HRA & ECHR Flashcards by elena s

What does the Human Rights Act 1998 incorporate into UK domestic law?

The European Convention on Human RightsW

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s2 HRA 19998

Domestic courts must take ECtHR judgements into account (but not bound to follow them)

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Are domestic courts bound to follow ECtHR judgements?

No - just have to take them into account (s2 HRA)

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s3 HRA 1998

So far as it is possible to do so, must read & give effect to legislation in a way that is compatible with ECHR rights

(applies to both past & future leg)

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s4 HRA 1998

If a court is satisfied that a provision of primary legislation is incompatible with a Convention right, it may make a declaration of incompatibility

→ High Court & above only

→ Discretionary

→ Declaration doesn’t affect validity of the provision

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s5 HRA 1998

Where the court is considering making declaration of incompatibility under s4(2), the Crown is entitled to notice → minister can become party in the proceedings

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s6 HRA 1998

It is unlawful for public bodies to contravene Convention rights

ie. D should be public body

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Can the HRA be used in a case between private individuals?

Court can consider contravention by way of horizontal affect → individual must bring claim based on existing court action, which court will then develop compatibly with human rights

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s7 HRA 1998

A person has standing to bring a claim if they are the victim of the breach

ie. must be directly & personally affected

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Who has standing to bring a claim for breach of convention rights under HRA 1998?

The victim of the breach ie. must be directly & personally affected

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Can pressure groups bring a claim under HRA 1998 for breach of a convention right?

No → s7: must be victim of breach, ie. only have standing if directly & personally affected

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s6(1) HRA 1998: A public authority will have acted unlawfully in domestic law if they act incompatibly with an ECHR right

Is there a defence to this?

s6(2) defence: won’t have acted unlawfully if UK legislation required or allowed it to have acted incompatibly

(available unless court can interpret legislation compatibly under s3)

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If a public body acts incompatibly with an ECHR right, will they have broken domestic law?

Yes (s6(1))

Will have defence under s6(2) if the UK legislation required or allowed it to have acted incompatibly

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s8 HRA 1998

A court can award damages for breach of a convention right where it is necessary to award just satisfaction to the person whose rights were breached

(usually a common law action under which damages can be awarded instead)

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What remedy is available for a breach of convention rights?

Damages
(where it is necessary to award just satisfaction to the person whose rights were breached - s8)

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s10 HRA 1998

Where there has been a declaration of incompatibility, the govt can amend legislation without full legislative approval to make it compatible

(used to make small adjustments)

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What is the difference between an ECHR

Absolute right
Limited right
Qualified right?

Absolute: can never be interefered with
2 3 4 5 6 7 9 12

Limited: can be limited in clearly defined situations
5 (exceptions re lawful arrest & detention) & 6 (trial in public)

Qualified: can be interfered with to protect an important general interest or rights of others
8 9 10 11 Art1Pro1

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What are the 4 requirements for any qualification (ie. interference) with an ECHR right?

Express
Permitted by state law
Legitimate aim (eg. national security, prevention of crime, public safety, protection of health, freedoms of others, impartiality of judiciary etc.)
Necessary in democratic society (ie. pressing social need for restriction imposed + proportionate)

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What is the test for proportionality re an interference with an ECHR right?

Test: Bank Mellat

i. Sufficiently important objective

ii. Rationally connected to objective

iii. No less intrusive measure possible

iv. Fair balance between rights of individual & community

What is Article 2 ECHR?

Right to life (absolute)

Prohibits state from taking life + positive duty on state to protect life

Is the right to life an absolute or qualified right?

Absolute

Is the use of force resulting in the deprivation of life permitted under Article 2 ECHR (right to life)?

Art 2(2) permits use of force resulting in deprivation of life if certain conditions met

(eg. defence from unlawful violence, to effect lawful arrest, quelling right or insurection)

What is Article 3 ECHR?

Torture, inhuman or degrading treatment or punishment

ABSOLUTE

torture = delib inhuman treatment causing very serious & cruel suffering

inhuman treatment = treatment or punishment likely to cause actual bodily injury or intense physical & mental suffering

Is Article 3 re torture absolute or qualified?

Absolute

What is Article 4 ECHR?

Slavery (absolute) Nb. 4(3) exceptions - prisoners, compulsory military service

Is Article 4 (slavery) absolute or qualified?

Absolute

What is Article 5 ECHR?

Right to liberty & security (**limited**) Aim is to ensure no one is arbitrarily deprived of liberty

Is Article 5 (right to liberty & security) absolute, limited or qualified?

LIMITED → lawful restrictions: * Arrest * Imprisonment after conviction * Detention in context of asylum & deportation * Detention of mentally ill

What is Article 6 ECHR?

Right to a fair trial 6(1): access to independent, impartial court + trial w/in reasonable time + trial conducted fairly + trial in public 6(2): innocent til proven guilty 6(3): if charged with criminal offence - right to be informed, legal representation, time to prepare

Is Article 6 (right to a fair trial) absolute, limited or qualified?

Its **subject to proportionality** Some parts are **limited**: trial doesn't have to be in **public** if eg. national security

What is Article 8 ECHR?

Right to respect for private & family life (qualified) Guarantees respect for a person's: - Private life - Family life - Home - Correspondence

Is Article 8 (right to respect for private & family life) absolute or qualified?

Qualified

What is Article 9 ECHR?

Right to freedom of thought, conscience & religion

Is Article 9 (freedom of though, conscience, religion) absolute or qualified?

Freedom of thought, conscience religion is **absolute** Right to **manifest** religion or belief is **qualified**

What is Article 10 ECHR?

Freedom of expression (qualified)

Is Article 10 (freedom of expression) absolute or qualified?

Qualified - eg. * Interference permitted in interests of national security * Ban on political advertising * Hate speech

What is Article 11 ECHR?

Freedom of assembly & association (qualified) Must be **peaceful** assembly!

Is Article 11 (freedom of assembly) absolute or qualified?

Qualified

What are the 3 main categories of retained EU law?

EU-derived domestic legislation (retained under s2 EUWA) Direct EU legislation (som retained under s3 EUWA) Rights under s2(1) ECA (some preserved under s4 EUWA eg. right to equal pay)

What is the status of EU law retained under s2 EUWA (EU-derived domestic leg)

**Same status** as pre withdrawal

What is the status of EU law retained under ss3 & 4 EWCA?

s3: Direct EU legislation + s4: rights arising under s2(1) ECA → Subdivided into 2 categories: 1. **Retained direct principal EU leg** (amended or repealed by _primary_ leg) 2. **Retained direct minor EU leg**) (amended or repealed as _secondary_ leg)

Where there is a question about the meaning of retained EU law, how will the courts interpret?

Using **domestic case law** + **retained EU case law** (made prior WD) + retained general **principles** of EU law * Judgements of Court of Justice of EU preWD are binding on all UK courts apart from Supreme Court * Court can give regard to post completion day CJEU decisions but they are not binding

Are the judgements of the Court of Justice of EU made * pre-withdrawal * post-withdrawal binding?

Pre-withdrawal: **Yes** → remain binding on all UK courts apart from Supreme Court Post-withdrawl: **No** - courts can give regard to them, but not binding

If there is conflict between a provision of retained EU law & a piece of pre-completion day legislation which is not retained EU law, which will prevail?

The retained EU law

Are strict liability offences (ie. no mens rea required) permitted under Article 6 ECHR?

Yes, provided that they are **reasonable**