SBAQ - QUALIFIED RIGHTS Flashcards
Question 1
Is the following statement true or false?
Provided a restriction on a qualified right is prescribed by law and justified by reference to a legitimate aim it will be lawful.
1.
True
2.
False
Feedback - FALSE
For an interference with a qualified right to be lawful it must be prescribed by law and for a legitimate aim but it must also be ‘necessary in a democratic society’, that is, proportionate
Question 2
Which ONE of the following is NOT an element of the test set out by the Supreme Court in Bank Mellat (2) v HM Treasury to determine whether interference with a qualified right is necessary in a democratic society (i.e. proportionate)?
1. The objective of the measure complained of must be sufficiently important to justify limiting a fundamental right.
2. The measure which has been taken must be rationally connected to the objective.
3. A less intrusive measure could not have been taken to achieve the objective.
4. A fair balance must have been struck between the rights of the individual and the rights of another individual.
Feedback
The correct answer is D. The fourth limb of the test set out in the Bank Mellat case requires a fair balance to have been struck between the rights of the individual and the interests of the community, rather than the interests of another individual. A, B and C set out correctly the first three limbs of the test.
Question 3
Is the following statement true or false?
A young man suffering from an eating disorder is forced to have medical treatment against his wishes. This will engage his rights under Article 8.
1.
True
2.
False
Feedback - TRUE
That’s right, Article 8 covers a wide range of issues, including a right to bodily integrity.
Question 4
Clodagh Brown is a receptionist for the East Blankshire Secular Society (‘EBSS’). Clodagh wants to wear a crucifix badge to work to express her Christian faith. The CEO tells her she cannot wear this to work since ‘this is an organisation working towards a secular society. It would undermine our aims and offend visitors for the receptionist to visibly display a religious symbol’. Clodagh decides to bring a court case on the basis that this amounts to indirect discrimination and breaches her rights under Article 9 ECHR.
Assume that the court accepts that Clodagh’s Article 9 ECHR right has been engaged. When deciding the case the court will need to be satisfied that any interference with Article 9 is justified.
Which one of the following arguments EBSS could raise has the best chance of successfully persuading the court that the interference was justified?
1. An argument that it was up to the EBSS, as an employer, to decide its own policy on the wearing of religious symbols, unless that policy was so unreasonable that no reasonable employer could adopt it.
2. An argument that the ban was a proportionate means of achieving a legitimate aim recognised by the ECHR.
3. An argument that Clodagh’s Article 9 rights are less important than the rights of the EBSS and those visiting the EBSS.
4. An argument that allowing Clodagh to wear the crucifix would conflict with the aims of the EBSS.
Feedback
The correct answer is B. Article 9 is a qualified right which can be interfered with provided that this is prescribed by law, for a legitimate aim and proportionate. Option A represents the irrationality test used in ‘domestic’ grounds for judicial review. The arguments in C and D may be taken into account as part of the proportionality exercise, but are less likely than B to succeed if argued alone.
Question 5
Which type of free speech is considered by the European Court of Human Rights to be the most important in a democratic society?
1. Commercial free speech.
2. Artistic free speech.
3. Political free speech.
4. Religious free speech.
Feedback
The correct answer is C. The most important type of free speech which required protection is considered to be political free speech. Other forms of free speech, whilst important, were not at the same level as political free speech.
Question 6
Which one of the following statements about section 5 of the Public Order Act (1986) is CORRECT?
1. Under section 5, it is a criminal offence for someone to use threatening or abusive words or behaviour, or to display any writing, sign or other visible representation which is threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress.
2. Under section 5, it is a criminal offence for someone to use offensive or abusive words or behaviour, or to display any writing, sign or other visible representation which is offensive or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress.
3. Under section 5, it is a criminal offence for someone to use racist or abusive words or behaviour, or to display any writing, sign or other visible representation which is racist or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress.
4. Under section 5, it is a criminal offence for someone to use offensive or racist words or behaviour, or to display any writing, sign or other visible representation which is offensive or racist within the hearing or sight of a person likely to be caused harassment, alarm or distress.
The correct answer is A. Under s 5 of the Public Order Act (1986), it is a criminal offence for someone to use threatening or abusive words or behaviour, or to display any writing, sign or other visible representation which is threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress.
