HR 1 MCQs Flashcards
Which of the following statements best describes the operation of the margin of appreciation doctrine?
Where a case concerns sensitive policy areas, for example: questions of morality, national security or the economy, the ECtHR will withdraw its supervision over whether the relevant decision was a proportionate interference with the person’s Convention rights.
The ECtHR has a clear supervisory role over the legislative, administrative, and judicial actions and decisions of the contracting states, and it will only be in rare cases involving high-level policy decisions that the court will allow considerable discretion to the contracting state to determine whether the relevant interference was justified.
The primary responsibility for the protection of Convention rights lies with the contracting states and consequently, they are allowed a degree of discretion when taking legislative, administrative, and judicial actions that restrict Convention Rights. The doctrine relies upon the premise that the ECHR scheme should respect the contracting states’ different political, social, and cultural traditions, which are best understood by the states themselves. A wider margin of appreciation will be afforded to contracting states in cases involving, for example, questions of morality and national security. However, state discretion is not unlimited, and it is subject to the ultimate supervision of the ECtHR.
The margin of appreciation doctrine provides that the contracting states should be afforded a degree of discretion when taking judicial decisions because the domestic courts are best placed to understand their countries’ political, social, and cultural traditions. A wider margin of appreciation will be allowed in cases involving, for example, questions of morality or national security, although the discretion is not limitless, and the contracting states are subject to the supervision of the ECtHR.
The ECtHR has found that, as state authorities have a better knowledge than it does of the political, social, and cultural traditions that influence their countries, they should be afforded absolute discretion with respect to determining the level of state interference with Convention rights where that involves, for example, questions of morality and national security.
The primary responsibility for the protection of Convention rights lies with the contracting states and consequently, they are allowed a degree of discretion when taking legislative, administrative, and judicial actions that restrict Convention Rights. The doctrine relies upon the premise that the ECHR scheme should respect the contracting states’ different political, social, and cultural traditions, which are best understood by the states themselves. A wider margin of appreciation will be afforded to contracting states in cases involving, for example, questions of morality and national security. However, state discretion is not unlimited, and it is subject to the ultimate supervision of the ECtHR.
Correct. This statement is an accurate synopsis of key aspects of the margin of appreciation doctrine developed by the Strasbourg court.
Which one of the following statements is NOT correct in relation to the various remedial effects of the HRA?
If a declaration of incompatibility is made in a case, the claimant will not get an immediate substantive remedy in a domestic court because of the operation of the s. 6(2) defence.
If a court uses its s. 3 power to interpret a statutory provision in a Convention-compatible way, this will have the effect of nullifying any s. 6(2) defence a public authority otherwise would have had.
If a declaration of incompatibility is made in a case, that will not necessarily mean that the claimant will never get a substantive remedy, as s/he will still be able to take their case to the European Court of Human Rights for a final ruling.
In determining whether a statutory provision is compatible, the court will simply consider and give weight to any declaration the relevant minister may have made under s. 19 HRA.
Under section 8 HRA the domestic courts can apply a wide range of remedies including damages, declarations of the law, injunctions, and an array of other public law orders.
In determining whether a statutory provision is compatible, the court will simply consider and give weight to any declaration the relevant minister may have made under s. 19 HRA.
Correct. This is not an accurate description of the status of a s. 19 declaration. Whether a particular provision is ultimately seen as compatible with the relevant Convention right is a judgement call for the courts and not for the minister sponsoring the original legislation.
You see a new client who is being held at an immigration detention centre. He recently found out that all of his personal letters and legal correspondence were being opened and read by detention officers.
You discover that the immigration detention centre is being run by a company called ForceCorps Ltd. It has entered into contracts with the Home Office to provide immigration detention and transport services. The (fictitious) Contracts for Immigration Services Act 2015 regulates these services and sets out the powers of detention officers which include powers to detain, and to use reasonable force to restrain.
