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Human Rights Act 1998 Notes

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A more recent version of these Human Rights Act 1998 notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Con & Ad: The Human Rights Act 1998 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 signif icant 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: proceedings - locus 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.

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