Question 1
Internal guidelines allow local authorities to ‘take such action as they see fit’ to protect children fostered by them. Acting under these guidelines a local authority seizes the laptops of a couple who have been foster carers for the local authority for many years. The local authority finds that one of the couple has been regularly visiting pornography sites featuring adults only. They email the foster carers stating that they are no longer approved as carers and will not be used by the local authority in future.
Have the local authority breached the Article 8 ECHR rights of the foster couple?
1. No, because the local authority have acted to protect the rights of children who are vulnerable persons so the local authority action is proportionate.
2. Yes, because the pornography sites feature adults not children and so the local authority have acted in a disproportionate manner.
3. Yes, because the local authority are acting under internally published guidelines and so not ‘in accordance with the law’.
4. No, because the local authority action is prescribed by law, has a legitimate aim and seizing the computer is a proportionate way to protect children.
5. Yes, because the local authority action is prescribed by law and has a legitimate aim, however refusing to use the couple as foster carers in the future is disproportionate.
C is the correct answer. The local authority internal guidelines are not accessible to the foster parents and, even if they were, are not sufficiently precise to enable the foster parents to regulate their conduct based on them. The seizure of their computers is thus not ‘prescribed by law’.
A is wrong because, although the children are vulnerable persons, that alone will not mean any action taken by the local authority will be proportionate. Seizing the computers is for a legitimate aim, but it is not prescribed by law, so D and E are wrong.
The local authority may have acted disproportionately, although this is not clear on the facts, so B is wrong.
- Question 2
A migrant woman recently arrived in the United Kingdom illegally. She applied for residence in the UK, but this was refused, and the Home Secretary has now ordered her removal from the UK to her country of origin. The woman suffers from an eating disorder for which she has received treatment whilst in the UK. The woman is concerned that, if she is returned to her country of origin, her eating disorder will worsen. Treatment for eating disorders is available in her country of origin although the standard of service is lower than that provided in the UK. The woman wishes to challenge the Home Secretary’s decision on the basis that it violates her right to respect for her private life.
Is the woman likely to be successful in her challenge to the Home Secretary’s decision?
1. No, because as she has entered the UK illegally the woman will not be able to rely on Article 8 ECHR.
2. No, because any violation of the woman’s rights would be minimal and so Article 8 will not be engaged.
3. No, because the issue involved is not the severance of family or social ties and so Article 8 will not be engaged.
4. Yes, because health consequences of removal come within Article 8 and the woman’s health would be adversely affected by being returned to her country of origin.
5. Yes, because, although extradition of the woman would be in pursuit of a legitimate aim, returning the woman to her country of origin would be disproportionate given that she has an eating disorder.
The correct answer is B. Article 8 may be engaged when the main issue is the consequence for physical or mental health of removal and is not restricted to severance of family or social ties so C is wrong. However, the threshold for establishing this is high and the woman would need to show that the violation of her rights would be flagrant (R(Razghar) v Secretary of State for the Home Department), so D and E are wrong.
Anyone within the UK can rely on their rights under the ECHR, including those who have entered illegally, so A is wrong.
Question 3
A civil servant was dismissed by a government department because she refused to hide or to remove a necklace and charm she was wearing. The civil servant explained that the charm was symbolic and highly significant to her religion. The explanation was rejected as irrelevant, and the dismissal was confirmed on the ground that the necklace and charm detracted from the department’s professional image. She was told that she should work elsewhere if it was so important to her.
Has the government department acted in a way that is compatible with the civil servant’s right under Article 9 European Convention on Human Rights?
1. Yes, the department has every right to protect its professional image and to insist that the civil servant remove or hide the necklace.
2. No, the civil servant has the right to wear anything that allows her to manifest her religion at work despite the department’s opposition.
3. No, the department cannot prevent the civil servant wearing the religious jewellery because that would interfere with an absolute right.
4. No, although the department does have the right to protect its professional image, it must also take account of the civil servant’s right to manifest her religion.
5. Yes, the civil servant must always abide by the department’s policy regarding jewellery and should work elsewhere if this is a problem.
D is the correct answer because the civil servant has the right to manifest her religion. The department does have the right to protect its professional image but would need to balance this against the Article 9 right.
A is wrong because the department cannot insist that the civil servant remove or hide a piece of religious jewellery without good reason.
