The Human Rights Act 1998

Question 1

What are absolute rights?

Answer 1

These are rights that cannot be legitimately interfered with by the state.
* Article 3: Prohibition on torture or inhuman or degrading treatment or punishment
* Article 4: Prohibition on slavery and forced labour (it applies in relation to human trafficking)
* Article 7: Provides that there shall be no punishment without lawful authority, with particular
regard to retrospective criminalisation and punishment

Question 2

What are limited rights?

Answer 2

These rights can, in certain prescribed circumstances contained within the articles themselves, be legitimately interfered with by the state.
* Article 2: The right to life
* Article 5: The right to liberty and security of person
* Article 6: The right to a fair trial and fair legal process

Question 3

What are qualified rights?

Answer 3

Within articles containing qualified rights, the first paragraph sets out the substantive right(s) and
the second paragraph lists the circumstances and methodology by which the rights may be
lawfully interfered with by the state.
* Article 8: Right to respect for private and family life
* Article 9: Freedom of thought, conscience and religion
* Article 10: Freedom of expression
* Article 11: Freedom of assembly and association
Generally, for the state to interfere legitimately with a qualified ECHR right, it must be shown that all three of the following requirements are met. They are contained in subsection (2) of each
article:
(a) The interference was prescribed by, or in accordance with, the law.
(b) The interference was in pursuit of a legitimate aim.
(c) The interference was necessary in a democratic society (ie proportionate).
(The tests at (a) to (c) will be considered in more detail in later chapters when we consider articles 5, 8 and 10.)

Question 4

Positive obligation

Answer 4

The primary obligation on states under the ECHR is a negative one, meaning that the state is
required to abstain from interfering with a human right.
The concept of the positive obligation upon states was developed by the ECtHR in response to situations where the violating activity has been committed or could be committed not by the state, but by private individuals.
Under this principle, the state can, in certain circumstances, be under a duty to prevent the
violation of human rights being carried out by the relevant non-state actors. There are a variety of ways in which positive obligations upon the state can arise. One way in which a positive obligation may need to be fulfilled is by contracting states enacting laws in their
domestic legal systems that prohibit, deter, and punish individuals who commit Convention violations.
An example of this is provided by X and Y v The Netherlands [1985] 8 EHRR 235, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive
obligation under article 8.

Key case: Osman v UK (2000) 29 EHRR 245
In this case, it was held that the positive obligation on the state was for its authorities (in this case the police) to take preventative measures to protect an individual whose life was at risk from the criminal acts of another private individual. However, the court stated that this obligation on the
authorities was subject to the following conditions:
[I]t must be established […] that the authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that risk.
The court acknowledged, in view of the operational choices that must be made in terms of
priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities. It was found, on the facts, that the police could not be taken to have known that the lives of the Osman family were at real and
immediate risk from the perpetrator who shot and killed Mr Osman. There was, therefore, no breach of article 2.
The same issues were reflected again in the context of healthcare in the case of Rabone v Pennine Care NHS Trust [2012] UKSC 2.
Both the High Court and Court of Appeal had held that the NHS Trust was not under a positive
obligation to take reasonable steps to prevent a patient from committing suicide when being
released from a psychiatric hospital on home leave. In reaching this conclusion, reliance was placed on the fact that she was not formally detained under the Mental Health Act 1983 at the
time. On appeal, the Supreme Court overturned this finding. It held that the NHS Trust had assumed responsibility and control over the patient, who had been admitted to the hospital when facing a
real and immediate risk of suicide. It found that the Trust should have detained the patient under the MHA 1983 when she was insisting on leaving the hospital, as there was a real risk that she would take her life when allowed
home. The Trust had therefore failed to take reasonable steps to prevent the real and immediate risk of suicide in breach of Article 2.

Question 5

Margin of appreciation

Answer 5

The ‘margin of appreciation’ doctrine reflects the subsidiary role of the ECHR in protecting
human rights. The overall scheme of the Convention is that the initial and primary responsibility for the protection of human rights lies with the contracting states parties themselves.
Contracting states are therefore allowed a certain measure of discretion when taking legislative, administrative, or judicial measures that restrict ECHR rights. The doctrine is based on the assumption that contracting states have a better knowledge of the political, social, and cultural traditions that influence their countries than the ECtHR does, and that this should be respected.
Nevertheless, the exercise of state discretion is not unlimited; it is still subject to ultimate
supervision by the ECtHR.

