Chapter 11: Human Rights act 1998 Flashcards

Question

**R v SS for the Home Dept. Ex Parte Daly [2001]** ## Footnote Art 8

Answer 1

Held 1. HOL held that policy for prisoners having to be absent when examining prisoners cells by prison officers were unlawful 2. Applied **Article 8(1)** - right to respect for correspondence Takeaway * This case was very important as the courts must apply a **proportionality test in judicial review** cases where **human rights are in issue** (a principle of English law)

Answer 2

Freedom of thought, conscience, and religion * Under **Article 9.2**, a limitation/interference with the freedom of religion must be (i) **prescribed by law** and (ii) **necessary in a democratic society for a permissible purpose**, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect * There has to be a statute that states that directly limits it

Answer 3

* **R (on the application of Begum) v Governors of Denbigh High School [2005]** * **R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006]**

Answer 4

Facts 1. Muslim student was told she can’t wear jilbab and wear the school uniform permitted to students (a shalwar kameez) 2. Appeal to COA whether it was necessary in a democratic society to place a restriction on Muslims who sincerely believed in their faith Held 1. **Breach/violation of Article 9** - they were limiting the pupil’s rights to freedom of religion 2. Can wear jilbab ## Footnote hijab case

Answer 5

Held 1. UKSC reversed the COA’s decision, **did not violate Article 9** 2. Schools was fully justified in acting as it did 3. **Lord Bingham** - explained that it was **justified under Article 9.2**, a limitation to Article 9 if statute specifically/directly says so 4. It was the schools right to have implemented such rules & regulations 5. On grounds that her family had put her in the school with **full knowledge of the uniform requirements** ## Footnote This overruled 2005 Begum case

Answer 6

Freedom of expression

Answer 7

**Steel and Morris v UK**

Answer 8

Facts 1. Sued for defamation on serious accusations made on McDonalds 2. These were very serious allegations and were presented as statements of fact rather than value judgements Held 1. ECtHR held **Article 10 was not breached** 2. Certain degree of exaggeration can be tolerated, but in this case, it was too serious 3. Burden of proof was on the defendants as well to prove the truth, which meant it did not also beach **Article 10** (they were allowed to express their views) Note * Even though **Article 10** was not breached, right to fair trial (**Article 6**) was breached ## Footnote this case applies for Art 6 & 10

Answer 9

Freedom of assembly and association * Includes right to join **trade union, to strike, to join political parties and other associations** * Exceptions/limitations - there is no automatic right to join a trade or professional body (e.g. The Law Society or the Bar)

Answer 10

**Council of Civil Service Unions v Minister for the Civil Service [1985]** ## Footnote GCHQ case

Answer 11

Facts 1. Ban imposed on government on civil servants at the Cheltenham communications centre, from joining a trade union Held 1. **Justified actions** 2. In the interest of national security

Answer 12

Right to marry * **Civil Partnership Act 2004** - allows same sex couples to obtain formal legal recognition of their relationship (to allow ownership/loans to be respectively obtained) * **Marriage (Same sex Couples) Act 2013** - allows marriage of same sex couples in England and Wales, provisions included (states that churches don’t have to permit these marriages)

Answer 13

**R (Steinfeld) v Secretary of State for International Development [2018]**

Answer 14

Facts 1. Opposite sex-couple challenged as being discriminated and incompatible with **Article 14** (discrimination) read with **Article 8** (right to private and family life) Held 1. UKSC held there was a **breach of Article 14 and Article 8** 2. On grounds that **Civil Partnership Act 2004** allows same-sex couples to enter into civil partnership

Answer 15

Prohibition against discrimination * No discrimination against: sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Answer 16

**Judicial Review (Northern Ireland) [2017]**

Answer 17

Facts 1. Denise Brewster (applicant/claimant) Held 1. **Breach of Article 14** and **A1P1** (right to peaceful enjoyment of possessions) 2. UKSC held **different requirement** apply to married couples (and for civil partnerships) and cohabitees for entitlement to succeed to a deceased partner’s pension

