HRA Flashcards
Explain s2 of the HRA.
Provides that when UK court is dealing with case involving a convention right, court must take into account any judgment of the ECtHR.
ECtHR case law is therefore an important source of UK law.
If there is clear line of authority on interoperation of a convention right, the courts are expected to interpret it similarly (often referred to as the mirror principle).
Explain section 3 of the HRA 1998.
Requires Uk courts (so far as possible) to interpret legislation in a way which is compatible with convention rights, as interpreted by ECtHR.
This is a power of interpretation, allowing courts to depart from basic language of legislation give effect to underlying intention of parliament.
Explain s4 HRA 1998 (declaration of incompatibility).
If not possible to interpret act of parliament consistently with convention rights (as required by s3), court can make a declaration of incompatibility.
This does not make the legislation invalid, and court must still apply the legislation to the case before it.
However, declaration serves as signal to gov/parliament that the matter may need reconsidering.
Explain s10 of the HRA 1998.
Provides two fast track procedures to correct legation found to be incompatible with the convention.
There is one for urgent matter and one for non-urgent matters.
Explain the non-urgent procedure of rectification (one of the fast track procedures under s10 HRA).
Allows both act of parliament and secondary legislation to be amended by a remedial order (which is a form of secondary legislation).
A remedial order can become law following the approval of both houses, after 60 days of being presented to both houses.
Explain the urgent procedure of rectification (one of the fast track procedures under s10 HRA).
If the person making the order (usually gov minister) deeds subject matter urgent, it can be made immediately ad takes immediate effect.
it must however then be laid published before parliament and ceases to have effect if within 120 days ether house has not passed a resolution approving it.
Explain s6 HRA 1998.
Makes it unlawful for a public authority to act in a way which is incompatible with a convention right.
This creates an extra statuary ground for judicial review, so if body falls within scope of this section, their decisions can be challenged on basis of breach of human rights.
Define public authority for the purposes of s6 HRA 1998.
Includes court, tribunal, or any person whose functions are of a public nature (eg secretary of state, local authority or gov agencies).
Note this DOES NOT apply to the commons/lords.
When will a public authority’s actions not be found unlawful under s6 HRA?
Where they could not have dealt with the matter any other way without violating an act of parliament, or if the primary legislation being followed could not be read or given effect in a way which is compatible with convention rights.
In such circumstances, a declaration of incompatibility would be issued.
Explain section 7 HRA 1998.
Specifies action may only be brought under s6 by a victim of the alleged unlawful act.
This effectively means representative standing which is allowed for judicial review (eg interest groups seeking review on behalf of others) is not permitted.
ECtHR has interpreted victim to mean those directly affected.
It also states claims under s6 must be brought within 1year of when the act took place.
Explain s8 of the HRA 1998.
If action under 6 is successful, court can grant remedy within their powers, which it considers appropriate and just.
Court therefore has discretion.
If the cost would have the power to award damages, then it has the power to award damages under section 6.
