EU Law 4 - Humans Rights, Retained EU Law

Question 1

ECHR

Answer 1

Ratified in 1951
Binding
Judgements binding
Other states can pursue
47 EU but Belarus.

Question 2

Proceedings

Answer 2

State applications;
By another signatory state

Individual petitions;
Breached by domestic law.
Domestic remedies must be exhausted.
Four months from final decision.

Compensation or requiring legal change.

Two stages to application;
Admissibility - single judge formation declares admissible
(no right to appeal)
Merits
If in well established case law three member committee.
Final only after three months

Question 3

Convention rights - absolute, limited and qualified

Answer 3

Absolute - cannot be interfered with

Limited - limited in clearly define and finite situations

Qualified rights - balance between rights of individual and public interest, may be interfered with to protect principles.

Art 2 right to life - Absolute
Art 3 freedom from torture - Absolute
Art 4 freedom from slavery - absolute
Art 5 liberty and security of the person - Limited (lawful arrest and detention)
Art 6 right to fair trial- absolute, limited in relation to trail being in public
Art 7 punishment - absolute
Art 8 respect for family and private life - qualified
Art 9 freedom of thought - absolute, qualified in relation to manifestation of freedom in worship, teaching practice or observation
Art 10 freedom of expression - qualified
Art 11 freedom of assembly and association - absolute but according to national law governing
Article 1 of protocol 1 right to peaceful enjoyment of possessions - qualified

Question 4

Qualified rights

Answer 4

Must be prescribed by law-
must be embodied in domestic law.
Must be accessible in published form and sufficiently precise to allow citizen to regulate conduct.

Legitimate aims;
National security, disorder or crimes, health or morals, rights or freedoms, prevention of disclosure of confident information, authority and impartiality of judiciary.

Necessary in democratic society;
pressing social need
interference with ECHR must be proportionate.

Margin of appreciation in judging necessity - diff states may reach diff conclusions on issues.

Democratic society;
tolerance of minority opinions and lifestyles

Question 5

Derogation

Answer 5

Art 15, may derogate from part of ECHR in time of war or other public emergency.
Not allowed for torture, slavery or retrospective criminal offences or right to life.

Question 6

Article 2 Right to Life

Answer 6

Absolute right but with exceptions
-prohibits state from taking life
-places on state a positive duty to protect life

Death penalty allowed. But cannot be reintroduced except for war/imminent war.

Any use of force must be no more than absolutely necessary.

Use of force must be in pursuit of;
-defence from unlawful violence
-effect lawful arrest to prevent escape of person
-lawfully quelling a riot or insurrection

Question 7

Scope

Answer 7

Does not apply to embryos

No right to die (assisted suicide)

State must conduct full and proper investigation if Art 2 allegations.

Question 8

Art 3 - Torture, inhuman or degrading treatment or punishment

Answer 8

No exceptions, no derogation under Art 15
‘Torture’ deliberate inhumane treatment causing very serious and cruel suffering
Likely to cause actual bodily injury and mental suffering.

Immigration Act 1971 -lawfully here but no citizens - serious offence or no public good being here.
May bring Art 3 and 2 if real risk of killing or torture at deportation destination.

Question 9

Art 4 Slavery

Answer 9

Slavery and forced labour
Does not count;
prison work
compulsory military
work required in emergency
normal civic obligation

Slavery - person over whom any or all of powers attaching to right of ownership exercised.
Servitude does not count.

Individual must be exploited

Question 10

Art 5 - Right to liberty and security

Answer 10

Limited right.

Deprivation of liberty must still be carried out lawfully (arrest).

Arrest and detention requires;
Breach or reasonable suspicion of some known law
Giving of reasons for arrest
Prompt and fair trial
Availability of judicial review of legality of detention
Right to compensation for breach of Art 5

ASBO and other orders not deprivation

One of degree or intensity.

House of Lords made criteria - type, duration, effects and manner of implementation of measures in question.

No need to be physically deprived Guzzardi and JJ above.

When may state deprive?
prison
arrested or detained to ensure compliance with court order
Arrested on suspicion to prevent fleeing
Minor detained for purposes of educational supervisions
Mentally ill detained
Detention for asylum, deportation or extradition

All must take place in procedure prescribed by law.