Your client wants to challenge the interference with his correspondence (which engages Article 8 ECHR). Which of the following summarises the most accurate advice to your client on the procedural question of whether and how ForceCorps Ltd is operating as a public authority for the purpose of section 6(1) HRA 1998?
As a private company, ForceCorps has a defence to potential liability under section 6(5), HRA 1998, and therefore it will not be liable for any of its actions.
It is very likely that ForceCorps Ltd, though a private company, would be treated as a functional or hybrid public authority in this context, as it is clearly exercising a public function with respect to the provision of immigration detention services.
ForceCorps is acting as a functional/hybrid public authority because it is performing public functions and therefore, it is potentially liable for all of its actions under s. 6 HRA 1998.
The court is likely to find that ForceCorps is a functional public authority because it is inherently, by its very nature, a public authority.
As a private company, ForceCorps Ltd does not come under the remit of the HRA 1998 at all.
It is very likely that ForceCorps Ltd, though a private company, would be treated as a functional or hybrid public authority in this context, as it is clearly exercising a public function with respect to the provision of immigration detention services.
Correct. ForceCorps would be seen in this context as a functional or hybrid public authority because of the nature of the function it is carrying out in administering immigration services under statutory powers. It is effectively taking the place of central government in delivering these services. Refer back to the key case of Aston Cantlow.
You are contacted by a new client, a recently established group called ‘Stop Unfair Intrusion Now’ (‘SUIN’), which lobbies on surveillance issues. Its stated aim is to ‘roll back the surveillance state’. The charity is seeking advice in relation to a possible challenge it wishes to bring against the government.
This possible challenge relates to a family which has made contact with SUIN. The family believe that they have been placed under surveillance by their local council because of claims made to the council that the family were not living in their child’s school catchment area when they applied for her school place and continue not to live at their claimed address. SUIN claims that this covert surveillance violates the family’s article 8 rights. SUIN tells you that, as far as the family is aware, the surveillance started around 14 months ago and it is ongoing.
On the basis of the information you have, which of the following statements summarises the best advice to your clients in relation to whether SUIN will have standing to bring this challenge under the HRA, and in relation to HRA claim time limits with reference to their case?
SUIN will be able to bring a claim under the HRA because although the surveillance commenced over one year ago, a claim will still be in time because the interference with rights, in the form of surveillance, is still ongoing.
SUIN will not have standing to challenge the surveillance activity because it is not directly affected by this activity as an organisation in its own right; it is only interested in the general policy behind it.
SUIN will not have standing to bring a challenge under the HRA because Convention rights can only attach to natural persons.
Pursuant to s. 7(5) HRA, 1998, HRA claims must be brought within one year from when the act complained of took place. As the interference with the family’s article 8 rights started over one year ago, any claim by SUIN under the HRA is now out of time.
It is likely that SUIN will have standing to challenge the surveillance activity under Art 8 HRA 1998 because the family are directly affected victims.
SUIN will not have standing to challenge the surveillance activity because it is not directly affected by this activity as an organisation in its own right; it is only interested in the general policy behind it.
Correct. This statement reflects the test for standing to bring a claim under the HRA 1998 which is that the applicant must be a directly affected victim of an interference with one of its Convention rights. Refer to sections 7(1) and 7(7), HRA 1998, article 34 ECHR, and the case of Klass v Germany. Under the HRA, the case would need to be brought by individuals affected by the surveillance activity, in other words, by the family.
You are advising a client who wishes to challenge the refusal of the Registrar of Births, Deaths and Marriages to register the identity of her deceased partner in accordance with her partner’s chosen gender (which was genderfluid), as opposed to their biological sex.
Your client informs you that her partner was born female, but several years ago they disclosed that they had always felt that their true identity encompassed both female and male attributes. When the client’s partner was diagnosed with a terminal illness, her partner expressed a clear wish for the death certificate to record their gender identity instead of their biological sex.
