Public law: Convention rights Flashcards
What does it mean by Convention being a living instrument?
It means that it has to be generously interpreted in the light of its aim of protecting human right5s, the understanding of which may change with evolving social conditions. Thus the content of the rights may change over time as the ECtHR reinterprets the Convention to keep it attuned to changing values.
What there categories that convention rights are divided into:
Absolute rights: These rights can never be interfered with in any circumstances whatsoever, States must uphold them at all times
Limited rights: These rights require a balance between the rights of the individual and the wider public interest, and so may be interfered with to protect an important general interest of the rights of others
Qualified rights: These rights require a balance between the rights of the individual and the wider public interest, and so may be interfered with to protect an important general interest or the rights of others
List out absolute rights (7)
Article 2 (right to life). Article 3 (Freedom from torture, inhuman and degrading treatment), Article 4 (freedom from slavery), Article 6 (fair trial), Article 7 (punishment according to the existing law), Article 9 (freedom of thought), Article 12 (right to marry)
List out limited rights (2)
Article 5 (liberty and security of the person), Article 6 (fair trial) limited in relation to the trial being public
List out qualified rights (5)
Article 8 (respect for private and family life) Article 9 (freedom of thought) Qualified /in relation to manifestation of freedom in worship, teaching, practice and observation Article 10 freedom of expression Article 11 (freedom of assembly and association) Article 1 of protocol 1 (right to peaceful enjoyment of possession)
Criteria that the court must consider whether the interference (4)
Qualifications must be express: only restrictions on qualified rights which are expressed are recognised, and must be used for the purpose for which they have been prescribed (Article 18)
Qualification must be prescribed by law
A government can rely on a convention qualification to justify a restriction on a convention right only if there is a law in the domestic code clearly permits the infringement.
The law must be accessible and sufficiently precise (Malone v UK (1984)
List of legitimate aims (6)
Qualification must be justified by reference to the aims specified for each right.
Examples of legitimate state aims:
The interests of national security, public safety or the economic well-being of the country (Article 8)
The prevention of health or morals, disorder, of crime
The protection of the rights or freedoms of others
The prevention or disclosure of information received in confidence
Maintaining the authority and impartiality of the judiciary
Necessary in a democratic society
The qualities of a democratic society include tolerance of minority opinions and lifestyles
Derogations of Human Rights Act
Under Article 15 of the ECHR, a state may derogate from part of the Convention ‘in time of war or other public emergency threatening the life of the nation. But no derogations are allowed in respect of Articles 3, 4(1) and 7, from article 2
Incompatibiltiy of Human Right Act and national law
Declaration of incompatibility
S 3 of the HRA 1998 requires UK courts to interpret UK legislation consistently with the convention so far as it is possible to do so.
Incompatibility of Human Right Act is tolerated only if: (3)
Acts of Public authorities Section 6(1) of the HRA 1998 provides that it is unlawful for a public authority to act in way which is incompatible with Convention rights.
Unless it is a result of an Act of Parliament
The authority could not have acted differently
Or the authority is giving effect to, or enforcing, provisions of an Act which are incompatible with the Convention (s 6(2)
Granted Section 6(1) of the HRA 1998 provides that it is unlawful for a public authority to act in way which is incompatible with Convention rights.
What is the legal basis to bring JR claim on the breach of convention right?
Is there any distinction needed for the terms public bodies and public authority?
S6 is particularly relevant in judicial review cases, as in effect it adds a ground of challenge in judicial review of administrative acts – breach of a convention right.
R (on the application of Beer) v Hampshire Farmers Market Ltd (2004) WLR 233, held that the two terms, ‘public body’ and ‘public authority’ are synonymous. Public body is amenable to judicial review on the grounds of violation of convention rights.
Section 7 Victim test
Right of pressure group to JR on breach of convention rights
Standing
Section 7 of the 1998 Act states that a claimant can bring proceedings for breach of a Convention right only if they are a victim of the breach. An individual or organisation must be directly and personally affected.
Pressure groups will not be victims under s 7 and therefore cannot bring claims for breach of convention rights (R (Adath Yisroel Burial Society) v HM Coroner for Inner North London (2018)
Proportionality test of Convention right
Bank Mellat test (4)
Objective
Connection
proportional
a fair balance
For breach of a qualified Convention right. Aim is to achieve a fair balance between pursuing a legitimate aim and the protection of convention rights. Bank Mellat is the combined test that is consisted of four parts
1 whether the objective of the measure complained of is sufficiently important to justify the limitation of a fundamental right;
2 whether the measure is rationally connected to the objective;
3 whether a less intrusive measure could have been used; and
4 whether, having regard to these matters and to the severity o the consequence, a fair balance has been stuck between the rights of the individual and the interests of the community
