Positive Impact of the HRA

Notes on the positive impact of the human rights act

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  • Created by: Jem
  • Created on: 03-05-13 13:24

Positive Impact of the HRA

·         Between October 2000 and January 2009: 26 declarations of Incompatibility.  17 of these=final, 8 of these=overturned, 1 still subject to appeal.  It shows judges are oriented towards HRA and ECHR, in contrast to R v Secretary of State ex parte Brind

·         Examples of Declarations of Incompatibility:

o   R v Mental Health Tribunal ex parte H: Mental Health Act found incompatible with Art 5 where burden of proof for risk is placed on patients.

o   Bellinger v Bellinger: Law preventing transsexual marrying infringed upon Art 8.  Led to Gender Recognition Act 2004.

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Positive Impact of the HRA

·         Examples of S.3:

o   R v A: Youth Justice and Criminal Evidence Act was read to allow the cross examination of a **** victim and so provide a fair trial for the defendant.

o   Mendoza v Ghaidan: ‘as his wife or husband’ found could be interpreted as ‘as if they were his wife or husband’ by House of Lords, allowed homosexual right to inherit his partner’s tenancy.

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The Central Role of the Court/Judge


·         Judges are at the forefront of human rights cases.

·         Malone v Metropolitan Police Commissioner: No Human rights laws, no judicial human rights.

·         R v Secretary of State ex parte Brind: Same, no human rights laws.

·         Derbyshire County Council: ECHR merely extrinsic aid to statutory interpretation where law was ambiguous.

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Central Role of the Court/Judges

·         S.7: Judges now have to see human rights cases

·         S.3: judges interpret the law in light of the ECHR

·         S.4: Judges send incompatible law back to Parliament to be corrected.

·         S.6: Judges see cases against state bodies; hold the state to account for human rights breaches.  BUT; not private bodies

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