ECHR and HRA 1998 Flashcards
if the government acts in response to a declaration of incompatibility, what can they do?
make delegated legislation by way of remedial orders
alternatively, they can submit a bill to parliament
what do remedial orders do?
amend / repeal the offending legislation
what is the limitation of a remedial order?
is cannot change common law
when will a public authority not be in breach of ECHR?
Public authorities are not in violation of this rule if their actions are mandated by an Act of Parliament that is incompatible with the Convention or if they are enforcing provisions of an Act that conflict with Convention rights
this is important in terms of JR as it adds a ground - breach of convention rights
what power do courts have in relation to incompatible delegated legislation?
Courts must apply Acts of Parliament, even if they are incompatible with Convention rights.
in relation to delegated legislation, judicial review can be used to challenge laws that are incompatible with the ECHR. This gives courts the ability to set aside delegated legislation that violates human rights.
who can bring a claim for breach of ECHR rights?
those who are individuals and personally affected
who cannot bring a claim for breach of ECHR rights?
pressure groups, because they are not individually and personally affected
when can the court award damages for breach of ECHR?
when it is necessary to afford just satisfaction
the court must consider the ECtHR principles
often there will not be a need to award damages as they can be obtained from a common law cause of action
what does the ‘horizontal effect’ mean and allow?
s6 makes it unlawful for public bodies to breach HRA rights. Therefore, they are directly bound and claims can be brought against them.
S6 does not include private bodies and so does not impose direct obligations on them.
However, the court is a public body and so must develop the HRA compatibly with the cause of action of the claim.
The private individual must bring the claim on an existing cause of action. The court will then develop this compatibility with ECHR. The existing cause of action is something referred to as a vehicle for bringing the human rights element of the claim.
This is called horizontal effect. It allows individuals to also pursue claims against private bodies like newspapers, companies, or other non-governmental organizations by adapting existing areas of law.
how must UK court interpret legislation?
UK courts are required as far as possible to interpret all legislation, whenever enacted, in a way that is compatible with the Convention
how much public authorities act?
It is unlawful for public authorities to act in a way that is incompatible with the Convention.
if a declaration of incompatibility is made, when will the legislation be revoked?
any legislation declared by the UK courts to be incompatible with the Convention remains in force unless and until Parliament decides otherwise
what is HRA considerations are made when introducing a new act?
When introducing legislation, government ministers have to make a statement about its compatibility with the Convention
what is the time limit to bring a HRA 1998 claim?
within 1 year of the complained act
this can be extended if the court considers it reasonable in the circumstances
what is the court’s obligation in relation to ECtHR decisions?
it must ‘take them into account’, but they are not bound to follow them
can HRA apply between private individuals?
yes, by virtue of horizontal effect
when can someone bring a HRA claim against a private individual?
there must be an existing cause of action. The courts are then required to apply the law in accordance with HRA (because the court itself is a public body). This is called horizontal effect.
what happens if there are conflicting rights in a a case?
there is no strict hierarchy, so the courts will assess this on a case by case basis
which two rights regularly conflict?
Art 8 right to private life and Art 10 freedom of expression
i.e. celebrity and press disputes
how does HRA approach breach of privacy claims?
it attempts to prevent breach of privacy claims from unduly restricting the freedom of the press.
s12(4) states the courts must have particular regard to the right to freedom of expression and must assess:
- the extent to which the material is already in the public domain
- whether publication would be in the public interest
- whether there is any relevant privacy code
give an example of when the right to privacy has been given priority over freedom of expression
the identity of criminals to help them establish relationships with other humans and to prevent the risk of harassment and harm
when will Art 8 (right to private life) be engaged?
if the claimant has a reasonable exception of privacy then Art 8 is engaged and will need to be balanced against Art 10
where there is a conflict between Art 8 and 10, what will tip the balance in favour of Art 8?
if there is a photograph and the nature of the photograph i.e. if someone is photographed in a private area (i.e. leaving a narcotics anonymous meeting), this is more likely to weigh in favour of Art 8 (also in this case because it was a medical issue)
if there is a photograph of someone in public (specifically, a celebrity), it must contribute to a genuine debate of general interest, otherwise it is likely to breach Art 8
if the court have established that someone would have a reasonable expectation of privacy, how do the courts then balance the right to privacy with the publisher’s right to publish?
the court should ask wether it would be highly offensive to an objective reasonable person
