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Public Law > Introduction to the ECHR and HRA > Flashcards

Introduction to the ECHR and HRA Flashcards

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1
Q

As a dualist system, what are the two ways in which international law can be enforced against the UK?

A
  1. Claim to international court (e.g. pre-HRA, take claim to the ECtHR)
  2. UK incorporates rules into its domestic law by passing a statute
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2
Q

What are absolute rights and what are those contained in the ECHR?

A

Rights that cannot be legitimately interfered with by the state
* Torture and degrading treatment
* Slavery and forced labour
* No punishment without lawful authority

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3
Q

What are limited rights and what are those contained in the ECHR?

A

Rights that can be interfered with by the state in prescribed circumstances:
* Right to life
* Right to liberty and security of person
* Right to fair trial/legal process

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4
Q

What are qualified rights and what are those contained in the ECHR?

A

Rights that can be intefered with if three requirements are met
* Right to respect for private and family life
* Freedom of thought, conscience and religion
* Freedom of expression
* Freedom of assembly and association

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5
Q

What are the 3 requirements that must all be met for the state to legitimately interfere with a qualified right?

A

The interference was:
1. Prescribed by/in accordance with law
2. In pursuit of a legitimate aim
3. Necessary in a democratic society (i.e. proportionate)

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6
Q

What do UK courts have a duty to do when interpreting protections under the HRA?

A

Take into account relevant ECtHR case law

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7
Q

What are the 3 principles that have been developed by the ECtHR which the UK court must consider (and sometimes incorporate/develop)?

A
  1. Concept of positive obligation
  2. Margin of appreciation doctrine
  3. Principle of proportionality
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8
Q

What is the positive obligation?

A

A duty the state might be under to prevent the violation of human rights being committed by non-state actors

Cf negative obligation = refraining from interfering with a human right

E.g. X and Y v Netherlands - lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for sexually assaulting a girl with learning difficulties - Dutch state held to have breached obligations under Art 8

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9
Q

Is there a positive obligation on the state (police) to take preventatitve measures to protect an individual whose life was at risk from criminal acts of another individual?

Osman v UK

A

Yes - subject to conditions that:
* Authorities ought to have known of the real and immediate risk to life of an identified individual and
* They failed to take measures within their powers which
* Judged reasonably, might have been expected to avoid that risk

Consider operational choices also (no excessive burden on authority)

On Osman facts - police could not have been taken to know that lives of Osman family at real and immediate risk, no breach of Art 2 right to life

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10
Q

What does the margine of appreciation doctrine mean for the contracting states?

A

States are allowed a certain measure of discretion when taking legislative/administrative/judicial measures that restrict ECHR rights
* Contracting parties have better political, social and cultural understanding of their country
* Initial/primary responsibility for protection of HR lies with contracting parties themselves

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11
Q

As the margin of appreciation doctrine reflects the ‘subsidiary role’ of the ECtHR in protecting HR, is the state’s discretion unlimited?

A

No - still subject to ultimate supervision by ECtHR
* State in better position than international judge to give opinion on the necessity of a restriction/penalty - but ECtHR can give final ruling (Handyside v UK)

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12
Q

What does the principle of proportionality balance?

A
  • Genuine interests of the community; and
  • The protection of individual’s fundamental rights
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13
Q

What must UK courts take into account in determining legal questions according to s2 HRA?

A

Relevant ECHR case law

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14
Q

How must legislation be read and given effect to according to s3 HRA?

A

In a way that is, as far as possible, compatible with ECHR rights

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15
Q

If s3 - reading in a compatible way - is not possible, what must court make according to s4?

A

A declaration of incompatibility

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16
Q

According to s6(1), what is it unlawful for ‘public authorities’ to do?

Public authorities includes courts and tribunals

A

Act in a way that is incompatible with Convention rights

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17
Q

Considering s2(1), will the court ever decline to follow ECtHR case law?

A

Yes - if concerns as to whether the decision currently appreciates/accomodates particular aspects of domestic process

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18
Q

What is the difference between the mirror approach and dialogue and which one is followed?

A
  • Mirror approach = national courts keep pace with Strasbourg jurisprudence
  • Dialogue = both UK courts and Strasbourg should reconsider decisions based on the other’s

Dialogue is most common approach

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19
Q

What is the ultimate effect of s6(1) (unlawful for public authority to act incompatibly with Convention right)?

A

It will be unlawful in domestic law for a public body - unless it has a defence - to act in a way contrary to any Convention right

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20
Q

What is the ‘statutory defence’ to s6(1) contained in s6(2)?

