Human Rights

Question 1

What are the Three Types of Rights under the European Convention of Human Rights (“ECHR”)?

Answer 1

• Absolute Rights.
• Limited Rights.
• Qualified Rights.

The ECHR was transposed through the Human Rights Act (“HRA”) 1998.

Question 2

What is the Effect of Article 1 under the European Convention of Human Rights?

Answer 2

All States must secure Convention Rights for anyone within their Jurisdiction, i.e. their territory, domestic or occupied.

Question 3

What is the Effect of Article 15 under the European Convention of Human Rights?

Answer 3

• States may temporarily Derogate from certain Rights in times of war or public emergency;
• So long as the Derogation is proportionate and compliant with other international obligations.

Question 4

What are the Absolute Rights under the European Convention of Human Rights?

Answer 4

Rights that cannot be interfered with by the State under any circumstances.

• Art. 3, Freedom from Torture: Prohibits torture or inhuman or degrading treatment or punishment.
• Art. 4, Freedom from Slavery: Prohibits slavery, servitude, and forced labour, which also applies to human trafficking.
• Art. 7, No Punishment Without Law: Ensures no punishment without lawful authority, especially prohibiting retrospective criminalization or punishment.

Question 5

What are the Limited Rights under the European Convention of Human Rights?

Answer 5

Rights that cannot be interfered with by the State except under specific circumstances.

• Art. 2, Right to Life: Right to Life, with specific lawful exceptions.
• Art. 5, Right to Liberty: Right to Liberty and Security, allowing Lawful Detention in certain situations.
• Art. 6, Right to Fair Trial: Right to a Fair Trial and Due Process, subject to Judicial procedures.

Question 6

What are the Qualified Rights under the European Convention of Human Rights?

Answer 6

Rights that can be interfered with by the State, but only for legitimate reasons.

• Art. 8, Right to Privacy: Particualry as concerns private and family life, the home, and correspondences.
• Art. 9, Freedom of Thought, Conscience, and Religion.
• Art. 10, Freedom of Expression.
• Art. 11, Freedom of Association and Assembly.

Question 7

When is it Legitimate for a State to Interfere with a Qualified Right?

Answer 7

When it can prove the following:

• It is Lawful under Domestic Law.
• It is necessary to achieve a Legitimate Purpose.
• It is Proportionate in Its interference given its Purpose.

Question 8

What are the Core Judicial Doctrines concerning Human Rights?

Answer 8

• Proportionality.
• Positive Obligation.
• Margin of Appreciation.

Question 9

What is the Doctrine of Proportionality?

Answer 9

Any interference with an Individual’s Rights must strike a balance between:

• The Individual’s Rights; and
• The Community’s interests.

Question 10

What is the Doctrine of Positive Obligation?

Answer 10

The State must protect Individuals from interference with their Rights by Non-State Actors.

Question 11

What is the Doctrine of Margin of Appreciation?

Answer 11

Member States have some discretion in how they choose to implement Convention Rights, subject to the ECtHR’s supervision.

Question 12

What are the Lawful Exceptions to Article 2?

Answer 12

Any use of force by a State Actor must be proportionate and no more than absolutely necessary. This may include:

• Quelling a riot or insurrection.
• Defending any person from unlawful violence.
• Effecting a lawful arrest or preventing escape from lawful detention.

Art. 2 is interpreted strictly and cannot be derogated except in lawful acts of war.

Question 13

What Obligations does Article 2 place on the State?

Answer 13

The State must:

• Refrain from unlawful killing.
• Protect life through legal and preventive measures.
  • Especially if it has Actual or Constructive Notice of a probable risk.
• Investigate deaths caused by State Actors.
• Investigate deaths caused by Non-State Actors if it had a custodial responsibility over the Victim.

Question 14

Under Article 3, what constitutes Inhuman or Degrading Treatment?

Answer 14

The infliction of substantial suffering, reaching an extreme level of unacceptability. This depends on:

• The Treatment’s duration.
• How the Treatment was conducted.
• The Treatment’s nature and context.
• The Treatment’s effects on the Victim’s immediate and long-term health.

Question 15

Under Article 3, what constitutes Torture?

Answer 15

The deliberate infliction of intense suffering constituting severe cruelty. This depends on:

• The Treatment’s duration.
• How the Treatment was conducted.
• The Treatment’s nature and context.
• The Treatment’s effects on the Victim’s immediate and long-term health.

Question 16

What Obligations does Article 3 place on the State?

Answer 16

The State must:

• Refrain from Torture and Inhuman and Degrading Treatment.
• Prevent such outcomes through legal and preventive measures.
  • Especially if it has Actual or Constructive Notice of a probable risk.
• Investigate instances caused by State Actors.
• Investigate instances caused by Non-State Actors if it had a custodial responsibility over the Victim.

