The Human Rights Act

Question 0

Goal of the HRA

Answer 0

To reconcile parliamentary sovereignty and a strong protection of rights of citizens by the judiciary.

in Re P [2008] Hale noted that it is not to give effect to Strasbourg jurisprudence but to develop a domestic line of rights protection where a margin of appreciation allows them.

Question 1

Section 3

Answer 1

An interpretative obligation; to act ‘So far as it is possible to do so’
It can be applied to all legislation (primary, secondary, etc).
It does not affect the validity of a law

Question 2

Section 4

Answer 2

Allows a court to make a ‘declaration of incompatibility’ to legislation where it cannot be read to be convention compatible.
This does not affect the validity of the legislation.
Only the SC, PC and Appeal Court and High Court can do this.
This way Parliamentary Sovereignty is preserved.

Question 3

Section 10

Answer 3

Remedial legislation as a result of an s4 declaration can be introduced by Parliament to modify or repeal the incompatible provisions.

Question 4

Masterman view

Answer 4

The HRA is a ‘wolf masquerading as a sheep’ as while it seeks to preserve Parl Sov it hands a considerable amount of power to the judiciary.

Question 5

Effect on Scotland and Wales

Answer 5

They are both bound by the Convention

Wales (s107(1) of the Gov of Wales Act

Scotland (s29(2)(d)) of the Scotland Act

Question 6

Higher courts to lower courts re s4

Answer 6

HIgher courts can overrule a declaration of incompatibility of a lower court as occured in Alconbury [2001]

Question 7

Delcaration of Compatibility

Answer 7

Upon presenting a Bill to Parliament, a minister must make a declaration of compatibility in regard to the Bill in quesiton.

All legislation since 2000 has made this declaration bar the Communications Act 2003.

An issuing statement does not mean the courts will find the legislation compatible.

Lord Chancellor said in 1998 that a declaration of compatibility will be a strong spur to the courts but this has inevitably not been the case.

Question 9

R v A (Complainant’s Sexual History) [2002] (section 3)

Answer 9

Facts: regarded the incompatibility of the Youth Justice and Criminal Evidence Act 1999 s41(3)(c) with Art 6 (right to a fair trial). The provision in question did not allow the complainant’s sexual history to be questioned and this was argued as being contra Art 6.
Found: Steyn said that ‘the interpretative obligation under s3 is a strong one. it applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings… A declaration of incompatibility is a measure of last resort.
Hope in his dissent said that the question is one of balance.. Parliament was better equipped than the judges to decide where the balance lay.. I do not regard the mere fact that the complainant had consensual sexual intercourse with the accused on previous occasions relevant to whether she consented to sex on the alleged rape.

Further info: the case was seriously criticised for undermining the HRA and effectively re-writing a piece of legislation. It undermined the democratic process and put too much power in the judiciary.

Question 9

Bellinger v Bellinger [2003] (section 3)

Answer 9

Facts: a post op transexual (male to female) appealed against the Matrimonial Causes Act 1973 for not being legally married to her husband for being a male. She claimed a breach of Art 8.
Judgment: the courts could not read far enough into the Act to find ‘female’ to mean a post op transsexual. ‘Such a fundamental change in the law… should be made only be Palriament… and not by judicial intervention.’
Further info: this showed a limit to the powers of s3

Question 10

Ghaidan v Mendoza [2004] (section 3)

Answer 10

Facts: a tenant to a house died, and under the Rent Act 1977 the ‘wife or husband’ will inherit the tenancy. However because the remaining tenant was the man’s homosexual partner (of a 20 year monogamous relationship), the landlord sought to evict him under the act. Mendoza applied for a breach of Art 8 read with Art 14.
Judgment: the courts found that the provision that ‘a wife or husband’ will inherit the tenancy can be read into the mean that someone living AS IF THEY WERE the wife of husband of the tenant could inherit the tenancy all the same. ‘It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it convention compliant…’ It was also noted that ‘words implied must… go with the grain of legislation’.
Further info: this case was heralded as a correct judgment because it applied immediate justice to the situation at hand and it did not alter the fundamental meaning of a statute, only a subsidiary part of it. Fenwick and Phillipson note that this case displays the court’s willingness to disregard statutory language to get a convention compliant reading.

