(Ed) New UK Bill of Rights vs. the Human Rights Act 1998

[Vixen]

Originally Posted by Captain_Swoop

Raab is introducing a new Bill OF Rights today that will allow British courts to ignore rulings from the ECHR while strengthening freedom of speech.

That should be fun.

UK courts never did bother with the Human Rights Act.

[Captain_Swoop]

Originally Posted by Vixen

UK courts never did bother with the Human Rights Act.

What is your evidence for this?

[Vixen]

Originally Posted by Captain_Swoop

What is your evidence for this?

Obviously, the HRA is enshrined in law. However, my impression from my working experience is that it is rarely used. There was one case that did use it (guy had a German-sounding name so maybe he was naive) and won. This sent shock ripples through the industry, but after a while it appeared to have been a one off and few if any used it as a case law precedent.

Saw this in today's GUARDIAN:

Quote:

Other observers said there were already signs the supreme court had become more conservative. An analysis published by the UK Constitutional Law Association comparing last year with 2020 suggested the UK’s highest court now had more of “a tendency to reject human rights claims (only two out of 18 were successful last year) and to side with public authorities”.

I dare say it may come up more in Family Law courts and other behind closed doors courts, such as Immigration Tribunals.

[Vixen]

Originally Posted by junkshop

That'd be sweet FA, then.

ETA: "guy had a German-sounding name so maybe he was naive" would you care to explain this? I mean, it sounds kinda... bigoted.

ETA2:"This sent shock ripples through the industry" what industry would that be? Does the HRA only apply one industry?

ETA 3: Shock waves. The phrase is shock waves. An insignificant (much like a ripple) point, I admit, but it was annoying me.

Insolvency practice. Selling bankrupts' houses to pay off their creditors. A bankrupt with an autistic son cited the HRA to prevent said sale and won. IP's panicking as it'd affect realising assets and indirectly impacting on professional fees should the defence become commonplace. There are a lot of fine laws enshrined in statute which are there for window dressing but rarely actually used. The perception amongst lawyers that I know of is that 'people might think you're a bit nutty if you cite the HRA'.

So the shock wave became a momentary ripple and life carried on as normal.

The industry was rocked to its foundations.

[Vixen]

Originally Posted by junkshop

That doesn't really seem to support your original claim that:


Also, I notice that you chose not to address your seemingly rather bigoted statement about the man who successfully cited the HRA. Why would having "...a German-sounding name..." lead to his being naive?

I did say it was my perception from my working experience and insider opinion (=lawyers). Maybe you can counter this perception with your own experiences/perception by citing examples of people taking other people (or corporations) citing breaches of the Human Rights Act*. I would be very happy to hear I am wrong.

*We are talking about British courts here, not the ECHR which ipso facto is about human rights.

As for the guy with the Germanic name, I am guessing it is not so unusual in Germany or wherever he hails from to cite the HRA in court.

[Mojo]

Originally Posted by Vixen

I did say it was my perception from my working experience and insider opinion (=lawyers). Maybe you can counter this perception with your own experiences/perception by citing examples of people taking other people (or corporations) citing breaches of the Human Rights Act*. I would be very happy to hear I am wrong.

*We are talking about British courts here, not the ECHR which ipso facto is about human rights.

The entire purpose of the HRA is to allow the British courts to directly apply the Convention rights without having to refer to the European Court of Human Rights, that’s where it’s going to be cited. It doesn’t actually apply to the ECHR.

I did a database search for judgments citing the HRA. It brought up nearly ten thousand.

[junkshop]

Originally Posted by Vixen

I did say it was my perception from my working experience and insider opinion (=lawyers). Maybe you can counter this perception with your own experiences/perception by citing examples of people taking other people (or corporations) citing breaches of the Human Rights Act*. I would be very happy to hear I am wrong.

*We are talking about British courts here, not the ECHR which ipso facto is about human rights...

A selection from a quick bit of googling:

R (Catt) and R (T) v Commissioner of Police for the Metropolis [2015] UKSC 9

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Liberty & Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors [2015] UKIPTrib 13 77-H

In the Matter of an Application for Judicial Review by the NI Human Rights Commission [2015] NIQB 96

Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents)

https://www.innersouthlondoncoroner....o-Kissi-Debrah

ABC (AP) (Appellant) v Principal Reporter and another (Respondents) (Scotland)

AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17
Case ID: UKSC 2019/0063

[Mojo]

Originally Posted by Vixen

As for the guy with the Germanic name, I am guessing it is not so unusual in Germany or wherever he hails from to cite the HRA in court.

You think citing a UK act in a German court wouldn’t be unusual?

