European Convention on Human Rights Flashcards
Does compulsory military service amount to forced or compulsory labour?
No
Article 4(3)(b) ECHR states that forced or compulsory labour does not include compulsory military service.
Claimants under the HRA 1998, can pressure groups bring claims?
But who could bring a claim if not the victim?
No, the group will be unsuccessful as it is not a victim as required under the Human Rights Act 1998
The claimant can only bring proceedings for breach of a Convention right if they are a ‘victim’ as per s 7 of the HRA; i.e. directly and personally affected. Accordingly, pressure groups will not be victims under s 7 and therefore do not have the requisite standing to bring a claim for breach of Convention rights, including freedom of religion.
If not the victim…….
Close relatives of the victim may bring a claim on their behalf where the victim is dead.
When can claimant can bring a claim before the ECtHR?
The US citizen’s father can only bring a claim alleging breach of Article 2 ECHR before the European Court of Human Rights if he first exhausts any remedies he may have in the UK and then applies to the European Court of Human Rights within four months of the final UK decision.
Balancing Article 8 (right to respect private and family life) rights against the Article 10 rights (freedom of expression)
‘decisive factor’ is an assessment of the contribution which the publication of the relevant information would make to a debate of general interest (ZXC v Bloomberg). The fact that the footballer is a well-known role model and campaigner against the use of drink and drugs and the Daily News is highlighting the footballer’s hypocrisy (‘putting the record straight’ and acting as a public watchdog) is likely to outweigh the fact that the video was obtained surreptitiously.
Four-part test which needs to be applied to decide whether interference with a qualified right is proportionate
Whether the objective of the measure is sufficiently important to justify limiting a fundamental right;
Whether the measure is rationally connected to the objective;
Whether a less intrusive measure could have been used and
Whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
Absolute rights
The absolute rights contained in the Convention include: the right to life; the right to freedom from torture, inhuman and degrading treatment; and the right to freedom from slavery.
Limited right
Can be restricted in clearly defined and finite situations.
Qualified right
A State may restrict the right in order to protect the public interest.
Would need to demonstrate that the interference is prescribed by law, in pursuit of a legitimate aim and is proportionate.
Absolute right
A State has a positive duty to uphold an absolute right
Quick Q:
A client wishes to challenge a decision by his local police force. The client was arrested, taken to a police station and finger-printed and DNA swab done. Two hours later the client was released without charge. It was a case of mistaken identity. The police however are refusing to remove the client’s fingerprint and DNA from the national criminal database relying on statutory powers that they may indefinitely retain someone’s fingerprints and DNA after they have been arrested regardless of whether they are charged or refused charge. The client believes this is a breach of his human rights.
Which of the following best describes the legal position?
The police will need to establish that the interference in the right to private life is proportionate.
Option E is correct. If the court decide the interference by the police is disproportionate then it will amount to a breach of this qualified right.
Option A is wrong because the police clearly meet the definition of a s6 (1) Human Rights Act (HRA) public authority.
Option B is wrong. The client should bring a case in a UK court since they have had jurisdiction sine the passing of the HRA to hear cases involving breaches of convention rights.
Option C is wrong. Article 8 is a qualified right and not an absolute one.
Option D is wrong. Since Article 8 is a qualified right one of the justifications for interference is there must be a legal basis for the interference.
Quick Q:
In response to a spate of terrorist bombings in the UK, Parliament passes an Act of Parliament which grants emergency powers to the Minister for Anti-Terrorism allowing him to take “such steps as are deemed necessary” to deal with the emergency. The security services have detained a suspect who they are sure knows the identity of the bombers. They ask the Minister to authorise enhanced interrogation of the suspect to include sleep deprivation and the holding of stress positions. Acting under his statutory powers the Minister authorises the use of enhanced interrogation.
Will the Minister be in breach of the European Convention on Human Rights (‘ECHR’)?
Yes, because it is not possible to derogate from Article 3 and the enhanced interrogation techniques would amount to inhuman or degrading treatment.
Option E is correct – the enhanced interrogation techniques would amount to inhuman or degrading treatment (Ireland v UK). It is not possible to derogate from Article 3.
Option A is wrong. Although the terrorist situation is likely to amount to a public emergency threatening the life of the nation, no derogation is possible from Article 3.
Option B is wrong. The fact that the Minister has statutory authority for his actions will not prevent him from being in breach of the ECHR.
Option C is wrong. The UK may be able to argue that the action it took is ‘strictly necessary’, but it is unnecessary to decide this, since no derogation is possible.
Option D is wrong. The enhanced interrogation techniques will not amount to torture (Ireland v UK).
Quick Q:
A man is shot and killed by the police. His mother was dissatisfied with the investigation into the death that followed. She brought a claim for breach of Article 2 ECHR, but her claim failed before the UK courts. She then applied to the European Court of Human Rights (‘ECtHR’) and her claim was heard by a Chamber of judges who gave judgment in her favour last week.
Which of the following statements is correct in relation to the decision of the ECtHR?
The decision of the ECtHR is binding on the UK.
