Constitutional 6: HRA Flashcards
Which rights can be limited (how/when)?
Absolute Rights
- never limited
Limited Rights
- limited only as provided in article itself
Qualified Rights
- can be limited to achieve a legitimate interest
What are the absolute rights?
Right to life (A. 2)
Prohibition on Torture (A. 3)
Prohibition of Slavery and Servitude (A. 4)
Prohibition of Retrospective Criminal Offences (A. 7)
What are the limited rights?
Right to Liberty and Security (A. 5)
Right to a fair Trial (A. 6)
What are the qualified rights?
Right to respect for private and family life (A. 8)
Freedom of thought, conscience and religion (A. 9)
Freedom of expression (A. 10)
Freedom of Assembly and Association (A. 11)
Right to Marry (A. 12)
Prohibition of Discrimination (A. 14)
Right to Property ((A. 1)
Right to Eductation (A. 2)
Right to free elections (A. 3)
Abolition of death penalty (A. 1)
When can Right to Liberty and Security be limited?
- detention of convicted criminals by courts;
- arrest or detention of person who failed to comply with court order
- arrest or detention of person reasonably suspected of having committed criminal offences
- arrest or detention if reasonably necessary to prevent someone committing offence
- detention of person for prevention of spreading infections diseases
- detention of people with unsound mind
When can Freedom of expression be limited?
To extent necessary in democratic society to achieve legitimate aim of:
- national security
- teritorial integrity
- public safety
- prevention of disorder or crime
- protection of health or morals
When can freedom of assembly and association be limited?
Necessary to achieve legitimate aim of:
- national security
- prevention of disorder or crime
- protection of health or morals
- protection of rights and freedoms of others
What is the test for seeking if it is necessary to restrict qualified right?
Proportionality test:
- is object of policy and legitimate aim pursued sufficiently important to justify limiting fundamental right
- is the measure designed to meet objective and rationally connected to it
- is interference with right no more than necessary to accomplish objective
- is measure reasonable and balanced in all circumstances, given the competing needs of the individual and wider society
When will judicial deference be shown when deciding on proportionality?
The more politically controversial the issue the more likely courts are to defer to government
The more deference shown the less argument and evidence required to show measure is proportional
What is the margin of appreciation for HRA decisions?
If UK government is challenged by ECTHR can argue margin of appreciation
Narrow Margin
- if there is consensus amongst member states
- means ECtHR will conduct full review (proportionality and if exercised in good faith and carefully)
Wide Margin
- each state approaches it differently
-
How does precedent bind the ECtHR?
It does not
How does EcTHR consider approach followed by some or all of member states?
For margin of appreciation; or
As reason to break with precedent
When can a state derogate from HRA?
applies to some rights meaning they do not need to follow it
- does not apply to all rights
Situations
- in event of war
- in event public emergencies that threatens life of nation
Extent
- must be only to extent strictly required by situation
Which rights cannot be derogated?
Cannot Derogate from
- Right to Life
- prohibition of torture
- prohibition of slavery
- prohibition of retrospective legislation
What is the mirror principle?
When interpreting convention rights UK courts will take approach which reflects decision of ECtHR
