HUMAN RIGHTS ACT

Question 1

RELATIONSHIP BETWEEN THE ECHR AND HUMAN RIGHTS ACT 1998

Answer 1

1. The UK signed the European Convention on Human Rights
   (‘ECHR’) in 1950. Under the ECHR, people who assert a breach of their rights under the Convention may take their case to the European Court of Human Rights (‘ECtHR’) once they have exhausted the legal process in their country, and the ECtHR can then make a binding decision.
2. To enable the UK courts to give effect to the rights protected by the ECHR, the UK incorporated the ECHR into UK law with the Human Rights Act 1998 (‘HRA’).

Question 2

HRA SECTION 1—INCORPORATION OF CONVENTION RIGHTS

Answer 2

1. HRA Section 1 outlines the ‘Convention rights’: the rights of the ECHR that are incorporated into UK law.
2. there are three types of Convention rights: abso-lute, limited, and qualifed.

Question 3

Absolute Rights

Answer 3

Absolute rights are rights that cannot be limited by the state even in times of war or a national emergency. Neither can they be balanced against the needs of public interest or other individuals.

Question 4

Limited Rights

Answer 4

A limited right means that the actual scope of the right can
be limited only as provided in the article itself.

Question 5

convention rights

Answer 5

Question 6

Qualifed Rights

Answer 6

Qualifed rights are rights that can be limited by the state in order to pursue a legitimate interest as outlined in the particular article.

Question 7

Qualifed Rights

Answer 7

a.Article 10—Freedom of Expression
b.Article 11—Freedom ofAssembly and Association
c.Other Qualifed Rights

Question 8

Article 10—Freedom of Expression

Answer 8

Article 10 provides that “Everyone has the right to freedom of expression”, which includes the “freedom to hold opinions and to receive and impart information and ideas without
interference by public authority”. However, Article 10 goes on to provide that this right can be limited by law to the extent necessary in a ‘democratic society’ to achieve the following legitimate aims: national security, territorial integrity, public safety, the prevention of disorder or crime, and the protection of health or morals.

Question 9

Article 11—Freedom ofAssembly and Association

Answer 9

Article 11 provides that everyone has the right to peaceful assembly and to as-sociate with others but allows the state to adopt laws impos-ing restrictions on this right as are necessary to achieve the following legitimate aims: national security, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.

Question 10

3

Proportionality
When the state is seeking to restrict a qualifed right with the aim of achieving one of the objectives outlined in the law, the restriction must be** ‘necessary**’. A three-part proportionality test is used by the courts to determine whether a challenged measure is necessary.

Answer 10

*The object of the policy and the legitimate aim pursued is **sufficiently important **to justify limiting a fundamental right;
*The measure is designed to meet the objective and is **rationally connected to it;
*The interference with the right is no more than neces-sary to accomplish the objective (that is, no less onerous means can achieve the aim); and
*The measure is **reasonable and balanced **in all the circumstances, given the competing needs of the individual and the wider community.

Question 11

Other Rights Protected by the HRA

Answer 11

*Protocol 1, Article 1: Right to Property;
*Protocol 1, Article 2: Right to Education;
*Protocol 1, Article 3: Right to Free Elections; and
*Protocol 13, Article 1: Abolition of the Death Penalty.

Question 12

Judicial Deference

Answer 12

Judicial deference is closely related to the concept of proportionality. The more politically controversial the issue, the more likely that the courts, when applying the proportionality test, will defer to the government and Parliament.

The great-er the deference shown, the less argument and evidence is
required to show that a measure is proportionate. A greater level of deference is likely to be shown when a case involves questions of national security.

Question 13

Margin of Appreciation

Answer 13

1. When the UK government is challenged before the ECtHR, they may argue that they are allowed **a ‘margin of appreciation’, **essentially that they are permitted **some discretion over the extent to which a right can be restricted. This particularly applies when the government seeks to limit a qualifed right **in pursuit of a legitimate purpose.
2. If there is a consensus amongst the member states of the ECHR (that is, a common approach amongst a majority of the states on the issue), then the court is likely to apply a narrow margin of appreciation. Under a narrow margin of appreciation, the ECtHR will conduct a full and detailed review of the interference with the right. Thus, the court will consider whether the discretion exercised complies with the ECHR (meaning it will apply the proportionality test for qualifed rights) andwhether the discretion was exercised carefully and in good faith.
3. By contrast, if each state approaches the issue diferently, then the margin of appreciation is likely to be much broader, and the state is given a broader discretion regarding how the right is protected and when it can be
   restricted.

