10 - Human Rights Act 1998: ECHR in the UK Flashcards
What are the main sections of the Human Rights Act 1998, and how do they incorporate and enforce the Convention rights?
Section 1: Incorporates and gives effect to the Convention rights listed in Schedule 1 of the HRA 1998, excluding Articles 1 and 13. Article 1 (obligation of states to secure rights within their jurisdiction) and Article 13 (right to an effective remedy) are excluded because the HRA 1998 itself ensures those rights are secured and provides effective remedies for their breach.
Section 2: Domestic courts must ‘take into account’ judgments of the ECtHR but are not bound to follow them.
Section 3: Requires that primary and subordinate legislation, both past and future, must be read and interpreted in a way that is compatible with Convention rights ‘so far as it is possible to do so’.
Section 4: The High Court and higher courts may declare an Act of Parliament incompatible with Convention rights. Such a declaration does not affect the validity or enforcement of the legislation.
Section 6: It is unlawful for public authorities (including courts) to act in a way that is incompatible with Convention rights unless they are bound by an incompatible statute.
Section 7: A person who claims that a public authority has acted contrary to s 6 can bring proceedings or rely on the Convention right in any legal proceedings if they are a ‘victim’ of the unlawful act.
Section 8: Courts may award damages in civil proceedings if necessary to ‘afford just satisfaction’ to the injured party for the unlawful infringement of a Convention right by a public authority.
Section 10: Provides a ‘fast-track’ process for changing legislation where UK courts or the ECtHR find UK legislation in breach of the Convention. The Government can make a ‘remedial order’ to change the law, which is subject to parliamentary approval under the affirmative procedure.
Section 19: A minister introducing legislation must make a written statement declaring that the bill is compatible with Convention rights or explain why they are proceeding without such a statement.
What is the significance of the “positive obligation” principle developed by the ECtHR in relation to human rights violations by non-state actors?
The “positive obligation” principle requires the state to actively prevent human rights violations by non-state actors.
This contrasts with a “negative obligation,” where the state must refrain from interfering with rights.
Positive obligations can be fulfilled by enacting laws that prohibit, deter, and punish individuals who violate Convention rights.
Example: X and Y v The Netherlands – The lack of criminal sanctions allowed a man to evade conviction for assaulting a girl with learning difficulties, breaching Article 8.
In Osman v UK, the court held that the state has a duty to take reasonable preventive measures if it knows or should know of a “real and immediate risk” to life from a third party. However, in this case, no breach of Article 2 (right to life) was found as the police were not aware of such a risk to the Osman family.
What obligation does Section 2 of the HRA 1998 impose on UK courts regarding ECtHR case law, and how has this obligation been interpreted and evolved over time?
Section 2(1) HRA requires that courts “take into account” relevant ECtHR case law when determining any question in connection with a Convention right.
- In R (Alconbury Developments Ltd) v Secretary of State for the Environment, the House of Lords held that ECtHR case law is not binding, but courts should generally follow clear and consistent ECtHR jurisprudence unless there are special circumstances, or following the decision would result in a conclusion fundamentally at odds with the UK constitution.
- R (Ullah) v Special Adjudicator established the ‘mirror approach’, with Lord Bingham stating that courts must “keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”
- However, in R v Horncastle, Lord Phillips suggested that UK courts could depart from ECtHR decisions if they do not sufficiently appreciate aspects of the domestic legal process. This marked a shift towards a “dialogue” approach, allowing the UK courts to invite the ECtHR to reconsider its decisions when needed.
Provide an overview of how the Human Rights Act 1998 allow courts to handle declarations of incompatibility, and what is their impact?
Section 3: Requires courts to interpret UK legislation consistently with Convention rights ‘so far as it is possible to do so’.
Section 4(2): Gives the High Court and higher courts the power to declare legislation incompatible with Convention rights.
- A declaration of incompatibility does not affect the validity, continuing operation, or enforcement of the provision in question.
- It does not bind the parties to the proceedings.
- However, it creates political pressure on the Government to change the law to bring it into line with Convention rights.
What is the duty of UK courts under Section 3(1) of the HRA 1998 regarding the interpretation of legislation, and how has this been approached?
- Section 3(1) HRA provides that “so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.”
- This duty requires UK courts to interpret legislation in a Convention-compatible way to the extent that this is ‘possible’, with significant consideration needed as to how ‘far’ courts can go in any given situation.
