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Con And Admin Law > Human Rights > Flashcards

Human Rights Flashcards

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1
Q

S4 HRA

A

Declaration of incompatibility

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2
Q

What might follow a declaration of incompatibility

A

Remedial order under s10 HRA

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3
Q

S2 HRA

A

Take into account ECHR jurisprudence

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4
Q

S3 HRA

A

Courts must interpret legislation in a manner compatible with convention rights as far as it is possible to do so

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5
Q

What is unlawful under s6 HRA

A

For a public authority to act in a way which is incompatible with a convention right

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6
Q

What is a public authority for the purposes of the HRA

A

Courts, tribunals, any person whose functions are of a public nature
Core public authorities and hybrid public authorities

Not H of L, H of C or person exercising functions in connection with proceedings in Parliament

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7
Q

Who is not a public authority for purposes of HRA

A

Not H of L, H of C or person exercising functions in connection with proceedings in Parliament

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8
Q

What are the two types of public authorities

A

Core public authorities

Hybrid public authorities

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9
Q

What is a core public authority

A

governmental in nature and serve and regulate the general population

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10
Q

What is a hybrid public authority

A

Primarily exercises private functions but some of their functions are of a public nature - they are governmental or regulator and not dependent on consent or agreement

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11
Q

S19- when must ministers issue a statement of compatibility

A

When issuing a bill

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12
Q

How long does a claimant have to bring a claim for breach of rights

A

One year of the act occurring unless JR which is shorter

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13
Q

Can the court extend the one year time limit on brining a rights claim

A

Yes if equitable

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14
Q

Requirements for bringing a human rights claim

A

You are a victim

One year since breach

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15
Q

Who is a victim for the purposes of HRA

A

Directly affected by the act of omission that is the subject of the complaint

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16
Q

What remedies are available under s8 HRA

A 
Damages 
Declaration 
Injunction 
Quashing order
Mandatory order
Prohibiting order
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17
Q

Are damages always available for a human rights claim

A

No damages if public body is subject to a statutory scheme of regulation with an independent regulator with powers of enforcement whose decisions are subject to JR

Must be necessary and appropriate to give just satisfaction

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18
Q

Notice requirements for protests

A

6 days clear written notice to be given to police including name and address of one organiser and route and time

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19
Q

When can conditions be imposed on a protest

A

To prevent serious public disorder, serious criminal damage or serious disruption of life of the community

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20
Q

Can a protest be banned

A

For up to three months

To prevent serious public disorder, serious criminal damage or serious disruption of life of the community

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21
Q

How many people are required for a public assembly

A

Two or more

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22
Q

Can protestors and innocent passers by be detained

A

Austin-
Yes even where they do not appear to be about to commit a breach of the peace where it is necessary to prevent an imminent breach of the peace by others and no other means would achieve that

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23
Q

When can a person be arrested without warrant

A

If police have reasonable grounds to suspect that they committed certain offences or are about to

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24
Q

What to do when arresting someone without a warrant

A

Tell them what they are arrested for at time of arrest or first reasonable opportunity afterwards

