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FLK 1 - Constitutional Law > Human Rights > Flashcards

Human Rights Flashcards

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1
Q

When can a UK citizen approach the European Court of Human Rights under the ECHR?

A

Once they have exhausted the legal process in the UK

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2
Q

The Human Rights Act, 1998, distinguishes three categories of rights, what are they?

A
  1. Absolute
  2. Limited
  3. Qualified
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3
Q

What are absolute rights?

A

Rights that cannot be limited by state

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4
Q

Can absolute rights be limited by the state during war or national emergencies, or balanced against needs of public interest or other individuals?

A

No

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5
Q

What are the absolute rights?

A
  1. Life
  2. Prohibition of torture
  3. Prohibition of slavery and servitude
  4. Prohibition of retrospective criminal offences
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6
Q

What are limited rights?

A

A right whose scope can be limited only in the article itself

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7
Q

What are the limited rights?

A
  1. LIberty and security
  2. Fair trial
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8
Q

When can the limited right to liberty and security be limited?

A
  1. Detention of criminal convicts
  2. Arrest/detention for failure to comply with court order
  3. Arrest/detention someone REASONABLY SUSPECTED having committed a crime OR REASONABLY NECESSARY to prevent the committing of the offence
  4. Detention of a person to prevent spreading infectious diseases / mentally ill persons
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9
Q

What are qualified rights?

A

Rights that can be limited to PURSUE A LEGITIMATE INTEREST as outline in the article

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10
Q

Name some qualified rights?

A
  1. Freedom of Expression
  2. Freedom of assembly and association
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11
Q

How is the qualified right to freedom of expression limited?

A

To the extent necessary in a democratic society to achieve the following aims:
1. National security
2. Territorial integrity
3. Public safety
4. Prevention of disorder/crime
5. Protection of health or morals

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12
Q

How is the the qualified right to freedom of assembly and association limited?

A

Restrictions as are necessary to achieve the following aims:
1. National Security
2. Prevention of disorder or crime
3. Protection of health or morals
4. Protection of rights and freedoms of others

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13
Q

Explain the three-part proportionality test used to restrict a qualified right?

A

A Is the policy and legitimate aim sufficiently important to justify the limitation

  1. Does the measure meet the objective and is rationally connected to it?
  2. Is the limitation no more than necessary to accomplish the objective
  3. Is the measure reasonable and balanced, given the competing needs of individual and community
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14
Q

What is judicial deference?

A

When courts defer to parliament for politically controversial issues. The more deference applied, the less argument and evidence required to show proportionality of a measureW

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15
Q

In what matters are courts usually more deferential?

A

Issues of national security

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16
Q

What is the “margin of appreciation” and who applies it?

A

The European Court of Human Rights allows a state some discretion in limiting qualified rights, depending on how all other states view that right

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17
Q

Explain the two margins of appreciation?

A
  1. Narrow - where most states have a common approach, the court applies a narrow margin
  2. Wife - where each state approaches the issue differently
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18
Q

What test will the European Court of Human Rights use when applying a narrow margin of appreciation?

A

Proportionality + whether the discretion was exercised carefully and in good faith

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19
Q

What is the “living instrument principle” of the ECHR and what are its three principles:

A

The meaning of the ECHR changes according to socio-economic conditions:

  1. European Court is not bound by previous decisions
  2. European Court can choose to follow an approach adopted by some/all states on an issue/right
  3. European Court must be accessible to all individuals
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20
Q

When can a state derogate (depart) from the ECHR?

A

War or public emergency that threatens the lift of a nation

21
Q

What ECHR rights can a state derogate from under wartime or similar conditions?

A

All other than the absolute rights

22
Q

To what extent can a state derogate (depart) from the ECRH rights (not what rights can be limited, but how much)?

A

Only as strictly required by the circumstances

23
Q

Explain the “mirror principle” that UK courts are bound by in interpreting ECHR convention rights?

A

UK courts must take an approach reflecting a previous decision of the European Court by offering no more or less than what the previous decision offered

24
Q

How are UK courts bound by European Court decisions on convention rights?

