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The human rights act 1998 - Coggle Diagram
The human rights act 1998
EUROPEAN CONVENTION ON HUMAN RIGHTS 1950
Atrocities of WW2 -> turned post-war international attention to the human rights of individuals.
Churchill
advocated for European unity and
referred to the idea of a Charter of Human Rights, guarded by freedom and sustained by law.
Same year the UDHR was adopted by the General Assembly of the United Nations, although it wasn't legally binding.
The
ECHR created a code of guaranteed rights protecting individuals
-> as an
international treaty, the Convention applies to, and is legally binding on states; by signing
the ECHR,
states accept a legal obligation to apply those rights to everyone in the jurisdiction
Type of rights under the Convention
LIMITED -
restricted by states in specific situations listed in the Article
(5)
QUALIFIED - can be restricted by the state - Articles 8-11
ABSOLUTE - the
state cannot restrict them at all
- 3, 4, 7
Any restriction must be in accordance with
with the law
or prescribed by law
pursue one of the legitimate aims set out in each article
be necessary in a democratic society
- must be proportionate to the aim
EUROPEAN COURT OF HUMAN RIGHTS
Under ARTICLE 34 -
any person, NGO, or group of individuals claiming to be victim of a violation can petition the court alleging a breach of the Convention rights
It is a
court of last resort
, when people have exhausted all of their remedies in their domestic courts
Set up in 1959
to hear complaints about violations of the Convention by state ->
accessible to 800 million people and 47 states across Europe
ARTICLE 33 -
states may bring applications to court for violations of human rights by other states
Before the Human Rights Act in the UK
At the time of ratifying the ECHR, the UK took the view that its domestic use already protected most rights contained in the convention. 50 years elapsed before the ECHR was incorporated
in the UK law
However,
as part of the ECHR, the UK has always been bound in international law to observe it and be answerable of any violations
1998 HUMAN RIGHTS ACT -
Brough rights home
by incorporating the ECHR into domestic law so that
almost all Convention rights became domestic rights which could be directly enforced in UK courts
Who can bring a claim under Human Rights Act? -
claimant must have victim status
Indirect victims - fiancee, unmarried partners -> assess the nature of the legal/family relationship and personal ties between indirect and direct victims
ECtHR
will
NOT
hear public interest claims
- pressure groups can't bring challenges
Victim of unlawful act by a public authroity.
Victim must show that he is affected is some way by the matter complained of
Courts' role under the Human Rights Act
HRA provides two ways for courts to ensure compliance with Convention rights:
where legislation is not human rights-complaint and where public authority has acted incompatibly with an individual's rights
How courts give effect to Convention rights
INTERPRETING LEGISLATION
By SECTION 3,
Parliament has directed the courts to review its legislation for human rights compatibility.
This
provides a new rule of statutory interpretation and gives judges significant discretion in how they interpret statutes
Interpretative obligation
under section 3 is strong and
applies even where the language of a state is not ambiguous
, goes further than ordinary methods of interpretation by a court finding an interpretation compatible with the Convention rights, and
courts must try their best to interpret the words of an Act
UK court is not bound to follow ECHR decisions, although it usually does
Section 3 doesn't allow judges to step into Parliament's shoes and legislate
, their role is to interpret statutes
INCOMPATABILITY
Courts can't strike down an Act of Parliament under the HRA but a declaration of incompatibility alerts Parliament about the incompatibility issue
Declarations of incompatibility as a democratic dialogue
between the
courts and Parliament. Courts,
however,
can't grant a declaration of incompatibility unless
they
have carried out their interpretation duty
under Section3.
3 outcomes of a declaration of incompatibility:
ministers may fast-track changes by a remedial order, Parliament can amend the statue or pass another Act or Parliament can choose to do nothing
REVIEWING ACTS OF PUBLIC AUTHORITIES
1st type of public authority - CORE: a
body whose nature is governmental
in a broad sense of the expression - local authorities.
Public nature
is
characterised by possession of special powers, democratic accountability and an obligation to only act in the public interest
2nd type of public authority - FUNCTIONAL:
bodies which exercise both public and private functions
. There is an
obligation under the HRA to comply with individuals' Convention Rights
. Factors to consider: whether the body is publicly founded for carrying out the relevant function and whether the state has assumed responsibility foreseeing that particular task is performed
SECTION 6 - it is
unlawful for public authorities to act incompatibly with Convention rights, unless they are obeying an Act of Parliament
APPLYING PROPORTIONALITY
In assessing the proportionality under the HRA, the
court drills down into the basis for the decision, making its own value judgement about what is a fair balance between the pubic auhtority's reason and aims, and the extent of interface with the indidivudal's rights
Current proportionality test to determine whether a public authority's decision strikes a fair balance between the competing interests in a human rights case
Whether it is
rationally connected to the objective
Whether there is a
less restrictive method that could have been used
Whether it is
objective is sufficiently important to justify the limitation of a fundamental right
Whether, having regard to these matters and to the severity of the consequences, a
fair balance has been struck between the rights of an individual and the interests of the community
CONSTITUTIONAL IMPACT OF THE HUMAN RIGHTS ACT 1998
While the HRA has
special status as a constitutional statue,
it is
not entrenched and cannot override other statues
CRUCIAL: the
Act provides an additional mechanism to hold the executive accountable.
Concerns about the extent to which the Act politicises the judiciary by taking them into the arena of government policy
MINISTERIAL STATES OF COMPATIBILITY -
Act introduced
a
new addition to the legislative process
by
requiring a ministerial statement of compatibility when a Bill reaches second reading
. The responsible minister has to make a Parliament statement wh the bill is compatible or not. The Bill can continue even if incompatible
By
providing a new benchmark for measuring UK legislation for compatibility with Convention rights
, the
Act gives judges powerful interpreting role which effectively allows them to review Acts of Parliament, within prescribed limits.
The Act was
carefullt written to preserve Parliamentary sovereignty.
DEROGATION FROM THE ECHR
ARTICLE 15
allows states to temporarily suspend their obligations to secure certain rights in a national emergency
Derogation is
only allowed in times of war
or other public emergencies which threaten the lift of the nation
Derogation measures must only be what are strictly required by the exigencies od the situtation
Must not be inconsistent with the state's other obligations under international law
State must keep the Secretary General of the Council of Europe fully informed of the measures taken, reasons and when such measures no longer apply
A BRITISH BILL OF RIGHTS
There are concerns that repealing the HRA would leave human rights protection weaker,
and opponents of withdrawing from the ECHR have argued that the ECHR prevents national sovereignty from shielding human right abuses
Introducing a Bill of Rights implies
the following aspects:
breakaway from the Strasbourg jurisprudence, reasserting parliamentary sovereignty, perceptions of an over-assertive judiciary in upholding human rights
HUMAN RIGHTS POST-BREXIT
Withdrawal from the EU did not change UK's membership to the ECHR. However,
when UK was a member of the EU
, it was
bound by the EU's Charter of Fundamental Rights which is separate from the ECHR
.
The
Charter included rights not included in the ECHR, right to dignity -> concern of gap in UK human rights law. EU Charter gap will require assertive human rights scrutiny within Parliament
COMMON LAW RIGHTS
Reminders that common law rights exist alongside Convention rights
Human rights laws has developed through the common law, and the common law should not be overlooked after the HRA
Many disputes start with domestic law, and it is certainly not to focus exclusively on the Convention rights without surveying the wider common ale scene