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1. When did the population of the UK obtain the right of individual application to the ECHR and what was the consequence of that?
1966. Anyone living in the UK (or anywhere else under the UK’s jurisdiction) could bring a case, alleging a breach of Convention rights by the UK, before the Strasbourg authorities. A number of significant changes to UK law and administrative practice resulted from the UK’s obligations under Article 1 (all before the HRA 1998).
2. Explain the ‘dualist’ approach to international law and consider its implications for the role of the ECHR in the UK.
International law is not directly enforceable, as law, in the courts of the UK. Where the UK has agreed in a treaty to create legal rights enforceable in domestic law, it must do this through statutory enactment. Therefore Convention rights (rights in the ECHR) could not (and still cannot) be directly enforced in the UK’s courts.
3. Give three examples of the impact of the ECHR on UK law and administrative practice prior to October 2000.
- Malone v UK required the UK to introduce proper legal regulation of telephone tapping.
- Smith v UK required the UK to stop the automatic administrative discharge of homosexuals from the armed forces.
- Sunday Times v UK required alteration to the law on contempt of court to enable (limited) media discussion of issues before the courts.
4. What is the principle of ‘legality’ and how does it relate to human rights law?
Any interference with a Convention right will be a breach if it is not done on the basis of law. Law, or legality, has a special (“autonomous”) meaning under the Convention. Any state interference must be (a) allowed for by national law, but, also, the national law must be (b) accessible (not secret or over-complex or hidden), (b) foreseeable (what it requires is sufficiently clear in the circumstances), and (c) not arbitrary.
5. What is judicial review and, independently of the HRA, is it an entirely suitable procedure for dealing with human rights claims?
Judicial review refers to the process by which the legality of the actions of public bodies (e.g. ministers or government bodies) can be tested by the courts. Public bodies, to act lawfully, must act only within the powers granted by Parliament (or the common law) and exercise those powers reasonably and fairly.
Judicial review is not always suitable. For instance the JR procedure may make it hard for disputes about facts to be properly tested in the courts. Likewise it may be limited on the remedies it can make available (it is not a criminal procedure aiming at punishment, it cannot award damages).