Public Law L5 - Intro to human rights

Question 1

What did the HRA 1998 do in UK? (3)

Answer 1

It came into force in UK on 02/10/2000 and it incorporated the ECHR 1950 rights into UK domestic law, which meant these rights could now be enforced in the UK.

Question 2

What is meant by the UK has a dualist system? (3)

Answer 2

International law can only be enforced against the UK state where either:
1. A claim is made against it in an international court.
2. The UK has incorporated international rules into its domestic law by passing a statute. (HRA 1998).

Question 3

What are the three sections of the ECHR? (3)

Answer 3

Absolute rights, limited rights and qualified rights.

Question 4

What are Absolute rights? (4)

Answer 4

These are rights that cannot be legitimately interfered with by the state – article 3: prohibition on torture or inhuman or degrading treatment or punishment, article 4: prohibition on slavery and forced labour (applies to human trafficking), article 7: provides that there shall be no punishment without lawful authority,

Question 5

What are Limited rights? (4)

Answer 5

These rights can, in certain prescribed circumstances contained within the articles themselves, be legitimately interfered with by the state: article 2: the right to life, article 5: the right to liberty and security of person and article 6: the right to a fair trial and fair legal process.

Question 6

What are Qualified rights? (6)

Answer 6

Within articles containing qualifying rights, 1st paragraph sets out substantive rights and the 2nd paragraph sets out the circumstances by which the rights may be lawfully interfered with by the state. 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 assembly and association.

Question 7

What requirements must the state meet generally to interfere with a Qualified right? (3)

Answer 7

1. The interference was prescribed by, or in accordance, with the law.
2. The interference was in pursuit of a legitimate aim.
3. The interference was necessary in a democratic society.

Question 8

What is important for UK courts to take into account when making judgments about the correct interpretation of the ECHR protections? (3)

Answer 8

The concept of positive obligation, the margin of appreciation doctrine and the principle of proportionality

Question 9

What is meant by positive obligation? (1)

Answer 9

The state can in some circumstances, be under a duty to prevent the violation of human rights being carried out by the relevant non-state actors.

Question 10

What is the margin of appreciation? (2)

Answer 10

The doctrine reflects the subsidiary role of the ECHR in protecting human rights. The responsibility for the protection for human rights lies with the contracting states parties themselves.

Question 11

What is the doctrine of the margin of appreciation based on? (3)

Answer 11

The assumption that contracting states have a better knowledge of the political, social and cultural traditions that influence their countries than the ECHR does, and this should be respected. However, the exercise of state discretion is still subject to the ultimate supervision of the ECtHR.

Question 12

How does the ECtHR use proportionality? (3)

Answer 12

It employs slightly different variations of the teste with respect to the articles when considering whether a fair balance has been struck between the state and the general community interests on one hand and the protection of individuals’ human rights on the other.

Question 13

What four key obligations did the HRA 1998 create that had a significant impact on UK domestic law?

Answer 13

• Section 2, HRA: in determining legal questions, including common law development, the courts must take into account relevant ECHR case law.
• Section 3, HRA: Legislation must be read and given effect (by the courts), so far as is possible, in a way that is compatible with ECHR rights.
• Section 4, HRA: If the above (s. 3) is not possible, the court may make a declaration of incompatibility.
• Section 6(1) HRA: It is unlawful for ‘public authorities’ (including courts and tribunals) to act in a way that is incompatible with Convention Rights.

Question 14

What is the mirror principle? (3)

Answer 14

The domestic courts should follow any clear and consistent jurisprudence unless there are special circumstances, or the decisions of the ECHtHR would compel a conclusion fundamentally at odds with the UK constitution.

Question 15

What is meant by dialogue between UK courts and ECtHR? (1)

Answer 15

legal reasoning on ECHR issues in UK courts should have an influence on Strasbourg, the process should not only apply in one direction.

Question 16

What does Section 6(1) state? (1)

Answer 16

It places an obligation on public authorities to act in a way that is compatible with Convention rights.

Question 17

What is classed as a public body under Section 6(3)? (2)

Answer 17

(a) A court or tribunal, and
(b) Any person certain of whose functions are functions of a public nature

Question 18

What three types of bodies are recognised in Section 6? (3)

Answer 18

Core public bodies, hybrid or functional public bodies and private bodies.

Question 19

Who are core public bodies? (4)

Answer 19

central government departments, local authorities, the police, and the Inland Revenue (now HMRC).

Question 20

What should we consider when determining if a body is a core public body? (5)

Answer 20

(a) The possession of special powers
(b) Democratic accountability
(c) Public funding in whole or in part
(d) An obligation to act only in the public interest
(e) A statutory constitution.

Question 21

What should we consider when distinguishing a hybrid public authority as opposed to a private company? (4)

Answer 21

(a) The extent to which, in carrying out the function, the body is publicly funded.
(b) Exercising statutory power
(c) Taking the place of central government or local authorities
(d) Is providing a public service

Question 22

Should an applicant have standing to bring a claim under HRA 1998? (1)

Answer 22

Yes.

Question 23

What does section 7 (1) HRA state in regards to standing? (1)

Answer 23

An applicant must show they are or would be a victim of the unlawful act.

Question 24

What does section 7 (7) HRA state in regards to standing? (1)

Answer 24

A person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention.

Question 25

What must happen for the article 34 victim test to be satisfied? (1)

Answer 25

Applicants must show they are directly affected by the state action.

Question 26

When can NGO's bring action or not? (2)

Answer 26

It cannot bring actions on behalf of people whose rights have been violated by a contracting state. It can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation.

Question 27

When may an indirect victim be an applicant? (2)

Answer 27

An applicant may be an indirect victim of a violation in exceptional circumstances, such as close relatives of a deceased person where complainants allege a violation of the right to life.

Question 28

When may an indirect victim without close relative status be given standing? (1)

Answer 28

If there is a particularly egregious violation of the ECHR

Question 29

What are the time limits for HRA 1998 claims? (4)

Answer 29

Actions under the HRA 1998 must be commenced within one year of the date of the act complained of. An extension of time may be granted in exceptional circumstances If the alleged violation is considered to be a continuing matter rather than a single incident, time will not start running until the violation ceases to operate. Stricter time limits apply from JR, if a HRA claim is being brough within a wider judicial review application.

Question 30

Is there a requirement of citizenship or residency to benefit from article 1 convention rights? (1)

Answer 30

No.

Question 31

In what circumstances may a person claim for acts that have occurred outside the geographical jurisdiction of the relevant contracting state? (3)

Answer 31

Matters arising from activities of diplomatic staff abroad, or when the state has effective control of the relevant territory due to military occupation or because the government of that territory had consented or acquiesced to the exercise of its powers.

Question 32

Under article 15 when may contracting states derogate from its obligations under the convention? (4)

Answer 32

In time of war or other public emergency threatening the life of the nation, to the extent strictly required by the exigencies of the situation. However, no derogation from article 2, 3 ,4.1 or 7, only article 2 if lawful act of war.

Question 33

What test is used under article 15? (1)

Answer 33

Proportionality test.

Question 34

What does article provide in regard to reservations? (2)

Answer 34

Any contracting states, at the time of signing or ratifying the ECHR, make its acceptance subject to a conditions, which limits or varies the application of the ECHR to that states.