Introduction to the ECHR and HRA Flashcards by H K

Before HRA, how did people wanting to enforce their rights under the ECHR do this?

Take their case to the European Court of Human Rights

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What are the three absolute rights of the ECHR?

Article 3: No-one shall be subjected to torture or to inhuman or degrading treatment or punishment

Article 4: Prohibition on slavery and forced labour

Article 7: No punishment without lawful authority, particularly regarding retrospective criminalisation / punishment

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What is Article 3 of the ECHR?

No-one shall be subjected to torture or to inhuman or degrading treatment or punishment

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What is Article 4 of the ECHR?

Prohibition on slavery and forced labour

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What is Article 7 of the ECHR?

No punishment without lawful authority, particularly regarding retrospective criminalisation / punishment

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What does an ‘absolute right’ mean?

No legitimate interference by the state

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What rights of the ECHR are limited rights?

Article 2: The right to life

Article 5: The right to liberty and security of person

Article 6: The right to a fair trial, and fair legal process

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What is article 2 of the ECHR?

The right to life

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What is article 5 of the ECHR?

The right to liberty and security of a person

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What is article 6 of the ECHR?

The right to a fair trial and fair legal process

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What is a limited right?

Rights which can in prescribed circumstances, be legitimately interfered with by the state

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What are qualified rights?

Rights where the first paragraph sets out the substantive right, and the second paragraph lists how they can be lawfully interfered with by the state

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Which rights under the ECHR are ‘qualified’?

Article 8: Right to respect for private and family life

Article 9: Freedom of thought, conscience and religion

Article 10: Freedom of expression

Article 11: Freedom of assembly and association

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If the state wishes to interfere with a qualified ECHR right, what three requirements must be met?

Interference was prescribed by / in accordance with the law

In pursuit of a legitimate aim

Necessary in a democratic society - proportionate

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What is Article 8 of the ECHR?

Right to respect for private and family life

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What is Article 9 of the ECHR?

Freedom of thought, conscience and religion

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What is Article 10 of the ECHR?

Freedom of expression

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What is Article 11 of the ECHR?

Freedom of assembly and association

What is the concept of the positive obligation?

State can be under a specific duty to prevent the violation of human rights carried out by non-state actors.

What is the margin of appreciation?

Contracting states are allowed a measure of discretion when taking measures that restrict rights - reflecting idea that states are best positioned to protect rights in their own particular way.

What is the principle of proportionality?

Considering a fair balance between the state, general interests of a community, and protection of an individuals’ human rights

What does S2 HRA say?

When determining legal questions, UK courts must consider relevant ECHR case law

What does S3 HRA say?

Legislation must be read and given effect by the courts, so far as possible, in a way that is compatible with ECHR rights

What does Section 4 HRA say?

If it is not possible to read domestic legislation in a way which is compatible with the ECHR, a declaration of incompatibility must be made

What does Section 6(1) of the HRA say?

It is unlawful for public authorities including courts and tribunals to act in a way that is incompatible with Convention rights

What is the mirror approach regarding S2 HRA?

The duty of national courts is to keep pace with Strasbourg jurisprudence - no more, but no less

What is the more update approach from the mirror approach that has been emphasised in recent case law regarding S2 HRA?

One of dialogue between parties, as opposed to hierarchy

What is the statutory defence to the Section 6 duty that public authorities must act in a way which is compatible with Convention rights?

A public authority will not be considered to have breached its obligations under the HRA if 1) it is required by primary legislation to so act 2) it is acting so as to give effect or to enforce incompatible primary / subordinate legislation

What institution is expressly excluded from being considered a 'public authority' subject to the HRA?

Parliament

What three types of bodies are there under the HRA?

Core public authorities - liable in respect of all of their actions Hybrid/functional - liable when performing a function of a public nature Private bodies - no liability at all

What are the Aston Cantlow factors which will be considered when judging if a function is a public one, regarding s6(1) HRA?

- Extent to which the body is publicly funded - Exercising a statutory power - Taking the place of central government or local authorities - Providing a public service

When does an applicant have standing to bring a claim under the HRA?

Must pass the victim test: be directly affected Can be a company or an individual If a company - the company's rights itself must have been violated

What are the time limits under Section 7 HRA? When might an extension be granted?

Must be commenced within one year of the date of the act complained of Only if equitable in the circumstances If violation is continuing, only considered that the time starts running from when violation ceases to operate If brought within a JR application - JR time limits will apply

What impact can a court's use of a S3 interpretation have on a case?

It can remove the statutory defence under 6(2)

How do courts approach the interpretive duty under S3 HRA?

It is a strong duty, and can be applied even when this is 'linguistically strained' But should not go so far as to amend statutes themselves - if using the power would bring about a major change in the law, courts should be very careful

How do courts approach the S4 declaration of incompatibility?

As a measure of last resort

When will the interpretative power of S3 HRA be deemed to have gone too far?

Power will have gone too far if it: - Changes substance of provisions entirely - Runs counter to a fundamental feature of the legislation - Repeals / deletes language - Involves court making decisions for which it is not equipped

What is the effect of a declaration of incompatibility?

Not much - not binding on parties to the proceedings and it does not affect the validity of proceedings

What happens to the statutory defence 6(2) if a court uses its S3 power to read a provision compatibly?

It effectively vanishes - the court has interpreted the provision in a way which is compatible with the ECHR, creating a remedy for the applicant

Does a claimant get a remedy if a declaration of incompatibility is made under S4?

No - as the 6(2) defence remains in place

What remedies are available for an applicant, if the offending legislation is read compatibly under S3?

Section 8 remedy - any relief or remedy or order which is just and appropriate normal range of remedies: damages, declarations, injunctions, quashing orders, prohibitory orders, mandatory orders

What does Section 10 HRA say that should happen after a S4 declaration of incompatibility?

if there are compelling reasons - relevant ministers can take expedited remedial action standard procedure - draft amending order is laid before Parliament for 60 days before approval by both Houses urgent cases - order can be laid for approval by Parliament after it is made

What does Article 1 ECHR say about jurisdiction?

Rights secure to anyone in the jurisdiction - you do not need to be a citizen sometimes extra-territorial jurisdiction can be found - if the state has 'effective control' of the relevant territory

What does Article 15 ECHR say about derogation?

It explains when states can opt out of certain rights protected by the ECHR: War, public emergency threatening the life of the nation not for article 3, 4 and 7