Public law refresh session 3- human rights Flashcards
The is the function of the Human RIghts Act 1998?
it Incorporates the ECHR into UK domestic law. Things like the key articles, the jurisprudence and principals by the ECtHR. introduced s.2 HRA- UK courts must ‘take into account’ the ECtHR case law.
2 most important principles
1) positive obligation- state must protect rights of all- from third party violation too
2) Proportionality- key method of evaluation
There is a duty on all public authorities to act compatibly with the convention rights
What is the HRA claims procedure?
1) standing-
s 7(1) HRA- ‘person’ who is a ‘victim’ (or potential victim) of an unlawful act.
ECHR art 34- victims must be ‘directly affected’
Art 1 ECHR - ‘The High contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this convention’
Jurisdiction can be extra-territorial- control?
2) When? One year lime limit s7(5) HRA
3) Remedy? s.8 HRA- these are contextualW
What is the duty on public authorities?
1) main enforcement mechanism for rights:- ‘it is unlawful for a public authority to act in a way which is incompatible with a convention right- s.6(1) HRA- can be subject to a defence from s.6(2)
2) Duty applies to Public authorities- meaning?
- Core Public authorities- bodies that are inherently public in nature
- courts and tribunals
- functional/hybrid Public authorities- when they are carrying out functions of a public nature- s.6(3)(b) HRA
What is the enforcement process?
If a public authority has breached duty in s 6(1) HRA
- It may be able able to rely on statutory defence under s.6(2) HRA= If it has acted incompatibly (breached an ECHR) but it was allowed or compelled to do so by existing UK legislation
Success of s.6(2) defence depends on courts interpretation of relevant legislation:
Courts have powered under s.3(1) HRA to interpret legislation
‘so far as it is possible to do so,… legislation must be read and given effect in a way which is compatible with convention rights’.
If the courts are able to interpret legislation in an ECHR compatible way, the S.6(2) defence will fail- Claimant wins.
However…
If the courts are not able to use s.3 interpretive intervention to ‘cure’ legislation of the incompatibility (which enabled the breach)?
-Court may choose to make a declaration of incompatibility
–Section 4HRA
— This does not defeat the s.6(2) defence
What is the effect of a s.4 Declaration of Incompatibility (DOI)?
- No remedy for C because defence is maintained- DOI does not invalidate legislation- it remains valid law
– Acts as an alert to Minister (and parliament to amend the law in due course)
What are the key ECHR rights?
1) rights relating to the person
-Article 2- Right to life- Not (ultimately) an absolute right because state can take life if action is proportionate and carried out in order to protect others)
-Article 3-Prohibition on torture or inhuman and degrading treatment- former reserved for extreme cases- special stigma attached- where is the dividing line? This is an absolute right
Positive obligations notably feature in this area- eg polices responsibility for deaths caused by third parties
2) Rights relating to liberty and fair process
- Article 5- the right to liberty- regulates arrest powers- Engaged only if there has been a depravation of liberty. Police may arrest if: 1) they have reasonable suspicion of an offence. 2) their actions are ‘prescribed by law’. Art 5(3) anyone arrested should be brought promptly before a judge
-Article 6- the right to ‘fair trial’- relates partially to civil law but primarily Criminal law. Key rights- 1) to have legal advice, to remain silent, against self-incrimination, against oppressive police tactics
These rights are not absolute- governed by principle of proportionality
3) Qualified rights
- Article 8- right of privacy- a very wide concept.
-Article 10- Freedom of expression- not just written or spoken word but wider too- freedom of political expression. Public authority can have a legitimate aim of protecting ‘the rights and reputations of others’.
A by-product of this is the development of UK law on privacy (eg within the media). Courts are public authorities, under a duty to apply and develop the common law in accordance with the ECHR. The courts are the intermediary between ‘media’ and ‘celebrities’. The media has article 10 rights, celebrities will have Art 8 rights if they can show they have a reasonable expectation of privacy. Celebrities can make a claim as tort of ‘misuse of private information’. Court will determine where the balance falls.
-Article 11- freedom of assembly and association
These rights are the rights that appears in part 1 but it can be restricted or interfered with if the state/public authority gets over 3 hurdles in part 2:
1) has the action been taken in accordance with the law?
2) is the state pursuing a legitimate aim?
3) in doing so, is it acting in a way that is ‘necessary in a democratic society?’ - i.e = proportionate.
Falling over one hurdle- amount to a breach or ‘violation’ of right- what is or isn’t proportionate will depend on courts evaluation of competing interests- essentially an assessment if the balance
What is public order law
Section 11-14A public order act 1986.
S.11- requirement to give notice of public processions- 6 days (with some exceptions eg funerals)
2.)12- police can impose (any) conditions if rsb belief of senior Police officer that they are necessary to combat risk of disorder disruption and (now) excessive noise
3) s 13- Police can prohibit processions- if s 12 powers are not sufficient. Max period 3 months
4) s.14 assemblies- Can be as low as 2 persons. Conditions can be imposed to reduce the same risks (as for s12). But its not possible to prohibit assemblies
5) s14A- trespassory assemblies- 2o or more persons- open air- no or limited rights of access. Can prohibit if reasonable belief if risk of serious disruption or damage
What is breach of the peace?
This is where harm is actually done or likely to be done to a person or (in his presence) to his property OR a person is in fear of being so harmed through an assault, riot, unlawful assemble or other disturbance.
Gives rise to various common law powers (it is not an offence in itself)
- Arrest; detention’ binding a person over to keep the peace’ entering a meeting and requiring participants to disperse
Case law- must be a reasonable apprehension of a sufficiently imminent breach of peace (eg laporte found that sufficiently so was not enough)- as with other public order powers their deployment must be proportionate in the situation