- The use of s. 3 interpretation can also remove the s. 6(2) defence from a defendant.
Example: R v A (Complainant’s Sexual History): Lord Steyn endorsed a bold interpretation, even if linguistically strained, and implied a provision into s. 41 of the Youth Justice and Criminal Evidence Act 1999 to ensure compliance with Article 6, ECHR. He stressed that a declaration of incompatibility should be a “measure of last resort.”
Re S (Children) and Re W (Care Orders): Lord Nicholls cautioned that while courts can interpret statutes, they must not cross the line into amending statutes, especially if the changes have significant practical repercussions.
What are the limits on the courts’ power to interpret legislation under Section 3(1) of the HRA 1998?
While s. 3 imposes a strong duty on courts to interpret legislation compatibly with Convention rights, there are clear limits to this power:
Courts can:
- Interpret provisions even if the language is clear.
- Adopt linguistically strained interpretations.
- Read down language to narrow meanings or imply provisions to ensure Convention compatibility.
Courts cannot:
- Change the substance of a provision completely.
- Make changes that run counter to a fundamental feature of the legislation or its core purpose.
- Contradict or repeal provisions in the legislation.
- Make decisions for which courts are not equipped.
In Ghaidan v Godin-Mendoza, the House of Lords emphasised these limits, holding that while courts can read in words, they must not go “against the grain” of the legislation.
When can courts issue a declaration of incompatibility under Section 4 of the HRA 1998, and what are the consequences of such declarations?
Section 4 HRA allows courts to issue a declaration of incompatibility if they are satisfied that a provision of primary legislation is incompatible with a Convention right.
The power to make a declaration of incompatibility is available to the High Court and the appellate courts, but not to lower courts.
Key points:
- Courts have no power to strike down primary legislation due to the principle of parliamentary sovereignty.
- A declaration under s. 4 does not affect the validity, continuing operation, or enforcement of the provision.
- The power is discretionary, meaning courts may make a declaration but are not required to.
- Ministers are not legally obliged to amend the incompatible legislation, but the declaration carries political and moral weight.
Examples of declarations:
Bellinger v Bellinger: The Matrimonial Causes Act 1973 was found incompatible with Article 8 due to the lack of recognition for gender reassignment.
A and Others v Secretary of State for the Home Department: The Anti-Terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and 14 due to the disproportionate detention of suspected international terrorists without trial.
How does the Human Rights Act 1998 impact the actions of public authorities, and how does this relate to judicial review?
Section 6(1): Makes it unlawful for a public authority to act in a way that is incompatible with Convention rights unless they are bound by an Act of Parliament to do so or are enforcing or giving effect to incompatible primary or subordinate legislation (s 6(2)).
- This section is relevant in judicial review cases, as it adds a new ground of challenge based on the breach of a Convention right.
Example:
- In R (Beer) v Hampshire Farmers Market Ltd, the Court of Appeal ruled that ‘public body’ and ‘public authority’ are synonymous, meaning a decision-maker that is a public body under traditional judicial review principles will also be a public authority for the purposes of a Convention rights breach.
- This allows claimants to combine traditional grounds of review with a breach of Convention rights, as seen in R (Anderson) v Secretary of State for the Home Department, where the House of Lords issued a declaration of incompatibility under s 4.
- In R (Swami Suryananda) v Welsh Ministers, the court accepted that Article 9 (freedom of religion) was engaged but found the slaughter of a bullock to be a proportionate response to the spread of bovine tuberculosis.
How does Section 6 of the HRA 1998 distinguish between core and hybrid public authorities, and what are the implications of this distinction for liability?
Core public authorities are bodies that are inherently public in nature and are subject to Section 6(1) obligations for all their actions. Examples include central government departments, local authorities, the police, and HMRC. There is no definitive test, but the White Paper ‘Rights Brought Home’ lists examples of such authorities.
Hybrid public authorities are defined in Section 6(3)(b) as bodies that perform functions of a ‘public nature’. These bodies may be private in nature but will be liable under the HRA when performing a public function.
For hybrid authorities, there is no liability under the HRA for actions of a private nature (Section 6(5)), however, there is liability for actions which are private in nature.
