Human Rights

Question 1

Why was the European Convention of Human Rights created?

Answer 1

Established after WWII

Prevent the atrocities of war from reoccurring

Question 2

Article 2 ECHR?

Answer 2

Right to life

Question 3

Article 3 ECHR?

Answer 3

Prohibition of torture

Question 4

Article 6 ECHR?

Answer 4

Right to a fair trial

Question 5

Article 12 ECHR?

Answer 5

Right to respect for private and family life

Question 6

When was the ECHR signed

Answer 6

1950, became binding 1953

But the UK didn’t fully incorporate the law into its domestic leg

Question 7

Why did the UK not fully incorporate the ECHR into domestic law?

Answer 7

= considerable political pressure to conform

An unincorporated convention carries less weight than one that is fully incorporated into UK law

Question 8

When was the European Court of Human Rights and Grand Chamber established?

Answer 8

1951 (Strasbourg)

Handles claims made by 1 MS against another + by individuals against a state

Question 9

What does the ECtHR consider?

Answer 9

Only hears claims where the state has recognised the right of individuals to bring a claim against it

Question 10

When did the UK agree the right of an individual to petition to the ECtHR?

Answer 10

1966

Case cannot be taken unless all domestic remedies have been exhausted

Question 11

How have the HR in to UK been protected?

Answer 11

Introduction of the HRA 1998 (labour)

Incorporated EU convention

Question 12

What does s7 HRA enable?

Answer 12

An individual within the UK to take their case to a UK Ct rather than having to apply Strasbourg
ECtHR = last resort

Question 13

What is the ECHR?

Answer 13

Treaty
All countries that signed it = agreeing to the basic HR
45 countries signed it

Question 14

What was a more recent right added to the ECHR in 1952?

Answer 14

Right to education

Question 15

What does s2 HRA require?

Answer 15

Judges to consider previous case law from the ECtHR

BUT they don’t have to follow it (weak obligation)

Question 16

What does s3 HRA require?

Answer 16

Ct to interpret primary + subordinate legislation in a way that is compatible with the ECHR ‘so far as it is possible to do so’

Ghaidan v Godin-Mendoza

Question 17

Ghaidan v Godin-Mendoza

Answer 17

Concerned the right of succession to a tenancy of the spouse of the deceased/ person who had lived there as their wife/husband
Under literal interpretation, applicant couldn’t benefit - he = homosexual partner of deceased
Found that this = conflict of Art 8 (R to privacy) + Art 14 (R to freedom of discrimination)

Question 18

Are there limits placed on s3 HRA?

Answer 18

Yes
Shown in the appeal case of Re S(children)
HL rejected the use of s3; would have undermined a fundamental feature of the Children Act 1989

Question 19

What does s4 HRA require?

Answer 19

Where HRA isn’t compatible with domestic law, Cts must make a declaration of incompatibility
Alerts G that law needs to be altered
Does NOT affect validity of Act
Will remain law until P deal with incompatibility

Question 20

s6 HRA?

Answer 20

Unlawful for public authorities to act in a way that = incompatible with ECHR
Decided on a case to case basis

Andrews v Reading Borough Council (2005)

Question 21

Andrews v Reading Borough Council (2005)

Answer 21

RBC implemented a new transport policy
Resulted in more traffic passing Andrew’s house
Council = force dot pay compensation as they had flaunted his right to peaceful enjoyment of his belongings

Question 22

s19 HRA?

Answer 22

Imposes a duty to contain a written statement stating whether the bill is compatible with the convention

Question 23

What are the 5 advantages of the HRA?

Answer 23

1. Enabled individual liberties to be protected (A v Secretary of State for Home Dep)
2. Improved access - cases can pursued UK Cts
3. Prevented conflict between UK + international law
4. ECtHR = tried + tested for 3 years
5. Strasbourg can be utilised as a further appeal Ct - enables another check on UK G ensuring democracy

Question 24

A v Secretary of State for the Home Department

Answer 24

HL held that the indefinite detention of the foreign suspected terrorist = against Art 5 (R to liberty)

Question 25

What are the 3 disadvantages of the HRA?

Answer 25

1. Gives judges too much political power (not democratic)
   BUT have to make sensitive decisions all the time + judiciary = essential
2. Judges have insufficient power (s4 - declaration of incompatibility, can’t strike out statute)
3. HRA can be replaced by future G - limited constitutional safeguard, not entrenched in our constitution like the USA (Bill of Rights)

Question 26

When was the Commission for Equality and HR established?

Answer 26

2007, became operational in 2009

Question 27

What are the 5 things the Commission for Equality and HR is responsible for?

Answer 27

1. Providing advice + guidance
2. Conducting inquires
3. Bringing cases
4. Monitoring compatibility of domestic law with ECHR
5. Publishing reports

Question 28

What does the Conservative party wish to do with the HRA?

Answer 28

Repeal + replace it with British Bill of Rights

Question 29

What would be the 4 advantages of having a British Bill of Rights?

Answer 29

1. Control to the executive - Cts could refuse apply leg that incompatible with Bill
2. Any incompatible section can be struck out, s3 currently restricts judges to a declaration
3. Classed as Bill of Rights if enacted - couldn’t be overridden
4. Bill = modernise HRA + intro new rightsn

Question 30

What would be the 5 disadvantaged of having a British Bill of Rights?

Answer 30

1. Some: rights are adequately protected, Bill = unnecessary
2. Once enacted = difficult to change
3. Difficult to draft
4. Only as effective as the G that underpins it
5. Give huge power to judiciary + make them overly political