Preliminaries Flashcards
What are the statutory provisions and cases that determine if the person is a victim?
s7(1) only victims may bring a claim.
s7(7) to be a victim must comply with Article 34 ECHR.
Article 34: either a person (legal of factual: SUNDAY TIMES v UK), NGO or group of individuals.
KLASS v GERMANY: person must be directly affected.
What are the time limits about bringing a claim?
s7(5); one year after alleged breach; extension where equity permits.
What section sets out the types of body that a HR claim can be brought against?
s6(1): core.
s6(3)(b): hybrid.
s6(5): private.
s6(1): unlawful for pubic authorities to act incompatible.
s6(5): only the public part of hybrid bodies is bound.
What cases help determine whether a body is core/hybrid/private?
POPLAR HOUSING: enmeshed activities.
WHEELER: need only one public function.
ASTON CANTLOW v WALLBANK: P/A is one where the nature is governmental in a broad sense: look at special powers, funding, accountability, constitution.
H&SC A 2008: care home always a public function.
What is the jurisdiction limit?
Article 1 ECHR: anyone in state jurisdiction.
Bankovic v Belgium: includes military occupation, diplomatic staff.
After preliminaries; does the action engage an ECHR right? Explain the right and then asses if there is a violation.
For the relevant article.
In determining if there is a breach, which defences should be considered?
Act is unlawful (6(1)), unless:
s6(2)(a): body required to act in that way due to legislation; HOOPER: the key is to determine the legislation INTENDED to give rise to a duty.
s6(2)(b): body is acting to give effect to incompatible subordinate legislation (discretionary power and can chose to act).
(both include a failure to act: s6(6)).
Is the issue going to amount to a s3 or s4 approach?
s3: so fat as possible to do so, read legislation to give effect in a way compatible with convention rights.
s4: declaration of incompatibility.
s3 approaches are advocated in which cases?
R v A (Sexual History): Lord Steyn: sometimes nec. to adopt a linguistically strained reading; s4 is a last resort. Lord Hope: advocates more s4 due to paramount objective to uphold rights.
GHAIDAN v GODIN-MENDOZA: Lord Nichols: s3 should allow courts to read in words, otherwise it is a semantic lottery. Lord Roger: inserted words must go with the grain of the legislation.
s4 approaches are advocated in which cases?
Bellinger v Bellinger: courts wont make decisions if has wide reaching social ramifications.
(& Lord Hope in R v A).
What do academics say about these approaches?
NICOL 2004: the emphatic rejection of over-zealous interpretation in Anderson and Re S confirms the HOLD are now in favour of restricting s3 and availing more s4.
BUT: Criticised by Kavanagh: context.
What remedies are available for a s3 approach?
Public body has no defence and so remedies are available:
s8: they must be just and appropriate.
If s4 is used what remedies are available?
Public authorities may use a s6(2) defence.
No personal remedies are available, however:
s10(2): action must be taken by ministers to remove the incompatibility.
Schedule 2: sets out two routes; regular (60 days) and fast track.
In addition: in absence of remedial legislation a victim may take their claim to Strasbourg.
What does s2(1) hold?
Courts must take into account past ECHR decisions.
ULLAHS CASE: shouldn’t depart from these unless necessary and upholding a future right.
