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

8. Human Rights Act 1998 Flashcards

1
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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2
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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3
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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4
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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5
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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6
Q

What two rights are non-derogable?

A

1) Right to life (unless in time of war)
2) Prohibition against torture

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7
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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8
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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9
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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10
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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11
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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12
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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13
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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14
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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15
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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16
Q

What rights can states derogate from?

A

Any, except the four absolute rights

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17
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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18
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.

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19
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

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20
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

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21
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

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22
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
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23
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

24
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.

25
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

26
Q

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

A

Both Houses

27
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
28
Q

What is the test for standing to bring a claim against a public authority under the Section 6 of the HRA?

A

Claimant must be a victim of the conduct (i.e. directly affected), which is a much narrower category than the sufficient interest required to bring a general judicial review claim

29
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

30
Q

Within what time limit of the act complained of must a claim under Section 6 be brought?

A

One year

31
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 judicial review claims

32
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)

33
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

34
Q

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

A

A narrow margin of appreciation

35
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

36
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

37
Q

What is direct discrimination under the Equality Act?

A

When one is treated less favourably because of their protected status

38
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

39
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

40
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.

41
Q

What is the limitation period to bring a claim under the HRA 1998?

A

s. 7(5), HRA 1998
Proceedings must be brought within one year from the date the act complained of took place

42
Q

What does section 3 of the HRA empower courts to do?

A

in interpreting legislation, court must read and give effect to it in a manner that is compatible with ECHR.
- only so far as it is possible to do so. If this is the case, then s.4 declaration may be more appropriate.

and give effect to HRA

43
Q

What are Henry VII clauses, and how are they relevant to the HRA?

A

Such clauses allow the executive to by-pass Parliamentary procedures to repeal/replace an Act.
- in context of HRA, s.10 provides a ‘fast track’ procedure, allowing executive to pass delegate legislation to rectify any s.4 declaration of incompatibility.

44
Q

What standing is required to enforce Convention rights under the HRA?

A
  • must be a ‘victim’ of an unlawful act.
  • Personally affected, but standing may extend to family members of actual victim.

- more stringent test than the one for J.R.

45
Q

What damages may be recovered under a HRA claim?

A

modest damages only to compensate for physcial, financial injury, or loss of opportunity.
- discretionary, and no punitive/aggravated damages are available.

46
Q

Article 7, ECHR

A

Right to privacy, family life, home and correspondence
- derogable right.
- Private life - interpreted broadly, as any interference with ‘physical’ or moral intergrity.

  • Family life also broadly interpreted (ie.deportation may infrige right if it would lead to separation of family).
  • Home - extends to right to protecting situation a person is accustomed to (ie. disabled person in care home not being given an alt. accomodation when shut down) , or against intruison/invasion in home from nuisances.
47
Q

What last resort option does an aggrieved party have to enforce their Convention rights?

A

if all local remedies have been exhausted, can apply to ECtHR.
- role is to clarify interpration of relevant right, rather than provide an avenue for appeal for aggrieved parties.
- must apply within 6 months of judgement.

48
Q

What is the limitation period to bring a claim under the HRA?

A

one year

49
Q

What three points must be satisfied for a state to limit qualified rights in a HRA-compliant manner?

A

limitation must be:
1) prescribed by law
2) intended to achiever a legitimate objective
3) necessary in a democratic society + proportionate to the ends to be achieved

50
Q

What are the five ‘legitimate’ objectives a state can rely on when taking measures to limit a qualified right?

A

1) interests of public safety
2) national security
3) protection of health and morals
4) economic well-being of the country and other’s freedoms.

51
Q

What has case law concluded in relation to a defendant’s right to a fair trial in criminal proceedings, and what constitutes an unreasonable delay?

A

Eight weeks is unlikely to constitute a sufficiently long delay to trigger an Article 6 breach.

52
Q

Can Article 8, concerning the right to privacy and family life be enforced between private parties?

A

no - tenant could not use this as ground to prevent repossession of home.

53
Q

What procedure must courts follow under section 12 of the HRA when considering the right to freedom of expression?

A

Restrain from granting an injunction unless it appears that applicant will be successful at trial, and it outweighs journalistic freedom of expression under Art.10.

54
Q

What must an applicant applying for an injunction without notice satisfy the court of, where such relief may affect the right to freedom of expression?

A

That there exist compelling reasons why application should be without notice.

  • to restrain publication in newspaper before trial, must be satisfied that the applicant is likely to establish that publication should not be allowed.
55
Q

Can a legal entity have standing as a ‘victim’ under the HRA?

A

yes - so long as its rights are directly affected.

SQE1 - Public (10 decks)

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