Human Rights Act 1998 Flashcards
What are the absolute rights under the ECHR?
Article 3: prohibiting torture, inhuman/degrading treatment
Article 4: prohibiting slavery and forced labour
Article 7: no punishment without authority
What are the types of rights protected in the ECHR and what do they mean?
Abolute rights - cant be interfered with
Limited rights - can in certain circumstances be interfered with
Qualified rights - can be interfered with if
* Interference in accordance with law
* Interference in pursuit of legitimate aim
* Interference necessary in democratic society
Do the UK courts need to take into account relevant ECtHR case law?
Yes
What principles and techniques of the ECtHR do the UK courts consider in a domestic context?
Positive obligation
Margin of appreciation
Proportionality
What is the positive obligation duty?
duty to prevent violation of human rights being carried out by non-state actors
How must the positive obligation duty be interpreted?
Not imposing an excessive burden
What does margin of appreciation mean?
States allowed a measure of discretion when restricting rights
What are the four key obligations on the UK under the HRA?
- take into account ECHR case law
- legislation given effect in accordance with ECHR rights
- If above not possible, make a declaration of incompatibility
- Unlawful for public authorities to act in a way incompatible with ECHR rights
Does the obligation to follow ECtHR case law always apply?
No
What are public authorities for the purpose of the rule that public authorities must not act contrary to ECHR rights?
- court or tribunal
- core public authorities
- hybrid public authorities
Who will not be a public authority for the purpose of the rule that public authorities must not act contrary to ECHR rights?
Parliament
What factors would suggest that a body is a core public authority?
o Special powers
o Democratic accountability
o Public funding
o Obligation to act only in public interest
o Statutory constitution
What factors would suggest that a body is a hybrid public authority?
o Nature of function determines whether HPA
o Extent that function is publicly funded
o Statutory power
o Taking place of government/local authorities
o Public service
In order to bring a claim against a public body under s6(1) HRA, what must the claimant have?
Standing
What is the scope for standing in claims under s6(1) HRA?
a) Natural/legal persons
b) Victim of unlawful act
c) Directly affected
When can an organisation/group bring a claim under s6(1) HRA?
if state violates their rights as an organisation
Can indirect victims bring claims under s6(1) HRA?
Only in exceptional circumstances
What is the time limit for commencing a claim under s6(1) HRA?
within one year of act complained of.
When does the time limit for a claim under s6(1) HRA start running for a continuous act?
when violation ceases
Can the time limit for bringing a claim under s6(1) HRA be extended?
Yes if court thinks equitable
Under Article 1 ECHR, who does the state owe a duty to respect the human rights of?
Everyone in their jurisdiction
When might the UK have the duty to respect human rights of those outside of the jurisdiction?
If they have effective control of territory and its inhabitants
Do army personnel fall within the jurisdiction of the UK for the purpose of Article 1?
Yes
When may states derogate from ECHR rights?
a) War or public emergency threatening life of nation – may only take strictly required measures
b) No derogation from Article 2 (right to life) except in lawful acts of war, or Article 3 (torture)/4 (slavery)/7 (punishment without authority)