Detention must be in good faith
Must be necessary
Length should be reasonable
Proper records
Lawful within national law.

Question 11

Art 6 - Right to a fair trial

Answer 11

Fair and public hearing within reasonable time. Judgement public. Press may be excluded.

Civil cases;
property, tort, contract, employment.
Administrative decisions from local authority

Criminal charges;
state classifies as criminal
IF NOT
innocent or guilty verdict indicates. Punishment indicates.
Prison offences and traffic offences count.

6(2) innocent until guilty

6(3) rights; (CRIMINAL)
told promptly
sufficient time and facilities
defend themselves personally or with assistance of a lawyer
call witnesses in defence and cross-examine who have given evidence.
have an interpreter provided free

6(1) applies to civil and criminal;

-access to court

-indepednant and impartial
mags and judges should not have personal interest.
Indirect interest (Peter v Magill fair minded and informed observer would conclude real possibility court was biased).

-public and decision of court pronounced publicly
Exceptions;
interest of morality, public order or national security
interest of juveniles or protection of private life
special circumstances which would prejudice justice.

-within reasonable time
six months (extended to 8 for COVID).

-conducted in fair way
Evidence - in national discretion
S78 PACE - adverse effects on fairness of proceedings court ought not to admit it.
Will only exclude if unreliable.
Or through torture or inhumane treatment.
S76 PACE excluded for aggressive police pressure on confession or other unreliable circumstances

6(2) presumption of innocence;
Strict liability - guilty if proven certain facts (no guilty mind).
These are allowed if reasonable.

6(3) Additional rights
Right to be informed - nature of offence and cause of accusation. Promptly and in detail. Supply details to defendant

Right to have adequate time to prepare defence

Right to defend themselves or have representation;
free of charge when interest of justice requires.

Right to call and cross-examine witnesses;
If reading statement as witness cannot be ascertained less weight attached to it.

Retrospective crimes -cannot be charged when not a crime when committed.
May not apply if development reasonably foreseen.
Or
Criminal by general principles of law recognised by civilised nations.

Question 12

Qualified rights

Answer 12

Prescribed by law, legitimate aim, necessary in a democratic society.

Proportionality test;
(i) whether the objective of the measure complained of is sufficiently important to justify the
limitation of a fundamental right;
(ii) whether the measure is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair
balance has been struck between the rights of the individual and the interests of the
community.

Question 13

Art 8 Right to Respect For Private and Family Life

Answer 13

Private life, family life, home and correspondence (phone calls, letters and emails)

Four issues
-bodily integrity
-personal autonomy
-sexuality
-personal information

ECHTR overruled House of Lords essentially brining Protection of Freedoms Act 2012.

Deportation - factors to apply;
1. The length of time the individual has been in the country;
2. The seriousness of the offences that the individual has committed;
3. Details of the particular family circumstances of the individual, such as the age of their
children or the length of any relationship;
4. The interests of the children;
5. The seriousness of the difficulties that the family may experience in the receiving
country; and
6. The nature of the ties that the individual has with both the expelling and the receiving
country.

Question 14

Art 9 - Freedom of thought, conscience and religion

Answer 14

Right to manifest religion or belief qualified.

Proportionality is the best test.

Question 15

Art 10 Freedom of expression

Answer 15

To hold opinions and receive and impart information.
Qualified right

Free speech that offensive and shocking protected
BUT NOT
Racist or religious intolerance.

S5 Public Order;
Threatening or abusive words to display writing that is threatening, likely to cause harassment, alarm or distress. Defence that conduct was reasonable.

Considerations;
* whether the behaviour had gone beyond legitimate protest;
* whether the behaviour had been part of an open expression on an issue of public interest
but had been disproportionate and unreasonable;
* whether the individual could have expressed their views in another way;
* the knowledge of the individual of the likely effect of their conduct upon those who
witnessed it; and
* whether the use of any object – in this instance a flag – had no relevance to the
conveying of the message of protest and had been used as a gratuitous and calculated
insult.

Must be compatible with values of ECHR - tolerance, respect and non-discrimination.