A

A public authority does not breach s6(1) if:
1. It is required by primary legislation so to act
2. It is acting so as to give effect to or to enforce incompatible primary or subordinate legislation

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21
Q

How will a s3 interpretative reading impact the s6(2) defence?

S6(2) defence = acting to enforce incomptaible legislation

A
  • If court can interpret in a compatible way, public authority liable
  • If not = public authority not liable and s4 can be made
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22
Q

What is expressly excluded from being a ‘public authority’ under s6(1) and why is this?

Referred to in s6(1)

A

Westminster PARL in legislative roles and persons exercising functions in connections with proceedings in PARL - designed to protect PALR SOV

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23
Q

What are the 3 types of bodies recognised by s6 and which one will not incur liability?

A
  1. Core public authorities
  2. Hybrid/functional public authorities
  3. Private bodies (no liability) e.g. retailer selling clothing
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24
Q

What are core public authorities and which of their actions are subject to s6(1) obligation?

A
  • Bodies that are clearly and inherently public in nature
  • Potentially subject re all of their actions

E.g. central GOV depts, local authorities, the police, HMRC, prisons, courts, immigration officers

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25
Q

What are functional/hybrid public authorities and how might they be subject to s6(1) obligation?

A
  • A body which is private in nature, but which is performing a function of public nature
  • Can be liable in respect of particular public function (but no liability re private function)

E.g. housing associations, care homes

26
Q

What factors are relevant in deciding whether a function is a public one?

A

The extent to which, in carrying out function, the body is:
* Publicly funded
* Exercising statutory power
* Taking place of central GOV or local authorities
* Providing a public service

Is given a generously wide interpretation to further HR protection

27
Q

Aside from having to satisfy the court that their claim is against a ‘public authority’ for s6(1), what else must be shown by an applicant?

A

That they have standing to bring the claim

28
Q

What is the test for deciding whether an applicant has standing?

A

The victim test (from Art 34): applicant must show that he is (or would be) a victim of the unlawful act

29
Q

To satisfy the victim test, what else must an applicant show?

A

That they are directly affected by state action

Klass v Germany

30
Q

What must an applicant be?

A

A person in the legal sense (natural or legal i.e. corporate bodies, trade unions, political parties)

31
Q

When can an organisation/group not bring a claim?

A

If they are claiming on behalf of people whose rights have been affected

E.g. Re Northern Ireland HR Commission - NIHRC could not bring a claim challenging compatibility of restrictive abortion law

32
Q

When can an organisation bring an action?

A

Where it can claim a state is violating the rights it enjoys itself as an organisation

E.g. Liberty v UK - pressure group successfully complained that its interception of communication breached Art 8

33
Q

What is the time limit for bringing an action under the HRA? Is there room for extension?

s7(5)

A

Within 1 year of the date of the act complained of - extension may be granted where court considers it equitable to do so (exceptional cases)

Stricter JR limits apply if HRA claim being brought within JR app

34
Q

How does the time limit work if it is a continuing matter rather than a single incident?

A

Time will not start running until the violation cease to operate

O’Connor v Bar Standards Board

35
Q

Can the use of s3 interpretation (reading as far as possible to give effect compatible with Convention rights) have the effect of removing a s6(2) defence (i.e. statutory defence)?

A

Yes - if court reads it as compatible, they are no longer acting so as to give effect to or to enforce incompatible primary or subordinate legislation = no defence

36
Q

What can the courts do through the strong interpretative obligation of s3?

Reading as far as possible to be compatible with Convention rights

A
  • Interpret provision even if language clear (court should strive to find possible interpretation compatible)
  • Adopt linguistically strained interpretation
  • Read down language (i.e. narrower version to render compatible)
  • Read in words/imply in provisions (e.g. spouses meant ‘his husband and wife’ to account for gay couples)
37
Q

Given the strength of the interpretative provision, when should a declaration of incompatibility be used?

A

As a measure of last resort

38
Q

What are the limits of the interpretative obligation?

A

The courts cannot:

  • Change substance of provision completely
  • Make changes running counter to fundamental feature/underlying thrust of legislation (go against the grain)
  • Contradict provisions in legislation
  • Repeal/delete language used in legislation
  • Make decisions for which the court is not equipped (e.g. coherent policy on recognition of changes of legal sex for purposes of marriage)
39
Q

Can the courts strike down primary legislation that is incompatible with ECHR rights?

A

No because of PARL SOV

40
Q

What happens in situations where court does not consider it appropriate to adopt a s3 interpretation?

