5) HRA Intro Flashcards
1
Q
When did the HRA 1998 come into force in England and Wales
A
2nd Oct 2000
2
Q
When did the UK ratify the ECHR?
A
4th November 1950,
It came into force 3rd Sept 1953
3
Q
What sort of system does the UK have?
A
A dualist system.
4
Q
As the UK has a dualist system, when can international law be enforced?
A
If a claim is made against it to an international court
OR
The UK has incorporated international alw into domestic via statute
5
Q
Rationale for HRA 1998
A
Incorporate ECHR law into UK so standards and obligations could be enforced in domestic courts
= practical and efficient
6
Q
How many sections does the ECHR have?
A
Three sections
7
Q
Article 1 ECHR
A
(Section 1)
States must “secure to everyone within their jurisdiction the right and freedoms defined in the ECHR”
8
Q
Art 2 - 14 ECHR
A
Lists the rights and freedoms protected by Art 1
9
Q
Art 15 ECHR
A
Derogations
10
Q
Art 57 ECHR
A
Reservations
11
Q
What are the three categories of rights protected under ECHR?
A
- Absolute Rights
- Limited Rights
- Qualified Rights
12
Q
Article 3 of ECHR
A
= Absolute right
Prohibition on torture or inhuman or degrading treatment or punishment
13
Q
Article 4 of ECHR
A
= Absolute Right
Prohibition on slavery and forced labour; (it applies in relation to human trafficking.)
14
Q
Article 7 of ECHR
A
= Absolute Right
Provides that there shall be no punishment without lawful authority, with particular regard to retrospective criminalisation and punishment.
15
Q
Article 2 of ECHR
A
= Limited rights
The right to life
16
Q
Article 5 of ECHR
A
Limited Rights
Right to liberty and security of person
17
Q
Article 6 of ECHR
A
The right to a fair trial and fairl legal process
= Limited right
18
Q
Absolute rights
A
Rights that cannot be legitimately interfered with by the state
19
Q
Limited rights
A
Can in certain prescribed circumstances, contained within the articles be legitimately interfered with.
20
Q
Qualified rights
A
First paragraph sets out the substantive right, second lists the cirumstances by which they may be lawfully interfered with.
21
Q
Article 8 of ECHR
A
= Qualified Right
Right to respect for private and family life.
22
Q
Article 9 of ECHR
A
Qualified Right
Freedom of thought, conscience and religion.
23
Q
Article 10 of ECHR
A
Qualified right
Freedom of expression
24
Q
Article 11 of ECHR
A
Freedom of assembly and association
Qualified Right
25
Generally, to interfere with a qualified right under the ECHR, which criteria must be met?
1) Interference prescribed / in a**ccordance with the law**
2) In pursuit of a **legitimate aim**
3) **Necessary / proportionat**e in a democratic society.
26
What duty do UK courts have?
To take into account the relevant ECtHR case law
As per **s2 of HRA 1998**
27
What three principles have the UK courts incorporated and developed in the UK context:
1) Positive obligation
2) Margin of appreciation doctrine
3) Proportionality
28
Positive obligation
In some circumstances, the state can be under a duty to **prevent the violation of human rights** being carried out by **relevant non-state actors**
May be a positive obligation to **enact domestic law** that prohibits, deters or prevents individuals who commit violations
29
Case example demonstrating failure of positive obligation
**X and Y v The Netherlands**
Lack of specific criminal sanctions allowed man to evade conviction for sexual assault of girl with learning difficulties **breached article 8**
30
Osman v UK
**Positive obligation** for police to take **preventative measure**s to protect individual whose life was at risk from criminal acts of another.
No breach on the facts however
31
Osman v UK - obligation conditions
1) Est that authorities **knew or ought** to have known
2) Of **real and immediate** risk to life
3) of **identified individual**
4) from criminal **acts of third party**
5) **failed to take measures within their scope of powers**
6) might **reasonably have been expected** to avoid the risk
32
How must operational choices be made - Osman v UK
Priorities and resources..... therefore **positive obligation must not impose excessive burden**
33
Held in Osman v UK
Police could not have known the lives of the osman family were in real and immediate risk from shooter
**no breach of Art 2**
34
Rabone v Pennine Care
Not under a positive obligation to take reasonable steps to prevent a patient from committing suicide when being released from a psychiatric hospital on home leave.
Reliance = not formally detained under the Mental Health Act 1983
**Overturned by SC**
35
SC in Rabone v Pennine Care
Assumption of **responsibility and control** of patient .... admitted with suicide risk.