[Vixen]

Originally Posted by junkshop

A selection from a quick bit of googling:

R (Catt) and R (T) v Commissioner of Police for the Metropolis [2015] UKSC 9

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Liberty & Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors [2015] UKIPTrib 13 77-H

In the Matter of an Application for Judicial Review by the NI Human Rights Commission [2015] NIQB 96

Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents)

https://www.innersouthlondoncoroner....o-Kissi-Debrah

ABC (AP) (Appellant) v Principal Reporter and another (Respondents) (Scotland)

AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17
Case ID: UKSC 2019/0063

Couldn't open the first two. One is an Investigatory Powers Tribunal (hardly an every day court open to all) and then another seems to be a Supreme Court ruling with five Lords involving a very high profile serial rapist cab driver John Worboys. Likewise, a coroners court into suspected foul play is again hardly representative. I would say these exceptions prove the rule?

[Vixen]

Originally Posted by Lothian

Over 11 thousand hits on bailii

Eleven thousand out of how many hundreds of thousands of court cases per annum?

[Vixen]

Originally Posted by Mojo

You think citing a UK act in a German court wouldn’t be unusual?

HRA is derived from the EU? At least, it was under EU Law last time I looked on the shelves.

[Lothian]

Originally Posted by Vixen

Eleven thousand out of how many hundreds of thousands of court cases per annum?

You could simply admit you are wrong rather than pretend you were referring to a proportional insignificance rather than the absolute one you were obviously refering to.

[Vixen]

Originally Posted by Lothian

You could simply admit you are wrong rather than pretend you were referring to a proportional insignificance rather than the absolute one you were obviously refering to.

How is my working experience wrong? The fact the victims of very high profile Worboys brought up the HRA as a last resort to stop him coming out on parole and in the exceptional circumstance of it going before the Supreme Court is hardly a general use of the Act is it? Tell me how many similar cases have there been of victims preventing criminals from getting parole that has already been granted? HRA is clearly a 'last resort last chance saloon' straw clutching law.

Show me a court case where Mr Jones took Mr Smith to court under the HRA because of some kind of neighbourly dispute.

[Lothian]

Originally Posted by Vixen

Show me a court case where Mr Jones took Mr Smith to court under the HRA because of some kind of neighbourly dispute.

Hey, can someone go and bring those goalpost back?

[Vixen]

Originally Posted by Lothian

Hey, can someone go and bring those goalpost back?

Specifically about Insolvency Practice, ggod luck anyone wanting to bring up a Human Rights Act defence.

Quote:

Human rights when seeking possession and sale of a bankrupt’s home: Anything to fear?

For many insolvency practitioners (in the wider sense), the European Convention on Human Rights ("ECHR") and the Human Rights Act 1998 ("HRA") are pieces of legislation having little impact upon day to day insolvency practice.

<snip>

Whilst in none of the reported insolvency cases have Article 8 defences succeeded, the full argument required in each case (including on appeal) will have caused considerable delay and expense to the estate. It is noteworthy that since Pinnock, whilst the number of Article 8 defences in possession claims has increased considerably, there still has not been a reported case where the defence has defeated the claim to possession.

Gatehouse Chambers

As I said, courts are not generally interested in the Human Rights Act. Sure there will be the high profile show case now and then.

[Lothian]

Originally Posted by Vixen

Specifically about Insolvency Practice, ggod luck anyone wanting to bring up a Human Rights Act defence.

You talked about insolvency well after the following post when you said.....

Originally Posted by Vixen

UK courts never did bother with the Human Rights Act.

And you have again gone back to your general claim

Quote:

As I said, courts are not generally interested in the Human Rights Act. Sure there will be the high profile show case now and then.

11,000 cases prove you are wrong.

[Mojo]

Originally Posted by Vixen

Specifically about Insolvency Practice, ggod luck anyone wanting to bring up a Human Rights Act defence.

Gatehouse Chambers

As I said, courts are not generally interested in the Human Rights Act. Sure there will be the high profile show case now and then.

That was specifically talking about insolvency practice, where perhaps human rights don’t come up so often. It does not support your claim that “courts are not generally interested in the Human Rights Act”.

[Mojo]

Originally Posted by Mojo

You think citing a UK act in a German court wouldn’t be unusual?

Originally Posted by Vixen

HRA is derived from the EU? At least, it was under EU Law last time I looked on the shelves.

No, it isn’t “derived from the EU”. It’s a UK statute, allowing British courts to directly apply the rights we already had as a result of the UK’s ratification of the European Convention on Human Rights.

The geographical extent of the HRA is given in section 22(6). Does it mention Germany?

[junkshop]

Originally Posted by Vixen

... I would be very happy to hear I am wrong...

