ECHR and HRA 1998

Question 1

if the government acts in response to a declaration of incompatibility, what can they do?

Answer 1

make delegated legislation by way of remedial orders

alternatively, they can submit a bill to parliament

Question 2

what do remedial orders do?

Answer 2

amend / repeal the offending legislation

Question 3

what is the limitation of a remedial order?

Answer 3

is cannot change common law

Question 4

when will a public authority not be in breach of ECHR?

Answer 4

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

Question 5

what power do courts have in relation to incompatible delegated legislation?

Answer 5

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.

Question 6

who can bring a claim for breach of ECHR rights?

Answer 6

those who are individuals and personally affected

Question 7

who cannot bring a claim for breach of ECHR rights?

Answer 7

pressure groups, because they are not individually and personally affected

Question 8

when can the court award damages for breach of ECHR?

Answer 8

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

Question 9

what does the ‘horizontal effect’ mean and allow?

Answer 9

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.

Question 10

how must UK court interpret legislation?

Answer 10

UK courts are required as far as possible to interpret all legislation, whenever enacted, in a way that is compatible with the Convention

Question 11

how much public authorities act?

Answer 11

It is unlawful for public authorities to act in a way that is incompatible with the Convention.

Question 12

if a declaration of incompatibility is made, when will the legislation be revoked?

Answer 12

any legislation declared by the UK courts to be incompatible with the Convention remains in force unless and until Parliament decides otherwise

Question 13

what is HRA considerations are made when introducing a new act?

Answer 13

When introducing legislation, government ministers have to make a statement about its compatibility with the Convention

Question 14

what is the time limit to bring a HRA 1998 claim?

Answer 14

within 1 year of the complained act

this can be extended if the court considers it reasonable in the circumstances

Question 15

what is the court’s obligation in relation to ECtHR decisions?

Answer 15

it must ‘take them into account’, but they are not bound to follow them

Question 16

can HRA apply between private individuals?

Answer 16

yes, by virtue of horizontal effect

Question 17

when can someone bring a HRA claim against a private individual?

Answer 17

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.

Question 18

what happens if there are conflicting rights in a a case?

Answer 18

there is no strict hierarchy, so the courts will assess this on a case by case basis

Question 19

which two rights regularly conflict?

Answer 19

Art 8 right to private life and Art 10 freedom of expression

i.e. celebrity and press disputes

Question 20

how does HRA approach breach of privacy claims?

Answer 20

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

Question 21

give an example of when the right to privacy has been given priority over freedom of expression

Answer 21

the identity of criminals to help them establish relationships with other humans and to prevent the risk of harassment and harm

Question 22

when will Art 8 (right to private life) be engaged?

Answer 22

if the claimant has a reasonable exception of privacy then Art 8 is engaged and will need to be balanced against Art 10

Question 23

where there is a conflict between Art 8 and 10, what will tip the balance in favour of Art 8?

Answer 23

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

Question 24

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?

Answer 24

the court should ask wether it would be highly offensive to an objective reasonable person

Question 25

what is the key consideration when considering a conflict between Art 8 and 10 in relation to publication of stories?

give an example

Answer 25

there must be sufficient public interest in the matter to justify the publication

a footballer portrayed himself to be a family man. A story was published about his infidelity. The court agreed there was a public interest in demonstrating that his portrayal was false, and so the story about his infidelity was permitted