Week 5: Human Rights; Legal Accountability Flashcards
What are the contrasting propositions as to how rights were incepted?
- Natural Rights
Derived from human nature, society and culture - Positive rights
Derived solely from the supreme law making body.
What is the difference between individual and civil liberties?
Individual liberties are often more philosophical or broad in scope and focus on protecting a person’s autonomy.
Civil liberties are legal rights and protections that shield citizens from government overreach and ensure personal freedoms within a society governed by law.
What is the distinction between positive and negative rights.
Acts and omissions.
Positive rights: the government must make an active effort to preserve that particular right.
Negative rights: Prevention from interference of others.
Describe the three generations of rights.
- Civil and political rights
e.g. personal liberties, religious tolerance and freedom of expression - Economic, cultural and social rights
e.g. housing, education and minimum living standards - Collective or group rights
e.g. right to self determination
Entick v Carrington (1765) 19 St Tr 1029 (Lord Camden CJ)
John Entick said to have written seditious papers. King’s messengers searched his house
and seized papers. They claimed authority from the Secretary of State; Court said actions
were unlawful
Outcome: Without an EXPRESS provision of Parliament, the executive cannot override individual rights.
Bell v Black and Morrison (1865) 5 Irv 57
Procurator-fiscal investigating a conspiracy to kill or injure two people. One suspect in custody,
but others not known or named. Bell was one suspect, but not charged at the time. Warrant
officers searched Bell’s house and seized papers:
Without an express Act of Parliament, no mere official practice would allow the executive to override individual rights.
List the first 13 articles of the ECHR.
Art. 1 Obligation to respect human rights
Art. 2 Right to Life
Art. 3 Prohibition of torture and inhuman and
degrading treatment or punishment
Art. 4 Prohibition of slavery and forced labour
Art. 5 Liberty and security of person
Art. 6 Right to a Fair Trial
Art. 7 No retrospective criminal punishment
Art. 8 Right to respect for private and Family Life
Art. 9 Freedom of Thought Conscience and Religion
Art. 10 Freedom of expression
Art. 11 Freedom of association
Art. 12 Right to marry
Art. 13 Right to an effective remedy
What are the four levels of protection?
- Absolute
- Limited
- Qualified
- Derogation
What are the four exception to Art 15 (Derogation of Rights)
- Art.2 – right to life (except lawful acts of war)
- Art.3 – Torture and inhumane and degrading treatment
- Art.4(1) – slavery
- Art.7 – punishment without law
What are the four questions to determine proportionality of an infringement on the ECHR?
- Has there been an interference with the right?
- Usually a straightforward
- Was the interference ‘prescribed by law’?
- Must be an identifiable domestic law - Malone v UK (1985) 7 EHRR 14
- Must be accessible and sufficiently precise - Sunday Times v UK (1979-80) 2 EHRR 245
- Was interference in pursuit of a legitimate aim?
- The permissible aims are very broad
- Exceptionally, the court does not accept that the stated aim is the true one - Moscow Branch
of the Salvation Army v Russia (2007) 44 EHRR 912
- Was the interference necessary in a democratic society? Sunday Times v UK ECtHR 26 April 1979, 6538/74
- “Pressing social need” for restriction or penalty?
- “Proportionate to the legitimate aim” pursued?
- Are reasons given to justify interference “relevant and sufficient”?
Why does the ECHR take into consideration domestic laws?
- Risk of undermining State confidence in system if Convention doesn’t reflect state
practice
What is a margin of appreciation?
Recognition that MS have some leeway to regulate and restrict ECHR rights in line with own laws and traditions
What are the two remedies in circumstances where there has been a breach?
- Friendly settlement
- Just satisfaction
What are the purposes of the HRA 1998? (2).
➢ Provide a faster, less expensive domestic remedy
➢ Strengthen the protection of human rights in the UK
When did the HRA 1998 commence?
2000.
What does section 2 of the HRA provide for?
- UK courts “must take account” of ECtHR decisions and jurisprudence
What does section 3 of the HRA provide for?
- “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.”
What three cases highlight s. 2 of the HRA?
R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323
Manchester CC v Pinnock [2010] UKSC 45; [2010] 2 WLR 47
R. (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2023] A.C. 559
Which three cases highlight s. 3 of the HRA?
Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467
Ghaidan v Godin-Mendoza [2004] UKHL 30, [24] 2 AC 557
Secretary of State for Business and Trade v Mercer [2024] UKSC 12
➢ Which court may make a declaration of incompatibility?
- Superior courts: Supreme Court, Court of Session, HCJ (s.4(5))
➢ What is the effect of a declaration of incompatibility?