Areas where ECtHR affords the state a broader discretion

Decisions concerning:
* Morality and religion
* Public emergency
* National security
* Social, economic and environmental
policies

Areas where less discretion is afforded to the state

Where individual rights are affected. For
example:
* A person’s existence or identity
* A person’s liberty
* Legal rights

Question 6

Principle of proportionality

Answer 6

In Soering v UK (1989) 11 EHRR 439, the ECtHR said:
[I]nherent in the whole of the Convention is a search for a fair balance between the demands
of the general interest of the community and the requirements of the protection of the
individual’s fundamental rights.
Proportionality is a key principle of ECHR law. It is a standard that is expressly contained in the
qualified rights in articles 8 to 11. It also features as the standard within the test for limiting the right to life in article 2, and it has been interpreted as the correct standard applying to limitations on other articles such as article 6.

The principle of proportionality is multi-faceted, and the ECtHR employs slightly different
variations of the test with respect to the articles when considering whether a fair balance has been struck by the state between the general community interests on the one hand, and the protection of individuals’ human rights on the other. Proportionality will be discussed further in the context of the individual articles.

Question 7

The Mirror Principle

Answer 7

Section 2(1) HRA states that:
A court or tribunal determining a question which has arisen in connection with a Convention
right must take into account any (a) judgment, decision, declaration or advisory opinion of the
European Court of Human Rights […]
The first case to consider the meaning and extent of s 2(1) was R (Alconbury Developments Ltd) v
Secretary of State for the Environment [2001] UKHL 23, where the House of Lords held that, while
the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent
jurisprudence unless there are special circumstances, or the decisions of the ECtHR would compel
a conclusion fundamentally at odds with the UK constitution.
This was followed by R (Ullah) v Special Adjudicator [2004] UKHL 26, in which Lord Bingham
stated: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves
over time: no more, but certainly no less’.
This approach was sometimes called the ‘mirror principle’.
5.1 Departures from mirror principle
R v Spear [2002] UKHL 31 was the first decision in which the House of Lords declined to follow the
jurisprudence of the ECtHR, in relation to the question of whether UK military court-martials’
procedure was compliant with article 6.
The decision in R v Horncastle [2009] UKSC 14 (which also related to article 6) also illustrates a
departure from previous Strasbourg case law. In it, Lord Phillips made the following comments
about the HRA 1998, s 2(1):
There will, however, be rare occasions where this court has concerns as to whether a decision
of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our
domestic process. In such circumstances it is open to this court to decline to follow the
Strasbourg decision, giving reasons for adopting this course. This is likely to give the
Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in
issue, so that there takes place what may prove to be a valuable dialogue between this court
and the Strasbourg Court
6: Introduction to the Human Rights Act 1998 55
5.1.1 From ‘mirror’ to ‘dialogue’
In recent years the relationship between the UK courts and the ECtHR has increasingly been
described as one involving ‘dialogue‘, following Lord Phillips’ words in Horncastle.
UK judges and academics have argued that legal reasoning on ECHR issues in UK courts should
have an influence in Strasbourg. In other words, the process should not apply in one direction
only. For a good example of this, see the case of Animal Defenders International v UK [2013] ECHR
362. See too the comments of the Court of Appeal in R (Hicks) v Commissioner of Police of the
Metropolis [2014] EWCA Civ 3.
In a joint judgment in the case of R (Haney and Others) v Secretary of State for Justice [2014]
UKSC 66, Lords Mance and Hughes boldly set out what can be understood as the current position
of the UK courts regarding s 2(1):
[…] Usually, domestic and Strasbourg jurisprudence march hand in hand, as contemplated by
the “mirror” principle […]. More radically, the domestic court may conclude that such
Strasbourg authority as exists cannot be supported

Question 8

Public authorities

Answer 8

As s 6(1) imposes legal duties only on a ‘public authority’, it is important to know which bodies fall
into that category. This has caused some difficulty as the concept of ‘public authority’ is not
specifically defined in the HRA.
One body/group of persons is however, expressly excluded: the Westminster Parliament in its
legislative roles and any person exercising functions in connection with proceedings in Parliament.
This exclusion is designed to protect parliamentary privilege and sovereignty.
Section 6 effectively recognises three types of bodies: ‘core’ public authorities (s 6(1)); ‘hybrid’ or
‘functional’ public authorities (s 6(3)(b)); and private bodies (s 6(5)). (No liability at all under s 6
HRA falls on the third category.)

