Constitutional law 4 - HR Flashcards
1
Q
Does common law comprehensively protect rights and liberties?
A
No, it provides a mixed and complex protection—not comprehensive, but not absent either.
2
Q
What principle was established in Entick v Carrington (1765)?
A
The executive needs clear legal authority to act coercively against individuals.
3
Q
What principle was established in Beatty v Gillbanks (1882)?
A
People acting lawfully cannot be stopped just because others may react unlawfully.
4
Q
What happened in Kaye v Robertson (1991)?
A
The court could not prevent the publication of photos taken of an unconscious patient because privacy was not a recognized common law right.
4
Q
What key principle comes from R v Home Sec, ex p Simms (2000)?
A
Principle of legality – Parliament must use clear words if it intends to override fundamental rights.
5
Q
What principle was emphasised in R (Daly) v Home Sec (2001)?
A
Proportionality – Courts must closely scrutinise the balance between individual rights and state actions.
5
Q
Has Brexit affected the UK’s membership in the Council of Europe?
A
No. The UK is still a member and bound by the ECHR.
6
Q
What did the HRA 1998 change with the ECHR?
A
It made ECHR rights directly enforceable in UK courts and required courts to interpret laws compatibly with the ECHR.
7
Q
Can UK courts strike down legislation that breaches the ECHR?
A
No, they can only issue a declaration of incompatibility — Parliament remains sovereign.
8
Q
What is an absolute right?
A
A right that cannot be limited or interfered with under any circumstances.
8
Q
Name four absolute rights under the ECHR.
A
Art 3 (torture), Art 4(1) (slavery), Art 7 (retrospective punishment), Art 2 (right to life – with exceptions).
9
Q
What is a qualified right?
A
A right that can be limited if certain legal conditions are met.
10
Q
Which articles contain qualified rights?
A
Arts 8–11: privacy, religion, expression, and assembly.
11
Q
What are the three conditions to lawfully limit a qualified ECHR right?
A
Prescribed by law
Necessary in a democratic society
Pursuing a legitimate aim
12
Q
What are the three limbs of proportionality?
A
Rational connection
Least intrusive means
Fair balance
13
Q
What does it mean that the ECHR is a “living instrument” and Which case established the living instrument doctrine?
A
It is interpreted in light of modern conditions and standards, not frozen in the 1950s.
Tyrer v UK (1978)
14
Q
What is the margin of appreciation?
A
A doctrine allowing national authorities discretion in how they apply ECHR rights.
15
Q
Why does the ECtHR use the margin of appreciation?
A
To respect national decision-making and democratic legitimacy, especially on moral or cultural issues.
16
Q
What did Lord Steyn establish in Daly about proportionality at common law?
A
That courts must decide for themselves whether interference with a basic right is proportionate; it’s a matter of law.
17
Q
How is “necessary in a democratic society” interpreted?
A
As requiring proportionality – per Sunday Times v UK (1979).
18
Q
What are the three proportionality tests from Bank Mellat v HM Treasury (No 2)?
A
Rational connection
Least intrusive means
Fair balance between individual rights and public interest
18
Q
What three questions should be asked when applying proportionality?
A
Is there a rational connection?
Is this the least intrusive means?
Has a fair balance been struck?
18
Q
Who decides if an interference is proportionate?
A
The courts – it’s a question of law, not policy (see Daly and Sunday Times).
19
Q
What did ECtHR rule in Animal Defenders v UK (2013)?
A
Upheld the ban (9–8), agreeing it was proportionate.
TV advertising is expensive form of communication.
Money corrupts, it protected other’s article 10 rights.
20
What was challenged in Nicklinson?
The blanket ban on assisted suicide under the Suicide Act 1961.
21
How did the UKSC rule in Nicklinson?
No declaration of incompatibility, but the court split three ways (Neuberger, Sumption, and Hale camps).
22
What did the Neuberger camp argue in Nicklinson.
Courts could issue a declaration, but should defer to Parliament for now due to complexity and past consideration.
