HRA III (Proportionality) Flashcards
What is the principle of proportionality in human rights law?
What is the first element of the principle of proportionality?
It ensures that any limitation on qualified human rights is justified and balanced.
Proper Purpose - The limitation must serve a legitimate aim within a society.
What does the “Rational Connection” element of proportionality require?
What is meant by “Necessity” in the principle of proportionality?
There must be a reasonable linkage between the limitation imposed and the purpose it aims to achieve.
The limitation must be necessary, meaning there cannot be a less restrictive means to achieve the same purpose.
Describe “Proportionality in the Narrow Sense (Balance)” in human rights law.
How do the European Court of Human Rights (ECtHR) and UK courts use the principle of proportionality?
There must be a fair balance between the demands of the general interest of the community and the protection of the individual’s fundamental rights.
To ensure that actions or laws that limit human rights are justifiable and maintain a proper balance between public interests and the protection of human rights.
Under which act do UK courts apply the principle of proportionality?
What is the significance of Pham v Secretary of State for the Home Department [2015] in the context of proportionality?
Human Rights Act 1998 (HRA 1998).
It elaborated on the proportionality principle through various judicial perspectives, focusing on the balance and necessity of the limitations imposed on rights.
I.e., Lord Carnwath discussed this matter relatively briefly. In doing so, he placed weight upon the Supreme Court’s judgment in Kennedy v Information Commissioner [2014] UKSC 20 which, he said, endorsed “a flexible approach to principles of judicial review, particularly where important rights are at stake”
How did R (SG) v Secretary of State for Work and Pensions [2015] contribute to the understanding of proportionality?
What was assessed in R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and others [2021]?
The court examined the proportionality of welfare policies against the backdrop of human rights.
The proportionality of certain welfare measures and their impact on children.
What issue was addressed in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022]?
What is the Doctrine of Margin of Appreciation?
The proportionality of legislation creating safe access zones around abortion clinics.
It’s a principle applied by the ECtHR that allows national authorities a degree of discretion in applying convention rights, recognising the diversity among member states.
How does the Doctrine of Margin of Appreciation account for national differences?
Which case exemplifies the application of the Doctrine of Margin of Appreciation?
It grants discretion due to local authorities’ better position to judge the application of rights within their country’s specific context.
Handyside v UK, particularly relevant in areas where there is no clear consensus across Europe, such as the regulation of pornography.
What has been a consistent concern regarding the Human Rights Act 1998 (HRA) among the Conservative Party?
What were David Cameron’s concerns about the HRA in 2006?
What pledge did the Conservative Party make in their 2010 General Election Manifesto regarding the HRA?
Discussions of reform, focusing on its impact on crime fighting, counter-terrorism, and balancing individual rights with national security.
Issues with combating crime and terrorism and protecting freedom.
To replace the HRA with a UK Bill of Rights, though it was not implemented in the coalition government agreement.
What commitment was made in the 2019 Election Manifesto concerning the HRA?
What was the purpose of the Independent Review of the Human Rights Act (IRHRA) initiated in 2020?
To update the HRA and examine the balance between individual rights, national security, and effective government.
To evaluate the operation of the HRA and recommend reforms emphasising UK common law and case law.
What were the HRA removal plans in 2022?
Johnsons’ government wanted to impose the Bill of Rights in replacement of the HRA aiming to:
-Introduction of a New Permission Stage:
-Higher Threshold for Deportation Challenges:
-Removal of Interpretative Duties:
-Independence from ECtHR Interpretations(no longer required to consider)
-Literal Interpretation of Rights
-Restriction on Positive Obligations
-Parliamentary Views to Weigh Heavily
-Exclusion of Overseas Military Operations Claims
What key areas did the Independent Human Rights Act Review (IHRAR) focus on in 2020?
Evaluating the HRA’s impact on UK courts’ relationship with the ECtHR and the interplay among the judiciary, executive, and legislature.
What did Lord Mance propose regarding proportionality?
Lord Mance’s commentary on proportionality as a ground for judicial review emphasizes its critical role and nuanced application in legal scrutiny, particularly in cases involving significant decisions like the removal of British citizenship. He supports the adoption of proportionality as a standard for reviewing decisions under common law, highlighting its relevance and utility in ensuring that actions taken by authorities, such as exercising the power contained in section 40(2) of the British Nationality Act 1981, meet a strict standard of judicial review.
differentiates between the concepts of intensity and structure within the framework of substantive review. He clarifies that the perceived intensity of proportionality review is not inherently due to its structured nature but rather depends on the degree of judicial restraint exercised in applying it. This distinction is crucial in addressing concerns that adopting proportionality as a ground of review might blur the lines between appeal and review or lead to uniformly more intensive scrutiny, thereby impacting fundamental constitutional principles.
=Application of proportionality should be adopted with a degree of judicial restraint.
What was a key educational recommendation from the IHRAR?
What amendment to Section 2 of the HRA was suggested by the IHRAR?
How did the IHRAR view changes to Section 2 concerning the Margin of Appreciation?
Proposing a program to educate the public about human rights through schools, universities, and adult education.
To make it mandatory for courts to prioritise domestic statutes and common law before relying on convention rights and decisions from the ECtHR.
It recommended maintaining the current approach, allowing domestic courts discretion in applying convention rights.
What did the IHRAR suggest to facilitate understanding between the ECtHR and domestic courts?
What clarification was proposed for Section 3 of the HRA by the IHRAR?
What was recommended for Section 14 regarding quashing orders?
Encouraging organic development of dialogue, supporting an evolving understanding of human rights law.
Rejecting substantial amendments but suggesting clarifications to dispel misconceptions and encourage a robust role for Parliament in rights protection.
Providing courts with the power to make suspended quashing orders in cases where a challenge to a derogation order is successful.
How does the IHRAR propose to handle quashing orders for subordinate legislation?
What was proposed regarding the extra-territorial application of the HRA?
What amendment was suggested for Section 10 of the HRA?
Granting courts the ability to make suspended or prospective-only quashing orders, reflecting on judicial review processes.
Reform through dialogue with the Council of Europe and the ECtHR to address complexities of applying HRA convention rights beyond UK territories.
Clarifying that remedial orders cannot be used to amend the HRA itself and suggesting improvements to Parliamentary scrutiny.
