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 ๐Ÿ—ฟ
  2. Limited rights โš–๏ธ
  3. Qualified rights ๐Ÿ‘จโ€๐Ÿซ
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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
๐Ÿšจ

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3
Q

What are the absolute rights under the Convention?

A
  1. torture ๐Ÿ—ก๏ธ
  2. slavery โ›“๏ธ
  3. retrospective criminal offences ๐Ÿ‘ˆ๐Ÿ‡ฌ๐Ÿ‡ง
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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 limited rights under the Convention?

A
  • right to life ๐Ÿ‘ถ
  • Right to a fair trial โš–๏ธ๐Ÿ‘จโ€โš–๏ธ
  • Right to liberty ๐Ÿฃ
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6
Q

What are qualified rights?

A
  • right to family life ๐Ÿ‘จโ€๐Ÿ‘ฉโ€๐Ÿ‘ง
  • freedom of thought ๐Ÿง 
  • freedom of expression ๐Ÿ—ฃ๏ธ
  • freedom of assembly ๐ŸŸ๏ธ

Can be interfered with if:
- in law ๐Ÿง‘โ€โš–๏ธ
AND
- legitimate aim ๐ŸŽฏ
AND
- proportionate ๐Ÿค

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7
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 ๐Ÿ‡ฌ๐Ÿ‡ง
  2. Territorial integrity ๐Ÿ›ถ
  3. Public safety ๐Ÿ›Ÿ
  4. Prevention of disorder and crime ๐Ÿš“
  5. Protection of health and morals ๐Ÿง‘โ€โš•๏ธ๐Ÿ†
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8
Q

For what reasons can freedom of association be qualified?

๐Ÿ‘ฏโ€โ™€๏ธ

A
  1. National security ๐Ÿ‡ฌ๐Ÿ‡ง
  2. Prevention of disorder and crime ๐Ÿš“
  3. Protection of health and morals ๐Ÿง‘โ€โš•๏ธ๐Ÿ†
  4. Protections of rights and freedoms of others ๐Ÿ‘‰๐Ÿ˜€
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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 โ€ผ๏ธ
  2. The measure designed to meet the objective is rationally connected to it
    ๐Ÿ‘‰๐Ÿ‘ˆ
  3. The interference with the right is no more than is necessary ๐Ÿค
  4. The measure is reasonable and balanced in the circumstances โš–๏ธ
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10
Q

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

A
  1. Right to family life ๐Ÿ‘จโ€๐Ÿ‘ฉโ€๐Ÿ‘ง
  2. Right to freedom of thought๐Ÿง 
  3. Right to freedom of expression ๐Ÿ—ฃ๏ธ
  4. Freedom of assembly ๐ŸŸ๏ธ
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11
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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12
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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13
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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14
Q

What is the courtโ€™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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15
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 โ›“๏ธ
  2. ECtHR can follow an approach of some or all of the member states ๐ŸŒŽ
  3. ECtHR must be accessible to all ๐Ÿง‘โ€๐Ÿฆผ
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16
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

๐ŸŽ‰

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17
Q

What rights can states derogate from?

A

Any, except the four absolute rights

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18
Q

When can a state derogate?

A

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

๐Ÿช–๐Ÿšจ๐Ÿ‡ฌ๐Ÿ‡ง

19
Q

What is the limit on the extent of a derogation?

A

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

๐Ÿ˜ก

20
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.
๐Ÿ‡ช๐Ÿ‡บ๐Ÿ‘‘

๐Ÿง ๐Ÿšถโ€โ™‚๏ธ

21
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

๐Ÿ“–๐Ÿงโœ…

22
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

โŒ

23
Q

Due to parliamentary sovereignty, what is the effect of a declaration of incompatibility on the courtโ€™s application of the offending legislation

A

No effect. The court must still apply the legislation

๐Ÿ™„

24
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 used after a declaration of incompatibility

A
  1. Non-urgent procedure ๐Ÿšถโ€โ™‚๏ธ
  2. Urgent procedure โ€ผ๏ธ
25
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

๐Ÿ“–

26
Q

What is the urgent procedure under Section 10?
โ€ผ๏ธ

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). ๐Ÿšจ

It ceases to have effect if either House has not approved it within 120 days.
โฑ๏ธ

27
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

๐Ÿ‘ฎ

28
Q

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

A

Both Houses

๐ŸŽฉ๐ŸŽฉ

29
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,
    ๐Ÿคน๐Ÿคทor
  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
    ๐Ÿง๐Ÿ“–โŒ
30
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

๐Ÿค•

31
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

โŒ

32
Q

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

A

One year

33
Q

If an action under Section 6 is successful, what remedies are at the courtโ€™s disposal?

A

Any remedy within the courtโ€™s powers that it considers just and appropriate, including damages and any remedy available for other judicial review claims

34
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 ๐Ÿ†
  • Race ๐Ÿƒโ€โ™‚๏ธ
  • National origin ๐Ÿ‡ซ๐Ÿ‡ฒ
  • Colour ๐Ÿ–๏ธ
  • Language ๐Ÿ—ฃ๏ธ
  • Political views ๐Ÿคฌ
  • Religion ๐Ÿง”โ€โ™€๏ธ
  • Birth ๐Ÿง‘โ€๐Ÿผ
  • Property ๐Ÿก
  • Other status
35
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)

๐Ÿ‘ˆ๐Ÿ‘‰

36
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.

๐Ÿ–๏ธโ€ฆ..๐Ÿคš

37
Q

What margin of a appreciation will the ECtHR grant to the stateโ€™s conduct concerning Article 14?

A

A narrow margin of appreciation

38
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

39
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

๐ŸŽฉ

40
Q

What is direct discrimination under the Equality Act?

A

When one is treated less favourably because of their protected status

41
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

42
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

๐ŸŽฏ

43
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.

44
Q

On what grounds can qualified rights be breached?

A

Interference was:
- in law
AND
- legitimate aim
AND
- proportionate