Answer 18

Derogation * This Article permits derogation from convention rights (except Article 3) in ‘**war or other public emergency threatening the life of the nation**’ * Provided the derogation is **proportional and necessary** to deal with emergency at hand * Exception - **Article 3** (absolute) Note * Important and often used provision by the UK regarding terrorist activities in Northern Ireland

Answer 19

Requires **courts and tribunals** ‘to **take into account** any judgement, decisions of the European Court of Human Rights’ * This section is important when courts are applying convention rights under section 3,4, or 5 of HRA * Also subject to a states’ margin of appreciation - depends on the state laws (**Wingrove v UK**)

Answer 20

1. **R (on the application of Ullah) v Special Adjudicator [2004]** 2. Pinnock v Manchester City Co. [2010] 3. R v Homcastle & Ors [2009] 4. **R (Children’s Rights Alliance) v Secretary of State for Justice [2013]** 5. **Poshteh v Royal Borough of Kensington and Chelsea [2017]** 6. **Moohan v Lord Advocate [2015]**

Answer 21

Held - **Lord Bingham** * Courts are **not strictly binding**, but must follow unless there are special circumstances dictated otherwise * It is the duty of the courts to keep in touch with Strasbourg Jurisprudence as it evolves over time Takeaway * This binding nature is referred to as the ‘**mirror principle**’ - where domestic courts should do more to accurately reflect the decision in ECtCHR Note * This was the original precedent of ECHR’s binding nature

Answer 22

Held - **Laws LJ** in COA 1. Called for the ‘Ullah principle’ to be revisited 2. “There is no doubt that in this court we are bound by the Ullah principle. It has been repeatedly affirmed in the House of Lords. But perhaps I may be forgiven for stating, with great deference to the House of Lords and the Supreme Court, that **I hope the Ullah principle may be revisited**.” ## Footnote Said to revisit Ullah principle

Answer 23

Issue * UKSC again considered the relationship between the precedent decisions and those of the ECtHR Facts 1. Held it **wouldn’t depart** from the previous decision in **Ali v Birmingham City Council [2010]** in order to follow Strasbourg decision - **Ali v United Kingdom [2017]** 2. ECtHR decision was Chamber of the Court, and had not addressed any detail in the UKSC’s reasoning or its concerns over judicialization of the welfare services Held * UKSC said they would **wait** for the decision of the Grand Chamber before considering to depart from previous decision

Answer 24

Facts 1. **Lord Wilson JSC** suggested to ‘**retreat**’ from the ‘**Ullah principle**’ which led the courts to substantially modify it Held 1. This is where there is **no direct relevant decision** of the ECtHR, so the UK Courts can and must do more Takeaway * If there isn't a clear decision in ECtHR, then domestic law overrules

Answer 25

The Safety of Rwanda (Asylum and Immigration) Act 2024

Answer 26

Problem with the Bill (before the Act) * The bill principally **allowed ministers to ignore any emergency order from the ECtHR** to temporarily halt a flight to Rwanda while an individual case is still being considered * The bill conceded that it may **not be compatible with minimum human right safeguards** * Lawyers told the ministers that the UKSC could find them **incompatible with human right obligations** (which make the bill unworkable) Relevant matters * Former PM, **Rishi Sunak** stated that UK will control its borders to deter people from crossing the British Channel and stop legal challenges in court * Home Secretary, **James Cleverly** signed a new treaty with Rwanda on 5 December 2023 - hoping that the treaty and bill would held the Rwanda scheme to go ahead The Act now * Bill went though ping-pong until passage through HOL, now known as The Safety of Rwanda (Asylum and Immigration) Act 2024 * The Act **disapplies some provisions in HRA 1998**

Answer 27

Courts are to read primary and secondary legislation in a way **compatible with Convention rights, so far as it is possible to do so** * If not compatible in **Northern Ireland** > held null and void * If not compatible in **England & Wales** > declaration of incompatibility **Lord Steyn** in **R v A [2001]** * “It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of Parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under **Section 3(1)**, the courts **may not disapply legislation**. The court may merely issue a **declaration of incompatibility** which then gives rise to a power to take remedial action.”

