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Con And Admin Law > Human Rights > Flashcards

Human Rights Flashcards

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1
Q

S4 HRA

A

Declaration of incompatibility

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2
Q

What might follow a declaration of incompatibility

A

Remedial order under s10 HRA

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3
Q

S2 HRA

A

Take into account ECHR jurisprudence

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4
Q

S3 HRA

A

Courts must interpret legislation in a manner compatible with convention rights as far as it is possible to do so

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5
Q

What is unlawful under s6 HRA

A

For a public authority to act in a way which is incompatible with a convention right

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6
Q

What is a public authority for the purposes of the HRA

A

Courts, tribunals, any person whose functions are of a public nature
Core public authorities and hybrid public authorities

Not H of L, H of C or person exercising functions in connection with proceedings in Parliament

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7
Q

Who is not a public authority for purposes of HRA

A

Not H of L, H of C or person exercising functions in connection with proceedings in Parliament

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8
Q

What are the two types of public authorities

A

Core public authorities

Hybrid public authorities

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9
Q

What is a core public authority

A

governmental in nature and serve and regulate the general population

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10
Q

What is a hybrid public authority

A

Primarily exercises private functions but some of their functions are of a public nature - they are governmental or regulator and not dependent on consent or agreement

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11
Q

S19- when must ministers issue a statement of compatibility

A

When issuing a bill

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12
Q

How long does a claimant have to bring a claim for breach of rights

A

One year of the act occurring unless JR which is shorter

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13
Q

Can the court extend the one year time limit on brining a rights claim

A

Yes if equitable

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14
Q

Requirements for bringing a human rights claim

A

You are a victim

One year since breach

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15
Q

Who is a victim for the purposes of HRA

A

Directly affected by the act of omission that is the subject of the complaint

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16
Q

What remedies are available under s8 HRA

A 
Damages 
Declaration 
Injunction 
Quashing order
Mandatory order
Prohibiting order
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17
Q

Are damages always available for a human rights claim

A

No damages if public body is subject to a statutory scheme of regulation with an independent regulator with powers of enforcement whose decisions are subject to JR

Must be necessary and appropriate to give just satisfaction

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18
Q

Notice requirements for protests

A

6 days clear written notice to be given to police including name and address of one organiser and route and time

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19
Q

When can conditions be imposed on a protest

A

To prevent serious public disorder, serious criminal damage or serious disruption of life of the community

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20
Q

Can a protest be banned

A

For up to three months

To prevent serious public disorder, serious criminal damage or serious disruption of life of the community

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21
Q

How many people are required for a public assembly

A

Two or more

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22
Q

Can protestors and innocent passers by be detained

A

Austin-
Yes even where they do not appear to be about to commit a breach of the peace where it is necessary to prevent an imminent breach of the peace by others and no other means would achieve that

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23
Q

When can a person be arrested without warrant

A

If police have reasonable grounds to suspect that they committed certain offences or are about to

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24
Q

What to do when arresting someone without a warrant

A

Tell them what they are arrested for at time of arrest or first reasonable opportunity afterwards

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25
Q

What must an officer disclose before commencing a stop and search

A

Name and name of station

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26
Q

When can someone be stopped and searched

A

Acting on reasonable suspicion may search anyone to find stolen goods, drugs, weapons

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27
Q

Can they use force during a stop and search

A

Can use force if they won’t cooperate

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28
Q

When can the police enter and search premises

A

When they have a search warrant, a statutory right of have obtained permission from owner occupier

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29
Q

Restriction on police to search property when they have a warrant

A

Search at reasonable hour and if owner is in occupation then with their permission

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30
Q

Can the police force entry to search a property

A

Only with a warrant

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31
Q

When do police have statutory authority to search a property without a warrant

A

To deal with or prevent a breach of the peace
Enforce an arrest warrant
Arrest a person for certain offences
Recapture someone who escaped from custody
Save a life
Prevent serious damage to property
Must have reasonable grounds to believe person searching for is in there

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32
Q

When can the police search a premises linked to an arrested person

A

If it was occupier by an arrest person or visited by them during or immediately prior to their arrest
Must reasonable believe they will find evidence connected to the crime the arrested person is accused of committing