Is that so?

[Mojo]

Originally Posted by Vixen

Specifically about Insolvency Practice, ggod luck anyone wanting to bring up a Human Rights Act defence.

Gatehouse Chambers

As I said, courts are not generally interested in the Human Rights Act. Sure there will be the high profile show case now and then.

Incidentally, the source you cited contradicts your claim. It says that there “has been a large volume of litigation surrounding the application of Article 8.”

[Vixen]

Originally Posted by Mojo

Incidentally, the source you cited contradicts your claim. It says that there “has been a large volume of litigation surrounding the application of Article 8.”

The fact you are free to cite HRA (it is a statute after all) doesn't mean you have any hope of winning! I bet very few of the 11,000 cases on bailii citing HRA actually won their case.

[Vixen]

Originally Posted by Mojo

That was specifically talking about insolvency practice, where perhaps human rights don’t come up so often. It does not support your claim that “courts are not generally interested in the Human Rights Act”.

I believe it does. Junk Shop, for example, could only find judgments for Northern Ireland (another jurisdiction), the Supreme Court and the Investigatory Powers Tribunal. The latter is usually held in secret (to do with security and national intelligence) and complainants aren't even allowed to attend the hearings, which are behind closed doors. As an example of one recent case, Helen Steel (MacDonald's Two) managed to bring a case action with about five or six other women, who had been duped into a relationship with an undercover cop using a fictitious personna. They were spied on because they were environmental activists. It literally took years and help from top QC, such as Keir Starmer, for these women to get any justice at all, and they had to cite the HRA as their best bet. (Read their recent book Deep Deception. The thing is these SDS undercover cops were pretty much immune from the law and the HRA was the last chance saloon for these women.

So yeah, I stand by my observation that courts are really not interested in the HRA. However, thanks to the existence of the Human Rights Act 1998, extraordinary cases with determined applicants - often crowdfunded - do manage to get justice under its auspices, usually after a long hard struggle and many disappointments.

[Mojo]

Originally Posted by Vixen

The fact you are free to cite HRA (it is a statute after all) doesn't mean you have any hope of winning! I bet very few of the 11,000 cases on bailii citing HRA actually won their case.

That doesn’t mean that the HRA wasn’t applied. In fact, if a UK court decided that a claim based on the Convention rights failed, then they applied the HRA.

Now, do you have anything to back up your claim that it is more usual to cite the HRA in German courts than it is in British courts?

[Vixen]

Originally Posted by Mojo

No, it isn’t “derived from the EU”. It’s a UK statute, allowing British courts to directly apply the rights we already had as a result of the UK’s ratification of the European Convention on Human Rights.

The geographical extent of the HRA is given in section 22(6). Does it mention Germany?

Germany has stronger individual rights than the UK (for example its privacy laws) so of course Germany has its own Human Rights enshrined.

[Mojo]

Originally Posted by Mojo

That was specifically talking about insolvency practice, where perhaps human rights don’t come up so often. It does not support your claim that “courts are not generally interested in the Human Rights Act”.

Originally Posted by Vixen

I believe it does.

Your belief doesn’t matter. It says that there has been “a large volume of litigation” applying the HRA.

[Vixen]

Originally Posted by Mojo

That was specifically talking about insolvency practice, where perhaps human rights don’t come up so often. It does not support your claim that “courts are not generally interested in the Human Rights Act”.

Insolvency Act is one were human rights comes up A LOT as these are people losing their homes, often families with children. They can plead under Article 8 all they want that their kids are in the middle of exams and how disruptive being thrown out of their homes it would be (I have seen the court papers) but it doesn't wash with the High Courts. Maybe they get an extra couple of months or so but the finding is almost invariably in favour of the insolvency professionals.

It will not get any better when Raab brings out the new Bill of Rights. If anything, it will mean the courts don't even have to bother pretending to listen.

[Mojo]

Originally Posted by Vixen

Germany has stronger individual rights than the UK (for example its privacy laws) so of course Germany has its own Human Rights enshrined.

Can you cite a single German case in which the HRA was cited? Your claim, remember, was that citing the HRA was “not so unusual” in German courts.

[Mojo]

Originally Posted by Vixen

Insolvency Act is one were human rights comes up A LOT as these are people losing their homes, often families with children. They can plead under Article 8 all they want that their kids are in the middle of exams and how disruptive being thrown out of their homes it would be (I have seen the court papers) but it doesn't wash with the High Courts. Maybe they get an extra couple of months or so but the finding is almost invariably in favour of the insolvency professionals.

If the court makes a finding relating to Article 8, then they are applying the HRA.

