Public Law - ECHR / HRA 1998 Flashcards
What was the purpose the HRA 1998?
Primarily, it was to allow the enforcement of human rights in the domestic courts and incorporate the ECHR body of law into UK law.
This was more convenient than the previous route, where claimants had to petition their cases to the central ECtHR courts in Strasbourg.
(Not to be confused with EU law’s CJEU court).
Name the main human rights under the HRA and whether they are:
- Absolute
- Limited
- Qualified
Absolute Rights:
- Art.3: protection against torture or inhumane and degrading treatment.
- Art.4: prohibition of slavery & forced labour [trafficking].
- Art.7: No punishment without lawful authority (e.g. retrospective criminal punishment).
Limited Rights (can only be interfered with in limited & defined circumstances):
- Art.2: Right to life
- Art.5: Right to liberty
- Art.6: Right to fair trial and fair legal process
-
Qualified Rights (can legitimately be interfered with by the State):
- Art.8: Right to private and family life
- Art. 9: Right to freedom of thought, conscience and religion
- Art.10: Right to freedom of expression.
- Art.11: Right to freedom of assembly & association
Generally speaking, what are the conditions in which a State can lawfully interfere with rights under the HRA/ECHR?
- In accordance with prescribed law;
- (cannot be internal guidelines) - Pursuing a legitimate aim
- Interference was NECESSARY in a democratic society and was interfered with in a PROPORTIONATE manner (i.e. no more interference than necessary to achieve the aim).
EG: national security; protecting public health; protecting others’ rights; prevention of crime; public safety.
What are 3 judicial techniques/principles that the courts take into account when considering an interference with human rights?
- Positive Obligation
(States can sometimes be under a positive obligation to prevent violation of human rights, by the State; by citizens or by non-State actors like the private sector). - Margin of Appreciation (discretion based on different countries’ aims and values within Europe; that responsibility of human rights compliance is on the States/national authorities to take care of).
- Proportionality
What is meant by the “positive obligation” principle in ECHR courts?
States can sometimes be under a positive obligation to prevent violation of human rights, by themselves as the State; by citizens or by non-State actors like the private sector.
EG: Osman v UK; X and Y v Netherlands
Where the authorities knew or ought to have known about the immediate risk to life of an identified individual, but failed to take action.
What is meant by the principle of Proportionality?
Fair balance between general interests of community vs protecting individual human rights;
State interference with human rights cannot be more than necessary.
To what extent are the ECtHR decisions legally binding?
They are not strictly legally binding like a UK High Court case (or above) is binding.
However, the domestic UK courts should follow any clear and consistent Strasbourg lines of case law, unless:
- There are special circumstances, or
- It would cause a conclusion fundamentally at odds with the UK.
Often called the “mirror” approach.
What is the duty under s.6 HRA and does it have any defence for potential breaches?
Duty on PUBLIC authorities (can include quasi-public authorities) to not act incompatibility with ECtHR rights. This includes ALL OF THEIR ACTIONS (not just those in the public realm!).
A public authority has a statutory defence if:
- they are acting in a way REQUIRED by primary legislation,
[Where the public body HAS A DUTY to act in a certain way, due to primary legislation, it cannot be incompatible with the HRA/Convention]
or
- they are acting TO GIVE EFFECT TO ECtHR-incompatible primary or secondary legislation.
[Where the public body HAS DISCRETION to act in a certain way, due to PRIMARY OR SECONDARY LEGISLATION, it cannot be incompatible with the HRA/Convention]
Can non-State bodies be considered “public authorities” under the s.6 HRA duty?
Give case examples where possible.
Yes, “public authorities” includes those with public functions, e.g.:
“core” public bodies (the government/Executive; the police; local councils; prisons; immigration centers; tribunals and courts)
Parliament is excluded for sovereignty reasons.
“hybrid” bodies performing public functions.
“private” bodies with public functions.
For example: London’s M&A “Takeover Panel” were essentially exercising a public function because the companies affected could not appeal or turn to anyone else. Therefore the Takeover Panel was subject to judicial review.
