Chapter 11: Human Rights act 1998 Flashcards
How is the Human Rights Act 1998 made?
Human Rights Act 1998 directly incorporated ECHR conventions (except for Art 13) into English law on 2 October 2000
What are the relevant sections from HRA 1998
- Section 1
- Section 2
- Section 3
- Section 4
- Section 6
- Section 10
- Section 19
What does each section state?
Section 1 & Schedule 1
* Merely restates Conventions & Protocols as part of the UK law with exception of Article 13
Section 2
- When court or tribunal is making a decision that relates/has something to do with ECHR, then they “must take into account” -
1. Judgements (by ECtHR)
2. Decisions (by ECtHR)
3. Declarations (by ECtHR)
4. Opinions or decisions (by Commissions or the Committee Minister)
Section 3
- “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 4
- When courts fail to interpret according to ECHR, they can make a “declaration of incompatibility” (DOI)
- This does not affect validity and is not binding on parties
Section 6
- Unlawful for any public authority to act in a way incompatible/breach Convention rights
Section 10
- Provides a fast-track procedure to remove incompatibility
- If there is a breach of convention, parliament has the choice to make amendments
Section 19
- If there is a matter regarding convention rights, Minister is to make a statement to decide whether it complies or is incompatible but government will continue to proceed
What are 3 things to note about Articles regarding convention rights (HRA)?
Where articles are applicable domestically
- Applicant has to seek resources in the domestic courts (i.e. Section 3, 4, & 6)
- If article is unenforceable domestically, they go to the European Court of Human Rights (ECtHR), in Strasbourg
When breach of convention is found
- The state is obliged in international law to make reparations for the consequence
- Breaching conventions = breaching international law
Parliament can, if it chooses, legislate contrary to fundamental principles of human rights
- Lord Hoffman in R v Secretary of State for the Home Department, Ex Parte Simms and O’Brien [1999]
What are the relevant Articles in HRA 1998?
What do each of them state?
- Arcticle 2 - Right to life
- Article 3 - Prohibition of toture
- Article 4 - Prohibition of slavery and forced labour
- Article 5 - Right to liberty and security
- Article 6 - Right to fair trial
- Article 7 - No punishement without law
- Article 8 - Right to respect private and family life
- Article 9 - Freedom of thought, conscience, and religion
- Article 10 - Freedom of expression
- Article 11 - Freedom of assembly and association
- **Article 12 **- Right to marry
- Article 14 - Prohibition against discrimination
- Article 15 - Derogation
What is Article 2?
Right to life
- Lawful use permitted - self-defence, lawful arrest, and use of force to quell a riot or prevent a prisoner from escaping
- Unlawful - derogation is not allowed under Article 15
What are the 2 cases for Article 2?
- Ewans v UK
- An NHS Trust v Y [2018]
Ewans v UK
Art 2
Facts
- Claimant froze her last embryo in liquid nitrogen to store it (IVF)
- She was going to have her ovaries removed as she had cancer
- Both parties gave consent (required by Human Fertilisation and Embryology Act 1990)
- Couple broke up, the guy withdrew consent
- Meant that her embryo would get destroyed
- Argued the embryo had right to life (Article 6) and she had right to family private life (Article 8)
Held
- Appeal dismissed
- Embryo’s right to life was not engaged (not considered a living human in English law)
- Article 8 applied, but it applied to both parties (the father)
- Couldn’t argue as 1990 Act demanded consensus ad idem of both parties
An NHS Trust v Y [2018]
Art 2
Note
- Compare with Airedale NHS Trust v Bland (1990)
Facts
Facts
- Patient suffered cardiac arrest
- Led to brain damage
- Never regained consciousness
- Medical evidence indicated a vegetative state without hopes of improvement
Held
- UKSC stated no common law requirement to seek authority from a court
- Lawful to withdraw/remove clinically assisted nutrition and hydration from a patient in a state of prolonged disorder of consciousness (persistent vegetative state/’brain stem dead’) without an order of the court
What is Article 3?
Prohibition of tortute
- Ensures freedom from torture, inhuman treatment, degrading treatment
- This article is an absolute duty
- No derogation allowed under Article 15
What are the 3 cases for Article 3?
