Marks: 1 Which of the following was a key effect of the Human Rights Act 1998?
Choose one answer. A. A written constitution for the United Kingdom for the first time
B. A major constitutional change, since all rights under the European Convention on Human Rights became part of the law of the United Kingdom
C. An important constitutional change, since most of the rights under the European Convention on Human Rights became directly enforceable in domestic courts
D. None of the above, since the European Convention on Human Rights already bound the United Kingdom
E. Don't know
Feedback
The correct answer is (c).
Domestic courts were given jurisdiction to protect most (but not all) ECHR rights by the 1998 Act, whereas previously the courts had only been able to use ECHR rights as an interpretative aid when faced with an ambiguous domestic law. See Barnett Chapter 19 and the subject guide at 15.3.
Correct
Marks for this submission: 1/1.Question 2
Marks: 1 Which of the following is NOT among the requirements for bringing a claim to the European Court of Human Rights at Strasbourg?
Choose one answer. A. The application must be made within 6 months of the final domestic court decision
B. Available domestic remedies must have been exhausted
C. The applicant must be personally affected by the alleged violation
D. The application must be endorsed by the Council of Ministers
E. Don't know
Feedback
The correct answer is (d).
The European Court of Human Rights and the European Union are entirely separate entities, each with its own organs. It is vital that you understand the history of each and the distinction between them; every year, many students confuse the EU system and the ECHR system, with disastrous results in the examinations. See the subject guide at 15.1 and Barnett pages 500-505.
Correct
Marks for this submission: 1/1.Question 3
Marks: 1 When is it possible to derogate from ECHR rights?
Choose one answer. A. A derogation may be made from any Convention right except Articles 3, 4, 7 in times of war or public emergency; except that derogations from Article 2 may only be made in times of war
B. A derogation may be made from any Convention right, as long as the State doing so has a legitimate aim and the derogation is proportionate to that aim
C. A derogation may be made from any Convention right in times of war or public emergency, but only for a period of six months
D. A derogation may be made from any Convention right (except Articles 3 and 4) in times of war or public emergency
E. Don't know
Feedback
The correct answer is (a).
Article 15 of the ECHR limits permissible derogations even further: ‘In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. The legality of any derogation may be challenged: see Brogan v United Kingdom (1988) 11 EHRR 117
Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following ECHR articles is unqualified?
Choose one answer. A. Article 2, the right to life
B. Article 9, freedom of thought, conscience and religion
C. Article 6, the right to a fair hearing (trial)
D. Article 10, freedom of expression
E. Don't know
Feedback
The correct answer is (b).
The only absolute Convention rights are those under Articles 3, 4, 7 and 9. The other Articles contain express limitations or qualifying criteria. For example, freedom of expression under Article 10 can be restricted, but only where the restriction is one prescribed by law, and is necessary in a democratic society to pursue one of the legitimate aims listed in Article 10(2). Restrictions must be proportionate to their legitimate aims. You should also understand and be able to explain the effect of derogations, the margin of appreciation and restrictive interpretation of rights by courts; see 15.1 and 15.2 in the subject guide and pages 504-521 in Barnett.
Correct
Marks for this submission: 1/1.Question 5
Marks: 1 What is the effect of the Human Rights Act on domestic judges?
Choose one answer. A. They must interpret legislation and the common law in a manner which complies with Convention rights, and can declare a piece of legislation unconstitutional if it is impossible to interpret it in such a manner.
B. They must interpret legislation in accordance with Convention rights. If it is impossible to do so, they may make a declaration of incompatibility, but cannot render the legislation invalid. Where a case is based on common law, judges must also uphold Convention rights.
C. They must interpret primary legislation in accordance with Convention rights, and may issue a declaration of incompatibility if it is impossible to interpret it in such a manner. But judges may declare secondary legislation invalid if it breaches Convention rights.
D. They must interpret legislation in accordance with human rights, but have no specific duty to apply the Convention rights in common law cases.
E. Don't know.
Feedback
Feedback
The correct answer is (b).
Under s.3 of the Human Rights Act, courts must interpret primary and secondary legislation in accordance with the Convention rights, ‘so far as it is possible to do so.’ According to Lord Steyn in R v A [2002] AC 45, Section 3 may require courts ‘to adopt an interpretation which may appear linguistically strained.’ Declarations of incompatibility do not affect the validity of a statute; it is for Parliament to choose whether to amend the statute in question. Since courts are public authorities within the meaning of s.6, judges must also uphold Convention rights even when a case involves only common law.
Correct
Marks for this submission: 1/1.Question 6
Marks: 1 What is the doctrine of judicial deference?
Choose one answer. A. Another name for the concept of justiciability in judicial review.
B. Judges in the United Kingdom must defer to those in the European Court of Human Rights when interpreting Convention rights.