Question 9

Core public authorities

Answer 9

Core public authorities are bodies that are clearly, and inherently by their very nature, public
authorities. They are potentially subject to the s 6(1) obligation in respect of all their actions.
These authorities include, for example: central government departments; local authorities; the
police; and the Inland Revenue (now HMRC). As to the question of determining whether a body is
56 Public Law II
a core public authority, there is no definitive test. However, The White Paper, ‘Rights Brought
Home’, presenting the Human Rights Bill in October 1997, set out a list of those that would be
included, and some broader guidance. In Chapter 2.2 the paper stated that:
Examples of persons or organisations whose acts or omissions it is intended should be able to
be challenged include central government (including executive agencies); local government;
the police; immigration officers; prisons; courts and tribunals themselves […]

Core public authorities
As the White Paper did not provide a definitive list of core public authorities, determining this
question has fallen to the courts. In the leading case of Aston Cantlow and Wilmcote with Billesley
Parochial Church Council v Wallbank [2003] UKHL 37 the House of Lords issued guidance on
what constituted the scope of the concept of a core public authority.
Lord Nicholls (para 7) suggested that the phrase ‘public authority’ is ‘essentially a reference to a
body whose nature is governmental in a broad sense. He further suggested that the following
factors could be considered relevant in determining whether a body is a ‘core’ public authority:
(a) The possession of special powers
(b) Democratic accountability
(c) Public funding in whole or in part
(d) An obligation to act only in the public interest
(e) A statutory constitution

Question 10

Functional or hybrid public authorities

Answer 10

The notion of a ‘functional’ or ‘hybrid’ public authority (these terms are used interchangeably)
originates in s 6(3)(b), HRA 1998 which provides that the term ‘public authority’ includes ‘any
person certain of whose functions are functions of a ‘public nature’.
These are distinguished from those acts performed by such bodies that are of a ‘private nature’ (s
6(5) HRA).
A body which may be private in nature, but which is performing a function of a public nature
may be liable under the HRA in respect of that particular public function (but note that no liability
will arise in respect of a private function being performed).
This issue has tended to arise in practice in relation to bodies such as housing associations and
care homes, where provision of social and care services has been outsourced.
The leading case, however, is Aston Cantlow (see above) which related to the repair of a church.

Question 11

functional public authorities

Answer 11

n Aston Cantlow the House of Lords addressed the questions of core and functional public
authorities.
The House of Lords stressed that it was the nature of the function being performed that should
determine whether a body was a functional public authority. Lord Nicholls suggested that there
should be a ‘generously wide’ interpretation of public function so as to further the statutory aim
of promoting human rights protection. He stated (para 12) that the following factors may be
relevant:
(a) The extent to which, in carrying out the function, the body is publicly funded
(b) Exercising statutory power
(c) Taking the place of central government or local authorities
(d) Is providing a public service
In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors.
Their Lordships decided that this was not a public function. Lord Hope stated: ‘The function which
it is performing has nothing to do with the responsibilities which are owed to the public by the
State’.

Question 12

Private bodies

Answer 12

The final category recognised by the HRA 1998 are private bodies with no public functions at all (HRA 1998, s 6(5)). Although private individuals do not owe obligations under the ECHR, theirconduct may be regulated in a Convention compatible way under the indirect horizontal effect of
the HRA (which we will be considered in a later chapter).

