PUBLIC LAW 2 Exam Revision
[Human Rights Act 1998]
The HRA incorporated rights protected in the European Convention of HR 1950 into domestic law, thus providing a code of human rights which is enforceable in domestic court.
HRA – a comprehensive collection of essential and enshrined basic rights of various kinds –
– Civil rights (to education, property, family, fair trial etc)
– Political rights (to vote, beliefs, assembly/association)
– Protections (torture, slavery, punishment without law)
– Liberties, Freedoms (expression, assembly, from arrest
Section 1 – Sets out which articles of the convention are to be incorporated in the act which include articles 2-12 and 14-16. These rights are to be guaranteed and subjected to certain limitations.
Section 2 – All courts are required to take into consideration the entire jurisprudence of ECHR and Commissions etc.
Section 3 – Most crucial, all primary and secondary legislation whenever enacted must be constructed and given effect to be compatible with convention rights in section 1
This can be seen in the case of [ Mykowi & others v Botterill 2010]
Step parents who had a family life with step children entitled to claim [even if step child not accepted as if a child of the step parent as such, still had a family life although no obligation of aliment or PRRs].
And [ McGibbon v McAllister 2008] allowed parents to sue negligent person for compensation for death of children.
Both cases deal with the [interpretation of damages act 1976] so act is compatible in regards to title/
Section 4 – allows higher courts to make declaration of incompatibility. This means court decide if a piece of legislation is incompatible with the ECHR and HRA 1950, however this does not invalidate legislation or even bind parties in instant proceedings, however it does bring a change in legislation to make it compatible.
[Bellinger v Bellinger 2003]
Where a gender changed man was not permitted to marry a man in her new gender. Incompatible with Article 8 & 12 [Gender Recognition Act 2006]
Section 5 – The crown has the opportunity to enter proceedings under HRA 1998 to argue its case
Section 6 – demonstrates that PA must not act in a way which is incompatible with a convention right
[Cadder v HMA 2010] where the police questioned a man before legal advice was given. He has a right to a fair trial. Article 6
Another effect of the HRA is that it allows people the opportunity to raise actions in domestic courts instead of going straight to the ECHR in Stasbourough which was the case before 1998
The act gives the crown the right to derogate from some articles in times of war and public emergency. Section 14. However article 3, 4, and 7 are never derogable as they are Absolute rights.
It must be noted that articles are not absolute rights and some may be limited and qualified if such is necessary in a democratic society and prescribed in law. An example of this is Article 5 – right to liberty held a fundamental right [Anderson v Scottish Ministers 2001]
Article 9 – Right to thought and conscious belief. Limited in terms of manifesting a belief [ R v Denbigl h school 2006] **
Article 10 – Freedom of expression – may be limited as seen in case [Quinon v PF Dumbarton 2005] **
It is important to be able to vote however, the person brining the action under section 7 must be the victim of claimed breach and the HRA is not retrospective as seen in case [R v Lambert 2002]