Human Rights Act 1998 Flashcards
What is the process if a person asserts a breach of their rights under the ECHR?
First, they need to exhaust the legal process in their own country
Then, they can take their case to the European Court of Human Rights who will make a binding decision.
What did the Human Rights Act 1998 do?
Incorporated the ECHR into UK law, enabling UK courts to give effect to the rights protected in the ECHR
What are the 3 types of Convention rights in Section 1 of the HRA
Absolute Rights: cannot be limited by the state even in times of war or national emergency
Limited Rights: Can only be limited as provided for the by the article itself and in accordance with certain procedures
Qualified Rights: Can be limited by the state to pursue a legitimate interest as outlined in the particular article
What are the Absolute Rights in HRA Section 1 (Convention Rights)
- Right to Life
- Prohibition of Torture
- Prohibition of Slavery
- Prohibition on Retrospective Criminal Offenses
- Abolition of Death Penalty
What are the Limited Rights in HRA Section 1 (Convention Rights)
- Right to Liberty and Security
- Right to a Fair Trial
What are the Qualified Rights in HRA Section 1 (Convention Rights)
- Right to Respect for Private and Family Life
- Freedom of Thought, Conscience, and Religion
- Freedom of Expression
- Freedom of Assembly
- Marriage
- Prohibition of Discrimination
- Right to Property
- Education
- Free Elections
When can the limited right to liberty and security be restricted?
- Being convicted of a criminal offence by a court
- Failing to comply with a court order
- Being reasonably suspected of having committed a criminal offense
- When it is considered necessary to stop someone committing a criminal offense
- To prevent the spread of infectious diseases
- Mental health reasons
When can the qualified right to free expression be restricted?
- National Security
- Territorial Integrity
- Public Safety
- Prevent disorder/crime
- Protection of health/morals
When can the qualified right to freedom of assembly be restricted?
- National Security
- Prevent disorder/crime
- Protection of health/morals
- Protection of the rights and freedoms of others
Proportionality test used for restricting a qualified right
1) Is limitation justified by object of policy
2) Is the restriction rationally connected to and designed to meet that objective
3) Is interference no more than is necessary
What is a “Margin of Appreciation”
Governments will argue to the ECtHR that they are allowed some discretion over the extent to which a qualified right can be restricted.
If other member states all approach the same issue in the same way, narrow margin
If other member states approach the issue differently, wider margin
What is the “Living Instrument Principal”
That the ECHR is a “living instrument”, and therefore that the meaning of the ECHR can adapt with social and economic conditions
What are the two procedures for correcting UK laws incompatible with the ECHR
URGENT MATTER: Minister lays a remedial order which becomes law immediately, but will cease to have an effect unless both houses approve of it within 120 days.
NON-URGENT MATTER: Minister lays a draft of a remedial order, which becomes law if approved by both houses after 60 days.
Who has standing to bring a HRA claim against a public authority
A Section 6 Action (when a public authority violates a convention right) can only be brought by the victim of an alleged unlawful act.
Must be directly affected (as opposed to the sufficient interest test)
Can you bring a freestanding discrimination claim under the HRA?
NO, it must be linked to another convention right.
NOTE: You CAN bring such a claim under the Equality Act 2010.