Question 11

When will the courts use a more vigorous reading of s3?

Answer 11

When the case is in the courts domain, such as criminal evidencing (Hammond, R v A).

In the case of social policy or national security, greater deference will be afforded to the legislation in question.

Question 12

Re S and Re W (Care Orders) [2002] (section 3)

Answer 12

Facts: courts could not interfere with a care plan by local authorities and this was challenged as being a breach of Art 8 (right to private + family life). Thus the CA read into the Children Act 1989 to find that they could interfere if a breach of care occurred, but the HL reversed the decision.
Judgment: Nicholls said that ‘s3 is a powerful tool whose use is obligatory… in applying s3 courts must be ever mindful of this outer limit. The human rights act reserves the amendment of primary legislation to parliament… to preserve Parliamentary sovereignty.’
Further info: the case agreed with Steyn in R v A despite widespread political and academic condemnation.

Question 13

Poplar Housing v Donoghue [2001] (section 3)

Answer 13

“[s3] does not entitle the court to legislate: its task is still one of interpretation but interpreation in accordance with the direction contained in s3”

This case showed a more cautionary approach to s3 reiterated by Nicholls in Re S and Re W, making it clear that a more cautionary approach to s3 will be used when the matter is beyond the court’s domain.

Question 14

Sec of State for the Home Dept v MB (FC) [2007] (section 3)

Answer 14

Bingham expressed reluctance in applying s3 to a counter terrorism measure but due to the force of argument from the other 4 judges he did so. They applied s3 to a terrorism case, where they are reluctant to interfere with the exec.

Question 15

Anderson [2003] (section 3)

Answer 15

Facts: the sec of state had a role in criminal sentencing which was found to be a breach of Art 6 as the sec of state could not be seen as an independent tribunal as he was a part of the government.
Judgment: the courts could not use s3 to edit such a fundamental feature the british constitution; as a result, an s4 declaration was made in regard to s29 of the Crime (Sentencing) Act 1997 to absolve the Sec of State’s involvement in criminal process interfereing with Art 6.

Question 16

Arguments of Kavanagh

Answer 16

• Re S and Re W showed how the courts will not use s3 to reinterpret statutes that permeate its entire meaning and effectively relegislate (reflected in Anderson and then R v Lambert).
• S3 does not give power to a judge to change the very point at issue in a legislator, and will only change those that are not fundamental to the statute (R v A, Lambert and Ghaidan demonstrate this).
• the subject matter is important to judges. If it is within judicial competences, judges are more inclined to boldness (R v A, R v Offen and Hammond). If it is social policy they are less likely to be bold (Re S, Bellinger) and the courts ask if Parliament is better suited to make the decision.
• Steyn sees s3 as the primary remedial mechanism of the HRA, which marginalises dialogue with the courts and parliament and leads to a transfer of power to the judiciary.

Question 17

Section 2

Answer 17

UK courts must ‘take into account’ Strasbourg jurisprudence when making domestic decisions.

Question 18

Declarations of incompatibility under s4 examples

Answer 18

• A v Sec of State for the Home Dept caused the govt to repeal provisions in the Anti-Terrorism, Crime and Security Act 2001.
• The Housing Act 1996 was amended to be compatible with Art 14 following Westminster CC v Morris.
• ‘A declaration is an empty remedy’ (Burden v UK). S3 leaves power in the judges hands - s4 provides no justice for the case at hand.
• All declarations have been remedied or are being remedied.

Question 19

Masterman view on s2

Answer 19

The UK courts ‘take their lead from Strasbourg’.

Question 20

R (Ullah) v Special Adjudicator (section 2)

Answer 20

Bingham: ‘in determining the present question, the house is required… to take into account any relevant Strasbourg case law… [it] is not strictly binding… the duty of domestic courts is to keep pace with the Strasbourg jurisprudence… no more but certainly no less.’

