Human Rights

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  • Created by: Nikki
  • Created on: 09-05-15 22:44

Traditional constitutional approach

Dicey view --> underpinned constitution until quite recently --> no room for human rights --> commitments to freedom and liberty instead

Freedom as residual --> freedom is what we all have anyway --> backed by remedies for its infringement --> what's left over when the law has had its say

Entick v Carrington 

Beatty v Gillbanks (1882)

System based on 2 premises -->

  • 1 - P will behave in way that promotes freedom
  • 2 - so will courts

Flows from residual freedom --> freedom can be diminshed by statute, PS, rule of law, courts etc, but assumptiont aht it won't be because these elements promote freedom

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Challenging the assumption

Growing view that the system was fraud

Lots of people on margins of power though it was a lie --> courts and P only cared about what was really the 'right' freedom --> provocative remark by Home Sec saying they were engaged in the wrong kind of speach

Parliament: the control of the democratic; the administrative state; the authoritarian state

Key cases:

  • O'Kelly v Harvey (1883)
  • Duncan v Jones (1936)
  • Thomas v Sawkins (1935)
  • Liversidge v Anderson (1942)
  • R v Halliday ex part Zadig (1917)
  • Piddington v Bates (1960)
  • Jackson v AG (2005)
  • HMT v Ahmed (2010)
  • Kennedy v Charity Commissioners (2014)
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Collapse in confidence in old regime

Executive excess:

  • became difficult particularly after miners' strike to maintain that liberty existed 
    • Moss v McLachlan (1985)
  • police stopping nuclear protesters --> breach of the peace
  • poll tax --> riots
  • Spycatcher litigation

Parliament did not appear to be aprticualrly committed to freedom --> legislation to empower police --> 1986 Education Act - guaranteed freedom of speech in universities as only exception to limits on freedom


  • Spycatcher
  • McLachlan case
  • not guarantors of freedom that expected to be --> gave support to Thatcher and police in limiting freedom
  • single biggest reason for collapse --> shattered by realisation that worst terrorist atrocities in the country led to conviction of those who had not committed them --> judiciary knew this bu chose not to 'rock the boat' and support freedom
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Time for a change

Political support

  • Lib Dems support
  • Cons only in favour of HR when in opposition
  • New Labour --> HR about assuring people they weren't as radical as they looked --> pushed through by Blair -->1997 election on promise of HRA

Change of judges

  • knew how unpopular previous judges had become
  • began to speak in public and argue for HR --> agents of change
  • much easier for Labour to push through changes with judges on thir side

Media --> freedom of expression --> became very supportive of HR

Other reasons

  • lack of entrenchment
  • absurdity of people having to go abroad for justice
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ECHR (1)

1950 - agreement of ECHR
1953 - ECHR into force
1966 - UK government allowed right of individual complaint

  • Art 1 - obligation to respect HR
  • Art 2 - right to life
  • Art 3 - prohibition of torture
  • Art 4 - prohibition of slavery and forced labour
  • Art 5 - right to liberty and security
  • Art 6 - right to a fair trial
  • Art 7 - no punishment without law
  • Art 8 - right to respect for private and family life
  • Art 9 - freedom of thought, conscience and religion
  • Art 10 - freedom of expression
  • Art 11 - freedom of assembly and association
  • Art 12 - right to marry
  • Art 13 - right to an effective remedy
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ECHR (2): case law general rules

(i) 'prescribed by law'/'in accordance with law'

  • Entick v Carrington
  • Sunday Times v UK (1979)
  • Malone v UK (1984)
  • Halford v UK (1997)
  • Liberty v Sec of State for Foreign and Commonwealth Affairs (2015)
  • HL v UK
  • HR has driven the legislation of our security world
  • prescribed by law can produce more limits to freedom than if there is no law

(ii) 'necessary in a democratic society'

  • ST v UK --> gateway to proportionality 
  • Huang v Sec of State for Home Dept --> added another test --> must be fair balance between rights of individual and interests of the community 
  • HR prioritises the individual
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ECHR (3)

(iii) the convention as a living instrument

  • Goodwin v UK (2002) --> right to be able to have a change of sex recognised
  • Freete v France (2002)
  • EB v France (2008)
  • X and others v Austria (2013)
  • ECtHR is living instrument --> allegation it is making it up as it goes along
  • living instrument is driver of change in Strasbourg --> able to develop case law on progressive issues --> allows convention to grow

(iv) the margin of appreciation

  • area of freedom of manouevre for a state
  • political issues --> margin shrinks; tend to keep away from religious issues; unwilling to touch economic policy 
  • clashes of rights, court more inclined to let state take the lead
  • Gas and Dubois v France
  • Schalke v Coff (2010)
  • Stubing v Germany 
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ECHR (4)

(v) the commitment to pluralism and tolerance - at all costs?

