EU Law - FLK 1

Question 1

What are absolute rights?

Answer 1

Rights that cannot be limited or interfered with.

E.g. Article 2 ‘Right to life’ is an absolute right.

Cannot be balanced against the rights of other individuals and or the public interest.

Question 2

What are the exemptions to absolute rights?

Answer 2

E.g. police kill an armed person to prevent the murder of an innocent.

Article 2 does not apply.

Force used was no more than absolutely necessary.

Question 3

What are limited rights?

Answer 3

Rights that can be restricted.

E.g. Article 5 ‘Right to liberty’ is restricted if a person is in prison.

Cannot be balanced against the rights of other individuals and or the public interest.

Question 4

What are qualified rights?

Answer 4

Rights that can be interfered with in order to protect the rights of another or the public interest.

E.g. Article 8 ‘Right to private and family life’ can be interfered with provided it is prescribed by law, and is necessary and proportionate.

Question 5

What does s.2 of the HRA provide?

Answer 5

Domestic courts must take into account judgment of the ECHR but are not obliged to follow them

Question 6

What does s.3 of the HRA provide?

Answer 6

Primary and secondary legislation must be read and given effect in a way that is compatible with Convention rights.

Question 7

What does s.4 of the HRA provide?

Answer 7

The courts may declare an Act of Parliament to be incompatible with the Convention rights.

Question 8

What does s.6 of the HRA provide?

Answer 8

It is unlawful for a public authority (including courts) to act in a way that is incompatible with Convention rights.

Question 9

What does s.7 of the HRA provide?

Answer 9

Only the victim of an unlawful act may bring proceedings or rely on a Convention right.

Question 10

What does s.8 of the HRA provide?

Answer 10

Where a Convention right is infringed, the court may award damages.

Question 11

What does s.10 of the HRA provide?

Answer 11

Where the ECHR has found the UK legislation to be in breach of UK law, the government may, if there are ‘compelling reasons’, make a remedial order changing UK law.

Question 12

What does Art.2 Right to Life provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 12

Protect life by law, suspicious or in-custody deaths must be investigated by the State.

Question 13

What does Art.3 Prohibition of Torture provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 13

Protects against torture or inhumane treatment.

Question 14

What does Art.4 Prohibition of Slavery and Forced labour provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 14

Protects against slavery or being subjected to forced labour

Question 15

What does Art.5 Right to Liberty and Security provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 15

Provides right to be free, and can only be imprisoned if the State has very good reason to do, e.g. committed a crime.

Question 16

What does Art.6 Right to fair trial provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 16

Innocent until proven guilty in a court of law.

Question 17

What does Art.7 No punishment without law provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 17

It is not a crime if it was not against the law when the act was committed.

Question 18

What does Art.8 Right to private and family life provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 18

Protects against unnecessary intrusion into your life.

Question 19

What does Art.9 Freedom of thought, conscience, and religion, under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 19

Right to believe what you like and practice own religion.

Question 20

What does Art.10 Freedom of expression, provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 20

Right to speak freely, unless causing a threat to national security.

Question 21

What does Art.11 Freedom of assembly and association, provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 21

The right to protest peacefully.

Question 22

What does Art.12 Right to Marry, provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 22

Applied to men and women.

Question 23

What does Art.14 Prohibition of discrimination provide under Schedule 1 HRA 1998 the “Convention Rights”?

Answer 23

No discrimination is permitted in the enjoyment of Convention rights.

Question 24

What is retained EU law?

Answer 24

EU law that was in force in the UK before the Implementation period completion day, 31 December 2020.

After the Withdrawal At 2018, Retained EU law was converted into domestic UK law.

Question 25

What are the three main categories of retained EU law?

Answer 25

1. EU-derived legislation
   – secondary legislation and primary legislation enacted to implement the UK’s EU obligations.
2. Direct EU legislation
   – primarily EU Regulation and decisions
3. Rights Arising under s.2 of the European Communities Act 1972
   – directly effective rights arising under the EU Treaties and possibly also Directives.

Question 26

What is the status of retained EU law?

Answer 26

Principle of EU supremacy will continue to apply, so any conflicts between pre-Brexit domestic law and pre-Brexit EU law, then EU law will prevail.

However, UK legislation enacted after Brexit will prevail over retained EU law.

Question 27

How is retained EU law interpreted?

Answer 27

Interpreted by the UK courts in accordance with retained case law and retained general principles of EU law.

Question 28

Can retained EU law be modified?

Answer 28

The Withdrawal Act 2018, allows for a period of 2 years after the end of the IP to correct deficiencies, in areas where the retained EU law no longer makes sense. Minor corrections can be made through secondary legislation, however no significant ones.