Question 13

Standing

Answer 13

Just as a person bringing a claim under the HRA 1998 must satisfy the court that it is against a
‘public authority’ for the purpose of s 6(1), the applicant must also show that they have standing
to bring the claim.
Under s 7 (1) HRA an applicant must show that s/he is (or would be) a victim of the unlawful act.
Section 7(7) HRA states that ‘[…] a person is a victim of an unlawful act only if he would be a victim
for the purposes of Article 34 of the Convention […]’.
So, the HRA has effectively incorporated the victim test from Article 34, ECHR. This provides that:
The Court may receive applications from any person, non-governmental organisation or group
of individuals claiming to be the victim of a violation by one of the High Contracting Parties of
the rights […].
In addition, in order to satisfy the victim test under article 34, the ECtHR has held that applicants
must show that they are directly affected by the state action (Klass v Germany (1978) 2 EHRR
214). This can be seen as a narrower test for standing than the ‘sufficient interest’ test in judicial
review.
7.1 The scope of the standing test
Applicants must be a ‘person’ in the legal sense and therefore can be natural or legal persons,
such as corporate bodies - see, for example, the case of The Sunday Times v UK [1979] ECHR 1.
Other organisations with legal personality include trade unions and political parties.
However, such organisations or groups can only bring an action when they are claiming that their
rights (as an organisation) have been violated.
58 Public Law II
For instance, a non-governmental organisation (NGO) cannot bring actions on behalf of people
whose rights may have been violated by a contracting state. A good example of this came in the
case of Re Northern Ireland Human Rights Commission [2018] UKSC 27, in which the Supreme
Court found that the NIHRC did not have standing to challenge the compatibility of the highly
restrictive law in Northern Ireland relating to abortion.
An NGO can only bring an action when it can claim that a state is violating the rights that it
enjoys itself as an organisation. Thus, in Liberty v UK (2009) 48 EHRR 1, the pressure group
successfully complained that the interception of its communications under the Interception of
Communications Act 1985 conferred a virtually unfettered discretion on the Ministry of Defence.
This represented a breach of article 8.
7.1.1 Indirect victims
An applicant may, however, be an indirect victim of a violation in exceptional circumstances, for
instance close relatives of a deceased person where complainants allege a violation of the right to
life.
It is possible in very exceptional circumstances for a ‘person’ without close relative status to be
given standing to challenge a particularly egregious violation of the ECHR, as occurred in the
case of Centre for Legal Resources on behalf of Valentin Campeanu v. Romania (2014) ECHR 222.
The case concerned the death of an 18-year-old, who was HIV positive and suffering from a
severe mental disability, in a neuropsychiatric hospital. In this case the application was lodged by
CLR, a non-governmental organisation, on his behalf even though this organisation was not itself
a victim of the alleged violations.
Note that the concept of what a ‘person’ is has also raised some difficult issues for the ECtHR.
The question of the ‘right to life’ of the foetus in relation to article 2 has proven almost impossible
to resolve, and the court has arguably avoided the issue in order to take account of regional and
religious sensitivities relating to abortion (Vô v France (2005) 40 EHRR 12).

Question 14

Time limits

Answer 14

Actions under the HRA 1998 must be commenced within one year of the date of the act
complained of (HRA 1998, s 7(5)).
An extension of time may be granted in exceptional cases where the court considers it ‘equitable’
to do so in all the circumstances.
If the alleged violation of a right is considered to be a continuing matter rather than a single
incident, time will not start running until the violation ceases to operate. This point was made by
the Supreme Court in the case of O’Connor v Bar Standards Board [2017] UKSC 78 in over-turning
an order to strike out the claimant’s case.
Note, however, that if a HRA claim is being brought within a wider judicial review application, the
stricter JR time limits will apply (Al-Saadoon v Secretary of State for Defence [2016] EWHC 773
(Admin)).

Question 14

Derogations

Answer 14

The technical rules concerning the operation of derogations can be found in ss 14 and 16 of the
HRA. However, we are more concerned with the provision that covers the circumstances in which
contracting states are able to derogate from (or ‘opt out of’) the rights protected by the ECHR.
Article 15 ECHR provides that:
60 Public Law II
(a) In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention
to the extent strictly required by the exigencies of the situation […]
(b) No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 (para 1) and 7 shall be made under this provision.
The test in article 15(1) as to the extent of any derogation constitutes a proportionality approach.
When the derogation right is invoked, the last word as to the lawfulness of the derogation rests
not with the state but with the courts of that state, and finally, if necessary, the ECtHR. You will
recall that a derogation from article 5(1) was at issue in A and Others v Secretary of State for the
Home Department [2004] UKHL 56, the ‘Belmarsh case’.