When considering whether a hybrid/private body is a “public authority” under s.6 HRA, what factors should you consider?
The extent to which, when carrying out the [public] functions, the body is:
- publicly funded, e.g. taxes;
- exercising statutory powers;
- taking the place/role of central or local governments;
- providing a public service;
- whether those affected can turn anywhere else for a decision (e.g. Takeover Panel in corporate deals).
Who has standing to under the Human Rights Act, and when?
A person (including non-natural persons, like companies), group of individuals or non-governmental organisation can sue.
EG: Liberty vs UK
as Liberty is a human rights charity / pressure group.
Claimants must:
- Be a victim, or would have been a victim, of an unlawful act (i.e. in breach of a Convention right); and
- Must be DIRECTLY AFFECTED (Klass v Germany).
This means that NGOs / pressure groups CANNOT bring HRA claims on behalf of victims.
Where V dies, his close family can bring a claim. They must exhaust their rights of claiming in the UK courts and then apply to take their case to ECtHR (Strasbourg).
NOTE THAT YOU DO NOT NEED TO BE A CITIZEN OF THE COUNTRY; IT IS ENOUGH THAT YOU ARE WITHIN THE COUNTRY, e.g. the UK, as a visitor.
What is the limitation period for bringing a HRA claim?
1 year from the date from the act complained of.
Where there are a SERIES OF COMPLAINED OF ACTIONS, THE 1-YEAR TIMER ONLY STARTS WHEN THE VIOLATION STOPS.
Extensions of time can be granted where the courts consider it “equitable” to do so.
Regarding time limits, what happens if the claimant is pursuing a Judicial Review claim in addition to a HRA claim?
The time limit is shorter.
What are two key judicial elements when interpreting statutes, in the context of the HRA?
- Duty to read both primary and secondary legislation “so far as it is possible” in a Convention-compatible way.
This is a very wide obligation, e.g. Ghaidan v Mendoza: “unusually far-reaching” (Lord Nicholls). In this case, the word “spouse” was taken to include unmarried homosexual couples who lived together as if married.
- Court MAY make a Declaration of Incompatibility if it cannot interpret legislation in a way compatible with the Convention.
This is a “last resort” (R v A, Lotd Steyn).
The interpretation of UK legislation to be in line with Convention rights (“as far as possible to do so”) under the HRA has limits - can you think of a case example?
It was not possible in Bellinger v Bellinger for a transsexual woman (born as male on her birth certificate) and her intended husband to be legally recognised within the Matrimonial Causes Act’s wording: “man and woman”.
The primary reasons, given by Lord Nicholls, was that that:
- Parliament alone, not the court, has the needed jurisdiction to create policies on when gender transitions can be legally recognised, e.g. for purposes of marriage.
- The claimant’s objective would redefine the meaning of “marriage” which, again, the court cannot decide - this is an issue for Parliament.
These are non-justiciable issues.
In what circumstances would the court’s HRA 1998 interpretative power go TOO FAR?
Consider the obiter comments in Ghaidan v Mendoza.
The interpretative power would go too far if it:
- changes the substance of the provisions completely;
- runs counter to a fundamental feature of the legislation or to the underlying thrust or cardinal feature of it; in other words, if it goes ‘against the grain’ of the original legislation;
- contradicts provisions in the legislation;
- repeals or deletes the language used in the legislation;
- involves the court making decisions for which it is not equipped.
If the court wants to read a provision in-line with Convention rights (s.3 HRA 1998), what textual and interpretative powers does the court have?
The court can:
* interpret a provision even if the language is clear;
- adopt a linguistically strained interpretation;
- read down language (i.e., adopt a narrower meaning to render the provision Convention compatible);
- read in words/imply in provisions; and
- as the interpretative obligation is a strong one, a declaration of incompatibility under s. 4, HRA should be a ‘measure of last resort’.
Declarations of incompatibility (s.4 HRA) are used as a last resort.
They do not strike down legislation, but are impactful, e.g. for political and legal pressure on the Executive & Parliament to make law reform.