Should have detained patient as risk to life - failed to take reasonable steps to prevent real and immediate risk
**=breach of Art 2**
36
Margin of appreciation doctrine - roles in protecting rights
* Reflects the subsidiary role of the ECHR in protecting human rights
*** Primary responsibility = states**
37
Margin of appreciation doctrine
States allowed a **certain measure of discretion** when taking legislative, administrative, or judicial measures that restrict ECHR rights.
38
What assumptions is the margin of appreciation based on?
Contracting states have a better knowledge of the political, social, and cultural traditions that influence their countries than the ECtHR....
**Not unlimited** freedom
39
Handyside v UK
| Margin of appreciation
Interference with freedom of expressions (Art 10(1))
* Danish Sex Education
* The Little Red Schoolbook
ECtHR = **state authorities in a better position to give opinion on moral requirements / content.**
| Margin of appreciation
40
Does Art 10(2) give the contracting states unlimited power of appreciation?
No... **court is empowered to have final ruling** whether a restriction or penalty is reconcileable with Art 10
**Handyside v UK**
41
European supervision goes .... with domestic margin of appreciation
European supervision goes **hand in hand** with domestic margin of appreciation
42
Areas of application of margin of appreciation
- Morality and religion
- Public emergency
- National security
- Social, economic and environmental policies
43
Areas of less discretion with margin of appreciation
- A person’s existence or identity
- A person’s liberty
- Legal rights
44
Which cases does margin of appreciation apply?
EctHR cases only, not domestic cases
45
What principle does the case Soering v UK demonstrate?
Principle of proportionality = **fair balance** between general interests of the community and requirements of protection of individuals fundamental rights.
| Proportionality principle
46
What is a key principle of ECHR law?
Proportionality....
Expressly contained in qualified rights 8 - 11, art 2 .... and potentially others.
47
Principle of proportionality
Multifaceted, different variations
Balance between state / general community and individual rights.
48
Four key obligations under the HRA 1998
1) Courts must take into account ECHR case law **(s2 HRA)**
2) Legislation must be read in a way that is **compatible** with ECHR **(s3 HRA)**
3) Courts may make a d**eclaration of incompatibility** **(s4 HRA)**
4) Unlawful for "**public authorities" **to act in a way incompatible with Conv rights. ** (s6(1)**
49
Section 2 HRA
Courts must take into account ECHR case law that is relevant.
50
Section 3 HRA
Legislation must be read and give effect (by the courts) so far as possible in way **compatible with ECHR rights**
51
Section 4 HRA 1998
Can make a declaration of incompatibility
52
section 6(1) HRA 1998
Unlawful for public authorities (courts and tribunals) to act in a way incompatible with Convention rights
53
R (Alconbury Developments Ltd) v Secretary of State for the Environment
ECtHR case law is not binding, but **should follow any clear and consistent jurisprudence** unless there are special circumstances, or at odds with UK constitution
| margin of appreciation
54
R (Ullah) v Special Adjudicator
“The **duty of national courts is to keep pace** with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”
55
Mirror principle
Keeping pace with Strasbourg jurisprudence (no more, no less)
**R(Ullah) v Special Adjudicator**
56
Cases departing from **mirror principle**
R v Spear
R v Horncastle
57
R v Spear
HoL declined to follow ECtHR in relation to whether UK military courtmartial procedure was in line with Art 6.
| Departure from Mirror Principle
58
R v Horncastle
Departure from Strasbourg case law.
Increasingly involved **valuable dialogue** between court and Strasbourg.
| Departure from Mirror Principle
59
Key approaches in UK court determination
* Mirror
* Dialogue
**(increasingly dialogue)**
60
Legal reasoning for dialogue approach
UK courts should influence strasbourg - work in both directions.
61
Examples of dialogue cases
**Animal Defenders** International v UK
**R(Hicks)** v Commissioner of Police of the Metropolis.R
62
R (Haney and Others) v Sos for Justice
Usually hand in hand, more radically may decline to follow in hope of reconsideration
63
HRA section 6(1) public authorities
Includes:
Court or tribunal
Any person certain of whose functions are functions of a public nature....**(unless the nature of the act is private)**
64
Types of public authorities
* Core
* Hybrid
* Functional
**Private bodies - no liability under s6 HRA**
65
Core public bodies
= clearly, and inherently by their very nature, public authorities
* Liable for all their actions
eg LA, gov depts, police, HMRC.
