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Constitutional Law - 9 - Human Rights Act 1998 - Coggle Diagram
Constitutional Law - 9 - Human Rights Act 1998
Absolute rights
Articles 2, 3, 4, 7
Right to Life (2)
Prohibition of Torture (3)
Prohibition of Slavery (4)
Prohibition on retrospective criminal offence (7)
Can never be limited
LIMITED
Rights
Articles 5, 6
Right to Liberty and Security (5)
Right to a Fair Trial (6)
Can only be limited as the
article itself
provides
Eg article 5 can only be limited in specific listed cases and in accordance with legal procedures
Detention of criminals (court-found-guilty)
Detention of those who have failed to comply with Court orders
Detention of persons reasonably suspected of committing a criminal offence, or when it is
reasonably necessary
to prevent them committing an offence
Detention for prevention of
spreading disease
or those of
unsound mind
ALQ All from 2-7 except 5,6 are A
Qualified Rights
Articles 8-14 + Protocols 1.1,2,3 and Protocol 13.1
Can be
limited
by the state to pursue a
legitimate aim/interest
as
outlined
in a particular
article**
in
proportionate-necessary ways
Eg Limits on Article 10 - Freedom of Speech
Can be limited by law to the extent necessary in a
democratic society
to achieve
legitimate aims
, these being:
National security
Territorial integrity
Public safety
Prevention of disorder or crime
Protection of health or morals
Eg Limits on Article 11 - Freedom of Assembly and Association
Can be limited by law to the extent necessary in a
democratic society
to achieve
legitimate aims
, these being:
National security
Prevention of disorder or crime
Protection of health or morals
Protection of rights and freedoms of others
Proportionality and Restricting Qualified Rights - Restriction Must be NECESSARY
(MEMORISE)
Courts ask whether:
Important Objective: The goal and
legitimate aim pursued
must be
important enough to justify limiting a right
.
Rational Connection: The measure
must rationally and logically
help
achieve that goal
.
Minimal Impact: The measure
should only interfere with the right as much as needed
(no more than necessary).
Balance: The measure must be
reasonable
, considering the competing needs of both
the individual
and the
wider community
.
Judicial Deference, Necessity, and Proportionality
The more politically controversial the issue,
the more likely the courts will defer to Parliament
when
applying the proportionality issue
The
more deference shown
(from political controversy),
the less is needed to show a measure is proportionate
More deference may be shown eg in issues of
national security
Margin of Appreciation
For Qualified Rights, states may argue they have a
Margin of Appreciation
, giving them
discretion over the extent to which they can restrict a right
If there's a consensus among
member-states
, the Court gives
less freedom to the government
, applies the
proportionality and necessity
test more
sternly
.
Also considers
whether discretion was exercised carefully and in good faith
If there isn't a consensus,
the margin of appreciation
will be
broader
and state has more freedom in deciding
when to restrict
or
protect
tehe right
However, note
Derogation
can pause these rights (except for Absolute Rights)
Derogation is allowed in the event of war or other public emergency that threatens the life of the nation
Must only be
strictly to the extent necessary
by the situation
Article 14 - prohibits discrimination, including on 'other status', both direct and indirect
'Other status' is subject to 'living instrument principle' and is evolving
Article 14 claim CANNOT BE BROUGHT UNLESS IT IS ATTACHED TO ANOTHER BREACH OF A CONVENTION RIGHT
Unlike equality act
Very narrow margin of appreciation
Public Authorities and the HRA - IMPORTANT!
Section 6 of HRA makes
public authorities breaching convention rights unlawful
Effectively additional judicial review ground
Unlike normal cases,
HRA-based judicial review
must be brought within
1 year
of the breach, NOT
3 months
'Victim test'
Public authority:
Court, tribunal, or ANY PERSON WHOSE ACTIONS ARE OF A PUBLIC NATURE
Including
government agencies
and
local authorities
Does NOT include Commons or Lords
However,
public authority's acts cannot be found unlawful if:
It
could
not have acted any other way
WITHOUT VIOLATING an ACT OF PARLIAMENT
If the
primary
legislation couldn't be read in a way
compatible with Convention rights
and the public authority acted to
give effect to the legislation as it's set out
Typically Court would issue declaration of incompatibility here
Remember, court does its best to interpret legislation as compatible with the convention rights
Process for Correcting Incompatibilities with HRA - Important
Two fast-track procedures via
REMEDIAL ORDER
from
Minister
(Secondary Legislation, can amend both primary and secondary legislation)
Urgent procedure
Minister's remedial order takes effect immediately.
However,
must be laid before Parliament within 120 days
.
Both
houses
vote in
favour
= remains,
otherwise expires
after 120 days
Non-urgent procedure
Minister lays a
draft of remedial order
before Parliament.
Approved
by
both Commons and Lords
within
60 days = passed