Introduction to ECHR and HR

Question 1

What is the definition of a public authority under the Human Rights Act (HRA)?

Answer 1

Under the HRA, a public authority includes any person certain of whose functions are functions of a public nature. This definition distinguishes acts performed by bodies of a ‘private nature’ from those performed by bodies of a ‘public nature’.

Question 2

What is the purpose of section 3 in relation to interpreting statutes?

Answer 2

Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. It allows for the reading down of express language in a statute and the implication of provisions.

Question 3

What was the purpose of the Human Rights Act (HRA) 1998?

Answer 3

The main function of the HRA was to incorporate the body of law in the ECHR into UK law so that the standards and obligations within it could be enforced in our domestic courts. The HRA also allowed for a more practical and efficient system of domestic rights protection.

Question 4

When can a court make a declaration of incompatibility?

Answer 4

A court can make a declaration of incompatibility when it does not consider it appropriate to adopt a section 3 interpretation of relevant law. This declaration signifies that a particular provision is incompatible with an ECHR right.

Question 5

What is the principle of proportionality in ECHR law?

Answer 5

The principle of proportionality is a key principle in ECHR law. It is a standard that is expressly contained in the qualified rights in articles 8 to 11 and also features as the standard within the test for limiting the right to life in article 2. The principle of proportionality is multi-faceted and the ECtHR employs slightly different variations of the test with respect to the articles when considering whether a fair balance has been struck by the state between the general interests of the community on the one hand, and the protection of individuals’ human rights on the other.

Question 6

Can a private body performing a function of a public nature be liable under the HRA?

Answer 6

Yes, a body that may be private in nature but is performing a function of a public nature can be liable under the HRA in respect of that particular public function. However, no liability will arise in respect of a private function being performed. This issue often arises in relation to bodies such as housing associations and care homes.

Question 7

What are the three sections of the European Convention on Human Rights (ECHR)?

Answer 7

The ECHR is divided into three sections. Section I seeks to protect civil and political rights, as well as a limited number of social rights. Sections II and III outline procedural aspects of the operation of the Convention.

Question 8

What factors are relevant in determining whether a function is a public one?

Answer 8

According to Lord Nicholls in the case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, factors that may be relevant in assessing whether a function is a public one include: being publicly funded, exercising statutory power, taking the place of central government or local authorities, and providing a public service.

Question 9

What was the outcome of the case Bellinger v Bellinger?

Answer 9

In Bellinger v Bellinger, the House of Lords held that it was not possible to use section 3 of the Human Rights Act to interpret the phrase ‘male and female’ in the Matrimonial Causes Act 1973 as including the gender identity of ‘transsexual’ people.

Question 10

What is the role of the ECtHR in determining the compatibility of restrictions or penalties with freedom of expression?

Answer 10

In Handyside v UK (1976) 1 EHRR 737, the ECtHR explained that while state authorities are in a better position than the international judge to give an opinion on the exact content of moral requirements and the necessity of a restriction or penalty, the court is empowered to give the final ruling on whether a restriction or penalty is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation goes hand in hand with European supervision.

Question 11

What are absolute rights, limited rights, and qualified rights in the ECHR?

Answer 11

Absolute rights are those that cannot be legitimately interfered with by the state, such as the right to be free from torture or inhuman treatment. Limited rights can be legitimately interfered with by the state in certain prescribed circumstances. Qualified rights can be lawfully interfered with by the state under specific conditions outlined in the second paragraph of each article.

Question 12

What is the standing requirement for bringing a claim under the HRA?

Answer 12

To bring a claim under the HRA, an applicant must satisfy two requirements: (1) the claim must be against a public authority, and (2) the applicant must show that they have standing to bring the claim. Standing requires showing that the applicant is (or would be) a victim of the unlawful act.

Question 13

What is the statutory defence under Section 6(2) of the Human Rights Act?

Answer 13

The statutory defence under Section 6(2) provides that public authorities are not liable for acting in a way that is incompatible with a Convention right if they could not have acted differently due to provisions of primary legislation or if they were acting to give effect to or enforce provisions that cannot be read or given effect in a way compatible with Convention rights.

Question 14

What are the requirements for a state to interfere legitimately with a qualified ECHR right?

Answer 14

For a state to interfere legitimately with a qualified ECHR right, it must meet three requirements: (a) the interference was prescribed by, or in accordance with, the law; (b) the interference was in pursuit of a legitimate aim; and (c) the interference was necessary in a democratic society (i.e., proportionate).

Question 15

What is the time limit for bringing a claim under the HRA?

