Human Rights Flashcards
Which rights are limited rights?
Rights which can in some circumstances be lawfully interfered with:
Article 2: right to life
Article 5: right to liberty and security
Article 6: right to a fair trial
Which rights are absolute rights?
Absolute rights are rights which cannot be lawfully interfered with in any way by the state:
Article 3: freedom from torture and inhuman or degrading treatment
Article 4: prohibition of slavery and forced labour
Article 7: prohibition on retrospective criminal offences
Which rights are qualified rights?
Rights which can be lawfully interfered with provided certain legal tests are met:
Article 8: right to respect for private and family life
Article 10: right to freedom of expression and information
Article 11: right to freedom of association and assembly
What must be shown to interfere legitimately with a qualified Convention right?
- 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 (proportionate)
Positive and Negative obligations
Positive obligation: under a duty to prevent the violation of human rights being carried out
e..g enacting laws
Negative obligation: refrain from interfering with a human right
What is the doctrine of margin of appreciation?
The doctrine reflects the subsidiary role of the ECHR in protecting human rights - contracting states are allowed a certain measure of discretion when taking legislative, administrative or judicial measures that restrict ECHR rights.
Contracting states have a better knowledge of the political, social and cultural traditions that influence their countries than the ECtHR does.
BUT NOT unlimited - still subject to ultimate supervision by the ECHR.
What is the principle of proportionality?
Balance between general interests of the community and the protection of individuals’ human rights on the other
Section 2: ECHR
In determining legal questions, the courts must take into account relevant ECHR case law.
ECHR case law is not binding but domestic courts should follow any clear and consistent jurisprudence unless there are special circumstances or the decisions of the ECHR would compel a conclusion fundamentally at odds with the UK constitution.
ECHR decisions
Relates to section 2
While the case law of the ECHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there are special circumstances or decisions would be fundamentally at odds with the UK constitution - mirror approach.
Moved away from this - Dialogue approach: legal principles in the UK should also influence Strasbourg.
Section 6(1): ECHR
It is unlawful for ‘public authorities’ (including courts and tribunals) to act in a way that is incompatible with Convention rights.
Note defence: 6(2)
What is a public authority under the HRA?
- Core public authorities: clearly and inherently public in nature - subject in respect of all their actions e.g. central govt departments, the police; HMRC
- Hybrid public authorities: A body which might be private in nature but which is performing a function of public nature - may be liable in respect of the public function; e.g. housing associations, care homes
Will examine the extent to which in carrying out the function the body is: - publicly funded
- exercising statutory power
- taking the place of central government or local authorities
- providing a public service
Note: Westminster parliament in its legislative roles and any person exercising functions in connection with proceedings in Parliament are expressly excluded.
Who has standing to bring a claim under the HRA?
Under S7(1) an applicant must show that s/he is or would be a victim of the unlawful act. May be any person, non-govt org or group of individuals.
Victim test: Must show they are directly affected by the state action.
Note: an organisation cannot bring a claim on behalf of someone - they must have standing in their own right.
What is the time limit for an HRA claim?
Must be commenced within one year of the date of the act complained.
An extension of time may be granted (exceptionally) where the court considers it equitable to do so.
If the violation is continuing the time will not stop running until the violation ceases to operate.
Note: if an HRA claim is being brought within a wider judicial review application the stricter JR time limits will apply.
What is the time limit if a JR and HRA claim are brought at the same time?
If an HRA claim is being brought within a wider judicial review application the stricter JR time limits will apply.
Section 3: ECHR
There is a duty on the court to read primary and subordinate legislation ‘so far as it is possible to do so’ in a Convention-compatible way.
- strong power
- can read implied provisions into Acts
- less willing to use it if it would bring about a change in the law that would have far-reaching consequences (the power isn’t to amend legislation)
e.g. interpreting husband and wife to be compatible to gay couples.
When would using section 3 power go too far?
If it:
- changes the substance of the provisions completely
- runs counter to a fundamental feature of the legislation or to the underlying thrust or cardinal feature of it
- contradicts provisions in the legislation
- repeals or deletes the language used in legislation
- involves the court making decisions for which it is not equipped.
When can s3 be used?
to:
- interpret a provision even if the language is clear
- adopt a linguistically strained interpretation
- read down language (making it narrower)
- read in words/imply provisions
- declaration of incompatibility should be a last resort
Section 4: ECHR
The court has a power to make ‘declarations of incompatibility’ where UK legislation is incompatible with Convention rights.
This is discretionary - the court does not have to use it.
Not available to the lower courts (high court and appellate courts only)
What is the effect of a declaration of incompatibility?
a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and
b) it is not binding on the parties to the proceedings in which it is made
The declaration is really more of a political tool than a legal tool.
What is the defence for a public authority acting in an incompatible way to a convention right?
A public authority will not breach its obligation if:
a) it is required by primary legislation to so act; or
b) it is acting so as to give effect to or enforce incompatible primary or subordinate legislation
What is the purpose of the statutory defence?
It is designed to ensure that the principle of parliamentary sovereignty is not undermined.
What happens to the statutory defence if the court uses s3 and reads the provision compatibly?
It means the public authority’s potential defence under s6(2) will effectively disappear, meaning it cannot avoid liability - this will provide a remedy for the applicant.
What happens to the statutory defence if the court issues a s4 incompatibility declaration?
The claimant will not have a remedy as the defence will remain in place.
Note: claimant can still take their case to the ECHR for a final ruling
What are the remedies under the HRA?
Court may grant such relief as it considers “just and appropriate”
Range of remedies: damages, declarations, injunctions and quashing orders, prohibitory orders and mandatory orders.
What is remedial action?
S10: relevant ministers may take expedited ‘remedial action’ to amend the relevant legislation as necessary to remove the incompatibility if compelling reasons.
Standard procedure: requires that a draft amending order be laid before Parliament for 60 days before being approved by the Houses of Parliament.
Urgent cases: order may be laid before Parliament for approval after it is made.
Does a victim have to be a national of the state concerned to be able to rely on ECHR rights against the state?
No. It is enough they were within the state’s jurisdiction.
When can states derogate out of the rights protected by the ECHR?
- In time or war or public emergency threatening the life of the nation, any high contracting party may take measures derogating from tis obligations under this Convention to the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with its other obligations under international law
- No derogation from Article 2 except in respect of deaths resulting from lawful acts of war or from Articles 3, 4 and 6.
Note: proportionality approach
Article 2
The right to life.
State has negative obligation to refrain from killing and investigative
Duty to fully investigate cases of state killing (extends abroad: duty to investigate killings of Iraqi civilians) and to third party killings (eg prison mate killing - why was he placed in a cell with a known violent racist?)
Positive duty to protect life (only if known or ought to know there is a real risk and failed to take appropriate measures) - Osman
- no duty to prevent withdrawal of life support (no obligation to prolong life where the prognosis is poor)
- duty where patient who was clearly suicidal was released when she shouldve been detained
Not an absolute right (allows state to take life for exceptional law enforcement purposes) BUT must demonstrate the use of its force was no more than absolutely necessary - degree of force was proportionate to achieve a legitimate aim.
Article 2: duty to investigate
The investigation must be public, independent and involve the full participation of the family. At least two of these requirements appear to have been breached. Refer to the case of R (Amin).
