Chapter 14 Outline answers to essay questions

Essay answer 1

This answer divides into three parts.

Part one

This should consist of a discussion of s 1 Human Rights Act 1998 and Sch 1. You should note in particular that Articles 1 and 13 have not been included within the scope of Convention rights.

Part two

You must then explain what is meant by incorporation and why the European Convention had to be incorporated. To be prepared to answer this question really well you will need to read the relevant chapter of your recommended textbook and have read some of the articles reflecting the key debates in this topic.

Part three

This part of the answer you should explain scheme of the Act in the following order:
the judicial obligation to take into account all the jurisprudence of the European Court of Human Rights, which incorporates the legal principles which must be applied when considering Convention rights;
the judicial obligation to interpret statutes in a manner which is consistent with Convention rights.

You should discuss the principles developed an applied by the courts in R v A [2002]; Ghaidan v Godin-Mendoza [2004]; A and Others v Secretary of State for the Home Department [2005]:
the right to take a public body to court on the basis that it has acted in a way that is inconsistent with a Convention right under ss 6 and 7. The following cases are relevant: L v Birmingham City Council [2008]; Matthews v Ministry of Defence [2003];
remedies:
- judicial remedies - s 8. The relevant cases are: Marcic v Thames Water Utility [2004];
Anufrijeva v Southwark L BC [2004]; R v Secretary of State for the Home Department ex p Greenfield [2005];
- declarations of incompatibility - s 4. The relevant cases are: Wilson v First Country Trust Limited ( No 2 ) [2001]; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001].

Essay answer 2

This question links the subject of human rights with roles of the functions and organs of government discussed in Chapter 3. Some parts of Chapter 5 and Chapter 6 might also be useful. The answer should be broken down as follows.

Part one

Here you should concentrate on the judicial role including:
Section 2 - Here you should discuss the judicial obligation to take into account the jurisprudence of the European Court of Human Rights.
Section 3 - The obligation to interpret statutes in accordance with Convention rights is an important way of giving effect to those rights.
Sections 6 and 7 give individuals directly enforceable rights against public authorities.
In this part of the answer you need to discuss the:
meaning of public authority in s 6(3)
meaning of victim in s 7
time limits.
Section 8 - This deals with the nature and scope of judicial remedies and restricts these to the remedies already available to the courts.

You should also mention that Article 13 of the European Convention has not been incorporated by the European Convention.

In addition, your answer should include any relevant case law contained in this guide and conduct a comprehensive analysis.

Part two

Parliament: Here, you should focus on s 19 which requires a minister or sponsor of a bill to make a declaration of compatibility.

Part three

The executive: In this part of the answer, you should focus on a minister's power to make a remedial order under s 10 of the 1998 Act.