Human Rights in the UK

• What was the timeline of UK human rights?

  • Before 1951: Common law rights only; no human rights recognised
  • 1951: UK joined ECHR, committing to protect Convention rights.
  • 1951-1966: UK did not recognise the right of individual petition
  • 1966-98: UK allowed individuals to petition ECtHR (Lengthy & costly). Individuals still unable to enforce Convention rights in domestic courts.
• What did the HRA 1998 establish?

  • HRA incorporated Convention rights into domestic law.
  • Convention Rights became directly enforceable in UK domestic courts.
  • Individuals can file human rights cases in domestic courts.
  • Individuals may still petition ECtHR if unsuccessful in domestic courts.
• What are the key features of the HRA?

  • Makes it unlawful for public bodies to act in violation of Convention Rights. If they do so, they can be challenged in UK courts.
  • Requires UK courts when making decision to take into account Convention Rights and the decisions of ECtHR.
  • Requires legislation to be interpreted and given effect compatibly with Convention Rights. If not possible to do so, Court may declare an Act incompatible with the Convention.
• What is stated in section 2 of the HRA?

  s2: A court determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of ECtHR (requires UK courts to reference all EU cases decided by EctHR in their decision-making)
• What is stated in section 3 of the HRA?

  So far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
• What is stated in section 4 of the HRA?

  • s4 Declaration of Incompatibility: Courts may make a declaration of incompatibility if -

  ► a primary legislation is incompatible with a Convention right.

  ► a secondary legislation is incompatible with a Convention right & the primary legislation concerned prevents its removal.
• What can the ECtHR be permitted to do if a case regards secondary legislation?

  if a court finds that legislation to be a violation, the ECtHR has the power to strike down that particular act if secondary legislation is not attached to primary legislation (does not apply to primary legislation because of PS)
• What is a limitation of a Declaration of Incompatibility?

  A DOI does NOT affect the validity, operation, or enforcement of the legislation.
• What is stated in s19 of the Statement of Compatibility?

  • A Minister in charge of a Bill must, before second reading, make a statement to the effect that..

  ► In their view the provisions of the Bill are compatible with Convention rights;

  ► Or, although they are unable to make a statement of compatibility, the government wishes the House to proceed with the Bill (showcases issues of Parliamentary Sovereignty)
• What is stated in s6 Acts of Public Authorities?

  It is unlawful for a public authority to act in a way which is incompatible with a Convention right. Except when as a result of primary legislation, the authority could not act differently
• What is included in public authorities for s6?

  (a) a court or tribunal,

  (b) any person whose functions are of a public nature, but does not include Parliament e.g Home Secretary
• What is stated in s7: Proceedings?

  A person who claims that a public authority has acted (or proposes to act) unlawfully under S.6, may bring proceedings against the authority:

  • Only if he/she is (or would be) a victim of the unlawful act.
  • Proceedings must be brought within one year from the date the act took place. But, courts may allow longer period if it considers it equitable having regard to the circumstances
• What is Article 5 of the HRA?

  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in following cases and in accordance with law
• What are some examples that show that Article 5 is a limited right?

  (a) lawful detention of a person after conviction by a court;

  (c) lawful arrest or detention of a person when it is reasonably necessary to prevent his committing an offence  Austin (2009)

  (e) lawful detention of persons for the prevention of the spreading of infectious diseases
• What is Article 11 of the HRA?

  • (1): Everyone has the right to freedom of peaceful assembly and freedom of association with others.
  • (2): No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
• What are the powers of the courts if they have identified that a public authority has committed a breach?

  • Declare the action/decision unlawful
  • Cancel the action/decision
  • Order that public authority should/shouldn’t act in a certain way
  • Award compensation to V (varies based on circumstances of the case
• What are the powers of the courts if they have identified that Parliament has committed a breach?

  • Declaration of Incompatibility
  • Act of Parliament remains valid & effective & can only be repealed/amended by Parliament itself
• For Limited Rights, what three required elements must be present for it to be justified?

  1. There must be a legal basis for the restriction of right (if restriction is not present in the law: Parliament could have to create one so that restriction is not a violation)
  2. There must be a legitimate justification for the restriction
  3. The restriction must be proportionate (e.g could we have been able to do this with less restrictions?)
• What are the three required elements for Derogation to be justified? (Article 15 ECHR/ss. 14 & 16 HRA)

  1. Derogation must be a temporary measure, regularly reviewed
  2. There must be a legal basis and legitimate justification
  3. Derogation must be proportionate (minimum necessary restriction)
• What ways has the HRA impacted the powers of the Courts towards the Executives?

  • Expanding review powers of courts over the government & public authorities
  • Introduced new standards (Convention Rights) for scrutinising the conduct of public authorities
  • Provides citizens with new ways to challenge public bodies in domestic courts
  • Increasing numbers of cases brought against the government
• What ways has the HRA impacted the powers of the Courts towards Parliament?

  • Courts interpret legislation compatibly with Convention & can issue Declaration of incompatibility
  • UK is bound by the Convention & the decisions of ECtHR
  • BUT Parliament can amend or repeal HRA as they were the body who established the act: hence Conservatives’ proposal to replace HRA with British Bill of Rights
• What are the two arguments for/against Democratic Legitimacy?

  1. Some argue that expanding the power of courts against the Government and Parliament makes for better rule of law, democracy & protection of citizens against abusive powers by the State
  2. Others argue that HRA gives judges too much power to interfere with decisions of the democratic institutions of the state
• What is the L.P of Austin?

  L.P: Kettling by police will not violate article 5 if it was done in good faith, were proportionate and enforced for no longer than was reasonably necessary
• What is Article 5 (1) (c)?

  The lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence
• What is the L.Ps of Saadi v UK?

  L.P: that key principles relating to article 5 have been developed on a case-by-case basis, and that the notion of arbitrariness in the context of article 5 varies to a certain extent depending on the type of detention involved

  
  

  L.P: the state of mind of the person responsible for the alleged detention can be a relevant factor in deciding whether article 5 has been infringed.
• What are the L.Ps of Moos? (where there were two large demonstrations & the police decided to contain protestors in the less violent protest because of fears that protestors from the first demonstration would cause further violence)

  L.P: courts would be seen to have gone beyond their powers if they have formed its own view on the imminence of a breach of the peace rather than assessing the state of mind of the person responsible for the alleged detention