- Chahal v UK
- GS (India) v Secretary of State for Home Department [2015]
- AM (Zimbabwe) v Secretary of State for the Home Department [2018]
Chahal v UK
Art 3
Facts
- Chahal (claimant) was an illegal immigrant in the UK
- He was part of a movement in UK to bring back finances to India (currency issue)
- UK government found out and wanted to deport him
- Appealed to the Special Immigration Appeals Tribunal
- But he could not be sent back to India as he was unwanted there as well
Held
- ECtHR held it would be a violation of Article 3 to sent him back, as it would be inhuman treatment
GS (India) v Secretary of State for the Home Department [2015]
Art 3
Facts
- Order held to return claimants to their country of origin
- They claimed that they would not get the same standard of treatment in their country
- Claimed breach of Article 3
Held
- COA held the order did not breach Article 3
What is Article 4?
Prohibition of slavery and forced labour
What is Article 5?
And what is there to note about Article 5?
Right to liberty and security
- Protects the right to liberty and security of the person
- Subject to derogation in Article 15 (times of emergency)
Note
- Prevention of Terrorism Act 2005 replaced the Anti-Terrorism, Crime and Security Act 2001 Act - Too many cases questioned the validity of the previous Act
What is the case for Article 5?
A (FC) and others v SS for the Home Department [2004]
A (FC) and others v SS for the Home Department [2004]
Art 5
Facts
- Challenged the unlawfulness of indefinite detention under the Anti-Terrorism, Crime and Security Act 2001
- Act was passed after 9/11 occurred in New York World Trade Centre
- The Act allowed internment without trial of foreign nationals that the Home Secretary suspected were terrorists
Held
- 7 Law Lords held indefinite detention without trial was unlawful - disproportionate with liberty (Article 5) and equality (Article 14)
1. Lord Hoffman - there was no derogation that required such action
2. Baroness Hale - “We have always taken it for granted that we cannot be locked up in this country without trial or explanation.”
3. Lord Scott - “Indefinite imprisonment, on grounds not disclosed, is the stuff of nightmares, associated with. Soviet Russia in the Stalinist era.”
What is Article 6?
What are the 3 provisions?
What are the 5 mimimum rights?
IMPORTANT
Right to fair trial
3 parts of this provision
1. In criminal and civil proceedings, everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal;
2. Presumption of innocence applies to everyone with criminal offence;
3. Five minimum rights when charged with criminal offence -
5 minimum rights
- To be informed promptly of the nature and cause of the accusation in a language D understands and in detail
- To have adequate time and facilities for preparation of his defence
- To defend himself in person or through legal assistance of his own choosing or have free assistance if he doesn’t have the means
- To examine or have examined witnesses against him and to obtain the attendance and examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under equal conditions
- To have free assistance of an interpreter if he can’t understand or speak the language used in court
What are the 2 cases for Article 6?
- Steel and momrris v UK [2005]
- Shammima Begum case
Steel and Morris v UK [2005]
Art 6
Facts
- Claimants distributed leaflets attacking McDonalds
- Were sued for defamation
- Claimants were denied legal assistance
- Argued that they were severely disadvantaged by lack of resources (i.e. photocopying, note-taking, legal advice)
- Facts were complex, consisted of 40,000 pages documentary evidence
- Appellants/claimants were articulate and had help from pro bono lawyers, but mainly acted alone
Held
- Breach of Article 6
- They were deprived of legal assistance, and the opportunity to present their case effectively and there was inequality of arms
Shammima Begum case
Art 6
Facts
- Respondent, age 15 left to Syria where she aligned herself with ISIL fighters
- Got detained in a camp run by Syrian Democratic Forces
- In 2019 secretary of state issued a deprivation of citizenship (section 40(2) British Nationality Act 1981 Part V)
- Deprivation was made on the fact that it was for public good, and that she was a threat to UK national security
- She applied to enter (LTE) to pursue her appeal against the deprivation
- LTE refused her application
- She applied against the LTE decision to the Special Immigration Appeals Commission (SIAC) under Section 2B of the Special Immigration Appeals Commission Act 1997
- SIAC held that secretary of state didn’t infringed his human rights policy
- Said her appeal could not be fair and effective as she was unable to give effective instructions or participate properly in the appeal while detained
- She appealed to COA under Section 7 of the SIACA 1997 against SIAC
- COA allowed her appeal against the SIAC’s decision in the LTE appeal and ordered the secretary of state to grant her to enter the UK
Held
- UKSC said that COA made a wrong decision
- Article 3 - Held that the right to fair trial hearing did not overcome the other concerns (public interest for risk of terrorism)
- Article 3 - If public safety made it impossible for her to effectively hear trial, then she would have to wait until such safety would not be compromised
- Deprivation - Secretary of State had the responsibility/requirement to asses her, on grounds that he was democratically accountable to parliament
What is Article 7?
No punishement without law
What is Article 8?
