Preliminaries Flashcards Preview

Human Rights > Preliminaries > Flashcards

Flashcards in Preliminaries Deck (14)
Loading flashcards...
1
Q

What are the statutory provisions and cases that determine if the person is a victim?

A

s7(1) only victims may bring a claim.

s7(7) to be a victim must comply with Article 34 ECHR.

Article 34: either a person (legal of factual: SUNDAY TIMES v UK), NGO or group of individuals.

KLASS v GERMANY: person must be directly affected.

2
Q

What are the time limits about bringing a claim?

A

s7(5); one year after alleged breach; extension where equity permits.

3
Q

What section sets out the types of body that a HR claim can be brought against?

A

s6(1): core.
s6(3)(b): hybrid.
s6(5): private.

s6(1): unlawful for pubic authorities to act incompatible.

s6(5): only the public part of hybrid bodies is bound.

4
Q

What cases help determine whether a body is core/hybrid/private?

A

POPLAR HOUSING: enmeshed activities.
WHEELER: need only one public function.

ASTON CANTLOW v WALLBANK: P/A is one where the nature is governmental in a broad sense: look at special powers, funding, accountability, constitution.

H&SC A 2008: care home always a public function.

5
Q

What is the jurisdiction limit?

A

Article 1 ECHR: anyone in state jurisdiction.

Bankovic v Belgium: includes military occupation, diplomatic staff.

6
Q

After preliminaries; does the action engage an ECHR right? Explain the right and then asses if there is a violation.

A

For the relevant article.

7
Q

In determining if there is a breach, which defences should be considered?

A

Act is unlawful (6(1)), unless:

s6(2)(a): body required to act in that way due to legislation; HOOPER: the key is to determine the legislation INTENDED to give rise to a duty.

s6(2)(b): body is acting to give effect to incompatible subordinate legislation (discretionary power and can chose to act).

(both include a failure to act: s6(6)).

8
Q

Is the issue going to amount to a s3 or s4 approach?

A

s3: so fat as possible to do so, read legislation to give effect in a way compatible with convention rights.
s4: declaration of incompatibility.

9
Q

s3 approaches are advocated in which cases?

A

R v A (Sexual History): Lord Steyn: sometimes nec. to adopt a linguistically strained reading; s4 is a last resort. Lord Hope: advocates more s4 due to paramount objective to uphold rights.

GHAIDAN v GODIN-MENDOZA: Lord Nichols: s3 should allow courts to read in words, otherwise it is a semantic lottery. Lord Roger: inserted words must go with the grain of the legislation.

10
Q

s4 approaches are advocated in which cases?

A

Bellinger v Bellinger: courts wont make decisions if has wide reaching social ramifications.

(& Lord Hope in R v A).

11
Q

What do academics say about these approaches?

A

NICOL 2004: the emphatic rejection of over-zealous interpretation in Anderson and Re S confirms the HOLD are now in favour of restricting s3 and availing more s4.

BUT: Criticised by Kavanagh: context.

12
Q

What remedies are available for a s3 approach?

A

Public body has no defence and so remedies are available:

s8: they must be just and appropriate.

13
Q

If s4 is used what remedies are available?

A

Public authorities may use a s6(2) defence.

No personal remedies are available, however:

s10(2): action must be taken by ministers to remove the incompatibility.

Schedule 2: sets out two routes; regular (60 days) and fast track.

In addition: in absence of remedial legislation a victim may take their claim to Strasbourg.

14
Q

What does s2(1) hold?

A

Courts must take into account past ECHR decisions.

ULLAHS CASE: shouldn’t depart from these unless necessary and upholding a future right.