Introduction to ECHR and HR Flashcards
What is the definition of a public authority under the Human Rights Act (HRA)?
Under the HRA, a public authority includes any person certain of whose functions are functions of a public nature. This definition distinguishes acts performed by bodies of a ‘private nature’ from those performed by bodies of a ‘public nature’.
What is the purpose of section 3 in relation to interpreting statutes?
Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. It allows for the reading down of express language in a statute and the implication of provisions.
What was the purpose of the Human Rights Act (HRA) 1998?
The main function of the HRA was to incorporate the body of law in the ECHR into UK law so that the standards and obligations within it could be enforced in our domestic courts. The HRA also allowed for a more practical and efficient system of domestic rights protection.
When can a court make a declaration of incompatibility?
A court can make a declaration of incompatibility when it does not consider it appropriate to adopt a section 3 interpretation of relevant law. This declaration signifies that a particular provision is incompatible with an ECHR right.
What is the principle of proportionality in ECHR law?
The principle of proportionality is a key principle in ECHR law. It is a standard that is expressly contained in the qualified rights in articles 8 to 11 and also features as the standard within the test for limiting the right to life in article 2. The principle of proportionality is multi-faceted and the ECtHR employs slightly different variations of the test with respect to the articles when considering whether a fair balance has been struck by the state between the general interests of the community on the one hand, and the protection of individuals’ human rights on the other.
Can a private body performing a function of a public nature be liable under the HRA?
Yes, a body that may be private in nature but is performing a function of a public nature can be liable under the HRA in respect of that particular public function. However, no liability will arise in respect of a private function being performed. This issue often arises in relation to bodies such as housing associations and care homes.
What are the three sections of the European Convention on Human Rights (ECHR)?
The ECHR is divided into three sections. Section I seeks to protect civil and political rights, as well as a limited number of social rights. Sections II and III outline procedural aspects of the operation of the Convention.
What factors are relevant in determining whether a function is a public one?
According to Lord Nicholls in the case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, factors that may be relevant in assessing whether a function is a public one include: being publicly funded, exercising statutory power, taking the place of central government or local authorities, and providing a public service.
What was the outcome of the case Bellinger v Bellinger?
In Bellinger v Bellinger, the House of Lords held that it was not possible to use section 3 of the Human Rights Act to interpret the phrase ‘male and female’ in the Matrimonial Causes Act 1973 as including the gender identity of ‘transsexual’ people.
What is the role of the ECtHR in determining the compatibility of restrictions or penalties with freedom of expression?
In Handyside v UK (1976) 1 EHRR 737, the ECtHR explained that while state authorities are in a better position than the international judge to give an opinion on the exact content of moral requirements and the necessity of a restriction or penalty, the court is empowered to give the final ruling on whether a restriction or penalty is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation goes hand in hand with European supervision.
What are absolute rights, limited rights, and qualified rights in the ECHR?
Absolute rights are those that cannot be legitimately interfered with by the state, such as the right to be free from torture or inhuman treatment. Limited rights can be legitimately interfered with by the state in certain prescribed circumstances. Qualified rights can be lawfully interfered with by the state under specific conditions outlined in the second paragraph of each article.
What is the standing requirement for bringing a claim under the HRA?
To bring a claim under the HRA, an applicant must satisfy two requirements: (1) the claim must be against a public authority, and (2) the applicant must show that they have standing to bring the claim. Standing requires showing that the applicant is (or would be) a victim of the unlawful act.
What is the statutory defence under Section 6(2) of the Human Rights Act?
The statutory defence under Section 6(2) provides that public authorities are not liable for acting in a way that is incompatible with a Convention right if they could not have acted differently due to provisions of primary legislation or if they were acting to give effect to or enforce provisions that cannot be read or given effect in a way compatible with Convention rights.
What are the requirements for a state to interfere legitimately with a qualified ECHR right?
For a state to interfere legitimately with a qualified ECHR right, it must meet three requirements: (a) the interference was prescribed by, or in accordance with, the law; (b) the interference was in pursuit of a legitimate aim; and (c) the interference was necessary in a democratic society (i.e., proportionate).
What is the time limit for bringing a claim under the HRA?
Actions under the HRA must be commenced within one year of the date of the act complained of. However, an extension of time may be granted in exceptional cases where the court considers it ‘equitable’ to do so. If the alleged violation of a right is considered to be a continuing matter, time will not start running until the violation ceases to operate.
What is the effect of a declaration of incompatibility on legislation?
A declaration of incompatibility does not strike down or invalidate the sections of the legislation found to be incompatible. Instead, it serves as a signal to the government and Parliament that the legislation is not compliant with the ECHR.
What is the significance of the mirror approach in interpreting Section 2(1) of the HRA?
Section 2(1) of the HRA states that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration, or advisory opinion of the European Court of Human Rights. The mirror approach refers to the approach where domestic courts follow any clear and consistent jurisprudence of the ECtHR unless there are special circumstances or the decisions of the ECtHR would compel a conclusion fundamentally at odds with the UK constitution.