with case law, statute, and society.

How does social contract theory justify rights?

People agree to obey laws, accept state power, and recognise rights for others that they also hold.

How does Locke justify rights protection?

Protection of the self and property is presented as a route to general happiness.

What does Rawls’ veil of ignorance ask?

What rules would you choose if you did not know your own characteristics, others’ characteristics, or the society you would live in?

What is Rawls’ basic liberty principle?

Each person should have equal basic liberties compatible with equal liberty for all.

How does Dworkin justify rights protection?

Rights should protect minorities, unpopular groups, ostracised groups, and groups historically denied equal respect.

What are civil and political rights?

Rights such as fair trial, expression, assembly, privacy, autonomy, right to life, and freedom from torture.

What are economic, social and cultural rights?

Rights relating to public goods, human needs, economic inequality, culture, and heritage.

What rights schemes are discussed in the lecture?

The ECHR, the Human Rights Act 1998, and common law rights.

Is the ECHR part of the EU?

No. The ECHR belongs to the Council of Europe, not the European Union.

Which ECHR rights have domestic effect through the HRA?

Articles 2, 3, 5, 6, 8, 9, 10, 11, 14, and Protocol 1 rights.

What are examples of common law rights?

Trial by jury, presumption of innocence, access to courts, freedom of expression, protest, and protection against retrospective criminal law.

How did Dicey view constitutional rights?

Constitutional rights were the consequence of ordinary rights defined and enforced by courts.

What did Brind show before the HRA?

Courts would not incorporate Convention rights into domestic law without Parliament.

What was the aim of “bringing rights home”?

To make Convention rights directly accessible in UK courts.

What was the domestic status of the ECHR before the HRA?

It had no direct domestic effect, although courts sometimes considered it indirectly.

What did ex parte Brind confirm about the ECHR pre-HRA?

Convention rights could be enforced internationally, not directly in UK courts.

What did ex parte Smith show before the HRA?

Courts increasingly considered human rights when deciding the intensity of judicial review.

What principle came from ex parte Smith?

The more substantial the interference with human rights, the more justification the court requires.

What did ex parte A recognise before the HRA came into force?

Fundamental rights such as the right to life could narrow the range of reasonable decisions.

Why was common law considered insufficient before the HRA?

Convention rights could not be fully protected by relying only on common law.

How did the HRA allow a British contribution to human rights law?

UK courts could develop human rights jurisprudence domestically and influence European human rights law.

How did the HRA improve efficiency?

Domestic courts could deal with rights issues more directly and quickly than waiting for Strasbourg.

What time and cost issue supported incorporation?

Strasbourg cases took about five years after domestic remedies and cost around £30,000 on average.

What were early impacts of bringing rights home?

More rights protection, no floodgates, fewer Strasbourg violations, but public misunderstanding and myths about the HRA.

How did the HRA affect parliamentary sovereignty?

It did not remove Parliament’s power to legislate against human rights, but increased political accountability.

What is the principle of legality in Simms?

Fundamental rights cannot be overridden by general or ambiguous words.

Why must Parliament use express words to override fundamental rights?

Courts presume Parliament did not intend to interfere with basic rights unless it clearly says so.

What does section 2 HRA require?

Courts and tribunals must take into account relevant ECtHR judgments and decisions.

What is the mirror principle?

The idea that UK courts should generally interpret Convention rights consistently with Strasbourg case law.

What was the anticipated purpose of section 2?

To ensure British courts interpreted Convention rights consistently with Strasbourg jurisprudence.

What did Alconbury say about Strasbourg case law?

UK courts should follow clear and constant Strasbourg jurisprudence unless special circumstances exist.

What did Ullah say about the mirror principle?

UK courts should keep pace with Strasbourg jurisprudence: no more, but certainly no less.

What did AF show about the mirror principle?

UK courts may feel bound to follow Strasbourg even where they disagree because the UK is internationally bound.

What did Horncastle show about section 2?

UK courts may decline to follow Strasbourg where it has not sufficiently appreciated domestic law or procedure.

Why was Ullah later criticised?

It risked preventing the development of a distinct domestic human rights jurisprudence.

What did Elan-Cane say about Strasbourg case law?

Domestic courts need not follow Strasbourg slavishly, but HRA rights are generally based on Strasbourg principles.

When might the modern mirror principle be set aside?

Where Strasbourg law is unclear, misunderstands UK law, conflicts with constitutional arrangements, is wrongly decided, or has intolerable domestic consequences.

What does section 3 HRA require?

Legislation must be read and given effect compatibly with Convention rights so far as possible.

Why is section 3 important?

It allows courts to reinterpret legislation to make it rights-compatible where possible.

What did Poplar Housing say about section 3?

Section 3 is mandatory and can require courts to interpret pre-HRA legislation differently from before.

What did R v A No 2 say about section 3?

Courts may use strained interpretation, reading down, or implied provisions to avoid incompatibility.

What is the limit of section 3?

Courts cannot adopt a meaning inconsistent with a fundamental feature or underlying thrust of legislation.

What did Ghaidan v Godin-Mendoza establish?