Can you think of a time when they have been used?
Bellinger v Bellinger - incompatible under Art. 5 and Art. 8 (right to private and family life) as the Matrimonial Causes Act 1971 made no provisions for transgender people
R (Anderson) v Home Secretary - incompatible nder Art. 6 HRA (right to fair trial) because the relevant criminal law legislation left decisions on tariffs for mandatory life term prisoners up to the Home Secretary - a member of the Executive . politician.
A and Others v HS - incompatible under Art.5 (right to liberty) and Art.14 (non-discrimination) because suspected international terrorists were being indefinitely detained without trial, which was not done to suspected terrorists that were UK nationals (immigration status as ground of discrimination).
The UK could not depart from the ECHR’s provisions as the ECtHR’s wording “threat to the life of the nation” was not met (Lord Hoffmann, dissenting).
What procedures are available under the HRA 1998, when the court makes a declaration of incompatibility?
- S.10 Remedial Order
(provided there are “compelling reasons”).
1.A. standard: an amending order is put before Parliament for 60 days; this will amend the statute to stop the incompatibility.
1.B. urgent cases: the order is made, and AFTER laid before Parliament for approval.
- Enacting a Statute
- Doing Nothing.
What remedies/actions are available under the HRA 1998, where it is found that a public body has contravened its duty under s.6 HRA to act in accordance with the Convention?
The court is free to grant whatever relief or remedy that is “just and appropriate”.
The normal range within its powers include:
- Damages
- Declarations (legal declarations resolve legally uncertain questions, e.g. in favour of the claimant’s view).
- Injunction
- Quashing orders
- Prohibitory orders
- Mandatory orders
Do you need to be a UK national to sue in the UK courts pursuant to the HRA?
No, it is enough that you are within the country (e.g. visiting / on holiday); you do not need to be a UK citizen.
To have standing, you need to show you would have been the victim of an unlawful act AND you are a direct victim.
Extra-territorial effect has been recognized in rare circumstances, e.g. actions of diplomatic staff abroad; acts of citizens due to military occupations.
EG: Smith v UK
When are derogations [departures] from the European Convention on Human Rights allowed?
- When there is a “threat to the life of a nation”.
- Can only derogate as far as necessary to meet the demands of the situation [provided there is no breach of international law]
NOTE that you can NEVER derogate from Article 2 (right to life).
Can a public authority rely on its statutory defences (s.6(2) HRA) for breach, if the court makes a declaration of incompatibility (s.4)?
Yes - both things can occur in the same case.
If the court manages to find a Convention-compatible interpretation under s.3 HRA, can the public authority rely on its statutory defence(s) under s.6 HRA?
No, the public authority cannot use statutory defences (s.6) if the courts have arrived at a Convention-compatible interpretation of the statute in question.
For Article 2 (right to life), what obligations are imposed?
Are they positive, negative or both?
Both types are imposed:
Positive duty to protect and preserve life, especially where it is known - or ought to be known to be in danger (Osman v UK)
Negative duty to refrain from killing (using only as much force as absolutely necessary, when Art.2 is not involved, e.g. self-defence).
[Secondary], Positive duty to investigate deaths where the State is involved (Amin v UK), which includes extra-territorial deaths, e.g. the killing of 6 Iraqi civilians (Al-Skeini v UK).
In what circumstances does Article 2 not apply?
Provided the force used is “no more than absolutely necessary”, Article 2 does not apply [in exceptional law enforcement contexts]:
- in defence of any person/victim from unlawful violence;
- in arresting someone or preventing escape of a lawfully detained person;
- in quelling a riot or insurrection.
Where there is a duty to investigate the deaths of persons where the UK State is involved, what are the requirements for those investigations to be legitimate?
Investigations must be PUBLIC, independent, and involve the full participation of the victim’s family (Amin v UK).
If someone is in a hospital bed in a vegetative state, would turning off their life-support machine be a breach a Art. 2 (right to life)?
No, because the State is not under an obligation to prolong life where the applicant’s chances are so poor (A v M, NHS Trust).