23
What did the Sumption camp argue in Nicklinson
The issue is a policy question for Parliament, not a legal issue for the courts.
24
What did The Hale camp argue in Nicklinson?
The Suicide Act should be declared incompatible with Art 8.
25
What does s. 3 of the HRA require courts to do?
Courts must interpret legislation in a way that is compatible with Convention rights, "so far as it is possible to do so."
26
What does s. 4 of the HRA allow courts to do?
Courts can declare legislation incompatible with Convention rights, issuing a "Declaration of Incompatibility."
27
What does s. 6 of the HRA say about public authorities?
It is unlawful for a public authority to act in a way that is incompatible with a Convention right.
28
What does s. 2 of the HRA require UK courts to do regarding ECtHR case law?
UK courts must take into account relevant ECtHR case law.
29
What does s. 3 of the HRA require courts to do?
Courts must interpret legislation in a way compatible with Convention rights, even if it requires departing from the plain meaning of the text.
30
What did Lord Nicholls state in Ghaidan v Godin-Mendoza regarding s. 3 HRA?
Courts may depart from the unambiguous meaning of legislation to comply with Convention rights (para 30).
31
How did Lord Nicholls describe Parliament’s intent in relation to s. 3?
Parliament did not intend for courts to adopt meanings inconsistent with fundamental features of legislation.
32
What was Lord Nicholls' majority position in Ghaidan v Godin-Mendoza?
Courts may interpret legislation in a way that alters its meaning to comply with Convention rights, even if it goes beyond ordinary interpretation principles.
33
What are some arguments against s. 3?
The interpretative power breaches the separation of powers by allowing courts to re-write statutes, and s. 3 should be used more liberally.
34
What is the effect of a "Declaration of Incompatibility" (DoI) under s. 4?
A DoI does not affect the validity or enforcement of the law in question (s. 4(6)).
35
What does the Ullah principle require UK courts to do?
UK courts must take into account relevant ECtHR case law and generally follow "clear and constant" Strasbourg decisions.
R (Ullah) v Special Adjudicator [2004] UKHL 26.
36
What was the dispute in R v Horncastle and how did the UKSC respond?
Whether admitting a statement as sole evidence in a criminal trial violated the Art 6 right to a fair trial.
The UKSC disagreed with the ECtHR, qualifying the Ullah principle and allowing for exceptions when Strasbourg decisions do not account for domestic processes.
37
What did Manchester CC v Pinnock reaffirm about the Ullah principle?
UK courts should usually follow ECtHR decisions, but they are not bound to do so if there are valid reasons to depart from them.
38
Under what circumstances will UK courts depart from ECtHR case law?
If there is a "clear and constant" line of decisions that is inconsistent with fundamental UK law or misunderstanding of key principles.
39
What is the "European" problem associated with the HRA?
The HRA incorporates European human rights, leading to skepticism, especially post-Brexit, about European influence on UK law.
40
How does the HRA compare to human rights laws in other countries?
Similar to Canada's Charter of Rights and Freedoms (1982) and New Zealand's Bill of Rights Act (1990), with proportionality (Oakes test) being a shared concept.
41
Has the HRA introduced judicial supremacy in the UK?
No, while there has been a shift in power, it has not led to judicial supremacy like in the US. Courts still respect parliamentary sovereignty.
41
What is the debate about who gets to decide in the context of the HRA?
It concerns whether courts or Parliament should decide on issues like deportation and disruptive protests, with both institutions engaging in a "dialogue."
42
How has the HRA re-calibrated the separation of powers?
It has shifted the balance between Parliament and the courts, fostering a "dialogue" where both engage in the constitutional process.
42
What is the "Catgate" scandal and its significance?
A case where Theresa May tried to deport a Brazilian man based on an incorrect claim about a cat statue. The case highlighted the balance between immigration law and human rights, with courts asserting the proportionality of decisions.
43
What was the significance of Attorney General v Times Newspapers [1974] AC 273?