You have already advised your client that it is arguable that the statutory scheme which prevents the Registrar from registering her deceased partner as genderfluid rather than female is incompatible with articles 8 and 14, ECHR. As far as you are aware, the Gender Recognition Act 2004 does not assist your client as that recognises the legal right to change gender from female to male and vice-versa, not to legally identify as ‘genderfluid’.
Subject to the court accepting the incompatibility argument, which of the following statements reflects the best advice to your client on the likely approach by the court to its powers under sections 3 and 4, HRA and its reasons?
Whilst the court will acknowledge that the s. 3 duty is a strong one, it is more likely that it will decide it is unable to use s. 3 to read the legislative scheme in a Convention-compatible way and, instead, it may grant a declaration of incompatibility. This is because the case involves matters of complex policy which the court may well feel it is not the appropriate body to deal with.
It is not likely that the court will decide to use s. 3 power to read the incompatible legislation in a Convention-compatible way because of the policy context of the case, including its potentially broad ramifications outside of the issue of the registrations of deaths. Therefore, the court will have to make a declaration of incompatibility.
The court is likely to use its s. 3 power to read the incompatible provisions in a Convention-compatible way. The s. 3 duty is a strong one which should be used wherever it is possible to do so. Here, it would be possible to read down the legislation in a way that provides for a broader understanding of gender identity.
The strength of the s. 3 duty is such that the court would be required to use its s. 3 power to read the incompatible legislation in a Convention-compatible way. In addition, the court could also grant a declaration of incompatibility.
The court is unlikely to use its section 3 power because of the policy context of the case, and there are no further steps it can take beyond that.
Whilst the court will acknowledge that the s. 3 duty is a strong one, it is more likely that it will decide it is unable to use s. 3 to read the legislative scheme in a Convention-compatible way and, instead, it may grant a declaration of incompatibility. This is because the case involves matters of complex policy which the court may well feel it is not the appropriate body to deal with.
Correct. Although the approach of the courts is that they will clearly try to use s. 3 wherever possible, they have identified limits to the proper use of s. 3. In Bellinger Lord Nicholls set out the reasons why the court could not use its s.3 power in that case, which are arguably analogous to the facts here.
Whilst the Gender Recognition Act, which post-dates Bellinger, provides rights to be legally identified as a gender that is different from one’s biological sex, it does not deal with the range of gender identities that fall outside of male and female and are sometimes grouped together under umbrella descriptions such as ‘non-binary’. The court may decide to make a declaration under s. 4, therefore.
Question 1
The Waste Management Act 2015 (fictitious) established the Waste Disposal Commission to decide where incinerators to dispose of household waste shall be built in England and Wales. A woman has objected to a decision made by the Commission approving the building of an incinerator 200 metres from her home. Her main ground of objection is that emissions will harm her and other people living nearby. Experts had produced evidence to the Commission that there were other suitable sites in the locality further away from people’s houses.
Which of the following best describes whether the building of the incinerator breaches any of the woman’s Convention rights?
A The building of the incinerator does not engage any Convention rights as it is in the public interest.
B Although the building of the incinerator engages the woman’s right to a private life, it is a proportionate interference in the public interest.
C Although the building of the incinerator engages the woman’s right to a private life, it is prescribed by law and so cannot be challenged.
D Although the building of the incinerator is in the public interest, it is a disproportionate interference with the woman’s right to a private life.
E The building of the incinerator is not prescribed by law and is a disproportionate interference with the woman’s right to a private life.
Answer
Option D is correct. The woman may be able to argue that her Article 8 right (right to a private life) is being breached; accordingly option A is wrong as Article 8 is engaged. However, Article 8 is a qualified right. The qualification has a legal basis here – the Waste Management Act 2015; hence option E is wrong. The legitimate aim(s) being pursued by the Act are likely to be the ‘economic well-being of the country’. However, the qualification must also be ‘necessary in a democratic society’. Option C is therefore wrong because it incorrectly suggests that it is sufficient if the interference is prescribed by law.
