The Human Rights Act 1998

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Key instrument to protect rights. European convention- international agreement. International Bill of Rights- duties on the state to comply. The ECHR and EU law are different. 

Protecting human rights-

  • Council of Europe and European Convention on Human Rights 1950-3- UK were one of the first signatories, meant to stop WW2.
  • The common law approach- protection of rights prior to 2000
  • Human Rights Act 1998
  • HRA and Common Law rights
  • The constitutional significance (and future) of the HRA.

Convention rights-

  • A2 right to life
  • A3 Prohibition from torture, inhuman and degrading treatment
  • A4 prohibition of slavery and forced labour
  • A5 right to liberty and security of persons
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  • A6 right to a fair trial
  • A7 prohibition on retrospective criminal offence
  • A8 right to respect for private and family life
  • A9 right to freedom of thought, conscience and religion
  • A10 right to freedom of expression
  • A11 right to freedom of peaceful assembly
  • A12 right to marry and found a family
  • A13 right to an effective remedy
  • A14 right to enjoy the above without discrimination

Prior to 2000 we were the only signatories that didnt permit direct enforcement. International law and domestic law sit side by side. Court take proceedings to Strasbourg but had to have exhausted domestic remedies. Not binding in domestic law. The ECHR is an international Bill of Rights. 

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Common law approach

Before 2000- Residual approach and common law rights. Before enactment there was no posititve bill of rights to rely on. Common law meant free to do what you want as long as not specifically prohibited by law. Free to do. Law not source of rights- in the 'silence of the law'- Hobbes. Parliament could have enacted whatever law to stop freedom. Assumption that P would not abuse its power unless absolutely necessary. Assumed it could balance public interest and freedom so didnt need bill of rights. 

Residual approach- freedom v rights, assumptions about political culture. A political constitution- those who exercise political power are held to account by political process.  No higher law. Powerful parliament. Less stress on separation of powers. A political model of rights protection ie reliance on Parliament, assumptions about political culture, eschewing Bill of Rights. 

Assumptions about P and the courts- fear gov would use the majority to enact bad legislation. Prevention of Terrorism Acts (stop and search), Police and Criminal Evidence Act 1984 (detain), Public Order Acts (protest), Interception of Communications Act 1985, Criminal Justice and Public Order Acts 1994 (right to silence reduced) and Criminal Procedure and Investigations Act 1996. Evidence of Parliament not standing up to government to protect rights. Non- liberal legislation.

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Role of parliament

Dont overstate this critique, they also passed rights protecting legislation- Sexual Offences Act 1957 (legalised gay conduct), Abolition of Death Penalty Act 1965 and Abortion Act (protection of reproductive rights). These were socially progressive. In a choice between imperfect alternative the 'political' model might still be more effective and more legitimate than the alternatives. More even on rights protection than sometimes seen. 

Judges and the courts- 'judges are the product of a class and have the characteristics of that class... this is not the stuff of which reformers are made, still less radicals.' 'the judges have supported the conventional, established, and settled interests. And they have reacted strongly against challenges to these interests' John Griffiths. Judges should be relied on for protection of freedoms. Judges dont stand up to the establishment as they are the establishment. Normally side with gov and dont always stand up for the individual. 

Dont overstate this critque of courts! 1) growth of judicial review in the 2000's. 2) Constitutional developments empowering the courts- eg communities act now can scruitinise legislation. 3) judicial attitudes- dont characterise these. Attitudes to parliamentary sovereignty and rule of law have changed.

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Common law rights

Evidence for change in judicial attitudes. If P wanted to legislate against a common law right they had to do it explicitly. Some common law rights were seen as particularly important such as the right to access justice. Doctrine remains but is overshadowed by HRA. R v Lord Chancellor exp Witham 1998 and R v Secretary of State for Home Department ex p Simms 2000. 

Before 2000- the ECHR was not part of domestic law and did not confer rights that were directly enforceable on individuals. However the ECHR could be used by the courts as an aid to construction of statutes eg using authorities.

'I would dispute altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made by Parliament.' Ackner exp Brind 1991. Malone v Metropolitan Police Commissoners 1979. 

ECHR as an aid to statutory construction- 'the position as I understand it is that if there is any ambiguity, or uncertainty in our law, then these courts can look to the convention as an aid to clear up any ambiguity or uncertainty, seeking always to bring them into harmony with it' Denning R v Chief Immigration Officer Heathrow Airport exp Salamat Bibi 1976.  Cant rely as independent source of claim though.