Answer 28

* **R v A [2001]** * **Ghaidan v Godin-Mendoza [2004]**

Answer 29

Issue 1. This case concerned the interpretation of **Section 41** of the **Youth Justice and Criminal Evidence Act 1999** - which prohibited previous sexual history 2. Where it involved sexual offence from being elicited in evidence by a Defendant in light of **Article 6** (right to fair trial) Facts 1. The interpretation that was made went far beyond Section 3 which led to courts to take the Convention into account to resolve ambiguity in a legislative provision 2. However, this interpretation was more radical than ordinary interpretations which permitted departure from language of an Act to avoid absurd consequences 3. The techniques used wouldn’t only involve reading down the expressed language (real intention) in statute but also implication of provisions 4. Making a DOI (section 4) would be the last resort as the evidence was a clear contrary towards section 41 of the 1999 Act Note - **Lord Hope** (dissenting jdugement) * Stated that there were only the 3 kinds of statutory interpretation (traditional rules) * Hope stated that **Lord Steyn** view - which also includes **Section 3 HRA** of interpreting statutes is usurping (illegally surpassing) Parliament's role in legislation

Answer 30

Note * Took same approach by Lord Steyn in R v A Context * The 1977 Act stated that tenancy would be given one party in the couple (can be unmarried or married), and the other would be evicted Issue * Whether protection could also cover gay couples if the phrase was interpreted to be compatible with Convention rights (under **Section 3**) * A previous case **Fitzpatrick v Sterling Housing Association [2001]** with the same facts, were held to not qualify Facts 1. HOL held that it would be contrary to Art 14 & 8, to deny Godin-Mendoza the right to succeed statutory tenancy Held 1. **Succeeded** to interpreted under **Section 3 HRA** to be compatible with convention rights 2. Majority held it was possible to read ‘spouse’ as gay partners and was granted the right to tenancy * **Lord Nicholls** - stated that the ordinary process of interpretation of legislation would be able to **seek the intention of parliament through the language in statute** in question. And that **Section 3** may require the courts to depart from legislative intention, that is, to depart from the intention of parliament. * **Lord Millett** (dissenting) - disagreed with Nicholls, that this whole process would require rewriting the legislation and trespassing **beyond** judicial interpretation into Parliament’s legislative domain. He believed that words **should not** be stretched to extend gay couples Takeaway * Lord Nicholls believes interpretation of words is possible * Lord Millet disagrees, as it would go beyond judiciary’s power of merely reviewing and deciding cases (judicial review)

Answer 31

Section 3 HRA 1998 allows courts to **shift the interpretive focus** away from traditional rules of statutory interpretation. And towards **fulfilling the overriding goal of achieving compatibility with the convention**, even if it may result in straining the meaning of parliament * This approach looks at the **imputed (inferred) intention** of parliament, rather than the actual intention

Answer 32

This action allows courts to make a ‘**declaration of compatibility**’ when Section 3 is not able to be adhere with Convention rights Note * Not binding on parties to the proceeding, except for vindications (defending against criticism) * DOI’s **don’t provide remedies** for claimants and **don’t impose legal obligations** upon public authorities * DOI’s also **don’t compel** the government or parliament to change the law (so it’s not technically making new laws?) Academic view **Andrew le Suer** raises an important question about the role of DOIs and the relationship between the courts (J), parliament (L), & government (E) * **Lord Hale** and **Lord Kerr** in Stenfield’s case - 1. It was seen that courts play a positive role to play in **warning Parliament** and **informing on future debates on legislation** (not only, making a DOI, but sending a message for future legislation) 2. Other academics also share the opinion that courts are somewhat involved with policy and lawmakers, and the power to make DOIs is a very important aspect of the J

Answer 33

* **R (Steinfeld and Keidan) v Secretary of State for International Development [2018]** * **R (on the application of Nicklinson and another) v Ministry of Justice [2014]** * **R (on the application of Noel D Conway) v the Secretary of State for Justice [2018]**

Answer 34

Held 1. UKSC **granted declaration that Civil Partnership Act 2004** was incompatible with Convention rights in so far as it prevents a different sex couple from entering a civil partnership Note * DOI was made even though government agreed to enact/amend the 2004 Act

