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Public law revision > Human Rights > Flashcards

Human Rights Flashcards

1
Q

Rights of protected by ECHR can be divided into 3 main categories - what are these?

A
  1. Absolute rights
  2. Limited rights
  3. Qualified rights
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2
Q

What is an ‘absolute right’?

A

cannot be legitimately interfered with by the state

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3
Q

What are ‘limited rights’?

A

Can in prescribed circumstances contained in the articles themselves, be legitimately interfered with by the state.

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4
Q

What are ‘qualified rights’?

A

Can be interfered with if three requirements from subsection (2) of each article are met.

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5
Q

What are the 3 absolute rights?

A

o Article 3  Prohibition on torture or inhuman or degrading treatment or punishment.
o Article 4  Prohibition on slavery and forced labour
o Article 7  There shall be no punishment without lawful authority

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6
Q

What are the 3 limited rights?

A

Article 2  Right to life

Article 5  Right to liberty and security of person

Article 6  Right to a fair trial and fair legal process

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7
Q

What are the 4 qualified rights?

A

Article 8  Right to respect for private and family life

Article 9  Freedom of thought, conscience and religion.

Article 10  Freedom of expression

Article 11  Freedom of association

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8
Q

Qualified rights can be interfered with if three requirements from subsection (2) of each article are met.

What are these 3 requirements?

A

the interference is:

1) prescribed by/in accordance with the law

2) in pursuit of a legitimate aim

3) necessary in a democratic society (proportionate).

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9
Q

Standing: who can bring a claim under s 7(1) of the HRA 2015?

A

a “victim” -> individual or organisation directly affected by human right violation

and, in some limited circumstances an indirect victim may bring a claim (e.g, close relatives of a deceased person where there is an alleged violation of right to life/ egregious enough violation.

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10
Q

Standing: can an organisation bring a claim under s 7(1) of the HRA 2015?

A

yes but only where the organisation’s rights have been violated; not merely on the behalf of others

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11
Q

Standing: what is the difference in the threshold for who can bring a claim for JR vs under the HRA?

A

JR -> ‘sufficient interest’

HRA -> directly affected

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12
Q

What is the time limit for binging a claim for JR vs under the HRA?

A

JR -> “promptly”, and within 3 months and no longer than that.

HRA -> 1 year; if continuing matter rather than a single incident, time will not start running until the violation ceases to operate

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13
Q

Who can be a defendant for JR vs under the HRA?

A

JR -> action is a public law action

HRA -> public authority

  • core public authority or;
  • functional public authority (carry out functions of a public nature)
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14
Q

The European Court of Human Rights (ECtHR) has developed key principles and techniques, one of these is:

  1. the concept of positive obligation.

What does this refer to?

A

The state can sometimes be under a duty to take steps to prevent the violation of victims’ rights at the hands of third parties (not of the state itself).

basically: more than simply not doing something/ interfering with HR

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15
Q

does the concept of positive obligation apply to all Articles of the ECHR?

A

Not necessarily

mainly been observed within the context of Articles 2 and 3 (right to life, right not to be tortured, subjected to human degrading treatment), but it can apply to other articles as well.

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16
Q

How do we assess the degree to which a public authority is under a positive obligation to prevent HR violations?

A

examination of the degree of foreseeability of HR being at risk

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17
Q

The European Court of Human Rights (ECtHR) has developed key principles and techniques, one of these is:

  1. the margin of appreciation doctrine

What is this?

A

in a nutshell: degree of deference afforded to contracting states

contracting states have a better knowledge of the political social and cultural traditions that influence their countries than the ECtHR does, and should therefore be allowed a certain discretion when taking measures that restrict ECHR rights (Handyside v UK).

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18
Q

Is state discretion under the margin of appreciation doctrine unlimited?

A

no

still subject to the ultimate supervision of the ECHR

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19
Q

The European Court of Human Rights (ECtHR) has developed key principles and techniques, one of these is:

  1. principle of proportionality

What is this?

A

balance of the general interest of the community and the protection of individual’s fundamental right

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20
Q

Do UK courts need to take into accounts decsions made by the European Court of Human Rights?