A

Where there is a clear line of authority on interpretation of a convention right

25
Q

What does the Human Rights Act compel UK courts to do in interpreting legislation?

A

Requires UK courts to interpret legislation in a way that is compatible with Convention right as interpreted by the European Court

26
Q

Can a court strike down legislation when it is not possible to interpret it in a way that complies with Convention Rights?

A

No, due to parliamentary sovereignty, it issues a declaration of incompatibility

27
Q

Does a declaration of incompatibility invalidate a law?

A

No, it signals to parliament to reconsider the matter

28
Q

What are the two fast-track procedures for correcting legislation served with a declaration of incompatibility under the Human Rights Act?

A
  1. Non-urgent procedure
  2. Urgent procedure
29
Q

What is the Non-urgent procedure under the Human Rights Act for correcting legislation served by a declaration of incompatibility?

A

Minister lays a remedial order draft before both houses which allows Minister to amend an Act or Secondary legislation via a secondary legislation

30
Q

How do remedial orders (non-urgent procedure to correct legislations served by a declaration of incompatibility) become law?

A

Remedial order must be passed by both HoC and HoL after laying in draft for 60 days

31
Q

How does the urgent procedure for correcting legislation served with a declaration of incompatibility work?

A

Someone (usually a Minister) makes an order with immediate effect and then it is laid before parliament for 120 days after which it ceases to have effect if either house does not pass the resolution approving the order

32
Q

What is the additional ground of judicial review created by Section 6 of the Human Rights Act?

A

It prohibits public authorities from acting in a way that is incompatible with a Convention Right

33
Q

What is a public authority for the purpose of the Human Rights Act?

A

Includes a court, or tribunal and any person whose functions are of a public nature EXCLUDING parliament

34
Q

When can a public authorities actions never be found unlawful for incompatibility with HRA?

A
  1. If they could not act differently without violating the law in an Act
  2. If the primary legislation could not be read/effected in a way that is compatible with Convention Rights
35
Q

What happens if a public authority relies on the exclusions for unlawful actions under HRA?

A

Declaration of incompatibility is issued

36
Q

Who can bring an action against a public authority for acting in a manner incompatible with Convention Rights?

A

Only someone who is the VICTIM of an alleged unlawful act

37
Q

Does the victim test for judicial review under the HRA allow interest groups to seek judicial review on behalf of others?

A

No

38
Q

What is the time limit for judicial review of a case involving a contravention of Convention Rights?

A

1 year from the date of the offence

39
Q

What remedies can a court grant for a Section 6 HRA application (judicial review)

A

It can, or refuse to, grant an order. If it does, it must be JUST and APPROPRIATE

40
Q

Can a freestanding discrimination claim be brought under the HRA?

A

No, a claim of discrimination can only be brought if it is attached to another convention right

41
Q

What margin of appreciation does the European Court grant states for application of Article 14 (discrimination) of the ECHR?

A

Narrow

42
Q

Can a freestanding claim for discrimination be brought in the UK Courts?

A

Yes, under the Equality Act, 2010

43
Q

Who can bring a freestanding discrimination claim under the Equality Act, 2010?

A

For employment, workers

44
Q

What are the types of discrimination:

A
  1. Direct
  2. Indirect
  3. Harrasment
  4. Victimisation
45
Q

What is direct discrimination?

A

When one is treated less favourably because of their protected status

46
Q

What is indirect discrimination?

A

When there is a policy, practice or procedure that applies to everyone but unfavourably affects a protected group

47
Q

What is the exception to indirect discrimination>

A

If the policy is:
1. Universal
2. Proportionate means
3. To achieve a legitimate aim

“Objective justification”

48
Q

Explain harassment and victimisation?

A

The first is when you are subject to unwanted behaviour which makes you feel humiliated, degraded or uncomfortable

The second is where you are penalised for complaining of discrimination or helping someone who made such a complaint

49
Q

If a discrimination claim is being made under the HRA, can a freestanding claim of discrimination be made?

A

No, it MUST BE LINKED to another convention right

FLK 1 - Constitutional Law (11 decks)

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