Human Rights & Legal Accountability Flashcards
(17 cards)
What is the difference between rights & liberties?
Liberty = lawful because the law doesn’t prohibit it
Right = law specifically provides that is can lawfully be done
What is the difference between individual and civil liberties
Individual = freedom from interference by others
Civil = relationship between individual and state
Bell v Black & Morrison
B house searched for papers
Gov can’t exercise a power unless its clearly authorised by statute or common law
If no legal justification can be found, the absence of legal precedent works against the defendant
What is the role of statute?
Legislation may expand or restrict freedom
Public Order Act 1986
Criminal Procedure (S) Act 1975
List articles of the ECHR
Art 2 - right to life
Art 3 - prohibition of torture
Art 4 - prohibition of slavery
Art 6 - right to a fair trial
Art 8 - right to privacy and family life
Art 10 - freedom of expression
Art 11 - freedom of assembly
What are the 2 state obligations to protect rights
Negative = refrain from interfering with individual liberty
Positive = must take action to protect rights
What are the different level of protection of rights
1) Absolute - MUST be protected & cant be limited (Art 3&4)
2) Limited - Can be limited under specific circumstances (Art 5)
3) Qualified - Balance to be struck between rights of individual & interests of others (Art 10)
4) Derogation - states can be exempt from rights at certain times of war or emergency
What is proportionality
Requires that any restrictions on rights must have a reasonable relation to their intended aim -
Huten - Czapska v Poland
Art 10 (2)
The exercise of these freedoms may be subject to restrictions or penalties as are prescribed by law
What are remedies of the ECHR
Friendly settlement
Just satisfaction - financial compensation
What does the HRA 1998 do
Empowers national courts to protect what it calls “the convention rights” - Articles 2-12 & 14 of the ECHR
It was introduced to provide a faster, less expensive domestic remedy while not undermining the sovereignty of Parliament
What are the key provisions of the HRA
s2 - Duty to take account of Strasbourg decisions
s3 - Duty to interpret primary legislations compatibility with convention rights
s4 - Power to make a declaration of incompatibility
s19 - Minister introducing bill must make a statement that the “provisions of the bill are compatible with the convention”
Ghaidan v Godin Mendoza
HoL ruled that the term “spouse” in Rent Act 1977 should be read to include same sex partners to ensure compatibility with Art 8 & 14
s3 allows courts to depart from the plain meaning of legislation where necessary to ensure compliance with Human Rights
Bellinger v Bellinger
Gender reassignment: woman born as male seen in law as a man
The court found that section 11(c) of the Matrimonial Causes Act 1973—which defined marriage in strictly heterosexual terms—was incompatible with Articles 8 and 12 of the ECHR, as it failed to recognize the rights of transgender individuals.
Gender Recognition Act 2005 came into force
Section 6
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Doesn’t apply if authority couldn’t have acted differently
What are the rules for proceedings & remedies
Only the victim of the unlawful act
Court/tribunal may grant relief or remedy
Highlight key provisions of the Scotland Act 1998
s29 - legislative competence.
An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament
s57 - A member of the Scottish Government has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention
rights or with EU law
s100 - bringing proceedings
s101 - Interpretation of ASP’s
