Human Rights Flashcards
what were human rights before the HRA 1998
-PARL = HR subject to principle of legality (Parl could legislate in violation of HR)
-EXECUTIVE = free to exercise discretion in violation of HR (subject to judicial review )
give a case example of the executive pre- HRA
Smith (1996)
concerned prerogative power - discretion to regulate the armed forced (based on sexuality) challenged
how were human rights aregued pre HRA 1998
-argued as irrationality cases via Wednesbury
-aka anxious scrutiny
what was the ouctome of Smith (1996)
-Smith lost, under common law the policy was lawful despite article 8 of ECHR prohibiting it
-BUT Smith won in Strasbourg Court (internatioal law)
what act enforced human rights in the UK
Human Rights Act 1998
what did the HRA 1998 do (2)
-tighted constraints ( legal and political) on Parl’s capacity to legislate in violation of HR (ss 3,4,10,19)
-intro new prohibition on the executive acting incompatibility with HR (s.6)
what did s.6(1)HRA 1998 do
-unlawful for public authority to act in way which is incompatibile with a Convention right
what are the 3 main parts of s.6 (HRA)
- unlawful for a (provides statutory ground of review)
2.public authority (parallel case law to Datafin)
3.to act in a way which is incompatibible with a Convention right (substantive q of HR law)
which classification of JR does HR fall into
-can be any
-illegality (delegation, improper purposes etc),
rationality (Wednesbury)
procedural impropriety (bias, legitimate expectations, consultation)
what are the list of rights in the HRA
- in s.1 HRA
-s.1(a) Articles 2-12 and 14 of the Convention
-s.1(b) Articles 1-3 of the First Protocol and
-s.1(c) Article 1 of the Thirteenth Protocol
-Convention and Protocols defined in s.21(1)
give 5 examples of rights in HRA 1998
-Article 2 - right to life
-Article 6 - right to fair trial
-Article 9 - freedom of thought, conscience and religion
-Article 14 - right to not be discriminated against in respect of these rights
-Protocol 1 Article 3 right to free elections
what is a recent case example for HRA
-Tommy Robinson (unsuccessful) challenge to the conditions under which he is serving his current prison sentence
-he is segregated (isolated) from other prisoners so they dont kill him (sex offender)
-argued violation of article 3 (freedom from torture), 8 (right to respect for family and private life) and 14 (right to not be discriminated against)
what is a qualified right
a right that is subject to exceptions (can be infringed on in certain circs)
eg Article 10 freedom of expression
what is the test for whether gov should interfere with Art 10 freedom of expression
-MUST BE (all)
-prescribed by law
-necessary in a democratic society
-in the interests of: national security, territorial disorder or crime, for the protection of health/morals/reputation or rights of others, preventing confidential info leaking, maintaining authority/impartiality of the judiciary
what is an example case for Article 10 being breached but passing the test to allow it
-BBC v Justice Secretary (2012)
what happened in R(BBC) v Justice Secretary
-BBC brought JR under s.6 HRA 1998 alleging JuSec violated freedom of expression Art 10
-gov resisted claim on grounds that his reasons passed the test (prescribed by law, legitimate aim, necessary in democratic society)
-BBC wanted to conduct filmed f2f interview with detained prisoner being extradited to USA
-Junior Minister allowed just audio no broadcast
-SoS for Justice refused fully later
what is the authority for “prescribed by law”
-Shayler (3 part test)
what is the authority for “a legitimate aim”
the list in the text of the Article in the Convention
what is the authority for “necessary in a democratic society”
-Huang
-or Bank Mellat
what is the 3 part test in Shayler
-whether there is a legal basis in domestic law for the restriction
-whether the law/rule is suficiently accessible to individual
-whether, even if the rule is in place, it has been applied in a way that is arbitrary/ in bad faith
what is the list of legitimate aims in art 10 ECHR (7)
-national security
-territorial integrity or public safety
-prevention of disorder/crime
-protection of health/morals
-protection of reputation/legal rights of others
-preventing the disclosure of info recieved in confidence
-maintaining authority/impartiality of the judiciary
what is the test in Huang (necessary in a democratic society)
-proportionality 4 part test
(i) objective is sufficiently important to justify limiting a fundamental right
(ii) means used to achieve obj are rationally connected to it
(iii)means to impair right/freedom are no more than is necessary to accomplish obj
(iv) maintained a fair balance between rights of individuals/groups/interests of the community
what is the 4 part proportionality/necessary in a democratic society Huang test simplified
(i)important enough to justify limiting right
(ii) means to achieve are rational
(iii) means = no more than necessary
(iv) fair balance between rights of individuals vs community interests
was there a way to detain tommy robinson that had less interference with his rights
-no, isolation was the only option so his case failed
-he could not be with anyone bc he would be killed
