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Civil liberties & fundamental rights - Coggle Diagram
Civil liberties & fundamental rights
Human Rights Act 1998
Incorporates the EHCR into domestic law:
It challenges public bodies through:
Failure to comply convention rights forming basis for legal action
Judicial review over failure to comply introduced laws
Convention rights being used as defences
Preserves parliamentary sovereignty:
Because under parliamentary sovereignty, it cannot be given special treatment over other Acts
The ECHR is viewed by the government as "intended to provide a new basis of interpretation of the law, not a basis for striking it down"
Courts are given power over DL, but will have to fully comply with the Convention
S(3) HRA - requires primary and secondary legislation must be interpreted and applied in manners compatible with ECHR
S3(2) - makes it a requirement so that it does not affect the validity of current incompatible laws
S(4) - courts can make declarations of incompatibility, which is non binding and leaves the law still valid
Only higher courts can make declarations of incompatibility
Victims can seek remedy by courts under S*
Confusion between statute and prerogative power:
S21 - primary legislation includes orders in council and laws made under prerogative powers
Acts of Parliament are usually prioritised over prerogative powers. And if not overruled by an existing statute, prerogative power is suspended until statutes prevail
But the HRA elevates prerogative powers to the same level as acts, making them immune to invalidation by courts. Orders in council may not be set aside
Introduction
Fundamental Rights and the Rule of Law:
In 1949, the Council of Europe was created and the Convention of Human Rights ratified by Member States in 1951, coming into force in 1953. It wasn't until 1965 that the government gave individuals the right to petition under the Convention
European Convention on Human Rights:
Before the HRA, there was no obligation for UK courts to defer to convention if a source of authority can be found in domestic law
Only if domestic law is silent/ambiguous will the judiciary use the convention and favour the citizen
R v Inland Revenue Commisioners ex parte Rossminster Ltd (1980):
HoL held that if a meaning of a statute is clear and unambiguous, the court has no jurisdiction to go against their unambiguous words, and is under a duty to uphold the will of Parliament by giving effect to its words.
Attorney General v BBC (1981) and Attorney General v Guardian Newspaper (No.2) (1990):
The HoL confirmed that it is the duty of the courts to have regard to the international obligations ordered under the Convention, and to interpret the law in accordance with those obligations
Institutions and procedures, rights of application:
Art 43(1) of the Convention allows any party to a case to refer a case to a case. If it not referred, judgement becomes final and Member States undertake to abide by decision of the Court
Issues
The meaning of public authorities
HRA states that "any body whose functions are public in nature" is a public authority, and they must comply with the requirement of the convention when exercising executive power
S(6) states that a body is not public authority if the "nature of their acts are private"
(Heather & Another) v Leonard Cheshire Foundation:
Facts: Foundation is a private charity that provides accommodation for the disabled, some of which is funded by the local authority pursuant to its statutory duty under the National Assistance Act 1948 as amended. The residents of the home can sue against the authority but not the charity under Convention rights
Changes were then made to the legislation to broaden the reach of "exercising functions of a public nature"(Health and Social Care Act 2008)
Whether the act is horizontal or vertical
Courts as public authorities must comply with the convention. This raises the question as to whether the act is solely vertical/horizontal
S6 HRA1998: provides that a public authority includes a court/tribunal, and proceedings against a "judicial act" may be brought by way of appeal or by an application for judicial review
s(6) requires that courts act compatibly with Convention rights and does not limit that duty to either interpretation of statutes or the actions of public bodies.
Should convention rules apply to common law between individuals?
WHR Wade: Horizontality will eliminate such problems (as to the definition of public authorities) altogether since Convention rights will take effect against public bodies and private persons equally = saving great deal of litigation
Although prohibited by S(6) , horizontal effect is possible under duty of the courts S6(3)(a)
The issue is being handed by recent case law, especially in areas of privacy:
There is no common law right to privacy
Privacy rights under common derives derive from a relationship of confidence and a breach of that confidentiality
Art 8 providing privacy rights - family life, home and correspondence
Venables: v New Group Newspapers Ltd:
Facts: An injunction was granted which prevents the media from revealing the identity and whereabouts of the applicant
Butler-Sloss LJ recognised that defendant's newspapers were not within the definition of public authorities. But still asserted that the court (being a public authority) must itself act compatibly with the Convention. Art 8 of the Convention prevailed over Art 10 (freedom of expressions) and was applied against a private body
The extent to which judicial interpretive techniques related to statutes will change
Courts have rapidly adapted the approach of the Court of Human Rights in employing the concepts of proportionality and necessity
Wednesday Unreasonableness test: spans "illegality, impropriety and procedural irregularity"
S(3)HRA required the courts to interpret primary and subordinate legislation in a way compatible with Convention rights,
"so far as it is possible to do so"
If there is interference:
Is the legislative objective sufficiently important to justify limiting fundamental rights?
Were the measures adopted to meet to objective rationally connected to it?
Court must be satisfied that the means used to impair the rights/freedom was no more than necessary to accomplish the objective
The extent to which judges will develop common law to satisfy Convention rights
Limits to interpretation
The 1998 Act is not retrospective
R v Kensel: Defendant convicted under old laws pre-1998. The procurement of evidence may have breached HRA 1998
Distinction between legitimate interpretation and the "redrafting of statutes:
Courts must not interpret laws in such a way that it gives the law a new meaning or expands its provisions
Such as:
Declarations of incompatibility - R v Mental Health Review Tribunal
Making an application under the Act - a person can apply to courts if only/would be a victim of an unlawful Act = S7(3)
Remedies
Article 13: Fast track legislative procedures, reservations