A

Court may make a declaration of incompatibility

I.e. provision is incompatible with ECHR right

E.g. in Bellinger - court made declaration re MCA as it made no provision for the recognition of gender assignment and was therefore incompatible with Art 8

41
Q

What are the only courts that can make a declaration of incompatibility?

A

High Court and appellate courts (CoA and SC)

42
Q

What are ministers legally required to do once a declaration of incompatibility has been made under s4?

A

Nothing! Is a political force not a moral one - declaration does not invalidate/strike down sections of legislation found to be incompatible

43
Q

Under s8, where a court finds that a public authority has acted contrary to its duty under s6(1), what can it do?

A

Grant a remedy it considers ‘just and appropriate’

44
Q

What power does s10 provide to government ministers?

A

To take expedited remedial action where a s4 declaration is made

45
Q

What must a minister who is responsible for a bill do before its Second Reading pursuant to s19?

A

Make a statement that provisions of bill are compatible (or not) with the ECHR

46
Q

When does the statutory defence apply to limit the liability incurred by a public authority under s6(1)?

A
  • If the authority could not have acted any differently (as a result of one or more provisions of primary legislation)
  • Primary legislation provisions cannot be read/given effect in a way which is compatible with the Convention rights and the authority was acting in a way to give affect to those provisions

(Same as last card but longer)

47
Q

What does s6(2)(a) mean by ‘the authority could not have acted any differently’?

First part of statutory defence

A

A duty was imposed on the authority by legislation and the authority had no alternative but to do what legislation told it to

PARL SOV prevails over the Convention right

48
Q

What is the meaning of s6(2)(b) - authority was acting to give effect/enforce provisions which cannot be read in a way compatible with Convention rights?

A

Authority has discretion to give effect to enforce provisions of primary legislation which cannot be read/given effect to in a compatible way

49
Q

What are the 2 things a court can do where a victim claims public authority has violated a Convention right and the public authority relies upon statutory defence under s6(2)?

Where court has determined that statutory provision elied upon by PA was incompatible with ECHR right

A
  • Can try to interpret offending provision as far as possible in a compatible way (s3)
  • If not possible - may consider whether to make a declaration of incompatibility under s4
50
Q

What are the consequences of each?

A
  • Court uses s3 power to read provision compatibly = public authority’s defence disappears, it cannot avoid liability, remedy provided for applicant
  • Court not able to use s3 power and instead makes a DOI under s4 = claimant will not have a remedy as s6(2) defence remains in place

C can still take claim to ECtHR for a final ruling

51
Q

Will the public authority be found to have acted unlawfully where unlawful interference with a Convention right has been provided for by statute + court cannot interpret offending legislation compatibly with Convention under s3 (so must make DOI instead)?

A

No - public authority has a statutory defence

52
Q

What are the normal range of remedies under s8?

A

Damages, declarations, injunctions, quashing orders, prohibitory orders, mandatory orders

53
Q

What is meant by s10(2) that a minister may take expedited ‘remedial action’ to amend relevant legislation in response to a s4 DOI?

2 procedures

A
  1. Standard procedure - requires a draft amending order be laid before PARL for 60 days before being approved by both Houses
  2. Urgent cases - order may be laid before PARL for approval after it is made
54
Q

What can a claimant do in the absence of remedial legislation and administrative action to provide remedy for the individual?

A

May have recourse to ECtHR

As all domestic remedies have been exhausted

55
Q

According to Art 1, to whom do the contracting parties (state) need to guarantee the rights and freedoms of the ECHR?

A

Everyone within their jurisdiction; does not have to be a national of the state to be able to rely on ECHR rights against the state

56
Q

Can a victim make a claim for acts that have occurred outside the geographical location of the relevant contracting state?

A

Yes…
* Activities of diplomatic staff abroad
* When state has control over territory and its inhabitants during military occupation
* GOV of that territory has consented to the exercise of its powers

57
Q

What does it mean for a contracting state to derogate, under Art 15, from the rights protected by the ECHR?

A

They can ‘opt out of’ the rights

58
Q

When can a party derogate from the rights protected by ECHR?

A
  1. War/public emergency threatening life of nation
  2. Only from Art 2 (right to life) re deaths resulting from lawful acts
59
Q

What articles cannot be derogated from?

A
  • Art 3 (torture)
  • Art 4 (slavery)
  • Art 7 (punsihment w/o law)
60
Q

Can a party derogate from rights as much as it wants in times of war/national emergency? Who decides?

A
  • No - only to extent strictly required by exigencies of the situation (proportionality approach)
  • Last word re lawfulness of derogation lies with state’s courts, then if necessary the ECtHR
61
Q
A

Public Law (13 decks)

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