Human Rights and Civil Liberties - Public Law Practice Flashcards

Comprehensive practice flashcards covering the Human Rights and Civil Liberties lecture (Law 102/213), including HRA 1998 provisions, ECHR Articles, key domestic and Strasbourg case law, and themes of common law resilience versus statutory reform.

How is 'liberty' or 'freedom' historically defined in the UK system?

Something an individual is permitted to do because it is not expressly forbidden by law.

What are 'rights' according to Dr Tom Webb's lecture notes?

The entitlement to require or prevent action or decisions by reference to a legal rule.

What was the significance of the ruling in Malone v Metropolitan Police Commissioner (1979)?

It established that England is not a country where everything is forbidden except what is expressly permitted; if telephone tapping could be done without breaching the law, no specific power was required to justify it.

According to Wheeler v Leicester City Council [1985], what are negative liberties?

They are fundamental freedoms, such as freedom of the person and speech, that function as an immunity from interference by others rather than being based on express provisions.

What is the 'Transcendental' framework for protecting rights?

The belief that rights are given by a higher power (deity) and their legitimacy derives from beyond the earthly or temporal sphere.

Define 'Immanent' rights as discussed in the lecture.

Rights that are inherent in one's nature as a human being, deriving legitimacy from the quality of humans as conscious creatures.

What is John Rawls' 'veil of ignorance' theory?

A thought experiment asking what rules one would make for society if they knew nothing of their own characteristics, the characteristics of others, or the nature of the society they would live in.

Dworkinian Interpretivism defines rights based on what criteria?

What is the 'best fit' having regard to case law, statute, and society.

What are the two broad categories of rights mentioned in the notes?

1. Civil & Political (e.g., fair trial, privacy); 2. Economic, Social, and Cultural (e.g., education, healthcare).

Which specific Articles of the ECHR were given domestic effect by the HRA 1998?

Articles 2, 3, 5, 6, 8, 9, 10, 11, and 14, along with Protocol 1 (Articles 1-3).

What was the judicial view on incorporating the ECHR prior to the HRA 1998 in R v SSHD ex parte Brind [1991]?

The court held that judges did not have the means to incorporate the Convention into domestic law without Parliament's aid, and doing so would be a judicial usurpation of the legislative function.

What were the 'Four Reasons' provided for bringing rights home via the HRA 1998?

1. The Common Law was not enough; 2. Integration of ECHR with a 'British' contribution; 3. Closer scrutiny and greater efficiency; 4. Reducing the time and cost for citizens to argue for their rights.

What does Section 2(1) of the HRA 1998 require of UK courts?

Courts must 'take into account' judgments, decisions, and opinions of the European Court of Human Rights (ECtHR).

What is the 'Ullah principle' or the 'Mirror Principle'?

The duty of national courts to keep pace with Strasbourg jurisprudence as it evolves; they should not dilute or weaken the effect of the Strasbourg case law, but also provide 'no more, but certainly no less.'

When might the 'Mirror Principle' be set aside by a UK court?

If the ECtHR has misunderstood UK law, if the jurisprudence is inconsistent with UK constitutional arrangements, if the court thinks the ECtHR incorrectly decided a case, or if domestic consequences would be intolerable.

What does Section 3(1) of the HRA 1998 mandate regarding statutory interpretation?

Primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights 'so far as it is possible to do so.'

What is the limit of Section 3 interpretation defined in Ghaidan v Godin-Mendoza [2004]?

Courts should not adopt a meaning inconsistent with a fundamental feature or the 'underlying thrust' of the legislation.

What is a 'Statement of Compatibility' under Section 19 of the HRA 1998?

A written statement by a Minister before the Second Reading of a Bill stating that the Bill is compatible with Convention rights (or that the government wishes to proceed despite being unable to make such a statement).

Define a 'Declaration of Incompatibility' under Section 4.

A discretionary power for the court to declare that a provision is incompatible with a Convention right if primary legislation prevents the removal of that incompatibility.

What does Section 6(1) of the HRA 1998 declare unlawful?

It is unlawful for a 'public authority' to act in a way which is incompatible with a Convention right.

Who is considered a public authority under Section 6(3)?

Includes courts and tribunals, and any person certain of whose functions are of a public nature (hybrid authorities), but excludes the Houses of Parliament.

What 'factors' did Lord Nicholls identify in Parochial Church Council of Aston Cantlow v Wallbank for classifying a body as governmental?

