European Convention on Human Rights

5 points QUESTION 3 "When it signed the European Convention on Human Rights in 1950 the UK government took on a purely moral duty to abide by the spirit of all of the Articles and Protocols that would eventually form part of that international Convention. That all changed in 1998. From that year onwards the UK was legally obliged to follow the Convention and all domestic laws that offended against fundamental rights had to be either repealed or reinterpretted so that they were Convention compliant." Which of the following statments is/are correct? More than one answer may be required. • The statement is accurate • The statement is inaccurate because the Human Rights Act was passed in 1998 but only came into force in October 2000. • The statement is inaccurate because the Human Rights Act 1998 does not impose any mechanism though which legislation must be repealed though it does allow ministers to amend or repeal legislation that has been declared by a judge to be incompatible with a Convention right. • The statement is incorrect because the UK government was bound to follow the Convention since it signed it in the 1950s. Signing the Convention imposed international obligations on the UK state just like any other international treaty. 5 points QUESTION 4 X believes that the government department responsible for the NHS, the Department of Health, has breached his Article 2 Right to Life by setting out a policy that prevents NHS doctors from prescribing an expensive drug that might help to treat X's life-threatening condition. X wants to ask the High Court a remedy against the Department of Health. Following the coming into force of the Human Rights Act 1998 which of the following statements is correct? • X cannot rely on Article 2 against the government department because the Act gives him the right to petition the European Court of Justice but not to launch a claim in domestic courts. • X cannot launch any claim under Artcile 2 since the Department of Health is not positively interfering with his right to life. He may only use Article 2 to prevent the state from positively interfering with him, not for failing to to do something which he feels they are obliged to do. • X may ask the High Court to provide a remedy against the Department of Justice since that Department is a public body which is required to act in a manner that is consistent with X's Convention rights. • X may commence a claim in the High Court but only if he can identify a separate cause of action in law such as negligence, or breach of contract. An individual may not simply launch a claim for breach of Convention rights. • The Act requires that all UK courts must always give effect to decisions of the European Court of Human Rights (ECtHR) on the meaning and effect of Convention Rights. If the ECtHR holds that UK legislation conflicts with a Convention right then the UK courts must take remedial action. 5 points QUESTION 6 When a judge encounters a piece of domestic legislation which they feel is incompatible with a relevant Convention right and they decide that there is no scope to make a "compliant" re-interpretation of the legislation because the provision is very clear in its meaning, they may make a "declaration of incompatibility" under s. 4 of the Human Rights Act. What is the effect of such a declaration? More than one answer may be required. • Issuing a declaration of incompatibility means that the legislation will be temporarily disapplied until Parliament can rectify the conflict. • If such a declaration has been issued by a court then a government minister may under s. 10 of the Human Rights Act make an alteration to the conflicting legislation or even repeal it without Parliament itself taking any direct action. • The declaration itself has no direct impact on the authority of the legislaiton that the judge has found to be in conflict with a Convention right. • The declaration will automatically result not just in the temporary disapplication of the legislation but in its complete and immediate repeal. Domestic law is superseded by Convention law in this manner. • The declaration will trigger an automatic process under which Parliament will be called to urgently consider whether to repeal the conflicting Act in part or in full. 5 points QUESTION 7 How can individuals in the UK rely on Convention rights when they are involved in legal disputes with other private individuals or corporations? • They cannot. Under s. 6 only public authorities are required to act consistently with Convention rights so such rights are immaterial when private litigation is concerned. • Individuals may sue other individuals for breach of their human rights because the courts are required to act consistently with the Human Rights Act 1998. • If an individual can set out a form of action based on an existing area of domestic law (e.g. breach of contract, unfair dismissal) then they can indirectly enforce their Convention rights by asking the courts to follow s. 3 and s. 6 when interpreting the relevant domestic law even against another private individual or corporation. • Although private organisations may not be sued directly for breaching somone's human rights in the UK courts, an individual may launch an action against a private organisation or a private individual for human rights infringement by taking them directly before the European Court of Human Rights in Strasbourg, as long as they do so within 6 months of the alleged infringement. 