Question 16

Art 11 Freedom of Assembly and Association

Answer 16

Peaceful assembly and freedom of association

Must take positive measures to enforce private assembly.
May restrict if likely to provoke others to act violently.

freedom of association - participate with others in an organised way.
Qualified - legitimate aim, proportionate.

Question 17

Art 12 Right to Marry

Answer 17

Transexuals as well.
Does not require recognition of same-sex marriage.

Can restrict, but most not be arbitrary and interefere with essential principle of right.

Question 18

Art 13 Right to Remedy

Answer 18

Right to appropriate remedy before national authorities for violation of right

Question 19

Art 14 Protection from discrimination

Answer 19

Must show discrimination affected enjoyment of another right

Question 20

Art 1 of First Protocol - Protection of Property

Answer 20

Peaceful enjoyment of property and possessions.

Can deprive if lawful and necessary for public interest.

Question 21

Art 2 of First Protocol -
Right to education

Answer 21

No person denied education, shall respect rights of parents to ensure education and teaching in conformity with own religious and physical convictions.

States may still determine curriculum

a right to access to educational institutions existing at a given time. It does not require the
Government to provide or subsidise any particular type of education.
* a right to official recognition of the studies a student has successfully completed;

Admission policies so Long as reasonable

Does not preclude disciplinary measures.

Question 22

Art 3 of First Protocol -
Right to free elections

Answer 22

Free elections at reasonable intervals
Absolute
Wide margin of appreciation

Prisoners who on temporary license or home curfew allowed to vote.

Question 23

Art 1 of Protocol 13 - Abolition of the death penalty

Answer 23

Death penalty abolished, even for war crimes.

Question 24

Human Rights Act 1988

Answer 24

Domestic courts take into account judgements of ECtHR but are not bound.

Primary and subordinate legislation read in a way that is compatible with ECtHTR.

High court may declare incompatible.

Public authorities must comply.
People may bring proceedings against.

Just satisfaction to injured party.

If law does not comply and compelling reason remedial order changing UK law
(cannot change common law)

Future laws must make written statement it is compatible., or although uncompatible still wish to proceed.

Question 25

High court declaration of incompatibility

Answer 25

Does not affect validity, only puts political pressure to change.

Question 26

S 6(1) HRA

Answer 26

unlawful to authority to act in a way that is incompatible with convention rights. However if as a result of an act of parliament they could not have acted differently, does not apply.

Question 27

S 6 and delegated legislation

Answer 27

Although bound by incompatible acts still may claim judicial review.

Question 28

Claim for judicial review (i) breach of convention rights (ii) traditional grounds of review

Answer 28

Is issue public?

Who is decision maker?

Are they amenable to judicial review?
Datafin test

Ouster clauses?

Standing?

ECHR grounds-
victim test s7.
Directly and personally affected.

Bank Mellat four stage test.

Question 29

Horizontal effect

Answer 29

Individuals may bring claim.
Courts are public bodies and must comply.
Bring case based on existing cause of action.

Venables - Art 2 right to life overrides free press (read more widely and Art 10 read more narrowly).

Question 30

Freedom of expression and right to respect for private life

Answer 30

Journalists;
Courts will look at extent material already in public domain, publication would be in public interest an any relevant privacy code.

Mary Bell protection of identity;
Factors looked at;
(a) X’s fragile mental health;
(b) the young age at which she committed the offences;
(c) the length of time that had expired since offences were committed; and
(d) the serious risk of potential harassment and possible physical harm

Campbell test (Art 8 and Art 10);
reasonable expectation of respect for private life in particular circumstances; attributes of claimant, nature of activity, nature and purpose of intrusion, absence of consent, effect on claimant
Must have particular regard to wider public interest in journalism.

Question 31

Conflicts

Answer 31

Human rights ‘proportionality test’

Qualified convention rights - comparative importance of actual rights being claimed. and justifications. Then apply proportionality test

Political speech expression more important than celebrity gossip.

Covert taking of pictures in account.

If public figure may be public interest (Van Hannover No 2).

if publication of private facts may be highly offensive to an objective reasonable person.

Must pay heed to objection on Childs behalf.

Super-injunction - stops even reference to the injunction itself.

