human rights protection Flashcards
When was the European Convention on Human Rights established?
after the WW2
What are the 3 core values that the European Convention on Human Rights aims to promote?
human rights, democracy and the rule of law
what are 3 countries which were part of the original London agreement in 1949 that established the Council of Europe?
Ireland, italy and UK
What is the overarching goal of the European Convention on Human Rights?
create a Europe of peace founded on the value of human rights , democracy and law
What is the ECHR?
the human rights treaty with civil and political rights
how many state parties are part of the ECHR?
46
What was the original structure of the ECHR enforcement machinery?
both commission and a court
What is the current structure of the ECHR enforcement machinery?
solely a court
What was the status of the individual petition process in the ECHR originally?
optional
What is the current requirement regarding individual petitions in the ECHR?
compulsory
What must individuals do before taking action against a state in the ECHR?
exhaust all domestic remedies
What can happen if a state is found to have breached the ECHR?
state required to rectify the breach and pay damaged
What is a notable characteristic of the process for individuals seeking remedies under the ECHR?
it can be lengthy
What are two fundamental rights protected by the ECHR?
the right to life and the prohibition on torture
Which rights are included in the ECHR concerning personal freedom and legal proceedings?
the right to liberty and the right to a fair trial
What principle does the ECHR uphold regarding criminal laws?
non-retroactive criminal laws
What aspects of personal life does the ECHR protect?
the right to family life and private life
What freedoms related to personal beliefs and expression are safeguarded by the ECHR?
the right to religion, expression, and association
What right concerning relationships does the ECHR protect?
the right to marry
Which additional rights are included in Protocol No. 1 of the ECHR?
the rights to property, education and fair elections
What stance does the ECHR take regarding the death penalty?
the abolition of the death penalty
How could the ECHR be used in UK courts before the Human Rights Act?
it can be relied upon
In what situation could the ECHR serve as an interpretive aid in UK law?
if a statute was ambiguous
What could individuals do if there was no remedy available in the UK legal system?
can go to the ECOHR
What obligation did the UK have regarding the ECHR as a matter of international law?
bound by ECHR as a matter of international law
What could occur if the UK did not comply with the ECHR?
there could be a possible violation of the treaty
What political party included the Human Rights Act in their manifesto for the 1997 election?
Labour Party
What was the title of the document released in October 1997 that introduced the Human Rights Bill?
rights brought home
When was the Human Rights Act officially enacted?
1998
When did most provisions of the Human Rights Act come into force?
in 2000
Which rights are protected under the Human Rights Act 1998?
under section 1 and schedule 1
What could happen if the UK takes on additional obligations regarding the Human Rights Act?
s1 may be changed to accommodate those additional obligations
What is the distinction between residual liberty and positive rights in the context of the Human Rights Act?
Residual liberty refers to the freedom to act unless explicitly restricted, while positive rights require the state to take action to ensure those rights are fulfilled
What was established in the case of Malone v Metropolitan Police Commissioner [1979] Ch 344?
‘everything is permitted except what is expressly forbidden’
Which article from the ECHR is notably not included in the Human Rights Act 1998?
article 13
How did common law traditionally view freedom of expression?
residual liberty, existing only in the gaps of criminal and civil laws such as obscenity, libel, and contempt of court
What does Article 10 of the ECHR state regarding freedom of expression?
Article 10 states that “Everyone has the right to freedom of expression,” which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
What are the limitations included under Article 10(2) of the ECHR?
Article 10(2) outlines that freedom of expression may be subject to certain restrictions or penalties, as long as these are prescribed by law and are necessary in a democratic society for reasons such as national security, public safety, or the protection of the rights of others
What does Article 13 of the ECHR establish?
Article 13 establishes the right to an effective remedy, stating that “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Is the right to an effective remedy under Article 13 already protected by the adoption of the Human Rights Act?
yes
What does Section 2 of the Human Rights Act (HRA) require?
Section 2 requires UK courts to take into account the case law of the European Court of Human Rights when interpreting and applying the rights protected under the HRA
What was established in the case of Kay (2006) regarding the margin of appreciation?
ational authorities are given a generous margin of appreciation, meaning that national courts have the discretion to decide how the principles defined by the European Court should be applied within the specific context of national legislation
What considerations should national courts take into account when applying Strasbourg principles?
local practices, social factors, and other relevant considerations when applying Strasbourg principles to ensure that decisions align with the context of national law
What principle was established in the case of Ullah (2004)?
The Ullah principle states that national courts “should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court.” Lord Bingham emphasized that national courts have a duty to keep pace with the evolving Strasbourg jurisprudence, ensuring they do not lag behind
What did the Horncastle case (UKSC 2009) clarify about following Strasbourg decisions?
acknowledged that there are “rare occasions” when national courts may choose to decline to follow a Strasbourg decision. This is in line with Section 2 of the HRA, which states that courts should “take into account” Strasbourg case law but allows for some discretion under specific circumstances
What principle did the Manchester City Council v Pinnock (2010) case establish regarding following European court decisions?
The case clarified that while UK courts should usually follow a clear and constant line of decisions by the European Court, they are not strictly bound to do so. Section 2 of the HRA requires courts to “take into account” European court decisions rather than necessarily follow them
Under what conditions might UK courts decide to follow a line of European court decisions?
UK courts may choose to follow a clear and constant line of European court decisions if the decisions are not inconsistent with fundamental aspects of UK law, and if the reasoning of those decisions does not overlook or misunderstand significant arguments or principles
What is the primary duty of Section 3 of the HRA regarding legislative interpretation?
