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(FLK1) Public Law > Human Rights > Flashcards

Human Rights Flashcards

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1
Q

What are the Three Types of Rights under the European Convention of Human Rights (“ECHR”)?

A
  • Absolute Rights.
  • Limited Rights.
  • Qualified Rights.

The ECHR was transposed through the Human Rights Act (“HRA”) 1998.

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2
Q

What is the Effect of Article 1 under the European Convention of Human Rights?

A

All States must secure Convention Rights for anyone within their Jurisdiction, i.e. their territory, domestic or occupied.

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3
Q

What is the Effect of Article 15 under the European Convention of Human Rights?

A
  • States may temporarily Derogate from certain Rights in times of war or public emergency;
  • So long as the Derogation is proportionate and compliant with other international obligations.
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4
Q

What are the Absolute Rights under the European Convention of Human Rights?

A

Rights that cannot be interfered with by the State under any circumstances.

  • Art. 3, Freedom from Torture: Prohibits torture or inhuman or degrading treatment or punishment.
  • Art. 4, Freedom from Slavery: Prohibits slavery, servitude, and forced labour, which also applies to human trafficking.
  • Art. 7, No Punishment Without Law: Ensures no punishment without lawful authority, especially prohibiting retrospective criminalization or punishment.
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5
Q

What are the Limited Rights under the European Convention of Human Rights?

A

Rights that cannot be interfered with by the State except under specific circumstances.

  • Art. 2, Right to Life: Right to Life, with specific lawful exceptions.
  • Art. 5, Right to Liberty: Right to Liberty and Security, allowing Lawful Detention in certain situations.
  • Art. 6, Right to Fair Trial: Right to a Fair Trial and Due Process, subject to Judicial procedures.
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6
Q

What are the Qualified Rights under the European Convention of Human Rights?

A

Rights that can be interfered with by the State, but only for legitimate reasons.

  • Art. 8, Right to Privacy: Particualry as concerns private and family life, the home, and correspondences.
  • Art. 9, Freedom of Thought, Conscience, and Religion.
  • Art. 10, Freedom of Expression.
  • Art. 11, Freedom of Association and Assembly.
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7
Q

When is it Legitimate for a State to Interfere with a Qualified Right?

A

When it can prove the following:

  • It is Lawful under Domestic Law.
  • It is necessary to achieve a Legitimate Purpose.
  • It is Proportionate in Its interference given its Purpose.
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8
Q

What are the Core Judicial Doctrines concerning Human Rights?

A
  • Proportionality.
  • Positive Obligation.
  • Margin of Appreciation.
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9
Q

What is the Doctrine of Proportionality?

A

Any interference with an Individual’s Rights must strike a balance between:

  • The Individual’s Rights; and
  • The Community’s interests.
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10
Q

What is the Doctrine of Positive Obligation?

A

The State must protect Individuals from interference with their Rights by Non-State Actors.

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11
Q

What is the Doctrine of Margin of Appreciation?

A

Member States have some discretion in how they choose to implement Convention Rights, subject to the ECtHR’s supervision.

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12
Q

What are the Lawful Exceptions to Article 2?

A

Any use of force by a State Actor must be proportionate and no more than absolutely necessary. This may include:

  • Quelling a riot or insurrection.
  • Defending any person from unlawful violence.
  • Effecting a lawful arrest or preventing escape from lawful detention.

Art. 2 is interpreted strictly and cannot be derogated except in lawful acts of war.

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13
Q

What Obligations does Article 2 place on the State?

A

The State must:

  • Refrain from unlawful killing.
  • Protect life through legal and preventive measures.
    • Especially if it has Actual or Constructive Notice of a probable risk.
  • Investigate deaths caused by State Actors.
  • Investigate deaths caused by Non-State Actors if it had a custodial responsibility over the Victim.
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14
Q

Under Article 3, what constitutes Inhuman or Degrading Treatment?

A

The infliction of substantial suffering, reaching an extreme level of unacceptability. This depends on:

  • The Treatment’s duration.
  • How the Treatment was conducted.
  • The Treatment’s nature and context.
  • The Treatment’s effects on the Victim’s immediate and long-term health.
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15
Q

Under Article 3, what constitutes Torture?

A

The deliberate infliction of intense suffering constituting severe cruelty. This depends on:

  • The Treatment’s duration.
  • How the Treatment was conducted.
  • The Treatment’s nature and context.
  • The Treatment’s effects on the Victim’s immediate and long-term health.
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16
Q

What Obligations does Article 3 place on the State?