Answer 15

Actions under the HRA must be commenced within one year of the date of the act complained of. However, an extension of time may be granted in exceptional cases where the court considers it ‘equitable’ to do so. If the alleged violation of a right is considered to be a continuing matter, time will not start running until the violation ceases to operate.

Question 16

What is the effect of a declaration of incompatibility on legislation?

Answer 16

A declaration of incompatibility does not strike down or invalidate the sections of the legislation found to be incompatible. Instead, it serves as a signal to the government and Parliament that the legislation is not compliant with the ECHR.

Question 17

What is the significance of the mirror approach in interpreting Section 2(1) of the HRA?

Answer 17

Section 2(1) of the HRA states that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration, or advisory opinion of the European Court of Human Rights. The mirror approach refers to the approach where domestic courts follow any clear and consistent jurisprudence of the ECtHR unless there are special circumstances or the decisions of the ECtHR would compel a conclusion fundamentally at odds with the UK constitution.

Question 18

What is the concept of positive obligation in the context of human rights?

Answer 18

The concept of positive obligation refers to the duty of the state to prevent the violation of human rights by non-state actors. This can be fulfilled through enacting laws that prohibit and punish individuals who commit Convention violations.

Question 19

Who can bring a claim under the HRA?

Answer 19

A person bringing a claim under the HRA can be a natural or legal person, such as corporate bodies, trade unions, and political parties. However, non-governmental organizations (NGOs) can only bring an action when they are claiming that their own rights as an organization have been violated.

Question 20

What is the court’s initial duty when a public authority relies on the statutory defence under Section 6(2)?

Answer 20

When a public authority relies on the statutory defence under Section 6(2), the court’s initial duty is to try to interpret the offending provision in a Convention compatible way. If this is not possible, the court may consider making a declaration of incompatibility under Section 4.

Question 21

How did the House of Lords interpret the Rent Act 1977 in the case Ghaidan v Godin-Mendoza?

Answer 21

In Ghaidan v Godin-Mendoza, the House of Lords used section 3 powers to read in the additional words ‘as his husband and wife’ into section 76(1) of the Rent Act 1977, making it compatible with Articles 8 and 14 of the ECHR.

Question 22

What is the margin of appreciation doctrine in the context of human rights?

Answer 22

The margin of appreciation doctrine recognizes that contracting states have a certain measure of discretion when taking measures that restrict ECHR rights. This discretion is based on the assumption that states have better knowledge of their political, social, and cultural traditions. However, the exercise of state discretion is still subject to supervision by the ECtHR.

Question 23

What is the purpose of Section 8 of the Human Rights Act?

Answer 23

Section 8 of the Human Rights Act allows a court to grant a remedy if it finds that a public authority has acted contrary to its duty under Section 6(1) of the Act. The court may grant such remedy as it considers just and appropriate.

Question 24

What is the scope of the standing test under Article 34 of the ECHR?

Answer 24

To satisfy the victim test under Article 34 of the ECHR, applicants must show that they are directly affected by the state action. The standing test applies to both natural and legal persons, including corporate bodies.

Question 25

What powers do government ministers have under Section 10 of the Human Rights Act?

Answer 25

Under Section 10 of the Human Rights Act, government ministers have the power to take expedited remedial action when a declaration of incompatibility is made under Section 4.

Question 26

What are the key provisions of the HRA concerning the relationship between the ECtHR and UK domestic courts?

Answer 26

The key provisions of the HRA concerning the relationship between the ECtHR and UK domestic courts are: Section 2, which requires courts to take into account relevant ECHR case law in determining legal questions; Section 3, which requires legislation to be read and given effect in a way that is compatible with ECHR rights; Section 4, which allows courts to make a declaration of incompatibility if legislation cannot be interpreted compatibly with ECHR rights; and Section 6(1), which makes it unlawful for public authorities to act in a way that is incompatible with Convention rights.

Question 27

What does Section 19 of the Human Rights Act require?

Answer 27

Section 19 of the Human Rights Act requires the Minister responsible for a bill to make a statement, before the Second Reading of the bill, regarding the compatibility of the provisions with the ECHR.

Question 28

What are the limits to the courts’ interpretative duty and powers under section 3?

Answer 28

The courts cannot change the substance of a provision completely, make changes that run counter to a fundamental feature of the legislation, contradict provisions in the legislation, repeal or delete the language used in the legislation, or make decisions for which they are not equipped. The courts’ interpretative duty is subject to certain boundaries.

Question 29

What was the outcome of the Osman v UK case?

Answer 29

In the Osman v UK case, it was held that there was a positive obligation on the state, in this case the police, to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, it was found that the police could not be taken to have known that the lives of the Osman family were at real and immediate risk, so there was no breach of Article 2, the right to life.

