Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/32

Click to flip

32 Cards in this Set

  • Front
  • Back

What is the relationship between the enactment of the HRA and the ECHR

Gives further effect to the ECHR

Why does Dicey argue there is no need for a positive list of rights? (such as US Bill of Rights)


1)


2)


3)

1) Any interferences with the dignity of individuals protected against by common law


2) residual liberty- everything is permitted except that which is prohibited


3) Parliament would not allow statutes contradictory to common law rights to be passed

A blow to freedom of speech?


A-G v Guardian Newspapers Ltd


1)


2)

1) Injunction to prevent publication of ex Mi5 agent's book reinstated


2) Lord Bridge- "Freedom of speech is always the first casualty under a totalitarian regime... significant step down that very dangerous road"

Parliamentary sovereignty and civil liberties


Liversidge v Anderson

1) Parliament can and will enact laws which interfere with our liberty


2) This must be applied by the judiciary as common law is subordinate to statute

Statues which have encroached on our human rights/liberties?


1)


2)


3)

1) PACE 1984


2) Public Order Act 1986


3) Terrorism Act 2006 (28 day detention without trial for suspected terrorists)

Is ECHR the same as EU law?

no, ECHR is from Council of Europe

Are rights within ECHR directly enforceable in UK courts?

no, have to go to Strasbourg

Why should it be incorporated?


1)


2)


3)

1) Procedural issues- too slow and costly to go to Strasbourg


2) idea that UK is falling behind rest of Europe


3) Greater protection of liberties

Why not to incorporate?

Courts would have the right to strike down legislation which could cause a conflict between the judiciary and Parliament

Interpretation of legislation


s3 HRA

primary and subordinate legislation to be read and given effect in a way which is compatible with convention rights

Declaration of incompatibility


s4 HRA


1)


2)


3)

1) Courts empowered to declare provision in a act incompatible with convention rights


2) Primary legislation only


3) does not affect validity of the provision but signals it for review by Parliament

Decisions of ECtHR


s2 HRA

courts must “take into account” decisions of the European Court of Human Rights,but does not make those decisions binding on UK courts,

Parliament responses to declaration of incompatibility


1)


2)


3)

1) Do nothing


2) Repeal provision


3) Remedial action - a minister empowered to change a piece of legislation declared to be incompatible

s19 HRA


1)


2)


3)

1) Declaration of compatibility


2) usually a positive statement, although sometimes over optimistic


3) greater consideration of human rights

Equality and Human Rights Commission


1)


2)


3)


4)


5)

1) Created by Equalities Act 2006


2) promotes understanding of the importance of Human Rights among the public


3) promotes the protection of Human Rights


4) monitors the efficacy of Human Rights laws


5) Has authority to commence JRP where a public body has acted contrary to ECHR

Role of the courts


1)


2)



1) Considered public authorities and hence must act in a way that is compatible with human rights


2) s2 HRA compels UK courts to follow clear and constant jurisprudence from Strasbourg absent andy special circumstances



Manchester City Council v Pinnock


Lord Neuberger


1)


2)

1) "take into account" does not necessarily mean follow


2) UK courts should follow Strasbourg unless it is completely incompatible with our law

The extent of s4 HRA - Lord Steyn


R v A


1)


2) quote

1) Courts empowered to change meaning of statues


2) "Inaccordance with the will of Parliament as reflected in section 3 it willsometimes be necessary to adopt an interpretation which linguistically mayappear strained. The techniques to be used will not only involve the readingdown of express language in a statute, but also the implications of theprovision"

The extent of s4 HRA - Lord Hope


R v A


1)


2)


3)

1) no power to change the meaning of statute


2) "The rule is only a rule of interpretation. It does not empower judges to act as legislators."


3) Allowing the judiciary to legislate would be contrary to the separation of powers

The extent of s4 HRA - Lord Nicholls


Ghaidan v Godin-Mendoza



“acourt can modify the meaning and hence the effect of primary and secondarylegislation.”

Is s4 an obligation or discretionary?

discretionary


s6 HRA


1)


2)

1) Unlawful for public authorities to act in a way which is incompatible with a Convention right


2) Courts classified as public authorities and thus trials must not contradict right to a fair trial, remedies must not violate an individual's Human Rights and common law consistent with HR should be developed

Can private bodies conducting a public function qualify as public authorities?

yes

Majority view


YL v Birmingham City Council


1)


2)

1) social care outsourced to private body


2) Southern Cross not a public authority for purposes of s6 HRA - not carrying out a public function but a commercial function



Minority View


YL v Birmingham City Council


1)


2)

1) Southern Cross should be deemed a public authority as it is carrying out a public function


2) precisely the sort of case s6(3) was intended to embrace

Has the HRA imporved the protection of Human Rights in the UK


1)


2)

1) Doesn't provide for full legislative review


2) Arguably plays too much of a back seat role - e.g declaration of incompatibility not binding

Ewing, "The Futility of the Human Rights Act"


1)


2)

1) Courts have failed to protect us from repressive legislation - powerless to stop it


2) Only 1in 3 HR cases successful in HL



Dickson


1)


2)


3)

1) Judiciary acting as legislators goes against separation of powers


2) Use of s3 has reduced certainty


3) should be more declarations of incompatibility

Public Opinion


1)


2)


3)

1) Generally negative


2) perception that HRA does nothing for the average person


3) arguably the result of sensationalism focussing on rights of terrorists and priosners

Government Opinion


1)


2)


3)

1) Labour party once described HRA as the most important piece of legislation ever encated


2) Subsequently undermined this statement in the wake of 7/7


3) Current Conservative party plans to repeal the HRA and replace it with a British Bill of Rights - view to make UKSC ultimate arbitrator of Human Rights

Do we need a British Bill of Rights?


Arguments for


1)


2)


3)


4)


5)

1) Diceyan idea that common law will protect HR and that Parliament would not enact legislation contrary to HR has been shown not to be reflective of reality


2) Parliament has enacted several statutes which have compromised HR


3)Current HR framework has failed


4) Inconvenient to go to Strasbourg


4


5) Would make UKSC ultimate arbitrators of HR

Do we need a British Bill of Rights?


Arguments against


1)


2)


3)

1) Not worth the extensive amount of time and money it would take to draft - likely for only rebranding purposes


2)Would make Britain the only country other than Belarus outside the ECHR


3)whole point of having a system of rights is so that countries cant just pick and choose which Human Rights they like