Chapter 9 Self-test questions

. What type of legal instrument is the European Convention on Human Rights?

An international treaty

A form of non-legal rule

An Act of Parliament

. The European Convention on Human Rights was created under the auspices of which body?

The Council of Europe

The European Union

The United Nations

. Members of the Council of Europe may ratify the Convention subject to reservations. They may also derogate from the Convention. Match each of these actions with its appropriate definition.

Reservation

.

Derogation.

. Match each Article of the European Convention on Human Rights with its corresponding right.

Article 2

.

Article 3

.

Article 4

.

Article 5

.

Article 6

.

Article 7

.

Article 8

.

Article 9

.

Article 10

.

Article 11

.

Article 14

. Against whom may an action before the ECtHR be brought?

Any public authority

The State (e.g. the UK)

Another individual

. A party must have _______ all domestic remedies before petitioning the ECtHR.

. Which of the following is not a part of the approach to incorporation of the ECHR achieved by the HRA 1998?

The HRA has, by s 1, selectively incorporated parts of the ECHR into English law as 'Convention rights'.

The HRA gives the judges the power to declare domestic legislation incompatible with Convention rights.

The HRA obliges UK judges, so far as is possible, to interpret domestic legislation consistently with the Convention rights.

Where there is an incompatibility, the HRA obliges the government to introduce amending legislation within a given time period.

. What is the legal effect of a declaration of incompatibility?

There is a legal effect because the public authority defending the action will lose if the court issues a declaration of incompatibility.

There is a legal effect because the party bringing the action will win if the court issues a declaration of incompatibility.

There is no legal effect because the declaration does not affect the validity of the Act.

There is a legal effect because the declaration invalidates the Act in question.

. Secondary legislation that is incompatible with Convention rights may, in most instances, be annulled by the normal process of judicial review.

True

False

. Which of these courts in England and Wales has power to issue a declaration of incompatibility (select all that apply)?

The Supreme Court

The Courts Martial Appeal Court

The Court of Appeal

The magistrates court

The High Court

The County Court

. Which of these courts in Scotland has the power to issue a declaration of incompatibility (select all that apply)?

The Supreme Court

The High Court of Justiciary

The Court of Session

The Sheriff Courts

. Under s 206 of the ____________ (three words) Act 2006, the Welsh Assembly is obliged to legislate in accordance with Convention rights.

. Which of the following statements most accurately describes the obligation expressly imposed on the courts by s 3(1) of the HRA 1998?

Courts must, in so far as it is necessary to do so, interpret legislation so as to achieve consistency with the Convention rights.

Courts must, in so far as it is possible to do so, interpret legislation so as to achieve consistency with the Convention rights.

Courts must, in so far as it is reasonable to do so, interpret legislation so as to achieve consistency with the Convention rights.

Courts must, in so far as the plain meaning of the legislation allows, interpret legislation so as to achieve consistency with the Convention rights.

. Where a court is considering the effect of legislation passed after the HRA came into force, the dominant judicial approach to declarations of incompatibility indicates that they should be used only where the legislation under consideration shows, expressly or by necessary implication, an intention on the part of Parliament to legislate contrary to the HRA.

True

False

. The courts have identified each of the following as a technique that may be used to achieve a Convention-compliant interpretation – but which definition applies to which technique?

Translating

.

Reading down

.

Reading in

. The term 'margin of appreciation' refers to the range of discretion or 'room for manoeuvre' that the European Court of Human Rights is willing to grant to national authorities in meeting their obligations under the ECHR. The extent of the margin permitted will depend, among other things, on the nature of the rights involved.

True

False

. The 'textuality principle' is a principle of interpretation used by the EctHR – but what does it mean?

The court must have regard to the ordinary meaning of the terms of the Convention in its context and in the light of its object and purpose.

The court must, in interpreting the Convention, treat the text as a 'living instrument'.

The court must have regard to all relevant written texts (i.e. the Convention, other relevant treaties and its own judgments) in reaching a decision.

The court must adopt a teleological approach in interpreting the text of the Convention.

. The ECtHR may, in accordance with the Law of Treaties, find _____ terms when construing the Convention.

. Which of the following statements accurately reflect the impact of the HRA on the doctrine of precedent (select all that apply)?

The HRA s 5 expressly requires the superior courts (the Court of Appeal and the House of Lords) to overrule any precedent that creates a rule of law that is inconsistent with a Convention right.

The HRA has no impact on the operation of precedent.

The HRA s 3 requires the courts not to follow (so far as is possible) any authority on the meaning of a word or provision in an Act that would result in making that provision non-compliant with Convention rights.

The HRA s 6 has been interpreted to require courts to achieve consistency in respective of any substantive common law rule, that is, any rule created by precedent.

. Which of the following statements most accurately describes the extent of the UK courts' duty to consider or apply the decisions of the ECtHR?

The UK courts are bound to follow any decision of the ECtHR that is on point, subject only to any right to rely upon a 'margin of appreciation'.

The UK courts must 'take into account' all relevant decisions of the ECtHR in interpreting the Convention, but need not follow the court's approach.

The UK courts must follow the 'constant jurisprudence' established by the ECtHR through a succession of decisions, although individual decisions of the court are not binding.

The UK courts are free to disregard the jurisprudence of the ECtHR, by virtue of the 'free-standing model of incorporation' adopted by the UK.

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