Limitations of the HRA

Notes on the limitations of the human rights act

  • Created by: Jem
  • Created on: 03-05-13 13:19

Limitations of the HRA

·         Manner of Incorporation: It’s too easy to get rid of HRA, it can be repealed by any future Parliament.  A Bill of Rights would be entrenched.

·         Ommittance of Art 13: Judges cannot give adequate remedies to human rights breaches; only what is within the judiciary’s power.  A Bill of Rights could give the judiciary power to award better remedies.

·         S.19(1)(b): A law doesn’t always have to be passed with a statement of compatibility, as with Anti-Terrorism, Crime and Security Act 2001, which led to the Belmarsh case.  Laws can be passed that are incompatible with human rights.  A Bill of Rights could fix this loophole.

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Limitations of the HRA

·         S.10(2): HRA doesn’t ensure that all incompatible law is fast-tracked through Parliament to be changed; only where there is a ‘compelling reason’, which does not include incompatibility with human rights.  This means a law conflicting with human rights could be left as it is for a substantial period of time.  Bill of Rights could fix this.

·         S.2-Leeds: ECtHR precedent is only strongly persuasive: UK courts don’t have to use it; as shown in Leeds.  It means some people still have to go to Strasbourg to get a remedy.  Bill of Rights could fix this.

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Limitations of the HRA

·         Claim by a Victim: Only an individual/company/relative of an individual directly affected by a human rights breach can bring a claim.  Victims of Human rights breaches are usually vulnerable and reluctant to bring a claim.  And without a claim, there is no remedy for the breach of human rights.  Part 3 of Equality Act: Created commissioner for Equality and Human rights.  Only promotes and monitors human rights, cannot investigate possible breaches or enforce changes; only make recommendations, advise and assist victims.  Bill of Rights could fix this.

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Limitations of the HRA

·         Claim Against Public Authority: YL v Birmingham City Council narrowed definition of functioning public authority.  This limits those who can be held to account for human rights breaches, and weakens protection.  Could be resolved by Bill of Rights.

·         Formulation of Rights: The fact that certain human rights can be removed or interfered with weakens protection.

L   Limitations Can also be used in argument FOR a Bill of Rights

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