Question 30

What is the purpose of Section 8 of the HRA?

Answer 30

Section 8 of the HRA covers the provision of remedies. It allows the court to grant relief or remedy, or make an appropriate order, within its powers, in relation to any act (or proposed act) of a public authority that is found to be unlawful.

Question 31

What is the concept of ‘public authority’ in the context of the HRA?

Answer 31

The concept of ‘public authority’ in the context of the HRA is not specifically defined. The HRA excludes the Westminster Parliament in its legislative roles and any person exercising functions in connection with proceedings in Parliament. The HRA recognizes three types of bodies: core public authorities, hybrid or functional public authorities, and private bodies. Core public authorities are bodies that are clearly and inherently public in nature, such as central government departments, local authorities, the police, and the Inland Revenue. The determination of whether a body is a core public authority does not have a definitive test.

Question 32

What are the limitations on the power to award a remedy under Section 8 of the HRA?

Answer 32

The power to award a remedy under Section 8 of the HRA is limited in several respects. The nature of the remedy will vary depending on the context of the case and the court or tribunal where the claim is being heard. The range of remedies may include damages, declarations, injunctions, quashing orders, prohibitory orders, and mandatory orders.

Question 33

What is the purpose of Section 10 of the HRA?

Answer 33

Section 10 of the HRA provides for remedial action in response to a declaration of incompatibility made under Section 4. It allows the relevant ministers to take expedited ‘remedial action’ to amend the relevant legislation as necessary to remove the incompatibility, if there are compelling reasons for proceeding under this section.

Question 34

What is derogation according to Article 15 of the ECHR?

Answer 34

Derogation, as stated in Article 15 of the ECHR, refers to the ability to temporarily suspend certain rights and freedoms in exceptional circumstances.

Question 35

What are the two procedures outlined in Schedule 2 of the HRA?

Answer 35

Schedule 2 of the HRA sets out two procedures. The standard procedure requires a draft amending order to be laid before Parliament for 60 days before being approved by both Houses of Parliament. The second remedial procedure applies to urgent cases, where the order may be laid before Parliament for approval after it is made.

Question 36

What happens if all available domestic remedies have been exhausted?

Answer 36

In the absence of remedial legislation and administrative action to provide an effective remedy for the individual, the claimant may have recourse to the ECtHR, as all available domestic remedies will have been exhausted.

Question 37

Under what circumstances can a victim make a claim for acts that have occurred outside the geographical location of the relevant contracting state?

Answer 37

In certain exceptional circumstances, a victim can make a claim for acts that have occurred outside the geographical location of the relevant contracting state. This can include matters arising from the activities of diplomatic staff abroad or when the state has effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation, or because the government of that territory had consented or acquiesced to the exercise of its powers.

Question 38

What is the test for derogation under Article 15 of the ECHR?

Answer 38

The test for derogation under Article 15 of the ECHR constitutes a proportionality approach. When the derogation right is invoked, the lawfulness of the derogation is ultimately determined by the courts of the state and, if necessary, the ECtHR.

Question 39

What does Section 6(2) of the HRA provide?

Answer 39

Section 6(2) of the HRA provides a statutory defense to a breach of Convention rights. If a public authority can demonstrate that it acted in a way that is compatible with a Convention right, the defense will effectively prevent it from being held liable under Section 6(1) of the HRA.

Question 40

What is a positive obligation?

Answer 40

A positive obligation with respect to human rights law is an obligation on the part of the state to prevent the violation of rights being carried out by third party, non-state actors.

Question 41

Test for standing?

Answer 41

Put simply, the test for standing under the HRA 1998 is that the applicant must be a directly affected victim of the unlawful act.

Question 42

What are the two ways in which ECHR proceedings commence?

Answer 42

(a) State applications. If a state is in violation of the ECHR, proceedings may be brought against it by another signatory state.
(b) Individual petitions to the ECtHR.

Question 43

What are the two main stages when bringing an ECHR claim?

Answer 43

There are two main stages in cases brought before the Court: the admissibility stage and the merits stage.

Question 44

Derogations?

Answer 44

Under Article 15 of the ECHR, a state may derogate from part of the ECHR ‘in time of war or other public emergency threatening the life of the nation’. This means that for the period of the derogation the state is not bound to apply the specified provisions. There are, however, conditions that limit the power to derogate, and no derogation is possible in respect of Articles 3 (torture, etc), 4(1) (slavery), or 7 (retrospective criminal offences), or from Article
2 (right to life) except in respect of deaths resulting from lawful acts of war. The principle is clearly that some violations of human rights are so wrong that no state should countenance them, even in wartime.