Introduction to ECHR and HRA

Question 1

What is the procedure for brining a claim under the HRA

Answer 1

1) Must have standing (article 34 (and from a case called Klass)- rules replicated in s 7of HRA)

2) the infringement must be within the jurisdiction (article 1 ECHR) (there is no need to for a person to have proof of jurisdiction etc)

3) there are time limited- limitation under s 7(5) HRA of 1 year

4) The last point is the defendants authority and who the defendant would be- confusing point:

The public authorities can be split into 2:
1) Core Public authorities- potentially liable in all situations- they must be always act in a way that is lawful in compliance with ECHR rights (s6(1) HRA)

2) Functional Public authorities- s6(3)(b) and 6(5) extends to include some bodies that carry out some public functions but also some private functions. These are for example housing associations, nursing homes etc.

Question 2

What is the Statutory defence under s. (6) (2) HRA

Answer 2

S.6(1)- it is unlawful for a Public Authority to act incompatibly with an ECHR right.

However, s.6(1) does not apply if a statutory provision either obliges or allows a public authority to act incompatibly

Question 3

How does the human rights act counter the Statutory Defence s6(2)

Answer 3

s.3(1) so far as possible legislation must be read and given effect in way which is compatible with ECHR rights

This gives the Court power to render legislation compatible with relevant right

This Defeats “statutory defence” meaning claiming can claim remedy

In contrast:

s.4(2)- the court ‘may’ declare that a provision is incompatible with relevant right

Does not invalidate incompatible law- it flags the problem for parliament to fix, however this is not compulsory.

This means the Statutory defence remains- no remedy

Question 4

What do the Cases of R V A and Ghadian v Godin mean?

Answer 4

It introduces what the courts can and cannot do to help establish guidelines on S 3 and 4 powers.

These are things like interpreting provisions and read in words. However they also introduce things like substantially change the substance of provisions or make changes that ‘go against the gain’ of the legislation

Question 5

Outline domestic enforcement

Answer 5

Is a s6(2) defence engaged?- No- Liability under s(6)1- s.8 remedy.

Is S6(2) defence engaged?- yes- s. 3 interpretative obligation, is there a compatible interpretation possible- Yes s.6(2) fails- PA liable.

However, further to above, if s.3 is not possible, s6(2) defence succeeds. S.4 defence of incompatibility?