Human Rights Act and the ECHR Flashcards
What are the absolute rights in Sch 1 HRA
- Art 3 - prohibition on torture
o The negative duty is an absolute one
o Positive duty is not – to make sure someone is not subject to torture is not absolute but must consider the real risk of it
o Torture is a high threshold - Inhuman and degrading treatment is lesser and wider. Prison conditions
Art 4 – prohibition on slavery and forced labour
Art 7 – provides that there shall be no punishment without lawful authority
o Rule of law – cannot be committed for a crime if it wasn’t a crime when it was committed
o Relevant laws must be clearly defined
o Penalty – a heavier penalty than the one was applicable at the time of
What are limited rights in Sch 1 HRA?
can be interfered with in prescribed circumstances
Art 2 – right to life
o Investigative duty where state direct takes a life
o Positive duty to protect and preserve life.
Art 5 – right to security and liberty
o Derogations are allowed
o Someone should be informed of arrest, brought before a judge, shall be entitled to take proceedings by which the lawfulness of his detention shall be considered.
o Deprivation of liberty needs to proportionate and not imposed arbitrarily
o Control orders are not sufficiently restrictive to deprive liberty
o PERSON under a breach is entitled to compensation.
Art 6 – right to a fair trial and fair legal process
o Basic overarching right to a fair and public hearing contains presumption of innocence
o Sets of rights owed to everyone charged with a criminal offence
o Right to silence is not expressly referred to – but in a French case was found to be present
o MAY PROHIB EXTRADITION OR DEPORTION IF LEADS TO FLAGRANT DENIAL OF JUSTICE
What are the qualified rights in Sch 1 HRA?
- Art 8 – right to private life
o Can interfere, if necessary, in a democratic society –
o Surveillance by the state – necessary and proportionality
o Legitimate aims –
o National security * Public safety or economic well-being * Prevention of disorder or crime * Protection of health or morals * Protection of the rights and freedoms of others - Art 9 – freedom of thought
- Art 10 - freedom of expression
o Court must have particular regard to importance of right to freedom of expression
o Journalistic freedom
o Artsistic expression
o Commercial information
o Political opinion
o The margin of appreciation doctrine has particular application with respect to article 10. Generally speaking, the ECtHR affords a broader margin of appreciation to states to decide what degree of interference is necessary with expression that impacts upon moral and religious beliefs and views. The ECtHR is more likely to supervise the states’ enforcement of article 10 in cases involving journalistic freedom and political forms of expression. - Art 11 – freedom of assembly and association
When can qualified rights be interfered with?
Inference must be
- In accordance with law
- In pursuit of a legitimate aim
- Was necessary and proportionate
What is s2 HRA?
– courts need to take into account relevant ECtHR case law.
Mirror principle for s2 for the case law.
Keep in line with Strasbourg.
Moved more towards a dialogue between Strasbourg and the uk courts.
Obligation of ECHR is a negative one – to abstain from interfering with rights but sometimes imposes a positive obligation to prevent the violation of human rights
Margin of appreciation doctrine – states are allowed certain discretion when taking legislative administrative or judicial measures that restrict the ECHR rights.
Principle of proportionality – fair balance between demands of general interest of community and requirement of the protection of individuals fundamental right
What is s3 HRA?
S3 HRA – legislation must be read and given effects SO FAR AS ITS possible in a way compatible with ECHR rights
- The interpretative obligation is a strong one – strive to find it compatible
- Can adopt a linguistically strained approach
- Read down language and imply words
It does effect
IT APPLIES TO LEGISLATION THAT CAME IN BEFORE THE HRA.
- CANNOT
- Change substance of provision completely
- Makes changes which run counter to a fundamental feature of the legislation to underlying thrust of it
What is s4 HRA?
Court may make a declaration of incompatibility
- Court cannot strike down legislation because of parliamentary sovereignty but can issue a declaration of incompatibility
CANNOT DECLARE ANY STATUTORY PROVISION VOID. BECAUSE PARLIAMENT IS THE SOVREIGN LAW MAKING BODY IN THE UK
HIGH COURT, CA and SUPREME COURT can issue this declaration
- Remedial action under s10 –
Ministers may take expedited remedial action to amend the legislation as necessary to remove incompatibility. If there are compelling reasons to do so.
Standard procedure is draft amending order laid before parliament for 60 days before being approved by both houses
Second remedial procedure concerns urgent cases - where the rider may be laid before parliament for approval after it’s made.
if issued a declaration but government may take their time
What is s6 HRA?
S6 – unlawful for public authorities to act in way incompatible with convention rights
- Westminster parliament is excluded and anyone exercising functions in connection with parliament. This is to protect parliamentary privilege.
- Core public authorities – subject to s6 in all their actions - if they’re exercising a public function or are publicly funded.
- Hybrid function authorise also have liability to the extent of their public functions
Section 6(2)
Means that sections 6 will not apply if because of primary legislation the public authority could not have acted differently or the primary legislation cannot be read or given effect in a way compatible with convention rights.
This provides a statutory defence.
What is s7 HRA?
Must have standing to bring a claim
- Applicant must show a victim of the unlawful act
- Directly affected by state action
- The person can be a corporate body but bringing a claim that THEIR rights not on behalf of someone
- CAN POSSIBLE BE AN INDIRECT VICTIM – SMALL CIRCUMSTANCES
Time limits – MUST BE WITHIN A YEAR OF THE DATE OF THE ACT COMPLAINED OF
What is s8 HRA?
S8 HRA remedies
- Judicial remedies – whatever is just and appropriate
- damages, declarations, injunctions, and quashing orders, prohibitory orders and mandatory orders.
What is s10 HRA?
In response to a declaration of incompatibility made under s4 (or to a decision of the ECtHR), the relevant ministers may take expedited ‘remedial action’ to
amend the relevant legislation as necessary to remove the incompatibility, if ‘there are compelling
reasons for proceeding under this section’.
Remedial orders IS A STATUTORY INSTRUMENT THAT allows government to amend acts of parliament so as to remember incompatibility with the human rights act. NOT OVERTURN LEGISALTION.
Schedule 2 of the HRA 1998 sets out two procedures. One is the standard procedure, which
requires that a draft amending order be laid before Parliament for 60 days before being approved
by both Houses of Parliament. The second remedial procedure concerns urgent cases, where the
order may be laid before Parliament for approval after it is made.
Note that the government may well plan a legislative response to a s 4 declaration over a longer
period of time instead, if the expedited process under s 10 is not seen as necessary.
Remedial outcomes ss3 and 4?
Domestic enforcement
If s6(2) defence is NOT engaged then the public authority has liability under 6(1) and applicant will have s8 remedy.
If s6(2) IS engaged then THEN MOVE ON TO WHETHER S3 applies and CAN IT BE READ COMPATIBLE INTERPRETAION?
IF YES - defence fails and public authority is liable.
IF NO
DEFENDE succeeds and deceleration if incompatibility
- can have s10 remedial order
- or doing nothing.
Article 1 ECHR jurisdiction?
Everyone within the jurisdiction the state has a contracting duty to respect the human rights.
Exceptional cases of a wider jurisdiction. Where the state has effective control over that area.
DEROGATIONS?
Art 15 -
In time do war or other public emergency any high contracting party can take measure dedicating from its obligations under this convention.
NO for art 2 EXCEPT in respect deaths resulting from lawful acts of war.
Reservations can be made at the time of signing it ratifying.
