RC9: Intro to EU Law

Question 1

ECHR

Answer 1

• European Court of Human Rights upholds the ECHR
• Engaging rights subject to the proportionality test
• States are afforded a margin of appreciation
• Rights set out in Articles of the ECHR
• Derogation from some articles is permitted

Question 2

European Convention on Human Rights

Answer 2

The ECHR adresses thematically linked human rights and freedoms:
1. The physical integrity and dignity of a person:
- Art.2=right to life
- Art.3=prohibition of torture
- Art.4= freedom from slavery and forced labour
Art.5= right to liberty
2. The protection of personal life
Art.8= right to private life
Art.9= freedom of thought
Art.12= right to marry
Art.14= freedom from discrimination

Question 3

More human rights/freedoms adressed by the ECHR

Answer 3

3. Communication and participation in society:
   - Art.10= freedom from expression
   - Art.11= freedom from assembly
4. Due procedure before courts of law:
   - Art.6= right to a fair trial
   Art.7= prohibition of retroactive criminal legislation
   Art.13= right to an effective legal remedy

Question 4

Rights are either absolute or qualified

Answer 4

• Absolute- can’t be restricted
• Right to life
• Freedom from torture, inhuman and degrading treatment

Question 5

Qualified balance of diff rights and interests

Answer 5

• Respect for private and family life (Article 8)
• Freedom of religion or belief (Article 9)
• Freedom of expression- (Article 10)
• Freedom of assembly article (Article 11)

Question 6

Petitioning the EU Court of Human Rights (ECtHR)

Answer 6

• Action to be brought against the state, not individuals
• Petititons can be made by one state against another,
• By an individual against the state
• Must have exhausted domestic remedies first

Question 7

EUCHR- relevance to ELS ?

Answer 7

HRA 1998:
- The convention rights are incorporated into UK law by th HRA 1998
- Constrains how the courts interpret and apply UK law
-Courts have power to deal with legislation that is ‘incompatible’ with Convention rights

Question 8

ECHR and the HRA 1998:

Answer 8

s.2 HRA 1998- courts to take ECtHR case law into account
s.3 HRA 1998- UK courts to give effect to Convention rights
s.4 HRA 1998- courts can make declarations of incompatibility
s.6 HRA 1998- public bodies to uphold Convention rights
s.7 HRA 1998- requires protection of victims of infringment of rights
s.8 HRA 1998- requires remedies for infringment of rights

Question 9

s.2- Interpretation of Convention of rights

Answer 9

-A court or tribunal determining a question which has arisen in connection with a Convention right must consider any
-Judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
-Opinion of the Commission given in a report adopted under Article 31 of the Convention,
-Decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
-Decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen

Question 10

Section 3 Interpretation of legislation

Answer 10

-So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
This section:
-Applies to primary legislation and subordinate legislation whenever enacted;
-Does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
-Does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

Question 11

Section 4- Declaration of incompatibility

Answer 11

-Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
-If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility
-Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
- If the court is satisfied- (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility

Question 12

Case Examples

Answer 12

Prisoners’ rights during incarceration- Black v Secretary of State for Justice [2009]:
-Involved the consideration of section 35(1) of the CJA 1991 and whether it was incompatible with the right to liberty under Article 5(4) of the ECHR, with regard to parole and the Secretary of State having the power to reject the Parole Board’s decision to release on licence
-No infringement of Article 5(4) – distinction between the administration of a sentence and the lawfulness of the detention. No new issue re lawfulness of detention and so Art 5(4) not engaged

Assisted dying- R (Nicklinson v Ministry of Justice [2014]:
-Three cases heard together: R. (on the application of Nicklinson) v Ministry of Justice; R. (on the application of Lamb) v Ministry of Justice and R. (on the application of AM) v DPP
-Whether in imposing a blanket ban on assisted suicide section 2 of the Suicide Act 1961 was outside of the margin of appreciation for member states on that issue – Court concluded wide margin of appreciation, and the blanket ban was within that margin
Medico-legal issues relating to the right to life: Re A (Children) (Conjoined Twins- Surgical Separation) [2001] :
-Right to life - whether lawful to perform operation to separate conjoined twins when one would survive, and the other’s life would be shortened – lawful to operate