Sections 2 & 6: The meaning of "Convention RIghts" and who they apply to

Question 1

What does it mean to “incorporate” a right in the UK? (in a dualist system)

Answer 1

• Dualism: international law only has effect in the UK when Parliament brings it into UK law
• Courts do not apply international law, they apply AOP

Question 2

What is the Domestic Rights view on bringing rights home?

Answer 2

The rights are created by the HRA in the UK Law = like other legislation, their meaning is a matter of interpretation of UK Courts

Question 3

What is the ECHR Rights view on bringing rights home?

Answer 3

HRA intended to bring Convention Rights home;
- key aim to prevent need to go to Strasbourg
- Ensure consistency with ECHR = Uk courts should focus on what Strasbourg would do & international meaning of the rights

Question 4

What is the Mirror/”Ullah” principle (used in S2)?

Answer 4

UK law should follow what Strasbourg does, without going any further or any less (“mirroring their actions”)

Question 5

What does Lord Hope in the Clift case argue about the mirror principle?

Answer 5

• The principle is flawed (Strasbourg as a “ceiling”)
• UK courts should show self-restraint and control themselves

Question 6

What can we learn from the case of N v Secretary of State for the Home Department [2005]?

Answer 6

• Q: would deporting an AIDS patient to a country where they would receive inadequate medical care (breach Art 3)
• UK courts criticised Strasbourg for their judgement
• BUT they stilled followed Strasbourg

Question 7

What can we learn from the case of Animal Defenders International [2008]?

Answer 7

• Campaign against treatment of primates was banned on national TV {similar case to Versin gegen}
• UK Courts criticised reasoning as Strasbourg misinterpreted Art 10
• They claim Strasbourg is still expert BUT decided not to follow their legislation

Question 8

What can we learn from the case of R v Horncastle [2009]?

Answer 8

• Q: conviction based on ‘heresay’ evidence from victims (breach Art 5?)
• Strasbourg {Al-Khawaja}: possibly, yes, where conviction is based on this kind of evidence
• UKSC: even if it did say there was a violation, this case should not be followed in the UK

Question 9

Does the mirror principle still relevant to modern times?

Answer 9

Courts will generally follow Strasbourg, unless there are exceptional circumstances where they decide not to

Question 10

Provide the key points of Section 6 in the HRA.

Answer 10

• Tells us who the rights apply against: duty on “public authorities” to act compatibly
• “Public authority” does not include Parliament BUT does include the courts

Question 11

What are some of the requirements that “Public Authorities” must do?

Answer 11

• Must act compatibly with ECHR
• Includes any person, who exercises functions of a public nature, as long as the nature of the act isn’t private

Question 12

What can we learn from the case of PCC Aston Cantlow v Wallbank?

Answer 12

• Wallbank owned property next to church and liable for repairs (argued breach of property rights)
• Key issue: was the Parochial Church Council a public authority?
• HOL overruled COA: not a public authority

Question 13

How does Wallbank define a “Core” Public Authority?

Answer 13

• “essentially a reference to a body whose nature is governmental in a broad sense of that expression” (Lord Nicholls)
• “they are public authorities through and through”
• Examples: police, local authorities, government departments, armed forces
• Must comply with Convention rights in everything they do

Question 14

How does s6(3)(b) of the HRA defined “Hybrid” Public Authorities?

Answer 14

• Private persons/bodies who perform one, or more, “functions of public nature”
• Who are not performing a “private” act at the time
• However, Lord Nicholls claim there is no single test of application for this

Question 15

What can we learn from the case of Donoghue [2002]?

Answer 15

• Housing association: created by local authority = large parts of the local authority’s housing stock was transferred to it
• Housing association wanted to take possession of Donoghue’s property (violation of Art 8)
• Poplar WAS found to be a functional, hybrid public authority

Question 16

What is the Horizontal effect under the HRA?

Answer 16

• Statutory: courts must interpret and apply legislation in a way which is compatible with Convention Rights
• Common law: courts must act compatibly when deciding cases