  • very nervous about imposing pluralism
  • normally convention content to allow states to control the expression of religious symbols
  • Italy case about crucifizes --> initially case allowed but decision reversed due to outrage/reaction

(vi) on subsidiarity

  • part of backlash against ECtHR for its inventiveness which has produced slightly more reticent court in past few years
  • take ruling of local court as last word as long as it has dealt with the convention issues
  • Von Hannover v Germany (No 2)
  • Axel Springer v Germany 
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HRA (1)

Purpose --> 'to give effect to the rights and freedoms guaranteed under the ECHR' --> enables C to rely on most of rights and freedoms in ECHR in domestic courts

Section 2

2(1) - duty on courts and tribunals to 'take into account' case law of ECtHR

  • UK courts not bound by decisions of Strasbourg 
  • Lord Irvine --> P need not have used words 'take account of' --> could have used 'follow' or 'be bound by' --> entitlement not an obligaiton
  • proper appraoch set out by Lord Neuberger in Pinnock v Manchester CC
    • court not bound to follow ECtHR 
    • usually follow clear and constant line of deicison of ECtHR where effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reaonsing does not appear to overlook or misunderstand some argument or point of principle 
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HRA (2)

Section 3

3(1) --> legislation must be given effect in a way which is compatible with HR/ECHR
3(2)(a) --> 
3(2)(b) --> HRA does not allow judges to strike down primary legislation
3(2)(c) --> DL - validity, operationa nd enforcement of DL that is incompatible with Convention rights may be affected, unless primary legislation prevents removal of incompatibility 

Ghaidan v Godin-Mendoza --> majority said possible to use s3

Re S --> correct approach = can interpret under s3 but cannot amend under it --> cannot depart from fundamental aim/meaning of statue  --> cannot be transformative --> no judicial vandalism

Does intention of P still matter?

  • Nicholls in Ghaidan --> may require dparture from P intention but this was intnetion of P in enacting s3
  • R(Wilkinson) v IRC --> Hoffman - wording of legislation still matters -need to focus on actual words used by P
  • judges entitled to depart from both enacted and unenacted intentions of P in prim leg but should do so only to extent necessary to achieve compatibility 
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HRA (3)

Section 4 --> declaration of incompatibility

4(2) - 'may' --> judges have discretion whether or not to make declaration
4(6) - restores primacy of PS

'does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given'

Not legally binding and do not provide tangible remedies

But politically effect on legislation may be much more serious --> fatal blow --> in practice provision cannot remain operative

Key question of whether this is an effective remedy --> Burden --> currently considered not to be --> may be in future if govt consistently recognises and responds to them --> currently C does not need a declaration before taking case to ECtHR

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HRA (4)

Section 6

6(1) - unlawful for public authority to act in a way that is incompatible with Convention right
6(2)(a) - defence if authority bound to act that way due to primary legislation
6(3)(b) - functions of a public nature

YL v Birmingham CC

Does not include either House or person exercising function in connection with proceedings in P

Victim requirement --> C must be the 'victim of the unlawful act' --> person only victim if he is or will be directly affected by violation 

  • Dudgeon v UK
  • narrower than standing requirement in JR
  • public authorities cannot be victims and are not included among those able to take cases to ECtHR
  • one reason for narrow approach to identifying public bodies is concern that private body will lose its ability to rely on HRA if classified as public authority
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HRA (5)

Remedies under HRA

  • court may grant 'such relief or remedy, or make such order within its powers as it considers just and appropriate'
  • include remedies of JR and/or order to pay damages or cmpensation --> but no right to obtain remedy