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33
Q

When can the police sieze goods

A

If reasonable grounds to believe that the goods have been obtained illegality or are evidence of an offence
Necessary to prevent them being lost, stolen or destroyed

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34
Q

When can a qualified right be restricted

A

If it is prescribed by law, has a legit aim and is necessary in a democratic society

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35
Q

Necessary in a democratic society

A

Pressing social need

Inference with the right must be proportionate

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36
Q

Proportionate meaning

A

Doesn’t go further than needed

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37
Q

Margin of appreciation for necessity

A

Respect MS judgement re what public interest requires

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38
Q

What legitimate aims are listed in articles 8

A

Article 8 interests of national security, public safety or economic well-being
Prevention of disorder or crime
Protection of rights and freedoms of others

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39
Q

What are legitimate aims listed in article 10

A

Prevention of disorder or crime
Protection of rights or freedoms of others
Prevention of disclosure of confidential info
Maintain authority and impartiality of judiciary

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40
Q

Test for proportionality

A

Objective of measure is important
Measure is connected to objective
No less intrusive measure to use
Balance between right and community interest

41
Q

2 ways an ECHR claim may commence

A

State application

Individual application

42
Q

2 stages of an ECHR claim

A

Admissibility

Merits

43
Q

If ECHR case is deemed inadmissible can you appeal

A

No

44
Q

Can you appeal a decision on the merits of an ECHR case

A

Yes within 3 months appeal to grand chamber

45
Q

Do ECHR decisions bind MS

A

No but committe of ministers of the council of Europe ensures states comply with judgements

46
Q

Requirements for an individual to bring an ECHR claim

A

Exhaust domestic remedies
Within 6 months of decision
Personally and directly victim of breach
Suffered a significant disadvantage

47
Q

Which are absolute rights

A

2,3,4,7 9 10

Cannot be interfered with but have exceptions that don’t count as interference

48
Q

What are limited rights

A

Can only be limited in clearly defined and finite circumstances

Articles 5 and 6

49
Q

What are qualified rights

A

Balance right against public interest

8,10,11 and article 1 of protocol 1

50
Q

Can the ECHR be derogated from

A

Article 15
In time of war or public emergency threatening life of nation
Not 2,3,4,7 - except death result from lawful war

51
Q

What is article 7 ECHR

A

Cannot be charged with criminal offence if it wasn’t a crime when it was committed

52
Q

What is article 6 ECHR

A

Fair trial
Sets out min rights for those charged with a crime
Innocent until proven guilty

53
Q

When does article 6 apply

A

When an individual attempts to assert substantive legal rights

54
Q

What is article 4

A

Slavery

55
Q

What is slavery

A

The status or condition of a person over whole any or all of the powers attaching to the right of ownership are exercised

56
Q

What is forced/ compulsory labour

A

Work they’re forced to do against their will

Individual must be exploited

57
Q

What is NOT forced labour

A

Prisoners working
Military service
Work required in an emergency threatening life or wellbeing of community
Work part of normal civic obligations

58
Q

Which is article 5

A

Ensure no one is deprived of their liberties in an arbitrary fashion
Procedure must be followed before depriving someone of their Liberty

59
Q

Exceptions to article 5

A 
Arrest
Detention by police 
Prison after conviction 
Detention in hospital for mentally ill
Detention in an asylum context 
Deportation

Must still be in accordance with a procedure prescribed by law

60
Q

Requirements that must be met to prevent a deprivation of Liberty being arbitrary

A 
Good faith (similar to an exception)
Detention is necessary (no less server method is suitable)
Length not exceeding what is required
Keep record of reasons 
Lawful nationally
61
Q

What is article 3

A

Torture, inhuman or degrading treatment or punishment

Absolute right
No exceptions

62
Q

What is torture

A

Deliberate inhuman treatment causing very serious and cruel suffering

63
Q

What is inhuman treatment

A

Treatment of punishment likely to cause actual bodily injury or intense physical or mental suffering

64
Q

Which articles are breach when deporting someone to a country where there is a real risk of death or torture/ inhuman treatment

A

Breach of articles 2 and 3

65
Q

What positive obligation does article 3 create

A

State has obligation to ensure non state actions eg parents don’t punish children to a level where article 3 is engaged