The case involved an injunction preventing publication due to a potential risk of prejudicing legal proceedings. The ECtHR later ruled that this was a disproportionate interference with freedom of expression (Sunday Times v UK, 1979).
44
What was the result of Attorney General v Guardian Newspapers [1987] 1 WLR 1248 (Spycatcher case)?
The House of Lords upheld an injunction against the UK press to prevent publication of information from Spycatcher based on breach of duty of confidence to the Crown. The ECtHR later ruled that the injunction was a disproportionate interference with Art 10 freedom of expression (Observer and Guardian v UK, 1992).
45
What was the ruling in Derbyshire CC v Times Newspapers [1993] AC 534?
The House of Lords ruled that local authorities could not sue for defamation, emphasizing the importance of protecting freedom of speech. This marked a progression in recognizing the right to free expression in common law.
46
What was the significance of Reynolds v Sunday Times [2001] 2 AC 127?
The case emphasised that in libel cases involving responsible journalism, freedom of expression must be given significant weight.
Extended qualified privilege to responsible journalism on matters of public interest.
qualified privilege for the media when publishing material that is:
In the public interest, and
The product of responsible journalism.
47
What is the impact of the Official Secrets Act 1989, s. 1?
It makes it an offence for members of the security services to disclose any information or documents without authority, carrying up to 10 years in prison. The ECtHR upheld this as not disproportionate interference with freedom of expression (R v Shayler, 2003).
48
What principle did Lord Nicholls emphasize in Reynolds v Times?
Lord Nicholls emphasized that any curtailment of freedom of expression must be justified by a compelling countervailing consideration and be proportionate to the intended goal.
49
How did common law evolve in protecting free speech?
Common law was initially slow in protecting free speech, but over time, it has aligned more closely with human rights law, as seen in cases like Reynolds and Derbyshire, recognizing the importance of freedom of expression.
50
What is the core principle of Article 10 of the European Convention on Human Rights (ECHR)?
Article 10 guarantees the right to freedom of expression, including the right to hold opinions and share information without interference from the government. However, this right can be restricted for specific reasons like national security, public safety, or the protection of others' rights.
51
What key point did the ECtHR make in Handyside v UK (1976) regarding freedom of speech?
The ECtHR stated that freedom of expression includes not just "inoffensive" or "indifferent" ideas, but also those that may offend, shock, or disturb. This underscores the importance of pluralism and tolerance in a democratic society.
52
What does the ECtHR ruling in Handyside v UK suggest about offensive speech?
The ECtHR emphasized that freedom of speech must extend to offensive, shocking, or disturbing words. It highlighted the distinction between offensive speech and criminal "hate speech," which should not be treated the same.
53
What was the outcome of Sunday Times v UK (1979) and Observer and Guardian v UK (1992) in relation to UK laws?
These cases are examples of ECtHR rulings against the UK, where the court found that the UK's restrictions on freedom of speech violated Article 10 of the ECHR.
54
How does the Human Rights Act 1998 (HRA) Section 12(4) relate to freedom of expression?
Section 12(4) of the HRA emphasizes that courts must give particular regard to the importance of the Convention right to freedom of expression, particularly in cases involving the media.
55
How did the HRA impact the right to privacy, especially in the media?
Before the HRA, there was no general right to privacy in common law (e.g., Kaye v Robertson). The HRA led to more legal protection for privacy, creating a tension with the right to free speech, particularly in the press.
56
What was the significance of Campbell v MGN [2004] UKHL 22?
The case marked a shift in privacy law, expanding the breach of confidence doctrine to include a "reasonable expectation of privacy," a concept influenced by the HRA. The case involved a celebrity's privacy against press intrusion, balancing it with freedom of expression.
57
What did the UKSC rule in PJS v News Group Newspapers [2016] UKSC 26 regarding privacy?
The UKSC granted an injunction preventing the press from publishing details of an affair, based on the reasonable expectation of privacy. This case highlighted the ongoing tension between privacy and freedom of expression.