Question 14

Living Instrument Principle

Answer 14

The ECtHR has considered that the ECHR is a living instrument, so that the meaning of the ECHR can adapt to chang-ing social and economic conditions.

Question 15

3 principles under living instrument principle

Answer 15

a.Not Bound by Previous Decisions
b.Consistent Approach of Contracting States
c.ECtHR Must Be Accessible to All Individuals

Question 16

Not Bound by Previous Decisions

Answer 16

The ECtHR can follow its own previous decisions, in line with precedent. However, it is free to depart from previous decisions if a new issue arises or other developments justify a change in how the ECHR is interpreted.

Question 17

Consistent Approach of Contracting States

Answer 17

The ECtHR may also choose to follow an approach adopted by some or all of the contracting states on a particular issue or Convention right. This may sometimes be a key reason for the ECtHR to depart from previous decisions.

Question 18

ECtHR Must Be Accessible to All Individuals

Answer 18

The ECtHR interprets the ECHR in a practical and accessible manner. For example, in one of its earliest cases against the UK, the ECtHR stated that prisoners should have access to solicitors whilst in jail. To deny them this right was effectively a breach of the right to a fair trial.

Question 19

Derogation

Answer 19

In limited circumstances (see ‘Situations’ below), a state can
derogate from most, but not all, articles of the ECHR. The
efect of a derogation is that the state is no longer required
to comply with the article to which the derogation relates.

Question 20

limits of derogation

Answer 20

A state can derogate from any article of the ECHR other than Article 2 (Right to Life (except in respect of deaths resulting from war)), Article 3 (Prohibition of Torture), Article 4(1) (Prohi-bition of Slavery), and Article 7 (Prohibition of Retrospective
Criminal Ofences).

Question 21

situation of derogation

Answer 21

A state can derogate in the event of war or other public emergency that threatens the life of the nation.

Question 22

extent of derogation

Answer 22

Any derogation must be only to the extent strictly required by the exigencies of the situation.

Question 23

2

HRA SECTION 2—INTERPRETATION OF CONVENTION RIGHTS

Answer 23

1. HRA Section 2 provides that when a UK court is dealing with a case that involves a Convention right, the court** “must take into account” any judgment of the ECtHR**. The effect of this requirement is to make ECtHR case law an important source of law.
2. In particular, if there is a clear line of authority on the interpretation of a Convention right, the courts are expected to follow the interpretation of the ECtHR. This is sometimes called the** ‘mirror principle’,** meaning that when interpreting a Convention right, the courts will take an approach that reflects the decisions of the ECtHR—offering no more, but certainly no less, than what the ECtHR requires.

Question 24

SECTION 3—INTERPRETATION OF LEGISLATION

Answer 24

HRA Section 3 requires UK courts, “so far as it is possible to do so”, to interpret legislation in a way that is compatible with Convention rights, as interpreted by the ECtHR. This is essentially an enhanced power of interpretation that sometimes allows courts to depart from the basic language of legislation to give efect to the underlying intention of Parliament.

Question 25

SECTION 4—DECLARATION OF
INCOMPATIBILITY

Answer 25

If it is not possible to interpret an Act of Parliament or secondary legislation in a way that complies with Convention
rights under Section 3 (for instance, because the legislation is clear and is fundamentally contrary to Convention rights), then the court can make a declaration of incompatibility. Due to the principle of parliamentary sovereignty, a declaration of incompatibility does not make the legislation invalid and the court is still required to apply the legislation in the case before it. However, the declaration serves as a signal to the
government and Parliament that they may wish to consider the matter.

Question 26

Correcting Incompatibility

Answer 26

1. The legislation that has been declared incompatible could be repealed or amended via the ordinary legislative process.
2. However, this can sometimes be slow and cumbersome for what could be a relatively minor amendment.
3. Consequently, HRA Section 10 provides two fast-track procedures for correcting legislation found to be incompatible—one for non-urgent matters and one for urgent matters.
   a.Non-Urgent Procedure
   b. Urgent Procedure

Question 27

Non-Urgent Procedure
Remedial Order

Answer 27

HRA Section 10 provides a fast-track procedure, known as a remedial order, that allows both an Act of Parliament and secondary legislation to be amended via secondary legislation. A remedial order can become law following the approv-al of both the House of Commons and the House of Lords after 60 days after being laid in draft (meaning published and presented to both Houses).

Question 28

Urgent Procedure

Answer 28

If the person making an order (usually a government minister) views the subject matter as urgent, it can be made immediately and will take immediate efect. However, it then must be laid before Parliament and will cease to have effect if, within 120 days, either House of Parliament has not passed a resolution approving the order.