Possession of special powers, democratic accountability, public funding, an obligation to act in the public interest, and a statutory constitution.

What was the outcome regarding private care homes in YL v Birmingham City Council [2007]?

The majority held that a private care home providing care via contract with a local authority was performing a private law contractual obligation, not a public function under s.6(3)(b).

To claim a breach of the HRA 1998 under Section 7, what status must a person have?

The person must be (or would be) a 'victim' of the unlawful act.

What are 'Absolute Rights' under the ECHR?

Rights that cannot be qualified or derogated from, even in public emergencies (e.g., Article 3 Prohibition of Torture).

What two questions are used to assess the legality of qualifying a right?

1. Was the limitation 'necessary in a democratic society'? 2. Was the way in which the right was limited proportionate to the aims being pursued?

How does 'Horizontal Effect' differ from 'Vertical Effect' in human rights law?

Vertical Effect involves individuals asserting rights against public authorities; Horizontal Effect involves individuals asserting rights against other private citizens or non-public authorities (often indirectly through the court's duty under s.6).

What is the 'Living Instrument' doctrine in ECHR jurisprudence?

The idea that the Convention is not static but must be interpreted in the light of present-day conditions to make safeguards practical and effective.

Define 'Margin of Appreciation'.

A doctrine allowing member states a degree of discretion to deviate from the Convention to account for their specific social, moral, or national security context.

What does Article 2 protect, and what are its exceptions?

It protects the right to life; exceptions include use of force that is 'absolutely necessary' for self-defence, effecting a lawful arrest, or quelling a riot.

Distinguish between 'Negative' and 'Positive' obligations under Article 2.

Negative: The State must refrain from illegal killing. Positive: The State must take reasonable steps to safeguard lives and conduct effective official investigations into deaths caused by state agents.

What are the three categories of treatment prohibited under Article 3?

1. Torture; 2. Inhuman treatment; 3. Degrading treatment.

In Ireland v United Kingdom [1979-80], which 'five techniques' were found to be inhuman and degrading but not torture?

Wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink.

What was the ruling regarding evidence obtained by torture in A (FC) v SSHD [2005]?

Evidence obtained by torture is inadmissible in British courts as a matter of constitutional principle, regardless of who inflicted it or where.

How did Article 8 impact the military in Smith and Grady v United Kingdom [2000]?

The absolute policy of discharging personnel based on sexual orientation was found to be an exceptionally intrusive interference with private life that lacked sufficient justification.

What is the difference between 'forum internum' and 'forum externum' in Article 9?

Forum internum (internal belief) is absolute; Forum externum (manifestation of belief) is qualified and can be limited.

What 'modest threshold' must a belief meet to be protected under Article 9 according to R (Williamson) v SS Education and Employment?

It must be consistent with basic standards of human dignity, possess an adequate degree of seriousness, and be coherent/intelligible.

Why is freedom of expression (Article 10) considered 'instrumentally' important in R v SSHD, ex parte Simms [2000]?

It promotes individual self-fulfilment, acts as a 'market' for truth, and is the lifeblood of democracy by informing debate and acting as a brake on the abuse of power.

What is the four-stage proportionality test established in Huang v SSHD?

1. Objective is sufficiently important; 2. Rational connection; 3. No more than necessary (least restrictive); 4. Fair balance between individual rights and community interests.

Which case established the 'golden thread' of the presumption of innocence in common law?

Woolmington v DPP (1936).

What common law principle did UNISON v Lord Chancellor [2017] reaffirm?

The constitutional right of access to justice, which is deeply embedded in UK law and not merely a recent import from Europe.

What was the significance of Entick v Carrington (1765)?

It established the principle of legality regarding the execution of warrants and the presumption of innocence under common law.

What has driven calls for a 'British Bill of Rights' to replace the HRA 1998?

Concerns regarding prisoner voting (e.g., Hirst v UK), 'Euro-scepticism,' perceived threats to parliamentary sovereignty, and the perception of 'undeserving litigants' abusing protections.

What was the conclusion of the Joint Committee on Human Rights regarding HRA reform during the pandemic?

They concluded there was absolutely no justification for the proposed changes, as the HRA respects Parliament and allows courts to enforce rights effectively.

How did Osborne v Parole Board [2013] describe the relationship between the HRA and common law?

The HRA does not supersede common law protection of human rights; human rights continue to be protected by domestic law, which is developed in accordance with the Act.