Constitutional and Administrative Law - Human Rights Act 1998

Question 1

Absolute Rights

Answer 1

Cannot be limited by the state - no exceptions (Articles 2, 3, 4 and 7)

Question 2

Limited Rights

Answer 2

Can be limited only as provided in the article itself (Articles 5 and 6)

Question 3

Qualified Rights

Answer 3

Can be limited by the state in order to pursue a legitimate interest as outlined in the particular article. Restriction must be necessary - three part proportionality test used by the courts to determine necessity

Question 4

Protocols

Answer 4

Protocols to the original ECHR have created further rights

Question 5

Judicial Deference

Answer 5

More politically controversial the issue the more likely the courts, when applying the proportionality test, will defer to the government and Parliament. E.g. more likely the action will be deemed proportionate

Question 6

Margin of Appreciation

Answer 6

If there is consensus between the member states the ECtHR is likely to apply a narrow margin of appreciation. However, if each state approaches the issue differently the margin of appreciation will be much greater

Question 7

ECtHR does not bind itself

Question 8

Derogation

Answer 8

State no longer required to comply with article. Cannot derogate from Articles 2, 3, 4(1) and 7.

State can derogate in the event of war or other public emergency that threatens the life of the nation.

Question 9

HRA 1998 Section 2

Answer 9

Provides that when a UK court is dealing with a case involving Convention right the court “must take into account” any judgment of the ECtHR

Question 10

HRA 1998 Section 3

Answer 10

UK courts must interpret legislation in a way that is compatible with Convention rights, so far as it is possible to do so

Question 11

HRA 1998 Section 4

Answer 11

If it is not possible for the UK court to interpret AoP or secondary legisaltion in a way that is compatible with Convention rights the court can issue a declaration of incompatibility. Does not make the legislation invalid

Question 12

Non-Urgent Procedure

Answer 12

Remedial Order becomes law if approved by both houses. Becomes law 60 days after being laid before both houses.

Question 13

Urgent Procedure

Answer 13

Remedial Order becomes law immediately. However ceases to have effect if within 120 days either house has not passed a resolution approving the order.

Question 14

‘Victim test’

Answer 14

To bring proceedings against a public authority for breach of a human right you must have been the ‘victim’, i.e. ‘directly affected’

Question 15

Remedies

Answer 15

Court has power to grant a remedy it considers just and appropriate. Remedies are discretionary and the same remedies are available as for JR claims

Question 16

Article 14

Answer 16

A claim on the basis of discrimination can only be brought if it is attached to the breach of another Convention right. Very limited margin of appreciation

Question 17

Equality Act 2010

Answer 17

Freestanding claim of discrimination can be made under the EA 2010

Question 18

Direct Discrimination

Answer 18

Treating someone less favourably because of a protected characteristic

Question 19

Indirect Discrimination

Answer 19

Policy, practice or procedure which applies to everyone but affects a protected group unfavourably

Justification: policy is universal and a proportionate means of achieving a legitimate aim

Question 20

Domestic courts treatment of ECtHR judgments

Answer 20

The Supreme Court should follow the ECtHR judgments. Under the Human Rights Act 1998, the UK courts are required to “take into account” the case law of the ECtHR. This has been interpreted as requiring the courts to follow (or ‘mirror’) the ECtHR’s interpretation of convention rights when the point is clear and settled. Thus, in light of the ECtHR’s clear line of authority on the Article 8 provision, the Supreme Court should follow the ECtHR judgments.