The State cannot deport or extradite an Individual if it seriously risks breaching Art. 3, including by Non-State Actors.

Question 17

Under Article 5, what constitutes a Deprivation of Liberty?

Answer 17

Confinement that restricts freedom significantly.

Question 18

Under Article 5, when is Deprivation of Liberty permissible?

Answer 18

When it is supported by a clear, principled legal basis in Domestic Law. The Law itself:

• Must be sufficiently accessible and foreseeable; and
• Must not give unfettered discretion to Authorities.

In other words, it is Prescribed by Law.

Question 19

Under Article 5, when is Deprivation of Liberty pursuant to a Criminal Arrest permissible?

Answer 19

• Reasonable Suspicion: The Arrest is based on new, objective facts that would satisfy a reasonable observer.
• Preventive Detention: The Detention is necessary to prevent an escape or the commission of a specific offence.

Question 20

What are the Procedural Protections for Individuals under Article 5?

Answer 20

Right to Know the Reasons for Arrest:

• Individuals must be clearly informed on why they were detained and any charges within a reasonable time.
• Information must be sufficient to allow an understanding of the legal grounds for detention.

Right to Prompt Judicial Review:

• Individuals have a right to a prompt Judicial Review and to a Trial within a reasonable time.

Right to Challenge Lawfulness of Detention:

• Individuals to challenge the legality of their Detention before a Court within four days.

Right to Compensation for Unlawful Detention:

• The State must provide enforceable compensation for unlawful Deprivation of Liberty.

Question 21

Under Article 6, what is a Detainee categorically entitled to?

Answer 21

• A fair and public hearing within a reasonable time by an independent and impartial tribunal.
• This triggers when their civil rights, obligations, or criminal charges are being determined.

Art. 6 is the source of the Presumption of Innocence.

Art. 6 also demands that the Investigation be conducted fairly, e.g. that the Individual be cautioned at Interview.

Question 22

Under Article 6, what Right is Implied in favour of Individuals?

Answer 22

The right to access professional legal representation, which is treated especially strictly if:

• The case is complex; or
• The penalty is severe.

Question 23

Under Article 6, what are the Minimum Rights of Individuals in Criminal Proceedings?

Answer 23

• Right to examine witnesses.
• Right to an interpreter if needed.
• Right to be informed promptly of charges.
• Right to remain silent and not self-incriminate.
• Right to defend oneself or have legal assistance.
• Right to adequate time and facilities to prepare a Defence.

Question 24

What does Article 8 Protect from Interference?

Answer 24

The Home:

• Expectations of Privacy at One’s Residence(s).
• Protection from Arbitrary Entry or Interference.

Family Life:

• Familial Integrity.
• Family Within and Beyond Marriage.

Private Life:

• Human Dignity.
• Physical and Moral Integrity.
• Personal Identity and Privacy.

Private Correspondences:

• Includes all Forms of Private Communication.
• Protection from Interception or Surveillance.

Question 25

When is Interference with Article 8 Legitimate?

Answer 25

* It has a **clear** and **accessible legal basis**. * It has a **Legitimate Purpose**, e.g. National Security. * It is **necessary** and **proportionate**, responding to a **pressing social need** in a Democratic Society.

Question 26

What is Indirect Horizontal Effect?

Answer 26

* **Courts** must act **in line with** the **Convention**, even in **Disputes** between **Private Parties**. * Note that the **HRA does not create new legal actions** in **such Disputes**. ## Footnote Consequently, the Courts must interpret and evolve Common Law principles in line with the Convention.

Question 27

What are the Elements of the Tort of Misuse of Private Information?

Answer 27

**Reasonable Expectation of Privacy:** * The Claimant must show a **reasonable expectation of privacy** regarding the **disclosed information**. * This usually includes anything obviously private or intended to remain non-public, but the exercise is ultimately fact-specific. * The **mere fact** that information is **publicly available** may **diminish** an expectation, but **does not necessarily extinguish** it. * Individuals **retain some control** over their private information **despite previous disclosures**. **Balancing Exercise between Articles 8 and 10:** * The Claimant must convince the Court their **Right to Privacy outweighs** the Respondent's **Right to Freedom of Expression**. * Relevant factors may include: * Manner of **publication**. * **Nature** of the Subject's **activities**. * **Public interest** in the disclosed information.

Question 28

What is Protected by Article 10?

Answer 28

* The Right to **hold**, **receive**, and **express information without State Interference**. * This **includes** information that **offend**, **shock**, or **disturb** the **State** or **any demographic**.

Question 29

When is Interference with Article 10 Legitimate?

