Flashcards in Stautory Interprtation (3) The Effects Of The Human Rights Act 1988 Deck (15)
What is ECHR?
ECHR protects the human rights of people in countries that belong to the Council of Europe.
What is the Council of Europe?
The Council of Europe is an international organisation whose stated aim is to uphold human rights, democracy and the rule of law in Europe. Formed in 1949 shortly after ww2, it has 47 members.
When was the convention signed?
When did the convention come into force?
What’s the full title of the convention?
‘Convention for the Protection of Human Rights and Fundamental Freedoms’
How did the the UK incorporate ECHR?
The convention consisted of numbered articles in schedule 1, protecting basic human rights, the UK made these rights part of its domestic law through the Human Rights Act 1998 as “convention rights.”
Can the British parliament act inconsistent to ECHR? Why?
Because they are a sovereign parliament, meaning they have unlimited power. No judge in any court is able to strike down an act of the British parliament however inconsistent it is to ECHR.
Can the Scottish Parliament act inconsistent to ECHR? Why?
Because they have limited power due to the Scotland Act 1998. They cannot pass legislation inconsistent to ECHR or the Scottish Act. Judges are able to strike down act of Scottish Parliament.
What is the Human Rights Act 1998?
It sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
When did the Human Rights Act 1998 come into force ?
How is the Human Rights Act 1998 set out?
The Act sets out your Human Rights in a series of ‘Articles’.
Each Article deals with a different right.
These rights are taken from the ECHR and are known as ‘Conventional Rights’.
What is section 2 of the HRA 1998 about?
“A court or tribunal determining a question which has arisen in connection with a convention right must take into account any:-
(a) judgement, decision, declaration or advisory of the European Court of Human Rights
(b) opinion of the commission
(c) decision of the commission
(d) decision of the committee of ministers
What is section 3 of the HRA 1998 about?
3(1) “so far as it is possible to do so, primary legislation and subordinate legislation MUST be read and given affect to in a way which is compatible with the Convention Rights.”
3(2) “this section applies:
(a) to primary legislation and subordinate legislation whenever enacted
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if...primary legislation prevents removal of the incompatibility
What’s the effect of the HMA 1998 section 3?
The idea that courts must STRETCH meaning and phrases of words to ensure consistency with the ECHR, even if the words are completely unambiguous. You have to stretch it almost to breaking point. You CANT break it because then it means judges are rewriting the statute.
Eg. Ghaidan v Mendoza 2004 per lords millet