Human Rights Flashcards
Why was the European Convention of Human Rights created?
Established after WWII
Prevent the atrocities of war from reoccurring
Article 2 ECHR?
Right to life
Article 3 ECHR?
Prohibition of torture
Article 6 ECHR?
Right to a fair trial
Article 12 ECHR?
Right to respect for private and family life
When was the ECHR signed
1950, became binding 1953
But the UK didn’t fully incorporate the law into its domestic leg
Why did the UK not fully incorporate the ECHR into domestic law?
= considerable political pressure to conform
An unincorporated convention carries less weight than one that is fully incorporated into UK law
When was the European Court of Human Rights and Grand Chamber established?
1951 (Strasbourg)
Handles claims made by 1 MS against another + by individuals against a state
What does the ECtHR consider?
Only hears claims where the state has recognised the right of individuals to bring a claim against it
When did the UK agree the right of an individual to petition to the ECtHR?
1966
Case cannot be taken unless all domestic remedies have been exhausted
How have the HR in to UK been protected?
Introduction of the HRA 1998 (labour)
Incorporated EU convention
What does s7 HRA enable?
An individual within the UK to take their case to a UK Ct rather than having to apply Strasbourg
ECtHR = last resort
What is the ECHR?
Treaty
All countries that signed it = agreeing to the basic HR
45 countries signed it
What was a more recent right added to the ECHR in 1952?
Right to education
What does s2 HRA require?
Judges to consider previous case law from the ECtHR
BUT they don’t have to follow it (weak obligation)
What does s3 HRA require?
Ct to interpret primary + subordinate legislation in a way that is compatible with the ECHR ‘so far as it is possible to do so’
Ghaidan v Godin-Mendoza
Ghaidan v Godin-Mendoza
Concerned the right of succession to a tenancy of the spouse of the deceased/ person who had lived there as their wife/husband
Under literal interpretation, applicant couldn’t benefit - he = homosexual partner of deceased
Found that this = conflict of Art 8 (R to privacy) + Art 14 (R to freedom of discrimination)
Are there limits placed on s3 HRA?
Yes
Shown in the appeal case of Re S(children)
HL rejected the use of s3; would have undermined a fundamental feature of the Children Act 1989
What does s4 HRA require?
Where HRA isn’t compatible with domestic law, Cts must make a declaration of incompatibility
Alerts G that law needs to be altered
Does NOT affect validity of Act
Will remain law until P deal with incompatibility
s6 HRA?
Unlawful for public authorities to act in a way that = incompatible with ECHR
Decided on a case to case basis
Andrews v Reading Borough Council (2005)
Andrews v Reading Borough Council (2005)
RBC implemented a new transport policy
Resulted in more traffic passing Andrew’s house
Council = force dot pay compensation as they had flaunted his right to peaceful enjoyment of his belongings
s19 HRA?
Imposes a duty to contain a written statement stating whether the bill is compatible with the convention
What are the 5 advantages of the HRA?
- Enabled individual liberties to be protected (A v Secretary of State for Home Dep)
- Improved access - cases can pursued UK Cts
- Prevented conflict between UK + international law
- ECtHR = tried + tested for 3 years
- Strasbourg can be utilised as a further appeal Ct - enables another check on UK G ensuring democracy
A v Secretary of State for the Home Department
HL held that the indefinite detention of the foreign suspected terrorist = against Art 5 (R to liberty)