Individuals being investigated for criminal offence do have a reasonable expectation of privacy.

Question 32

New tort of invasion of privacy ?

Answer 32

Vidal-Hall v Google Inc-
Now distinct equitable claim for breach of confidence.

PJS v News Group Newspapers Ltd 2016 UKSC 26 - sexual encounter publication will on the face of it constitute a tort of invasion of privacy.

Question 33

Retained EU law

Answer 33

Withdrawal Agreement Act 2020.

TCA - free trade agreement,
quote and tariff free goods. movement of services, competition, state subsidies, air and road transport, energy and sustainability, fisheries, data protection.
still falls
short of being a member state.

Question 34

What is retained EU law

Answer 34

EUWA 2018 refers to IP completion day.
Retained law in force immediately before completion day.

Treaty articles
Regulations
Directives
Decisions

Question 35

EU-derived domestic legislation

Answer 35

s2 EUWA 2018.

Secondary legislation by UK to implement EU obligations.

Question 36

Direct EU legislation

Answer 36

S3 EUWA 2018 converts direct EU legislation into UK law so far as ‘operative’ immediately before IP completion day.

EU legislation applies to all
Decisions to whom they are addressed.

S4(1) protects rights, powers, liabilities, obligations, restrictions, remedies and procedures immediately before IP completion day.

Directly effective rights contained in treaties. Sufficiently clear, precise and unconditional to confer rights directly on individuals. Right is retained not text from article itself.

Example - Equal pay, can rely on act but if shortfall may rely on retained rights granted under Article 157 TFEU.

UK still repealed single market and customs union.

Directives - do not apply, unless rights arise directly under effective provisions of Directives are of a kind recognised by a UK or EU court or tribunal before IP completion day can become retained EU law.

Question 37

Statuts

Answer 37

S7 EUWA 2018 - law retained under s2 EUWA has same status as it had pre IP-completion day.

Law under ss3 and 4 does not fall into existing categories, neither primary nor secondary legislation.

S3-
retained direct principal EU legislation
retained direct ‘minor’ EU legislation

Retained direct principle EU legislation includes EU regulations such as Regulation (EC) compensation for flights

Retained direct minor legislation is defined as any retained direct EU that is not retained direct principal EU legislation.

Minor can be repealed in same way an ordinary domestic secondary legislation. Latter must be repealed or amended by primary legislation.

Prime examples -
where primary legislation granted Henry VII power, allows minister to make changes not only to secondary but also to act of parliament.
where minsters using powers under EUWA 2018 to correct deficincies in retained EU law.

EUWA 2018 treats retained direct principal legislation as if it were primary for purposes of HRA 2018. Prevents incompatibility with convention rights.

Question 38

Interpretation of retained EU law

Answer 38

S 6(3) EUWA Questions that remain unmodified on or after IP completion day to be determined by UK courts.

S6(6) questions on meaning of retained EU law that has been modified after IP completion day can be determined in accordance with relevant retained case law and general principles of EU law, if doing so is consistent with intention of modifications.

Question 39

Retained case law

Answer 39

Retained domestic and EU.

Domestic - principles and decisions laid down by UK courts before end of IP completion day.

EU - means principles and decisions laid down by CJEU before IP completion day in relation to retained EU law

Judgements of CJEU remain binding on UK courts below the CA.

Question 40

Retained general principles of EU law

Answer 40

Recognised as such by EU case law before IP completion day.

Failure to comply cannot give rise to action.

Charter of Fundamental Rights of European Union (2000). Enshrines certain political, social and economical rights into EU law. Does not form part of retained law.
Exclusion of charter as seen in case law on a non-Eu basis doe snot affect retention in law on or after IP completion day in accordance with the Act of any fundamental rights or principles which exist irrespective of the charter.

Question 41

Exclusion of state liability

Answer 41

No state liability (payment for non-implementations of directives or effective implementation ‘Francovich Damages’.)

Saving for claims within period of two years beginning with IP completion day so long as they relate to matters before IP completion day/

Question 42

Correcting deficiencies in retained EU law

Answer 42

S8 EUWA 2018 temporary powers for minister and devolved administrators within areas of devolved comepetence to make secondary legislation that corrects deficiencies in retained EU law.

