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20 Cards in this Set

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Type of Rights
Absolute = State cannot justify interference (Chahal v UK (1996). No Derogations (Article 15). E.G: Art 2, 3, 4.1, 7

Limited = Article confers rights in general terms, defines its limits, state has discretion on how to effect right. E.G. Article 5 & 6

Qualified = Article defines circumstances where state can interfere (prescribed by law, necessary, legitimate aim) E.G. Article 8-11
Margin of Appreciation
Establishes an interpretive obligation to respect varying cultural traditions of contracting states.
Functions as a standard of review that enables ECtHR to take a 'hands off' approach to certain issues where national courts are better placed to make assessment of proportionality.

Handyside v UK = "State authorities are in principle in a batter position than the international judge to give an opinion."

Breach of MOA depends on:
- Nature of right asserted (Goodwin v UK)
- Nature of justification - security and morality broader margin applies (Lawless v Ireland (NO3)
- Whether there is a consensus in Europe - less MOA

Hirst v UK = ECtHR made clear that a lack of European consensus was not in itself determinative and in certain forms of blanket interference could fall outside MOA.
Criticisms of MOA
ECtHR uses MOA to avoid ruling on acutely sensitive issues which involve political controversy.

Use as a standard of review controversial - applied carelessly and without clear guiding principles - means of avoiding proportionality analysis

Allows the court to evade its responsibility to articulate the reasons why its intervention in particular cases may/may not be appropriate

Lord Hoffmann - principle not taken far enough - it is 'constitutionally inappropriate' for an international court to determine domestic questions.
Prescribed by Law
Sunday Times v UK
- Law must be accessible
- Law must be sufficiently precise to enable citizen to regulate his conduct.

Includes primary and secondary legislation (Malone v UK (1984)).
Necessary in a Democratic Society
Society = 'pluralism, tolerance, broadmindedness' (Handyside v UK)

Necessity (Sunday Times v UK)
1) Corresponded to a 'pressing social need'
Dudgeon v UK - no pressing social need to criminalise sexuality
Leander v Sweden - state security was a pressing social need.

2) Proportionate
Soering v UK - "a search for a fair balance between demands of the general interest of the community and the requirements of the protection of the individuals."
No single test: Extent to which interference impairs the 'very essence' of a right; Blanket policy tend to be disproportionate (S & Marper v UK (2009)); Is less restrictive measures available? (Campbell v UK - should only open material likely to contain prohibited material)

(3) Relevant and sufficient reason for interference
Objective
Smith & Grady v UK - blanket ban on homosexuals serving in Armed Forces - no conclusion that this would adversely affect operational efficiency and morale.

Hirst v UK
Legitimate Aim
Must be directed towards an identified legitimate aim.

In Art 8-11, legitimate aims are set out in the second part of the Article.

Should be read with Article 18 of the Convention.
HRA S2
First interpretative obligation.

Any court or tribunal to take into account the jurisprudence of Strasbourg.
R (Ullah) v Special Adjudicator = NC must 'keep piece with ECHR jurisprudence'
Pinnock v Manchester CC = should "follow...clear and consistent line...which is not inconsistent [with UK law]."
HRA S3
Primary and secondary legislation must be read and given effect in a way which is compatible with convention rights 'so far as possible'

Applies even if not ambitious (R (Hurst) v Northern London District Coroner)

BUT doubt about precise extent of obligation
HRA S4
Declaration of incompatibly

Last resort (Ghaidan v Godon-Mendoza) - not obliged to make a declaration.

S4(5) - limits courts

S4(6) - effect of declaration
Parliamentary Sovereignty
NOT a Public Authority (S6(3))
Failure to legislate is not an act for purposes of S6(1) - Parl. can refuse to legislate.

Important when considering power ECtHR has over British Gov. and considering balance between judiciary and Parl.
Judiciary not elected.

Following declaration of incompatibility Parl. has power but not obliged to amend. HRA s10

S19 = Minister must state either Bill is compatible or not compatible but Gov. wishes to proceed.
Jurisdiction
Article 1 ECHR = Requires state to secure rights to 'everyone within their jurisdiction'

Everyone = no requirement of citizenship - applies irrespective of merit/status

Bankovic v Belgium (2001) - territorial

R (Al-Skeni) v SOS for Defence - effective control

State obligation to avoid sending people to where their HR would be breached (Soering v UK, Chahal v UK)
Horizontal Effect
Vertical claim under S6(1) impossible!!!