Right to respect private and family life
- Right to private and family life, home and correspondence
Exceptions
- National security
2.Public safety or economic wellbeing of the state - Prevention of disorder or crime
- Protection of health or morals
- Rights and freedoms of others
What is the case for Article 8
R v SS for the Home Dept. Ex Parte Daly [2001]
R v SS for the Home Dept. Ex Parte Daly [2001]
Art 8
Held
- HOL held that policy for prisoners having to be absent when examining prisoners cells by prison officers were unlawful
- 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)
What is Article 9?
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
What are the 2 cases for Article 9?
- 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]
R (on the application of Begum) v Governors of Denbigh High School [2005]
Art 9
Facts
- Muslim student was told she can’t wear jilbab and wear the school uniform permitted to students (a shalwar kameez)
- Appeal to COA whether it was necessary in a democratic society to place a restriction on Muslims who sincerely believed in their faith
Held
- Breach/violation of Article 9 - they were limiting the pupil’s rights to freedom of religion
- Can wear jilbab
hijab case
R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006]
Art 9
Held
- UKSC reversed the COA’s decision, did not violate Article 9
- Schools was fully justified in acting as it did
- Lord Bingham - explained that it was justified under Article 9.2, a limitation to Article 9 if statute specifically/directly says so
- It was the schools right to have implemented such rules & regulations
- On grounds that her family had put her in the school with full knowledge of the uniform requirements
This overruled 2005 Begum case
What is Article 10?
Freedom of expression
What is the case for Article 10?
**Steel and Morris v UK **
Steel and Morris v UK
Art 10
Facts
- Sued for defamation on serious accusations made on McDonalds
- These were very serious allegations and were presented as statements of fact rather than value judgements
Held
- ECtHR held Article 10 was not breached
- Certain degree of exaggeration can be tolerated, but in this case, it was too serious
- 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
this case applies for Art 6 & 10
What is Article 11?
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)
What is the case for Article 11?
Council of Civil Service Unions v Minister for the Civil Service [1985]
GCHQ case
Council of Civil Service Unions v Minister for the Civil Service [1985]
Art 11
Facts
- Ban imposed on government on civil servants at the Cheltenham communications centre, from joining a trade union
Held
- Justified actions
- In the interest of national security
What is Article 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)
What is the case for Article 12?
R (Steinfeld) v Secretary of State for International Development [2018]
R (Steinfeld) v Secretary of State for International Development [2018]
Art 12
Facts
- Opposite sex-couple challenged as being discriminated and incompatible with Article 14 (discrimination) read with Article 8 (right to private and family life)
Held
- UKSC held there was a breach of Article 14 and Article 8
- On grounds that Civil Partnership Act 2004 allows same-sex couples to enter into civil partnership
What is Artcile 14?
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
What is the case for Artice 14?
Judicial Review (Northern Ireland) [2017]
Judicial Review (Northern Ireland) [2017]
Art 14
Facts
- Denise Brewster (applicant/claimant)
Held
- Breach of Article 14 and A1P1 (right to peaceful enjoyment of possessions)
- UKSC held different requirement apply to married couples (and for civil partnerships) and cohabitees for entitlement to succeed to a deceased partner’s pension
What is Article 15, and what is there to note about it?
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
What is Section 2 HRA 1998?
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)
What are the 4 cases for Section 2 HRA?
R (on the application of Ullah) v Special Adjudicator [2004]
R (Children’s Rights Alliance) v Secretary of State for Justice [2013]
Poshteh v Royal Borough of Kensington and Chelsea [2017]
Moohan v Lord Advocate (Advocate General for Scotland intervening) [2015]
R (on the application of Ullah) v Special Adjudicator [2004]
The ‘starting’ principle
Section 2
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
R (Children’s Rights Alliance) v Secretary of State for Justice [2013]
Section 2
Held - Laws LJ in COA
- Called for the ‘Ullah principle’ to be revisited
- “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.”
Said to revisit Ullah principle
Poshteh v Royal Borough of Kensington and Chelsea [2017]
Section 2
Issue
- UKSC again considered the relationship between the precedent decisions and those of the ECtHR
Facts
- 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]
- 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
Moohan v Lord Advocate (Advocate General for Scotland intervening) [2015]
Section 2
Facts
- Lord Wilson JSC suggested to ‘retreat’ from the ‘Ullah principle’ which led the courts to substantially modify it
Held
- 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
What is an Act that had been affected by Section 2 HRA 1998?
The Safety of Rwanda (Asylum and Immigration) Act 2024
What was the problem with the Bill, what were the relevant matters, and how is the Act today?
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
What is Section 3 HRA 1998?