C. The judiciary are always careful to avoid offending politicians by making political judgments.
D. Judges treat some matters as being outside their own competence, and as issues to be determined by Parliament or the executive.
E. Don't know.
Feedback
The correct answer is (d).
Judicial deference is linked strongly to the doctrine of separation of powers, but judges must also take care to ensure that they are not so deferent that their duty to uphold Convention rights is compromised. For the relationship between justiciability and judicial deference, see Barnett at p. 531. (b) is incorrect since the Human Rights Act only requires judges to take Strasbourg jurisprudence into account, not to apply it in all cases.
Correct
Marks for this submission: 1/1.Question 7
Marks: 1 What is the constitutional status of the Human Rights Act 1998?
Choose one answer. A. It has a special protected status and can only be amended or appealed after a unanimous vote of both Houses of Parliament.
B. It has a special protected status and cannot be amended or repealed.
C. The same as any other Act of Parliament; it can be amended or repealed at any time.
D. Generally the same as any other Act of Parliament, but it could not be amended for five years after it came into force.
E. Don't know.
Feedback
The correct answer is (c).
Since legislation cannot be entrenched. However, it would be very difficult in practice for a future Parliament to repeal the 1998 Act, since there would be many adverse political and moral consequences of so doing.
Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers either to the reading in the subject guide or to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the extract from Hashman and Harrup v United Kingdom [2000] 30 EHRR 241, then answer the two questions (Q8 and Q9) that follow. Question 8
Marks: 1 Which of the following is NOT evident from Steel v UK [1998] and Hashman v UK [2000]?
Choose one answer. A. That there is an overlap between Articles 10 and 11 in relation to the right to protest.
B. That breach of the peace is not sufficiently well-defined to satisfy the requirement of ‘prescribed by law’ in Articles 10 and 11.
C. That freedom of expression can protect behaviour which shocks, offends, annoys or disgusts others.
D. Applying sanctions to a person for their part in a protest will be compatible with Article 10(2) only to the extent that it is proportionate to the need to maintain public order or to protect the rights and freedoms of others.
E. Don't know.
Feedback
The correct answer is (b).
Both cases find that breach of the peace is sufficiently well-defined; in Steel the violations of Article 5(1) were due to the arrest and detention of peaceful protesters who had not interfered with the rights of others.
Correct
Marks for this submission: 1/1.Question 9
Marks: 1 What was the basis of the violation of Article 10 on the facts?
Choose one answer. A. The applicants had not been convicted of any criminal offence, and so the restriction on their freedom was disproportionate.
B. The interference with freedom of expression was not ‘prescribed by law’ since the order imposed on the applicants was too imprecise to allow the applicants to know what it was that they were not allowed to do.
C. The right to protest is more important than the law of breach of the peace.
D. The interference with freedom of expression was not ‘prescribed by law’ since the order imposed on the applicants was based on common law, not statutory authority.
E. Don't know.
Feedback
The correct answer is (b).
A restriction on a Convention right cannot satisfy the requirement of ‘prescribed by law’ unless it is sufficiently precise to enable a citizen to foresee whether his conduct is likely to break the law.
Correct
Marks for this submission: 1/1.Please read this extract from the speech of Lord Hope in the case of Campbell v MGN [2004] 2 AC 457, then answer the two questions (Q10 and Q11) that follow. Question 10
Marks: 1 What is the proper balance of rights between Article 8 and Article 10?
Choose one answer. A. There should be no automatic priority of one right over the other, and the court should evaluate whether it is necessary in any given case to qualify the one right in order to protect the other.
B. The presumption is that freedom of expression takes priority, as recognised in s.12 of the Human Rights Act 1998; that presumption can be overturned by the specific facts of the case.
C. The presumption is that the right to respect for private life takes priority; that presumption can be overturned by the specific facts of the case.
D. Freedom of expression takes priority in matters of serious public concern.
E. Don't know.
Feedback
The correct answer is (a).
Section 12(4) does not create a priority of rights: the case for each right should be considered in full on the facts. On a different issue, see Cream Holdings v Banerjee [2004], however, for the current interpretation of s.12 (3) of the Human Rights Act: an injunction to prevent publication by the media of a matter of serious public concern is difficult to obtain. Prior restraint of the media via an injunction to prevent publication raises serious Convention concerns. The Cream case can be found in ‘Recent Developments’ for 2006.
Correct
Marks for this submission: 1/1.Question 11
Marks: 1 For Lord Hope, which factor tipped the balance from being relatively equal to being an intrusion into the claimant’s private life, and hence a violation of Article 8?
Choose one answer. A. The fact that photographs of the claimant had accompanied the published story.
B. The relevant provision of the Press Code, which stipulates that a person may have a reasonable expectation of privacy, even in a public place.
