Human Rights

Question 1

When can a UK citizen approach the European Court of Human Rights under the ECHR?

Answer 1

Once they have exhausted the legal process in the UK

Question 2

The Human Rights Act, 1998, distinguishes three categories of rights, what are they?

Answer 2

1. Absolute
2. Limited
3. Qualified

Question 3

What are absolute rights?

Answer 3

Rights that cannot be limited by state

Question 4

Can absolute rights be limited by the state during war or national emergencies, or balanced against needs of public interest or other individuals?

Answer 4

No

Question 5

What are the absolute rights?

Answer 5

1. Life
2. Prohibition of torture
3. Prohibition of slavery and servitude
4. Prohibition of retrospective criminal offences

Question 6

What are limited rights?

Answer 6

A right whose scope can be limited only in the article itself

Question 7

What are the limited rights?

Answer 7

1. LIberty and security
2. Fair trial

Question 8

When can the limited right to liberty and security be limited?

Answer 8

1. Detention of criminal convicts
2. Arrest/detention for failure to comply with court order
3. Arrest/detention someone REASONABLY SUSPECTED having committed a crime OR REASONABLY NECESSARY to prevent the committing of the offence
4. Detention of a person to prevent spreading infectious diseases / mentally ill persons

Question 9

What are qualified rights?

Answer 9

Rights that can be limited to PURSUE A LEGITIMATE INTEREST as outline in the article

Question 10

Name some qualified rights?

Answer 10

1. Freedom of Expression
2. Freedom of assembly and association

Question 11

How is the qualified right to freedom of expression limited?

Answer 11

To the extent necessary in a democratic society to achieve the following aims:
1. National security
2. Territorial integrity
3. Public safety
4. Prevention of disorder/crime
5. Protection of health or morals

Question 12

How is the the qualified right to freedom of assembly and association limited?

Answer 12

Restrictions as are necessary to achieve the following aims:
1. National Security
2. Prevention of disorder or crime
3. Protection of health or morals
4. Protection of rights and freedoms of others

Question 13

Explain the three-part proportionality test used to restrict a qualified right?

Answer 13

A Is the policy and legitimate aim sufficiently important to justify the limitation

1. Does the measure meet the objective and is rationally connected to it?
2. Is the limitation no more than necessary to accomplish the objective
3. Is the measure reasonable and balanced, given the competing needs of individual and community

Question 14

What is judicial deference?

Answer 14

When courts defer to parliament for politically controversial issues. The more deference applied, the less argument and evidence required to show proportionality of a measureW

Question 15

In what matters are courts usually more deferential?

Answer 15

Issues of national security

Question 16

What is the “margin of appreciation” and who applies it?

Answer 16

The European Court of Human Rights allows a state some discretion in limiting qualified rights, depending on how all other states view that right

Question 17

Explain the two margins of appreciation?

Answer 17

1. Narrow - where most states have a common approach, the court applies a narrow margin
2. Wife - where each state approaches the issue differently

Question 18

What test will the European Court of Human Rights use when applying a narrow margin of appreciation?

Answer 18

Proportionality + whether the discretion was exercised carefully and in good faith

Question 19

What is the “living instrument principle” of the ECHR and what are its three principles:

Answer 19

The meaning of the ECHR changes according to socio-economic conditions:

1. European Court is not bound by previous decisions
2. European Court can choose to follow an approach adopted by some/all states on an issue/right
3. European Court must be accessible to all individuals

Question 20

When can a state derogate (depart) from the ECHR?

Answer 20

War or public emergency that threatens the lift of a nation

Question 21

What ECHR rights can a state derogate from under wartime or similar conditions?

Answer 21

All other than the absolute rights

Question 22

To what extent can a state derogate (depart) from the ECRH rights (not what rights can be limited, but how much)?

Answer 22

Only as strictly required by the circumstances

Question 23

Explain the “mirror principle” that UK courts are bound by in interpreting ECHR convention rights?

Answer 23

UK courts must take an approach reflecting a previous decision of the European Court by offering no more or less than what the previous decision offered

Question 24

How are UK courts bound by European Court decisions on convention rights?

