Chapter 19 End-of-chapter questions

How are human rights protected in the UK? Select all that apply.

The courts can strike down primary legislation under the Human Rights Act.

The courts can strike down secondary legislation under the Human Rights Act.

The courts can interpret legislation in a manner compatible with rights under the Human Rights Act.

The courts can strike down primary legislation under the common law.

The courts can strike down secondary legislation under the common law.

The courts can interpret legislation in a manner that is compatible with rights recognised by the common law.

Which of the following statements about common law rights are accurate? Select all that apply.

Courts can use these fundamental rights to invalidate primary legislation.

Courts can use these fundamental rights to issue a declaration of incompatibility.

The development of common law rights ceased once the HRA came into force in 2000.

They protect fundamental values such as freedom of expression and the right to a fair trial.

Courts can use these fundamental rights to invalidate secondary legislation.

Courts can use these fundamental rights as aids to the interpretation of legislation.

Match each of the rights below, all of which are listed in the Human Rights Act and European Convention on Human Rights, to an example of that right being (at least potentially) breached.

The police arrest a suspect and place them in a holding cell unsupervised. During this period, the arrested party, who has significant mental health problems, hangs himself in the cell.

A group wishing to protest the establishment of a fracking facility near a residential area distributes leaflets throughout the city. The local council bans them from distributing their material.

For the purposes of public safety, the government bans all meetings of 20 or more people after 8pm on weekdays. Many mosques around the country hold prayer meetings after this time, and participants consider attendance a mandatory aspect of their religious practice.

The Ministry of Justice, considering that prisoners are wasting state resources with vexatious appeals, bans those serving long sentences from accessing legal advice.

In the wake of a terrorist attack, the government pushes through legislation allowing for indefinite detention without trial of anyone suspected of committing a terrorist offence.

The police secretly record, and upload to an internal database, every landline phone call of every resident of a local area.

Match each of the cases below to the point they demonstrate about human rights in the United Kingdom.

The common law is not made otiose by the advent of the HRA; not only do the two sources of rights co-exist, but they can be mutually influential.

The courts should treat s3 HRA as a powerful tool; they can interpret legislation compatibly with the HRA even if this would go against the wording of the statute, so long as this does not 'go against the grain' of Parliament's intention.

Whilst the courts have very significant powers under s3 HRA, they are not unlimited. Where s3 cannot be used, s4 HRA can be used to issue a declaration of incompatibility instead.

The question whether to issue a declaration of incompatibility under s4 does not always have a clear answer; the court does not have a legal obligation to issue a declaration even where it feels that rights have been breached.

Whilst the HRA does not apply to private parties directly, the courts have an obligation to develop the common law, which can and does affect private parties.

The question of what constitutes a 'public body' under the HRA depends on whether a given body exercises a governmental function.

The case of Ghaidan v Godin-Mendoza illustrates a number of points about the operation of the Human Rights Act. Which of the following statements presents the most accurate account of that case?

The House of Lords found that, on a natural reading of the Rent Act, the statutory scheme would fall foul of the rights under the HRA. The court determined that section 3 of the HRA could be used to interpret legislation in ways which went against the wording of the statute, even where the statute was not ambiguous. However, in this case it determined that such a reading would go 'against the grain' of the legislation and frustrate the 'essential principle' behind the statute, so it was impossible to use s3 HRA to read the statutory provisions in a way which was compatible with the Convention. There was no need to rely on s4 in this case.

The House of Lords found that, on a natural reading of the Rent Act, the statutory scheme would fall foul of the rights under the HRA. The court determined that since section 3 of the HRA could not be used to interpret legislation in ways which went against the wording of the statute, and that there was no ambiguity in the statutory wording, to use s3 would be inappropriate in this case. Additionally, there was no need to rely on s4 in this case.

The House of Lords found that, on a natural reading of the Rent Act, the statutory scheme would fall foul of the rights under the HRA. The court determined that section 3 of the HRA could be used to interpret legislation in ways which went against the wording of the statute, even where the statute was not ambiguous. Because a rights–compatible reading would not go 'against the grain' of the legislation or frustrate the 'essential principle' behind the statute, it was therefore possible to use s3 HRA to read the statutory provisions in a way which was compatible with the Convention. There was no need to rely on s4 in this case.

The House of Lords found that, on a natural reading of the Rent Act, the statutory scheme would fall foul of the rights under the HRA. The court determined that section 3 of the HRA could be used to interpret legislation in ways which went against the wording of the statute, even where the statute was not ambiguous. However, in this case it determined that such a reading would go 'against the grain' of the legislation and frustrate the 'essential principle' behind the statute, so it was impossible to use s3 HRA to read the statutory provisions in a way which was compatible with the Convention. However, s4 HRA was used in order to issue a declaration of incompatibility instead.

The Human Rights Act has been subject to significant hostility in some quarters. What are some potential reasons for this?

The sensationalist nature of the tabloid press

The capacity of the HRA to protect minority rights

The application of the HRA to those who are deemed undesirable, such as terrorist suspects or sex offenders

The fact that s4 declarations are not binding on the government

The association between the HRA and Europe

The unpopularity of a number of decisions, such as those relating to prisoner voting and life sentences

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