HRA - 3 and 4 Flashcards
What are the three key techniques to remember?
Mandatory pre-enactment political rights review. S.19 - have to declare compatible
Weak form judicial review. S.6
Increased dialogue between the executive and the courts. Increased court power since they have a weak basis in which to constitutionally review legislation.
What are the 4 key features of the HRA as outlined by Stephen Gardbaum? Which two old law cases would you contrast these features with?
- Legalised/codified bill of rights
- Mandatory rights review by executive before act enactment s.19
- Constitutional review of legislation by the courts. 3 and 4
- Formal legislative power to have the final word on what the law of the land is by ordinary majority vote.
Cf. Brind - ban on reports containing IRA was proportional. Curtailed freedom of speech. Didn’t consider ECHR in court since would incorporate thought the back door. Case failed in ECtHR - interference with art 10 was justified since pursuing a legitimate aim.
Malone - wasn’t a trespass in the Entick sense, so no redress.
What is the locus standi for a HR claim? Time limit?
Victim
1 year
Jurisdiction- must be a breach of a HR article
Main case on public authority?
What does s.6 dictate?
S.6 - a public authority must always act in ways compatible with the ECHR
‘Act’ includes failure to act s.6(6)
Exceptions : where primary leg requires the body to contravene HRs or where giving effect to primary leg can’t be interpreted to comply with ECHR.
Aston Cantlow v Wallbank
A public body is something funded by public funds, in possession of special powers, democratically accountable, derives its power from statute, has duty to act in the public interest.
Introduced the concept of core vs hybrid bodies. Can exist. Widely interpreted.
Have to ask: BUT FOR the body would the govt have to step in?
Examples of public bodies for s.6? 5 cases.
Housing associations (Poplar v Donoghue), private care home providers (Weaver), charities (Heather)
Courts are also public bodies for the purposes of s.6! (Campbell v MGN)
YL v Birmingham CC
Have to look at the EXTENT to which the body receives funding. More likely to be private if there is a lack of funding.
Outline the 3 and 4 interplay essay structure.
Enhanced role of courts Compliance with parl sov ECtHR dominance Moral entrenchment Radical change or continuity Democracy vs rule of law Success or failure
S.3 - may be interpreted - must interpret as far as possible to make it compatible with convention rights. How far can the court go?
Lord Steyn in R v A prefers the wide approach - can strain the language of stature to give it an alternative meaning
Idea: this makes s.4 a last resort tool. Lord Steyn’s last resort approach aiming to make more and better use of s.3 (practical and pragmatic, immediate results). S.4 is a declaration, a pr tool, not duty on parl to change leg. Slow and not guaranteed to be effective. Using s.3 in a broader way is a power grab for the courts.
Cf. Lord Hope in R v A
Says courts can’t re-write legislation! Too extreme.
And Lord Nicholls in Re S: court is unlikely to interpret legislation in a way that will have serious repercussions which it is “not equipped to evaluate”.
Balancing excessive between spirit of decision and rights of complainant.
Lord Nicholls in Mendoza prefers wide interpretation approach, so long as not interpreting against the grain of the legislation. Says it is possible to alter the will of parliament so long as not being inconsistent with a fundamental or cardinal feature of the legislation! So can do everything, just not make a decision based on an imputed statute - a lot of leeway here! Accepting that can deviate from parliamentary intention sometimes!
Cf. Lord Hoffmann in Wilkinson (widow couldn’t mean widowers as wasn’t parliament’s intention)
The meaning of statute = parliament’s will taking into account the presumption that parliament intended the statute to comply with the ECHR. Interesting, but probably incorrect, perspective!
Looking at REASON rather than strict intention of Parliament per se. Infer from the general concept implied rather than the express words used in the statute.
Pinnock
The courts may read words into the statue if nec. Here read the word “lawful” into the Housing Act as was absolutely necessary.
Give three examples of a s4 declaration of incompatibility.
