1. HUMAN RIGHTS: PRELIMS, INTERPRETATION, INCOMPATIBILITY & REMEDIES

Question 1

HUMAN RIGHTS: PRELIMINARIES

Answer 1

For a HR claim to be brought, numerous requirements must first be met:

• STANDING
• TIME
• JURISDICTION
• PUBLIC AUTHORITY

Question 2

HR: Prelims - STANDING

Answer 2

To bring a claim, C must be a “victim” (s.7(1) HRA 1998) as defined in Art 34 ECHR (s.7(7) HRA 1998).
- a victim can be a “person, non-governmental organisation or group of individuals (Art 34 ECHR) which is DIRECTLY AFFECTED by a public authority’s actual/potential breach of an ECHR right (Klass v Germany)

Question 3

HR: Prelims - TIME

Answer 3

An action must be brought within 1 YEAR of the breach being committed (s.7(5) HRA 1998)
- in EXCEPTIONAL cases, the court may grant an extension beyond 1 year where it it “equitable” to do so.

Question 4

HR: Prelims - JURISDICTION

Answer 4

The breach must have been committed with the UK’s jurisdiction (Art 1 ECHR)

Question 5

HR: Prelims - PUBLIC AUTHORITY

Answer 5

GR: it is unlawful for a public authority to act in a way which is incompatible with an ECHR right (s.6(1) HRA 1998)

• EX 1: where primary legislation requires a public body to act in contravention of the ECHR right (s.6(2)(a) HRA 1998)
• Ex 2: where the public body was acting to give effect to provisions of primary legislation which could not be interpreted to comply with the ECHR (s.6(2)(b) HRA 1998)
• “act” also includes a failure to act (s.6(6) HRA 1998)

There are TWO types of public body:

• CORE PUBLIC BODIES
• HYBRID (“FUNCTIONAL”) PUBLIC BODIES

Question 6

HR: Prelims - Public Authority: CORE PUBLIC BODIES

Answer 6

handled in (s.6(1) HRA 1998)

TEST: the body must demonstrate the following features (Aston Cantlow v Wallbank)

• is FUNDED wholly/partially by PUBLIC FUNDS
• possesses SPECIAL POWERS
• is democratically accountable
• has a duty to act in the PUBLIC INTEREST
• derives its POWER/EXISTENCE from statute.

Courts and tribunals are included here (s.6(3)(a) HRA 1998)
- courts must only take into account convention rights where they are relevant to the case in hand (Thompson and Venables v NewsGroup International)

Question 7

HR: Prelims - Public Authority: HYBRID (“FUNCTIONAL”) PUBLIC BODIES

Answer 7

Handled by s.6(3)(b)

Def: any body which performs FUNCTIONS of a “public nature” (s.6(3)(b) HRA 1998)

• The fact that the body is performing a function which a public body would be obliged to perform will NOT NECESSARILY mean that it is acting publically (Poplar Housing Association v Donoghue)
• “Public function” is interpreted widely (Aston Cantlow v Wallbank)

TEST: the following factors should be balanced (Aston Cantlow v Wallbank)

• the extent to which the body receives PUBLIC FUNDING
• – a lack of public funding means more likely to be regarded as PRIVATE (YL v Birmingham CC)
• Whether the body is acting IN LIEU of a governmental/local authority
• Whether the body is exercising POWERS under statute
• – exercising powers delegated by a public body does not constitute powers under statute (R(Heather v Leonard Cheshire)
• Whether the body is providing a PUBLIC SERVICE.
• – if it is doing so in any way, it will be a HYBRID PUBLIC BODY UNLESS the particular action being performed is PRIVATE IN NATURE. In which case the body will be private (s.6(5) HRA 1998; R(Weaver) v London and Quadrant Housing)

EGs: Housing associations performing a public role (Poplar Housing Association v Donoghue). PRIVATE care home providers performing work for public bodies (s.145 Health and Social Care Act 2008; R(Weaver v London and Quadrant Housing cf. R(Heather) v Leonard Cheshire Foundation).