66
Q

What is article 2

A

Right to life

Prohibits state from taking life

67
Q

What positive duties does article 2 create

A

Positive duty on state to protect life
State must carry out a full and thorough investigation where an allegation is made that there has been an article 2 breach

68
Q

What is not included in article 2

A

Doesn’t prohibit death penalty - protocol 6 does

Doesn’t apply to embryos

69
Q

Exception to article 2

A

Allows force resulting in death if conditions are met:
Use of force must be no more than is absolutely necessary and
Either for defence, arrest, prevent escape from detention or prevent riot or insurrection

70
Q

Article 10

A

Freedom of expression

71
Q

When can article 10 be restricted

A

Prescribed by law
Legit aim
Necessary in democratic society

72
Q

Is offensive, shocking and disturbing speech protected by article 10

A

Yes and it should not be restricted but speech that goes beyond this isn’t protected

73
Q

What is article 11

A

Freedom of assembly and association

74
Q

What is freedom of association

A

Membership of bodies

75
Q

When can article 11 be restricted

A

Prescribed by law
Legit aim
Necessary in a democratic society

76
Q

Positive duty created by article 11

A

State should protect the exercise of the right
State should protect protestors
But not absolute obligation on the state to facilitate peaceful protest so restrictions on protestors allowed

77
Q

Article 12

A

Right to marry

78
Q

Can article 12 be restricted

A

Subject to national laws

Non arbitrary restrictions are allowed if not interfering with essential principle of right

79
Q

Are trans people and same sex marriage included in article 12

A

Trans people are included

Same sex marriage is not

80
Q

Article 8

A

Right to respect for private and family life

81
Q

What does article 8 include

A 
Private life
Family life including unmarried stable relationships 
Home where one currently lives 
Correspondence
Bodily integrity
Personal autonomy
Sexuality 
Personal info
82
Q

Article 9

A

Freedom of thought conscience and religion

83
Q

When can article 9 be restricted

A

Prescribed by law
Legit aim
Necessary in democratic society

84
Q

Article 13

A

The right to an effective remedy before national authorities for violations under ECHR

85
Q

Article 14

A

Discrimination affected enjoyment of a convention right

Direct and indirect discrimination

86
Q

Article 1 first protocol

A

Peaceful enjoyment of possession of land and personal property
Compensation for deprivation of property

87
Q

Meaning of peaceful enjoyment

Article 1 first protocol

A

Financial value of property or possession

88
Q

When can article 1 first protocol be restricted

A

Lawful and necessary for Public interest

89
Q

Article 2 first protocol

A

Right to education
Recognise studies
Not to deprive of education

90
Q

Does article 2 first protocol require the state to subsidise education

A

No need to subsidise

91
Q

Does expulsion breach article 2 first protocol

A

No breach of expulsion is foreseeable, pursues a legit aim, and proportionate to the aim

92
Q

Article 2 first protocol

Can gov determine curriculum and does it have to include parents beliefs

A

State must respect the rights of parents to ensure education in conformity with their own religious and philosophical convictions but gov can determine curriculum as long as it is consistent with objectivity and pluralism

93
Q

Article 3 first protocol

A

Free elections by secret ballot and reasonable intervals

94
Q

Article 1 protocol 12

A

Abolish death penalty including crime at war

95
Q

Test for misuse of private info

A

Objective
Did C have a reasonable expectation of privacy in the circumstances
Balance article 8 and 10

96
Q

S12(4) HRA

A

Court must consider important of freedom of expression where material is journalistic and whether it would be in the public interest for the material to be published

97
Q

S1,2,3,4,6,7,8,10,19 HRA

A

1- incorporates ECHR rights
2- take into account ECHR judgements
3- so far as poss read leg in compatible way
4- declaration of incompatibility
6- unlawful for public authorities to breach ECHR unless giving effect to incompatible statute
7- can claim against body that breaches s6 and rely on ECHR rights in any proceedings
8- damages if necessary for Judy satisfaction
10- remedial order through affirmative procedure
19- statement of compatibility or cannot make one but want to progress anyway

98
Q

What is a public body for HRA

A

Same meaning as for JR

99
Q

What is a victim for HRA

A

Directly and personally affected

Not pressure groups

Con And Admin Law (6 decks)

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