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25
What must an officer disclose before commencing a stop and search
Name and name of station
26
When can someone be stopped and searched
Acting on reasonable suspicion may search anyone to find stolen goods, drugs, weapons
27
Can they use force during a stop and search
Can use force if they won’t cooperate
28
When can the police enter and search premises
When they have a search warrant, a statutory right of have obtained permission from owner occupier
29
Restriction on police to search property when they have a warrant
Search at reasonable hour and if owner is in occupation then with their permission
30
Can the police force entry to search a property
Only with a warrant
31
When do police have statutory authority to search a property without a warrant
To deal with or prevent a breach of the peace Enforce an arrest warrant Arrest a person for certain offences Recapture someone who escaped from custody Save a life Prevent serious damage to property Must have reasonable grounds to believe person searching for is in there
32
When can the police search a premises linked to an arrested person
If it was occupier by an arrest person or visited by them during or immediately prior to their arrest Must reasonable believe they will find evidence connected to the crime the arrested person is accused of committing
33
When can the police sieze goods
If reasonable grounds to believe that the goods have been obtained illegality or are evidence of an offence Necessary to prevent them being lost, stolen or destroyed
34
When can a qualified right be restricted
If it is prescribed by law, has a legit aim and is necessary in a democratic society
35
Necessary in a democratic society
Pressing social need | Inference with the right must be proportionate
36
Proportionate meaning
Doesn’t go further than needed
37
Margin of appreciation for necessity
Respect MS judgement re what public interest requires
38
What legitimate aims are listed in articles 8
Article 8 interests of national security, public safety or economic well-being Prevention of disorder or crime Protection of rights and freedoms of others
39
What are legitimate aims listed in article 10
Prevention of disorder or crime Protection of rights or freedoms of others Prevention of disclosure of confidential info Maintain authority and impartiality of judiciary
40
Test for proportionality
Objective of measure is important Measure is connected to objective No less intrusive measure to use Balance between right and community interest
41
2 ways an ECHR claim may commence
State application | Individual application
42
2 stages of an ECHR claim
Admissibility | Merits
43
If ECHR case is deemed inadmissible can you appeal
No
44
Can you appeal a decision on the merits of an ECHR case
Yes within 3 months appeal to grand chamber
45
Do ECHR decisions bind MS
No but committe of ministers of the council of Europe ensures states comply with judgements
46
Requirements for an individual to bring an ECHR claim
Exhaust domestic remedies Within 6 months of decision Personally and directly victim of breach Suffered a significant disadvantage
47
Which are absolute rights
2,3,4,7 9 10 | Cannot be interfered with but have exceptions that don’t count as interference
48
What are limited rights
Can only be limited in clearly defined and finite circumstances Articles 5 and 6
49
What are qualified rights
Balance right against public interest | 8,10,11 and article 1 of protocol 1
50
Can the ECHR be derogated from
Article 15 In time of war or public emergency threatening life of nation Not 2,3,4,7 - except death result from lawful war
51
What is article 7 ECHR
Cannot be charged with criminal offence if it wasn’t a crime when it was committed
52
What is article 6 ECHR
Fair trial Sets out min rights for those charged with a crime Innocent until proven guilty
53
When does article 6 apply
When an individual attempts to assert substantive legal rights
54
What is article 4
Slavery
55
What is slavery
The status or condition of a person over whole any or all of the powers attaching to the right of ownership are exercised
56
What is forced/ compulsory labour
Work they’re forced to do against their will | Individual must be exploited
57
What is NOT forced labour
Prisoners working Military service Work required in an emergency threatening life or wellbeing of community Work part of normal civic obligations
58
Which is article 5
Ensure no one is deprived of their liberties in an arbitrary fashion Procedure must be followed before depriving someone of their Liberty
59
Exceptions to article 5
``` Arrest Detention by police Prison after conviction Detention in hospital for mentally ill Detention in an asylum context Deportation ``` Must still be in accordance with a procedure prescribed by law
60
Requirements that must be met to prevent a deprivation of Liberty being arbitrary
``` Good faith (similar to an exception) Detention is necessary (no less server method is suitable) Length not exceeding what is required Keep record of reasons Lawful nationally ```
61
What is article 3
Torture, inhuman or degrading treatment or punishment Absolute right No exceptions
62
What is torture
Deliberate inhuman treatment causing very serious and cruel suffering
63
What is inhuman treatment
Treatment of punishment likely to cause actual bodily injury or intense physical or mental suffering
64
Which articles are breach when deporting someone to a country where there is a real risk of death or torture/ inhuman treatment
Breach of articles 2 and 3
65
What positive obligation does article 3 create
State has obligation to ensure non state actions eg parents don’t punish children to a level where article 3 is engaged
66
What is article 2
Right to life | Prohibits state from taking life
67
What positive duties does article 2 create
Positive duty on state to protect life State must carry out a full and thorough investigation where an allegation is made that there has been an article 2 breach
68
What is not included in article 2
Doesn’t prohibit death penalty - protocol 6 does | Doesn’t apply to embryos
69
Exception to article 2
Allows force resulting in death if conditions are met: Use of force must be no more than is absolutely necessary and Either for defence, arrest, prevent escape from detention or prevent riot or insurrection
70
Article 10
Freedom of expression
71
When can article 10 be restricted
Prescribed by law Legit aim Necessary in democratic society
72
Is offensive, shocking and disturbing speech protected by article 10
Yes and it should not be restricted but speech that goes beyond this isn’t protected
73
What is article 11
Freedom of assembly and association
74
What is freedom of association
Membership of bodies
75
When can article 11 be restricted
Prescribed by law Legit aim Necessary in a democratic society
76
Positive duty created by article 11
State should protect the exercise of the right State should protect protestors But not absolute obligation on the state to facilitate peaceful protest so restrictions on protestors allowed
77
Article 12
Right to marry
78
Can article 12 be restricted
Subject to national laws | Non arbitrary restrictions are allowed if not interfering with essential principle of right
79
Are trans people and same sex marriage included in article 12
Trans people are included | Same sex marriage is not
80
Article 8
Right to respect for private and family life
81
What does article 8 include
``` Private life Family life including unmarried stable relationships Home where one currently lives Correspondence Bodily integrity Personal autonomy Sexuality Personal info ```
82
Article 9
Freedom of thought conscience and religion
83
When can article 9 be restricted
Prescribed by law Legit aim Necessary in democratic society
84
Article 13
The right to an effective remedy before national authorities for violations under ECHR
85
Article 14
Discrimination affected enjoyment of a convention right | Direct and indirect discrimination
86
Article 1 first protocol
Peaceful enjoyment of possession of land and personal property Compensation for deprivation of property
87
Meaning of peaceful enjoyment | Article 1 first protocol
Financial value of property or possession
88
When can article 1 first protocol be restricted
Lawful and necessary for Public interest
89
Article 2 first protocol
Right to education Recognise studies Not to deprive of education
90
Does article 2 first protocol require the state to subsidise education
No need to subsidise
91
Does expulsion breach article 2 first protocol
No breach of expulsion is foreseeable, pursues a legit aim, and proportionate to the aim
92
Article 2 first protocol | Can gov determine curriculum and does it have to include parents beliefs
State must respect the rights of parents to ensure education in conformity with their own religious and philosophical convictions but gov can determine curriculum as long as it is consistent with objectivity and pluralism
93
Article 3 first protocol
Free elections by secret ballot and reasonable intervals
94
Article 1 protocol 12
Abolish death penalty including crime at war
95
Test for misuse of private info
Objective Did C have a reasonable expectation of privacy in the circumstances Balance article 8 and 10
96
S12(4) HRA
Court must consider important of freedom of expression where material is journalistic and whether it would be in the public interest for the material to be published
97
S1,2,3,4,6,7,8,10,19 HRA
1- incorporates ECHR rights 2- take into account ECHR judgements 3- so far as poss read leg in compatible way 4- declaration of incompatibility 6- unlawful for public authorities to breach ECHR unless giving effect to incompatible statute 7- can claim against body that breaches s6 and rely on ECHR rights in any proceedings 8- damages if necessary for Judy satisfaction 10- remedial order through affirmative procedure 19- statement of compatibility or cannot make one but want to progress anyway
98
What is a public body for HRA
Same meaning as for JR
99
What is a victim for HRA
Directly and personally affected | Not pressure groups

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