B is wrong because there are circumstances in which a department might insist that a civil servant cannot wear something which manifests that person’s religion e.g. for safety reasons.
C is wrong because Article 9 is not an absolute right. It is a qualified right which a public body can restrict in the public interest.
Question 4
An Act of Parliament established a Commission to decide where incinerators to dispose of household waste shall be built in England and Wales. A woman has objected to a decision made by the Commission approving the building of an incinerator 200 metres from her home. Her main ground of objection is that emissions will harm her and other people living nearby. Experts had produced evidence to the Commission that there were other suitable sites in the locality further away from people’s houses.
Which of the following best describes whether the building of the incinerator breaches any of the woman’s Convention rights?
1. The building of the incinerator does not engage any Convention rights as it is in the public interest.
2. Although the building of the incinerator engages the woman’s right to a private life, it is a proportionate interference in the public interest.
3. Although the building of the incinerator engages the woman’s right to a private life, it is prescribed by law and so cannot be challenged.
4. Although the building of the incinerator is in the public interest, it is a disproportionate interference with the woman’s right to a private life.
5. The building of the incinerator is not prescribed by law and is a disproportionate interference with the woman’s right to a private life.
D is correct. The woman may be able to argue that her Article 8 right (right to a private life) is being breached; accordingly option A is wrong as Article 8 is engaged. However, Article 8 is a qualified right. The qualification has a legal basis here - the Act of Parliament; hence option E is wrong. The legitimate aim(s) being pursued by the Act are likely to be the ‘economic well-being of the country’. However, the qualification must also be ‘necessary in a democratic society’. Option C is therefore wrong because it incorrectly suggests that it is sufficient if the interference is prescribed by law.
As the qualification has a legal basis and the Act is pursuing a legitimate aim, it is necessary to apply the proportionality test. In other words, is the interference with the woman’s rights proportionate to the objective being achieved, or would any lesser interference be possible? In this case, it seems likely that there are more suitable sites for the incinerator, away from residential areas. Option B is therefore wrong because it states the interference is proportionate.
Question 5
A man employed as a shop assistant in a clothing shop has a small fish symbol tattooed on to his hand. The fish symbol is a Christian symbol. The clothing shop’s employment policy permits shop assistants to have small tattoos that are visible to customers but prohibits tattoos which have religious significance as it wants to adopt a secular image. The shop has taken disciplinary action against the man. The UK courts have upheld the lawfulness of the disciplinary action, so the man now wants to take action against the UK Government before the European Court of Human Rights.
Can the man argue that the disciplinary action breaches his Convention rights?
1. Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted a disproportionate interference with his right to manifest his religion.
2. Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted an interference with his absolute right to manifest his religion.
3. Yes, because the shop’s refusal to allow him to display a small tattoo means that the state has permitted an interference with his absolute right to freedom of religion.
4. No, because the shop has treated all religious symbols equally, there is no interference with the man’s freedom to manifest his religion.
5. No, because the shop’s refusal to allow him to display a small tattoo is a proportionate interference with the man’s freedom to manifest his religion.
A is correct. Based on the case of Eweida, it seems improbable that a small discreet religious symbol would detract from the image that the shop wants to project. It is therefore a disproportionate interference with the man’s qualified right to manifest his religious belief. Option B is wrong because the right to manifest a religious belief is a qualified right, not an absolute right. Option C is wrong because having a tattoo comes within the scope of manifesting religious belief, a qualified right, rather than holding a religious belief, an absolute right.
Option D is wrong because treating all religions the same does not mean that the right to manifest one’s religion fails to be engaged. Option E is wrong as the interference with the man’s right to manifest his religion seems to go further than necessary to maintain the shop’s image.
- Question 6
A man gave a speech in the town square holding a placard. One side of the placard read ‘Gay rights are immoral!’. The other side read ‘Stop homosexuality! Stop lesbianism!’ Several people were upset by this and the man was arrested and convicted of an offence of displaying writing that is abusive causing harassment, alarm or distress under s5 Public Order Act 1986. The man challenged his conviction in the UK on the basis that it breached his rights under Article 10 ECHR but was unsuccessful. He now plans to take his case to the European Court of Human Rights (‘ECtHR’)
Which of the following best describes the likely judgment and reasoning of the ECtHR?
1. The man’s challenge would not be successful, because although the conviction interfered with the man’s rights under Article 10 it was lawful as it was prescribed by law, for a legitimate aim and proportionate.