66
Is there a test for core public authorities?
* No...
* The **White Paper "Rights Brought Home"** set out a list with broader guidance.
67
**Aston Cantlow** and Wilmcote with Billesley Parochial Church Council v Wallbank
HoL issued guidance on the scope of core public authorities.
(a) the possession of **special powers**
(b) **democratic accountability**
(c) **public funding** in whole or in part
(d) an obligation to act **only in the public interest**
(e) a **statutory constitution**
68
Factors relevant to determining a core public authority
(a) the possession of special powers
(b) democratic accountability
(c) public funding in whole or in part
(d) an obligation to act only in the public interest
(e) a statutory constitution
**Aston Cantlow - Lord Nicholls**
69
Functional / hybrid public authority
s. 6(3)(b), HRA 1998
Term ‘public authority’ includes ‘any person certain of whose functions are functions of a ‘public nature’.
70
Can a private body performing acts of a public nature be liable under the HRA in respect of that function?
* YES
* eg housing associations and social care.
* Outsourced functions
71
What did Aston Cantlow relate to
The repair of a church.
72
What should determine whether a body is a functional public authority?
The nature of the function.
Should be a "generously wide" interpretation - L Nicholls
Aston Cantlow
73
What factors are relevant in determining whether a functional public body?
a) the extent to which, in carrying out the function, the **body is publicly funded**
(b) exercising **statutory power**
(c) **taking the place** of central government or local authorities
(d) is providing **a public service**
**Aston Cantlow**
| **Aston Cantlow**
74
Is there a narrow or wide interpretation of public function?
Generously wide .... to promote human rights protection.
(Lord Nichollls)
75
Poplar Housing Association Ltd v Donoghue
An additional element to those under the Aston..... the **proximity of relationship between private body and delegating authority**
= so closely emeshed in Polar
76
Section 6(1) HRA 1998
Unlawful for public authorities to act in a way that is incompatible with Convention rights.
77
Section 7 HRA 1998
The Test for standing to bring claim under the HRA
78
Article 1 ECHR
Fundamental duty upon contracting states with regard to their jurisdiction
79
In Aston Cantlow what was held?
PCC was trying to enforce an obligation for repaira gains the lay recors.
THis was not a public function
Nothing to do with responsibilities owed to the public by the state
80
YL v Birmingham CC
Privately run care homes not functional public authorities for the purposes of th HRA.
* Private law contracts
* No public funding
* No special statutory powers
81
R(Weaver) v London and Quadrant Housing Trust
Housing association was found to be a hybrid public authority in relation to the actions it had carried out which impacted on Art 8 rights
Contrasted to YL v BCC
| More liberal line
82
What did the more liberal line in Weaver reflect?
Reflect specific statutory provision
s145 for the Health and Social Care Act 2008
s73 of the Care Act 2014 - reg care providers = public function
83
s73 of the Care Act 2014
Provides for registered care providers to be treated as exercising a public function.
84
Whn might private individuals be regulated in line with the Convention
Conduct may be regulated in a Convention compatible way under the **indirect horizontal effect of the HRA**
85
What must a person show under s7 to bring a claim
The claimant must show that they **have standing**
* they are a victim of an unlawful act
* Incorporates the victim test from Article 34 ECHR
86
What must a applicant show under s7(1)
* they are a victim of an unlawful act
* Incorporates the victim test from Article 34 ECHR
| Meaning that they **have standing**
87
Article 34 of ECHR
Court may receive applications from **any person, ngo or group** of individuals claiming ot be the victim of a violation..."
Must also show that they are **directly affected**
88
Can a victim be indirectly affected?
No, must be directly affected by the state action
**Klass v Germany**
## Footnote
Narrower test for "standing" than the "sufficient interest" test required for JR
89
Is the standing test under ECHR wider or narrower that that for Judicial Review.
Narrower test of standing than "sufficient" interest test in judicial review
90
What is meant by the applicant must be a person
Can be a natural or legal person, such as a corporate body, trade union and political parties.
**... Can only bring an action if their rights as an organisation have been violated**
**The Sunday Times v UK**
91
Can an NGO bring actions on behalf of people whose rights may have been violated by a contracting state?
No
eg **Re Northern Ireland Human Rights Commission** - did not have standing to challenge abortion law.
92
When can an NGO bring an action?
When it can claim that a state is violating the rights it enjoys as an organisation.
