Impacts Of The HRA Flashcards
HR awareness raising
From 1998
2000 upsurge in training of judges, lawyers, parliamentarians, students and community groups so ppl more aware of convention rights
Increase in number of UK courts including reference to HR - not always justiciable or relevant and one aspect of note was the impact of HR on disputes between private parties (horizontal effect)
Horizontal effect through s.6 HRA
courts act tribunals must act in conformity with convention rights - does that mean HR = between private parties
• ghaidan v godin mendoza - 2 men in relationship and one who held tenancy died and landlord tried to evict other partner - act only allowed for husband and wife - private landlord and private individual
• Campbell v mirror group newspapers Ltd - looking at common law and privacy, photographed her leaving narcotics meeting and in past she denied drug use, newspaper felt they can publish as she lied but Campbell argued it was an invasion of privacy - private newspaper and private individual
Impact on private parties
Private parties = bound by HRA only where legislation is relevant to their relationship
S.3 HRA must be interpreted compatibly with convention rights by courts/tribunals and where common law has evolved, through the rights are then part of common law rather than statute (the HRA)
HRA as a sword or shield
Sword - challenge public authorities which have infringed their convention rights
section 7(1)(a) - act outlines the requirements including time limits (1 year)
A and others v Secretary of State for the home department - individuals detained who weren’t convicted of offence and couldn’t deport as may get tortured , argued need to respect rights
Shield- proceedings are brought against an individual by a public authority and those proceedings breach convention rights
section 7(1)(B) - N V SSHD -woman from Uganda who had asylum application rejected, had AIDS and immediately hospitalised in UK until stable then government tried to deport her with argument no reason to stay in UK - argued that if stay in UK get correct medical protocols and treatment if go back to Uganda won’t get correct medical treatment and may die in 2 years - court accepted this but noted she wasn’t critically ill so she could be deported
Examples of UK court cases raising HR
Freedom of expression and information - concern in 97/98 as to restrictions on press freedoms - s.12 HRA - freedom of expression has changed since act adopted due to social media - freedom of information act 2000 allows us access to information held by public authorities (TEXTBOOK 788-789)
S.12 HRA - freedom of expression - does this section allay the fears of many of the press/media on the HRA potentially limiting their ability to report/ - emphasis on importance of freedom of expression - look at circumstances to why geared must be had: public interest, public domain, privacy code
Online safety act 2023 - new statute, duty of care on tech companies to protect
Venables v news group newspaper - lifetime anonymity order ‘against the world’, due to perceived threat to well being if new identity revealed, newspaper was going to reveal an identity
Campbell v mirror group newspaper Ltd - private information/photo expectation privacy
CTB v news group newspapers Ltd and anor - famous footballer successfully secured an injunction about affair as damaging to reputation
AMM v HXW - Jeremy clarkson gained injunction against newspaper who had interview with first wife and claiming affair with second wife - didn’t want to damage wife and children - didn’t work
Religious beliefs and practices
Concern that HRA may restrict religious freedoms - arguably there has been a general strengthening of protection for religion and beliefs in law since HRA 1998 e.g. equality act 2010, racial and religious hatred act 2006
S.13 HRA - inserted to allay fears of religious bodies - if a courts determination of any Q arising under this act might affect the exercise by a religious organisation of the convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right
Regina (SB) v governors of Denbigh high school - challenge on uniform rules ina. School - especially prohibition on wearing a jilbab
Eweida v British airways plc - woman wanted to wear cross necklace - went to ECHR
Bull v Hall - unmarried same sex couple in a Civil partnership, sort to stay in hotel in Cornwall and turned away on account weren’t married so cannot share bed - owner = Christian and argued not due to gay but because of marital status (not married) - HoLs = discrimination as this rule would impact same sex couples more
Investigations into state killings/immunity from prosecution
Article 2 of European convention requires investigations