Answer 35

Facts 1. Mr Nicklinson and Lamb suffered from irreversible physical disabilities amounting to ‘locked-in syndrome’. Almost resulted in a stroke 2. They wanted assisted suicide 3. They argued that Art 8 allowed a third party is allowed to help with assisted suicide 4. They sought a DOI with **Art 8(1)** for **Section 2(1)** of the **Suicide Act 1961** (criminalises assisted suicide) Held * UKSC stated that they would decline to make a DOI On grounds that shortly before the judgement made, Falconer had introduced his **Assisted Dying Bill** in the HOL on 5 June 2014 And he did not want this to interpret the process of the Bill Takeaway * UKSC didn’t want to allow the DOI because it would interrupt the process. As it has been stated by **Lord Hale** and **Lord Kerr**, that making DOI would **send a message to future legislation** (resulting in the interruption) ## Footnote declined DOI

Answer 36

Facts 1. Coway a 68 year old man, was diagnosed with motor neurone disease (MND), which attacks the nerves for controlling voluntary muscle movement 2. He required a Non-Invasive Ventilation (NIV) to assist with breathing, which was needed several hours each day 3. He wished for assisted suicide by a medical professional 4. He filed a claim for judicial review, and sought a DOI in respect of Art 8 against Section 2(1) of the Suicide Act 1961 5. He proposed that he had been clinically assed prognosis of 6 months or less to live 6. Divisional Court dismissed his claim Issue - COA * COA stated that assisted suicide gave rise to important moral and ethical issues - on where the line should be drawn * The concept of **sanctity of life** - reflected in **Art 2** * And the **right to personal autonomy** in choosing the time and manner of death - protected by **Art 8** Held 1. **Declined DOI** 2. COA cited **Nicklinson**’s case, but distinguished it on specific issues (material facts are different) 3. On grounds that **parliament is far better for determining the difficult policy issue** in relation to Takeaway * Similarly with Nicklinson, this shows a clear form of **parliamentary supremacy** * Where the J and L are of conflicting decisions, but parliament reigns supreme ## Footnote Declined DOI

Answer 37

* **R (Chester) v Secretary of State for Justice and another [2010]** * **Moohan v Lord Advocate [2014]**

Answer 38

Facts 1. Claimant sought judicial review against the Secretary of State of Justice and local authority for restricting him from voting in Parliamentary and EU elections 2. He seeked a DOI that **Section 3** of the **Representation of the People Act 1983** was incompatible with Article 3 (free and fair elections) 3. Held that courts should ‘read down’ **Section 3(1) of 1938 Act** with **Section 3 of HRA** of any additional words which could confer any decision on whether any given prisoner should be disenfranchised (deprived) 4. This was argued that courts should not ‘read down’ and should make a DOI instead (section 4 HRA) Held - Laws LJ 1. Explained that the Strasbourg Court (ECtHR) accepted that Article 3 was not absolute. As different states may have different domestic laws 2. He further stated that COA could not declare a DOI as it was **matter for the HOL/Parliament to change the law** 3. On grounds that COA **didn’t have the constitutional power** to do so

Answer 39

Facts 1. Appellant prisoners appealed against the decision of the 1938 Act restricting them from voting Held 1. Was held that the Act in Scottish independence referendum was lawful 2. On grounds that the words of **Article 3** was in respect of periodic elections to a **democratically elected legislature** Takeaway 1. It did not cover any major political decisions

Answer 40

1) A principle which makes it **unlawful for public authorities** if they act incompatibly with Convention rights (**Section 6(1)**) 2) Afterwards, the V of such unlawful act can bring **proceedings to court** * “May grant such relief or remedy, or make such order, within its powers as it considers appropriate (**Section 8(1)**)

Answer 41

Section 6 is a key enforcement provision (a **vertical** nature of human right obligations)

Answer 42

No comprehensive definition of public authority in the Act * But includes a court or tribunal or “any person of whose function are of a **public nature** (**Section 6(3)**)

Answer 43

**Applicable** * Organs of central/local government & police - **public authorities** **Not applicable** * Does not apply to acts of the body which are of **private nature** (**Section 6(5)**) * **Aston Cantlow etc. Parochial Church Council v Wallbank [2003]**