Section 3 interpretation must stay compatible with the underlying purpose of the legislation.

What does section 19 HRA require?

A minister introducing a Bill must state whether it is compatible with Convention rights or whether government still wants to proceed.

What does section 4 HRA allow?

Courts may make a declaration that legislation is incompatible with a Convention right.

Does a declaration of incompatibility invalidate legislation?

No. The legislation remains valid unless Parliament changes it.

When should section 4 be used instead of section 3?

When compatible interpretation is impossible without crossing into legislative change.

What did R (H) v Mental Health Review Tribunal concern?

A declaration issue where the Mental Health Act placed the burden on the detained patient to justify release.

Does Parliament have to amend incompatible legislation immediately?

No. Bellinger shows Parliament may have reasonable time to consider corrective legislation.

What does section 10 HRA provide?

A fast-track remedial procedure to amend incompatible legislation.

What are Henry VIII powers under section 10?

Powers allowing secondary legislation to amend primary legislation.

What does section 6 HRA require?

Public authorities must not act incompatibly with Convention rights.

Who is included as a public authority under section 6?

Courts, tribunals, and persons performing functions of a public nature.

Who is excluded from section 6?

Either House of Parliament and people exercising functions connected with parliamentary proceedings.

What bodies were intended to fall within section 6?

Central government, local government, police, immigration officers, prisons, courts, tribunals, and private bodies exercising public functions.

Is “public authority” defined in the HRA?

No. Aston Cantlow says “public authority” is uncertain and context is important.

What is a core public authority?

A body governmental in nature, such as a government department, local authority, police, or armed forces.

What factors suggest a body is governmental?

Special powers, democratic accountability, public funding, public interest duties, and statutory constitution.

Is there one test for identifying public authorities?

No. Aston Cantlow says there is no single universal test.

What factors help identify a public function?

Public funding, statutory powers, replacing government, or providing a public service.

What did Poplar Housing say about section 6 interpretation?

Public authority and public function should be interpreted generously.

What limit did Poplar Housing place on section 6?

A private body does not automatically perform a public function merely because it helps a public authority fulfil a duty.

What controversy arose in YL v Birmingham City Council?

Whether a private care home providing publicly arranged care was performing a public function.

What did the majority in YL decide?

The private care home acted under private contractual obligations rather than public law obligations.

Why did the minority in YL disagree?

They saw publicly funded statutory care as the type of public function section 6 was meant to cover.

What did Weaver establish about social housing?

Termination of a social housing tenancy can be a public act where bound up with a public housing function.

What did Fearn v Tate decide on public functions?

The Tate’s museum activities were not governmental in nature despite statute, public funding, and public constraints.

What does section 7 HRA require for standing?

A claimant must be a victim of the alleged unlawful act.

What did AXA say about victim status?

Victim status may exist where there is a real risk that Convention rights will be directly affected in the near future.

What is the collective effect of the HRA framework?

It gives courts, Parliament, and government specific roles in protecting rights while preserving parliamentary sovereignty.

What did A v SSHD say about the HRA’s democratic mandate?

The HRA gives courts a specific democratic mandate to protect Convention rights without overriding Parliament.

What is deference under the HRA?

Courts give some weight to Parliament’s democratic judgment when balancing individual rights and public interests.

What did Hirst v Attorney General say about deference?

Courts should not easily condemn primary legislation, especially after careful parliamentary evaluation.

What did Lambert say about deference?

Courts should pay some deference to Parliament when balancing public interest against individual rights.

What is an absolute right?

A right that cannot be qualified or derogated from, even in emergencies.

Which right is the key example of an absolute right?

Article 3: prohibition of torture and inhuman or degrading treatment.

What did Ireland v UK say about Article 3?

Article 3 prohibits torture and inhuman or degrading treatment absolutely, regardless of the victim’s conduct.

What questions apply when a right can be qualified?

Whether the limitation was necessary in a democratic society and whether it was proportionate.

What does “fair balance” mean under the Convention?

A balance between the general interest of the community and protection of individual fundamental rights.

What did United Communist Party of Turkey say about democracy?

Democracy is the only political model contemplated and compatible with the Convention.

What did Smith v UK say about proportionality and national security?

States have discretion over military discipline, but restrictions must be justified with specific examples.

How is proportionality different from Wednesbury reasonableness?

Proportionality allows closer review of balance, weight, and necessity, not just rationality.

What did Daly say about Convention rights cases?

They must be analysed through necessity in a democratic society and proportionality.

What is vertical effect?

Individuals asserting Convention rights against public authorities.

What is horizontal effect?

Individuals asserting Convention rights against private individuals or non-public authorities.

Does the HRA create direct horizontal effect?

No. It creates indirect horizontal effect because courts are public authorities and must act compatibly with rights.

What did Campbell v MGN say about horizontal effect?

The HRA creates no new private cause of action, but courts must apply existing law compatibly with both parties’ rights.

What does extra-territoriality ask?

Whether the Convention or HRA applies beyond UK territory.

What did Issa v Turkey say about extra-territorial reach?

A state may be responsible where people abroad are under its authority and control through its agents.