What is an important thing to note about this act which was given by an authority & in which case?
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.”
What are the 2 cases for Section 3 HRA?
- R v A [2001]
- Ghaidan v Godin-Mendoza [2004]
R v A [2001]
Section 3
Issue
- This case concerned the interpretation of Section 41 of the Youth Justice and Criminal Evidence Act 1999 - which prohibited previous sexual history
- Where it involved sexual offence from being elicited in evidence by a Defendant in light of Article 6 (right to fair trial)
Facts
- 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
- However, this interpretation was more radical than ordinary interpretations which permitted departure from language of an Act to avoid absurd consequences
- The techniques used wouldn’t only involve reading down the expressed language (real intention) in statute but also implication of provisions
- 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
Ghaidan v Godin-Mendoza [2004]
Section 3
IMPORTANT
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
- HOL held that it would be contrary to Art 14 & 8, to deny Godin-Mendoza the right to succeed statutory tenancy
Held
- Succeeded to interpreted under Section 3 HRA to be compatible with convention rights
- 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)
What is there to note about Section 3 HRA 1998?
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
What is Section 4 HRA 1998?
What is there to note about this?
What is the IMPORTANT academic view given?
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
What are the 3 cases for Section 4?
R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [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]
R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018]
Section 4
Held
- 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
R (on the application of Nicklinson and another) v Ministry of Justice [2014]
Section 4
Facts
- Mr Nicklinson and Lamb suffered from irreversible physical disabilities amounting to ‘locked-in syndrome’. Almost resulted in a stroke
- They wanted assisted suicide
- They argued that Art 8 allowed a third party is allowed to help with assisted suicide
- 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)
declined DOI
R (on the application of Noel D Conway) v the Secretary of State for Justice [2018]
Section 4
IMPORTANT
Facts
- Coway a 68 year old man, was diagnosed with motor neurone disease (MND), which attacks the nerves for controlling voluntary muscle movement
- He required a Non-Invasive Ventilation (NIV) to assist with breathing, which was needed several hours each day
- He wished for assisted suicide by a medical professional
- 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
- He proposed that he had been clinically assed prognosis of 6 months or less to live
- 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
- Declined DOI
- COA cited Nicklinson’s case, but distinguished it on specific issues (material facts are different)
- 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
Declined DOI
What are the 2 cases for disenfranchisement (deprivation) of prisoners - Secion 3 of the Representation of People Act 1983
- R (Chester) v Secretary of State for Justice and another [2010]
- Moohan v Lord Advocate [2014]
R (Chester) v Secretary of State for Justice and another [2010]
IMPORTANT
Disenfranchisement of prisoners
Facts
- Claimant sought judicial review against the Secretary of State of Justice and local authority for restricting him from voting in Parliamentary and EU elections
- He seeked a DOI that Section 3 of the Representation of the People Act 1983 was incompatible with Article 3 (free and fair elections)
- 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)
- This was argued that courts should not ‘read down’ and should make a DOI instead (section 4 HRA)
Held - Laws LJ
- Explained that the Strasbourg Court (ECtHR) accepted that Article 3 was not absolute. As different states may have different domestic laws
- He further stated that COA could not declare a DOI as it was matter for the HOL/Parliament to change the law
- On grounds that COA didn’t have the constitutional power to do so
Moohan v Lord Advocate [2014]
Disenfranchisement of prisoners
Facts
- Appellant prisoners appealed against the decision of the 1938 Act restricting them from voting
Held
- Was held that the Act in Scottish independence referendum was lawful
- On grounds that the words of Article 3 was in respect of periodic elections to a democratically elected legislature
Takeaway
- It did not cover any major political decisions
What is Section 6 HRA 1998?
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))
What is there to note about Section 6?
Section 6 is a key enforcement provision (a vertical nature of human right obligations)
Is there a definition given in Section 6?
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))
How does Section 6 apply to different bodies of nature?
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]
What is an exception for the application of Section 6 regarding public authorities/bodies?
Where public body won’t apply
Section 6(1) does not apply to a public authority if (stated by Section 6(2)-
- Authority couldn’t have acted differently because of primary legislation;
- Or in the case of provisions made under primary legislation which can’t be read in a way compatible with Convention rights
2 exceptions
What are the 3 cases for section 6 HRA?
