Human Rights Flashcards
(20 cards)
What are the convention rights (articles) in schedule one of the human rights act? (12)
Right to life
Prohibition of torture
Prohibition of slavery and forced labour
Right to liberty and security
Right to a fair trial
No punishment without law
Right to respect for private and family life, home and correspondence
Freedom of thought, conscience and religion
Freedom of expression
Freedom of assembly and association
Right to marry
Prohibition of discrimination
Does Parliament have sovereignty over the human rights act?
Yes
The Supreme Court should follow the case decisions of the ECHR on the definition of convention rights unless:
- There is no decision from the ECHR on the matter
- There are conflicting decisions from the ECHR on the matter
- Previous decision of the ECHR was on UK law and failed to properly understand UK law
What are the convention rights (protocols) under the human rights act?
- Protection of property
- Right to education
- Right to free elections
- Abolition of the death penalty
What damages are awarded for a claim under ECHR?
- Modest damages to compensate for physical or financial damage or loss of opportunity
- ECHR favours “just satisfaction” which is where an order is given so that the breach of human rights is corrected
What does section 2 of the ECHR state?
That all UK courts and tribunals should follow the case law of the ECHR when deciding upon the meaning of a convention right
What does section 3 of the ECHR state?
That where possible to do so primary legislation and delegated legislation must be interpreted to comply with human rights. If not, primary legislation remains the law, but delegated legislation could be declared invalid
What does section 4 of the ECHR state?
If it’s not possible to interpret primary legislation so that it’s compatible with the convention rights, then the High Court may make a declaration of incompatibility
What does section 6 of the ECHR state?
It is unlawful for a public authority to act in a way which is incompatible with a convention right, and that a person is not a public authority if the nature of the act is private
If a person was a public or hybrid authority, but carried out a private act, they are not subject to section 6
What does section 7 of the ECHR state?
That only a victim of the unlawful act may bring or defend proceedings against a public authority
The procedure often adopted is judicial review, which must be brought within one year
What does section 8 of the ECHR state?
When determining the level of compensation for damages, UK courts must take account of the principles applied by the ECHR
What happens if a lower UK court is confronted with conflicting decisions from the ECHR and a higher UK court?
The UK court must abide by the normal precedent system and follow the decision of the higher UK court
What happens with a declaration of incompatibility?
The primary legislation remains in force and it is up to Parliament whether they want to change the law or not
What is a hybrid authority?
A body that exercises both public and private functions
What is proportionality?
Restriction of a right should be no more than is necessary to protect the public interest
What questions must the court answer to decide whether a person or body was a public authority?
- Did the body possess special powers?
- Was there democratic accountability?
- Was there public funding?
- Was there an obligation to only act in the public interest?
- Did the body have a statutory constitution?
What will courts consider when deciding if there is a legitimate aim in restricting the right?
- The restriction would achieve the aim
- Whether a less intrusive restriction could be used
- Whether there is a fair balance between the right, and the community need to restrict it
When can any of the rights under the human rights act be restricted?
When it is in accordance with the law and is necessary in the interest of:
1. national security
2. public safety
3. economic well-being of the country
4. prevention of disorder and crime
5. protection of health and morals
6. protection of the rights and freedoms of others
The restriction of human rights must be authorised by a judge in advance
Why is judicial review for human rights different from standard judicial review?
The definition of sufficient interest is stricter, but the time limit for application is longer and damages are possibility
Why was the human rights act 1998 passed?
To enable persons to enforce their convention rights (under ECHR) against public authorities in UK courts
