Human Rights & the UK Cases

Question 1

R (Anderson) v SS for Home Department (2003)

Answer 1

• HRA 1998 s. 2: A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any Judgment, decision, declaration of the European Court of Human Rights
• What does “take into account” mean?
• Court will not, without good reason, depart from principles laid down in judgement in grant chamber

Question 2

Kay v Lambeth LBC (2006)

Answer 2

• Question arose as to whether lower domestic courts have to follow prior HoL decisions where they conflict with ECHR
• Held that lower courts are still bound by High Court decisions
• Duty to take ECHR law into account, but not necessarily to follow it
• -> not relieved of duty to follow prior house of lords rulings, even where they conflict with the Strasbourg Court

Question 3

R (Ullah) v Special Adjudicator (2004)

Answer 3

• Duty of courts is to keep pace of Strasbourg courts

* No more, no less (per Lord Bingham): Mirror principle

Question 4

R (Marper) v Chief Constable of South Yorkshire (2004)

Answer 4

• “We must interpret the Convention Rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence” (per Lady Hale)

Question 5

R v A (2001)

Answer 5

READING DOWN REQUIREMENT
• Strong interpretative obligation
• Applies even if there’s no ambiguity in the language
• Even if parliament’s intention is clear, and it goes against HR, courts will try and find it compatible with HR
• s. 3 places a duty on court to strive to find a possible interpretation compatible with convention rights

Question 6

Re S (Care Order: Implementation of Care Plan) (2002)

Answer 6

READING DOWN REQUIREMENT
• s. 3 (1) not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute
• Judge’s task is to interpret, not to legislate

Question 7

Ghaidan v. Godin-Mendoza [2004]

Answer 7

READING DOWN REQUIREMENT
• The Rent Act 1977 allowed the surviving spouse of a protected tenant of a dwelling house to succeed to the statutory tenancy on the tenant’s death, if living there. A person living with the original tenant as “his or her wife or husband” was treated as a spouse for these purposes. The petitioner in this case complained that this breached his Article 8 ECHR rights since he was prevented from succeeding to the statutory tenancy of his late partner, with whom he had lived in a stable homosexual relationship for almost 20 years.
• Found law was discriminatory and a violation of ECHR
• Relied on s. 3 to “read down” the provisions so as to allow the same sex partner of the deceased tenant to succeed to the statutory tenancy
• s. 3 might require court to depart from the legislative intention of provision in issue
• If purpose of HRA is to give effect to longstanding ECHR rights, and court is being asked to do what s. 3 says it must do, why is court being asked to do that?
• Cases dealt w/ in domestic courts instead of in Strasbourg
• By reading statute in such a way, brings it in line w/ convention rights
o Obligation is to read and give effect to legislation in a way which is compatible with convention rights so far as is possible
• Court is to try as hard as possible to find a compatible meaning, which may mean going beyond express words parliament has used
• Avoiding the need for a declaration of incompatibility per s.4
o Lord Millett (dissenting): “In my view, s3 does not entitle the court to supply words which are inconsistent with a fundamental feature of the legislative scheme; nor to repeal, delete or contradict the language of the offending statute”
o Lord Rodger: If the interpretive obligation is exercised in a manner which does not contradict the principle and scope of the legislation, then the court is not crossing the border from interpretation to amendment
o Lord Nicholls: “It is an unusual and far-reaching obligation that may require the Court to depart from the unambiguous meaning the legislation would otherwise bear”
o Lady Hale: have to consider ordinary meaning of leg; acknowledge that things change over time (ie social norms are different now than they were when leg. was enacted, should read leg. in view of this)

Question 8

Smith v Scott 2007

Answer 8

DECLARATION OF INCOMPATIBILITY S. 4
• The appellant argued that the law which does not allow prisoners to vote violated the Article 3 of Protocol 1 ECHR. The CoS could not rely on HRA s3 as it would depart too significantly from a fundamental feature of the legislation, so the legislation was found to be incompatible with the ECHR.
• Court said there are a bunch of ways to draw the line with regards to prisoner voting rights, but that’s NOT an interpretative exercise
o Would be legislating on it’s own account
• Not for court ot say who should vote and who shouldn’t
• That’s for parliament
• So made declaration of incompatibility

Question 9

Aston Cantlow and Wilmcote v. Wallbank [2004]

Answer 9

HRA S. 6 PUBLIC AUTHORITY
• Core Public Authority: A body whose nature is governmental in a broad sense of that expression. Hence, under the Human Rights Act a body of this nature is required to act compatibly with Convention rights in everything it does”.
• Hybrid Public Authority: A body “exercising both public functions and non-public functions […] A hybrid public authority is not a public authority in respect of an act of a private nature. (Per Lord Nicholls)