Human Rights; Legal Accountability

Question 1

What are the contrasting propositions as to how rights were incepted?

Answer 1

1. Natural Rights
   Derived from human nature, society and culture
2. Positive rights
   Derived solely from the supreme law making body.

Question 2

What is the difference between individual and civil liberties?

Answer 2

Individual liberties are often more philosophical or broad in scope and focus on protecting a person’s autonomy.

Civil liberties are legal rights and protections that shield citizens from government overreach and ensure personal freedoms within a society governed by law.

Question 3

What is the distinction between positive and negative rights.

Answer 3

Acts and omissions.

Positive rights: the government must make an active effort to preserve that particular right.

Negative rights: Prevention from interference of others.

Question 4

Describe the three generations of rights.

Answer 4

1. Civil and political rights
   e.g. personal liberties, religious tolerance and freedom of expression
2. Economic, cultural and social rights
   e.g. housing, education and minimum living standards
3. Collective or group rights
   e.g. right to self determination

Question 5

Entick v Carrington (1765) 19 St Tr 1029 (Lord Camden CJ)

Answer 5

John Entick said to have written seditious papers. King’s messengers searched his house
and seized papers. They claimed authority from the Secretary of State; Court said actions
were unlawful

Outcome: Without an EXPRESS provision of Parliament, the executive cannot override individual rights.

Question 6

Bell v Black and Morrison (1865) 5 Irv 57

Answer 6

Procurator-fiscal investigating a conspiracy to kill or injure two people. One suspect in custody,
but others not known or named. Bell was one suspect, but not charged at the time. Warrant
officers searched Bell’s house and seized papers:

Without an express Act of Parliament, no mere official practice would allow the executive to override individual rights.

Question 7

List the first 13 articles of the ECHR.

Answer 7

Art. 1 Obligation to respect human rights

Art. 2 Right to Life

Art. 3 Prohibition of torture and inhuman and
degrading treatment or punishment

Art. 4 Prohibition of slavery and forced labour

Art. 5 Liberty and security of person

Art. 6 Right to a Fair Trial

Art. 7 No retrospective criminal punishment

Art. 8 Right to respect for private and Family Life

Art. 9 Freedom of Thought Conscience and Religion

Art. 10 Freedom of expression

Art. 11 Freedom of association

Art. 12 Right to marry

Art. 13 Right to an effective remedy

Question 8

What are the four levels of protection?

Answer 8

1. Absolute
2. Limited
3. Qualified
4. Derogation

Question 9

What are the four exception to Art 15 (Derogation of Rights)

Answer 9

• Art.2 – right to life (except lawful acts of war)
• Art.3 – Torture and inhumane and degrading treatment
• Art.4(1) – slavery
• Art.7 – punishment without law

Question 10

What are the four questions to determine proportionality of an infringement on the ECHR?

Answer 10

1. Has there been an interference with the right?

• Usually a straightforward

2. Was the interference ‘prescribed by law’?

• Must be an identifiable domestic law - Malone v UK (1985) 7 EHRR 14
• Must be accessible and sufficiently precise - Sunday Times v UK (1979-80) 2 EHRR 245

3. Was interference in pursuit of a legitimate aim?

• The permissible aims are very broad
• Exceptionally, the court does not accept that the stated aim is the true one - Moscow Branch
  of the Salvation Army v Russia (2007) 44 EHRR 912

4. Was the interference necessary in a democratic society? Sunday Times v UK ECtHR 26 April 1979, 6538/74

Question 11

When considering whether the derogation of a right is necessary in a democratic society, what question will the court consider?

Answer 11

• “Pressing social need” for restriction or penalty?

Question 12

Why does the ECHR take into consideration domestic laws?

Answer 12

• Risk of undermining State confidence in system if Convention doesn’t reflect state
  practice

Question 13

What is a margin of appreciation?

Answer 13

Recognition that MS have some leeway to regulate and restrict ECHR rights in line with own laws and traditions

Question 14

What are the two remedies in circumstances where there has been a breach?

Answer 14

1. Friendly settlement
2. Just satisfaction

Question 15

What are the purposes of the HRA 1998? (2).

Answer 15

➢ Provide a faster, less expensive domestic remedy

➢ Strengthen the protection of human rights in the UK

Question 16

When did the HRA 1998 commence?

Answer 16

2000.

Question 17

What does section 2 of the HRA provide for?

Answer 17

• UK courts “must take account” of ECtHR decisions and jurisprudence

Question 18

What does section 3 of the HRA provide for?