As the qualification has a legal basis and the 2015 Act is pursuing a legitimate aim,
it is necessary to apply the proportionality test. In other words, is the interference with
the woman’s rights proportionate to the objective being achieved, or would any lesser interference be possible? In this case, it seems likely that there are more suitable sites for the incinerator, away from residential areas. Option B is therefore wrong because it states the interference is proportionate.
Question 2
A country that is not a signatory to the European Convention on Human Rights (‘the Convention’) has asked the UK Government to extradite a woman living in the UK to
stand trial for murder in that country. The woman holds the nationality of the country requesting her extradition, but not of any other country. The Secretary of State has ordered the woman’s extradition and the woman has appealed to the High Court against the extradition order. During the hearing she produces evidence that she could face the death penalty if extradited and the High Court accepts the woman’s evidence.
Which of the following best explains whether the High Court would uphold the extradition order?
A It would not uphold the order because the Convention prohibits extradition to non- signatory countries.
B It would not uphold the order because extraditing a person to stand trial for an offence that could result in the imposition of the death penalty would violate that person’s Convention rights.
C It would not uphold the order because extraditing a person to stand trial for an offence that could result in the imposition of the death penalty fails to strike a fair balance between the rights of the individual and the interests of the community.
D It would uphold the order because it is not certain that the death penalty would be imposed on the woman if she was extradited.
E It would uphold the order because the Convention only protects the rights of people who hold the nationality of a state that has signed the Convention.
Answer
Option B is correct. Extraditing a person to a country where they could face the penalty would breach Article 2 (right to life) and probably also of Article 3 of the Convention (prohibition of torture) (Soering (8.8.2 above) and Article 1 of the 13th Protocol (abolition
of the death penalty) (8.25 above)). Option A is wrong because the Convention does not prohibit extradition to non-signatory countries, whilst option C is wrong as the right to life and prohibition of torture are absolute rights and, unlike qualified rights, do not involve a balancing act between the rights of the individual and the interest of the community. Option D is wrong as it is sufficient to engage Articles 2 and 3 if there is a possibility of the death penalty being imposed, whilst option E is wrong as the Convention covers nationals of non- signatory states resident in signatory states.
Question 3
A man employed as a shop assistant in a clothing shop has a small fish symbol tattooed on to his hand. The fish symbol is a Christian symbol. The clothing shop’s employment policy permits shop assistants to have small tattoos that are visible to customers, but prohibits tattoos that have religious significance as it wants to adopt a secular image. The shop has taken disciplinary action against the man. The UK courts have upheld the lawfulness of the disciplinary action, so the man now wants to take action against the UK Government before the European Court of Human Rights.
Can the man argue that the disciplinary action breaches his Convention rights?
A Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted a disproportionate interference with his right to manifest his religion.
B Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted an interference with his absolute right to manifest his religion.
C Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted an interference with his absolute right to freedom of religion.
D No, because the shop has treated all religious symbols equally, so there is no interference with the man’s freedom to manifest his religion.
E No, because the shop’s refusal to allow him to display a small tattoo is a proportionate interference with the man’s freedom to manifest his religion.
Answer
Option A is correct. Based on the case of Eweida (8.16.2), it seems improbable that a small discreet religious symbol would detract from the image that the shop wants to project. It is therefore a disproportionate interference with the man’s qualified right to manifest his religious belief. Option B is wrong because the right to manifest a religious belief is a qualified right, not an absolute right. Option C is wrong because having a tattoo comes within the scope
of manifesting religious belief, a qualified right, rather than holding a religious belief, an absolute right.
Option D is wrong because treating all religions the same does not mean that the right
to manifest one’s religion fails to be engaged. Option E is wrong as the interference with the man’s right to manifest his religion seems to go further than necessary to maintain the shop’s image.