Answer 24

Where there is a clear line of authority on interpretation of a convention right

Question 25

What does the Human Rights Act compel UK courts to do in interpreting legislation?

Answer 25

Requires UK courts to interpret legislation in a way that is compatible with Convention right as interpreted by the European Court

Question 26

Can a court strike down legislation when it is not possible to interpret it in a way that complies with Convention Rights?

Answer 26

No, due to parliamentary sovereignty, it issues a declaration of incompatibility

Question 27

Does a declaration of incompatibility invalidate a law?

Answer 27

No, it signals to parliament to reconsider the matter

Question 28

What are the two fast-track procedures for correcting legislation served with a declaration of incompatibility under the Human Rights Act?

Answer 28

1. Non-urgent procedure 2. Urgent procedure

Question 29

What is the Non-urgent procedure under the Human Rights Act for correcting legislation served by a declaration of incompatibility?

Answer 29

Minister lays a remedial order draft before both houses which allows Minister to amend an Act or Secondary legislation via a secondary legislation

Question 30

How do remedial orders (non-urgent procedure to correct legislations served by a declaration of incompatibility) become law?

Answer 30

Remedial order must be passed by both HoC and HoL after laying in draft for 60 days

Question 31

How does the urgent procedure for correcting legislation served with a declaration of incompatibility work?

Answer 31

Someone (usually a Minister) makes an order with immediate effect and then it is laid before parliament for 120 days after which it ceases to have effect if either house does not pass the resolution approving the order

Question 32

What is the additional ground of judicial review created by Section 6 of the Human Rights Act?

Answer 32

It prohibits public authorities from acting in a way that is incompatible with a Convention Right

Question 33

What is a public authority for the purpose of the Human Rights Act?

Answer 33

Includes a court, or tribunal and any person whose functions are of a public nature EXCLUDING parliament

Question 34

When can a public authorities actions never be found unlawful for incompatibility with HRA?

Answer 34

1. If they could not act differently without violating the law in an Act 2. If the primary legislation could not be read/effected in a way that is compatible with Convention Rights

Question 35

What happens if a public authority relies on the exclusions for unlawful actions under HRA?

Answer 35

Declaration of incompatibility is issued

Question 36

Who can bring an action against a public authority for acting in a manner incompatible with Convention Rights?

Answer 36

Only someone who is the VICTIM of an alleged unlawful act

Question 37

Does the victim test for judicial review under the HRA allow interest groups to seek judicial review on behalf of others?

Answer 37

No

Question 38

What is the time limit for judicial review of a case involving a contravention of Convention Rights?

Answer 38

1 year from the date of the offence

Question 39

What remedies can a court grant for a Section 6 HRA application (judicial review)

Answer 39

It can, or refuse to, grant an order. If it does, it must be JUST and APPROPRIATE

Question 40

Can a freestanding discrimination claim be brought under the HRA?

Answer 40

No, a claim of discrimination can only be brought if it is attached to another convention right

Question 41

What margin of appreciation does the European Court grant states for application of Article 14 (discrimination) of the ECHR?

Answer 41

Narrow

Question 42

Can a freestanding claim for discrimination be brought in the UK Courts?

Answer 42

Yes, under the Equality Act, 2010

Question 43

Who can bring a freestanding discrimination claim under the Equality Act, 2010?

Answer 43

For employment, workers

Question 44

What are the types of discrimination:

Answer 44

1. Direct 2. Indirect 3. Harrasment 4. Victimisation

Question 45

What is direct discrimination?

Answer 45

When one is treated less favourably because of their protected status

Question 46

What is indirect discrimination?

Answer 46

When there is a policy, practice or procedure that applies to everyone but unfavourably affects a protected group

Question 47

What is the exception to indirect discrimination>

Answer 47

If the policy is: 1. Universal 2. Proportionate means 3. To achieve a legitimate aim "Objective justification"

Question 48

Explain harassment and victimisation?

Answer 48

The first is when you are subject to unwanted behaviour which makes you feel humiliated, degraded or uncomfortable The second is where you are penalised for complaining of discrimination or helping someone who made such a complaint

Question 49

If a discrimination claim is being made under the HRA, can a freestanding claim of discrimination be made?

Answer 49

No, it MUST BE LINKED to another convention right