Summary
Summary human rights
- Module
- Human Rights Law
- Institution
- University Of Winchester (UoW)
Summary of 6 pages for the course Human Rights Law at UoW (human rights)
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BackgroundHuman Rights in the UK
- It heavily relies upon the will of elected governments (the will of the people)
- No codified constitution which would outline human rights of every citizen
- Parliamentary sovereignty - might cause difficulty with a large majority government
The judiciary
- It is often conceived that with the system of separation of powers, the judiciary play the role as
guardians of justice, and thus, the protectors of human rights
- However some of the major cases reveal that this is not always the case
- Thomas v NUM [1985]
Facts; the right to protest, miners striking, made it more difficult for miners who wanted to work to get to work
Decision; actions of the striking miners were considered to constitute tort of nuisance
Protectors of human rights?
- Yet, in the 1990s with the influence of international human rights law and the ECHR, the judiciary
began to see their role differently
- SoS for the Home department ex parte Brind [1991]
Factors which influence the proposal for HRA 1998
1) Growing role of international human rights regime
2) Dilution of the traditional diceyan vision of parliamentary sovereignty
3) Dissatisfaction with governments secrecy and lack of protection of privacy under common law
4) Impracticality of the inability to enforce convention rights in domestic courts
Pre HRA 1998
- Uk signed in 1960
- Before enactment - still effective
- Not enforceable in domestic courts
- Travel to strasbourg to make claim
- Problem?
- Expensive
- Uk had disproportionate amount of cases in strasbourg
Pre- HRA 1998 – The Labour Party’s manifesto
The Labour Party’s manifesto in the run up to the 1997 general election was to offer greater protection to
human rights and civil liberties.
However, this had been a matter in consideration for several decades, since Anthony Lester first proposed its
incorporation into domestic law in his 1968 publication Democracy and Individual Rights (Fabian Society)
.Possible suggestions included:
•Simple incorporation of the Convention rights into domestic law (Lord Lester)
•An entrenched Bill of Rights (Quintin Hogg, Sir Keith Joseph - both Conservatives)
Timeline
December 1996 consultation paper Bringing Rights Home: Labour’s Plans to Incorporate the European
Convention on Human Rights into UK Law
•May 1997 set out in the Queen’s speech its plans to introduce the main provisions of the Convention into
domestic law
•1997 drafted the Human Rights Bill 1997.
•1997 White Paper: Rights Brought Home Bill was introduced to parliament for a period of extensive debate
about the scope and constitutional impact of such an Act.
•9th November 1998 HRA enacted
•2nd October 2000 HRA in force
, Human Rights Act 1998
Whilst it is said that the HRA incorporates the Convention into domestic law this is not strictly true...What it
does in fact is to give domestic effect to Convention rights enabling them to be enforced directly in UK courts.
The Act confers obligations upon public authorities to behave in a manner compatible with it.
Retrospecitivyt
As we know Acts of parliament are not generally retrospective in nature and the HRA is, largely, no different.
Should the appellate court take into account or ignore the Convention rights and the HRA when the appeal
relates to Acts that occurred before it came into force?
•R v DPP ex parte Kebilene [1999]
:•DECISION: The court was prepared to apply the provisions of the HRA despite the fact that it was not yet in
force on the basis that any appeal would be heard after enforcement and that s7(1)(b) permits the Act to be
used in any legal proceedings – presumably including appeals.
However, two subsequent House of Lords decisions have thrown a spanner in the works:
- •R v Lambert [2001]
FACTS: The case concerned a conviction under s5 of the Misuse of Drugs Act – which carries a reversed
burden of proof. The defendant appealed against conviction on the basis that this breached the presumption of
innocence under Art 6 of the Convention. s22(4) of the HRA states that it: applies to proceedings brought by or
at the instigation of a public authority whenever the act in question took place .
DECISION: In Lambert the House of Lords held that the appellant (Lambert) was not a public authority and
therefore unable to bring an appeal utilizing the retrospective aspect of the Act.
This is a disastrous decision, in one fell swoop the Lords have severely limited the scope for retrospective
application of the Act.
- •R v Kansal (No 2) [2001]
DECISION: In Kinsal, whilst the majority agreed that the previous decision was wrongly decided they declined
to depart from it.
The specific sections of the act
- s2 requires domestic courts to give effect to the substantive Convention rights and to take account of
the case law of the ECtHR in resolving disputes. It does not however insist that they do so.
- •Whilst this might appear to fall short and allow the courts considerable scope for ignoring judgements
of the ECtHR there is substantial evidence to show that they are not prepared to do so:
- •R v SoS Home Dept ex parte Taylor and Anderson [2002]•
FACTS: The Secretary of State issued higher than recommended terms before the applicant could apply to
leave prison on a license. At the time, he had the power to do so. Q: Breach of Article 6 since it should be a
judiciary function to sentencing?
DECISION: The HoL took note of the ECtHR’s case law, even though it was not binding on them, in order to
rule that there was no difference between sentencing and issuing a minimum term. Therefore a breach of
Article 6.
Section 1 - 2 - 3 -4 - 5 - 6
THe european convention on human rights and fundamental freedoms
Structure of the courts
47 judges – not coincidentally - the same number as the number of states
•Each member state must send potential 3 candidates, and then 1 senior judge is appointed to the Court
whose duty is to be independent and impartial – in other words they must uphold the Convention rather than
the interests of their home state.
• Each judge serves for a period of 9 years.
•Applications are initially scrutinised by Judge Rapporteurs appointed by the chamber of judges
.•Hearing of the Court take place before one of the following:
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