ECHR & Human Rights Act

Question 1

What are the 3 different types of rights?

Answer 1

Absolute, limited and qualified.

Question 2

What are absolute rights?

Answer 2

These rights can never be interfered with in any circumstances whatsoever.

Question 3

What are limited rights?

Answer 3

These rights can only be limited in clearly defined and finite situations.

Question 4

What are qualified rights?

Answer 4

These rights require a balance between the rights of the individual and the wider public interest

and so may be interfered with to protect an important general interest or the rights of others.

Question 5

What is Article 1?

Answer 5

The right to peaceful enjoyment of possessions.

Qualified.

Question 6

What is Article 2?

Answer 6

The right to life.
Absolute

Deprivation of life resulting from the use of no more force than is absolutely necessary in narrowly defined circumstances does not constitute an interference with this right.

Question 7

What is Article 3?

Answer 7

The right to freedom from torture, inhuman and degrading treatment.
Absolute

Question 8

What is Article 4?

Answer 8

The right to freedom from slavery etc
Absolute

Certain activities are excluded from the scope of compulsory labour and so do not constitute an interference with this right.

Question 9

What is Article 5?

Answer 9

The right to liberty and security of the person.

Limited - contains exceptions in relation to lawful arrest and detention.

Question 10

What is Article 6?

Answer 10

The right to a fair trial.
Absolute as to a fair trial.

Limited in relation to the trial being in public.

Question 11

What is Article 7?

Answer 11

The right to punishment according to existing law.
Absolute.

Article 7 does not preclude the trial and punishment of acts that are criminal according to the general principles recognised by civilised nations.

Question 12

What is Article 8?

Answer 12

The right to respect for private and family life.

Qualified

Question 13

What is Article 9?

Answer 13

The right to freedom of thought etc
Absolute in relation to freedom of thought etc.

Qualified in relation to manifestation of freedom in worship, teaching, practice or observation.

Question 14

What is Article 10?

Answer 14

The right to freedom of expression.

Qualified

Question 15

What is Article 11?

Answer 15

The right to freedom of assembly and association

Qualified

Question 16

What is Article 12?

Answer 16

The right to marry.

Absolute but according to national law governing the exercise of that right.

Question 17

The absolute and limited rights which cover the most fundamental human rights and contain either no exceptions whatsoever or narrow express exceptions are…

Answer 17

Articles 2 - 7 and 12

The right to life (2)
Freedom from torture, in human and degrading treatment (3)
Freedom from slavery (4)
Liberty and security of the person (5) - Limited
Fair trial (6) - Absolute and Limited
Punishment according to existing law (7)
Right to marry (12)

Question 18

The qualified rights (which can be overridden in the public interest) are…

Answer 18

Articles 8-11 and Article 1

Right to peaceful enjoyment of possessions (1)
Right to respect for private and family life (8)
Right to freedom of thought etc (9)
Right to freedom of expression (10)
Right to freedom of assembly and association (11)

Question 19

How does a court determine whether the interference with a qualified right can be justified?

Answer 19

Qualifications must be expressed in the ECHR are recognised.

In addition a restriction may only be relied upon if it is;

• prescribed by law and
• has a legitimate aim and
• is necessary in a democratic society.

It must not be applied in a discriminatory fashion (i.e. the freedoms of the Convention must be secured without discrimination).

Question 20

What does ‘as prescribed by law’ mean in relation to qualifications?

Answer 20

UK law has to clearly permit the infringement. It has to be embodied in law.

The law must be accessible (in published form), and sufficiently precise to enable the citizen to regulate his or her conduct.

Malone v UK - phone tapping. Law no clear enough on this issue to provide a sufficient legal basis for a restriction on the right to a private life (Art 8)

Purdy - MS sufferer - there was an absence of a crime specific policy regarding assisted suicide.

Question 21

What is meant by ‘legitimate aims’?

Answer 21

The principle is that the interests of society must justify the restrictions on the rights of individuals.

Question 22

What are frequently specified in the Convention as legitimate state aims?