Answer 18

• “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Question 19

What three cases highlight s. 2 of the HRA?

Answer 19

R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323

Manchester CC v Pinnock [2010] UKSC 45; [2010] 2 WLR 47

R. (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2023] A.C. 559

Question 20

Which three cases highlight s. 3 of the HRA?

Answer 20

Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467

Ghaidan v Godin-Mendoza [2004] UKHL 30, [24] 2 AC 557

Secretary of State for Business and Trade v Mercer [2024] UKSC 12

Question 21

➢ Which court may make a declaration of incompatibility?

Answer 21

• Superior courts: Supreme Court, Court of Session, HCJ (s.4(5))

Question 22

➢ What is the effect of a declaration of incompatibility?

Answer 22

• No effect on validity or operation of the legislation
• is not binding on the parties to the proceedings in which it is made (s.4(6)(a))
• May trigger fast-track amendment under s.10 HRA, or legislation may be changed by full legislative process.

Question 23

R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657

Answer 23

➢ Facts:
* Applicant had suffered a severe stroke and wanted a doctor to assist him to kill himself. Sought a declaration that either it was lawful to do so, or that the law was incompatible with Art.8 ECHR.

➢ Judges:
* 9 UKSC justices

➢ Question
* whether legislation criminalising assisted suicide is a proportionate restriction of the right to private life

➢ Outcome:
* majority (7 of 9) declined to issue declaration of incompatibility
* 4 justices: case raised ‘controversial and complex questions of fact arising out of moral and social dilemmas’
* 3 Justices: legislature “actively considering the issue” so not appropriate to issue a declaration at this
time. If another case comes to might, might be appropriate then

Question 24

What does s. 6 of the HRA 1998 provide for?

Answer 24

• It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Question 25

What does s. 29 of the Scotland Act provide for?

Answer 25

* An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (s.29(1)) * A provision is outside that competence … [if]…it is incompatible with any of the Convention rights [...] (s.29(2)(d))

Question 26

What does s. 57 of the Scotland Act provide for?

Answer 26

* A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law… (s.57(2)) * NOTE: Public authorities subject to the HRA 1998 (s.6)

Question 27

What does s. 101 of the SA 1998 provide for?

Answer 27

Interpretation of Act of the Scottish Parliament * Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly. (s.101(2))

Question 28

I relation to Human Rights, what does an MP have to make before introducing a bill to Parliament?

Answer 28

A statement of compatibility.

Question 29

Which case highlights that IN ENGLAND there is a presumption of incorporation of the ECHR.

Answer 29

R v SofS for Home Department Ex. P Brind

Question 30

Which case highlights that until 1997 there was not an incorporation of the ECHR in Scotland.

Answer 30

Kaur v Lord Advocate.

Question 31

Which case overturned Kaur v Lord Advocate?

Answer 31

T, Petitioner 1997 724

Question 32

Which case highlights that common law rights cannot be overridden unless done so expressly by parliament?

Answer 32

R v SofS for the Home Department ex. p Simms

Question 33

Provide an example of an absolute right.

Answer 33

Nobody shall be subject to slavery?

Question 34

Provide an example of a limited right?

Answer 34

Nobody shall have their liberty infringed upon, save for the following circumstances...

Question 35

Provide an example of a limited right.

Answer 35

Everyone has the freedom of expression, if it.. XYZ

Question 36

Which case highlights the derogation of Human Rights?

Answer 36

Lawless v Ireland.

Question 37

Which case highlights that the state determines what constitutes an emergency?

Answer 37

Aksoy v Turkey.

Question 38

However, which case highlights that states can only depart from the standards to the extent strictly required by the existence of the situation in reference to determining emergency situations?

Answer 38

A & Others v SofS for the Home Department.

Question 39

What are the four purposes and objects of the ECHR?

Answer 39

1. Guarantee practical and effective rights 2. Protection of Human Rights 3. Maintenance and promotion of the ideals and values of a democratic society 4. Democracy = pluralism, tolerance and broadmindedness

Question 40

One of the purposes of the ECHR is to guarantee practical and effective rights. Which case highlights this?

Answer 40

Airey v Ireland.

Question 41

One of the purposes of the ECHR is to protect Human Rights. Which case highlights this?

Answer 41

Soering v UK

Question 42

One of the purposes of the ECHR is to maintain and promote the ideals and values of a democratic society. Which case highlights this?