In determining whether a function is public, Lord Nicholls in Aston Cantlow suggested considering factors such as:
- Public funding,
- Exercising statutory power,
- Replacing central or local government,
- Providing a public service.
Does the Human Rights Act 1998 apply to disputes between private individuals, and how does it extend Convention rights beyond public authorities?
The HRA 1998 does not expressly make it unlawful for private individuals to infringe each other’s Convention rights.
- For example, the right to respect for private life under Article 8 is aimed primarily at public authorities, so it might seem that cases between individuals are unaffected by the ECHR.
- However, courts are public authorities within the meaning of s 6 of the HRA 1998 and are therefore bound to apply the Convention.
- This results in a ‘horizontal effect’, meaning that Convention rights can influence cases between private individuals or entities, extending beyond the state-citizen (vertical) relationship. For example, Convention rights can impact cases involving privacy, even in disputes between private parties.
How does the Human Rights Act 1998 affect the judicial review of incompatible delegated legislation?
Section 6: Although courts are bound to apply Acts of Parliament that may be incompatible with Convention rights, judicial review can be used to challenge incompatible delegated legislation under s 6 of the HRA 1998.
For instance, in A v Secretary of State for the Home Department, the House of Lords quashed delegated legislation made under s 14 of the HRA 1998 for being incompatible with the ECHR.
Who has standing to bring proceedings for breach of Convention rights under the Human Rights Act 1998?
Section 7: A claimant can bring proceedings under the HRA 1998 only if they are a ‘victim’ of the breach.
- This means that the claimant must be directly and personally affected by the alleged breach of a Convention right.
- Pressure groups cannot bring claims for breach of Convention rights, as confirmed in R (Adath Yisroel Burial Society) v HM Coroner for Inner North London.
- However, the ECtHR has taken a more flexible approach in some contexts, such as in Verein KlimaSeniorinnen Schweiz v Switzerland regarding climate change litigation.
- Organisations can bring actions when their rights are directly violated, as shown in Liberty v UK, where the group successfully claimed a breach of Article 8 due to the interception of its communications.
- Organisations cannot bring actions on behalf of others, as in Re Northern Ireland Human Rights Commission, where the NIHRC did not have standing to challenge abortion laws.
What are the time limits for bringing a claim under the HRA 1998, and when can these limits be extended?
- Under Section 7(5) HRA, a claim must be brought within one year of the date of the act complained of.
- However, the court may extend this period if it considers it “equitable” in all the circumstances.
- Where the violation is ongoing, time does not start running until the violation ends, as clarified in O’Connor v Bar Standards Board.
- If the HRA claim is brought within a judicial review application, the stricter judicial review time limits will apply, as seen in Al-Saadoon v Secretary of State for Defence.
When can damages be awarded for breaches of Convention rights under the Human Rights Act 1998?
Section 8: A court may award damages for a breach of Convention rights if necessary to ‘afford just satisfaction’, taking into account ECtHR principles.
- many cases, there may be no need for damages if there is a common law cause of action (e.g., misuse of private information) under which damages can be awarded.
- In judicial review cases, the courts may find that a quashing order or other remedies, such as declaratory relief, provide sufficient just satisfaction without the need for damages.
What is the effect of Section 6(2) HRA on the liability of public authorities in relation to Convention rights?
Section 6(1) HRA makes it unlawful for public authorities to act in a way that is incompatible with a Convention right.
However, Section 6(2) provides a ‘statutory defence’ in two situations:
- 6(2)(a): The public authority had no alternative but to act in the way it did, due to the requirements of primary legislation.
- 6(2)(b): The public authority acted to enforce or give effect to provisions of primary legislation that cannot be interpreted in a Convention-compatible way.
This defence ensures that parliamentary sovereignty prevails where legislation imposes duties that conflict with Convention rights.
A state can be liable for acts that have occured outside of its jurisdiction.
How does the court handle cases where a public authority relies on the statutory defence under Section 6(2) HRA?
When a public authority uses the statutory defence under Section 6(2), the court will first attempt to interpret the statutory provision in a Convention-compatible way using its Section 3 powers.
- If successful, the public authority’s defence under Section 6(2) disappears, and the authority will be liable under Section 6(1).
- If not possible, the court may issue a declaration of incompatibility (DOI) under Section 4, and the public authority will retain its defence, meaning the claimant will not have an immediate remedy but can seek redress from the ECtHR.