Question 15

Reservations

Answer 15

As with derogations, the provisions in the HRA 1998 (ss 15 and 17) concern the procedure and
operation for reservations. The key provision is found in article 57 of the ECHR.
Reservations can be made under article 57. Any contracting state may, at the time of signing or
ratifying the ECHR, make its acceptance subject to a condition, which limits or varies the
application of the ECHR to that state. The UK has a reservation to article 2 of the First Protocol to
the Convention (the ‘right to education’).
Note that, as with derogations, the ECtHR will not always passively accept a reservation. In Belilos
v Switzerland (1988) 10 EHRR 466, the ECtHR removed (or ‘severed’) elements from a ‘declaration’
made by the Swiss government that the government claimed amounted to a reservation. This was
held to be so vague as to amount to a ‘reservation of a general character’ (prohibited by article
57). The ECtHR has taken the view that it alone has responsibility for deciding what is or is not a
reservation

Question 16

Section 6(2) HRA

Answer 16

It is important to recall that s 6(1) HRA makes it unlawful for public authorities to act in a way that
is incompatible with a Convention right. However, the potential liability in this provision is affected
by s 6(2), which provides that:
6 Acts of public authorities […]
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have
acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot
be read or given effect in a way which is compatible with the Convention rights, the authority
was acting so as to give effect to or enforce those provisions.
Therefore, in cases where a person claims that a public authority has violated one or more of their
ECHR rights, it may be possible for the public authority to rely upon what is sometimes referred to
as the ‘statutory defence’ under s 6(2) HRA.
2.1 ‘Statutory defence’
In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope
provided the following guidance with respect to the defence under s 6(2). Note that s 6(2) was
designed to ensure that the principle of parliamentary sovereignty was not undermined.
The situation to which paragraph (a) is addressed arises where the effect of the primary
legislation is that the authority has no alternative but to do what the legislation tells it to do.
[…]. The key to its application lies in the fact that the effect of this legislation, wherever it is
Enforcement and 7 remedies under the HRA
1998
found, is that a duty is imposed on the authority […]. As it is a duty which has been imposed on
the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over
the Convention right. The defence is provided to prevent the legislation from being rendered
unenforceable.
The situation to which paragraph (b) is addressed […] arises where the authority has a
discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to
or enforce provisions of or made under primary legislation which cannot be read or given
effect to in a way which is compatible with the Convention rights […].

Question 17

Interpretation of legislation

Answer 17

A public authority’s reliance on the statutory defence in s 6(2) does not necessarily mean that it
will evade liability under the HRA. The defence is itself impacted by the courts’ duty contained in s
3(1). Section 3 provides that:
3. Interpretation of legislation
(1) So far as it is possible to do so, primary and subordinate legislation must be read and given
effect in a way which is compatible with Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted; […]
If the court uses its s 3 power to read the provision compatibly, the public authority’s potential s
6(2) defence will effectively disappear, meaning that it cannot avoid liability under s 6(1). This will
then provide a remedy for the applicant. (Note that s 3 applies to legislation existing at the time of
the enactment of the HRA 1998, as well as to future legislation.) If the court is not able to use its s 3
power and instead makes a DOI under s 4, the claimant will not have a remedy, as the s 6(2)
defence will remain in place.
3.1 Interpretation of legislation
Thus, s 3(1) places the UK courts under a duty to interpret legislation in a Convention compatible
way to the extent that this is ‘possible’. Determining how ‘far’ the courts can go in any given
situation is therefore a very significant consideration.
You will see that this engages the same kind of considerations applying in relation to the
separation of powers. This will be explored further by looking at some of the key early case law.
As set out above, a court’s use of s 3 interpretation will have the effect of removing the s 6(2)
defence from the Defendant. It is important to consider how the alternative courses open to a
court – using either s 3 or s 4, where appropriate – will affect the final outcome of a case.