- No effect on validity or operation of the legislation
- is not binding on the parties to the proceedings in which it is made (s.4(6)(a))
- May trigger fast-track amendment under s.10 HRA, or legislation may be changed by full legislative process.
R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657
➢ Facts:
* Applicant had suffered a severe stroke and wanted a doctor to assist him to kill himself. Sought a declaration that either it was lawful to do so, or that the law was incompatible with Art.8 ECHR.
➢ Judges:
* 9 UKSC justices
➢ Question
* whether legislation criminalising assisted suicide is a proportionate restriction of the right to private life
➢ Outcome:
* majority (7 of 9) declined to issue declaration of incompatibility
* 4 justices: case raised ‘controversial and complex questions of fact arising out of moral and social dilemmas’
* 3 Justices: legislature “actively considering the issue” so not appropriate to issue a declaration at this
time. If another case comes to might, might be appropriate then
What does s. 6 of the HRA 1998 provide for?
- It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
What does s. 29 of the Scotland Act provide for?
- An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the
legislative competence of the Parliament. (s.29(1)) - A provision is outside that competence … [if]…it is incompatible with any of the Convention
rights […] (s.29(2)(d))
What does s. 57 of the Scotland Act provide for?
- A member of the Scottish Government has no power to make any subordinate legislation, or to
do any other act, so far as the legislation or act is incompatible with any of the Convention
rights or with EU law… (s.57(2)) - NOTE: Public authorities subject to the HRA 1998 (s.6)
What does s. 101 of the SA 1998 provide for?
Interpretation of Act of the Scottish Parliament
- Such a provision is to be read as narrowly as is required for it to be within competence, if
such a reading is possible, and is to have effect accordingly. (s.101(2))
I relation to Human Rights, what does an MP have to make before introducing a bill to Parliament?
A statement of compatibility.
Which case highlights that IN ENGLAND there is a presumption of incorporation of the ECHR.
R v SofS for Home Department Ex. P Brind
Which case highlights that until 1997 there was not an incorporation of the ECHR in Scotland.
Kaur v Lord Advocate.
Which case overturned Kaur v Lord Advocate?
T, Petitioner 1997 724
Which case highlights that common law rights cannot be overridden unless done so expressly by parliament?
R v SofS for the Home Department ex. p Simms
Provide an example of an absolute right.
Nobody shall be subject to slavery?
Provide an example of a limited right?
Nobody shall have their liberty infringed upon, save for the following circumstances…
Provide an example of a limited right.
Everyone has the freedom of expression, if it.. XYZ
Which case highlights the derogation of Human Rights?
Lawless v Ireland.
Which case highlights that the state determines what constitutes an emergency?
Aksay v Turkey.
However, which case highlights that states can only depart from the standards to the extent strictly required by the existence of the situation in reference to determining emergency situations?
A & Others v SofS for the Home Department.
What are the four purposes and objects of the ECHR?
- Guarantee practical and effective rights
- Protection of Human Rights
- Maintenance and promotion of the ideals and values of a democratic society
- Democracy = pluralism, tolerance and broadmindedness
One of the purposes of the ECHR is to guarantee practical and effective rights. Which case highlights this?
Airey v Ireland.
One of the purposes of the ECHR is to protect Human Rights. Which case highlights this?
Soering v UK
One of the purposes of the ECHR is to maintain and promote the ideals and values of a democratic society. Which case highlights this?
Kjeldsen Busk Madsen and Pedersen v Denmark.
The ECHR establishes that democracy = pluralism, tolerance broadmindedness. Which case highlights this?
Handyside v UK A
Which case highlights that the ECHR is a living instrument which must be interpreted in the context of the modern day?
Tyrer v UK
Which case highlights that while the Uk is entitled to regulate/restrict the ECHR, however the courts are entitled to supervise and the margin of appreciation is not unlimited.
Handyside v UK A
When determining proportionality, the second question is ‘ was the interference prescribed by law? Which case highlights that it must be an identifiable domestic law?
Malone v UK (1985) 7 EHRR 14
When determining proportionality, the second question is ‘ was the interference prescribed by law? Which case highlights that it must be accessible and sufficiently precise?
Sunday Times v UK (1979-80) 2 EHRR 245
When determing proportionality the third question is ‘was interference in pursuit of a legitimate aim’. Which case highlights that which the permissible aims are broad, in exceptional cases the court can determine that the aim given by the defendant is not the true one.
Moscow Branch of the Salvation Army v Russia (2007) 44 EHRR 912
When determining proportionality, the last question is ‘was the interference necessary in a democratic society’ ? Which case highlights this?
Sunday Times v UK ECtHR 26 April 1979, 6538/74