C. The grossly intrusive nature of the story, which revealed details of the claimant’s treatment for drug addiction.
D. The specific photographs of the claimant which had been published, in conjunction with the story.
E. Don't know.
Feedback
The correct answer is (d).
See paragraphs 123-124 of the judgment. However, the Press Code does recognise that long-lens photography is particularly intrusive; and the European Court of Human Rights has found violations of Article 8 in relation to the publication of photographs (see Peck v UK [2003] 36 EHRR 719).
Correct
Marks for this submission: 1/1.Application
Please answer the following examination questions:
Question 12
Marks: 1 Luella is the presenter of a late-night television programme. She has become a minor celebrity by going to a lot of high profile parties and having affairs with several other minor celebrities. She's always been pleased to co-operate with the media in posing for photographs and giving interviews. She becomes engaged to a television presenter, and they fly off to Barbados, without telling anyone, for a private holiday. Unfortunately they are recognized in their exclusive secluded beach hotel, and a photographer takes pictures of them from an adjoining property, with a long-lens camera. The pictures, which include semi-naked shots of her cavorting in the sea, appear in the Sunday Blurb with a story which details the couple’s wedding plans. The wedding plans were taken from the couple’s hotel room without their permission. Luella now brings a case to court under the Human Rights Act, stating that her "right to privacy" guaranteed under the European Convention on Human Rights has been breached.
Advise her.
Choose one answer. A. She should have taken a case to the Press Complaints Commission first, and so will not succeed in a privacy claim.
B. She may succeed in a case based on breach of confidence/misuse of private information, and receive damages.
C. The court is likely to find that the public right to know outweighs the couple’s right to respect for private life.
D. Luella’s previous willingness to appear in media publications means that she cannot succeed in a privacy claim.
E. Don't know.
Feedback
The best answer is (b).
There is no requirement that a claimant should first complain to the Press Complaints Commission and, in any case, the PCC has always not been supportive in such cases- see the example of Anna Ford v Daily Mail [2001]. There is a specific provision in the Press Code (3(ii)) which prohibits the use of long-lens photography, but there is no effective sanction for breaches of the Press Code. However, s. 12 of the Human Rights Act requires courts to have regard to the Press Code when weighing up freedom of expression against respect for private life. The court must weigh up the balance between the relevant Article 8 and Article 10 rights. Overall, recent cases both in the UK and in Strasbourg suggest that the combination of confidential information and intrusive photography in the facts of this question would allow Article 8 to prevail over Article 10, especially since there is no pressing need for the public to receive the information. Relevant cases include Campbell v MGN, Douglas v Hello!, Peck v UK.
Correct
Marks for this submission: 1/1.Question 13
Marks: 1 The following is a sample examination question. Without looking at the answer plans below, write your own plan to the question. Which of the answer plans below is the closest to yours?
“The Human Rights Act 1998 was carefully constructed in an attempt to achieve two seemingly contradictory aims: the guarantee of protection of rights and freedoms on the one hand and the preservation of the traditional balance of power under the constitution on the other.”
Choose one answer. A. A detailed discussion of all aspects and provisions of the Human Rights Act, including its history, and of the European Convention on Human Rights, with reference to as many examples from cases as possible. Current challenges for human rights, both in the UK and in the Strasbourg caselaw.
B. Outline of the Human Rights Act and the methods by which it renders the Convention rights enforceable in the UK, explaining how rights are guaranteed by the Convention and upheld by domestic courts, with reference to interesting and recent cases.
C. Effect of the Human Rights Act on parliamentary sovereignty and the separation of powers; scope of protection of rights under the Act; contrast with situation before 2/10/2000; key definitions (public authority, victim); role and interpretative duty of the courts; declarations of incompatibility (but not of invalidity); relevant caselaw.
D. Introduction to the European Convention on Human Rights and to the Human Rights Act 1998; discussion of whether the Human Rights Act can be entrenched in English law; whether the Human Rights Act is equivalent to a Bill of Rights; role of the courts and of parliament in relation to the Act; remaining inadequacies of the 1998 Act as a guarantee of Convention rights.
E. Don't know.
Feedback
(c) is the best choice.
(a) would produce a general essay which does not answer the specific question asked, and so will not achieve a good mark- this is a very common problem. Pre-prepared answers will rarely answer the question which is on the examination paper! (b) only answers the first part of the question, neglecting to evaluate the relationship between the Human Rights Act and the key constitutional concepts of parliamentary sovereignty and the separation of powers. (d) answers a completely different question (the extent to which the Human Rights Act is equivalent to an entrenched Bill of Rights and so, again, would not achieve a good mark. Precision and accuracy in analysing the question are absolutely vital in order to succeed in law examinations, and the ability to construct a good plan will help you to do your best under stressful conditions.
Correct
Marks for this submission: 1/1.
No comments:
Post a Comment