[Vixen]

Originally Posted by Mojo

Your belief doesn’t matter. It says that there has been “a large volume of litigation” applying the HRA.

Yes because large numbers of people naively believe they are protected by the Act and bring cases in good faith, often self-represented. The hard reality is courts aren't interested.

As another example take the EU Working Directive the 48-hour week. People routinely signed an opt-out from this even though their working hours were never more than 35 hours pw, as if 'opting out' of a law or directive gives it any power. This tells you the attitude of the establishment towards these 'rights' which may be enshrined in law but good luck bringing it to court and winning!

[Vixen]

Originally Posted by Mojo

If the court makes a finding relating to Article 8, then they are applying the HRA.

As the Gatehouse Chambers page brags, none have succeeded in their Article 8 submission. There was just one case that I know of and that was that little autistic boy. The industry was in a panic (urgent legal emails doing the rounds).

None since.

[Vixen]

PS I can see that given the 'fury' and 'outrage' in the Murdoch/Barclay/Rothermere press of 'all these people' abusing the Human Rights Act (like the Hamzda guy) people are under the impression that the HRA is being abused - most recently in respect of the Rwanda deportations case - and therefore needs to be clamped down. A bit like their misrepresentation of the unemployed and benefits claimants as a bunch of lazy greedy scroungers.

[junkshop]

Originally Posted by Vixen

I believe it does. Junk Shop, for example, could only find judgments for Northern Ireland (another jurisdiction), the Supreme Court and the Investigatory Powers Tribunal...

All of these are UK courts. You never specified English courts, you specified UK and British.


Oh, and it's 'junkshop'. One word, no capitals.

[Mojo]

Originally Posted by Vixen

As the Gatehouse Chambers page brags, none have succeeded in their Article 8 submission. There was just one case that I know of and that was that little autistic boy. The industry was in a panic (urgent legal emails doing the rounds).

None since.

That just means that the courts have largely found that Article 8 of the ECHR doesn’t apply in insolvency cases. It doesn’t mean that they disapprove of the HRA.

I think the problem here is that you don’t know what the HRA does.

ETA: Also, your claim that it can be cited in German courts rather implies that you don’t know what it is.

[Vixen]

Originally Posted by Mojo

That just means that the courts have largely found that Article 8 of the ECHR doesn’t apply in insolvency cases. It doesn’t mean that they disapprove of the HRA.

I think the problem here is that you don’t know what the HRA does.

ETA: Also, your claim that it can be cited in German courts rather implies that you don’t know what it is.

Theft and murder can be cited in German law. The Human Rights Act is pretty much ubiquitous around the EU. I doubt far right countries such as Hungary or Poland take it any more seriously than the UK does. There are plenty of laws that are never applied in reality but are there as window dressing.

[Mojo]

Originally Posted by Vixen

PS I can see that given the 'fury' and 'outrage' in the Murdoch/Barclay/Rothermere press of 'all these people' abusing the Human Rights Act (like the Hamzda guy) people are under the impression that the HRA is being abused - most recently in respect of the Rwanda deportations case - and therefore needs to be clamped down.

They seem to share your misconceptions about the HRA.

[junkshop]

Originally Posted by Vixen

...The Human Rights Act is pretty much ubiquitous around the EU...

No, it's not.

[Mojo]

Originally Posted by Vixen

Theft and murder can be cited in German law.

But not the Theft Act or the Homicide Act.

Quote:

The Human Rights Act is pretty much ubiquitous around the EU.

As I said, you clearly don’t know what it is.

Quote:

I doubt far right countries such as Hungary or Poland take it any more seriously than the UK does.

The question of whether Hungary or Poland take the HRA seriously doesn’t arise, for reasons that would be obvious if you knew what it does or what it is.

Quote:

There are plenty of laws that are never applied in reality but are there as window dressing.

The HRA is applied every time a UK court makes a decision about the Convention rights.

[Vixen]

Originally Posted by Mojo

But not the Theft Act or the Homicide Act.




As I said, you clearly don’t know what it is.




The question of whether Hungary or Poland take the HRA seriously doesn’t arise, for reasons that would be obvious if you knew what it does or what it is.




The HRA is applied every time a UK court makes a decision about the Convention rights.

As I said, my working experiences and insider knowledge from working lawyers is that courts simply are not interested in the HRA. This is because if you bring a case citing HRA you will invariably fail.

[junkshop]

Originally Posted by Vixen

...if you bring a case citing HRA you will invariably fail.

This is incorrect.

[Vixen]

Originally Posted by junkshop

This is incorrect.

Do read the Chambers page I cited which proclaims Article 8 claims have never succeeded since Pinnock.