Human Rights Flashcards
Prior to the introduction of the Human Rights Act 1998 came into force in 200, what status did the ECHR have in domestic law?
None - compliance with the ECHR was an international law obligation on the the UK only not a domestic law obligations
As a dualist state, what are the only two ways international law can be enforced against the UK state?
- a claim is made against it to an international court which the UK has submitted to its jurisdiction
- the UK has incorporated international law rules into domestic law by passing a statute. UK domestic courts are then able and duty bound to enforce those rules
What is the purpose of the Human Rights Act 1998?
To incorporate ECHR into UK law so the standards and obligations within it could be enforced in our domestic courts.
In doing so allowing for a more practical and efficient system of domestic rights protection.
When can the state legitimately interfere with qualified ECHR rights?
When all three requirements are met:
- the interference was prescribed by, or in accordance with, the law
- the interference was in pursuit of a legitimate aim
- the interference was necessary in a democratic society (ie proportionate)
What must the domestic courts take into account when enforcing protections under the ECHR?
They must take into account the relevant case law from the ECtHR
What is the concept of positive obligation developed by the ECtHR? Contrast with negative obligation
- a negative obligation - state must refrain from interfering with a human right
Positive obligation - where violation with right has or can be committed by private individuals, the state can in certain circumstances, be under a duty to prevent the violation of said human rights:
i) state can do this through enacting domestic laws that prohibit, deter and punish individuals who commit convention violations
What is the margin of appreciation doctrine developed by the ECtHR?
Contracting states are allowed certain measure of discretion when taking legislative, administrative or judicial measures that restrict ECHR rights on the basis that contracting states have a better knowledge of political, social and cultural traditions that influence their countries than the ECtHR does, and that this should be respected
Margin gives leeway not unlimited discretion. Contracting states will still be subject to the supervision of the ECtHR
What is the principle of proportionality developed by the ECtHR?
Multi-faceted principle and ECtHR employs slightly different tests with respect to the articles when considering whether a fair balance has been struck by the state between the general interests of the community on the one hand and the protection of individuals’ human rights on the other
What is the relationship between the case law of the European Court of Human Rights and domestic courts?
The case law of ECtHR is not strictly binding on domestic courts.
Domestic courts should take into account ECtHR case law and follow it unless special circumstances apply or the decision is fundamentally at odd with the UK constitution.
‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’
What duty are public authorities under under the HRA 1998?
The must not act in way contrary to Convention Rights.
What statutory defences are available for public authorities in relation to their duty not to act in a way contrary to convention rights?
- it is required by primary legislation to act in such a way
- public authority is acting to give effect to or enforce incompatible primary or subordinate legislation
What is a public authority under the 1998 Act?
Not defined in Act.
Westminster in its legislative role is excluded and any person exercising functions in connection with proceedings in Parliament.
What are three types of public bodies identified under the act?
- core public authorities
- hybrid or functional public authorities
- private bodies
What liability will private bodies have under the 1998 Act?
None
What are core public authorities and when will they be subject to the the duty to comply with convention rights?
- central government departments, local authorities, the police, HMRC etc
- they will be subject to the duty in all their actions
What are hybrid or functional public authorities?
- person who does some functions of a public nature
- includes bodies that are private in nature but which is performing a function of a public nature may be liable under HRA in respect of that particular public function.
What factors may be relevant in determining if a body is of hybrid or functional public authorities?
The extent to which in carrying out its public function, the body is:
- publicly funded
- exercising statutory power
- taking the place of central government or local authorities
- providing a public service
What requirements are there for a victim to bring a claim under the HRA 1998?
- must show claim is against a qualifying public authority
- must show that they are or would be victim of unlawful act
- must be a victim of unlawful act in terms of article 34 of the convention ie person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the Contracting States
- must show they are directly affected by state action
Can an applicant be natural or legal?
Yes.
Must able to show that their now rights have been affected so legal person must claim that their own rights have been violated
What is the time limit for bringing a claim under HRA 1998?
Must be commenced within one year of the date of the act complained of.
Extensions may be granted in exceptional circumstances where the court considers it is equitable to do so in all circumstances.
What is the rule in relation to time limits for bringing a claim where violations are ongoing?
Time limit will not run until violation ceases to operate ie not when violation commences.
What is the section 3 duty on interpretation of primary and subordinate legislation and Convention rights?
Duty on the courts to read primary and subordinate legislation ‘so far as it is possible to do so’ in a Convention-compatible way
How far will the courts go in reading primary and secondary legislation in a compatible convention way?
- possible to read down express language of a statute
- possible to imply provisions into statutes
- court can interpret but not amend legislation
- where the use of section 3 would amount to major change in the law which would have far reaching consequences, the court will be less likely to use it
When have the courts refused to use their interpretative powers to read legislation in compatible way? When have the used their powers?
- refused to interpret man and woman to include transexual woman
- did read in additional words as his husband and wife to make legislation compatible for gay cohabits
What can the courts do when reading legislation in a convention compatible way?
- interpret a provision even if language is clear
- adopt a linguistically strained interpretation
- read down language
- read in words/imply provisions
- consider a declaration of incompatibility as a last resort
When will the courts not use their interpretative powers in reading legislation in a convention compatible way?
- when it changes the substance of the provisions completely
- when it runs counter to a fundamental feature of the legislation or the underlying thrust or cardinal feature of it ‘goes against the grain’
- contradicts provisions in the legislation
- repeals or deletes the language used in the legislation
- involves the court making decisions for which it is not equipped
What power does the court have when they find a piece of domestic legislation that is incompatible with Convention rights?
- no power to strike down primary legislation that is incompatible
- discretionary power to make declarations of incompatibility
What is the effect of a declaration of incompatibility?
No legally effect - ministers or parliament are not required to change the legislation
May create political pressure to change legislation
Acts as a signal to Government and Parliament that the legislation is not compliant with the ECHR
If a declaration on incompatibility is made, will the claimant have a remedy?
No because public authority will have defence of acting as a result of primary legislation
What remedies can the court grant for breach of duty?
Court can grant any relief or remedy which it considers just and appropriate.
Including damages, declarations, injunctions, quashing orders, prohibitory order and mandatory orders
Where a declaration of incompatibility is made, what remedial action does the act provide for?
Ministers can take expedited remedial action to amend the relevant legislation as necessary to remove the incompatibility, if ‘there are compelling reasons or proceeding under this section’
What are the two procedures under HRA for ministers to take expedited remedial actions?
- standard procedure - draft amending order laid before Parliament for 60 days before being approved by both Houses
- urgent procedure - order may be laid before Parliament for approval after it is is made
