HR - Intro to ECHR and HRA Flashcards
(21 cards)
What is the UK’s relationship with international law under its dualist system?
International law (including the ECHR) only has domestic effect if enacted via statute or enforced through an international court.
What types of rights are protected under the ECHR?
Absolute rights: Cannot be interfered with (Arts 3, 4, 7)
Limited rights: Interference allowed in specific circumstances (Arts 2, 5, 6)
Qualified rights: Interference permitted if lawful, for a legitimate aim, and necessary in a democratic society (Arts 8–11)
What are the three-part tests for interfering with qualified rights?
(a) Prescribed by law
(b) Pursues a legitimate aim
(c) Necessary in a democratic society (proportionate)
What is a positive obligation under the ECHR?
A duty on the state to take action to prevent human rights violations by private individuals.
What is the ‘margin of appreciation’?
A doctrine allowing states discretion in how they implement ECHR rights, based on national traditions and context.
What is proportionality under the ECHR?
A balancing exercise between individual rights and community interests.
What does section 2(1) HRA require?
UK courts must “take into account” ECtHR case law in interpreting Convention rights.
What does s.6(1) HRA provide?
It is unlawful for a public authority to act incompatibly with a Convention right
What are core public authorities?
Bodies that are inherently public (e.g. police, government departments). They are bound by s.6(1) in all their actions.
What is the test for standing under s.7 HRA?
A person must be a ‘victim’ as defined in Article 34 ECHR—i.e. directly affected.
What are the time limits for bringing a claim under s.7?
Normally within 1 year of the unlawful act
Extensions possible where equitable
Shorter judicial review limits apply where relevant
What does s.3 HRA require?
Courts must interpret legislation, “so far as it is possible to do so”, in a way compatible with Convention rights.
What are the limits of s.3 interpretation?
Courts cannot:
Change substance of legislation
Contradict core features
Repeal or delete wording
Make policy decisions
What does a declaration of incompatibility (DOI) do?
It does not invalidate the legislation but signals to Parliament that the law is incompatible with ECHR rights.
What are the consequences of a DOI?
No legal change unless Parliament acts
Political pressure may prompt legislative amendment
May allow claimant to apply to ECtHR
What does s.8 HRA provide?
Courts may award any relief or remedy they consider just and appropriate, including:
Damages
Injunctions
Declarations
Quashing/prohibitory/mandatory orders
Can remedies be granted after a DOI?
Only if the court interpreted the provision under s.3. If not, and s.6(2) defence applies, remedies under s.8 may be unavailable.
What is the purpose of s.10 HRA?
Allows ministers to take remedial action to amend legislation found incompatible via a DOI.
What does Article 1 ECHR provide?
States must secure Convention rights for “everyone within their jurisdiction”.
Can jurisdiction extend outside the UK?
Yes, in exceptional circumstances (e.g. military occupation, diplomatic authority).
What does Article 15 ECHR allow?
Permits derogation in times of war or public emergency, but only to the extent strictly required and not from certain rights (e.g. Articles 2, 3, 4(1), 7).