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Prior to 2000

'while English courts may strive where they can to interpret statutes as conforming with the obligations of the UK under the Convention they are nevertheless bound to give effect to statutes which are free from ambiguity even if those statutes may be in conflict with the Convention.' Lord Brandon Re M and H (Minors) 1988.  Where there is no ambiguity they have to use UK law. Cant enforce the decisions of Strasbourg domestically. 

The HRA- got royal assent 1998 and in effect in 2000. Directly enforceable in UK courts. Positive Bill of Rights. 

1) rationale- 'to enable people to enforce their convention rights against the state in British Courts, rather than having to incur the delays and expenses which are involved in taking a case to the ECHR'- Rights Brought Home 1997. Increases the role of the judiciary- firmer legal basis. Too large a sphere of influence. 

2) principle provisions- 'a court tribunal determining a question which has arisen in connection with a Convention right must take into account any a) judgement, declaration, or advisory opinion of the ECHR' It is not binding or precedent, but must be taken into account. Proven difficult, courts often use it as precedent. 

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Principle provisions

On S2(1) R (on the application of Alconbury Developments ) v SoS for the Environment Transport and Regions 2001, R (Anderson) v SoS for the Home Department 2002.

with Runa Begum v Tower Hamlets LBC 2002, In Re McKerr 2004, and R v Horncastle 2009. 

'so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights' s3(1). 

Statutory interpretation and s3 HRA- the provisions of an act of parliament are usually capable of giving rise to a number of interpretations. Which interpretation should the court prefer? Parliaments intent. S3- judges get new interpretative duty- goal is to find interpretation that is compatible woth convention rights. They should only go 'so far as it is possible to do so' so they should not strain the words too much. S4- if courts cant arrive at an interpretation compatible with the HRA they can issue a declaration of incompatibility- but the legislation is not affected. 

'It might sometimes be necessary to adopt an interpretation which linguistically may appear strained, the techniques to be used will not only invovle the reading down of express language but also the implication of provisions'- Steyn in R v A 2001 used reading in technique

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Cases on S3(1) R v A 2001, Re S 2002, Bellinger v Bellinger 2003 and Ghaidan v Godin Mendoza 2004. Should try to stick to parliaments intention and cant make huge changes in social circumstances. 

S4- 'if the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility' Doesnt affect validity or operation of the provision and is not binding. No legal effect. More of an invitation to parliament to make the legislation compatible. 

Cases on S4- A v Sec of State for Home Dept 2005, Bellinger v Bellinger 2003 and Nicklinson 2014. 

S6- 'it is unlawful for a public authority to act in a way which is incompatible with a convention right.' 

S19- 'a minister of the crown in charge of a bill in either House of Parliament must before the second reading a) make a statement to the effect that in his view the provisions of the bill are compatible with the Convention rights (a statement of compatibility) or b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.'

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Principle provisions

Communications Act 2003 was incompatible. Procedural device meant to stop P from legislating incompatibly. Encourages compatibility and makes it harder to get a bill through Parliament. Minister doesnt want to say that it is incompatible. 

3) Relationship with Common Law Rights Kennedy v Charity Commission 2014 and R ( Guardian Newspapers) v City of Westminster Magistrates Courts 2013. 

4) Constitutional significance? Conservatives want own British Bill of Rights instead of HRA.  Prisoners Votes litigation and Hirst v UK 2005- concerning the blanket ban on prisoners voting- was called incompatible. 

HRA as a constitutional statute?- regulates individual and states relationship, cant be implied repealed, only explicitly repealed. May challenge Dicey's view that statutes are all the same. Thoburn v Sunderland City Council. 2002. 

How do we assess the significance? by reference to consitutional principles? (ps, sop, rol), the purposes of the constitution?, parliamentary sovereignty v constitutional sovereignty? policitcal v legal constitution? 

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Constitutional conventions

S3 is a very considerable power. Constitutional statute. Assess soundness of legislation. Uncharted territory. May reconcile with PS. May erode it through S4 in 18 cases. 

Legal constitutionalists- wide use of S3(1), section 4 is a last resort, rights are best protected by courts, worried about tyranny of the majority, aspires to constitutional sovereingty.

Politicial constitutionalists- Narrow interpretation of s3(1) with greater use of s4. Rights are best protected by parliamentary and judicial action, wary of anti democractic nature of 'constitutional' protection of rights and emphasis on parliamentary sovereignty. 

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