Question 8

HR: COMPATIBILITY and INTERPRETATION

Answer 8

Where there has been a breach of an ECHR right, the court will FIRST attempt to interpret the legislation under which the statutory authority was actin in such a way as to make it compatible with the ECHR right using s.3 HRA. If this is impossible, the court should issue a DECLARATION OF INCOMPATIBILITY under s.4 HRA.

Question 9

HR: Compatibility and Interpretation: INTERPRETATION

Answer 9

s.3 HRA

GR: the court should interpret the legislation AS FAR AS POSSIBLE to make it compatible with ECHR rights (s.3(1)

There is a debate as to how far this interpretative obligation can be used:

• the court should adopt a WIDE interpretative approach to achieve compatibility to the extent that the language of ambiguous legislation can be “strained” to give it an alternative meaning (R v A(Complainant’s Sexual History) (No. 2) per Lord Steyn)
• – NB, Lord Hope, the minority in the same case, objected to the extreme nature of this approach as it effectively gives the court power to re-write law.

The interpretation must NOT do any of the following (Ghaidan v Godin-Mendoza):

• remove or rescind the legislation’s language
• be inconsistent with a fundamental feature or cardinal principle of the legislation
• completely alter a provision’s substance
• go against the legislation’s grain
• require a court to make a decision which it is not equipped to make
• reverse the legislation’s meaning

The court is unlikely to interpret legislation in a way that will have serious repercussions which it is “not equipped to evaluate” (Re S(Children) and Re W(Care Orders) per Lord Nicholls)

The meaning of a statutory provision will be the meaning that parliament would R understand that provision to have, takin into account the presumption that Parliament intended the statute to comply with ECHR (R(Wilkinson) v IRC)

The Court may read words INTO the statute if NECESSARY (Pinnock v Manchester CC)

Question 10

HR: Compatibility and Interpretation - INCOMPATIBILITY

Answer 10

DECLARATION OF INCOMPATIBILITY (s.4 HRA)

Where a provision is incompatible with an ECHR right, the court will make a declaration of incompatibility (s.4(2) HRA)

The following provisions were incompatible with convention rights

• s.11(c) of the Matrimonial Causes Act 1973 (Bellinger v Bellinger)
• s.23 of the Anti-Terrorism, Crimer and Security Act 2001 (A and Others v SoS HD)
• s.29 of the Crime (Sentences) Act (R(Anderson) v SoS HD)

Public authorities may appeal to have a decision to make a declaration of incompatibility overturned ( R(H) v SoS HD)

Question 11

HR: REMEDIES

Answer 11

Whether the victim CAN obtain a remedy depends on whether the court has successfully interpreted the legislation in line with the ECHR or whether it is has made a Dec of Incomp.

S.3 INTERPRETATION
- if the legislation CAN be interpreted in line with ECHR, the authority WILL have acted UNLAWFULLY (s.6(1) HRA)
- the victim is entitled to a remedy which the court considers “just and appropriate” (s.8(1) HRA)
DAMAGES
- may only be awarded by a court which has the power, in civil proceedings, to award damages OR order the payment of compensation (s.8(2) HRA)
- a court may ONLY award damages where it is satisfied that it is necessary to afford “just satisfaction” to the victim (s.8(3) HRA)
- the court must take into account the principle applied by the European Court of Human Rights when deciding whether to award damages and what amount should be awarded (s.8(4) HRA)

S.4 DEClARATION OF INCOMPATIBILITY

• if the legislation CANNOT be interpreted in line with the ECHR, the court will. make a s.4 Dec of Incomp and the public authority will have a DEFENCE under s.6(2) HRA.
• NO REMEDY will be available for the victim
• Fast-Track Amendment Procedure (s.10 HRA)
• – a minister MAY amend the legislation to remove the incompatibility where compelling reasons to do so exist (s.10(2) HRA; R(H) v Mental health Review)