Bring other proceedings & rely on ECHR rights under S7(1)(B)

NO new cause of action between individuals - Wainwright v Home Office BUT s2 & 3 interpretation

Courts are PA - S6(3)(A)

Existing cause of action reflect ECHR by modification e.g. breach of confidence.
Vertical Claims
HRA s7(1)(A) bring an action against PA for breach of its S6(1) duty.

OR

Seek judicial review of decision of PA

HRA S8(1) - relief or remedies. Main remedy is a declaration that PA has breached ECHR. Damages for ECHR breach per se are only awarded if necessary to provide 'just satisfaction.'
Public Authority
HRA S6
- Must act compatibly with ECHR
- Can be subject to legal action by individuals for HRA breaches
- Cannot claim against another PA

S6(3)(A) - Court or tribunal YES
S6(3)(B) - Core & Hybrid YES
S6(3) - Parliament NO
Core Public Authority
Aston Cantlow v Wallbank [2003]
- Governmental in nature
- Special powers
- Democratic accountability
- Public funding
- Obligation to act only in the public interest
- Statutory Constitution
Hybrid Public Authority
Aston Cantlow v Wallbank [2003]
- Publicly funded
- Exercise statutory powers
- Taking place of central gov. or local authority
- Providing public service

Institutional test?
Donoghue v Poplar Housing [2001] = Not a PA because of function but because council members on Housing Authorities governing board
R (Heather) v Leonard Cheshire Foundation [2002] = Care home provider not a PA because care was controlled out to private body.
YL v Birmingham City Council = Care home not a PA but a commercial organisation.
Considerable uncertainty as to ambit of HRA
R (Weaver) v London & Quadrant Housing Trust [2009] - Fact sensitive but reasserts Aston Cantlow
Derogation

Article 15 - ECHR wants states to survive in times of emergency survival precedence over HR.
- Allows state to suspend operation of ECHR in limited circumstances
War or other public emergency
Greek Case (1969) = actual/imminent/effects whole nation
Lawless v Ireland (NO3) = exceptional crisis/threat to organised life
A v SSHD [2004] = threat following 9/11. Majority = public emergency but Lord Hoffmann = Hitler threatened life of nation but Al-Qa'ida did not.

Courts will allow States a MOA on assessing threat & courts accept that it is the responsibility of the Exec to assess a threat & take appropriate measures - Judicial deference.

Necessity implies proportionality between threat and derogation.
Brannigan & McBridge v UK = 6 & 4 day detentions proportionate to Article 5 breach.
Askoy v Turkey = 14 day detention & torture too long.
A v SSHD = indefinite detention far outweighed exigencies of situation.

S14 HRA - minister may make derogation order BUT ceases to have effect unless approved by Parl within 40 days & must be reviewed every 5 year.
Victim
HRA s7(1) = Victim
ECHR Article 34 = persons, non-governmental organ, group of individuals.

Directly affected by breach:
Sunday Times v UK: publisher, editor & journalists = victim
VO v France: declined whether a foetus is a victim
Aston Cantlow: obiter reference to Art 34

No need to suffer actual breach, providing there is a 'risk' - widens scope of victims considerably.
Klass v Germany: 'suspected' phone tap
Dudgeon v UK: gay men in Northern Ireland
Open Door & Dublin Well Women v Ireland - 'all women'
Ahmed v UK: individual trade unionists could be victims but their union, on facts, was not.

Indirect victim - problem where V cannot bring claim.
McCann, Savage & Farrell v UK: relatives allowed to claim.
Kelly v UK: parents
Osman v UK: widow & pupil both victims
R (Abbasi) v SOS for Commonwealth Affiars: Parents of detainee of Gunatanamo Bay
Bringing a Claim - S7 HRA
Claimant = Victim (S7(7)

Respondent = PA (S6(3) s7(1)(a))

Claim brought in time (S7(5))

Unlawful act occurred within jurisdiction
Time
S7(5) HRA

'Equitable'
Dunn v Parole Board - take all factors into account
Rabone v Pennine Care NHS Foundation Trust - including merits of case

No time limit for horizontal claims S7(1)(b)