  • Hoffmann --> constitutional law requires courts to defer to govt or P in relation to matters e.g. national security
  • Steyn --> no such legal obligation --> deference is matter of judicial discretion --> if H reasoning extended to ECHR, court would automatically defer on any occasion where Convention right was claimed to be defeated by particular public interest --> would seriously weaken ECHR and HRA and diminsh the role of the courts

Increase in ECtHR deferring to UKSC in future on interpretation of rights --> SC growing CL of HR rooted in traditions of CL and drawing from convention but not dependent on ECtHR

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Challenges to HRA

  • controversial
  • portrayal
    • by politicians
      • critical --> Eurosceptic view of HRA as vehicle for imposing European law on UK
      • used as scapegoat for unpopular decisions which are usually unrealted to HRA 
    • by media --> drieded and calls for it to be repealed or modified --> based on false allegations of its effect
  • ongoing debate between legal and political ocnsitutionalists over wehter HRA is moving too much power to legal mechanisms and away from political processes
  • PM said prisoner voting rights made him feel 'physically ill'
  • govt has't done enought to use HRA as tool to improve delivery of public services --> failure has contributed to poor public image of HRA and HR in general
  • some controversy amongst some groups of HR applying to criminals/migrants etc but importance of HR rests in their universal application --> simply that most vulnerable assume greater importance in terms of HR
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HRA effect on constitution

  • enhanced role of judiciary
    • expansion of jurisdiction
    • in practice after declaration of incompatibility, provision can probably no longer be relied on by government --> large power of courts --> don't have power to strike down Acts but essentially can deliver fatal wound --> in reality this affects PS
    • when primary leg concerned, ultimate legislative autohrity remains with P
  • relationship between judiciary and executive
    • increased tension --> greater at times of perceived threats to national security
    • political questions now in jurisdiction of courts
    • view as part of new checks and balances
    • tensions have to be managed --> LC as 'bridge' has particular responsibility to ensure neither govt as whole nor individual ministers exacerbate tensions inappropriately
  • tension or dialogue?
    • view HRA as leading to greater constitutional dialogue, not tension
    • encouraged judicial participation in debates about rights e.g. through s4 declarations
    • partnership between branches
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  • ECJ came under pressure from national courts to recognise fundamental rights --> ECJ supremacy doctrine
  • ECJ recognised 3 legal sources for fundamental rights
    • part of 'general principles' of Community law
    • drawn from common constitutional traditions of Member States
    • jurisprudence of fundamental rights developed by ECJ to ensure national courts accepted supremacy principle
  • EU Charter of Fundamental Rights --> legal recognition by Treaty of Lisbon 
    • may not be used to extend competence of Union
    • must be interpreted in confirmity with ECHR
    • rights of Charter only apply:
      • in relation to activities of EU institutions
      • when EU law is implemented into national law by Member States
    • UK and Poland have Protocol
  • possible clash of legal sources --> possibility of inconsistent decision emerging from ECJ and ECtHR
  • Lisbon Treaty gave EU legal personality --> could then become part of ECHR
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future/reform of ECtHR

Brighton Delcaration --> not ultimately accepted -->

  • aimed to reduce influence of court
  • court should not deal with cases the same insubstance as already dealt with by national court unless national court had got it seriously wrong or the case raised an important question
  • stressed margin of appreciation 

How promising is future of ECtHR?

  • institutional pressures
  • political prssures
  • competing courts

ECtHR still capable of decisions like Alskenai extending remit of ECHR to countries under occupaton of member states e.g. Iraq

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A British Bill of Rights?

  • Bill as building on HRA by inclusion of additional rights
  • HRA negatively perceived and often resulted in unpopular decisions --> Bill could increase public confidence in legal protection of civil rights and liberties
  • provide opportunity to distance fundamental rights from European label --> different language?
  • could be entrenched or declaratory
  • important symbolic and emotional appeal to public that HRA lacks
  • may provide opportunity to create of enshrine other consittutional rights and give them the same status as convention rights
  • HRA already legally enforceable set of rights and working well 
  • even if HRA flawed, Bill not answer
  • risks to rights protection --> stemming from political motivation to dilute HR protection and reduce powers of ECtHR
  • other ways to address problems with HRA e.g. improved public educationa dn amendments to HRA or to existing stautory or regulatory provisions
  • Bill based not on principles of universal HR but on chauvinism and nationalism would be much less than we have now
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