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SQE1 - Public > 8. Human Rights Act 1998 > Flashcards

8. Human Rights Act 1998 Flashcards

1
Q

who governs the European Convention of Human Rights (ECHR)?

A

Council of Europe - which has a considerably larger membership (not the EU)

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2
Q

why was the HRA passed?

A

to transform international law&raquo_space; directly enforceable domestic UK law (dualist state - must be passed to incorporate intl law obligations into the domestic system)

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3
Q

what are the 3 key judicial principles developed in Strasbourg, because the UK courts have a duty to take into account Strasbourg case law (s2 HRA)?

A

positive obligation
- duty on state to do all they can to prevent violation of ECHR rights by 3rd parties (eg legal sanctions, operational duties eg police to take protective measures if there is a real and immediate risk to safety; Home Office not to remove someone to another country where they will face torture and death)

margin of appreciation
- ECtHR will afford leeway to national authorities on matters which nations are better placed to decide

proportionality
- was it necessary to interfere with rights to the degree carried out?
- balance between the individual and collective (legitimate) aim
- notably qualified rights (NIADS)

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4
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A
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5
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6
Q

What are the three types of convention rights incorporated by the HRA 1998?

A
  1. Absolute rights
  2. Limited rights
  3. Qualified rights
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7
Q

What are absolute rights?

A

Rights that cannot be limited by the state, even in times of war or national emergency

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8
Q

What are the four absolute rights under the Convention?

A
  1. Right to life (except death resulting from war)
  2. Prohibition of torture
  3. Prohibition of slavery
  4. Prohibition of retrospective criminal offences
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9
Q

What are limited rights?

A

Rights that can be limited only within the scope provided in the section which gives the right

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10
Q

What are the two limited rights under the Convention?

A
  1. Right to liberty
  2. Right to a fair trial
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11
Q

What are qualified rights?

A

Rights which can be limited by the state if necessary to meet a legitimate aim provided in the particular section

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12
Q

To what extent can freedom of expression be qualified?

A

To the extent necessary in a democratic society to achieve the following legitimate aims:

  1. National security
  2. Territorial integrity
  3. Public safety
  4. Prevention of disorder and crime
  5. Protection of health and morals
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13
Q

For what reasons can freedom of association be qualified?

A
  1. National security
  2. Prevention of disorder and crime
  3. Protection of health and morals
  4. Protections of rights and freedoms of others
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14
Q

What are the four part proportionality test the court will use to determine whether a restriction on a qualified right is necessary, and therefore permitted?

A
  1. Object of the policy and the legitimate aim are sufficiently important to justify limiting a fundamental right
  2. The measure designed to meet the objective is rationally connected to it
  3. The interference with the right is no more than is necessary
  4. The measure is reasonable and balanced in the circumstances
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15
Q

What are the qualified rights granted by the Protocols to the Convention?

A
  1. Right to property
  2. Right to education
  3. Right to free elections
  4. Abolition of the dealth penality
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16
Q

What is judicial deference?

A

The more politically controversial the issue, the more likely that the courts, when applying the proportionality test, will defer to government and Parliament, with the greatest level of deference being shown to national security

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17
Q

What is the margin of appreciation the UK government will argue they have when they are challenged in the courts?

A

That they are allowed some discretion over the extent to which a right can be restricted

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18
Q

What is the situation in which the government will have a wider margin of appreciation, and the situation in which it will be narrower?

A

Wide: If each member states to the Convention approaches the issue differently
Narrow: If there is consensus among member states about the issue

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19
Q

What is the court’s approach when the (1) wider and (2) narrower margins of appreciation are applied?

A
  1. Wider: Government has much broader discretion
  2. Narrower: Full and detailed review by the court of the interference
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20
Q

What is the Living Instrument Principle and what are the three principles which stem from it?

A

The Convention is a living instrument and can adapt to changing social and economic conditions

  1. ECtHR not bound by previous decisions
  2. ECtHR can follow an approach of some or all of the member states
  3. ECtHR must be accessible to all
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21
Q

What does it mean for a state to derogate from a Convention article?

A

The state is no longer required to comply with the article

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22
Q

What rights can states derogate from?

A

Any, except the four absolute rights

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23
Q

When can a state derogate?

A

In the event of war or other public emergency which threatens the life of the nation

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24
Q

What is the limit on the extent of a derogation?

A

A derogation must be to the extent strictly required in the situation

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25
Q

What is the mirror principle?

A

When UK courts are dealing with a case involving a convention right, the court must take into account any ECtHR judgment on the issue. If there is a clear line of authority from the ECtHR, the UK court is expected to follow this.

26
Q

What is required of UK courts under Section 3 of the HRA?

A

The courts must, so far as is possible, interpret legislation in a way that is compatible with Convention rights

27
Q

When will a court make a declaration of incompatibility under Section 4

A

When it is not possible to interpret an act in a way which complies with the Convention under Section 3

28
Q

Due to parliamentary sovereignty, what is the effect of a declaration of incompatibility on the court’s application of the offending legislation

A

No effect. The court must still apply the legislation

29
Q

Whilst incompatible legislation may be repealed or amended, these processes are slow. What are the two fast-track procedures under Section 10 of the HRA?

A
  1. Non-urgent procedure
  2. Urgent procedure
30
Q

What is the non-urgent procedure under Section 10?

