HUMAN RIGHTS ACT Flashcards
(43 cards)
RELATIONSHIP BETWEEN THE ECHR AND HUMAN RIGHTS ACT 1998
- The UK signed the European Convention on Human Rights
(‘ECHR’) in 1950. Under the ECHR, people who assert a breach of their rights under the Convention may take their case to the European Court of Human Rights (‘ECtHR’) once they have exhausted the legal process in their country, and the ECtHR can then make a binding decision. - To enable the UK courts to give effect to the rights protected by the ECHR, the UK incorporated the ECHR into UK law with the Human Rights Act 1998 (‘HRA’).
HRA SECTION 1—INCORPORATION OF CONVENTION RIGHTS
- HRA Section 1 outlines the ‘Convention rights’: the rights of the ECHR that are incorporated into UK law.
- there are three types of Convention rights: abso-lute, limited, and qualifed.
Absolute Rights
Absolute rights are rights that cannot be limited by the state even in times of war or a national emergency. Neither can they be balanced against the needs of public interest or other individuals.
Limited Rights
A limited right means that the actual scope of the right can
be limited only as provided in the article itself.
convention rights
Qualifed Rights
Qualifed rights are rights that can be limited by the state in order to pursue a legitimate interest as outlined in the particular article.
Qualifed Rights
a.Article 10—Freedom of Expression
b.Article 11—Freedom ofAssembly and Association
c.Other Qualifed Rights
Article 10—Freedom of Expression
Article 10 provides that “Everyone has the right to freedom of expression”, which includes the “freedom to hold opinions and to receive and impart information and ideas without
interference by public authority”. However, Article 10 goes on to provide that this right can be limited by law to the extent necessary in a ‘democratic society’ to achieve the following legitimate aims: national security, territorial integrity, public safety, the prevention of disorder or crime, and the protection of health or morals.
Article 11—Freedom ofAssembly and Association
Article 11 provides that everyone has the right to peaceful assembly and to as-sociate with others but allows the state to adopt laws impos-ing restrictions on this right as are necessary to achieve the following legitimate aims: national security, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.
3
Proportionality
When the state is seeking to restrict a qualifed right with the aim of achieving one of the objectives outlined in the law, the restriction must be** ‘necessary**’. A three-part proportionality test is used by the courts to determine whether a challenged measure is necessary.
*The object of the policy and the legitimate aim pursued is **sufficiently important **to justify limiting a fundamental right;
*The measure is designed to meet the objective and is **rationally connected to it;
*The interference with the right is no more than neces-sary to accomplish the objective (that is, no less onerous means can achieve the aim); and
*The measure is **reasonable and balanced **in all the circumstances, given the competing needs of the individual and the wider community.
Other Rights Protected by the HRA
*Protocol 1, Article 1: Right to Property;
*Protocol 1, Article 2: Right to Education;
*Protocol 1, Article 3: Right to Free Elections; and
*Protocol 13, Article 1: Abolition of the Death Penalty.
Judicial Deference
Judicial deference is closely related to the concept of proportionality. The more politically controversial the issue, the more likely that the courts, when applying the proportionality test, will defer to the government and Parliament.
The great-er the deference shown, the less argument and evidence is
required to show that a measure is proportionate. A greater level of deference is likely to be shown when a case involves questions of national security.
Margin of Appreciation
- When the UK government is challenged before the ECtHR, they may argue that they are allowed **a ‘margin of appreciation’, **essentially that they are permitted **some discretion over the extent to which a right can be restricted. This particularly applies when the government seeks to limit a qualifed right **in pursuit of a legitimate purpose.
- If there is a consensus amongst the member states of the ECHR (that is, a common approach amongst a majority of the states on the issue), then the court is likely to apply a narrow margin of appreciation. Under a narrow margin of appreciation, the ECtHR will conduct a full and detailed review of the interference with the right. Thus, the court will consider whether the discretion exercised complies with the ECHR (meaning it will apply the proportionality test for qualifed rights) andwhether the discretion was exercised carefully and in good faith.
- By contrast, if each state approaches the issue diferently, then the margin of appreciation is likely to be much broader, and the state is given a broader discretion regarding how the right is protected and when it can be
restricted.
Living Instrument Principle
The ECtHR has considered that the ECHR is a living instrument, so that the meaning of the ECHR can adapt to chang-ing social and economic conditions.
3 principles under living instrument principle
a.Not Bound by Previous Decisions
b.Consistent Approach of Contracting States
c.ECtHR Must Be Accessible to All Individuals
Not Bound by Previous Decisions
The ECtHR can follow its own previous decisions, in line with precedent. However, it is free to depart from previous decisions if a new issue arises or other developments justify a change in how the ECHR is interpreted.
Consistent Approach of Contracting States
The ECtHR may also choose to follow an approach adopted by some or all of the contracting states on a particular issue or Convention right. This may sometimes be a key reason for the ECtHR to depart from previous decisions.
ECtHR Must Be Accessible to All Individuals
The ECtHR interprets the ECHR in a practical and accessible manner. For example, in one of its earliest cases against the UK, the ECtHR stated that prisoners should have access to solicitors whilst in jail. To deny them this right was effectively a breach of the right to a fair trial.
Derogation
In limited circumstances (see ‘Situations’ below), a state can derogate from most, but not all, articles of the ECHR. The
efect of a derogation is that the state is no longer required to comply with the article to which the derogation relates.
limits of derogation
A state can derogate from any article of the ECHR other than Article 2 (Right to Life (except in respect of deaths resulting from war)), Article 3 (Prohibition of Torture), Article 4(1) (Prohi-bition of Slavery), and Article 7 (Prohibition of Retrospective
Criminal Ofences).
situation of derogation
A state can derogate in the event of war or other public emergency that threatens the life of the nation.
extent of derogation
Any derogation must be only to the extent strictly required by the exigencies of the situation.
2
HRA SECTION 2—INTERPRETATION OF CONVENTION RIGHTS
- HRA Section 2 provides that when a UK court is dealing with a case that involves a Convention right, the court** “must take into account” any judgment of the ECtHR**. The effect of this requirement is to make ECtHR case law an important source of law.
- In particular, if there is a clear line of authority on the interpretation of a Convention right, the courts are expected to follow the interpretation of the ECtHR. This is sometimes called the** ‘mirror principle’,** meaning that when interpreting a Convention right, the courts will take an approach that reflects the decisions of the ECtHR—offering no more, but certainly no less, than what the ECtHR requires.
SECTION 3—INTERPRETATION OF LEGISLATION
HRA Section 3 requires UK courts, “so far as it is possible to do so”, to interpret legislation in a way that is compatible with Convention rights, as interpreted by the ECtHR. This is essentially an enhanced power of interpretation that sometimes allows courts to depart from the basic language of legislation to give efect to the underlying intention of Parliament.