A

Yes

but -> “take into account” does not mean that UK courts must follow the decision; UK courts have in fact developed a higher degree of confidence in departing from ECHR case law (moving away from mirror principle)

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21
Q

Where a public body has violated a human right, what defence may be availble

A

statutory defence if its actions are either:

(a) required by primary legislation and the PA couldn’t have acted differently, or
(b) the public authority is acting in a way that gives effect to primary/subordinate legislation.

why: ensure parliamentary sovereignty is not encroached

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22
Q

Can courts strike down primary legisaltion where there is incompatibility with the HRA?

A

no -> due to the importance of parliamentary sovereignty

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23
Q

When is a declaration of incompatibility made

A

last resort -> where a s3 not possible(interpreting legislation to be compatible with ECHR)

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24
Q

What is the effect of a declaration of incompatibility?

A
  • more of a political solution
  • does not invalidate/ strike down the act
  • cannot mandate a change to the law but political reasons mean parliament is usually compelled to amend
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25
Q

Remedial actions to a declaration of incompatibility: what are the 2 procedures set out by the HRA?

A
  1. Standard procedure
  2. Urgent case procedure
26
Q

What is the standard procedure remedial actions to a declaration of incompatibility?

A

requires that a draft amending order be laid before Parliament for 60 days before being approved by both Houses of Parliament.

27
Q

What is the urgent cases procedure remedial actions to a declaration of incompatibility?

A

the order may be laid before Parliament for approval after it is made.

28
Q

Prior to the second reading of a bill in Parliament, the minister responsible for that bill must make what 2 written statements regarding the HRA?

A

a) the proposed new legislation is compatible with the Convention rights or

(b) although he is unable to make a statement of compatibility, the government wishes to proceed with the bill regardless

29
Q

What section 8 remedies are typically awarded by a court where it is considered just and appropriate?yes

A

The normal range of remedies will include:

  • Damages
  • Declarations
  • Injunctions
  • Quashing orders
  • Prohibitory orders
  • Mandatory orders.
30
Q

Can derogations to the ECHR be made in times of war or public emergency?

A

yes.

Extent of derogation measured by the proportionality approach

31
Q

Is there a requirement of effective official investigation where the state directly takes a life?

A

Yes -> rationale for this lies in the fact that it is primarily the responsibility of states themselves to investigate and remedy human rights breaches.

investigation must be: public, independent and involve the full participation of the family

32
Q

Does the State have a positive operational obligation to take preventative measures to protect individuals when their life is at risk from other individuals or from suicide?n

A

Yes, but only if they knew/ ought to have known of a real and immediate risk of it

33
Q

Is arrest for a criminal offence a lawful deprivation of liberty? If so, under what conditions?

A

Yes, if:

i. arrest prescribed by law,
ii. person must be informed of the reasons for their arrest
iii. person must be brought promptly before a judge

34
Q

What obligations does a contracting state have when a question of removing an applicant to another state where there is a real risk that they would suffer a flagrant breach of the right to a fair trial in that state arises?

A
  • positive obligation under Article 6
  • contracting state is in breach if they follow through with this
35
Q

Does the following amount to ‘torture’ for the purposes of Article 3 – Prohibition of torture:

Aydin v Turkey -> the applicant was stripped, strung up with his arms tied together behind his back and had electrodes attached to his genitals

A

yes

36
Q

Does the following amount to ‘torture’ for the purposes of Article 3 – Prohibition of torture:

R (Spinks) v SoS for the Home department where the appellant claimed the SoS’s lack of compassion to release him to attend chemotherapy amounted to inhuman degrading treatment.

A

no, threshold not met

37
Q

With regards to Article 3 – Prohibition of torture, what is a public authority’s negative duty?

A
  • Absolute duty
  • Not to subject anyone to torture or to human and degrading treatment / punishment.
38
Q

With regards to Article 3 – Prohibition of torture, what is a public authority’s positive duty?

A
  • non-absolute
  • take action to prevent individuals being subjected to torture and/or inhuman and degrading treatment or punishment at the hands of others.
39
Q

In the following scenario, what duty does the State owe?:

individuals claim that their removal from the territory would cause a significant deterioration in their physical or mental health due to not having access to the same standards of medication and healthcare in their home countries as they do in their host state (Paposhvili v Belgium).

A

positive obligation on the state

40
Q

Can a heavier penalty be imposed than the one which was applicable at the time the crime was committed?