Question 29

SECTION 6—PUBLIC AUTHORITIES

Answer 29

Section 6 makes it unlawful for a public authority to act in a way that is incompatible with a Convention right. This has effectively created an extra, statutory ground of judicial review, in that if a body falls within the scope of this section, then their actions or decisions can be challenged on the basis of a breach of human rights.

Question 30

Defnition of Public Authority

Answer 30

For the purposes of this section, a public authority includes a court or tribunal or any person whose functions are of a public nature. This clearly includes the Secretaries of State,
local authorities, and agencies created by the government.

However, the HRA expressly excludes from the defnition the House of Commons and the House of Lords.

Question 31

2

Additional Exclusions
public authorities

Answer 31

1. A public authority’s actions cannot be found unlawful under Section 6 if the public authority could not have acted any diferently without violating the law as laid down in an Act of Parliament.
2. Neither can a public authority’s acts be found unlawful** if the primary legislation could not be read or given effect in a way that is compatible with Convention rights** (as provided for by Section 3) and the public authority acted to give effect to the legislation as it is laid out. Usually, in these circumstances, a declaration of incompatibility would be issued under Section 4.

Question 32

4

SECTION 7—PROCEEDINGS AGAINST PUBLIC AUTHORITIES

Answer 32

1. Section 7 provides that ac-tions under Section 6 can be brought only by someone who is the ‘victim’ of the alleged unlawful act.
2. it is narrower than the sufcient interest test that applies for judicial review.
3. The ECtHR has interpreted ‘victim’ to mean those ‘directly afected’.
4. A further diference with judicial review is that a claim under Section 6 must be brought within one year of when the act complained of took place.

Question 33

2

SECTION 8—REMEDIES

Answer 33

1. If an action under Section 6 is successful, the court can grant a remedy that is within its powers and that it considers just and** appropriate**. This means that the court has discretion as to whether it should award a remedy, and
2. the remedies that are available for other judicial review claims are also avail-able for claims under Section 6.

Question 34

ECHR Article 14—Freedom from
Discrimination

Answer 34

1. Article 14 of the ECHR sets out that the freedoms and rights contained within the Convention shall be achieved without any discrimination on the grounds of sex, race, nationalorigin, colour, language, political views, religion, birth, prop-erty, or other status. Direct and indirect discrimination are prohibited.
2. As the terms of Article 14 require, a claim on the basis of dis-crimination can only be brought if it is attached to the breach of another Convention right. A freestanding claim of discrimi-nation cannot be brought under the HRA.

Question 35

In addition to the defned terms of ‘sex’, ‘race’, ‘national origin’, and so on, Article 14 of the ECHR sets out
that discrimination on the basis of ‘other status’ is also prohibited. The ECtHR has interpreted ‘other status’ broadly to widen the scope of Article 14 to include the following:

Answer 35

*Sexual orientation status;
*Marital status; and
*Asylum seeker status.

Question 36

Margin of Appreciation of Article 14

Answer 36

The ECtHR only grants states a narrow margin of appreci-
ation in relation to Article 14 of the ECHR. This means that
states will have very little discretion that allows them to treat
a person less favourably on the basis of one of the protected grounds.

Question 37

Equality Act 2010

Answer 37

Additional protection against discrimination can be found in
the Equality Act 2010. This Act protects against discrimination based on sex, sexual orientation, gender reassignment, race disability, religion or belief, age, marital or partnership status, and pregnancy or maternity.

Question 38

Difference between 2010 Act and ECHR Article 14

Answer 38

The most signifcant diference between the Equality Act 2010 and Article 14 is that a freestanding claim of discrimination can be made under the Equality Act 2010.

Question 39

Types of Discrimination under 2010 Act

Answer 39

The Act prohibits direct discrimination, indirect discrimination, harassment, and victimisation.

Question 40

Direct Discrimination
2010 Act

Answer 40

Direct discrimination exists when one is treated less favourably because of their protected status.

Question 41

Harassment
under 2010 Act

Answer 41

Harassment occurs when a person is subjected to unwanted behaviour which has the purpose or effect of making that person feel humiliated, degraded, or uncomfortable. Harassment can never be justifed.

Question 41

Indirect Discrimination
2010 Act

Answer 41

1. Indirect discrimination occurs when there is a policy, practice, or procedure which applies to everyone, but which affects a protected group unfavourably.
2. However, the policy might not constitute indirect discrimination if the policy is universal and is a proportionate means of achieving a legitimate aim (known as ‘objective justifcation’).

Question 42

Victimisation
2010 Act

Answer 42

Victimisation occurs when a person is penalised for having made their own complaint of discrimination or for helping another person with their discrimination complaint.