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GDL Law Notes GDL Constitutional and Administrative Law Notes

Human Rights Act 1998 Notes

Updated Human Rights Act 1998 Notes

GDL Constitutional and Administrative Law Notes

GDL Constitutional and Administrative Law

Approximately 509 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
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The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Constitutional and Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  • Introduction – Background and Objectives

    - HRA 1998: incorporates provisions of European Convention on Human Rights into UK law.

    • positive legal rights enforceable in UK courts.

      • cf. pre-HRA: common law rights defined negatively – [Dicey]: all not unlawful allowed.

    • UK courts bound: must interpret law consistently with Convention rights + grant remedies for breach.

      • cf. pre-HRA: UK signatory to ECHR (since 1950), but no domestic force.

        • no domestic remedies: individuals had to go to ECtHR in Strasbourg (1966: right of petition) – embarrassing: ‘washing of the UK’s dirty linen in public’.

      • [Jack Straw]: most significant statement of human rights since 1689 Bill of Rights … enables people ‘to challenge more easily the actions of the state’ if below standards of ECHR.

    • long debate re: incorporation.

      • 1968: [Ld Lester] Fabian Society pamphlet Democracy and Individual Rights.

      • 1993: [Ld Bingham MR] argued in favour of incorporating ECHR – rationale: increasing power of executive; ECHR gave citizens better protection than common law.

      • 1997: Labour Party manifesto pledge – ‘Bringing Rights Home’.

    • rationale – 1997 White Paper:

      • 1. allow individuals to argue for rights more easily.

      • 2. weave rights more powerfully into UK law by bringing them under UK jurisprudence.

        • UK had been worst violator of HR (but did follow ECtHR judgments).

    - HRA provisions.

    • s1 HRA: incorporates ECHR into UK law (cf. ECA 1972: incorporating EC law).

      • Schedule 1 HRA: sets out relevant rights + freedoms.

        • NOT Art 13 ECHR: ‘providing adequate remedies’ effective remedy provided by s8 HRA.

        • Arts 1-3 First Protocol: included, subject to reservation.

        • Arts 1-2 Sixth Protocol: included.

    • s2 HRA: courts/tribunals must take ECHR case law into account when deciding cases.

    • s3 HRA: courts/tribunals must interpret domestic law in line with ECHR rights so far as possible.

    • s4 HRA: declaration of incompatibility if interpretation impossible (but not binding).

    • s5 HRA: right of Crown to intervene – govt. can be party to/appeal against DOI.

    • s6 HRA: acts of ‘public authorities’ must be compatible with ECHR.

    • s7 HRA: proceedingslocus standi: victims of unlawful act of public authority.

    • s8 HRA: remedies.

    • s10 HRA: power to take remedial action in response to DOI.

    • s12 HRA: freedom of expression.

    • ss14-17 HRA: derogations + reservations.

    • s 19 HRA: statements of compatibility for new bills.

    Main Provisions of the Human Rights Act

    - New obligations under HRA 1998 – transform UK law:

    • 1. determining legal questions: courts must take ECHR case law into account – s2 HRA.

    • 2. interpreting legislation: read + effected in way compatible with ECHR right so far as possible – s3 HRA; declarations of incompatibility – s4 HRA.

    • 3. conduct of ‘public authorities’: (inc. courts) must be compatible with ECHR rights – s6 HRA.

    1. Interpretation of legal questions – s2 HRA.

    - s2(1) HRA: UK courts must take ECtHR case law into account in determining questions re: ECHR right.

    - Debate: how much ‘margin of appreciation’ left to UK courts?

    • ‘mirror approach’: UK courts should follow Strasbourg interpretation.

      • R (on app. of Ullah) v Special Adjudicator [2004]: [Ld Bingham]: domestic courts should keep pace with Strasbourg jurisprudence – so meaning uniform across states (ECHR international, only authoritative interpretation from Strasbourg).

      • Re McCaughey [2011]: Art 2 obligation to investigate deaths occurring before HRA came into force applied.

    • vs. less deferential

      • [Klug and WIldbore]: mirror approach wrong – UK courts have some scope for departure from ECHR jurisprudence, should be less deferential to Strasbourg.

      • R v Horncastle [2009]: SC: not bound by ECtHR precedent, s2 HRA: only ‘take account’.

        • ECtHR not followed: SC allowed convictions based on hearsay evidence; vs ECtHR interpretation of Art 6(3)(d) ECHR right to cross-examine prosecution witnesses.

        • [Ld Phillips]: Art 6(3)(2) unnecessary – safeguards in place in UK law re: hearsay.

      • Re P [2008]: [Ld Hope]: Strasbourg jurisprudence not a ‘straightjacket’.

      • Lambeth LBC v Kay and Others [2006]: HoL: UK courts must adhere to rules of precedent – judge must follow binding domestic authority even if inconsistent with Strasbourg, but could give leave to appeal.

    2. Interpretation of legislation – s3 HRA + s4 HRA (DOI)

    - s3(1) HRA: primary + subordinate legislation must be read + given effect in way compatible with Convention rights, ‘so far as possible’.

    • s21 HRA: definition of ‘primary’ + ‘subordinate’ legislation.

    - Debate on scope of s3: R v A (Complainant’s Sexual History) (No. 2) [2001].

    • facts: s41 Youth Justice and Criminal Evidence Act 1999 limited admissibility of ev. re: complainant’s sexual history in sexual offences trials interfered with Art 6 ECHR right to fair trial for defendant.

    • [Ld Steyn] (majority view): ‘wide’ interpretative approach – even where law ‘linguistically strained’ avoid s4 DOI.

    • [Ld Hope]: restrictive use of s3 – not where expressly/implicitly contradicted preferred s4 DOI.

      • rationale: plain intention of Parliament a ‘brake’ on s3 interpretation; s4 DOI should be used to avoid straining meaning; courts should avoid law-making.

    - Current approach to s3: wide interpretive approach taken, but limited.

    • Re S (Children) and Re W (Care Orders) [2002]: courts less willing to use s3 for major changes with far reaching consequences.

      • facts: CoA radical re-interpretation of Children Act 1989 HoL: reversed – s4 DOI.

      • [Ld Nicholls]: courts can only interpret, not amend – ‘meaning which departs substantially from a fundamental feature of an Act is likely to have crossed the boundary between interpretation + amendment, esp. where departure has important practical repercussions’.

    • Bellinger v Bellinger [2003]: courts again refuse to make significant change.

      • facts: legality of marriage between man + transgender woman (birth certificate: man) technically not recognised under UK law court refused to use s3 to reinterpret Matrimonial Causes Act 1973 (to make woman...

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