2. The man’s challenge would be successful, because although the man’s sign was insulting, Article 10 protects speech which is offensive or disturbing and so the conviction was not a proportionate interference with the man’s freedom of expression.
3. The man’s challenge would be unsuccessful, because although the conviction interfered with the man’s Article 10 rights the ECtHR gives states a wide margin of appreciation in this area.
4. The man’s challenge would be successful, because although the man’s sign was insulting it represented political free speech and so would be given a high degree of protection meaning that the conviction would breach the man’s article 10 rights.
5. The man’s challenge would be unsuccessful, because the placard undermined others in a way that was incompatible with the values underpinning the European Convention on Human Rights such as respect and non-discrimination.
The correct answer is E. The ECtHR in the similar case of Norwood v UK stated that Article 10 would not protect views that were incompatible with the values that underpinned the European Convention on Human Rights, such as tolerance, respect and non-discrimination.
The man’s application is likely to be ruled inadmissible and so the ECtHR would not go on to consider whether any interference was prescribed by law, for a legitimate aim or proportionate, thus A is wrong as it is not the best answer.
Although Article 10 protects speech that is offensive and gives high protection to political speech, this protection is not unlimited and would not cover expression that undermines the values underpinning the ECHR, so B and D are wrong.
This is not an area where the ECtHR give a wide margin of appreciation to states so C is wrong.
Question 7
A group campaigning for a law ensuring that people do not need to sell their homes to pay for care in their old age wishes to promote their campaign with an advertisement on primetime television. The broadcasting authority refuses to give permission for this on the basis that the advertisement is political. The campaigning group claims that such a refusal breaches its rights under Article 10 of the European Convention on Human Rights (‘ECHR’).
Would the campaign group be successful if they brought a legal challenge against the refusal of the broadcasting authority based on Article 10 ECHR?
1. No, any challenge based on Article 10 ECHR will be unsuccessful as Article 10 does not cover commercial television broadcasts.
2. Yes, a challenge based on Article 10 ECHR would be successful as regulation of broadcasting is not a legitimate aim under Article 10.
3. No, a challenge based on Article 10 ECHR would be unsuccessful as the ban is proportionate since alternative means of getting the campaigning group’s message across are available.
4. Yes, a challenge based on Article 10 ECHR would be successful, as a blanket ban on political advertisements is disproportionate.
5. Yes, a challenge based on Article 10 would be successful because freedom of political expression is crucial.
The correct answer is C. The ban on political advertising was held to be proportionate and not in breach of article 10 in the case of Animal Defenders v UK, so D and E are wrong.
Article 10 covers all expression, including commercial expression so A is wrong.
The ban protects the rights of others as it preserves the impartiality of broadcasting and protects the democratic process (Animal Defenders), so B is wrong.
- Question 8
A local authority plans to build a ring road which will pass very close to the offices of a company. The new road will improve travelling times and, as the office is close to the road, office rental prices will be at a premium. The company directors complain that the new road will cause pollution and noise. The company wishes to challenge the local authority’s plan on the basis that building the road would interfere with its rights under Article 1 of the First Protocol to the European Convention on Human Rights – protection of property (‘Article 1, First Protocol’).
Will the company’s challenge be successful?
1. No, the company’s challenge will be unsuccessful as Article 1, First Protocol does not apply to commercial property.
2. No, the company’s challenge will be unsuccessful as the company has not suffered financial loss.
3. No, the company’s challenge will be unsuccessful as the company will not be deprived of its property.
4. Yes, the company’s challenge will be successful as the local authority does not have a legitimate aim for building the ring road.
5. Yes, the company’s challenge will be successful as building the ring road would be a disproportionate interference with the company’s peaceful enjoyment of its possessions
The correct answer is B as Article 1 of the First Protocol will only be engaged where the interference affects the financial value of property.
A is wrong as Article 1, First Protocol applies to any property or possessions.
C is wrong as Article 1, First Protocol applies where interference restricts the use – ‘peaceful enjoyment’ of property or possessions as well as when someone is deprived of their property.
D and E are wrong as the challenge will be unsuccessful. In addition, it is likely to be in the public interest for the ring road to be built (ie a legitimate aim exists) and there is nothing to suggest that the local authority have acted disproportionately.
