HR 1- Intro Flashcards
what are the three absolute rights in the ECHR?
Article 3- torture, inhumane or degrading treatment or punishment.
Article 4- prohibition on slavery and forced labour.
Article 7- no punishment without lawful authority.
what are the three limited rights in echr?
Article 2- right to life
Article 5- right to liberty and security of person.
Article 6- right to a fair trial and fair legal process.
what are the four qualified rights?
Article 8- right to respect for private and family life.
Article 9- freedom of thought, concience and religion.
Article 10- freedom of expression.
Article 11- freedom of assembly and association.
what are the conditions to breach a qualified right?
a- interference was prescribed by, or in accordance with, the law.
b- the interference was in pursuit of a legitimate aim.
c- the interference was necessary in a democratic society.
what is the rule in Osman v Uk with positive obligations?
authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their pwoers which judged reasoanbly might have been expected to avoid that risk.
what are the four key obligations that the HRA created? (they are subsections)
Section 2: In determining legal questions, the courts must take into account relevant ECHR case law.
Section 3: Legislation must be read and given effect (by the courts), so far as is possible, in a way that is compatible with ECHR rights
Section 4: If the above (s. 3) is not possible, the court may make a declaration of incompatibility.
Section 6(1): It is unlawful for
‘public authorities’ (including courts and tribunals) to act in a way that is incompatible with Convention rights.
how can public authorities not breach section 6 HRA?
a- required by primary legislation to act.
b- acting so as to give effect to or to enforce incompatible primary or subordinate legislation.
who is a public authority for the purposes of section 6 HRA?
If a private body but with public functions…
1. publicly funded or
2. exercising statutory power, or
3. taking the place of central government or local authorities or
4. providing a public service.
what is the standing test in temrs of making a claim?
- applicant must be a person.
- a victim of the unlawful act.
- must bring a claim within one year of the date of the act complained of.
- if the violation is continuous, the date starts when the violation ceases to operate.
WHAT IS THE UK COURTS APPROACH TO S3 (read in line with ECHR as much as possible)
Courts can:
- interpret a provision even if the language is clear,
- adopt a linguistically strained interpretation.
- read in words/imply in provisions/
Court CANNOT:
- change the substance of the provision completely.
- contract provisions in the legislation.
- repeal or delete the language used in the legislation.
- make decisons for which the court is not equipped.
what is a declaration of incompatibility and do uk courts use it?
if the court is satisfied that the provision is incompatible with a convention right. declaration does not affect the validity and is not binding on the parties on the parties in the proceedings in which it was made.
not often.
what are the defences to s6- public authorities must act in a way that is compatible with a convention right?
6(2)(a)- authority could not have acted differently,
6(2)(b)- primary legislation which cannot be read or given effect in a way which is compatible with the convention rights.
what is article 1 ECHR?
PRIMARILY TERRITORIAL, but in exceptional circumstances applies to a non-national when a state exercises effective control over an individual outside its territory.