Is an NHS Trust liable for the suicide of a psychiatric patient when they recently left the care of an NHS mental hospital?
Yes - Rabone case (UK Supreme Court).
Even though the suicidal patient was not formally detained (“sectioned”) under the Mental Health Act, the NHS Trust did assumed responsibility and control over the patient. The patient had attempted suicide previously and was released home for 2 days to her parents.
There was a “REAL RISK” that she would attempt suicide whilst at home, and the NHS Trust had failed to take “reasonable steps” to prevent the real and immediate risk of suicide - IN BREACH OF ART.2
Can the State be liable for deaths (Art.2) that occur in UK prisons?
Yes - (Da Silva v UK), a UK prisoner was murdered by his cellmate for racially motivated reasons - in breach of Article 2.
Imagine a situation where the British Army (SAS soliders) genuinely believed that they had to kill terrorism suspects in order to protect and preserve civilian life.
Is it possible for the soldiers to use the defences under s.2(2) HRA, but ALSO find that there were wider breaches of the Art. 2 duty in the chain of command, senior soldiers, control and training?
Yes - this happened in the case of McCann v UK.
How are the thresholds for “torture” and “inhumane and degrading treatment” assessed?
Give examples of both.
High standard: inhumane and degrading treatment.
—> “only seriously ill treatment or neglect”
EG: Prisoner had no toilet facilities and the small space exacerbated his facial eczema.
Factors considered:
- physical & mental effects;
- manner of implementing the treatment
- duration of treatment
- positive and negative impact on the person’s health, e.g. detention in a psychiatric hospital might be harsh but beneficial
HIGHER standard: torture.
—> “very serious and cruel suffering”.
Ireland v UK, found that techniques including “wall sitting for 20hrs, sleep deprivation, withholding food, intense noise, etc…” WAS NOT TORTURE (merely inhuman / degrading treatment).
Torture examples:
- stripped naked, hung up, electrodes on the genitals & beating for 2.5 hrs per day (Aksoy v Turkey).
- V was raped, beaten, stripped and sprayed with high pressure water (Aydin v Turkey).
What obligations (positive or negative) does Art.3 impose on the State?
Negative - duty to refrain from causing torture or inhumane & degrading treatment.
Positive - duty on PUBLIC AUTHORITIES to prevent individuals being subjected to torture or inhumane & degrading treatment.
[UNLIKE ART.2, THE POSITIVE DUTY IS NOT ABSOLUTE UNDER ART.3, e.g.: claimant must be able to show that the State knew or ought to have known of particular circumstances likely to expose V to torture/IDT.
EG: Cannot deport someone where there is a real risk that they will be subject to torture or inhumane and degrading treatment (e.g. activist for Sikh separatism cannot be deported to India - even if there are no warrants for his arrest, there is still a “real risk”…) (Chalal v UK).
Secondary, positive duty to investigate.
Can the State/public authorities be liable for an ineffective investigation into a breach of Art.3?
Yes. UKSC found the police in breach of their duty to conduct an effective investigation into the rapes committed by John Worboys.
What is the key distinction regarding Art.5 and whether it is engaged?
Art.5 is concerned with “deprivations of liberty”, not mere “restrictions” - the key difference is “degree or intensity”.
e.g.: Police forming a restrictive circle around 10 unarmed protestors and shooting them with rifles if they try and leave… vs… barriers at a street protest to prevent the 20,000+ person crowd spilling into other areas of the city.
Factors considered include:
- duration
- type of deprivation
- effects
- manner of implementation
Is a police cordon around crowds of protestors (“kettling”) a breach of Art.5 (right to liberty)?
No, it is not a breach (Austin v UK).
It is the least intrusive and most effective method of crowd control.
Furthermore, Art. 5 will not be interpreted in a way to make the police’s job more difficult.
Control measures used by the police, such as keeping opposing supporters apart at a football match in order to prevent violence, will not amount to a deprivation of liberty under article 5 provided they are PROPORTIONATE and NOT IMPOSED ARBITRARILY.