**Liberty v UK** interception of comms = unfettered discretion of MoD ad breached Art 8
93
Indirect victim
In exceptional circumstances, **close relatives of a deceased person** where complainants allege a violation of the right to life can make a claim.
94
Centre for Legal Resources on behalf of Valentin Campeanu v Romania
| 18
18 year old who was HIV and suffereda mental disability.
Claim lodged by CLR an NGO
A very exceptional case where claim was lodged as indirect victim, although not directly a victim.
95
Concept of a person
Difficult re: "right to life" and a "foetus"
Court have avoided due to sensitivities
**Vo v France**
96
Time limit
| HRA 1998, s7(5)
Actions must be commenced within **one year of the date the act complained of took place** - HRA 1998, s7(5)
| HRA 1998, s7(5)
97
Can the one year time limit be extended?
In exceptional cases, when the court considers it to **equitable**
98
What happens to the time limit, if it is a continuing matter rather than a single incident?
Time will not start running until the violation ceases to operate
**O'Connor v Bar Standards Board**
99
Al Saadoon v SoS for Defence
| If
If a HRA claim is being brought within a wider judicial review application, **then stricter JR time limits will apply**
100
Art 1 ECHR
| Jurisdiction
High Contracting Parties shall secure to eveyone **within their jurisdiction** the rights and freedoms defined in this convention.
*** No requirement of citizenship or residency**
* Test is re Jurisdiction
101
Wider jurisdiction
* Person could make a claim for acts that have occurred outside the geog juridisdiction of relevant contracting state
| Bankovic v Belgium
102
Bankovic v Belgium
Bombing of Belgrade by NATO forcers.
While Art 1 reflects territorial notion of jurisdiction, extra territorial jurisdiction could be recognised in some very limited circumstances
103
Extra territorial jurisdiction
* eg activities of diplomatic staff abroad
* state has effective control of relevant territory as result of military occupation
* Gov has consented or acquiesced to the exercise of its power
104
R(Al Skeini and Others) v SoS for Defence
2007
Applicants relatives of 6 iraqi civillians
Killed by UK armed forces in Basra
HoL held that although liability under the HRA can extend outside the UK
Most claims did not succeed because they were killed in the course of gen security operations when **UK did not have sufficient control over Iraq**
* Sixth civillian **did come within UK jurisdiction** under Art 1 as **he died as a result of injuries inflicted in a British detention unit**
105
Al Skeini and Others v UK
2011
UK and USA were **effectively occupying powers** with **responsibility for security**
The **extent of control and power** exercised was sufficient to render actions of its armed forces subject to ECHR and HRA
106
Jason Smith
SC found jurisdiction of ECHR and HRA did not extend to soldior as he died in an area outside of UK control
107
Smith, Ellis and Allbutt v MoD
Snatch Land Rover claims did fall under jurisdiction and attract convention protection.
Distinguished from Jason Smith
108
What did Lord Hope find about service men, and why?
* Servicemen reliquish total control over their lives to the state.
* Therefore within jurisdiction of Art 1
**Jason Smith departed from**
109
What do we mean by derogation?
To opt out of
110
Under Art 15 when can states derogate
* War / public emergency threatening life of nation, can only derogate to the extent strictly required.
* No derogation from Art 2, except deaths from lawful acts of war, or from art 3, 4, and 7
111
Which articles cannot be derogated from under Art 15 ECHR
* Art 2 - except war
* Art 3
* Art 4
* Art 7
112
Under Art 15(1) what is the test for derogation?
Who decides
* Proportionality.
* Last word on lawfulness of derogation lasts with the courts, not with the state - Or if necessary with ECtHR
113
Art 57
Reservations
State **may at the time** of signing or ratifying, make acceptance subject to condition that varies the application of the ECHR to that state.
114
Does the UK have a reservation?
Yes, a reservation to Art 2 of the First Protocol to the Convention (the right to education)
115
Will the ECtHR passively accept a reservation?
* Not always
* **Beillos v Switzerland** - removed or severed elements from a declaration made by the Swiss government that they claimed amounted to a reservation
* ECtHR claimed that the reservation was too general of character
* **ECtHR has taken the view that it alone has responsibility for deciding what reservations are**
116
Positive obligation
an obligation on the part of the state to prevent the violation of rights being carried out by third party, non-state actors.
| Osman v UK
117
Test for standing under HRA 1998
* the applicant must be a directly affected victim of the unlawful act.
* Klass and Germany in which the ECtHR said that a victim must be ‘directly affected’.
118
