Public Law Flashcards
What is a directive in EU law?
Directives – A directive is a legislative act that sets out a goal or standard that all EU member states must achieve, but leaves it to each member state to decide how to implement it through national legislation.
What is a regulation in EU law?
Regulations – A regulation is a binding legislative act that is directly applicable in all EU member states without the need for national implementation.
What is the difference between directly applicable and indirectly applicable EU law?
Directly Applicable - the regulation applies in the Member states without those member states having to enact their own legal measures to implement or give effect to it.
Indirectly Applicable - requires national courts to interpret their national law in a way that is compatible with EU law, in so far as it is possible to do so.
State Liability - enables individuals to recover compensation in their national courts from a member state where they have suffered a loss as a result of a sufficiently serious breach of EU law.
What are the three conditions that the positive obligation in the ECHR is subject to?
There is a positive obligation on contracting states to the ECHR to prevent, prohibit, deter and punish violations of the HRA and ECHR using their domestic legal systems.
There are conditions for the obligation to apply to states:
1) The authorities must have known or ought to have known at the time if the existence of a real and immediate risk to life of an identified individual from criminal activity of a third party.
2) The state must have failed to take measures within the scope of their powers.
3) When judged reasonably - the state would have been able to prevent or avoid that risk.
What is the test for Standing when bringing a claim under HRA?
Test for Standing:
- Applicant must show that they are or would be a victim of the unlawful act.
- Victim - for the purposes of article 34 - can include a (legal) person (including company), NGO or group of individuals that is directly affected by the state action.
If an NGO is bringing a claim, the operations of the NGO itself must be directly affected in order to have sufficient standing.
It’s insufficient for them to bring actions on behalf of people.
Case study:
A pressure group successfully bought a claim following interception of its communications under the ‘Interceptions of Communications Act 1985’ which conferred a virtually unfettered discretion on MoD.
What constitutes a public authority for the purposes of HRA claims?
Any (legal) person whose functions are of a public nature.
Core public authorities will be liable with respect to all their actions.
Consider if they have the following characteristics:
Possession of special powers
Democratic accountability
Public funding in whole or part
An obligation to act only in the public interest
A statutory constitution
Functional & Hybrid public authorities
Can include private bodies acting on a public function.
They will only be liable in respect to the public function.
Includes:
Housing associations and care homes where the provision of social care and services has been outsourced.
Consider the following characteristics:
Extent of to which the function is publicly funded
Whether statutory powers are being exercised
Taking the place of central government or local authorities
Whether they’re providing a public service.
What is the statutory defence that is available under s 6(2) HRA ?
A public authority will not be in breach of their obligation to act in a way that is compatible with ECHR convention rights under s6(1) HRA if either of the following exceptions apply:
- The public authority acted in a way that was required by primary legislation
- The public authority is acting in a way that gives effect to primary or subordinate legislation.
What constitutes an indirect victim for the purposes of having standing to bring a claim under HRA?
Indirect Victim:
Exceptional circumstances only can an indirect victim bring a claim, for example, where there are close relatives of a deceased persons following an egregious violation of human rights.
Case studies:
- An NGO bought claim on behalf of 18 yrs old who died and was HIV positive and suffering from severe mental disability in a neuropsychiatric hospital.
- Where there is a positive obligation on a public body, e.g. a prison, to prevent an individual’s death (which is foreseeable ?), then an indirect victim may consider bringing a case against the public body.
Article 2 ECHR
RIGHT TO LIFE:
(Limited Right)
- Everyone’s life is protected by law.
- Prohibition against arbitrary deprivation of life.
- Limited exceptions: use of force must be “absolutely necessary”
Obligations:
Positive Obligation – States must protect individuals’ lives.
Negative Obligation – To refrain from killing
Investigatory Obligation – arises in all cases where the state or a third party takes a life. Must be public and involve full participation of the family.
(Where an obligation is required and not met, there will never be a violation of article 2).
Article 3 ECHR
Prohibition against torture, inhuman or degrading treatment or punishment.
