ECHR and HRA

Question 1

What is a remedial order?

Answer 1

A remedial order is a type of statutory instrument that allows the government to quickly amend Acts of Parliament so as to remove incompatibility with Human Rights Act 1998

Question 2

What is the effect of a remedial order?

Answer 2

The courts cannot direct Parliament to do anything, the remedial order simply gives Parliament the ability to amend Acts

Question 3

What are Article 8 protections as to climate change?

Answer 3

The ECHR ruled that under Article 8, the government is obliged to protect their citizens from adverse effects of climate change - positive obligation under Article 8

• Failing to measure greenhouse gases and meet targets would be a breach of Article 8, as would not having effective administrative policies to do so

Question 4

Which parties can bring complaints to ECHR?

Answer 4

The ECHR can examine complaints by:
- a State against another State
- complaints from companies
- private individuals

Question 5

Can the ECHR examine inter-state complaints?

Answer 5

Yes

Question 6

What individual applications can ECHR hear?

Answer 6

Lodged by any person, group of individuals, companies or NGO about a violation of their rights

Question 7

What is the test for standing for a claim under HRA?

Answer 7

Claimant seeking to rely on HRA, courts use a more restrictive test to determine if individual has standing
- the victim test

Question 8

Can someone else bring proceedings on behalf of a victim under HRA?

Answer 8

An applicant must be a victim of an unlawful act to bring an action

Exceptional circumstances where an applicant may be an indirect victim
- e.g., close relatives of a deceased where complainant alleges right to life violation

Otherwise, no only a victim of the infringement can bring an action

Question 9

What is the effect of Article 1 ECHR?

Answer 9

Jurisdiction - shall secure everyone in the jurisdiction the rights and freedoms defined in the Convention

The Convention provides that member countries must secure Convention rights for everyone in the jurisdiction

Question 10

What are the rights protected by Article 11?

Answer 10

Article 11 rights are qualified rights whose exercise may be subject to restrictions which are imposed in the interests of national security
- interference in accordance with law
- legitimate aim
- necessary

Question 11

What is the ground of illegality for judicial review?

Answer 11

Ultra vires - refers to a decision that goes beyond the boundaries of a legal power given to the body concerned

• Act illegally if acting outside of the powers