Balancing National v Convention Priorities A01

Question 1

Where is the ECtHR, when was it established and what is heard there

Answer 1

ECtHR is in Strasbourg; set up in 1959 as a court where alleged breaches of the ECHR could be heard

Question 2

Explain how the principle of subsidiarity applies

Answer 2

ECtHR will only declare a claim admissible once a claimant has exhausted all routes in the domestic courts (i.e been through all the uk courts)

Question 3

What are the two main roles of the ECtHR

Answer 3

Judicial and advisory

Question 4

ECtHR not bound by precedent, what principle did Tyrer v UK establish

Answer 4

living instrument principle -‘living instrument which must be interpreted in the light of present day conditions’

Question 5

What are the two principles the ECtHR will use when considering how a qualified right will be applied in a domestic court

Answer 5

Proportionality
Margin of Appreciation

Question 6

Define proportionality

Answer 6

Has the state struck a fair balance between the rights of the individual and the rights of the community

Question 7

Define margin of appreciation (case)

Answer 7

Laskey v UK
Discretion given to each state in their interpretation of the ECHR - what is tolerated in one state may not be in another

Question 8

What is a ‘narrow’ margin of appreciation

Answer 8

the right is of utmost importance so less state discretion to interfere with the right

Question 9

What is a ‘wide’ margin of appreciation

Answer 9

there is a lack of consensus so the state has more discretion to interfere

Question 10

What can the ECtHR order the state to do if there has been a violation of a convention right

Answer 10

to provide a remedy i.e. pay damages

Question 11

what is the purpose of the Human Rights Act 1988

Answer 11

-Incorporates the ECHR into English Law

-allows individuals to challenge HR issues in domestic courts before going to the ECtHR

Question 12

s.2 HRA 1998

Answer 12

UK courts must take account of ECtHR decisions; if there is a conflict, UK precedent must be followed

Question 13

s.3 HRA 1998

Answer 13

UK primary and secondary legislation should be applied by UK courts in a way which is compatible with the ECHR

Question 14

s.4 HRA 1998

Answer 14

If a UK court thinks that an Act and the ECHR are incompatible, a ‘declaration of incompatibility’ should be made by the UK court