A

The State must:

  • Refrain from Torture and Inhuman and Degrading Treatment.
  • Prevent such outcomes through legal and preventive measures.
    • Especially if it has Actual or Constructive Notice of a probable risk.
  • Investigate instances caused by State Actors.
  • Investigate instances caused by Non-State Actors if it had a custodial responsibility over the Victim.

The State cannot deport or extradite an Individual if it seriously risks breaching Art. 3, including by Non-State Actors.

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17
Q

Under Article 5, what constitutes a Deprivation of Liberty?

A

Confinement that restricts freedom significantly.

18
Q

Under Article 5, when is Deprivation of Liberty permissible?

A

When it is supported by a clear, principled legal basis in Domestic Law. The Law itself:

  • Must be sufficiently accessible and foreseeable; and
  • Must not give unfettered discretion to Authorities.

In other words, it is Prescribed by Law.

19
Q

Under Article 5, when is Deprivation of Liberty pursuant to a Criminal Arrest permissible?

A
  • Reasonable Suspicion: The Arrest is based on new, objective facts that would satisfy a reasonable observer.
  • Preventive Detention: The Detention is necessary to prevent an escape or the commission of a specific offence.
20
Q

What are the Procedural Protections for Individuals under Article 5?

A

Right to Know the Reasons for Arrest:

  • Individuals must be clearly informed on why they were detained and any charges within a reasonable time.
  • Information must be sufficient to allow an understanding of the legal grounds for detention.

Right to Prompt Judicial Review:

  • Individuals have a right to a prompt Judicial Review and to a Trial within a reasonable time.

Right to Challenge Lawfulness of Detention:

  • Individuals to challenge the legality of their Detention before a Court within four days.

Right to Compensation for Unlawful Detention:

  • The State must provide enforceable compensation for unlawful Deprivation of Liberty.
21
Q

Under Article 6, what is a Detainee categorically entitled to?

A
  • A fair and public hearing within a reasonable time by an independent and impartial tribunal.
  • This triggers when their civil rights, obligations, or criminal charges are being determined.

Art. 6 is the source of the Presumption of Innocence.

Art. 6 also demands that the Investigation be conducted fairly, e.g. that the Individual be cautioned at Interview.

22
Q

Under Article 6, what Right is Implied in favour of Individuals?

A

The right to access professional legal representation, which is treated especially strictly if:

  • The case is complex; or
  • The penalty is severe.
23
Q

Under Article 6, what are the Minimum Rights of Individuals in Criminal Proceedings?

A
  • Right to examine witnesses.
  • Right to an interpreter if needed.
  • Right to be informed promptly of charges.
  • Right to remain silent and not self-incriminate.
  • Right to defend oneself or have legal assistance.
  • Right to adequate time and facilities to prepare a Defence.
24
Q

What does Article 8 Protect from Interference?

A

The Home:

  • Expectations of Privacy at One’s Residence(s).
  • Protection from Arbitrary Entry or Interference.

Family Life:

  • Familial Integrity.
  • Family Within and Beyond Marriage.

Private Life:

  • Human Dignity.
  • Physical and Moral Integrity.
  • Personal Identity and Privacy.

Private Correspondences:

  • Includes all Forms of Private Communication.
  • Protection from Interception or Surveillance.
25
Q

When is Interference with Article 8 Legitimate?

A
  • It has a clear and accessible legal basis.
  • It has a Legitimate Purpose, e.g. National Security.
  • It is necessary and proportionate, responding to a pressing social need in a Democratic Society.
26
Q

What is Indirect Horizontal Effect?

A
  • Courts must act in line with the Convention, even in Disputes between Private Parties.
  • Note that the HRA does not create new legal actions in such Disputes.

Consequently, the Courts must interpret and evolve Common Law principles in line with the Convention.

27
Q

What are the Elements of the Tort of Misuse of Private Information?

A

Reasonable Expectation of Privacy:

  • The Claimant must show a reasonable expectation of privacy regarding the disclosed information.
  • This usually includes anything obviously private or intended to remain non-public, but the exercise is ultimately fact-specific.
  • The mere fact that information is publicly available may diminish an expectation, but does not necessarily extinguish it.
  • Individuals retain some control over their private information despite previous disclosures.

Balancing Exercise between Articles 8 and 10:

  • The Claimant must convince the Court their Right to Privacy outweighs the Respondent’s Right to Freedom of Expression.
  • Relevant factors may include:
    • Manner of publication.
    • Nature of the Subject’s activities.
    • Public interest in the disclosed information.
28
Q

What is Protected by Article 10?

A
  • The Right to hold, receive, and express information without State Interference.
  • This includes information that offend, shock, or disturb the State or any demographic.
29
Q

When is Interference with Article 10 Legitimate?

