Intro to ECHR and HRA 1998 Flashcards
What is the ECHR?
The European Convention on Human Rights (ECHR) is an international treaty that protects the human rights and political freedoms of people in the 46 member states of the Council of Europe.
What was the main purpose of the HRA 1998?
To incorporate the body of law of the ECHR into UK law so that the standards and obligations within it could be enforced in domestic courts.
What are the absolute rights under the ECHR/HRA 1998?
Article 3-no one shall be subjected to torture or to inhuman or degrading treatment/punishment.
Article 4-prohibition on slavery and forced labour.
Article 7-no punishment without lawful authority.
These rights cannot be legitimately interfered with by the state.
What are the limited rights under the ECHR/HRA 1998?
Article 2-right to life.
Article 5-right to liberty and security of person.
Article 6-right to a fair trial and fair legal process.
These rights can in certain prescribed circumstances be legitimately interfered with by the state.
What are the qualified rights under the ECHR/HRA 1998?
Article 8-right to respect for private and family life
Article 9-freedom of thought, conscience and religion
Article 10-freedom of expression
Article 11-freedom of assembly and association
These rights may be lawfully interfered with by the state.
What are the three requirements for the state to interfere legitimately with a qualified ECHR right?
- The interference was prescribed by, or in accordance with, the law
- The interference was in pursuit of a legitimate aim
- The interference was necessary in a democratic society
What is the concept of positive obligation, refer to the case of X and Y v Netherlands (1985)?
Under this principle, the state is under a duty to prevent the violation of human rights being carried out by a private individual.
X and Y v Netherlands (1985): the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for sexual assault of a girl with learning difficulties. Dutch state held to have breached its positive obligation under Article 8.
What is the margin of appreciation doctrine in relation to ECHR law?
This doctrine provides that contracting states are allowed a certain measure of discretion when taking measures that restrict ECHR rights.
The doctrine is based on the assumption that contracting states have a better knowledge of the traditions that influence their country and this should be respected.
What is the principle of proportionality in relation to ECHR law?
It is in inherent in the whole of the Convention to search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
What is the mirror approach under S2 HRA 1998?
In determining legal questions, domestic Courts must take into account relevant ECHR case law. Duty of national Courts to keep pace with ECHR jurisprudence.
In the rare occasion the domestic Court has concerns over the ECHR decision, they can decline to follow the decision giving reasons for doing so and establish a valuable dialogue.
What does S3 HRA 1998 impose on the UK?
Legislation must be read and given effect (by the Courts), so far as is possible, in a way that is compatible with ECHR rights.
This imposes a strong interpretative obligation on the domestic Courts and a declaration of incompatibility under SS4 HRA should be a measure of last resort.
What is a declaration of incompatibility under S4 HRA 1998 and what is its effect?
This is a declaration that a provision of legislation is incompatible with a Convention right as defined by the Act.
A declaration under this section does not affect the validity of the provision of which it is given and is not binding on the parties to the proceedings. It is up to Parliament to decide whether to make a change.
What does S6(1) HRA 1998 provide for in respect of public authorities?
It is unlawful for public authorities to act in a way that is incompatible with Convention rights. There is a generously wide interpretation of public function so as to further the statutory aim of promoting human rights protection.
What is the victim test under Article 34 ECHR?
In order to satisfy the victim test under Article 34, the ECtHR has held that applicants must show that they are directly affected by the state action.
What is the time limit to bring an action under HRA 1998?
Actions under the HRA 1998 must be commenced within one year of the date of the act complained of.
An extension of time may be granted in exceptional cases. If the alleged violation of a right is a continuing matter, time will not start running until the violation ceases to operate.
