Deck 9: Interpreting Statutes

Question 1

On what basis may an individual use the Human Rights Act 1998 (HRA) to ground a cause of action before a UK court?

Answer 1

The only direct cause of action permitted by the HRA is to enable a claimant (the 'victim' of a human rights infringement) to bring an action against a 'public authority' for the breach of a right protected by European Convention on Human Rights (a 'Convention right'). Whether or not a body constitutes a 'public authority' is thus critical in determining whether there will be a cause of action. 'Public authority' is a technical term under the HRA, though it is not defined by the Act. Case law indicates that the question is resolved by looking at the functions of the body in question: in exercising the powers that are being challenged, is it exercising a public function or service on behalf of the state, or in a manner equivalent to a function of the state? If so, it is likely to be a public authority for the purposes of the Act. The HRA cannot be the basis of a cause of action between private parties, though Convention rights may be relied upon indirectly in litigation between such parties. This can be achieved by the claimant bringing a claim based on a cause of action outside the HRA, and alleging a duty on the court, under s.6(1) HRA, to interpret the law consistently with Convention rights. So, for example, a claimant might proceed against a newspaper (a private body) using an existing cause of action, such as breach of confidence, and then argue that the courts' duty to act compatibly with Article 8 requires it to interpret the common law so as to find for the claimant.

Question 2

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

A) An Act of Parliament.
B) A form of non-legal rule.
C) An international treaty.

Answer 2

C

Question 3

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

A) The European Union.
B) The Council of Europe.
C) The United Nations.

Answer 3

B

Question 4

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.

A) At the time of signing the Convention, the State concerned reserves a position in which its laws are, to some extent, inconsistent with the Convention.
B) The State, in a time of war or other public emergency threatening the life of the nation, suspends a right (or rights) under the Convention for the duration of that war or emergency.

Question 5

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.
-Derogation.

A) At the time of signing the Convention, the State concerned reserves a position in which its laws are, to some extent, inconsistent with the Convention.
B) The State, in a time of war or other public emergency threatening the life of the nation, suspends a right (or rights) under the Convention for the duration of that war or emergency.

Question 6

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 2.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 7

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 3.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 8

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 4.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 9

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 5.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 10

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 6.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 11

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 7.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 12

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 8.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 13

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 9.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 14

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 10.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 15

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 11.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 16

Match each Article of the European Convention on Human Rights with its corresponding right.
-Article 14.

A) The right to life.
B) The right not to suffer torture or inhuman and degrading treatment.
C) The right against slavery.
D) The right to liberty.
E) The right to a fair trial.
F) The right not to be punished retrospectively.
G) The right to protection of private life.
H) The rights to freedom of conscience and religion.
I) The freedom of expression.
J) The freedom of association.
K) The right to be free of certain types of discrimination.

Question 17

Against whom may an action before the ECtHR be brought?

A) Any public authority.
B) Another individual.
C) The State (e.g. the UK).
C) The State (e.g. the UK).

Question 18

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

Question 19

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

A) The HRA has, by s 1, selectively incorporated parts of the ECHR into English law as 'Convention rights'.
B) The HRA obliges UK judges, so far as is possible, to interpret domestic legislation consistently with the Convention rights.
C) The HRA gives the judges the power to declare domestic legislation incompatible with Convention rights.
D) Where there is an incompatibility, the HRA obliges the government to introduce amending legislation within a given time period.

Question 20

Briefly explain, in your own words, the concept of proportionality.

Question 21

What is the legal effect of a declaration of incompatibility?

A) There is no legal effect because the declaration does not affect the validity of the Act.
B) There is a legal effect because the declaration invalidates the Act in question.
C) There is a legal effect because the party bringing the action will win if the court issues a declaration of incompatibility.
D) There is a legal effect because the public authority defending the action will lose if the court issues a declaration of incompatibility.

Question 22

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

Question 23

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

A) The Court of Appeal.
B) The High Court.
C) The Supreme Court.
D) The County Court.
E) The magistrates court.
F) The Courts Martial Appeal Court.

Question 24

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

A) The Court of Session.
B) The High Court of Justiciary.
C) The Supreme Court.
D) The Sheriff Courts.

Question 25

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

Question 26

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

A) Courts must, in so far as it is reasonable to do so, interpret legislation so as to achieve consistency with the Convention rights.
B) Courts must, in so far as the plain meaning of the legislation allows, interpret legislation so as to achieve consistency with the Convention rights.
C) Courts must, in so far as it is possible to do so, interpret legislation so as to achieve consistency with the Convention rights.
D) Courts must, in so far as it is necessary to do so, interpret legislation so as to achieve consistency with the Convention rights.

Question 27

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.

Question 28

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?

Question 29

What arguments may be used in favour of an 'expansive' approach to interpretation under s 3 of the HRA?

Question 30

What arguments may be used in favour of a 'restrictive' approach to interpretation under s 3 of the HRA?

Question 31

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.

Question 32

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

A) 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.
B) 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.
C) The court must adopt a teleological approach in interpreting the text of the Convention.
D) The court must, in interpreting the Convention, treat the text as a 'living instrument'.

Question 33

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

Question 34

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

A) The HRA has no impact on the operation of precedent.
B) 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.
C) 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.
D) The HRA s 6, by implication, requires courts to achieve consistency in respective of any substantive common law rule, that is, any rule created by precedent.

Question 35

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

A) 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.
B) 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'.
C) 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.
D) 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.

Question 36

Where a UK court is confronted by a conflict between a recent ruling of the ECtHR and an inconsistent but binding (under normal principles) UK precedent, which post-dates the passing of the HRA, the UK court should adopt the reasoning of the European Court decision.