Answer 29

* It has a **clear** and **accessible legal basis**. * It has a **Legitimate Purpose**, e.g. National Security. * It is **necessary** and **proportionate**, responding to a **pressing social need** in a Democratic Society. ## Footnote Classic examples include: * National Security. * Prevention of Disorder or Crime. * Protection of the Rights and Reputation of Others. * Protection of Health or Morals (Wide Margin of Appreciation).

Question 30

Under §2 HRA, when should UK Courts follow ECtHR Decisions?

Answer 30

**Whenever possible**, **unless**: * **Special circumstances** exist; * It **fundamentally conflicts** with the UK **Constitution**; or * It **overlooks** specific UK **legal traditions** or **principles**.

Question 31

Under §6 HRA, when may a UK Authority infringe upon a Convention Right?

Answer 31

**§6(2)(a):** * Its **actions** are **dictated** by **Primary Legislation**, and it has **no discretion** to act in **compliance** with the **Convention** * This applies when the Authority has an **unavoidable Statutory Duty** to **act**. **§6(2)(b):** * Its **actions comply** with or **enforce** **Primary Legislation** that is **Convention-incompatiable**. * This applies when the Authority **has discretion** to act, and **choose** to do so **per Legislative intentions**.

Question 32

How is §6 Applied in Practice?

Answer 32

* The **Court attempts** to **reconcile** the **Statute and Convention**. * **If successful**, **§6 fails** and the **Authority** may be held **liable**. * **If unsuccessful**, **§6 stands** and a **Declaration of Incompatibility** is made.

Question 33

Under §6 HRA, what are the Three Types of Authorities?

Answer 33

**Core Public Authorities:** * Completely Public Bodies, bearing **full liability** under §6. **Hybrid Public Authorities:** * **Private Bodies** performing **Public functions**, **only bearing liability** under §6 in relation to their **Public functions**. **Private Bodies:** * Completely Private Bodies, bearing **no liability** under §6.

Question 34

Under §6 HRA, when is a Body's Function Public in Nature?

Answer 34

* It uses **Public Funds**. * It **draws power** from **Statute**. * If **offers services** to the **Public** at large. * It **substitutes** a **role** typically performed by the **Government** or a **Local Authority**. ## Footnote Courts will be generous in their interpretation of 'Public Function'.

Question 35

Under §7 HRA, what is Standing?

Answer 35

An **Individual's right** to bring a **Claim** under the **HRA**.

Question 36

Under §7 HRA, when does an Individual have Standing?

Answer 36

When the Individual is **directly impacted** by the **alleged violation**. | This is called '**Victim Status**'. ## Footnote Legal Persons may claim Victim Status on their own behalf.

Question 37

Under §7 HRA, what is the Deadline for bringing a Claim?

Answer 37

* **One year** of the **alleged violation** or **cessation** thereof if it is **ongoing**. * **Extensions** may granted **if Equity demands**.

Question 38

Under §3 HRA, how must UK Courts interpret Statute?

Answer 38

* In a **manner compatiable** with **Convention Rights**; such that * The Courts may **strain to reconcile** the two **without altering** the **Statute's fundamental features** or **acting outside** of **Judicial capacity**; leaving * A **Declaration of Incompatibility** as a **last resort**.

Question 39

Under §3 HRA, which Interpretive measures are Permitted and Prohibited?

Answer 39

**Permitted:** * Apply strained interpretations or implied terms. * Narrow or expand meanings and read in terms. **Prohibited:** * Delete language. * Effectively make Policy decisions. * Completely alter the Statute's substance. * Contradict the Statute’s core feature or intent.

Question 40

Under §4 HRA, when will a Declaration of Incompatibility be made?

Answer 40

* When **Statute cannot be reconciled** with the **Convention**. * A Declaration: * Is at the **Court's discretion**; * Is **Non-Binding on Parliament**; and * **Does not affect** the **Statute** in any way.

Question 41

Under §8 HRA, what are the Judicial Remedies for Human Rights Violations?

Answer 41

* **Damages:** Compensation for harm caused by the Authority’s actions. * **Declarations:** Formal statements on the legality of actions taken by the Authority. * **Injunctions and Quashing Orders:** Preventative measures to prevent violations or annul unlawful acts. * **Prohibitory and Mandatory Orders:** Directives requiring or prohibiting specific actions by the Authority.

Question 42

Under §10 HRA, what are the Remedial Procedures following a Declaration of Incompatibility?

Answer 42

**Standard Procedure:** * A **Draft Remedial Order** is laid before **Parliament** for **60 days** for review and approval. **Urgent Procedure:** * Where an **urgent response** is **necessary**, the Remedial Order is **implemented immediately**, but will still require **retrospective Parliamentary approval**. In either case, the **relevant Provision** is **amended** to **comply** with the **Convention**. ## Footnote The Ministry of Justice issues an annual report detailing DOIs issued by the Courts, the Government's responses, and any Remedial Actions.