Public law

EUROPEAN CONVENTION ON HUMAN RIGHTS/HUMAN RIGHTS ACT 1998

When answering a question in which someone wishes to challenge a decision or action as in breach of human rights, it is necessary to apply the whole of the Human Rights Act 1988, and not just the Convention Articles to the situation given.

The following is an outline structure of the topics that need to be considered, and as appropriate, applied to the scenario

Introduction;

SECTION 2(1) DUTY on UK Courts TO TAKE INTO ACCOUNT decisions of ECHR.

Explain what this means in practice?

SECTION 3(1) INTERPRETATIVE OBLIGATION - primary and subordinate legislation

Explain this section by use of case law and judicial quotes.

Very Briefly explain;

SECTION 4 DECLARATION OF INCOMPATABILITY and SECTION 10 AMENDING LEGISLATION.

Main body of the coursework;

Section 6 PUBLIC AUTHORITY - consider what constitutes a ‘public authority’ and, what is the statutory definition. Refer to case law on this point and any relevant judicial quotes.

Then apply the law/cases to the facts of the coursework question.

Section 7 – Discuss victim status – who can bring a claim and why. What does the statute provide? What has the statute been interpreted to mean? Illustrate with case law. Apply this to the question.

CONVENTION ARTICLES

Identify the relevant articles. Are they; ABSOLUTE, CONDITIONAL or QUALIFIED – explain these concepts. If qualified you must discuss para. 2 of the relevant articles in detail and relate to the scenario facts. You must consider the following concepts/principles; "in accordance with the law" and "necessary in a democratic society" for the ‘legitimate purposes’. E.g. of a legitimate purpose is "for the protection of health or morals". How have these provisions been interpreted by the ECHR and/or the UK courts?

These concepts are explained fully in the notes, cases and tutorial you should complete before the coursework. You must also read UK cases on human rights issues or ECHR law reports and note in particular how these courts deal with qualified articles. You must then apply the principles of these cases to the scenario facts. PROPORTIONALITY – this is an important concept to explain, discuss and apply to the scenario facts illustrated by case law.

Does the doctrine of the MARGIN OF APPRECIATION apply? If so (and it may not be in some cases) explain this and how it does apply to the coursework question.

Application of the law to the scenario facts is very important to achieving good grades.

Conclusion

In light of the above what remedies may be available? What is your conclusion on the scenario facts having applied all the above. Remember to consider what the question is asking you to do. i.e discuss s.8 remedies.