PL 11 - 13 Human Rights in the UK (:star:Pre HRA (ECHR ( ARTICLES 2-14 …
PL 11 - 13 Human Rights in the UK
To enforce rights, Brit Cits had to exhaust all domestic remedies before lodging petition with ECtHR - long & expensive process
1997 - 'Rights Brought Home': proposal for Human Rights Bill - to bring ECHR rights 'home'.
UK: dualist. ECtHR judgments influential but not binding
2: Right to life (L)
3: Prohibition of torture (A)
4: Prohibition of slavery & forced labour (A)
5: Right to liberty & security (L)
6: Right to a fair trial (L)
7: No punishment without law (A)
8: Right to respect for private & family life (Q)
9: Freedom of thought, conscience & religion (Q)
10: Freedom of expression (Q)
11: Freedom of assembly & association (Q)
12: Right to marry (Q)
13: Right to an effective remedy (Q)
14: Prohibition of discrimination (Q)
What if the courts cannot interpret law as compatible with ECHR?
court is satisfied that the provision is incompatible with a Convention right it
make a declaration of incompatibility ('DOI') (& see power to take remedial action in s. 10)
How must the courts interpret legislation?
So far as possible
legislation (primary and subordinate) must be read & given effect in a way which is
with Convention rights
But - this does not affect the validity of incompatible primary legislation
(i.e. primarily HRA claims are brought by a
'It is unlawful for a public authority to act in a way which is incompatible with a Convention right (provides a
direct remedial mechanism
for domestic courts - main route of enforcement of Convention rights in the UK)
allows that a PA is acting lawfully if giving effect to primary legislation that can't be read compatibly with ECHR rights
'public authority'= court; tribunal; any person certain of whose functions are of a public nature. Excludes both Houses of Parl
public auth: eg central gov't departments; local authorities; police; immigration authorities; armed forces; security services
public auth: eg privatised utility performing functions of a public nature (eg R (Weaver) v London and Quadrant Housing Trust)
person is not a public auth...if the nature of the act if private
Constitutional impact? Public auths need to be aware of the need to protect Convention rights. Objective of creating a human rights culture in public auths.
:star:Application of s. 3 & s. 4 in the courts
R v A (No.2) 
Re admissibility of evidence in a rape trial (s.41 Youth Justice & Crim Ev Act 1999 excluded ev of previous sexual history of complainant). HL construed the provisions of s.41 using s.3.
Lord Steyn: the interpretative obligation under s.3 is strong; goes further than the normal rules of statutory interpretation; court can adopt a linguistically strained interpretation
Lord Hope: referred to need for deference (by the judiciary) towards Parliament
Bellinger v Bellinger 
Re: Matrimonial Causes Act 1973: marriage only between a male and a female. No provision for transgender person to be recognised as gender different from biological birth gender.
HL - made DOI
Lord Nicholls: Not within court's competence to assess; reform of this area was for Parliament, not the courts, to undertake.
Re S (Children) and Re W (Care Orders) 
CA used s. 3 to read into the Children Act 1989 a range of new powers and procedures relating to care orders. HL - reversed CA's decision: court's role is to
Ghaidan v Godin-Mendoza 
HL used s.3 to interpret "
his or her wife or husband" (Rent Act 1977) as "
as if they were
his or her wife or husband".
Lord Nicholls: s.3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear; s. 3 enables court to read into legislation words which change the meaning of the enacted legislation, to make it Convention compliant ('so far as possible'). But interpretation must 'go with the grain' of the legislation. Lord Rogers - s.3 does not allow the courts to change the substance of a provision completely
:star:Constitutional questions to consider
s. 3 - is the wording designed to respect PS? Does the way it has been interpreted by the courts respect PS? Is the power it gives the judges completely consistent with PS?
s. 4 - is the wording designed to respect PS? Does the way it has been interpreted by the courts respect PS? Is the power it gives the judges completely consistent with PS? What effect does a DOI under s.4 have on the law? Legal consequences v political/moral consequences. Has a convention arisen relating to DOI's leading to a change in the law?
Consider the case law: is approach of the judiciary legitimate interpretation of the legislation or does it show judges in effect engaging in statutory amendment? Threat to parliamentary sovereignty? Respecting separation of powers?
Does the HRA enable the judges to hold the executive to account? (Think about A and Others )
Is the judiciary encroaching on political matters in HRA judgments?
Is there a difference between the legal impact on PS and the political impact on PS. Do DOIs and expansive use of s.3 threaten PS?
Is HRA consistent with RoL?