Human Rights Act Flashcards
What approach is the High Court required to take to the jurisprudence of the European Court of Human Rights (ECtHR) in reaching its decision?
The High Court must take into account judgments of the ECtHR.
The correct answer is Option A, as it reflects the language in section 2 of the Human Rights Act 1998 provides that domestic courts ‘must take into account’ judgments of the ECtHR but are not bound to follow them. All the other options are wrong as they do not accurately reflect the position.
Quick Q:
In an action for judicial review a party has successfully argued that a provision within an Act of Parliament passed in 2008 is not compatible with Article 9 of the European Convention on Human Rights
Which of the following statements is the most accurate description of the law?
The judge has the power to issue a declaration of incompatibility against the Act of Parliament. However, the Act will still have legal force.
Options A and B are wrong – the existence of the Human Rights Act (HRA) means that this is a matter of UK law. Section 4(2) HRA allows the court to issue a declaration of incompatibility against the Act, although s.4(6)HRA says that the declaration will not affect the validity of the Act, therefore C is wrong and D is correct. E is wrong because Parliament itself has provided the remedy of the declaration.
Can the human rights act be impliedly repealed?
No
Given the HRA is a constitutional act it is not subject to implied repeal, it can only be expressly repealed as per Thoburn & H v Lord Advocate.
Four-stage test for the proportionality of a measure interfering with one of the qualified rights protected by the Human Rights Act 1998.
The aim of the policy must be sufficiently important to justify limiting a protected right, the policy must be rationally connected to that aim, no less intrusive policy could have been used, and a fair balance must have been struck between the effects on individuals’ rights and the importance of the policy’s objective.
Who can only issue a declaration of incompatibility?
Declarations of incompatibility can only be made by the High Court and courts above it – not the magistrates (s.4(5) HRA).
How must the magistrates interpret Acts of Parliament with convention rights?
The court must interpret any ambiguity within the Act of Parliament in such a way as to achieve an outcome which is compatible with Article 8 ECHR.
Any court must, so far as it is possible to do so, interpret Acts of Parliament in such a way as to be compatible with Convention rights.
What happens after a declaration of incompatibility?
The minister who introduced the original bill to Parliament may make the changes required to ensure compatibility.
The declaration of incompatibility is directed at the minister who introduced the original bill in Parliament. The minister has a remedial power to make the necessary changes, but she does not have to do so.
How should public authorities act in a with regards to compatibility of conventions rights and acts of parliament?
Public authorities must act in a way which is compatible with Convention rights except where to do so would contravene a UK Act of Parliament.
Quick Q:
A man who is a premier league footballer is married to her Royal Highness Princess of the UK. A famous tabloid paper in the UK has obtained information about the extra-marital affairs that the man has been having during his away football matches with numerous women, who have given this information to the tabloid paper. The man paid these women substantial sums of money and gave them gifts. In return the women agreed to keep his extra marital affairs private. The tabloid plans to publish details of the man’s extramarital affairs under the headline ‘Playing away whilst the Princess is alone in the castle!’ The man accepts that the information in the article is true. The man is claiming that the article the tabloid plans to publish will breach his right to privacy which is protected by Article 8 ECHR.
The tabloid state that they are publishing the article because it is in the public interest. Moreover, they state they are not a public body as defined by s.6 of the HRA 1998.
Can the man bring a claim against the tabloid paper?
Yes, the man may still be able to bring a claim against the tabloid paper under the “horizontal effect” principle linking it to a separate claim. The man’s claim here is for breach of confidence or misuse of private information.
Option E is the correct answer. Although the tabloid paper is not performing a public function and is therefore not a “public authority” as defined by s.6 HRA, The man may still be able to bring a claim against them under the “horizontal effect” principle as developed in cases such as Thompson and Venables v MGN and Douglas v Hello!. A free-standing claim for breach of human rights (‘HR’) cannot be brought against a non-public body - it must be linked to a separate claim. The man’s claim here is for breach of confidence or misuse of private information. This acts as the ‘vehicle’ which brings the HR issues before the court.
Option A is incorrect because no such exemption is applicable.
Option B and C and are incorrect because the court will consider these points when balancing the man’s right to privacy against the tabloid paper’s right to freedom of expression under Article 8(1)(i) of the ECHR and consider other arguments such as ‘watchdog argument’, which are not relevant at this stage.t
Option D is wrong because these do not form part of the consideration and there will be no jury as the matter will be heard in the High Court.
What best describes what makes a measure proportionate?
The objective of the reasonably necessary measure is being achieved by means which cause the least interference to an individual’s rights.
Option B is the best answer because it describes that the means used to impair the right or freedom should be no more than is necessary to accomplish the objective (De Freitas 1999 1 AC 69, 80).