Answer 42

Kjeldsen Busk Madsen and Pedersen v Denmark.

Question 43

The ECHR establishes that democracy = pluralism, tolerance broadmindedness. Which case highlights this?

Answer 43

Handyside v UK A

Question 44

Which case highlights that the ECHR is a living instrument which must be interpreted in the context of the modern day?

Answer 44

Tyrer v UK

Question 45

Which case highlights that while the Uk is entitled to regulate/restrict the ECHR, however the courts are entitled to supervise and the margin of appreciation is not unlimited.

Answer 45

Handyside v UK A

Question 46

When determining proportionality, the second question is ' was the interference prescribed by law? Which case highlights that it must be an identifiable domestic law?

Answer 46

Malone v UK (1985) 7 EHRR 14

Question 47

When determining proportionality, the second question is ' was the interference prescribed by law? Which case highlights that it must be accessible and sufficiently precise?

Answer 47

Sunday Times v UK (1979-80) 2 EHRR 245

Question 48

When determing proportionality the third question is 'was interference in pursuit of a legitimate aim'. Which case highlights that while the permissible aims are broad, in exceptional cases the court can determine that the aim given by the defendant is not the true one.

Answer 48

Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 912

Question 49

When determining proportionality, the last question is 'was the interference necessary in a democratic society' ? Which case highlights this?

Answer 49

Sunday Times v UK ECtHR 26 April 1979, 6538/74

Question 50

What are the limits on liberty? (6).

Answer 50

1. Conviction by a competent court. 2. Non-compliance with the law. 3. Bringing an accused party before a court 4. The detention of a minor 5. Preventing the spread of disease or other health related issues (mental health etc.) 6. Prevention of illegal immigration.

Question 51

Article 5(5) allows what where there has been unlawful detention?

Answer 51

Compensation.

Question 52

Article 6 (2) stipulates what about the treatment of accused parties?

Answer 52

Innocent until proven guilty.

Question 53

Describe the circumstances surrounding and the principle established in Bellinger v Bellinger.

Answer 53

- Applicant disputed the Matrimonial Clauses Act 1972 - Trans women. - Court found in favour of the applicant suggesting that it was incompatible with Article 8 of the ECHR

Question 54

Describe the circumstances and the outcome of Gahdin v Godin-mercer

Answer 54

- Same-sex couple disputed the term 'spouse' in relation to the Landlord and Tenant Act 1981, which allowed the transfer of property to the spouse in the event of death - Found to be incompatible with Article 8 of the ECHR

Question 55

Deserve the circumstances and the outcome of the Secretary of State for Business and Trade v Mercer

Answer 55

- Industrial Action - Didn't receive earnings she otherwise would have received had she not been striking. - Trade Union and Labour Relations (Consolidation) Act 1992 - Act held to be incompatible with convention rights - Article 10 and 11 - Supports workers right and prevents retaliatory action on the part of the employer.

Question 56

Describe the events of R (Ullah) v the Secretary of State for the Home Department.

Answer 56

- Concerned two asylum seekers - One being a Vietnamese catholic and the other a Pakastani preacher - Suggested that deportation would result in persecution, thereby in contradicting their convention right to thought and freedom. - Highlights section (2) of the Human Rights Act 1998

Question 57

Describe the events of Manchester City Council v Pinnock

Answer 57

- Tenancy agreement included a restrictive covenant which precluded nuisance behaviour. - Sons committed a combined total of 32 crimes. - Mr Pinncok evicted despite sons having not lived at the property for some time - Held to be unlawful - Highlights section (2) of the Human Rights act

Question 58

Describe the events of R (on the application of Elen-Cane) v the Secretary of State for the Home Department

Answer 58

- Non-binary individual wishing to add the additional option of X under the gender field of passports - Highlights section (2) of the Human Rights Act - No discernible outcome as still going through the appeals process.

Question 59

Soering v UK

Answer 59

- US seeking extradition of a German National from the UK - German national faced death penalty upon trial in the United States - Held to be incompatible with the Article 2 for the UK to extradite the accused - Highlights that he ECHR protects and maintains Human Rights

Question 60

Lawless v Ireland

Answer 60

Highlights that in times of emergency the state may derogate convention rights - Suspected member of the IRA detained in a military camp

Question 61

Kledsen, Madsen and Pedersen v Denmark

Answer 61

- Christian opposition to sex education with the purpose of reducing the high numbers of unwanted pregnancies - ECHR must protect and promote the ideals of a democracy