5 points QUESTION 8 How does the case of D v East Berkshire NHS Trust [2004] QB 558 impact on our understanding of the effect of the Human Rights Act on established English legal method principles? • It provides an illustration of a case where the Supreme Court declared that it was bound to follow the decison of the European Court of Human Rights even though it disagreed with that court's decision on the meaning of a Convention right. • It provides an example of when a lower court can issue a declaration of incompatibility without the issue reaching the Supreme Court for consideration. • It illustrates that a post Human Rights Act decision of the Supreme Court may still be effectively overruled by a lower court where there is a new decision of the European Court of Human Rights which makes it clear that the Supreme Court decision is wrong. • It provides an illustration of a lower court using the Human Rights Act 1998 to reach a decision contrary to a decision of the House of Lords which was reached before that Act was passed. 5 points QUESTION 9 Why is the case of R v A [2001] UKHL significant in the context of the application of s. 3? • It is an example of a case where the court exercised their interpretative duty under s. 6 to such an extreme that the legislation developed a meaning which was probably contrary to what Parliament had intended. • It is an example of a case where the court refused to alter the meaning of legislation to bring about consistency with a relevant Convention right despite the clear scope they had to do so. • It is an example of a case where the court decided that the legislation being considered should not be reinterpreted in accordance with Convention rights because it had been passed after the Human Rights Act 1998 came into force and it was clearly the intention of Parliament to legislate in a way which was contrary to that Act. 5 points QUESTION 10 In Harrow LBC v Qazi [2004] 1 AC 983 the House of Lords reached a decision on a point of law after considering how connected Convention rights might affect the outcome. After that decision, in Connors v United Kingdom (2004) 40 EHRR 189 the European Court of Human Rights reached a decision in law that undermined the House of Lords reasoning in Qazi. In Leeds City Council v Price [2005] EWCA Civ 289 the Court of Appeal had to decide whether to follow the House of Lords decision or the ECtHR decision. What was the outcome and why? • The Court of Appeal followed the House of Lords decision since it felt bound by the traditional principle of precedent, the House of Lords having reached its decision in Qazi after the Human Rights Act 1998 came into force. • The Court of Appeal followed the Connors decision and ignored the House of Lords decision in Qazi since the Connors decision was more recent and was delivered by a superior court where human rights issues were concerned. • The Court of Appeal rejected both precedents and applied their own interpretation of the relevant law as required under the Human Rights Act 1998. • The Court of Appeal had a constitutional crisis and still has not recovered from this. • The Court of Appeal followed the Qazi decision since decisions of the European Court of Human Rights have no bearing on the true meaning of human rights law in the UK. 5 points QUESTION 11 What legal issue did the House of Lords have to decide in R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 A.C. 115? • Whether the applicants had been wrongly convicted of the offence of murder for which they had been sentenced to life imprisonment. • Whether the applicants, who were both in custody for murder, were entitled under the relevant domestic prison legislation to receive vistis from journalists who sought to investigate the safety of their convictions and to publish their findings. • Whether journalists could be classified as "visitors" under the Prison Rules 1964. • Whether the relevant rules in the Prison Rules 1964 could be reinterpretted under s. 3 of the Human Rights Act 1998 so that it would be compatible with the applicants' Article 10 right to freedom of expression. 5 points QUESTION 12 What was the outcome in R v Secretary of State for the Home Department, Ex parte Simms [2000] and why? More than one answer may be required. • The court felt that the prisoners did not have a right to freedom of expression in English law. • The court felt that the prisoners had a right to freedom of expression in English law but that the nature of that right differed for prisoners compared to other people, and that its nature depended on the importance of ensuring that the administration of justice worked effectivley. • The court felt that prisoners were guaranteed the right to freedom of expression in English law as a direct result of Article 10 of the European Convention on Human Rights. Article 10 forced the court to reinterpret the English common law view of the same principle, and also the correct construction of the Prison Rules 1964. • The court felt that Article 10 and other supranational sources were relevant when considering how the English common law defined the meaning and application of the principle of freedom of expression but those sources did not lead to a conclusive interpretation of domestic law. The resulting English principle of freedom of expression was relevant when construing the correct meaning of the Prison Rules 1964, the legality of the policy which the Secretary of State had issued under those Rules, and the way the policy was applied in practice. 