06/10/21
Public Law (Elliot & Thomas, Oxford, 2020)
Chapter 19 – Human Rights & the UK Constitution
Elliott & Thomas, Public Law (4th ed, 2020, Oxford) chapter 19 (Human Rights & the UK Constitution)
HRA 1998 has extended the legal protection afforded to human rights and has been a key driver of
the shift from a more political to a more legal form of constitutionalism
HRA stops short of authorising courts to strike down Acts of P that are inconsistent with human
rights
One of the principal effects of the HRA has been to enhance the courts’ powers to review the
legality of administrative action (adequate oversight executive-like position)
HRA doesn’t restrict parliamentary legislation, but the rights it protects do
Human rights are normally accorded special treatment within any given legal system; protection of
rights as legal consequences will flow from breaches; the paradigm form of protection given to
human rights involves not simply rendering unlawful any conduct that is inconsistent with such
rights, but, at a constitutional level, making it impossible or difficult for legislation to be enacted that
is incompatible with such rights
Legislation can modify and remove legal rights => precarious
Human rights are not precarious because legislation cannot remove them; a degree of permanence;
an important concept of human autonomy
Human rights shouldn’t be unlimited = interference with others’ rights; restrictions upon freedoms
need to be contemplated so as to strike an appropriate balance when they are in tension with one
another
Recognition that the rights of one individual may come into tension not only with the rights of other
individuals but also with the interests of the community (right to free expression – secret services’
agent leaking confidential data)
Even if human should be used to safeguard individual autonomy, questions remain about the range
of rights necessary to secure that objective (e.g. freedom of expression, but not everyone is able to
exercise it)
Negative rights = rights to be free from certain forms of interference to individualism; autonomy-
based rights should be supplemented by positive rights necessary for the effective exercise of the
former
No fundamental challenge that the core purpose of human rights is to safeguard human autonomy;
positive rights are ancillary to negative rights
Other rights might be liberal, but may not be values of equality (one with a minimal standard)
Human rights emphasise on individualism we are a community
Communitarian view = a world view that places particular weight upon the responsibility of the
individual to the community and society, as opposed to emphasising individual freedom and rights
Individual rights should be obtained, unless it is shown that there is some community interest that,
in the particular circumstances of the case, should be allowed to prevail over the right and thus
restrict the extent to which it may be lawfully exercised
Better protection of fundamental rights if there is an objectively rational way to make decisions
without regard to the political maelstrom but tackling human rights cases has politics at its root;
political process is sometimes better than judicial action in resolving human rights’ cases
, 06/10/21
Freedom of expression = democratic right; health care = human right
Parliament (democratic body) entrusted courts to adjudicate on human rights disputes
Liberties are residual, whereas rights are positive and declaratory (the law specifically provides that
it can be lawfully done)
Liberties = absence of state power to interfere, but no positive action required by state; conduct is
lawful because no law makes it unlawful – hence scope of lawful conduct is a function of
prohibitions: whatever is not lawful is lawful; scope of lawful conduct not fixed: may expand or
contract depending on operative legal prohibitions
Rights = may require state not to interfere and/or positively do certain things; conduct is lawful
because law grants a specific right to engage in it; score of law conduct is fixed: changes only if the
right itself is amended
Lawful = state passivity because the conduct does not exceed boundaries; BUT liberties cannot be
meaningfully conceptualised (e.g. being free to receive health care is not the same as having a right
to be provided with health care)
Human rights are in a better position to ascertain their position than liberties (Am I allowed to do
X?); if using liberties to answer, we need to identify a greater number of laws
Erosion of rights is less likely because a public body is not permitted to act contrary to
constitutionally protected rights, while assumed liberties may be eroded by the course of legislative
restrictive action
In pre-HRA times, courts focused on matters concerning due process and access to the courts
[Anisminic Ltd v Foreign Compensation Commission (1969)]
If the actor in question is a body other than P, e.g. Minister or devolved legislature, the courts can
and do strike down acts and decisions if they contravene what are often called ‘common law
constitutional rights’ under certain provisions courts cannot strike down acts if the actor is P; if a
public body other than P is authorised by an Act of P to act inconsistently with common law
constitutional rights, the courts are, according to orthodox theory, powerless to intervene
Range of rights recognised by the courts as common law constitutional rights was relatively narrow,
and the courts were ultimately powerless to protect such rights if legislation unambiguously
interfered with or removed them
ECHR does not extend to social rights (e.g. housing, health care), nor does it confer economic rights
(e.g. employment or decent living)
Before a Bill’s second reading, the Minister is responsible for making a ‘statement of compatibility’
with the Convention rights; or explain to P that they are unable to make a statement of
compatibility if they do not believe the Bill is compatible – but hey think P should enact the Bill
anyway = ensures P doesn’t casually or unknowingly enact legislation that will breach the
Convention
Due to incompetence, misjudgement and cynical political calculation, statements of compatibility
may be issued in respect of Bills that later turn out to be incompatible with one or more of the
Convention rights
Joint Committee on Human Rights provides an expert Commons report to find out potential
incompatibility
Scrutiny is carried out by the Equality and Human Rights Commission (Eng and Wal), the Scottish
Human Rights Commission, and the Northern Ireland Human Rights Commission; promote human
rights and compatibility
