Self-test questions: Human rights: the HRA/ECHR

By Victoria Ridler

Quiz Content

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. The Human Rights Act 1998 (HRA) is legislation that gives effect to:

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. In 1992 Julie was told by her employers (a council committee for school planning) that she could not wear anything with a religious symbol on it when at work. A few months later, Julie has quit her job but is convinced the decision not to allow her to wear anything with a religious symbol on it contravenes the right to freedom of religion as provided for in article 9 of the European Convention on Human Rights (ECHR), and so has decided to seek a legal remedy.

What is her best course of action?

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. When interpreting a Convention Right, the UK courts:

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. Emily is unlawfully residing in the UK and the government seeks to have her deported, however, in her home country she is likely to be tortured by the state for her political views. Which of the following best describes how the UK court is likely to respond to a claim that to extradite her would violate the prohibition on torture provided by article 3 of the Convention?

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. Emily is unlawfully residing in the UK and the government seeks to have her deported, however, in her home country she is likely to be tortured by the state for her political views. Which of the following best describes how the UK court is likely to respond to a claim that to extradite her would violate the prohibition on torture provided by article 3 of the Convention?

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. A public authority for the purposes of the HRA is described as including two categories: (i) core public authorities whose nature is governmental in a broad sense of that expression; (ii) and, hybrid public authorities, whose functions include functions of a public nature but are not 'governmental'.

The specific distinction between core and hybrid public authorities is described in:

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. The 'Gremlins', a local post-punk band, are seeking to make a claim under the HRA 1998 against the Church Council for the Parish of Brigadoon on the basis that the decision to cancel their gig in the church hall had breached article 10 (freedom of expression), article 9 (freedom of thought, conscience and religion), and article 14 (the prohibition against discrimination) of the Convention. The Church council regularly rented out the premises for all kinds of art and community events but had chosen to cancel their contract to rent out the hall to the Gremlins after a complaint from a parishioner that some of the lyrics of the Gremlin's songs had atheist overtones.

Why are the Gremlins likely to be unsuccessful in their claim?

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. Asma is an elderly woman who has had her accommodation at her care home terminated because her behaviour was found to have been disruptive. Her care home is owned by a private company, Sunset Village. However, the contract for her accommodation and care is between and Sunset Village and the local authority as the local authority has a statutory duty to provide Asma with accommodation and care. Asma is claiming the termination breaches Article 8 of the Convention (respect for his home).

Based on the facts given, which of the following best describes whether the termination of accommodation may be unlawful under the HRA?

(All facts and refence to statutory legislation other than the HRA 1998 and the ECHR are fictional.)
For an act to be unlawful under the HRA it must be attributable to a 'public authority'. This includes 'core' public authorities, as well as 'hybrid' public authorities (that is any person certain of whose functions are functions of a public nature). The facts in this scenario closely resemble those in YL v Birmingham City Council [2007] UKHL 27. In YL, a private care home provided accommodation to both private individuals as well as those whose fees were paid in full or in part by the local authority. In the case of those who were funded by the local authority the care home had a contract with the local authority to provide accommodation to those individuals. The local authority had a statutory duty to provide accommodation and care to the applicant.
The majority of judges decided that the services were provided on a commercial basis by a private party and distinguished this from the function of the local authority in making arrangements for accommodation and care for those who were entitled to it under statutory provisions. Lord Scott compared the services of the care home to other service offered to local authorities if they were running a care home themselves (such as cleaning services or catering and cooking services). The decision was controversial, and legislation was later changed to prevent care homes providing services under such circumstances from escaping accountability under the HRA. Despite the controversy and change to legislation, the principles used in determining whether the care home was a public authority is still considered good law.

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. Idris has recently received an eviction notice from his landlord. Although his landlord is not a public authority, Idris wishes to challenge the eviction on the basis that the requirements for evicting tenants, as set out in section 5 of the Happy Homes Act 2001, should be interpreted compatibly with article 8 of his Convention rights, and as such, the court should assess the lawfulness of the eviction based on a test of proportionality.

In relation to this scenario, which of the following statements are Correct?

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. George is a resident and patient at a privately-owned mental health hospital. The hospital is subsidized by the government and has coercive powers as provided by the Healthy Minds Act 1987 – including the power to detain patients. Due to ongoing disputes between George and some of the other patients, George has been put into solitary confinement for weeks at a time. George seeks to bring proceedings against the hospitable on the basis that his article 3 Convention right (prohibition of torture) has been violated.

Which of the following statements in true in relation to this scenario?

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. Advocates for Freedom of Expression (AFE), a non-governmental organisation, has applied for judicial review of recent legislation that has requires schools to assess and remove from their libraries books that are deemed to 'undermine' British values – including the 'British value' of patriotism. AFE argue this violates article 10 (freedom of expression) of the Convention.

Which of the following best describe whether AFE can bring forward a claim under the HRA 1998?

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. Which of the following best answers the question of whether the HRA 1998 has horizontal effect?

In it was affirmed in Campbell v Mirror Group Newspapers Ltd, [2004] UKHL 22 that '[t]he 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights' (at [132]). This case has been cited as an instance of the HRA having indirect horizontal effect. It incorporated the principles of article 8 and article 10 when assessing whether there had been a 'breach of confidence' (an existing tort) between a media company and an individual. Although proceedings under the HRA may only be brought where a person is a victim of an act of a public authority which they claim has infringed their Convention rights, the Courts, as a public authority, also have a duty to 'act compatibly with Convention rights' under section 6 of the HRA.
The courts duty under section is also given as a reason for finding the HRA has 'indirect' horizontal effect.

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. In R. (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 the lawfulness of an Order in Council (a form of primary legislation) was reviewed. The order had affirmed an earlier order removing the right of abode of Chagosians from the British Indian Overseas Territories (BIOT).

In relation to claims made under the HRA 1998, that the Order was unlawful due to infringements of Convention rights, the Court found that:

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. In A v secretary of state for the home department [2004] UKHL 56 the appellants argued that their indefinite detention under the Anti-terrorism, Crime and Security Act 2001 infringement their Conventions right to liberty and security (article 5).

Which of the following best summarises the courts findings?
Article 5 (Right to liberty and security) may be derogated from and is also a 'qualified' right – that is an interference may be found justified according to the qualifications as set out in the article. When a right is qualified, however, the Court can assess the qualification according to a test of proportionality.

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