Question 18

Summary of the courts’ approach to s 3

Answer 18

The decision in R v A, as endorsed by the court in Ghaidan, embodies the following approach to
the scope and the limits of the courts’ interpretative duty under s 3.
As s 3 imposes a strong interpretative obligation, the courts can:
* Interpret a provision even if the language is clear;
* Adopt a ‘linguistically strained’ interpretation;
* Read down language (ie adopt a narrower meaning to render the provision ECHR-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’.
However, there are limits to the courts’ s 3 power, and so the courts cannot:
* Change the substance of the provision completely;
* Make changes which run counter to a fundamental feature of the legislation or to the
underlying thrust of it (going ‘against the grain’ of the legislation);
* Contradict provisions in the legislation;
* Repeal or delete the language used in the legislation;
* Make decisions for which the court is not equipped.

Question 19

Section 4 HRA: Declarations of incompatibility

Answer 19

The courts have no power to strike down primary legislation that is incompatible with ECHR rights,
because of the key importance of the principle of parliamentary sovereignty. However, in
situations where the court does not consider it appropriate to adopt a ‘section 3 interpretation’ of
relevant law, it may make a declaration that a particular provision is incompatible with an ECHR
right. Section 4 provides as follows:
‘4 Declaration of incompatibility
[…]
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility.
[…]
(6) A declaration under this section […] (a) does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given; and (b) is not binding on the parties
to the proceedings in which it is made.

Question 20

Section 10: Remedial action

Answer 20

Section 10(2) HRA 1998 provides that, in response to a declaration of incompatibility made under s
4 (or to a decision of the ECtHR), the relevant ministers may take expedited ‘remedial action’ to
amend the relevant legislation as necessary to remove the incompatibility, if ‘there are compelling
reasons for proceeding under this section’.
Schedule 2 of the HRA 1998 sets out two procedures. One is the standard procedure, which
requires that a draft amending order be laid before Parliament for 60 days before being approved
by both Houses of Parliament. The second remedial procedure concerns urgent cases, where the
order may be laid before Parliament for approval after it is made.
Note that the government may well plan a legislative response to a s 4 declaration over a longer
period of time instead, if the expedited process under s 10 is not seen as necessary.
In the absence of a governmental response of any kind, the claimant may have recourse to the
ECtHR, since all available domestic remedies will have been exhausted.

Question 21

Section 19: Statements of compatibility

Answer 21

It is worth noting the role that the HRA plays in the formation of prospective, new law, as well as
the obligations and powers that arise for public authorities and the courts with respect to existing
law.
Section 19(1) provides that, prior to the second reading of a bill in Parliament, the minister
responsible for that bill must make a written statement that:
(a) The proposed new legislation is compatible with the Convention rights (‘a statement of
compatibility’); or
(b) Although he is unable to make a statement of compatibility, the government wishes to
proceed with the bill regardless.
A statement of compatibility was made in relation to the Anti-Terrorism, Crime and Security Act
2001. Although a derogation was entered in respect of article 5(1), the statement declared that, in
all other respects, the Act was Convention-compliant. This statement turned out to be incorrect,
as confirmed in the case of A and Others where the House of Lords held that the power to detain
foreign nationals was disproportionate and discriminatory and therefore in breach of articles 5
and 14.

Question 22

Section 8 HRA: Remedies

Answer 22

Section 8 covers the provision of remedies. Section 8(1) provides that:
Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is
(or would be) unlawful, it may grant such relief or remedy, or make such order, within its
powers as it considers just and appropriate
The power to award a remedy is, however, limited in a number of respects (see s 8(1)–(4)). In
practice, the nature of the remedy will vary greatly according to the context of the case, including
in which court or tribunal the claim is being heard. The normal range of remedies will include
damages, declarations, injunctions, and quashing orders, prohibitory orders and mandatory
orders.

Question 23

Summary on remedial outcomes: ss 3 and 4

Answer 23

We saw previously that, where a person claims that a public authority has violated one or more of
their Convention rights, the public authority may be able to rely upon a ‘statutory defence’ under
s 6(2) HRA.
In this situation, where a court determines that the legislative provision relied upon by the public
authority is incompatible with a Convention right, the court is under an initial duty to interpret the
offending provision, insofar as it is possible to do so, in a Convention compatible way (s 3).
Alternatively, if the court decides that it cannot use its power under s 3, it may consider whether
to make a declaration of incompatibility under s 4 HRA.
se
If the court uses its s 3 power to read the provision compatibly, the public authority’s potential s
6(2) defence will effectively disappear, meaning that it cannot avoid liability under s 6(1). This will
provide a remedy for the applicant.
If the court is not able to use its s3 power and instead makes a DOI under s 4, the claimant will not
have a remedy, as the s 6(2) defence will remain in place.

