Human rights

Question 1

Countries responses to HRs

Answer 1

Convergence, engagement, resistance

Question 2

Types of rights

Answer 2

Gen 1 - civil and political
gen 2 - social cultural and economic
gen 3 - group and minority

Question 3

Influence of ECHR

Answer 3

Margin of appreciation
smith and grady v UK
ECHR jurisprudence

Question 4

Smith and Grady v UK

Answer 4

sexuality in military case
need good reasons to limit rights

Question 5

HRA main things

Answer 5

S.2.1 - ECHR jurisprudence
statement of incomp from ministers
S.3 interpretation
S.4 incomp dec
S.6 public authorities

Question 6

View on civil liberties in UK

Answer 6

Dicey - good as gov has to justify actions in law
Ex P Simms - POL
Ex P Leach - communication with lawyer linked to right of access to courts
Malone v MPC - rights protection doesn’t work unless specific rights infringed upon

Question 7

S.3

Answer 7

Interprétation in line with ECHR
ex P Kebelia
Ghaindan v Godin-Mendoza - L Nicholls and L Steyn
R (Kaitey)

Question 8

Ex P Kebelia

Answer 8

Steyn - drafted HRA to preserve parl sov

Question 9

L Nicholls in Godin Mendoza case

Answer 9

S.3 may require int that departs from clear unambiguous wording

should adopt meanings that go against fundamental features of leg but not the underlying thrust

Question 10

L Steyn in Godin-Mendoza case

Answer 10

Strong rebuttable presumption jn favour of compatible int

S.4 should be exceptional course

Question 11

R (Kaitey)

Answer 11

unless leg breach ECHR without int ignore S.3

Rules to follow:
1. obtain ordinary meaning with purpose of act and presumption park won’t leg against EXHR
2. int so far as possible with ECHR
3. discression of incomp dec

Question 12

S.4

Answer 12

R v A - L Steyn
Burden v UK
Nicklinson - L Neuberger and L Hale dissenting

Question 13

S.4 contrast with devolution

Answer 13

Devolved bodies MUST follow ECHR
parl may/ may not

Question 14

S.6

Answer 14

YL v Birmingham CC - just because state pays for a function does not make it a public function

Hale dissent - close connection and state assumed responsibility so should be

Question 15

What is the proportionality test?

Answer 15

1. right infringed on?
2. legit aim? + rational connection
3. necessary?
4. proportional response?

Question 16

Abortion services safe access zones case

Answer 16

stated the law was necessary and legit as it only limited it in certain areas

Outlined 4 steps under necessary
1. sufficiently important to justify
2. rational connection?
3. less restrictive means?
4. fair balance between right and interest?

Question 17

R (SG)

Answer 17

Child benefit restriction did not discriminate against women

L Hale dissent - not a legit aim and discriminated

Question 18

R on app of SC, CB and others

Answer 18

2 child benefit cap case

compatible qs discrimination necessary for objective and parliament stated it is okay

Question 19

S.2

Answer 19

UL courts take ECHR into account
R (Chester)
R(Ullah)
Siobhan mclaughlin case

Question 20

R (Chester)

Answer 20

needs to be a fundamental principle or egregious oversight for SC to go against ECtHR jurisprudence

Question 21

R (Ullah)

Answer 21

is a duty of national courts to keep peace with ECtHR jurisprudence- not do more or less

Question 22

Siobhan Maclaughlin case

Answer 22

L Mance - if decision not follow purpose of statute dokt follow decision

Question 23

R v A

Answer 23

L Steyn - déc of incomp is last resort

Question 24

Burden v UK

Answer 24

dec of incomp may in future be seen as binding obligation

Question 25

Nicklinson L Nueberger

Answer 25

UK given wide margin of appreciation on issue inappropriate for courts to dec of incomp as controversial and debated in parl previously

Question 26

Nicklinson Dissent L Hale

Answer 26

Law not compatible and would issue incomp dec

Question 27

margin of appreciation

Answer 27

Hirst v UK - given margin in this as no pan-european agreement on it

Question 28

judicial deference cases

Answer 28

Nicklinson L Carlisle

Question 29

Tutorial reading

Answer 29

Colm O’Cinneide - history of HR TRS Allan - constitutional sovereignty R on application of AAA Bjorge - dualist system

Question 30

Colm Ocinneide

Answer 30

outlined compliance with hirst - those on license and curfew can vote now need to stop turning political Qs into judicial ones (UNISON) HRA leaves parl sov intact while modifying framework for int

Question 31

TRS allan

Answer 31

only statutory text has legal authority cart case outlined ROL required courts to mediate statute - courts fundamental to constituonal balance of powers states this shows constitutional sov not parl sov presumption there is no intent to attack ROL and wants thicker ROL to affirm constitution - e.g. common law principles

Question 32

R (on app of AAA)

Answer 32

Followed ECHR case POL does not permit a court to disregard unambiguous expression of parls intention

Question 33

Bjorge - dualist system

Answer 33

moohan - court did not exclude possibility of common law rendering outragous statute unlawful higgs - unincorporated treaties cannot change law of the land imperial japanese gov case - unincorporated treaty operative before courts - because added to rights not took away?

Question 34

Elan cane case

Answer 34

Found non gendered identification came under HRs but no european consensus and considerations of public interest outweighed claim