A
  • It has a clear and accessible legal basis.
  • It has a Legitimate Purpose, e.g. National Security.
  • It is necessary and proportionate, responding to a pressing social need in a Democratic Society.

Classic examples include:

  • National Security.
  • Prevention of Disorder or Crime.
  • Protection of the Rights and Reputation of Others.
  • Protection of Health or Morals (Wide Margin of Appreciation).
30
Q

Under §2 HRA, when should UK Courts follow ECtHR Decisions?

A

Whenever possible, unless:

  • Special circumstances exist;
  • It fundamentally conflicts with the UK Constitution; or
  • It overlooks specific UK legal traditions or principles.
31
Q

Under §6 HRA, when may a UK Authority infringe upon a Convention Right?

A

§6(2)(a):

  • Its actions are dictated by Primary Legislation, and it has no discretion to act in compliance with the Convention
  • This applies when the Authority has an unavoidable Statutory Duty to act.

§6(2)(b):

  • Its actions comply with or enforce Primary Legislation that is Convention-incompatiable.
  • This applies when the Authority has discretion to act, and choose to do so per Legislative intentions.
32
Q

How is §6 Applied in Practice?

A
  • The Court attempts to reconcile the Statute and Convention.
  • If successful, §6 fails and the Authority may be held liable.
  • If unsuccessful, §6 stands and a Declaration of Incompatibility is made.
33
Q

Under §6 HRA, what are the Three Types of Authorities?

A

Core Public Authorities:

  • Completely Public Bodies, bearing full liability under §6.

Hybrid Public Authorities:

  • Private Bodies performing Public functions, only bearing liability under §6 in relation to their Public functions.

Private Bodies:

  • Completely Private Bodies, bearing no liability under §6.
34
Q

Under §6 HRA, when is a Body’s Function Public in Nature?

A
  • It uses Public Funds.
  • It draws power from Statute.
  • If offers services to the Public at large.
  • It substitutes a role typically performed by the Government or a Local Authority.

Courts will be generous in their interpretation of ‘Public Function’.

35
Q

Under §7 HRA, what is Standing?

A

An Individual’s right to bring a Claim under the HRA.

36
Q

Under §7 HRA, when does an Individual have Standing?

A

When the Individual is directly impacted by the alleged violation.

This is called ‘Victim Status’.

Legal Persons may claim Victim Status on their own behalf.

37
Q

Under §7 HRA, what is the Deadline for bringing a Claim?

A
  • One year of the alleged violation or cessation thereof if it is ongoing.
  • Extensions may granted if Equity demands.
38
Q

Under §3 HRA, how must UK Courts interpret Statute?

A
  • In a manner compatiable with Convention Rights; such that
  • The Courts may strain to reconcile the two without altering the Statute’s fundamental features or acting outside of Judicial capacity; leaving
  • A Declaration of Incompatibility as a last resort.
39
Q

Under §3 HRA, which Interpretive measures are Permitted and Prohibited?

A

Permitted:

  • Apply strained interpretations or implied terms.
  • Narrow or expand meanings and read in terms.

Prohibited:

  • Delete language.
  • Effectively make Policy decisions.
  • Completely alter the Statute’s substance.
  • Contradict the Statute’s core feature or intent.
40
Q

Under §4 HRA, when will a Declaration of Incompatibility be made?

A
  • When Statute cannot be reconciled with the Convention.
  • A Declaration:
    • Is at the Court’s discretion;
    • Is Non-Binding on Parliament; and
    • Does not affect the Statute in any way.
41
Q

Under §8 HRA, what are the Judicial Remedies for Human Rights Violations?

A
  • Damages: Compensation for harm caused by the Authority’s actions.
  • Declarations: Formal statements on the legality of actions taken by the Authority.
  • Injunctions and Quashing Orders: Preventative measures to prevent violations or annul unlawful acts.
  • Prohibitory and Mandatory Orders: Directives requiring or prohibiting specific actions by the Authority.
42
Q

Under §10 HRA, what are the Remedial Procedures following a Declaration of Incompatibility?

A

Standard Procedure:

  • A Draft Remedial Order is laid before Parliament for 60 days for review and approval.

Urgent Procedure:

  • Where an urgent response is necessary, the Remedial Order is implemented immediately, but will still require retrospective Parliamentary approval.

In either case, the relevant Provision is amended to comply with the Convention.

The Ministry of Justice issues an annual report detailing DOIs issued by the Courts, the Government’s responses, and any Remedial Actions.

(FLK1) Public Law (5 decks)

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