#14839 - Human Rights Constitutional Principles - Comparative Public Law

Human Rights & Constitutional Theory

EU & UK – both different from paradigm model

No constitutional bill of rights enabling JR of legislation

• UK – Commonwealth model of human rights protections

  • Sources

    • HRA – incorporates ECHR rights

    • Common law

  • Courts do not determine scope of human rights

  • Pre-legislative scrutiny for human rights

  • No “British” Bill of Rights – HRA merely implements ECHR

  • HR protection by common law

• EU –

  • Sources

    • EU Charter of Fundamental Rights & Freedoms

    • General principles of law – developed by Courts

    • (Appear to reflect each other)

  • BUT not part of EU Treaty – lost vote

  • TFEU makes clear that Charter has same status as treaties

  • Charter reflects ECHR (although adds some of its own)

  • Not a signatory to ECHR but has drafted agreement showing basis of proposed accession

  • Not a State – adds dimension – rights as against EU Institutions / EU States

    • Interpretation of rights may differ

• France

  • Moved from pre-legislative to post-legislative scrutiny

UK

HRA 1998

• Interpretive principle: s 3

  • Fairly liberally applied by reading words down/in – more liberal than Australia

  • Limit – no contradiction of ‘fundamental feature of legislation’; no contradiction of clear words

  • Still some deference where parliament better equipped – eg transgender marriages should be dealt with by Parliament

• Declarations of incompatibility: s 4

  • But discretionary: see Nicklinson v Ministry of Justice [2014] UKSC 48 (no need to make declaration – assisted suicide & right to life)

  • Declined to do so in prisoner voting – as would serve no purpose

  • “Double deference” – s 4 is already deference – no need to refrain from declaration in name of deference

    • By convention, Parliament always implements declarations – treats as strike-down – so no ‘dialogue’ – have dialogue by ‘threatening’ declaration – eg Nicklinson

  • Parliament often responds before case gets to Supreme Court

  • Riley – declaration of incompatibility made because legislation was (a) retrospective and (b) calculated to retrospectively give validity to regulations that had been struck down, while that matter was on appeal to Supreme Court Retrospective legislation struck down

    • NB – only at first instance at this stage – will go up to Supreme Court before the end of the year

• Section 6 – unlawful for public authorities to act contrary to convention rights

  • YL – definition of public authority

  • Courts included in public authorities

  • Scope – uncertain

    • Craig – new head of illegality – so Courts play primary role

    • BUT applying proportionality – marker of rationality control

    • Lord Carlisle Case (2 weeks ago)

      • Sumption LJ – Courts play secondary role

      • Majority – Courts play primary role

Common law

• Common law modifies stringency of JR when dealing with fundamental rights

  • Modify Wednesbury unreasonableness – introduction of anxious scrutiny test when dealing with fundamental rights – in Immigration cases; R v MOD; ex parte Smith

• Principle of legality – principle of interpretation – parliament not taken to intend to impinge on fundamental rights absent clear words or necessary intendment – Ex parte Simms

  • In particular in cases of legislation empowering executive bodies – legislation only confers power to act contrary to fundamental rights if clear words

  • Ahmed v HMT (Terrorist asset-freezing provisions – UN requirement for freezing legislation if “reasonably believed” – UK Statute empowered secondary legislation to implement UN obligations – Regulations went beyond UN requirement – if “suspected” Struck down on principle of legality – regulations not empowered by Statute)

    • In reaction, legislature put secondary legislation in primary legislation – made immune from challenge

• Within Supreme Court – preference for CL protections than ECHR

  • Osborne

  • Kennedy v Charity Commission [2014] UKSC 20

  • But in both cases – no protection

  • A realist approach – Insulating from HRA repeal?

EU

Charter of Fundamental Rights & Freedoms

• Includes Rights & Principles

  • Art 52 – Principles to be acted on by EU or Member States – principle in charter used to interpret the implementing measure

  • Right – can rely on in itself

  • But difficult to discern between rights & principles – some provisions might contain both

  • Generally – rights = more precise <> principles = less precise

General Principles of Law

• Developed by ECJ (CJEU)

  • From principles common to member States

  • From international instruments

• Cynical view – adapted

• Creative at times – eg non-discrimination on grounds of age in Kucukdeveci

Application

• Against EU

  • Charter & General Principles are each a head of legality in JR

  • BUT rare for ECJ to do so

    • Eg Kadi

    • Digital Rights Case (striking down directive) (NB reaction of UK was to rush through legislation putting on primary basis cf every other EU country where repealed)

• Against States

  • Liable to breaches of EU Human Rights Law when acting within sphere of EU law

    • Where implementing EU law

      • Regulations <> Directives – Directives require domestic implementation

    • Where administering EU law – eg customs officials, investigations of anti-competitive practice

    • Where enact law on subject matter covered by EU law – Kucukdeveci (non-discrimination on grounds of age)

  • EG Viking Line cases – member States derogating from free movement cases

  • Laser games cases – Germany banned laser games as contrary to human dignity – contravened EU right to movement of goods & services

    • Potentially arises in abortion cases as well – comes before ECJ as a trade dispute

  • Balancing is inversed

    • EU right = free movement promoted, least restrictive approach to that freedom necessary to protect human rights

  • Implementing <> Derogating

    • Charter says applicable when ‘implementing’

    • Interpreted as extending to derogation cases – Åklagaren

• Principles of interpretation as well

Role of Judiciary

• UK, EU & France – Judiciary plays large role in

  • Protecting HR

  • Creating HR

• UK – Judiciary <> legislature – deference & dialogue

Deference

• = election by Courts not to exercise legal power as stringently as they could // or apply same test but less stringently (eg proportionality)

  • Change the test

  • Apply test less stringently

  • Give weight to reasoning of legislature / executive

• CF France (& civil law countries) /EU – deference a foreign concept – if court has power, regards it as duty to discharge it

  • BUT signs of deference – executive actions within the bounds of reasonable definitions of human rights

    • = loose...