Chapter 7 End-of-chapter questions

Michael wants to bring a claim against a local nursing home for a breach of his convention right to not be subject to degrading and inhuman treatment. The nursing home is resisting his claim on the basis that it is not a public authority. Which of the following will NOT be relevant in determining whether the nursing home is a public authority for the purposes of this claim?

Whether the nursing home's performance of its function is regulated, supervised and inspected by the State

Whether the nursing home is funded by the State

Whether the nursing home is subject to any criminal sanction for any failure to meet required standards

Whether the nursing home has interfered with Michael's convention rights' proportionately.

John, a reality TV celebrity, brings a claim against a magazine for breach of contract after the magazine published sensitive pictures of his wedding. He explicitly agreed with the magazine that certain pictures would not be published. The judge in the case is now weighing up some submissions based on Article 8 of the ECHR. Which term best describes the principle that enables the judge to consider these submissions?

Vertical Effect

Horizontal Effect

Derogation

Margin of Appreciation.

Mary is suffering from a terminal illness and has expressed a wish to die. She would like her husband to assist her in carrying out this wish. For her husband's action to be lawful, she needs to overturn the current law on assisted suicide. In doing so, she mounts a public campaign to create a 'right to die' and considers the current state of the law entirely immoral. Which of the following is one reason the UK Supreme Court is unlikely to issue, as she wants, a declaration of incompatibility on the current Suicide Act 1961?

The case involves contested morality and such matters are best left to Parliament who can legislate after public consultation and debate. That being the case, the court will not seek to change the law.

It is not Mary but her husband that will be subject to criminal prosecution if he assists. He is the victim in this case and not Mary. Therefore, Mary is not entitled to bring the case.

That such a declaration can now only be issued by the European Court of Human Rights.

That as there is no such 'right to die' under the ECHR and therefore her case does not engage any of her rights under the Convention.

Sasha is alleging a breach of her convention rights by a local authority decision regarding her welfare payments. The authority maintain that they are prevented from deciding anything else due to provisions of subordinate legislation. The parent Act to these subordinate provisions did not prevent any attempt at removing/addressing any incompatibility with Convention rights. Sasha's solicitor wishes to write to the local authority to explain the relevant legal position. Which of the following answers describes the position the local authority should take?

To resolve the matter with Sasha, the local authority can disregard the provisions if it deems that the provisions breaches her human rights. The local authority can then uphold Sasha's rights.

To resolve the matter with Sasha, the local authority can issue a declaration of incompatibility under s.4 of the Human Rights Act and send it to Government and Parliament to address the incompatibility.

To resolve the matter with Sasha, the local authority must seek a court order from an appellate Court such as the Court of Appeal to permit it to ignore provisions of subordinate legislation. Upon receipt of the order, the Court can uphold Sasha's convention rights.

To resolve the matter with Sasha, the local authority must write immediately to the relevant Minister of the Crown who introduced the primary legislation into Parliament and request a prompt amendment to the provisions of the subordinate legislation.

Shannon and Victoria are first year law students studying for an English Legal System exam. They are trying to recall the case in which Lord Clyde outlined the traditional three-part approach to assessing proportionality. Which of the following is the case they are thinking of?

Ghaidan v Godin Mendoza [2004]

De Freitas v Permanent Secretary of Agriculture, Fisheries, Lands and Housing [1999]

YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs intervening) [2008] 1 AC 95

Ireland v United Kingdom [1978] (5310/071) ECHR 1

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