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Constitutional & Admin Law – Academic > Introduction to the ECHR and HRA > Flashcards

Introduction to the ECHR and HRA Flashcards

1
Q

How many countries are current signatories of ECHR and when did the UK sign it?

A

46 member states (used to be 47 before Russia’s expulsion). UK signed in 1951

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2
Q

What are the 2 ways in which proceedings may commence for ECHR breaches?

A

1. State applications: If a state is in violation of ECHR, procedings may be brought by other signatory states

2. Individual petitions to ECtHR: Individuals whose Convention rights have been breached as a result of domestic law may start their own proceedings against the state before the ECtHR

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3
Q

Must domestic remedies be exhausted before bringing a claim in ECtHR?

A

Yes

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4
Q

What is the time limit for individual applicants to bring a claim in ECtHR?

A

4 months of the final decision (ie: decision of the highest UK court)

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5
Q

What criterion must applicants satisfy before they can bring a claim to ECtHR?

A
  1. Be victims of ECHR violations** personally and directly**
  2. Suffer a significant disadvantage

In cases that do proceed to a full hearing, 84% of them have found state violations!

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6
Q

Are ECHR decisions binding in domestic law?

A

No –only international law.

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7
Q

What are the most common remedies granted?

A
  1. Compensation
  2. Requiring state to change its law
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8
Q

What is the 2-stage process for bringing proceedings before the Court?

A
  1. Admissibility Stage
  2. Merits State
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9
Q

If a single judge decides that an application is inadmissible from the outset, is there a right of appeal?

What about for the Chamber of Judges / Grand Chamber?

A

No right of appeal from single judge (but usually more common to have a 3 judge committee for cases with well established precedence)

Other cases will be heard by the Chamber of Judges which will give judgement by majority and only achieves finality after 3 months (during which applicant/state may ask for referral to Grand Chamber for fresh consideration)

If referral is accepted by Grand Chamber, they will reconsider the case and hold a public hearing if necessary – this is final.

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10
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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11
Q

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

A

Rights that cannot be legitimately interfered with by the state –state must uphold them at all times.

  • Torture and degrading treatment
  • Slavery and forced labour
  • No punishment without lawful authority
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12
Q

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

A

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

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13
Q

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

A

Rights that can be intefered with if 4 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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14
Q

What are the 4 requirements that must all be met for the state to legitimately interfere with a qualified right?

A

The qualification was:
1. Express
2. 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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15
Q

What does qualifications must be express mean?

A

Only restrictions that are expressed in the ECHR are recognised and must be used for the purpose in which they are prescribed

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16
Q

What does qualification prescribed by law mean?

A

Government can rely on a Convention qualification to justify a restriction of that right, but only if state’s law takes advantage of it

Must follow rule of law – be clear, sufficiently precise, accessible

Eg: Goverment cant breach respect to private life (Art 3) for prevention of crime (Art 8) UNLESS UK LAW PERMITS THE INFRINGEMENT

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17
Q

What legitimate aims are common for qualified rights?

A
  1. Interests of natuonal security, public safety or economic wellbeing of the country
  2. Protection of disorder of crime
  3. Protection of health or morals
  4. Protection of rights and freedoms of others
  5. Prevention of disclosure of confidential information
  6. Maintaining the authority and impartiality of the judiciary
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18
Q

What conditions must be satisfied to be ‘necessary in a democratic society’?

A
  1. A ‘pressing social need’ [rather than absolute necessity for a restriction]; and
  2. Interference must be proportionate [ie: do not go further than is necessary]

HOWEVER, state is allowed a ‘margin of appreciation’ in judging necessity (so member states can reach different conclusions based on public interest)

PLUS should consider minority rights (eg: if majority of state is intolerant to homosexuality, it does not excuse a law criminalising it)

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19
Q

What is the general classification of Articles in ECHR (in terms of qualified/limited/absolute)

A

2-7 are absolute or limited with either no exceptions / narrow express exceptions

8-11 are qualified which can be overridden in the public interest

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20
Q

Describe each article and whether it is qualified/limited/absolute

A
  • Article 2 (right to life) – Absolute with a narrow exception
  • Article 3 (freedom from torture inhumane and degrading treatment) – Absolute
  • Article 4 (freedom from slavery) – Absolute with narrow exceptions
  • Article 5 (liberty and security of person) – Limited with exceptions for lawful arrest and detention
  • Article 6 (fair trial) –Absolute but limited in relation to the trial being in public
  • Article 7 (punishment according to existing law) – Absolute
  • Article 8 (respect for private and family life) –Qualified
  • Article 9 (freedom of thought) –Absolute in relation to thinking, but qualified in relation to manifestation of freedom in worship, teaching, practice or observation
  • Article 10 (freedom of expression) –Qualified
  • Article 11 (freedom of assembly and association) – Qualified
  • Article 12 (right to marry) – Absolute but according to national laws

Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) –Qualified

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21
Q

In what situations may a state derogate from ECHR?

A

In a time of war or other public emergency threatening the life of the nation

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22
Q

What articles are absolutely prohibited from derogation, even in war?

s14 HRA creates a statutory procedure for enacting derogation and s.1 states that Convention rights should be read subject to derogation

A
  • Article 3 (torture)
  • Article 4 (slavery)
  • Article 7 (retrospective criminal offences)
  • Article 2 (right to life) –except from lawful acts of war
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23
Q
A
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24
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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25
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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26
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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27
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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28
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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29
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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30
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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31
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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32
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

33
Q

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

A

A declaration of incompatibility

34
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

35
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

36
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

37
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

38
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

39
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
40
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

41
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
42
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

43
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

44
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

45
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

46
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

47
Q

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

A

That they are directly affected by state action

Klass v Germany

48
Q

What must an applicant be?

A

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

49
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

50
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

51
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

52
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

53
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

54
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)
55
Q

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

A

As a measure of last resort

56
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)
57
Q

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

A

No because of PARL SOV

58
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

59
Q

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

A

High Court and appellate courts (CoA and SC)

60
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

61
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’

62
Q

What power does s10 provide to government ministers?

A

To take expedited remedial action where a s4 declaration is made

63
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

64
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)

65
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

66
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

67
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
68
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

69
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

70
Q

What are the normal range of remedies under s8?

A

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

71
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
72
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

73
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

74
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

75
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

76
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
77
Q

What articles cannot be derogated from?

A
  • Art 3 (torture)
  • Art 4 (slavery)
  • Art 7 (punsihment w/o law)
78
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
79
Q
A

Constitutional & Admin Law – Academic (14 decks)

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