A

A remedial order, which allows both an Act and secondary legislation to be amended by secondary legislation which becomes law after 60 days of being published if approved by both Houses

31
Q

What is the urgent procedure under Section 10?

A

Similar to non-urgent, but it can take immediate effect if the subject matter is deemed urgent by the person making the order (usually the government).

It ceases to have effect if either House has not approved it within 120 days.

32
Q

What restriction is placed on public authorities by Section 6 of the HRA, and what is the effect of this?

A

It is unlawful for public authorities to act in a way that is incompatible with a Convention right, effectively creating an extra, statutory ground for judicial review

33
Q

Who are expressly excluded from the definition of public authority for the purposes of Section 6 of the HRA?

A

Both Houses

34
Q

What actions of a pubic authority cannot be found to be unlawful under Section 6?

A

Actions where the:

  1. Public authority could not have acted in any other way without violating the law as laid down in an Act of Parliament, or
  2. Primary legislation could not be read in a way which is compatible with the Convention and the public authority acted to give effect to the legislation
35
Q

What is the test for standing to bring a claim against a public authority under the HRA?

A

Claimant must be a victim of the conduct (directly affected), which is a much narrower category than the sufficient interest required to bring a JR claim

36
Q

What is the impact of the narrow test under the HRA from the perspective of respresentative action?

A

Groups cannot bring claims on behalf of others

37
Q

What jurisdiction is required for a claim under the HRA?

A
  • no nationality or residence requirements
  • any individual in the physical jurisdiction of the UK will be able to make a claim
  • in rare cases, jurisdiction can have an extraterritorial case (e.g., Al-Skeini - came about because of the UK’s military control over part of South Iraq)
38
Q

Within what time limit of the act complained of must a a claim under the HRA be brought?

A

1 year, although there is discretion to extend

39
Q

identity of the defendant authority under the HRA

A

Strasbourg cases are again the nation state itself, but UK cases are against a public authority:
1. Core PAs
2. Functional PAs

40
Q

what is a core PA?

A

potentially liable in all situations
- central govt depts
- local councils
- courts and tribunals
- police
- army
- immigration authorities

s6(1) - unlawful to act incompatibly with ECHR rights (subject to the s6(2) statutory defence)

41
Q

what is a functional PA?

A

liability will be found where they are doing something of a public nature (not private nature)

  • housing associations
  • nursing homes
42
Q

what is the main enforcement mechanism in domestic courts under the HRA?

A

s6(1) - it is unlawful for a PA to act incompatibly with an ECHR right

43
Q

when does the s6(2) HRA statutory defence apply?

A

if a statutory provision either obliges (by legislation) or allows (as a result of an existing statutory provision) a PA to act incompatibly

(designed not to undermine parliamentary sovereignty)

44
Q

what is required under s3 HRA?

A
  • so far as possible, legislation must be read and given effect in way which is compatible with ECHR rights
  • court power to render legislation compatible with relevant right
  • defeats statutory defence (remedy)
45
Q

what is required under s4 HRA?

A
  • court ‘may’ make a declaration of incompatibility
  • does not invalidate incompatible law, but flags the problem for minister (parliament) who should (but not must) fix
  • but the statutory defence remains effective / the claimant gets no remedy
46
Q

what can the courts do? s3 and s4 powers

A
47
Q

when is a s4 DOI more likely than s3?

A

more controversial / political / ethical issues

48
Q

summary of domestic enforcement/liability under the HRA

A
49
Q

If an action under Section 6 is successful, what remedies are at the court’s disposal?

A

Any remedy within the court’s powers that it considers just and appropriate, including damages and any remedy available for other JR claims

50
Q

What is provided by Article 14 of the Convention?

A

Freedoms and rights in the Convention shall be achieved without direct or indirect discrimination on the grounds of:

  • Sex
  • Race
  • National origin
  • Colour
  • Language
  • Political views
  • Religion
  • Birth
  • Property
  • Other status
51
Q

What is required to bring a claim under Article 14 of the Convention?

A

The claimant must be arguing a breach of another Convention right in addition (a freestanding claim under Article 14 cannot be brought)

52
Q

Does the Living Instrument Principle apply to Article 14, and what is the effect of this?

A

Yes. It means that the scope of other status under Article 14 is flexible and has been broadened (and can continually be changed) to include sexual orientation, martial status, and asylum seeker status

53
Q

What margin of a appreciation will the ECtHR grant to the state’s conduct concerning Article 14?

A

A narrow margin of appreciation

54
Q

Even though the Equality Act 2010 protects against discrimination on very similar grounds (including age) to Article 14, what is the most important difference between the two provisions?

A

A freestanding claim can be brought under the Equality Act

55
Q

If a claimant under the Equality Act is classed as a worker in an employment context, who can they bring a claim against?

A

Their employer or organisation

56
Q

What is direct discrimination under the Equality Act?

A

When one is treated less favourably because of their protected status

57
Q

What is indirect discrimination under the Equality Act?

A

A policy, practice, or procedure which applies to everyone, but which affects a protected group unfavourably

58
Q

When might such a policy not be indirect discrimination under the Equality Act?

A

If the policy is a proportionate means of achieving a legitimate aim

59
Q

What is harassment under the Equality Act?

A

When a person is subjected to unwanted behaviour which has the purpose or effect of making that person feel humiliated, degraded, or uncomfortable. Harassment can never be justified.

60
Q

what is Art 2 HRA?

A

right to life

SQE1 - Public (10 decks)

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