58
What was the outcome of Bloomberg v ZXC [2022] UKSC 5?
The UKSC ruled that ZXC, a businessman accused of wrongdoing, had a reasonable expectation of privacy regarding the investigation into him, preventing Bloomberg from reporting until he was formally charged.
59
What does the Communications Act 2003, s. 321 say about political advertising?
It imposes a blanket ban on political advertising on broadcast media, which was upheld in R (Animal Defenders International) v Sec of State (2008) and Animal Defenders Int'l v UK (2013).
60
How did the case of R (ProLife Alliance) v BBC [2003] UKHL 23 address political speech?
The House of Lords ruled that the BBC was justified in censoring a pro-life party's political broadcast because it was deemed offensive, despite the party's argument that this was a restriction on political speech protected by Section 12 of the HRA.
61
What did Lord Steyn say about freedom of speech in R v Home Sec, ex p Simms [2002] 2 AC 115?
Lord Steyn described freedom of speech as "the lifeblood of democracy," emphasizing its role in public debate, accountability, and the exposure of errors in government.
62
What did Lord Bingham state about freedom of speech in R v Shayler [2002] UKHL 11?
Lord Bingham argued that democratic government cannot function without the free flow of information and public debate, which ensures that government acts for the people.
63
What did Lady Hale say about political speech in Campbell v MGN [2004] UKHL 22?
Lady Hale emphasized that political speech, as the exchange of information on matters important to the social, economic, and political life of the country, is vital in any democracy.
64
What is the tension between privacy and free speech in UK case law?
In several cases like PJS v News Group Newspapers and Bloomberg v ZXC, UK courts have increasingly expanded privacy protections, sometimes at the cost of limiting freedom of expression, showing the uneasy balance between these two fundamental rights.
65
What does Article 11 of the ECHR guarantee?
Article 11 ECHR guarantees the right to freedom of peaceful assembly, with restrictions only allowed when necessary for national security, public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
66
What case established that lawful actions cannot be stopped because of the unlawful actions of others?
Beatty v Gillbanks (1882) established that lawful actions, such as the Salvation Army's marches, cannot be stopped because of the unlawful actions of others (like the Skeleton Army).
67
In Moss v McLachlin (1985), why was police action upheld as lawful during the miners' strike?
The police acted to prevent a breach of the peace during the miners' strike, and the intervention was deemed reasonable as there was a real threat of public disorder.
68
In Duncan v Jones (1936), why was D convicted for addressing a crowd?
D was convicted for obstructing a police officer when she continued to address a crowd after being warned. The police had reasonably apprehended a breach of the peace, thus limiting her right to assembly.
69
What principle did Redmond-Bate v DPP (2000) address regarding police intervention in peaceful assembly?
Redmond-Bate v DPP (2000) emphasized that police intervention in preventing a breach of the peace is lawful only if the officer reasonably apprehends an imminent breach and the intervention is proportionate.
70
What was the key issue in R (Laporte) v Chief Constable Gloucestershire (2006)
The case involved police stopping protesters on their way to a US Air Force base to prevent potential violence. The UKHL ruled that the police acted unlawfully by preventing the protest before a breach of the peace became imminent, highlighting the importance of proportionality.
71
Q: What was the outcome of Austin v MPC (2009) regarding "kettling" protesters?
In Austin v MPC (2009), the UKHL upheld the police's decision to "kettle" protesters, ruling that their actions were not in breach of Article 5 ECHR (right to liberty) due to the volatile and dangerous situation.
72
What does the Public Order Act 1986 criminalise?
The Public Order Act 1986 criminalizes violent actions such as riot (s.1), violent disorder (s.2), affray (s.3), and fear or provocation of violence (s.4). It also addresses minor offences like harassment, alarm, or distress (s.4A and s.5).
73
What is the significance of Brutus v Cozens (1973)?
Brutus v Cozens (1973) held that an anti-apartheid protester was not guilty of causing insult at Wimbledon, as the protest was not considered "insulting."
