Human Rights

Question 1

What are the absolute rights? (No derogation permitted, even in a state of national emergency)

Answer 1

Article 2 - the right to life
Article 3 - freedom from torture or inhuman or degrading treatment
Article 4 - freedom from slavery or forced labour
Article 7 - no punishment without law

Question 2

What are the limited rights? Can be derogated from:

Answer 2

Article 5 - the right to liberty and security
Article 6 - the right to a fair trial
Article 12 - the right to marriage

Question 3

What are the qualified rights? Derogation permitted under much wider terms set out in statute:

Answer 3

-article 8 - private life and family - article 8 grants four freedoms: freedom of private life, of family life, of home and of correspondence
-article 9 - freedom of belief
-article 10 - freedom of expression - sets out 4 freedoms: freedom of expression, to impart and receive information and ideas
-article 11 - freedom of assembly and association
-article 14 - freedom from discrimination - that the enjoyment of the rights and freedoms set forth in the ECHR be secured without discrimination on any ground

Question 4

What is the vertical effect?

Answer 4

Where the ECHR and the HRA extend to disputes between individuals and public authorities, they are said to have a ‘vertical effect’.

Question 5

What is the horizontal effect?

Answer 5

Disputes between two individuals.

Question 6

Who can bring a complaint to the ECtHR?

Answer 6

-applicants’ complaints must be founded on a right mentioned in the Convention or its protocols
-an alleged Convention breach must have been committed by a public authority
-direct/indirect victims may bring complaints

Question 7

When must applications to the ECtHR be submitted?

Answer 7

Applications must be submitted no later than 6 months after the final decision by the highest competent national authority.

Question 8

What does an applicant need to establish standing for an application to the ECtHR?

Answer 8

1. Inter-state complaints
2. Individual applications lodged by any person, group of individuals, company or NGO

Applicants must have suffered a significant disadvantage

Question 9

What judicial principles have emerged from the ECtHR?

Answer 9

Margin of appreciation - contracting states may restrict convention rights, based on political, social and cultural traditions
Subsidiarity - the state should decide for itself what is appropriate
Proportionality - reasonable relationship between a particular objective to be achieved and the means used to achieve it
Just satisfaction - where the ECtHR does find a breach, it may grant “just satisfaction” to the applicant by means of monetary compensation. The court may not quash decisions of national courts/repeal laws of contracting states.

Question 10

What is the effect of ECtHR judgments?

Answer 10

Judgments are not binding on national courts, but they are binding on national governments.

Question 11

What is the Human Rights Act 1998?

Answer 11

The HRA 1998 is a specific piece of domestic legislation which incorporates the European Convention on Human Rights into UK domestic law.

The UK ratified the Convention in 1951 and declared that it would accept the jurisdiction of the ECtHR in relation to individual complaints.

Question 12

Scope of the HRA in UK courts?

Answer 12

The HRA makes available in UK courts a remedy for breach of a convention right, without the need to go to the ECtHR.

The courts are required to take into account ECtHR judgments and interpret primary/subordinate legislation in a way which is compatible with the rights incorporated into domestic law by HRA convention rights.

Question 13

Do ECtHR decisions have a binding status on UK courts?

Answer 13

ECtHR decisions do NOT have a binding status on UK courts but the UK courts are bound to CONSIDER relevant ECtHR case law when making any decision re convention rights.

Question 14

What is the impact of the HRA on UK legislation? (s.3 interpretation of legislation)

Answer 14

As far as possible, legislation may be read in a way that is compatible with convention rights but s.3 does not affect the validity, continuing operation or enforcement of any incompatible primary legislation. S.3 allows for JR of Acts of Parliament but the courts cannot set aside the Acts.

Question 15

What is the remit of s.4 - declaration of incompatibility?

Answer 15

Primary legislation - may be declared incompatible by courts but not struck out
Secondary - may be declared incompatible by courts AND struck out, provided the primary legislation does not prevent this

Question 16

Which courts can make a deflation of incompatibility?

Answer 16

Only the HC, the CoA and the SC have the power to make DOIs.

Question 17

What happens once a DOI is made?

Answer 17

It triggers a power that allows a Minister to make a remedial order to amend the legislation to bring it into line with the Convention rights.

Question 18

Impact of the HRA on public authorities?

Answer 18

Public authorities must comply with the HRA.

Exception - a public authority will not have acted unlawfully if the authority could not have acted differently because of legislative provisions.

Question 19

The HRA creates 3 types of public authority:

Answer 19

1. Core public authorities
2. Functional/hybrid public authorities
3. Courts and tribunals

Question 20

What is the time limit for making a complaint that a public authority has acted in a way that is incompatible with Convention rights?

Answer 20

Cases must be brought within one year of the date on which the act complained of took place.

BUT if JR - must be promptly and 3 months at latest.

Question 21

What is the significance of s.1 of the HRA?

Answer 21

s.1 gives effect to the Articles of the ECHR as set out under schedule 1, the ‘Convention Rights’.

Question 22

What are the conditions required for a state to interfere with a qualified ECHR right?

Answer 22

1. The interference must be prescribed by law
2. In pursuit of a legitimate aim
3. Necessary to answer a ‘pressing social need’
4. Qualification must have been proportionate