Repealing The HRA & Withdrawing from ECHR

Jamie Roberts
Mind Map by Jamie Roberts, updated more than 1 year ago
Jamie Roberts
Created by Jamie Roberts over 6 years ago
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Mind Map on Repealing The HRA & Withdrawing from ECHR, created by Jamie Roberts on 05/11/2015.

Resource summary

Repealing The HRA & Withdrawing from ECHR
  1. ECHR
    1. The Convention was created in 1949 after the formation of the Council of Europe influenced by Churchill and and the aftermath of WW2 in 1946
      1. The UK signed and ratified the convention in 1951. It came into force in 1953
        1. The Uk in 1966 accepted the Strasbourg courts jurisdiction. This allowed individuals to petition to ECoHR if they believed their rights had been breached.
          1. The judges in The European Court of Human Rights in Strasbourg are experts of their states Jurisdiction and represent individually and not of Public Interest.
            1. FOR A CLAIM TO BE ADMISSIBLE
              1. Exhausted all domestic remedies
                1. complaint submitted less than 6 month since final judgement
                  1. Complaint must be identifiable. must be a State and NOT an individual: ARTICLE 25
                    1. Complaint must not have already been deliberated on by the court
                      1. The complaint must not be manifestly ill-founded (no grounds)
            2. ARTICLE 46: States must abide by the final judgement of the ECoHR. However the ECoHR only directs the state e.g.: UK to amend the law which the complaint is being brought agains. It is however up to the state and Parliament to decide whether to amend, abolish or take no actions. This can become a political issue
              1. Issues of Parliamentary Sovereignty? wanting total power
                1. Problems with the widespread diversity of the ECoHR is the culture and religious views taken into account on the nature of decisions.
            3. The convention contains both substantive and procedural rights of the people of the states
              1. SUBSTANTIVE RIGHTS
                1. substantive rights are defining rights of the people of the state such as ARTICLE 2: RIGHT TO LIFE
                2. PROCEDURAL RIGHTS
                  1. procedural rights seek to ensure the fairness of the substantive enforcement such as ARTICLE 3 PROTOCOL 1: RIGHT TO ELECTIONS
                    1. If there are any new protocols implemented the state must again sign and ratify.
              2. Pre 1998 HRA
                1. The state would take a civil liberties approach to the people of the state. These civil liberties are defined in our common law as our sates constitution is uncodified.
                  1. "an individuall is free to do what the law does not prohibit" - Entick v Carrington
                    1. Civil Liberties are to protect the citizens from the government acting ULTRA VIRES
                  2. When the common law was unclear to the courts the ECHR shown clarity.
                    1. Before the introduction of HRA the UK saw a series of embarrassing losses in cases brought to the Strasbourg court against the state.
                      1. It was hugely cost affective to bring an action against a state having to go straight to ECoHR
                    2. As Parliament is our Legislative, our current executive, the political party that governs our state dominates our legislator. If Parliament is dominated by the executive and parliament has total law making power, this puts crisis on our constitution as people who did not vote for the political party in government will be controlled by their sovereignty.
                      1. RULE OF LAW
                        1. Parlament can make or un-make any law. repealing statutes like HRA will cause a constitutional crisis
                        2. HRA 1998
                          1. The HRA was created to "bring the rights home" to the people of the UK. The act protects PARLIAMENTARY SOVEREIGNTY
                            1. The act allowed the UK courts to hear a claim for breach of rights and not have to go directly to the Strasbourg Court.
                              1. Parliament have the ability to change the rights in the HRA
                                1. It is up to Parliament to decide whether amend a statute so that it is compatible with HRA
                                2. The Act shows it's importance in that every other statute must be compliant with the act. Since the UK's constitution is unwritten it seems to show the significance of the rights of the people in this act. Makes the rights of the people directly acsessable
                                3. Section 2: Interpretation of Convention Rights
                                  1. a court or tribunal when dealing with an issue of a convention right must take into account the jurisprudence of The ECoHR in Strasbourg
                                    1. The "Mirror Principle" means that UK courts should follow clear and constant case law from Strasbourg. however this concept is open to criticism as does this find the UK court taking into account matters from old case law into modern issues. Constitution evolves and modernises
                                      1. Positive: To avoid cases going to ECoHR
                                        1. Why would government not want this?
                                        2. Section 3: Interpretation of Legislation
                                          1. Primary and Subordinate legislation must insure that it is compatible with convention rights
                                            1. This section provides the UK courts with new and extended powers of interpretation and the potential to invalidate previously accepted interpretations of statues without recourse to the Convention.
                                            2. Section 4: Declaration of Incompatibility
                                              1. If legislation is found by the court to be incompatible with convention rights the court can file for a declaration of incompatibility under Section 4 of the Act.
                                                1. Mendoza v Ghaidan
                                                  1. The case concerned the right to tenancy takeover from his deceased homosexual partner. the Rent Act's language read that the spouse is a husband or wife and gave no reference to same sex couples as true partnerships. COULD THE ACT BE INTERPRETED TO MEAN SAME SEX
                                                    1. The act was found by the HOL's to be incompatible with ARTICLE 8: RIGHT TO PRIVATE AND FAMILY LIFE in conjunction with ARTICLE 14: RIGHT TO NON DISCRIMINATION. The rent act was then amended.
                                                      1. Lord Millet's dissenting view on misjudgement of the case shows how he believed the courts where acting beyond their powers "JUDICIAL ACTIVISM" as filing for incompatibility was going against the separation of powers and parliamentary sovereignty. The courts should find incompatibility and leave it to parliament to decide to amen the Rent Act rather than use section 3 of HRA which interferes.
                                                        1. Removing the HRA will delete the ability for Section 4 Declaration of Incompatibility. Cannot challenge the state for breach of rights with the convention as they will opt out of this convention too.
                                                          1. Contempoary issue of current Tory government wanting to hold referendum on leaving EU
                                                            1. Scrapping the HRA and replacing with a Bill of Rights would make Parlimentary Suprememecy more absolute as at the moment there is a foreign court having an influence over our legislator e.g.: Section 2 and Section 3
                                                              1. The ECHR is an old document that doesn't address contempoary issues such as welfare
                                                                1. The articles of the ECHR also tend to cause contradictions. A problem that arises with Investigative Journalism is the conflict ion of ARTICLE 8: RIGHT TO PRIVATE AND FAMILY LIFE and ARTICLE 10: RIGHT TO EXPRESSION this has shown an issue in the Naomi Campbell case.
                                                                  1. Scrapping the act however would lead to citizens having to go straight to Strasbourg for actions against breach of rights as courts in Uk could not deliberate.
                                                                    1. Leaving the ECHR would cause constitutional crisis of matters such as JUDICIAL REVIEW how would the citizens of the state bring an action against a public body. Parliament would been seen to have total power over the state and acting ULTRA VIRUS.
                                            3. When critising the HRA you must look at it's effectiveness to the people of the state and what the impact of repealing it would have
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