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LSAM > Human Rights > Flashcards

Human Rights Flashcards

1
Q

What are the positives of universalism in human rights

A
  • An appealing notion that on the surface makes complete sense - inalienable rights, equal, independent
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2
Q

Criticism of universalism and human rights

A

How HR discourse is used in civilising missions and colonial/imperialistic missions, impact of real world power relations, HR as a gift from the East to West, politicising of HR, Neo-liberal use of HR which has resulted in the curtailment of HR of others

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3
Q

Where there is a HR issue in a case, what must the courts do according to the HRA 1998

A
  • common law must be applied in a way that is compatible with the ECHR
  • All relevant legislation must be applied in a manner that is compatible with the ECHR in as far as possible
  • Courts should take into consideration decisions of the ECtHR
  • Higher courts can make a declaration of incompatibility
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4
Q

When (and where) was the ECHR signed and implemented

A

Signed - 4 Nov 1950 in Rome

into force - 3 Sept 1953

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5
Q

Who created the ECHR and how many members does it have

A

Council of Europe - originally 10 and now 47 member states

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6
Q

What does it make for a state to enter reservations when signing the convention

A
  • Statement at time of signing which is reserving a position inconsistent with the convention
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7
Q

What is a derogation?

A
  • Statement that a member state is suspending certain rights under the convention at a time of war or public emergency threatening the life of the nation - ECHR Article 15
  • E.g. france and covid
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8
Q

How does the ECHR work in English law?

A

It is enacted by HRA 1998 which makes several provisions in order to try and enforce it but no sense of supremacy

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9
Q

What is an absolute right and which articles are absolute?

A

A right that cannot be restricted or derogated from
Article 2 - right to life
Article 3 - Prohibition on torture, inhuman, or degrading treatment
Article 4 - prohibition of slavery
Article 7 - prohibition on punishment without law

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10
Q

What is a qualifying right?

A

States can balance different rights and rights with justified restrictions proportionate to the relevant article it curtails

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11
Q

What is article 1?

A

Obligation to respect human rights

Qualified

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12
Q

What is article 2

A

Right to life - Absolute

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13
Q

What is article 3

A

Prohibition of torture, inhuman or degrading treatment - absolute

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14
Q

what is article 4

A

Prohibition on slavery/forced Labour - absolute

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15
Q

What is article 5

A

Right to liberty and security of person - qualified

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16
Q

article 6

A

Right to a fair trial (most used) - qualified

17
Q

Article 7

A

Prohibition on punishment without law -absolute

18
Q

Article 8

A

Art 8 – right to respect for privacy & family life

19
Q

Article 9

A

Art 9 – right to freedom of thought, conscience & religion

20
Q

Article 10

A

Art 10 – right to freedom of expression

21
Q

Article 11

A

Art 11 – right to freedom of assembly & association

22
Q

article 12

A

Art 12 – right to marry and establish a family

23
Q

Article 13

A

Art 13 – right to an effective remedy

24
Q

article 14

A

Art 14 – prohib of discrimination

25
Q

Who can bring complaints in the ECtHR, against whom, and under what conditions?

A

State, individual or organisation v member state
Can only sue state not individual or organisation
Only states that are signatories can be sued against
All domestic remedies must first be exhausted

26
Q

When did the Human Rights Act 1998 come into force and very basically what does it do?

A

into force - 2 October 2000
Put into local law the ECHR and its jurisdiction
so individuals can rely on convention rights
gives selected convention rights a statutory basis

27
Q

How does the HRA 1998 balance out the powers of parliament and Judiciary?

A

By leaving all matters of incompatibility to parliament, the Courts (English or European) cannot disapply an act of parliament

28
Q

What is the direct route in dealing with breaches of human rights as per the convention?

A
  • Individual can sue the state or state-like body
  • All public bodies have a duty to act compatibly with the ECHR - Section 6 HRA 1998
  • Victim harmed by the breach may take action - Section 7 HRA 1998 - must be a victim (no hypotheticals), must be a public authority 6(3) also YL V Birmingham City Council
  • Court main consideration is proportionality
29
Q

Indirect route of the application of ECHR

A
  • Public body so must ensure decisions comply with Convention principles
  • statutory horizontality
  • HRA does not create a new cause of action
30
Q

Describe the ECtHR

A
  • Have to exhaust all remedies before going to the ECtHR
  • A citizen of a signatory state has the right to apply for an order of compensation for breach of convention right
  • Breaches can be direct (through the acts of police etc.) or indirect (claimant arguing they didn’t get a fair trial for a specific point in the criminal trial)
  • Expensive and lengthy
  • claim against the state
  • enforcement completely down to the state in breach can choose to ignore and v little actual steps the ECtHR can take - no absolute obligation on the state or the uk courts to follow it
31
Q

describe and explain a declaration of incompatibility

A
  • HRA ss 3 and 4, - power to declare legislation incompatible with convention right
  • just a notice no enforceable physical power - doesn’t affect validity of the law, or force the govt to do anything
  • Only High court and above
32
Q

describe and explain how incompatibility in delegated legislation is dealt with

A
  • S 4 does not give the right to declare secondary legislation including delegated legislation incompatible
  • Duty to interpret the legislation on par with convention does exist for delegated legislation
  • if still inconsistent - then if the inconsistence lies with the parent act - declaration of incompatibility - , if it lies with delegated legislation - possible to strike it down as ultra vires -
33
Q

What is the impact of the HRA 1998 on interpreting legislation?

A
  • Have to interpret all legislation according to convention rights as far as is possible
  • Able to freely arrive at their own interpretation of each convention right although should follow take inspiration from ECtHR
34
Q

Why is section 3 of HRA 1998 often described as contentious?

A

Biggest issue is around the meaning of “so far as is possible”
On the one hand it could mean make only a cursory attempt - don’t, artificially change meanings, dont strain the language, retain parliamentary sovereignty
On the other it could mean to exhaust every possible option to try and make it possible - be more rigorous with the duty to try achieve consistency even if your straining, only declare compatibility when it is impossible to make the interpretation fit.

35
Q

What is so key about the Ghaidan v Godin-Mendoza case that is so contentious about s3 and judicial power?

A
  • The case was arguing that the rent act 1977 was discriminating against same sex couples because it allowed heterosexual partners to be able to continue to rent after the death of their partners but this wasn’t expanded to this homosexual couple.
  • House of Lords decided to use the expansive approach to construction and in line with HRA 1998 S3 decided to interpret the Rent Act 1977 in line with homosexual as well as heterosexual couples
  • As a result there has been continued argument for more excersie of judicial power like so or the opposite
36
Q

What is the influence of ECtHR on UK courts?

A
  • According to the HRA 1998 act courts have to take into account decisions by ECtHR but are not bound by it and this is the case for all the case law in the ECtHR not just those against the UK
  • This leads to debate and gives different judges their discretion

LSAM (12 decks)

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