Option A is correct. Judgments of the ECtHR are binding on the UK as a matter of international law.
Option B is wrong as, although decisions of the ECtHR are binding in international law, they have no direct binding force in domestic law.
Option C is wrong as the Committee of Ministers of the Council of Europe is responsible for ensuring compliance rather than the court.
Option D is wrong as the UK will be able to ask for the case to be heard before the Grand Chamber for up to three months after the decision has been made by the Chamber of judges.
Option E is wrong as the ECtHR does not operate a system of binding precedent. The ECHR is a ‘living instrument’ so that the ECtHR can reinterpret its provisions over time.
Derogate
Means ignore
derogation means exemption
Quick Q:
A pupil is a devout Sikh and wishes to wear the kara, an unobtrusive and inexpensive bangle, to the secondary school in which she has just enrolled. However, her school (which is the only school in her local catchment area) has a policy of not allowing pupils to wear jewellery other than a simple pair of earrings. When the pupil argued that she should be allowed to wear the kara as a manifestation of her faith, the school responded by saying that she could not do so because: (i) it would exacerbate differences in wealth; (ii) the bangle would be dangerous during school sports; (iii) the pupil might become a focus for bullies; and (iv) this would ‘open the floodgates’ to requests from other pupils who wish to wear jewellery. The pupil refused to remove the kara, and has now been excluded from school.
The pupil has now issued a judicial claim against the school’s decision, arguing that it is in breach of her rights under Article 9(1) of the European Convention on Human Rights.
Which of the following most accurately reflects the way in which the High Court is likely to decide her claim?
The High Court is likely to uphold the pupil’s claim on the basis that the interference with her rights under Article 9(1) is disproportionate.
Option D is the best answer. It is possible for the state to interfere with a qualified right, such as the right to manifest one’s religious beliefs under Article 9(1), if the interference is prescribed by law, in pursuit of one of the legitimate aims set out in Article 9(2), and proportionate. To be proportionate, a measure which interferes with a protected right must meet the four-stage test set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 (i.e. (i) the measure must pursue an objective which is sufficiently important to justify the limitation of a fundamental right; (ii) the measure must be rationally connected to its aim; (iii) there must be no less intrusive alternative to the measure adopted; and (iv) a fair balance must have been struck between the rights of the individual and the interests of the community).
In this case, the school’s decision is unlikely to meet the requirement of proportionality. The leading case concerning the restrictions that a school may impose on the items of clothing worn by its pupils is R (Begum) v Governors of Denbigh High School [2006] UKHL 15. In this case, a Muslim schoolgirl wished to wear a jilbab to school, rather than a shalwar kameez as required by the school’s uniform policy (the jilbab is a more concealing form of dress). She argued that this breached her right under Article 9(1), but this was ultimately rejected by the House of Lords. This was because: (i) Miss Begum’s family had chosen for her a school outside their own catchment area and it was possible for her to attend a school in her catchment area that permitted the wearing of the jilbab; (ii) she had worn the shalwar kameez during her first two years at the school without objection; and (iii) the school had taken pains to devise a uniform policy that respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way.
In the scenario set out in the question, the school’s approach compares unfavourably with the Begum case. The situation is different here in that the pupil has no choice of school to attend, and has only just enrolled. The school’s decision is also unlikely to meet the Bank Mellat test, because: (i) the kara is unlikely to exacerbate differences in wealth since it is inexpensive and unobtrusive; (ii) in terms of school sports, alternative measures such as covering or removing the bangle are available; (iii) if the school is worried about bullies its aim should be to address the bullies themselves, rather than force the pupil to change her behaviour; and (iv) as to the floodgates argument, it is unlikely that there will be a vast number of seriously arguable requests from pupils wishing to wear jewellery which are based on a manifestation of a genuine religious belief.
Option A is wrong, since the pupil is a devout Sikh and wishes to wear the kara to school as a manifestation of her religious beliefs. The school has prevented from attending unless she remove the kara, so her rights under Article 9(1) are clearly engaged.
Option B is wrong. Article 9(2) provides a finite list of legitimate aims which can, potentially, provide a reason for limiting the rights protected by Article 9(1). These are restrictions which are necessary in a democratic society for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The reasons given by the school in this case appear to fall within scope of at least one of these aims. However, even if one of these reasons applies, an interference with a protected right will only be lawful if it is prescribed by law and proportionate.
Option C is wrong, effectively for the reasons set out in respect of option D. While the school is likely to be able to successfully show that its decision pursues a legitimate aim, it is unlikely to be able to persuade the court that its decision is proportionate.
Option E is wrong. The right to freedom of thought, conscience and religion under Article 9(1) is effectively absolute, but the right to manifest religious belief under the Article is a qualified right.
Not a UK citizen, are they covered by convention rights?
The Convention covers nationals of non-signatory states resident in a signatory state.
Signatory: A State that expresses its consent to be bound by a treaty by signing the treaty without the need for ratification, acceptance or approval. A State may definitively sign a treaty only when the treaty so permits.
