Human Rights Notes

Human Rights

• Pre 1998 there were two domestic protections available:

  • Courts: Constitutional rights in the common law

    • Protection through tort law

      • Entick v Carrington (1795) – tort of trespass.

      • Malone v MPC (1979) – no general right to privacy in English law.

    • Protection through statutory interpretation

      • Anisminic (1969) – ‘ouster clause

  • Parliament: legislation conferring specific rights

• Problems:

  • Too weak

  • Only protect in certain circumstances

  • Focus on negative (formal) equality rather than substantive notions of rights

  • Erratic judgements (Griffith)

• The origin of ECHR:

  • Adopted by MSs of Council of Europe in 1950.

  • UK is dualist system of incorporation – although it had not incorporated into domestic legal system it was a signatory.

• Admissible complaints must satisfy four criteria

  • 1) Domestic remedies must be exhausted (Gone to the highest court possible in domestic resources).

  • 2) Complaints not manifestly ill-founded

  • 3) Time limit: within 6 months of domestic final decision

  • 4) Matter not substantially the same as one previously examined by ECtHR

• By 1990, out of 17,000 applications, fewer than 700 admitted.

• Judicial movement:

  • Malone v UK (1984) no domestic remedy available, but was found to have breached in ECtHR.

  • In Birdi (1975) Lord Denning was willing to go as far as declaring an act of parliament invalid if it was inconsistent with the convention (the following year in Singh Denning recanted on this)

  • Smith (1996)- Wednesbury unreasonableness should take into account interference with human rights

• The Blair Government’s White Paper: ‘Rights Brought Home: The Human Rights Bill’

  • Prior to 1990s UK had led Europe in ECHR violations. However it had an unparalleled record in following judgements of ECtHR (i.e. rectifying any problems).

  • If incorporated domestically, people could bring challenges ‘without inordinate delay and cost’

    • Currently took 6-7+ years to take a case to the ECHR.

  • ECHR rights to become part of UK jurisprudence: be far more subtly and powerfully woven into our law

  • ECHR rights interpreted through UK law.

  • British judges to contribute to ECHR jurisprudence.

  • Reduce UK breaches of ECHR.

• HRA 1998:

  • Not intended to incorporate ECHR, rather intended to force readings of legislations to be read in such a way as to be compatible with ECHR.

• Structure of HRA

  • S.1 – Convention Rights

  • S.2 – Interpretation of Convention rights: “must take into account”

  • S.3 – Interpretation of legislation

  • S.4 – Declaration of incompatibility

  • S.6- Public Authorities: unlawful for a public authority to act in a way which is incompatible with a Convention right.

  • S.10 – Remedial action – authorises Ministers to amend legislation to remove incompatibility

  • S.19 – Statements of compatibility must be made by ministers on reading a bill Ministers - Even if it is incompatible, this does not affect validity once the provision is enacted

• Schedule 1: Substantive Rights

  • Three types:

    • Absolute Rights: e.g. Art 3: Prohibition of torture

    • Limited Right: e.g. Art 5: Right to liberty and security

      • … save in the following cases and in accordance with a procedure prescribed by law:

    • Qualified Right: e.g. Art 8: Right to respect for private and family life

      • …except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or

• Incorporation:

  • HRA not entrenched

  • HRA can be expressly repealed by Parliament through simple majority vote

  • What about implied repeal?

    • HRA = constitutional statute (Thoburn)

  • Courts are not empowered to strike down primary legislation

  • Compare with ECA 1972

    • This was an example of strong incorporation. Legislation is subordinate to EC Law, ECJ decision are binding and UK courts can disapply conflicting statutes (Factortame)

    • The HRA 1998 is weak incorporation: Legislation is merely construed in line with ECHR as far as possible, decisions are only persuasive and court cannot invalidate incompatible legislation.

• Principles underlying ECtHR jurisprudence:

  • Margin of Appreciation – ECHR is a subsidiary in protecting human rights. Domestic governments/courts are not only better placed but more knowledgeable on substantive local rights.

  • Principle of Proportionality – Soering v UK (1989) 'Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

  • Purposive Interpretation – Must interpret the ECHR by the current standards of society and not those prevailing at the time the ECHR was drafted.

  • Prescription by Law – Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law'

S.2 – Strasbourg Jurisprudence

• The HRA 1998, s. 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

• The Mirror Approach (Klug and Wildbore):

  • Ullah v Special Adjudicator [2004] – attempted to rely on ECHR to prevent deportation to country with HR abuses.

    • Lord Bingham: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

  • Home Secretary v AF [2009] – HoL followed Strasbourg’s decision in A v UK (2009) regarding withholding ‘closed evidence’ from terror suspect as a breach of right to fair trial.

    • This departed from previous case law (Home Secretary v MB [2007])

    • Lord Hoffman was reluctant: “A v UK requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong”

• Klug and Wildbore argue that UK has some scope for departure from the ‘straightjacket’ that is ECtHR jurisprudence

  • First case where UK declined to follow ECtHR jurisprudence was R v Spear [2002]

  • R v Horncastle [2009], Lord Phillips: “There will, however,...

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