Question 24

Article 2

Answer 24

• Article 2 protects the right to life:
• Article 2 is limited by the specified circumstances in article 2(2)(a) to (c).
• The use of lethal force must be ‘no more than absolutely necessary’ (article 2(2)).
• Article 2 provides for negative (McCann, Farrell and Savage) and positive obligations
  (Osman v UK) and, in either case, there is a secondary obligation to investigate deaths
  where the state is involved (McCann; Amin).

Question 25

Article 3

Answer 25

Article 3 protects the right not to be subject to torture or to inhuman or degrading treatment or
punishment.
- Article 3 is an absolute right in respect of the state’s negative obligations. Whether
treatment meets the respective thresholds for torture or inhuman degrading treatment will
depend upon its nature, severity and effects (Ireland v UK; R(B)).
- Article 3 also places a positive duty on the state (Soering; Chahal), and an investigative
duty (DSD and NBV).

Question 26

Article 5(1)

Answer 26

Article 5(1) provides the basic, substantive right to liberty and sets out the circumstances in
which the state can lawfully deprive persons of their liberty, such as arrest.
- For article 5(1) to be engaged there must be a ‘deprivation’ and not a ‘mere restriction’ of
liberty (Engel; Guzzardi)
- There are two requirements the state (police) must show to justify the deprivation of liberty:
◦ One of the limitations in article 5(1) must apply. We have considered the key limitation in
5(1)(c) (Fox, Campbell and Hartley; Hicks).
◦ The provision the state is relying upon must be ‘prescribed by law’ (Sunday Times; Gillan
and Quinton)

Question 27

Article 5

Answer 27

Article 5 ECHR protects the right to liberty and security of the person. It contains limited rights
from which contracting states can seek to derogate in emergency situations under article 15
ECHR. Paragraph (1) contains the basic substantive right, and paras (2) to (5) provide additional
due process rights to which a detainee is entitled. For the purpose of this workbook, we are mainly
concerned with paras (1) to (3).
* Article 5(1) provides the basic, substantive right to liberty and the circumstances in which the
state can lawfully deprive persons of their liberty, such as arrest.
* Article 5(2) governs the right for a person to be informed of the reasons for their arrest.
* Article 5(3) provides that a person who has been arrested and detained shall be ‘brought
promptly before a judge’.
* Article 5(4) states that a person who has been deprived of their liberty by the state ‘shall be
entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful’.
* Article 5(5) contains an enforceable right to compensation for a victim of an article 5 breach.

Question 28

Article 6

Answer 28

Article 6(1) provides the basic overarching right to a ‘fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law’. This is only
applicable where either the applicant’s civil rights and obligations or criminal charges are
being determined.
- Article 6(1) covers rights including access to justice through legal advice and representation
(Airey v Ireland; Gudanaviciene); impartiality of the courts (Findlay v UK); and timely
process (Watson).
* Article 6(2) provides for the presumption of innocence (until proven guilty). Read alongside
article 6(1), it provides for the right to silence/ not to incriminate oneself (Saunders v UK).
* Article 6(3) lays down a set of minimum rights owed to everyone charged with a criminal
offence, including access to legal representation under article 6(3)(c), and fair legal process
more generally (Murray v UK).