Section 3 imposes a duty on courts to interpret legislation in a way that is compatible with Convention rights “so far as it is possible to do so.” This duty extends beyond merely resolving ambiguities; it requires courts to actively interpret legislation in line with human rights principles
How does Section 3 of the HRA differentiate between interpreting and legislating?
The distinction lies in the courts’ role. While courts can interpret legislation to align with Convention rights, and must avoid crossing into the realm of legislative creation
What does the phrase “so far as it is possible to do so” imply in Section 3 of the HRA?
ndicates that courts are required to interpret legislation in a way that is compatible with Convention rights whenever it is feasible
What was the outcome of the case Ghaidan v Godin Mendoza (2004)?
the House of Lords held that the interpretation of the Rent Act 1977 should be read in a way that allowed same-sex couples to inherit tenancies, thereby aligning the law with Convention rights
What was the key issue in R (Wilkinson) v IRC (2003)?
involved a tax allowance that was granted to widows but not to widowers in similar circumstances. The court found this distinction to be contrary to Article 14 of the Convention, which prohibits discrimination
What was the court’s decision regarding Mr. Wilkinson’s claim in R (Wilkinson) v IRC?
rejected the claim
What is a declaration of incompatibility?
formal statement by a court indicating that a piece of legislation is incompatible with the rights guaranteed under the European Convention on Human Rights
Is making a declaration of incompatibility a power or a duty for the courts?
It is a power of the courts, not a duty
Which courts can make a declaration of incompatibility?
The High Court, the Court of Appeal, and the Supreme Court can make declarations of incompatibility
What is the effect of a declaration of incompatibility?
The effect is that it does not invalidate the law but signals to Parliament that the law may need to be amended to comply with human rights standards
What did Steyn say in R v A (No 2) about declarations of incompatibility?
a measure of last resort
What is derogation from Article 5 ECHR?
suspension of certain rights, particularly concerning the right to liberty
What does the Anti-terrorism, Crime and Security Act 2001 allow?
Part 4 of the Anti-terrorism, Crime and Security Act 2001 allowed for the indefinite detention of suspected terrorists who were not UK nationals and could not be removed to another safe state
What was the outcome of A (FC) v Secretary of State for the Home Department on December 16, 2004?
The House of Lords quashed the designated derogation order and made a declaration of incompatibility under Section 4 of the Human Rights Act (HRA) concerning the 2001 Act
Was Parliament or the Government obliged to react to the ruling in A (FC) v Secretary of State for the Home Department?
no
What legislation followed the ruling in A (FC) v Secretary of State for the Home Department?
The Prevention of Terrorism Act 2005 was introduced as a response to address the issues raised by the ruling and to provide a legal framework for dealing with suspected terrorists
Where in the Act are remedial orders found?
S10 of the human rights act 1998
- What is the purpose of remedial orders?
amend legislation that has been found incompatible with the European Convention on Human Rights
What types of legislation can be amended by remedial orders?
used to amend both primary and secondary legislation
What must happen for a remedial order to become law?
considered by the Joint Committee on Human Rights and then approved by both Houses of Parliament to become law
What happens if an urgent remedial order is not approved?
made without advance scrutiny
What conclusion has the Government reached about courts setting aside primary legislation?
courts should not have the power to set aside primary legislation on the grounds of incompatibility with the Convention
Why does the Government oppose courts having this power?
because it values Parliamentary sovereignty, which means that Parliament, as a democratic body, should make important public policy decisions
What is the source of authority for Members of Parliament in the House of Commons?
derive authority from a democratic mandate because they are elected, accountable, and representative of the public
What would granting courts the power to set aside Acts of Parliament imply?
Granting this power would give the judiciary a general authority over Parliament’s decisions, which could lead to serious conflicts between the judiciary and Parliament
Is there evidence that the judiciary desires this power or that the public supports it?
no
Does the Government have a mandate for changing this arrangement?
no mandate for any such change regarding the power of the judiciary over Parliament
What is the duty of public authorities according to Section 6(1)?
act in a way that is compatible with the rights set out in the European Convention on Human Rights
What is the exception stated in Section 6(2)?
not liable for incompatibility if it is acting in accordance with primary legislation that cannot be interpreted compatibly with Convention rights
What does Section 6(3) clarify about public authorities?
states that courts and tribunals are included as public authorities, but it does not provide an exhaustive definition
What are examples of core public authorities?
police, central government, and local government
What defines hybrid or functional public authorities?
defined as any person or entity whose functions are of a public nature, such as a security firm running a prison
What does Section 19 of the HRA 1998 require from a Minister?
Minister must make a statement to Parliament regarding the proposed legislation’s compatibility with Convention rights before the second reading of a bill
What are the two possible statements a Minister can make about a Bill’s compatibility?
Minister can either state that the Bill is compatible with the Convention rights or state that they are unable to make a compatibility statement but wish for the House to proceed with the Bill anyway
What was the date the House of Lords Reform Bill was introduced?
27th June 2012
What did the Deputy Prime Minister state regarding the Bill’s compatibility with the Human Rights Act?
stated that he was unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998, but the Government wished Parliament to proceed with the Bill regardless
What was the significance of the Hirst v UK (No 2) case?
he Grand Chamber of the European Court of Human Rights found that the blanket ban on serving prisoners voting in House of Commons elections was incompatible with Article 3 of Protocol 1, stating it was a “blunt instrument” that indiscriminately stripped the voting right from a significant category of persons
What did the Court say about the margin of appreciation in the Hirst case?
afforded a wide margin of appreciation to the UK, but determined that the blanket ban was outside that margin
