The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter describes issues relating to the Human Rights Act 1998. The questions presented here deal with issues such as the response to terrorism; the effect of the Human Rights Act 1998 on English law; whether the Human Rights Act 1998 should be replaced with a UK bill of rights; the Human Rights Act not changing parliamentary supremacy, but the courts being able to issue a declaration of incompatibility; and the effect of the Human Rights Act on individual rights.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Ghaidan v Godin-Mendoza [2004] UKHL 30, House of Lords. This case concerns the interpretive obligation placed on the courts to, so far as is possible, interpret all legislation, past and future, in line with the Human Rights Act 1998. The substantive issue in the case was whether the Rent Act 1977, as amended, could be read in such a way as to allow a surviving tenant from a same-sex relationship to succeed to a tenancy held by their deceased partner. The document also includes supporting commentary from author Thomas Webb.
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This chapter considers the European Convention on Human Rights (ECHR) and its relationship to the English legal system. The focus in the chapter is on key provisions of the Human Rights Act 1998—the Act that incorporated the Convention into UK law. In the earlier part of the chapter there is coverage of sections 2, 3, and 4 of the Act. These provisions concern the duties placed on the courts to take into account judgments of the European Court of Human Rights, to interpret domestic legislation so as to comply with rights under the Convention, and finally to issue a declaration of incompatibility when domestic legislation does not comply with rights under the Convention. Using examples from the case law, the chapter assesses how the courts balance their constitutional role to respect the supremacy of Parliament, with the duties provided in the Act to respect rights under the Convention. There is also an analysis of s.6 of the Human Rights Act 1998 which makes it unlawful for a public authority to act incompatibly with Convention rights. The analysis includes the contested question of what precisely constitutes a ‘public authority’, particularly when a private body is carrying out a public function.
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This chapter considers the European Convention on Human Rights (ECHR) and its relationship to the English legal system. The focus in the chapter is on key provisions of the Human Rights Act 1998—the Act that incorporated the Convention into UK law. In the earlier part of the chapter there is coverage of sections 2, 3, and 4 of the Act. These provisions concern the duties placed on the courts to take into account judgments of the European Court of Human Rights, to interpret domestic legislation so as to comply with rights under the Convention, and finally to issue a declaration of incompatibility when domestic legislation does not comply with rights under the Convention. Using examples from the case law, the chapter assesses how the courts balance their constitutional role to respect the supremacy of Parliament, with the duties provided in the Act to respect rights under the Convention. There is also an analysis of s.6 of the Human Rights Act 1998 which makes it unlawful for a public authority to act incompatibly with Convention rights. The analysis includes the contested question of what precisely constitutes a ‘public authority’, particularly when a private body is carrying out a public function.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, Supreme Court. The case concerned assisted dying, specifically whether s. 2 of the Suicide Act 1961 was incompatible with the Human Rights Act 1998 (Nicklinson and Lambs’ cases), and whether the prosecution guidance on assisting someone to commit suicide issued by the Director of Public Prosecutions was sufficiently clear (Martin’s case). However, the primary focus of this case note is on the justices’ discussion of the respective competences of Parliament and the courts to resolve the legal issues in this area. The document also includes supporting commentary and questions from author Thomas Webb.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, Court of Appeal. This case concerned whether the language of ss 72–73 of the Mental Health Act 1983 could be read in such a way as to be compatible with the Human Rights Act 1998 (HRA), under s. 4 of that Act, or whether such an interpretation was not possible. In the latter case, the court should consider making a declaration of incompatibility. This note explores s. 4 HRA declarations of incompatibility. The document also includes supporting commentary from author Thomas Webb
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63, Supreme Court. This case addressed a further challenge to the rules against prisoner voting (see Hirst), and considered the limits of the courts’ role in relation to legislation deemed incompatible with the Human Rights Act 1998. Here the court was sceptical of the value of making a further declaration of incompatibility in an area where such declarations had already been made. The document also includes supporting commentary from author Thomas Webb.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, Supreme Court. The case concerned assisted dying, specifically whether s. 2 of the Suicide Act 1961 was incompatible with the Human Rights Act 1998 (Nicklinson and Lambs’ cases), and whether the prosecution guidance on assisting someone to commit suicide issued by the Director of Public Prosecutions was sufficiently clear (Martin’s case). However, the primary focus of this case note is on the justices’ discussion of the respective competences of Parliament and the courts to resolve the legal issues in this area. The document also includes supporting commentary from author Thomas Webb.
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This chapter deals with the area of human rights. It first considers the former position on human rights in the UK, then the European Convention on Human Rights and its incorporation into domestic law by the Human Rights Act 1998. The chapter explores the extent to which human rights law applies to private bodies performing public functions, how it affects the interpretation of legislation, when courts may find legislation compatible with Convention rights and when they may issue a declaration of incompatibility, and examines the adoption and the application of the proportionality test.
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Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Ghaidan v Godin-Mendoza [2004] UKHL 30, House of Lords. This case concerns the interpretive obligation placed on the courts to, so far as is possible, interpret all legislation, past and future, in line with the Human Rights Act 1998. The substantive issue in the case was whether the Rent Act 1977, as amended, could be read in such a way as to allow a surviving tenant from a same-sex relationship to succeed to a tenancy held by their deceased partner. The document also includes supporting commentary from author and questions Thomas Webb.
Chapter
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R (on the application of H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, Court of Appeal. This case concerned whether the language of ss 72–73 of the Mental Health Act 1983 could be read in such a way as to be compatible with the Human Rights Act 1998 (HRA), under s. 4 of that Act, or whether such an interpretation was not possible. In the latter case, the court should consider making a declaration of incompatibility. This note explores s. 4 HRA declarations of incompatibility. The document also includes supporting commentary and questions from author Thomas Webb
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This chapter provides an introduction to the ways in which human rights law limits the actions of government and public authorities. It begins by setting out the salient features of the protection of rights under common law and then goes on to explain the reasons for the introduction of the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK domestic law. The remainder of the chapter provides an overview of how the mechanisms in the Human Rights Act 1998 apply in the sphere of public law. This includes considering how, under section 2, UK courts must take into account decisions of the European Court of Human Rights (ECtHR) when hearing cases under the Act; how, in seeking to make domestic legislation compatible with the ECHR, UK courts have a far-reaching power of interpretation under section 3; how, if they are unable to interpret primary legislation in a manner that is compatible with the ECHR, the courts may make a declaration of incompatibility between the domestic legislation and the ECHR (at which stage it is a matter for Parliament to decide whether to change the legislation); and also how the Act applies to public authorities under the section 6. There is also reference to the Charter of Fundamental Rights of the European Union. Taken as a whole the chapter provides an assessment of the far-reaching impact of the Human Rights Act on domestic law and judicial review in particular.