Northern Ireland troubles act 2023 - accountability for ppl killed during troubles - investigation if state involved in ascertaining why ppl died
Dillon et al re application for judicial review - if person concerned must give a true account of his conduct to best of his belief then those responsible for the killing of (three ppl names) would be entitled to immunity if they make such a request - a person could be granted immuity from prosecution if given a true account to the best of their knowledge - challenging for victims loved ones
Deportations/extraditions
Government frequently appeared frustrated with cases on deportations and extraditions thwarted by reference to HR
Article 8 - private life and family can be relevant
Article 3 - prohibition on torture created a positive obligation on gov not to deport/extradite to country where the right would be violated
Gov claimed in 2021 when proposing review that 70% successful HR challenges are brought by foreign nations offenders who cite a right to family life in the first instance when appealing deportation orders
Hesham ali (iraq) v Secretary of State for home department - deportation of claimant who arrived as a child and stayed unlawfully after failed asylum clims, then convicted of drug offences and sentenced to 4 years, then had relationship and 2 children, once released sought to deport - argued family rights - dismissed
N v SSHD - woman with AIDS - deported
Abu Qatada cases (RB (Algeria) and) OO (Jordan) V SSHD - involved individual who Uk argued potential terrorist - wanted to deport to Jordan but Jordan wanted to prosecute him and he rogued would be tortured in Jordan - against article 3 - eventually deported and acquitted of charges so innocent
HRA impact on JR and related proceedings
Significant impact - HR issues can be raised in proceedings, court can consider extent to which public authorities have met their HR responsibilities and challenge gov authorities
Proportionality in the ECHR
S+Marper v UK - S child 11 years old who had been arrested and charged with offences then acquitted and Marper who had domestic charges then case, discontinued ,both had fingerprints taken and at that time it was stored on police database, lawful to remove sample of DNA - question was whether either could be stored forever as neither found guilty - both asked for fingerprints to be destroyed and police refused - to prevent crime and protect others - so it was proportionate to the legitimate aim? Disproportionate interference with applicants right to respect of private life and cannot be regarded as necessary in a democratic society
Hols earlier decided it was necessary
Proportionality and JR in UK courts
R (on application of Daly) V SSHD - test followed that in de Freitas - confirmed in daly - restated and added to in huang - confirmed in various subsequent cases including bank mellat (no2)
Proportionality,judicial deference and the margin of appreciation
Bank mellat - lord reed - Strasbourg court recognises it may be less placed than national court to decide whether an appropriate balance has ben struck in the particular national context - judicial deference
Test for proportionality
Belfast city council v miss bheavin’ Ltd - council can refuse licence for sex shop in any locality on ground it does not consider it appropriate to have more or any sex shop in locality - local government (miscellaneous provisions) (NI) order 1985 - Belfast CC refused to give licence to MBL - CoA held council not shown conscious of the convention rights which were engaged - unlawful decision unless inevitable that a reasonable council which instructed itself properly about convention rights would have reached same decision - went to HoLs - no procedural obligation on public authorities to consider proportionality of their actions if they did, likely to be supported in court
R(nicklinson) v minister of justice - stroke leading to paralysis - wanted assisted suicide - seeking to claim he should be allowed to choose to die - AS = illegal - violation of rights as only option was to stab himself - Supreme Court - court not willing to make decision
Judicial deference
Arises not only in JR class but cases when courts are exercising their powers under s.3 and 4 HRA - courts can concede that the public authority is best placed to make certain decisions e.g. assisted suicide and national security
A and ors V SSHD (belmarsh detainees)
Covid 19 restrictions - R (Dolan) SS for health and social care - clearly in accordance with law - epersuade a legitimate aim: the protection of of health. The interference was unarguably proportionate (para 96)
Parliament still sovereign and can still infringe the convention - s.19 HRA
S.8 HRA - judicial remedies - emphasising on whether any remedy is necessary, in some instances, the cases are brought to the court through JR
