Enforcement Flashcards
What does s.2(1) HRA state?
Interpretation of Convention rights
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any:
(a) judgement, decision, declaration or advisory opinion of the European Court of Human Rights
If there is a conflicting UK precedent with a decision from the ECtHR , what should the court follow and which case should they refer to?
They should follow the domestic precedent and should refer to the UK appeal courts (Kay v Lambeth LBC (2006))
What does s.3(1) HRA state?
Interpretation of legislation
So far as it is possible to do so, primary legislation and the subordinate legislation must be read and given effect in a way which is copatible with the Convention rights
What does s.4 HRA state?
Declaration of incompatibility
(1) Subsection (2) applies in ay proceedings in which court a court determines whether a provision of primary legislation is compatible with a Convention right
(2) If the court is satisfied that the provision is incompatible with Convention right, it may make a declaration of that incompatibility
What is the process of judicial review?
An individual may challenge the decision or action of a public body in the High Court (Queen’s Bench Division). It reviews the case to see if the law was applied correctly and the correct procedures were followed.
What does ‘ultra vires’ mean?
Beyond its power
When should a judicial review be used?
When there is no other way of challenging the decision of the public body
What does a public body include?
-Government minister and government department
-Local authority
-Health authority
-Chief Constable
-Prisoner governor
What happens if the decision of the public body has been made ultra vires?
The court will declare it void
What does the Civil Procedure Rules 1999 state about the application of judicial review?
It must be made within 3 months. They must also have legal interest (locus standi) in the outcome of the case
R v Her Majesty’s Inspectorate of Pollution ex parte Greenpeace (1994)
The legal interest was extended to include pressure groups
What can the public body be challenged on the basis of?
Illegality
Fairness
Irrationality and proportionality
What is meant by procedural ultra vires?
If the enabling act has set out certain procedures that must be followed before delegated legislation can be passed, a challenge can be made in the courts if this procedure is not followed.
What happened in Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd 1972?
The Training Board was required by the enabling act to consult anybody who might be affected by one of their laws. They did not consult the Mushroom Growers’ Association and therefore, the piece of delegated legislation was void.
What is meant by substantive ultra vires?
Delegated legislation may be declared void if it allows something that the enabling Act did not intend.
What happened in R v Secretary of State for Health ex parte Pfizer?
The minister for health was found to have acted ultra vires when advice was sent out to doctors telling them not to prescribe Viagra
What is meant by unreasonableness?
The courts will also declare delegated legislation void when the law made under the enabling act is ‘unreasonable’. This was established in Associated Provincial Picture Houses v Wednesbury 1948
What are the remedies for judicial review?
Damages
Quashing order
Prohibiting order
Injunction
What is the current structure of the ECtHR?
Protocol 14 came into force in 2010. The 47 members pf the EC elect judges who serve for a non-renewable nine-year term. There are 47 full-time judges working at the ECtHR. Judges are chosen for their independence and high moral character. They can be removed if they are not fulfilling their duties and retire at 70.
What is the court system?
A single judge will decide if the case is admissible. If it is a repetitive claim, the merits of the case will be decided by a Committee (3 judges). If it is not a repetitive claim, the Chamber (7 judges) will decide the merits of the case. The Grand Chamber (17 judges) can be requested if the case raises a serious issue of interpretation and importance. It also deals with infringements proceedings where the Committee of Ministers finds that a state is not abiding y a court judgement they can get the judgement enforced.
When can people bring a case to the ECtHR?
A case can be brought to the ECtHR by an individual citizen of a member state but only after they have tried to resolve the case in domestic courts.
Do decisions of the ECtHR automatically become part of the UK law?
No, some decisions have not been implemented. Eg. Prisoners being allowed the vote.
Is the ECtHR bound by precedent?
No, it can interpret the Conventions in a way that develops human rights in light of changing social attitudes. According to Tyrer v Uk 1978.
What is a narrow margin of appreciation?
When the right is considered of upmost importance, eg. sexual privacy in Dudgeon v UK 1981
What is wide margin of appreciation?
Where there is a lack of consensus in the member states, eg. sexuality in Goodwin v UK 2002
