Human rights

Question 1

Human Rights - Legislation (pre-HRA)

Answer 1

Parliament could pass laws violating human rights, as it had sovereign power.
The principle of legality required Parliament to confront the consequences and accept political costs of such legislation.
The executive had discretion to make decisions that could infringe on human rights, but these decisions were subject to judicial review based on adapted Wednesbury grounds.
Courts presumed that legislation respected basic rights unless explicitly stated otherwise.
The Human Rights Act (HRA) strengthened human rights protection in the UK.

Question 2

Human Rights - Executive (proof of need of HRA introduction) (pre-HRA) (+ case)

Answer 2

In the case of R v Ministry of Defense, Ex p Smith [1996], the court was presented with a judicial review seeking to challenge the Ministry of Defense’s ban on employing homosexuals. The court upheld the ban, finding that it was not unreasonable under the Wednesbury test, which requires decisions to fall outside the range of reasonable responses. The court acknowledged the importance of evolving societal opinions and the context of human rights but emphasized that failure to consider convention obligations alone does not render an exercise of administrative discretion unlawful.
The HRA, enacted in 1998, provided a framework for protecting human rights in the UK, including holding the executive accountable for potential human rights violations.

Question 3

Human Rights Act 1998

Answer 3

Tightens constraints on Parliament’s ability to legislate against human rights
Incorporates the European Convention on Human Rights (ECHR) into UK law
Allows laws to be challenged if they violate human rights

Question 4

Sections 4 HRA

Answer 4

Section 4: Allows courts to issue declarations of incompatibility for laws conflicting with human rights

Question 5

Section 10 HRA

Answer 5

Grants the government power to make changes to legislation in response to declarations of incompatibility
Aims to bring laws in line with human rights standards

Question 6

Section 6(1) of the Human Rights Act

Answer 6

Makes it unlawful for public authorities to act incompatibly with a Convention right
Applies to government bodies, agencies, and departments
Ensures public authorities uphold human rights in their actions

Question 7

Unlawfulness and Incompatibility

Answer 7

Acting in a way incompatible with a Convention right is deemed unlawful
Incompatibility refers to actions that violate the rights protected by the European Convention on Human Rights (ECHR)

Question 8

Convention Rights

Answer 8

Refers to the rights outlined in the European Convention on Human Rights (ECHR)
Covers various civil, political, economic, social, and cultural rights
Forms the basis of human rights protection in Europe
Includes fundamental human rights like freedom of expression and protection against torture

Question 9

Procedural Impropriety and Bias

Answer 9

Procedural impropriety refers to flaws or irregularities in decision-making processes.
Bias denotes favouritism or prejudice that may affect fairness in decision-making.

Question 10

Supra-National Legal System

Answer 10

ECHR provides an international framework for protecting human rights
European Court of Human Rights (ECtHR) interprets ECHR and influences domestic legal systems

Question 11

Article 10 of the European Convention on Human Rights (ECHR) What is it and what does it entail?

Answer 11

Article 10 guarantees the right to freedom of expression.
This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities, regardless of borders.

Question 12

Prescribed by Law

(Ben’s Cat Ned)

Answer 12

• Basis in Domestic Law: Interference with freedom of expression, such as restrictions or limitations on speech, must have a basis in domestic law. This means that there must be a specific law or legal provision that authorizes and justifies the interference.
• Clear and Accessible: The law should be clear and accessible to individuals. This means that the legal requirements and restrictions on freedom of expression should be written in a manner that is easily understandable and allows individuals to know the extent of their rights and obligations.
• No Bad Faith: The application of the law must not be driven by bad faith or arbitrariness. This means that the enforcement or interpretation of the law should not be motivated by malicious intent, personal bias, or randomness. It should be carried out in a fair and objective manner.
  (Shayler)

Question 13

Legitimate Aim

Answer 13

Interference with freedom of expression must pursue a legitimate aim recognized by the ECHR (D).
Examples of legitimate aims include the protection of national security, public safety, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and reputations of others.

Question 14

Necessary Test

(Sarah Really Pleases Babies)

Answer 14

The interference with freedom of expression must satisfy the necessity test:

• Sufficiently Important: There must be a sufficiently important objective to justify the restriction
• Rational Connection: There should be a rational connection between the means employed and the objective sought to be achieved
• Proportionate: The restriction should be proportionate and not go beyond what is necessary in a democratic society
• Balanced: A fair balance must be struck between the individual’s right to freedom of expression and any competing interests or rights

(Huang (or Bank Mellat))

Question 15

Accessibility of Laws

Answer 15

Laws and regulations concerning freedom of expression should be clear, precise, and accessible to individuals to understand their rights and obligations.
The case of Tugenhadt raises concerns about the accessibility and clarity of laws when it comes to engaging with Article 10.

Question 16

Public Order Act and Article 10

Answer 16

The Public Order Act, which imposes restrictions on certain forms of expression in public spaces, can be compatible with Article 10 if certain conditions are met.
Article 10 recognizes that limitations on freedom of expression may be necessary to protect public order.
The compatibility of the Public Order Act with Article 10 depends on whether the restrictions imposed are proportionate and necessary to maintain public order in a democratic society.

Question 17

Grounds for Limitations in Art 10

Answer 17

The limitations on freedom of expression can be justified based on the following grounds:
National security
Territorial integrity or public safety
Prevention of disorder or crime
Protection of health or morals
Protection of the reputation or rights of others
Prevention of the disclosure of confidential information
Maintenance of the authority and impartiality of the judiciary

Question 18

Shayler case

Answer 18

The Shayler case refers to David Shayler, a former British intelligence officer who leaked classified information to the press.
In the context of Article 10, the Shayler case is often referenced to highlight the importance of restrictions on freedom of expression being prescribed by law.
Shayler argued that his actions were justified as they exposed wrongdoing by intelligence agencies. However, the court ruled that his disclosure of classified information was not protected under freedom of expression, as it was not prescribed by law.

Question 19

Huang case (or Bank Mellat case)

Answer 19

In the Huang case (R (Huang) v Secretary of State for the Home Department),
- the Court examined the legality of detaining a Chinese national pending deportation on grounds of national security.
- The Court assessed whether the interference with the individual’s freedom of expression was necessary in a democratic society to protect national security.
- Ultimately determined the lawfulness of the detention.

Question 20

Proportionality Principle

Answer 20

In the case of Huang v Secretary of State for the Home Department, the House of Lords explained the principle of proportionality.
The test involves four elements: (i) an important objective justifying the limitation of a fundamental right, (ii) a rational connection between the means and the objective, (iii) the means used should not exceed what is necessary, and (iv) a fair balance between individual rights and the interests of the community.
The principle ensures that restrictions on fundamental rights are justified and proportionate in a democratic society.

Question 21

R (BBC) v Justice Secretary [2012] EWHC 13 (Admin)

Answer 21

Proportionality principle applied
Four elements of the proportionality test:
Legitimate Aim
Rational Connection
Necessity
Balancing of Interests
Assessment of lawfulness of restriction on freedom of expression
Evaluation of government’s refusal to grant permission for face-to-face broadcast interview with a prisoner
Weighing competing interests and justifying proportionality of the restriction.

Question 22

How to answer problem q

Answer 22

To answer an Article 10 problem question you need to:
Talk about whether or not they can limit Article 10
If the limitation is passed on all three tests, then it can be limited
But if it can’t be limited, then it is unlawful

Question 23

Human Rights

Answer 23

Fundamental rights and freedoms inherent to all human beings.
Protect individuals from abuse, discrimination, and violations of their dignity.