Answer 44

**Section 6(1)** does not apply to a public authority if (stated by **Section 6(2)**- 1. Authority **couldn't have acted differently** because of **primary legislation**; 2. Or in the case of provisions made under primary legislation which **can’t be read in a way compatible with Convention rights** | 2 exceptions

Answer 45

* **Poplar v Donoghue [2001]** * **Aston Cantlow v Wallbank [2004]** * **Cameron and Others v Network Rail Infrastructure Ltd. [2006]**

Answer 46

Facts 1. D moved into local authority property 2. While a decision was pending whether she was intentionally homeless 3. The place were under **duty** of local housing authority to allow her for the time being (while decision was pending) - **Housing Act 1996** 4. Property was then transferred to Poplar 5. Poplar was created by Tower Hamlets, to transfer substantial proportion of the council’s housing stock 6. Tower Hamlets decided D was intentionally being homeless 7. D argued breach of **Article 8** 8. However, the provision would only apply if Poplar was a public body or performing public functions Issue * Court needed to decide (for the purpose of **Section 6**), whether it Poplar was a public body or not Held 1. Poplar was held to be a **private body** 2. HOL held that **Section 6(3)** means that **hybrid bodies** - having the function of private and public bodies; but are not acting of private nature 3. The fact that they were renting out spaces as a public authority were a private act Takeaway * If a **private body** carries out **public functions** > allowed * If **public body** carries out **private functions** > unlawful (incompatible with HRA)

Answer 47

Facts 1. Concerned an obligation to repair the chancel of a church, by a particular property nearby the church (it's a public duty to repair) 2. D’s argued the Parochial Church Council was a public authority - which would made them bound by HRA 3. As the duty to repair the church, was depriving the D’s of their possession. It was also controlling them of their property 4. Thus, breaching peaceful enjoyment (**Protocol 1, Article 1**) Held 1. HOL held that church was **not a public authority** 2. They stretched the definition of hybrid public authorities 3. As they exercised both public & private functions, and were not public authorities in respect of acts of private nature 4. On grounds that the Parochial Church Council had **nothing to do with processes of either central/local government**

Answer 48

Issue * Whether Network rail was a private body or public authority and could be subject under **HRA 1998** Facts 1. Proceedings arose out of the Potters Bar rail crash in 2002 Held * **Private body** 7 reasons why it was not a public authority 1. For the purpose of Railways Act 1993, that actively running a railway was **not intrinsically a government activity**; 2. A **clear commercial objective** in Railtrack’s performance 3. **No obligation** to operate for **public interest** 4. Railtrack had **not been democratically accountable to government** 5. Railtrack’s directors were **appointed by the company** and not subject to governmental influence/control 6. Railtrack had **no special powers or immunities**, beyond those which regulate individuals 7. Railtrack was **not publicly funded**

Answer 49

‘**hybrid**’ public authorities * Public authority persons or bodies that are private, but **perform functions of public nature** Detailed by **Lord Nicholls** in **Aston Cantlow**’s case

Answer 50

Private bodies can be like **public authorities** in 2 ways (cumulative test +) 1. Carrying out **public function/serving the public**; and 2. **Controlled/accounted** by government/parliament

Answer 51

* **YL v Birmingham City Council and Others [2007]** * **Fearn v Board of Trustees of the Tate Gallery [2019]**

Answer 52

Facts 1. Claimant relied on HRA when challenging a decision by a private care home (ran as a business) Held 1. **Not inherently a government function** 2. HOL held a care home run as a business was **not performing functions of public nature** when providing residential accommodation and care to people whose places were **funded by local authorities** 3. Adopted a narrow approach that private bodies exercising functions that are not public in nature, are not public authorities 4. Due to the fact that the relationship of the care home was purely **contractual in nature** Note * Today, **Section 145** of the **Health and Social care Act 2008** provides that private or voluntary bodies providing accommodation, for nursing or personal care under local authorities, under the National **Assistance Act 1948** are exercising public functions for the purposes of **HRA 1998**

