The Human Rights Act 1998

Front 1

How were rights recognised prior to the inception of the HRA?
What case shows this?

Back 1

-Some fundamental rights were already recognised under common law.
Ex p Simms

Front 2

What happened in ex p simms?

Back 2

-2 prisoners serving life sentences for murder were denied the right to oral hearings and sought judicial review of the decision.
-Lord Hoffmann said that "fundamental rights cannot be overridden by general or ambiguous words...in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

Front 3

What were the 2 ways the ECHR had influence pre-HRA?

Back 3

1) Statutory construction- Obligations under international treaties were not automatically part of domestic law, however parliament was presumed not to wish to legislate contrary to the UK's obligations in international law.
2) Common law interpretation- courts would have regard to the convention if the common law position on a point of law was ambiguous.

Front 4

Which case shows common law interpretation of the ECHR pre-HRA?

Back 4

Derbyshire County Council v Times Newspapers- "the english court is not only entitled but obliged to consider the implication of article 10"
HOWEVER "they are nevertheless bound to give effect to unambiguous statutes...even if those statutes may be in conflict with the convention."

Front 5

Why were the courts powers pre-HRA insufficient?

Back 5

Because judges would disagree on what classed as 'ambiguous.'

Front 6

When did support for greater protection of fundamental rights reach its high point?

Back 6

During the period of the Thatcher government.

Front 7

What are the 3 models of protection of fundamental rights?

Back 7

US model- courts can strike down legislation in breach of fundamental constitutional rights- very judicially powerful- striking down state legislation.

2)Canadian Model- courts can strike down legislation, but the legislature can protect certain laws from strike-down by including a 'notwithstanding' clause.

BOTH OF THESE ARE INCOMPATIBLE WITH THE UK'S DOCTRINE OF PARLIAMENTARY SOVEREIGNTY.

3)New Zealand Model- the courts cannot strike down legislation but are required to read it compatibly with fundamental rights- broadly resembles the UK model.

Front 8

What was the aim/advantage of the HRA in relation to the European Convention on Human Rights?

Back 8

"The HRA will give people in the UK opportunities to enforce their rights under the ECHR in British courts rather than having to incur the cost and delay of taking a case to Strasbourg.

Front 9

Which section of the HRA says that domestic courts are required to take into account strasbourg jurisprudence.

Back 9

Section 2

Front 10

What is under section 3?

Back 10

Interpretive obligation

Front 11

What is under section 4?

Back 11

Declaration of incompatibility

Front 12

What is under section 6?

Back 12

Public authorities' obligation to act compatibly with convention rights.

Front 13

What is the interpretive obligation under section 3?

Back 13

"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 convention rights."

Front 14

What is the significance of R v A?

Back 14

-It concerned the interpretation of the Youth justice and criminal evidence act 1999, which forbade the defendant in a rape trial from adducing evidence of the victim's previous sexual history.
-This raised issues of compatibility with right to a fair trial and cross-examination of witnesses under the ECHR.
-Section 3 HRA was used to 'read-in' an implied provision which rendered it compatible with the ECHR.

-It was possible to identify a particular statutory provision which could be construed in a convention-compatible way.

Front 15

What was the significance of Re S and Re W?

Back 15

-The house of lords reversed the court of appeal's decision, holding that it was an inappropriate use of section 3.
-A particular provision could not be identified.
-It was made clear by the house of lords that section 3 could not be used to achieve radical reform of a statute.
-A compatible reading would have required the setting up of whole new procedures/mechanisms to implement the decision.
-It went too far, "the HRA reserves the amendment of primary legislation to parliament.'

Front 16

What was the significance of Bellinger v Bellinger?

Back 16

-Despite the fact that a section 3 interpretation of the provision may have been linguistically/legally possible, the resulting change in law would have had far-reaching practical ramifications.

Front 17

What was the significance of Anderson?

Back 17

-concerned the influence of the Home secretary and the release of mandatory life prisoners, and inconsistency with their right to a fair hearing.
-The HL refused to interpret it compatibly as it would "give the section an effect quite different from that which parliament intended and would go well beyond an interpretive process sanctioned by s. 3"

Front 18

What was the significance of Ghaidan v Godin-Mendoza?

Back 18

-The HL held that the words 'living with the original tenant as his/her wife or husband' could be interpreted to mean 'as if they were, his/her wife or husband' to include gay couples.
-Shows that the courts can 'read-in' words which change the meaning of the legislation, but it must be compatible with the underlying thrust and parliaments intention.

Front 19

What is the view taken by Danny Nicol on section 3 interpretations?

Back 19

He believes that the approach taken by the courts in Re S, Bellinger and Anderson show that the house of lords has "settled" the complex issue, in favour of RESTRICTING the use of section 3.

-He denotes the approach taken by the court in R v A as "far-fetched" "outlandish" and amounting to "judicial over-kill"

Front 20

What is the view taken by Aileen Kavanagh on section 3 interpretations?

Back 20

-Judicial decisions about interpretation under section 3 will depend on contextual factors.

-Re S is not a rejection of the interpretive approach taken in R v A, there were significant differences in the legislative context of the 2 cases.

-Simply because a section 3 interpretation is impossible or undesirable in one case, does not mean that it will be impossible or undesirable in all cases.

Re S, Bellinger and Anderson shows that if a section 3 interpretation would require radical reform, the courts may prefer a section 4 declaration, and leave it to parliament to reform.

Front 21

What was the significance of R (Hammond) v Secretary of State for Home Dept.

Back 21

-The applicant brought a claim in judicial review seeking a declaration that a particular provision had to be read using section 3 HRA, as allowing life prisoners to make oral representations if such were necessary to guarantee their right to a fair trial and hearing under art 6 ECHR.
-The court held that it did breach art 6 ECHR, but the interpretive obligation was not addressed in detail.

Front 22

What was the significance of S of S for Home Dept v MB?

Back 22

-The S of S issued a control order against MB for suspected links with Islamic extremists.
-MB complained that the procedure surrounding this breached his right to a fair trial- the judges were required to with-hold any evidence from the controlees about why they were being detained.
-The majority ruled that the provisions should be interpreted so as to allow the judge to refuse to grant permission to allow the judge to withhold information, if to do so would be incompatible with their right to a fair trial- SHOULD BE INTERPRETED COMPATIBLY UNDER SECTION 3.

Front 23

What was the dissenting opinion in this case?

Back 23

Lord Hoffmann believed that the provisions did not breach article 6 ECHR because the 'special advocate' procedure was a sufficient safeguard of the controlee's rights, so the provision did not need to be subject to a section 3 interpretation.