S.11(c) Matrimonial Clauses Act 1973 (Bellinger v Bellinger)
Gender reassignment pre-marriage. Wanted a declaration that her marriage was valid. S.11(c) was declared incompatible but the application to declare marriage valid was refused - was too political (whe does gender reassignment occur?) - needed parliament to change the law, it isn’t for courts to say what is and isn’t marriage since this would be a major change in the law.
S.23 Anti-Terrorism, Crime and Security Act 2001 (A and others v SoS HD)
S.29 Crime and Sentences Act (R(Anderson) v SoS HD)
Was an appeal against sentencing (15 years had been extended to 20)
Couldn’t read “secretary of state” out of the provision!
Lord Bingham said it could use judicial interpretation but it couldn’t be judicial vandalism
If a s.4 declaration of incompatibility is made what may a public body do?
When has s.4 been successfully used?
What is the trend in the statistics?
Use s.6(2) defence - can appeal to have the declaration of incompatibility overturned
S.10 fast-track procedure: a minister may amend legislation to remove the incompatibility where compelling reasons exist to do so.
S.4 has been successfully used in Anderson (Bingham: judicial interpretation, not judicial vandalism), so how’s the limits to s.3.
Negative trend in the statistics:
Since 2000 only 29 declarations of incompatibility, of which only 29 became final
2010-2015: only 3 declarations made, 1 still st appeal.
What is s.19?
What is s.6? Is s.6 horizontally effective? 2 cases.
S.19 - statement of compatibility
S.6 - public authorities. Courts and tribunals are included in the definition (Campbell v MGN; Douglas v Hello!)
So s.6 does have horizontal effect since a court is duty-bound (as a public body) to interpret domestic legislation in line with convention rights, so individual can challenge another individual and rely on court to fulfil this duty.
This makes it harder for the courts to defer - in the last courts used to refer to the govt on cases of public interest and national security. Now have to make a decision due to this duty.
Campbell v MGN 2004
Photographed leaving narcotics anonymous. Sued in tort (civil suit, not JR)
This was C’s Art 8 against D’s Art 10. Had to balance. C won - the fact it was a medical matter (so particularly private) tipped the balance - there was a risk of harm from the fact that she may discontinue treatment.
Douglas v Hello!
Court s.6 so horizontal effect.
Buxton - says no horizontal effect (this case refutes that)
Bamforth - yes it can have horizontal effect
Wade - HRA should have horizontal direct effect
What is the mirror doctrine?
Main critic to mention here?
S.2(1): court/tribunal must take into account any judgment, decision, declaration or advisory opinion of the ECtHR.
The mirror doctrine is not required by the HRA as ECtHR decisions are often not specific enough to be applied in individual cases.
This is ok since ECtHR adopts a margin of appreciation, setting different requirements for different MSs.
Recently UK courts have departed and gone beyond ECtHR decisions (this is good as ECtHR decisions are often outdate, and in fact the ECtHR looks towards MSs to discover the consensus on rights issues)
Roger Masterman: the HRA attempts to blend national and ECtHR rights protections - the rigid mirror model diminishes the role of the domestic courts so needs to be tempered. So an advocate of the more recent approach.
Limits to s.3? 3 critics.
Kavanagh
Semantic lottery for judicial interpretation. This creates a piecemeal approach to legislation. So amendments to legislation will be slow and partial.
So some radical feats of interpretation will be necessary in some cases to give effect to convention rights. However, courts are often reluctant to depart form parliamentary intention since would be very political, so limits to s.3.
Young
The greater the deference paid to parliament the more likely it that the court will define the convention right narrowly, so likely that a wide range of (acceptable) restrictions will be placed on the right. Have to ask whether this, in principle, is ok? Rights are there to be enforced, not to be limited.
Harkin
Moving away from a system based on culture of authority to one of justification. Compliance with rights is now the ultimate test of legal validity.
So this qualifies the notion that the HRA merely makes explicit what was already implicit and present in the common law and parliamentary practice (I.e. It is not creating new rights).
Hardin saying it is reordering the PRIORITIES of the rule of law. Giving right a more secure, and more PROMINENT role.