Deficiencies are;
* provisions that have no practical application after the UK has left the EU;
* provisions on functions that during the UK’s membership of the EU were carried out in the
EU on the UK’s behalf, for example by an EU agency;
* provisions on reciprocal arrangements or rights between the UK and other EU Member
States that are no longer in place or are no longer appropriate;
* any other arrangements or rights, including through EU treaties, that are no longer in
place or no longer appropriate; and
* EU references that are no longer appropriate.

Only correct deficiencies arising from withdrawal.

Question 43

Supremacy of retained EU law

Answer 43

Retained have supremacy in limited circumstances.
Three categories of law;
retained EU law
Uk legislation enacted pre-IP completion day that is not retained EU law.
UK legislation enacted after IP completion day

Conflict over provision of retained EU law and pre IP completion day legislation former will prevail over latter.

Question 44

Challenges to retained EU law

Answer 44

Domestic law that becomes retained EU law by virtue of s2 EUWA 2018 will continue to be classed as primary or secondary legislation as applicable.

Primary legislation outside of s2 only challenged on grounds it contravenes another provision of retained EU law that should prevail over it.

Secondary legislation falls within s2 EUWA 2018 can be challenged o same basis as well on public law grounds that applies to other secondary legislation.

Cannot be challenged after IP date on basis EU instrument was invalid.
Does not apply where CJEU found prior to IP completion or where regulations made by a minister permit the challenge.

Direct principal can be challenged but not held invalid.
Direct minor can be held invalid.

Question 45

UK courts and retained EU law

Answer 45

Applying retained EU law
* It is necessary is to determine the status of any relevant EU regulation and whether it has
become retained EU law.
* It is then necessary to consider whether any domestic UK legislation has amended it.
* Retained EU law should be given a purposive construction.
* UK courts should take into account pre-IP completion day case law of the CJEU.
* UK courts should take into account general principles of EU law that have been
recognised in case law before IP completion day.
* Finally, it is necessary to analyse whether retained EU law has been amended or
superseded by the TCA and EU(FR)A 2020

Depearting from EU law -
Supreme Court or High court must apply same test as deciding whether to depart from own Case Law.
‘When it appears right to do so’

Applied by s6(5A - D) of EUWA 2018 to Court of Appeal.

Courts likely to take cautious approach.

S6(1) EUWA 2018 - UK courts and tribunals cease to be bound by principles laid down by CJEU after IP, but may be persuasive.

Question 46

Retained EU law (Revocation and Reform) Bill

Answer 46

Henry VIII powers to change retained EU law.

Principle of supremacy - retained EU legislation has priority should conflict occur over UK legislation enacted before IP completion day.

Factors CA and SC must take into account when departing
a) the fact that decisions of a foreign court are not usually binding;
(b) any changes of circumstances which are relevant to the retained EU case law; and
(c) the extent to which the retained EU case law restricts the proper development of
domestic law

Lower court may refer to higher court decision although still bound by EU retained.

Assimilated law - retained not changed.

Question 47

Withdrawal agreement

Answer 47

in force 1 February 2020.

Citizens right - UK continue to have rights abroad (work etc.) at end of transition period. May need to apply for residence status. five years may apply for settled status.

Financial settlement - agreed to abide by financial commitments to EU budget.

Northern Ireland protocol - avoid introduction of hard border on Ireland failing agreement of free trade agreement.

Governance and dispute resolutions - citizens rights, born in Uk before IP completion day.

Applications of withdrawal agreement;
Article 4 Withdrawal Agreement - provisions of agreement itself and provisions of EU law that it incorporate shall have same effect in UK law as they produce within EU and EU member states.

Section 7A of EUWA 2018 - enforcement of rights arising under withdrawal agreement in similar terms contained in ECA 1972 regarding EU treaties. Supremacy to withdrawal agreement.

Citizens rights
Article 267 references concerning citizens rights provisions in Withdrawal Agreement for a period of up to 8 years after end of transition period.
Discretionary power.

Citizens rights provisions have direct effect. UK and EU27 citizens and respective family able to rely on them even if national legislation is defective.