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
How does the ECHR effect UK courts? What must they do?
They must so far as possible interpret legislation in way that is compatible with convention rights
If not possible
- make declaration of incompatibility
- but does not invalidate so must still apply legislation
How can a declaration of incompatibility be corrected?
Non-Urgent Matters
- fast track method allows it to be amended by secondary legislation
- can be used for primary and secondary legislation
Urgent
- if seen as urgent by relevant minister
- can be amended immediately and take effect immediately
What are the rules of the urgent / non urgent methods to correct declaration of incompatibly?
Non-Urgent
- takes effect after being laid before both houses for 60 days
- if no house disapproves in that time
Urgent
- takes effect immediate
- repealed if both houses don’t pass resolution in favour in 120 days
What the duty of public authorise to HRA?
s. 6 makes it unlawful for them to act in way incompabilty with HRA
- Otherwise subject to judicial review
Does not include
- House of Commons and house of Lorde
Applies to
- court, tribunal
- any person whose function is public in nature
- secretaries of state
- local authorities
When do public authorise not have to act in accordance with HRA?
If they could not have acted in any other way without violating AoP
If primary legislation could not have been interpreted in way that did not breach HRA and they acted to give effect to that legislation
process for bringing claim for breach of HRA against a public authority?
Different standing test and time limit to normal JR
Standing
must be a victim directly affected by the alleged unlawful act
- no representative standing by interest groups
Time Limit
- one year of when act took place
What are the remedies available for bringing HRA claim against public body?
court can grant remedy at own discretion
- that is within their power (may include damages otherwise same as JR)
- is just and appropriate
What are the rules for brining HRA claims for discrimination?
Can only be brought if it is attached to breach of another convention right and be against pubic body
If freestanding should bring it under Equality Act
What counts as discrimination under HRA? What is the margin of appreciation?
- sex
- race
- national origin
- sexual orientation
- marital status
- asylum seeker status
Very narrow margin of appreciation given to member states
What is prohibited under the Equality Act?
Direct discrimination
Indirect discrimination
- unless universal and proportionate means of achieving legitimate aim
Harassment
- unwanted behaviour which has purpose or effect of making person feel humiliated, degraded or uncomfortable
- cannot be justified
Victimisation
- person is penalised for having made their own complaint of discrimination or for helping another person with a complaint
What is section 6 of HRA?
That judicial review claims for breach of HRA can only be used against public bodies
