Human Rights Basics

Question 1

What year was the ECHR:

i) ratified
ii) enforced
iii) signed

by the UK?

Answer 1

i) 1951
ii) 1953
iii) 1950

Question 2

What is the difference between an absolute and qualified right?

Answer 2

Absolute - cannot be performed under any circumstancec

Qualified - right can be lawfully restricted under extremely specific circumstances

Question 3

What is the key difference between articles 2-7 and 8-12?

Answer 3

2-7: basic rights that offer almost no exceptions, absolute rights
8-12: permit some exceptions/derogations

Question 4

What was the effect of the T, Petitioner case, what case is it similar to?

Answer 4

• aid to construction in matters of ambiguity between domestic law and the ECHR
• if there is ambiguity, statute should be interpreted incompatibility with Convention

R v Sec of State for Home Dep ex p. Brind

Question 5

What is s2 of the HRA 1998?

Answer 5

• court/tribunal determining a question in connection with Convention right must take into account Strasbourg
• there is however, no legal requirement to follow them

Question 6

What is the Ullah principle?

Answer 6

A court should not offer more, certainly not less protection that convention provides. Therefore, courts should try and keep in line with convention.

Question 7

What was established in R (Anderson) v SS Home Dep?

Answer 7

Court should not depart from principles laid down by Grand Chamber without good reason.

Question 8

What is s3 of the HRA 1998?

Answer 8

Reading down requirement.

Primary and secondary legislation must be read in a way that is compatible with Convention rights.

Question 9

What is s4 of the HRA 1998? Has it always been followed?

Answer 9

Declaration of incompatibility - if provision fails to meet Convention right.

• does not affect the validity or operation of Act in order to protect parliamentary sovereignty e.g. Smith v Scott (ignored incompatibiltiy with regard to prisoners voting rights)

Question 10

What courts can make a s4 declaration?

Answer 10

• Supreme Court
• Judicial Committee of the Pricy Council
• Sco: HCJ, CoS

Question 11

When can a s4 declaration be made?

Answer 11

Ghaidan (after exhaustion of s3 options, only if it would otherwise be encroaching on powers of parliament)

Question 12

What is the distinction between core and hybrid public authorities? What HRA 1998 section relates?

Answer 12

s6 - unlawful for public authority to act incompatible with ECHR
Aston Cantlow (core must be compatible with ECHR, hyrbid must only be compatible with ECHR under the public part of their work )

Question 13

Are courts public authorities?

Answer 13

Yes, under s6. Must act compatibly with both parties Convention rights.

Venables v News Group Newspapers

Question 14

How long does a s16 derogation last?

Answer 14

Up to 5 years. Only available in specific circumstances/specific proivisions of ECHR.

Question 15

What are the relevant provisions relating to human rights protection in the SA 1998?

Answer 15

s29 - cannot unilaterally amend HR, ASP contravening Convention are invalid law
s31 - pre-scrutiny
s33 - refer Bill to UKSC
s98 - post-assent scrutiny
s101 - provision outwith competence read as narrowly as required
s102 - suspension of decision

Question 16

Relevant cases challenging ASP of being outwith competence.

Answer 16

Whaley v Watson - ASPs are subject to JR
Cameron v Proc Fis - art5 violation, bale DNA
Salvesen v Riddell - art1 breach
Christian Institute - art8 breach, named persons scheme

Question 17

What is the time limit of challenging an ASP?

Answer 17

s7(5)(a) of HRA 1998 stipulates 1 year

Somerville v Scottish Ministers

• SA does not mention time limit
• held not to apply in this case because case related to Ministers competence in terms of SA

Question 18

What is the current proposed replacement of HRA 1998?

Answer 18

British Bill of Rights.