5 points QUESTION 13 The Court of Justice for the European Union (CJEU) is not concerned with human rights law but primarily with the law governing the operation of the European Union, including in general the harmonisation of domestic laws to better support a single 'market'. Which of the following statements is correct in relation to the way this court deals with precedent? • The CJEU does not regard itself as strictly bound by its own previous decisions and thus every question is open to re-examination. • The CJEU has adopted a system of precedent as regards its own previous decisions: to do otherwise would be absurd waste of resources. • The CJEU has adopted a system under which it will follow the precedents set in domestic courts since its role is to intepret how legal rules fit within domestic legal systems. While strictly following domestic precedents the court does not consider itself bound by its own precedents. • The CJEU does not regard itself bound by its own previous decisions on common law rules, but it does consider itself bound by its own earlier decisions on the menaing and effect of EU legislation. 5 points QUESTION 14 The UK became a member of the EU by signing a treaty, but EU law takes effect domestically through the European Communities Act 1972. What is the main difference between the approach taken in this Act and that taken under the Human Rights Act 1998? • Convention rights may be given effect to when interpreting case law and legislation which comes from before and after October 2000 whereas the European Communities Act 1972 only impacts on post-1972 legislation and case law. • Under the European Communities Act EU law is given direct effect in the UK and it supersedes even domestic legislation where that is incompatible. Under the Human Rights Act domestic legislation must still be upheld by the courts where it is incompatible with Convention rights and the incompatibility cannot be overcome through judicial re-interpretation. • Domestic courts are required to consider decisions of the European Court of Human Rights whereas they may disregard decisions of the Court of Justice of the European Union if they feel that court is wrong. • The Human Rights Act 1998 requires all courts to apply human rights principles when deciding cases whereas the European Communities Act 1972 only requires the court of final appeal, usually the Supreme Court, to consider arguments relating to the compatibility of EU law with domestic law. 5 points QUESTION 17 If a domestic court makes a reference to the Court of Justice of the European Union (CJEU) under Article 267 TFEU what is it really doing? • It is asking the CJEU for a definitive interpretation of the meaning of a piece of EU law. • It is asking the CJEU to reconsider one of its earlier decisions. • It is asking the CJEU to consider an application for leave to appeal in a domesitc case where the applicants still feel that EU law has not been given effect to by the domestic court. The CJEU acts as the final court of appeal in all matters involving EU law. • It is asking the CJEU to give a ruling on the application of Convention rights in the case it is currently hearing. 5 points QUESTION 20 In the case of R v Secretary of State for Transport, ex P Factortame [1990] the House of Lords had to consider the effect of the Merchant Shipping Act 1988. This Act became law after both the European Communities Act 1972 and the UK joined the EU itself under the relevant treaty. The Merchant Shipping Act 1988 contravened the Treaty of Rome. The House of Lords made a reference to the CJEU (at this time it was called the European Court of Justice or ECJ) which then asserted that the relevant treaty article had direct effect in UK law and that the UK courts should disapply the Merchant Shipping Act 1988. The House of Lords were then faced with the decision of what to do in a case where it appeared that the UK Parliament had expressly legislated contrary to this a law contained in a treaty which was directly applicable to UK law. What action did they take? • They held that under the principle of Parliamentary sovereignty they had to give effect to the domestic legislation despite it being contrary to the Treaty of Rome. • They held that because the 1988 Act was passed after the European Communities Act 1972 it must be considered to have amended that earlier Act to the extent that it was inconsistent with it. The 1988 Act stood as good law. • They held that they must issue a declaration of incompatibility. • They held that they could effectively suspend the offending UK Act despite there being no express power to do so under any UK legislation.