Answer 53

Facts 1. D brought the case under the law of nuisance and the HRA to protect rights of privacy - for residence in flats opposite the Tate Modern Art gallery in London 2. The walkway of the gallery were on the 10th floor 3. But visitors could look into neighbours flats 4. Tate was regulated by statute 5. It received public funding to ⅓ of its running cost 6. The gallery was required to act in public interest 7. These factors were all relevant to a public authority, but none of them were determinative Issue * Whether the Tate was a public body for the purposes of **Article 8** Held * Was **not a public body/authority** * On grounds that - 1. it was **not exercising governmental functions**; and 2. Was **not run under direction of government** Takeaway 1. This meant that the dual cumulative test was not fulfilled (serve public & accountable to government) 2. So the courts only accepted the nuisance claim ## Footnote Used the cummulative test from Section 6(3)(b)

Answer 54

1. Claims under **Section 6(1)** must show that he or she is a “**victim of the unlawful act**” 2. One is a victim only if they are **directly affected** by the violation

Answer 55

* **Dudgeon v UK [1981]**

Answer 56

Facts 1. Gay man living in Northern Ireland allowed to make claim about criminalisation of homosexual conduct in private between consenting adults Held * Claim was successful * Was a **victim**

Answer 57

**Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016]**

Answer 58

Facts 1. Family members of the V (foster mother & foster brother) of a man who died of a heart attack in prison 2. Remand claimed that they were ‘indirect victims’ of culpable delay in treatment Held 1. **Family members of V’s can also can bring proceedings** 2. Held that the 1st claimant was an **indirect V**, as she had been JB’s foster mother for 3 years 3. However, 2nd claimant was **not a V** - it was insufficient to show that he suffered a huge loss **Mrs. Lang J** set out the test for entitled family members - 1. Nature of the **legal or family** relationship with D; 2. Nature of the **personal ties** between D; 3. Extend to which the violations of the Convention 1) **affected** them and 2) caused them to **suffer**; 4. **Involvement in proceedings** arising out of the D’s death

Answer 59

**In the Matter of an application by the Northern Ireland Human Rights Commission for Judicial Review [2018]** * Northern Ireland Human Rights Commission could not be a victim * On grounds that it was not directly affected **R v Secretary of State for Foreign and Commonwealth Affairs Ex Parte World Development Movement [1995]** * Public interest groups can’t claim to be victims

Answer 60

When a court has decided that the public authority acted unlawfully under **Section 6(1**), it may grant “such **relief or remedy**, or make such order **within its powers** as it considers just and appropriate.” - S**ection 8 HRA 1998**

Answer 61

Remedies that could be obtained in judicial review * Order to pay **damages** or **compensation**

Answer 62

Courts **don’t generally** reward high amount of damages in cases which **no financial loss** is involved (e.g. infringement of liberty cases) Financial loss * **Johnson v UK [1999]** No financial loss * **Belmarsh case**

Answer 63

1. Introduced to Parliament by LC and Secretary of State for Justice in **June 2022** 2. But was denied by **Liz Truss** 3. Reintroduced by new PM, **Rishi Sunak** 4. The Bill proposed to **retain all the convention rights**, as well as their ability to be enforced in domestic courts 5. The Bill was **dropped by former Conservative government in June 2023**, when former Secretary of State for **Justice Alex Chalk** (LC) confirmed that then Conservative Government would not proceed with the said Bill

Answer 64

1) Introducing a **new permission/acceptance stage** * Requiring claimants to prove they have **suffered significant disadvantage** because of the breach of their rights * Before being able to take claim to court 2) Setting a higher threshold * For challenges to **deportation for foreign national offenders** based on the right to private and family life 3) **Removing** duty on courts to **interpret legislation** compatible with convention rights * Amending **Section 3** * This overturns **Lord Steyn**’s and **Lord Nicholls**’ view in **R v A** 4) **Removing duty of courts** to consider how the ECtHR has interpreted a right * Amending **Section 2** 5) **Limiting** the interpretation of rights to **literal reading** of the text in convention rights (ECHR) * Amending **Section 3** * **Lord Hope**’s obiter in **R v A**; and **Lord Millett**'s decision in **Ghaidan v Ghodin Mendoza** 6) Prohibiting courts from finding public body owes a positive obligation

Chapter 11: Human Rights act 1998 Flashcards

(88 cards)