Question 29

Article 7

Answer 29

Article 7(1) provides that: ‘no one shall be held guilty of any criminal offence on account of
any act or omissions which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier penalty be imposed
then the one that was applicable at the time the criminal offence was committed’. In
considering the ECtHR’s approach to this article, we have considered:
- What is meant by ‘held guilty’ and the ‘guilty concept’- the court takes a broad approach
(Varvara v Italy)
- What constitutes a ‘criminal offence’ (Engel v Netherlands)
- The requirements for ‘law’ (SW v UK)
- What constitutes a ‘penalty’ (G.I.E.M. SRL and Others)
- The status of procedural law (Scoppola v Italy)

Question 30

Article 8

Answer 30

Article 8(1) sets out the four interests protected by article 8: private life, family life, home and
correspondence.
* These concepts have been given broad effect by the ECtHR, particularly the concept of
private life which covers, inter alia, measures that affect a person’s physical, mental and moral
integrity.
* The right to respect for family life is also interpreted broadly and is not restricted to respect for
the traditional family unit.
* Amongst other issues, this part of the article is engaged in relation to personal dignity;
sexuality; searches of the person; state surveillance; marriage rights; immigration; and
abortion.
* The right to respect for one’s home entails both protection against intrusion into the home and
respect to the home as a source of security and comfort.
* The right to respect for correspondence also engages more modern forms of communication
and is particularly important in the context of prisoners.
* The phrase ‘in accordance with the law’ in paragraph 8(2) has the same meaning as
‘prescribed by law’, as seen in article 5(1).
11: ECHR article 8 107
* There are a number of possible justifications for interference with article 8, including national
security, the prevention of crime, and the protection of health and morality. These are known
as legitimate aims.

Question 31

Article 10

Answer 31

Article 10 protects freedom of expression, which includes the right to hold opinions and to
receive ideas and information, as well as the right to express views and opinions.
* These concepts include a wide range of expression within varying contexts such as political
and social opinion (Laporte); journalistic freedom (Goodwin; Jersild); artistic expression
(Müller; Wingrove); and commercial information (Colman).
* Article 10 is a qualified right, and para 10(2) sets out the circumstances in which a state can
justify interfering with that right. An interference will be justified if it is:
- ‘prescribed by law’ (Sunday Times; Gillan and Quinton)
- pursuant to one of the legitimate aims set out in 10(2)
- ‘necessary in a democratic society’ (in other words, proportionate)
* The margin of appreciation doctrine has particular application with respect to article 10.
Generally speaking, the ECtHR affords a broader margin of appreciation to states to decide
what degree of interference is necessary with expression that impacts upon moral and
religious beliefs and views. The ECtHR is more likely to supervise the states’ enforcement of
article 10 in cases involving journalistic freedom and political forms of expression.

Question 32

Indirect horizontal effect

Answer 32

• Section 6(3)(a) HRA has brought about what is known as the ‘indirect horizontal effect’ of the
  HRA. Under that provision, courts and tribunals are identified as public authorities and
  therefore they must act in accordance with s 6(1) and make decisions that are compatible with
  the Convention, even if both parties are private individuals.
• If a private party wishes to invoke a Convention right against another private party there must
  be a pre-existing cause of action against the other private party upon which to ‘hang’ the
  Convention right. A commonplace cause of action which results in the engagement of article 8
  is the tort of the misuse of private information (Campbell).
• In Campbell, the House of Lords identified two elements necessary for determining whether
  there has been misuse of private information, as now developed under the HRA:
• The applicant must have a ‘reasonable expectation of privacy’.
• The court will conduct a balancing exercise between the competing interests of the right to
  privacy (article 8) and the right to the freedom of expression/to publish (article 10).

Question 33

Injunctions

Answer 33

A significant element of the development of this area of law has been the use of injunctions to
attempt to restrain publication in some cases. Perhaps the most notorious example related to the
controversy over the activities of the company, Trafigura Ltd.
It obtained an interim injunction (in 2009) preventing the publication of an internal company
report which had concluded that its disposal of oil waste in the Ivory Coast would cause injury to
local people. The injunction also prevented newspapers discussing the existence of the injunction
itself, making it a so-called ‘super-injunction’.
An MP became aware of the issue and tabled a question on the topic in the House of Commons,
which was then listed on the Order Paper for that day. When the solicitors for Trafigura became
aware of this, they attempted to amend the injunction, but The Guardian newspaper had already
reported the existence of the super-injunction on its website. The super-injunction, which was
considered in the Trafigura case (RJW v Guardian News and Media Limited [2009] EWHC 2540
(QB)) was seen to be an attempt to restrict reporting of parliamentary proceedings, and
therefore a restriction on the transparency and openness which are required in a system governed
by the rule of law.