- Poplar v Donoghue [2001]
- Aston Cantlow and Wilcote with Billesley Parochial Church council v Wallbank [2004]
- Cameron and Others v Network Rail Infrastructure Ltd. [2006]
Poplar v Donoghue [2001]
Section 6
IMPORTANT
Facts
- D moved into local authority property
- While a decision was pending whether she was intentionally homeless
- The place were under duty of local housing authority to allow her for the time being (while decision was pending) - Housing Act 1996
- Property was then transferred to Poplar
- Poplar was created by Tower Hamlets, to transfer substantial proportion of the council’s housing stock
- Tower Hamlets decided D was intentionally being homeless
- D argued breach of Article 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
- Poplar was held to be a private body
- 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
- 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)
Aston Cantlow and Wilcote with Billesley Parochial Church council v Wallbank [2004]
Section 6
Facts
- Concerned an obligation to repair the chancel of a church, by a particular property nearby the church (it’s a public duty to repair)
- D’s argued the Parochial Church Council was a public authority - which would made them bound by HRA
- As the duty to repair the church, was depriving the D’s of their possession. It was also controlling them of their property
- Thus, breaching peaceful enjoyment (Protocol 1, Article 1)
Held
- HOL held that church was not a public authority
- They stretched the definition of hybrid public authorities
- As they exercised both public & private functions, and were not public authorities in respect of acts of private nature
- On grounds that the Parochial Church Council had nothing to do with processes of either central/local government
Cameron and Others v Network Rail Infrastructure Ltd. [2006]
Section 6
Issue
- Whether Network rail was a private body or public authority and could be subject under HRA 1998
Facts
- 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
What adoes Section 6(3)(b) provide?
‘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
Under Section 6(3)(b), how can a private body be considered like a publioc authority?
Private bodies can be like public authorities in 2 ways (cumulative test +)
- Carrying out public function/serving the public; and
- Controlled/accounted by government/parliament
What are the 2 cases for Section 6(3)(b)?
- YL (by her litigation friend the Official Solicitor) v Birmingham City Council and Others [2007]
- Fearn v Board of Trustees of the Tate Gallery [2019]
YL (by her litigation friend the Official Solicitor) v Birmingham City Council and Others [2007]
Section 6(3)(b)
Facts
- Claimant relied on HRA when challenging a decision by a private care home (ran as a business)
Held
- Not inherently a government function
- 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
- Adopted a narrow approach that private bodies exercising functions that are not public in nature, are not public authorities
- 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
Fearn v Board of Trustees of the Tate Gallery [2019]
Section 6(3)(b)
Facts
- 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
- The walkway of the gallery were on the 10th floor
- But visitors could look into neighbours flats
- Tate was regulated by statute
- It received public funding to ⅓ of its running cost
- The gallery was required to act in public interest
- 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
Used the cummulative test from Section 6(3)(b)
What is the victims requirement of Section 6 HRA 1998?
What are the 2 tests to satisfy?
(contrast with standing test in judicial review cases)
- Claims under Section 6(1) must show that he or she is a “victim of the unlawful act”
- One is a victim only if they are directly affected by the violation
What is the case where the claimant was a victim?
Section 6 HRA 1998
- Dudgeon v UK [1981]
Dudgeon v UK [1981]
Victim
Facts
- 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
Can there be claim as an indirect victim under Section 6?
What is the case that states this?
Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016]
Daniel v St George’s Healthcare NHS Trust and London Ambulance Service [2016]
Indirect victim
Facts
- Family members of the V (foster mother & foster brother) of a man who died of a heart attack in prison
- Remand claimed that they were ‘indirect victims’ of culpable delay in treatment
Held
- Family members of V’s can also can bring proceedings
- Held that the 1st claimant was an indirect V, as she had been JB’s foster mother for 3 years
- 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 -
- Nature of the legal or family relationship with D;
- Nature of the personal ties between D;
- Extend to which the violations of the Convention 1) affected them and 2) caused them to suffer;
- Involvement in proceedings arising out of the D’s death
What are the 2 cases where the claimants were not held to be victims?
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
What provision provides the remedial action that a D can take udner Section 6 HRA 1998?
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.” - Section 8 HRA 1998
What are the 2 types of remedies possible for Section 6
Remedies that could be obtained in judicial review
- Order to pay damages or compensation
What is there to note about courts regarding compensations to cases without financial losses?
What are the 2 cases to compare the remedy that court had given the Claimants.
Section 6
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
What was the background/history behind the Bill of Rights Bill 2022 - 2023
- Introduced to Parliament by LC and Secretary of State for Justice in June 2022
- But was denied by Liz Truss
- Reintroduced by new PM, Rishi Sunak
- The Bill proposed to retain all the convention rights, as well as their ability to be enforced in domestic courts
- 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
What were the 6 proposals that the Bill of Rights Bill stated?
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