(Absolute Right)
Obligations:
Negative Obligation – state must refrain from subject persons to torture, inhuman or degrading treatment or punishment.
Positive Obligation – to take action to prevent individuals from being subjected to torture etc (this isa qualified obligation, which is restricted by the knowledge, proportionality and practicality of the scenario).
Investigatory Obligation – in all cases where the state or a third party takes a life.
Article 5 ECHR
The Right to Liberty and Security of Person
(Limited Right)
- For this right to be engaged, there must be a deprivation and not a mere restriction of liberty.
Limitations:
Where the deprivation of liberty is for one of the following purposes:
- Detention by a competent court
- Lawful arrest to bring person before a competent authority on reasonable suspicion of them committing another offence.
- Detention of a minor for educational supervision or bringing them before a competent authority.
- Detention of a minor for educational supervision or bringing them before a competent authority.
- Prevention of unauthorised entry to the country
And where it is prescribed by law.
a) The law must be adequately accessible and clear.
b) A “norm” cannot be regarded as law unless the person can, with some advice, foresee the consequences.
Article 6 ECHR
The Right to a Fair Trial and a Fair Legal Process
(Limited Right)
- The right to legal representation only arises after the individual has been charged with an offence.
Three overarching principles:
- Right to access to justice and legal advice (as well as impartiality of courts and timely process).
- Presumption of innocence until proven guilty.
- Bare minimum of rights that apply to everyone include right to representation and fair legal process.
Key examples set out under Article 6:
- Intimidation without lawyer present = breach.
- Police present during solicitor consultation = breach
- Excessive delays for vulnerable individuals = breach.
- Denial of legal aid could constitute breach.
Article 7 ECHR
There shall be no punishment without lawful authority (no retrospective legislation will be applied generally).
(Absolute Right)
Exception to this rule:
- Genocide or crimes against humanity are not subject to this article and retrospective legislation will be permitted.
Application of the rule:
- For a law to comply with Article 7, it must be accessible, meaning understandable and available.
- For a law to comply with Article 7, it must also be foreseeable, meaning the person committing the offence must have been able to anticipate their conduct would be criminal.
Example:
In SW v UK (1995), the ECtHR rejected the applicant’s claim that he was punished retrospectively for marital rape. The court held that the evolution of case law dismantling the immunity for marital rape was accessible and a reasonable development in the law.
Under Article 8 ECHR, what principle governs a prison authority’s ability to open correspondence between a prisoner and their legal adviser?
Prison authorities may only open such correspondence in the prisoner’s presence and without reading it, unless there is reasonable cause to suspect an abuse of privilege.
What did the ECHR decide about prisoner’s correspondence with their legal advisors following Campbell v UK?
ECHR decided that legal correspondence should only be opened in the prisoner’s presence and not read, except in exceptional circumstances.
Why was a blanket policy on the searching of prisoner’s cells held to be unlawful?
The blanket policy interfered disproportionately with the confidentiality of legal correspondence, exceeding was was necessary to meet legitimate security objectives.
What is the proportionality principle applied under Article 8 in relation to prisoner’s correspondence?
Any interference into prisoner’s correspondence under article 8 ECHR must pursue a legitimate aim and be the least intrusive means of achieving that aim.
What are the two elements necessary for determining whether there has been a misuse of private information under the indirect horizontal effect?
1) The applicant must have a reasonable expectation of privacy.
2) The court will conduct a balancing exercise between the competing interests of the right to privacy (article 8) and the right to the freedom of expression to publish (article 10)
What are the conditions in which a qualified ECHR right may be interfered with?
An interference with a qualified ECHR right may be permitted if it is prescribed by law, pursues a legitimate aim and is proportionate.
What are the two procedures under schedule 2 of section 10 HRA for remedial action to amend legislation following a section 4 declaration of incompatibility?
1) Standard Procedure:
- This requires a draft amending order be laid before parliament for 60 days before being approved by BOTH houses.
2) Urgent Cases:
- The amending order may be laid before parliament for approval after it is made.
Where an expedited option is not applicable, then the government may plan a s 10 legislative amendment to occur over a longer period of time.
