8. Human Rights Act 1998 Flashcards
What are the three types of convention rights incorporated by the HRA 1998?
- Absolute rights ๐ฟ
- Limited rights โ๏ธ
- Qualified rights ๐จโ๐ซ
What are absolute rights?
Rights that cannot be limited by the state, even in times of war or national emergency
๐จ
What are the absolute rights under the Convention?
- torture ๐ก๏ธ
- slavery โ๏ธ
- retrospective criminal offences ๐๐ฌ๐ง
What are limited rights?
Rights that can be limited only within the scope provided in the section which gives the right
What are the limited rights under the Convention?
- right to life ๐ถ
- Right to a fair trial โ๏ธ๐จโโ๏ธ
- Right to liberty ๐ฃ
What are qualified rights?
- right to family life ๐จโ๐ฉโ๐ง
- freedom of thought ๐ง
- freedom of expression ๐ฃ๏ธ
- freedom of assembly ๐๏ธ
Can be interfered with if:
- in law ๐งโโ๏ธ
AND
- legitimate aim ๐ฏ
AND
- proportionate ๐ค
To what extent can freedom of expression be qualified?
To the extent necessary in a democratic society to achieve the following legitimate aims:
- National security ๐ฌ๐ง
- Territorial integrity ๐ถ
- Public safety ๐
- Prevention of disorder and crime ๐
- Protection of health and morals ๐งโโ๏ธ๐
For what reasons can freedom of association be qualified?
๐ฏโโ๏ธ
- National security ๐ฌ๐ง
- Prevention of disorder and crime ๐
- Protection of health and morals ๐งโโ๏ธ๐
- Protections of rights and freedoms of others ๐๐
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?
- Object of the policy and the legitimate aim are sufficiently important to justify limiting a fundamental right โผ๏ธ
- The measure designed to meet the objective is rationally connected to it
๐๐ - The interference with the right is no more than is necessary ๐ค
- The measure is reasonable and balanced in the circumstances โ๏ธ
What are the qualified rights granted by the Protocols to the Convention?
- Right to family life ๐จโ๐ฉโ๐ง
- Right to freedom of thought๐ง
- Right to freedom of expression ๐ฃ๏ธ
- Freedom of assembly ๐๏ธ
What is judicial deference?
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
What is the margin of appreciation the UK government will argue they have when they are challenged in the courts?
That they are allowed some discretion over the extent to which a right can be restricted
What is the situation in which the government will have a wider margin of appreciation, and the situation in which it will be narrower?
Wide: If each member states to the Convention approaches the issue differently
Narrow: If there is consensus among member states about the issue
What is the courtโs approach when the (1) wider and (2) narrower margins of appreciation are applied?
- Wider: Government has much broader discretion
- Narrower: Full and detailed review by the court of the interference
What is the Living Instrument Principle and what are the three principles which stem from it?
The Convention is a living instrument and can adapt to changing social and economic conditions
- ECtHR not bound by previous decisions โ๏ธ
- ECtHR can follow an approach of some or all of the member states ๐
- ECtHR must be accessible to all ๐งโ๐ฆผ
What does it mean for a state to derogate from a Convention article?
The state is no longer required to comply with the article
๐
What rights can states derogate from?
Any, except the four absolute rights
When can a state derogate?
In the event of war or other public emergency which threatens the life of the nation
๐ช๐จ๐ฌ๐ง
What is the limit on the extent of a derogation?
A derogation must be to the extent strictly required in the situation
๐ก
What is the mirror principle?
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.
๐ช๐บ๐
๐ง ๐ถโโ๏ธ
What is required of UK courts under Section 3 of the HRA?
The courts must, so far as is possible, interpret legislation in a way that is compatible with Convention rights
๐๐งโ
When will a court make a declaration of incompatibility under Section 4
When it is not possible to interpret an act in a way which complies with the Convention under Section 3
โ
Due to parliamentary sovereignty, what is the effect of a declaration of incompatibility on the courtโs application of the offending legislation
No effect. The court must still apply the legislation
๐
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 used after a declaration of incompatibility
- Non-urgent procedure ๐ถโโ๏ธ
- Urgent procedure โผ๏ธ