The Human Rights Act Flashcards
Rights review steps
- What right (if any) was infringed? Is it protected by the HRA?
- What is the conflicting right/public interest?
- Balancing tests
- Remedy
Northern Ireland Abortion Case
Art infringed: Art 8(1). C
Conflicting public right: society’s interest in protecting pregnant women vs the unborn
Remedy: primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights - not compatible = declaration of incompatibility under s 4 of HRA
Ghaidan v Godin-Mendoza
Suggestion that courts can change the meaning of enacted legislation to make it convention-compliant (Nicholas LJ)
Repeal of HRA
Can only be repealed expressly as it is a constitutional acts
Features of HRA
S 3: interpretation v amendment
S 4: declaration of incompatibility
S 6: public authorities must act in a compatible manner with a convention right
S 11: safeguard for existing human rights
S 7: proceedings - only victims can bring a claim
S 34: individuals, NGOs or groups can apply to courts provided they are victims
S 2: court must take into account ECtHR decisions (R (Ullah v Special adjudicator) UK moved away from this approach (Manchester CC v Pinnock) - courts not bound to follow ECtHR
Who is a public authority?
Clear PAs: bodies created by legislation to exercise public functions (gov departments, police, CCs)
Clear private: Landl, taxi driver, bakery shop.
Aston Cantlow v Wallbank [2004]
Public authority refers to a body whose nature is governmental
YL v Birmingham CC
State assumed responsibility for act, public interest in task, task involved use of statutory powers, close connection between service provided and core valued underlying convention rights.
Horizontal v Vertical
Vertical: state more powerful than individual
Horizontal: two individuals are of equal power.
Court can apply HRA to two private parties.