Answer 22

a) the interests of national security (e.g. Art 8)
b) the prevention of disorder or crime (Art 8 and 10)
c) the protection of health or morals (Art 8 and 10)
d) the protection of the rights or freedoms of others (Art 8)
e) the prevention or disclosure of information received in confidence (Art 10)
f) maintaining the authority and impartiality of the judiciary (Art 10)

Question 23

What is meant by a qualification having to be ‘necessary in a democratic society’?

Answer 23

1. There must be a ‘pressing social need’ (rather than an absolute necessity for any restriction imposed)
2. The interference with the Convention right must be proportionate.

This means that in order to justify the restriction, public authorities may have to show that they have chosen methods of achieving legitimate aims which do not go further than necessary.

The state is allowed a ‘margin of appreciation’ in judging necessity (Handyside - no breach of Art 10 where UK obscenity laws prohibited publication of a sex manual for children).

The ECtHR will respect the judgment of a member state as to what the public interest requires.

Question 24

What is a derogation?

Answer 24

Art 15 of ECHR - a state may derogate from part of the Convention ‘in time of war or other public emergency threatening the life of the nation’.

There are conditions which limit the power to derogate and no derogation is possible in relation to Art 3 (torture), Art 4 (slavery), Art 7 (retrospective criminal offences, or from Art 2 (right to life - except in respect of deaths resulting from lawful acts of war.

HRA 1998 Sec 14 - a UK court will not be able to enforce Convention rights where a derogation is in operation.

Question 25

What does Section 2 of the HRA do? ‘take into account’

Answer 25

It says that domestic courts must ‘take into account’ judgments of the ECtHR but are not bound by them.

Question 26

What does Section 3 of the HRA do? ‘sub leg must be read and given in a way that is compatible’

Answer 26

‘So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.’

Applies to past and future leg.

Question 27

What does Sec 4 of the HRA do? ‘incompatible’

Answer 27

The High Court and higher courts may declare an Act of P to be incompatible with Convention rights.

Question 28

What does Sec 6 of the HRA do? ‘unlawful for a public authority to act in a way that is incompatible with Convention rights….’

Answer 28

It is unlawful for a public authority (including a ‘court’) to act in a way which is incompatible with Convention rights (unless giving effect to an incompatible statute).

This affects grounds of challenge in judicial review of administrative acts.

Question 29

What does Sec 7 of the HRA say? ‘victim’

Answer 29

A person who claims that brings proceedings against the authority or relies on the Convention right in any legal proceedings must be ‘a victim of the unlawful act’.

Question 30

What does Sec 8 of the HRA say? May award damages….

Answer 30

That a court in civil proceedings may award damages where public authority unlawfully infringes a Convention right, if it is necessary to ‘afford just satisfaction’ to the injured party.

Question 31

What does Sec 10 of the HRA do? Fast track

Answer 31

It creates a fast track procedure for changing legislation.

Where a UK court has found that leg is in breach of the Convention, the Govt may if there are ‘compelling reasons’ to do so - make a ‘remedial order’ changing UK law. This is delegated leg which has to e approved by Plt under the ‘affirmative procedure’.

Question 32

What does Sec 19 of the HRA do? Future leg

Answer 32

A Minister introducing future leg must make a written statement stating that the bill is compatible with Convention rights or that, although he/she is unable to make a statement of compatibility, the Govt wishes to proceed with the bill.

Question 33

Sec 6 (1) of the HRA provides that it is unlawful for a public authority to act in a way which is incompatible with Convention rights. What are the two exceptions to this?

Answer 33

It does not apply if
1. as a result of an Act of Plt, the authority could not have acted differently,

2. or the authority is giving effect or, or enforcing, the provisions of an Act which are incompatible with the Convention.

Question 34

What does the court applying the Convention ‘horizontally’ mean?

Answer 34

The courts are a public authority and as such has a duty to apply the Convention. This effect is referred to as ‘horizontally’ as it means that Convention rights can affect relations between private citizens (or companies) and not merely between state and citizen (‘vertical effect’).

Question 35

What can judicial review do under s 6 of the HRA? Delegated leg.

Answer 35

Judicial review may be able to set aside incompatible DELEGATED legislation.

Question 36

Can pressure groups bring claims for breach of Convention rights?

Answer 36

No. A claimant can only bring proceedings for breach of a Convention duty if they are a ‘victim’ of the breach.