Public law - Human Rights Act Flashcards
What are common law fundamental rights? What legal remedies are available when such rights are infringed by a public body?
Common law fundamental rights refer to rights that are recognized and protected by the legal system based on judicial decisions and legal precedent, rather than explicitly codified in constitutional or statutory law. These include: Right to privacy, freedom of expression, right to property, right to fair trial, freedom of association, equal protection under the law. If these rights are infringed then judicial review, damages, injunctions or declaratory relief can be sought as legal remedies.
What is the European Convention on Human Rights (ECHR)?
The ECHR is a list of common rights adopted by countries in the the council of Europe. They protect and enforce basic rights such as the right to life, right to a fair trail, right to marriage and others.
Why was the Human Rights Act 1998 (HRA) created? What does it do?
The Human Rights Act 1998 was created in the UK to incorporate the rights and freedoms enforced in the European Convention on Human Rights into domestic law. It provides rights to British citizens, and provides remedies in domestic court for public bodies infringing those rights.
What does s.2 of the HRA say?
Section 2 requires that UK courts must “take into account” the decisions of the European Court of Human Rights (ECtHR) when interpreting the rights and freedoms. UK courts are not strictly bound by the decisions of the ECtHR, but they are required to take them into account.
What does s.2 of the HRA say?
Section 2 requires that UK courts must “take into account” the decisions of the European Court of Human Rights (ECtHR) when interpreting the rights and freedoms. UK courts are not strictly bound by the decisions of the ECtHR, but they are required to take them into account.
What does s3 of the HRA say? What powers does s3 of the HRA give the judiciary? Are there any limits to s3?
Section 3 grants the judiciary the power to interpret legislation in a way that is compatible with the rights and freedoms protected by the ECHR. Limitations to this include: Only applies to primary and subordinate legislation. Has to be compatible with ECHR.
What does s4 of the HRA say? What powers does it give the judiciary? What are its limits? What effect does a ‘declaration of incompatibility’ have?
Section 4 provides the courts with the power to issue a “declaration of incompatibility” if they find that a provision of primary legislation is incompatible with the rights and freedoms protected by the European Convention on Human Rights. The limitations to this are: A declaration does not invalidate the law in question, and the declaration is not binding to the parties involved in the specific case in which it is made
To what extent do ss. 3 and 4 of the HRA interfere with parliamentary sovereignty?
Section 3 requires courts to interpret legislation in a way that is compatible with the European Convention on Human Rights. Section 4 does not grant the judiciary the power to strike down or annul legislation. The courts can declare a law incompatible, but it is ultimately up to Parliament to decide whether to amend or repeal the law.
Who or what is a ‘public authority’? What does it mean to have a ‘public function’? What is a hybrid public authority?
According to Section 6(3) of the HRA, a ‘public authority’ includes: Courts or tribunals and any person certain of whose functions are functions of a public nature. The term ‘public function’ refers to functions or activities that have a public nature or are carried out for the public benefit. A hybrid public authority is a concept that arises when a private entity or individual, in addition to its private functions, also performs functions of a public nature.
C/L: Aston Cantlow. - The form doesn’t matter, the action matters. Public school is still required to comply by state standards and curriculum → Hybrid body for public school.