74
What did Norwood v DPP (2002) involve, and what was its outcome?
Norwood v DPP (2002) involved the display of a BNP poster, and the court found that it violated the Public Order Act for causing harassment, alarm, or distress. The conviction was later upheld by the ECtHR in Norwood v UK.
75
What are some of the powers granted to the police under the Public Order Act 1986?
The Public Order Act 1986 grants powers to the police, including the requirement for advance notice of public processions (s.11), the ability to impose conditions on public processions (s.12), prohibit public processions (s.13), impose conditions on public assemblies (s.14), and prohibit trespassory assemblies (s.14A).
76
What new provisions were added by the Public Order Act 2023?
The Public Order Act 2023 introduced new criminal offences such as locking-on and tunnelling, expanded police powers, and redefined "serious disruption" to include hindering day-to-day activities, including travel.
77
What does the term "serious disruption to the life of the community" mean in relation to public protests?
"Serious disruption to the life of the community" refers to significant impacts on public order, property, or daily life, and this can be grounds for the police to impose restrictions on protests, depending on the context.
78
In DPP v Ziegler (2021), what was the ruling on blocking a highway for protest?
The UKSC ruled that blocking a highway for protest may be within the scope of "peaceful assembly" under Article 11 ECHR, but an arrest for obstructing the highway is only lawful if it is proportionate, considering the public's right to free passage.
79
How did the Public Order Act 2023 overturn the decision in Ziegler?
The Public Order Act 2023 introduced new criminal offences related to "locking-on" and "tunnelling," and redefined "serious disruption" to make it easier for the police to act against disruptive protests, even in situations where Ziegler would have permitted such actions.
80
What is the significance of buffer zones around abortion clinics in recent UK legislation?
The Public Order Act 2023 introduced buffer zones around abortion clinics, making it an offence to protest or act in a way that influences decisions to access abortion services, obstructs access, or causes distress within 150 meters of these locations.
81
What was the impact of AG Ref (No 1 of 2022) on the understanding of peaceful protest?
AG Ref (No 1 of 2022) clarified that protests involving serious criminal damage, such as the removal of a statue during the BLM protests, do not qualify as "peaceful" assembly under Article 11 ECHR, as serious criminal damage takes the protest outside the scope of protected assembly.
81
What case challenged protest activity on the highway, and what was the ruling?
DPP v Jones (1999) involved a protest on the highway near Stonehenge. The HL ruled that peaceful protest on the highway is not a trespass and can be considered a reasonable use of public space, as long as it does not obstruct passage or cause a nuisance.
82
In AG for NI Reference (2022), what was the ruling on abortion buffer zones in Northern Ireland?
The UKSC upheld Northern Ireland's legislation creating buffer zones around abortion clinics, ruling that it was proportionate and in line with Article 11 ECHR, despite restricting protest rights within the designated area.
83
What was the key finding in Hall v Mayor of London (2010) regarding protest near Parliament Square?
The court upheld the legality of regulations that cleared protesters from Parliament Square, ruling that they did not disproportionally interfere with the rights to freedom of expression or assembly (Arts 10 and 11 ECHR).
84
What factors are considered when assessing whether a protest is "peaceful" under Article 11 ECHR?
Protests are considered "peaceful" if they do not involve violence or serious criminal damage. If a protest becomes violent or causes significant criminal damage, it falls outside the scope of Article 11 and can be subject to police intervention without needing to meet proportionality requirements.
85
How does Duncan v Jones (1936) limit the right to freedom of assembly?
Duncan v Jones (1936) established that police can lawfully prevent a protest if they reasonably believe it will lead to a breach of the peace, even if the protest itself is peaceful.
86
What did the Joint Committee on Human Rights say about the Public Order Bill 2023?
The Joint Committee on Human Rights expressed concern that the Public Order Bill 2023 posed a threat to the right to engage in peaceful protest, suggesting it could be in breach of Article 11 ECHR.
