9. Human Rights Act 1998: European Convention on Human Rights in the UK Flashcards
Declaration of incompatibility
The HRA 1998 requires UK courts to interpret UK legislation
consistently with the Convention only “so far as it is possible to do so”.
The HC and higher courts have the power to declare legislation to be incompatible with Convention rights. Such a declaration does not affect the validity, continuing operation or enforcement of the provision in question, and does not bind the parties to the proceedings. However, it does put political pressure on the Government to change the law.
Remedial orders
Amend or repeal the offending legislation but they cannot be used to change the common law.
HRA 1998: Acts of public authorities
It is unlawful for a public authority to act in a way that is incompatible with Convention rights.
However, this does not apply if, as a result of an Act of Parliament, the authority could not have acted differently, or the authority is giving effect to, or enforcing, provisions of an Act that are incompatible with the Convention.
HRA 1998: Enforcement against private individuals
Only makes it unlawful for public authorities to infringe Convention rights.
It does not expressly make it unlawful for private individuals to infringe the rights of other individuals.
The “horizontality” effect explained
The court is a public authority within the meaning of s 6 of the HRA 1998. Therefore, it has a duty to apply the Convention.
So, Convention rights can affect relations between private citizens and not merely relations between state and citizen (“vertical effect”).
Section 6 and delegated legislation
Although courts are bound to apply Acts of Parliament that are incompatible with Convention rights, judicial review may be available under s 6 of the HRA 1998 to set aside incompatible delegated legislation.
S 7 and “victims” of breach
A claimant can bring proceedings for breach of a Convention right only if they are a ‘victim’ of the breach.
This means that an individual or organisation must be directly and personally affected.
Pressure groups will not be victims under s 7 and therefore cannot bring claims for breach of Convention rights
Damages for breach of Convention rights
A court can award damages for breach of Convention rights
where it is ‘necessary to afford just satisfaction’, taking into account principles laid down by the ECtHR.
In many cases there will be no need to do so, as there will be a common law cause of action (eg misuse of private information) under which damages can be awarded.
Moreover, in judicial review proceedings the courts will often regard a quashing order and/or one or more of the other available remedies as just satisfaction.
How can Convention rights and the traditional judicial
review grounds be used to challenge a decision of a public body?
- Is the issue a public matter?
- Who is the decision-maker?
- Is the Home Secretary amenable to judicial review?
- Are there any ouster clauses, either complete or partial?
- Does Janice have standing?
“Horizontal effect” of the Convention rights
Individuals are able to bring a claim against public bodies
under the ‘horizontal effect’ principle.
Courts themselves are public authorities within the scope of s 6(3) HRA 1998 and so must act compatibly with Convention rights (s 6(1) HRA 1998). This principle allows individuals to bring a case based on an existing cause of action, which the courts will develop compatible with Convention rights.
Balancing freedom of expression with right to respect for private life: Human Rights Act 1998, s 12(4)
Section 12(4) of the 1998 Act is drafted to prevent claims of breach of privacy from unduly restricting the freedom of the press.
It states that the courts must have particular regard for the right to freedom of expression.
Where proceedings relate to journalistic, literary or artistic material, the court must consider the extent to which the material is already in the public domain, whether publication would be in the public interest and any relevant privacy code.
Balancing freedom of expression with right to respect for private life: Relative status of Articles 8 and 10
The rights people enjoy in Article 8 may affect another person’s freedom of expression.
A balance must be struck between the right to respect for one’s private life and the right of others to their freedom of expression.
Balancing freedom of expression with right to respect for private life: Protection of identity
Article 8 has a meaning covering the physical and psychological integrity of a person, and a right to personal
development and to establish and develop relationships with other human beings and the outside world.
Take into account the following:
- X’s fragile mental health;
- the young age at which she committed the offences;
- the length of time that had expired since offences were committed; and
- the serious risk of potential harassment and possible physical harm.
Balancing freedom of expression with right to respect for private life: Misuse of private information
When balancing the two conflicting rights, courts must take account of s 12(4) of the HRA 1998, which provides that the court must have ‘particular regard’ to the importance of freedom of expression and, where the material is journalistic, whether it would be in the ‘public interest’ for the material to be published. This does not, however, give Article 10 priority over Article 8, as neither right takes precedence over the other.
A well-known footballer was photographed leaving an alcoholics anonymous meeting in Leeds. A newspaper has published the photograph. During her career the footballer has disclosed very little about her private life.
Describe whether the footballer can bring a claim in the High Court for breach of her Convention rights?
The photograph, relating to a health condition, clearly engages Article 8, the right to a private life while in publishing the photograph the newspaper will be exercising its Article 10 right of freedom of expression. Neither right has precedence over the other.
Instead, the court will balance the footballer’s Article 8 right with the newspaper’s Article 10 right. In this instance, following the House of Lords’ judgment in Campbell, the balance is likely to fall in favour of the footballer’s Article 8 right as the newspaper does not seem to have a legitimate reason for disclosing her medical condition.