A

no -> principle of non-retroactivity

41
Q

Can qualified rights be interfered with?

A

Yes but there must be a justification

42
Q

can the right to privacy be interfered with?

A

qualified right -> Yes but there must be a justification

43
Q

Article 8 – Right to Privacy (Respect for private life, family life, home and correspondence)

What is a pre-requisite for this article to be engaged?

A

applicant must have a reasonable expectation of privacy.

  • Information must be obviously private.
  • If not obviously private the courts consider whether a reasonable person of ordinary sensibilities, placed in the same situation would find the disclose offensive.
44
Q

Article 8 – Right to Privacy (Respect for private life, family life, home and correspondence)

Courts will seek to balance between the competing rights in art 8 and 10 (freedom of expression) and consider whether the publication of the individual’s information was necessary.

What are some key considerations the court will look to to determine whether there has been a breach

A
  1. Whether the information contributes to a debate of general interest
  2. How well-known the person concerned is and the subject matter of the report
  3. The prior conduct of the individual concerned
  4. The form and consequences of the publication
  5. The circumstances in which the photos were taken, in particular whether the person photographed gave their consent.
45
Q

Can prisoner’s communications with their legal advisors

A

Privileged legal correspondence should only be opened where there is reasonable cause to believe it contains a prohibited item, and letters should only be read where the authorities have reasonable cause to believe that the legal privilege is being abused. There is nothing to suggest that these circumstances apply to the client.

46
Q

Is disclosure of information about a public figure/ story likely to amount to a breach of privacy?

A

no - arguably in the public interest

47
Q

What kind of right is Article 10?

A

Freedom of expression.

Qualified right?

48
Q

What kind of right is Article 11?

A

Article 11 - Freedom of assembly and association, form and join trade unions to protect their interests.

Qualified right

49
Q

What is the Common law principle of residual freedom?

A

Citizens of the UK have been free to do or say what they wish unless it has been prohibited by law.

50
Q

Article 11 - freedom of assembly and association

The Public Order Act required notice by organisers for public procession. What is this notice period? What needs to be included in the notice

A
  • minimum of six clear days
  • notice of the date, time and route of the procession.

(Failure to do so amounts to an offence under s. 11(7)).

51
Q

Are there exceptions to the notice period required under The Public Order Act?

A

yes:

  • processions commonly and customarily held (War Memorial Day..)
  • Funeral processions organized by a funeral director acting in the normal course of business,
  • monthly cycle rides.
52
Q

Can the police impose conditions upon public processions under The Public Order Act? If yes, when can these be imposed?

A

Yes, if the senior police officer reasonably believes that:

a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

53
Q

A person who organises a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence.

Is there a defence for this?

A

Yes -> organiser must prove that the failure arose from circumstances beyond his control. (Liable for 3 months in prison max or a fine not exceeding level 4 or both

54
Q

A person who takes part in a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence

Is there a defence for this?

A

Yes -> participant must prove that the failure arose from circumstances beyond his control. (Liable for a fine not exceeding level 3

55
Q

Can a chief police officer apply for a prohibition order from the local authority?

A

Yes but only if powers under section 12 are insufficient (power to impose conditions)

56
Q

How long can prohibition orders last?

A

max 3 months -> after this the local authority will be required to obtain consent from the home secretary.

57
Q

define ‘public assembly’

A

: A meeting comprising two or more persons in a public place that is wholly or partly open to the air.

the purpose of the assembly is irrelevant.

there is no obligation to give advance notice of a public assembly to the police.

58
Q

Under The Public Order Act, is it possible to impose conditions on public assemblies?

A

yes, but only in limited circumsatnces:

  • where the intimidatory behaviour is sufficiently hostile to compel other persons not to do something that they are entitled to
  • not taking place wholly “in open air”
59
Q

Under The Public Order Act, is it possible to prohibit assemblies?

A

only where there is a trespassory assembly

60
Q

What is a breach of peace? What is the consequence of this for the police?

A
  • where evidence suggests that individuals are posing a likely threat of violence towards others/ or to have incited other disorder and that there was a reasonable cause to believe that this would be imminent,
  • police can use its common law power of breach of the peace to lawfully arrest the individuals.

Public law revision (14 decks)

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