Question 22

Marper [2004] (section 2)

Answer 22

Followed Ullah in rejecting that UK case law should determine convention rights.
Steyn did accept however that UK law should be considered when determine if the infringement of rights was justified.

Question 22

Does the HRA seek to enlarge the rights of the ECHR?

Answer 22

No, it only seeks to enforce them in domestic courts. As per:

• Aston Cantlow v Wallbank [2004]
• Greenfield [2005]
• Quark Fishing [2005]

Question 23

N v Sec of State for the Home Dept [2005] (section 2)

Answer 23

The courts were not satisfied with Strasbourg case law in deporting an AIDs victim to a country without the facilities to deal with it, so they dismissed it and applied their own.

Question 25

Kay v Lambeth LBC; Leeds CC v Price [2006] (section 2)

Answer 25

Bingham stated (and was agreed with) that the UK courts are not strictly required to follow Strasbourg, but to expound Strasbourg principles. 
Established that where Strasbourg jurisprudence is not clear and consistent or where a domestic precedent stands in its way, it can be disregarded. 
They found that a House of Lords precedent of Harrow LBC v Qazi [2004] should be preferred over the Strasbourg case of Connors v UK (2004).

Question 25

Animal Defenders case and R v Horncastle [2010] (section 2)

Answer 25

These two cases show how Strasbourg jurisprudence may be departed from even where clear and consistent.

In R v Horncastle it was stated that “it would not be right… to hold that the sole test [from the Strasbourg decision] should have been applied rather than the provisions of the 2003 Act… I believe that those provisions strike the right balance between the imperative that a trial must be fair and… that a criminal should not be immune from conviction where a witness, who has given critical evidence… dies or cannot be called to give evidence for some other reason.”

Question 26

Re P [2009] (section 2)

Answer 26

This case can be contrasted greatly with Ullah. Ullah stated that Strasbourg jurisprudence should not be departed from if clear and consistent but that Bingham’s words in Ullah should not restrain the House of Lords from developing their own Human Rights jurisprudence.
“Strasbourg jurisprudence is not to be treated as a straightjacket from which there is no escape.”
“Convention rights… are domestic and not international rights.”

Strasbourg was thus treated as a floor and not a ceiling.

Question 27

A v UK (2009) (section 2)

Answer 27

The Strasbourg courts held a higher standard of fair trials than domestic courts in MB meaning that despite the HRA and reliance on s2, the Lords had failed to interpret Strasbourg in a way to which Strasbourg would have concurred.

Question 28

But can Strasbourg jurisprudence be binding?

Answer 28

Yes - where it is clear and of a particular authority.
This occured in Sec of State for the Home Dept v AF and others [2009] which preferred the Strasbourg ruling of A v UK (Belmarsh) (2009) over that of Sec of State for the Home Dept v MB [2008] because ‘the authority of the considered statement of the Grand Chamber is such that our courts have no option but to accept and apply it.’ The court found that a balance needed to be struck and the national security interest could not demand that no disclosure of the basis for suspicion need occur.

Question 29

Section 6

Answer 29

‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

Courts and tribunals are included (s6(3)(a)).

Parliament and statutes are excluded.

s6(2)(a) is an exception where public authorities will not be acting incompatibly if primary legislation does not allow them to do otherwise. This applies only to statute and if the duty to act clashes with common law, the duty prevails.

Question 30

Standard and functional public authorities

Answer 30

Standard (or ‘core’) public authorities include the police, security services, etc and are easy to define

Functional public authorities are those which can have separate private actions but can be held to the HRA for their public actions

Question 31

Three types of bodies

Answer 31

Standard public authorities: they are public bodies which can never act privately, even in private relations. They can held to the HRA in all functions.
Functional authorities: they can act privately but are held to the HRA for their public actions (e.g. Cameron v Network Rail [2006] where a rail safety company had public duties of rail safety but relations with shareholders, employment are purely private).
Purely private bodies: they have no public function at all.

Question 32

Section 6(3)(b)

Answer 32

Public authority includes “any person certain of whose functions are functions of a public nature”.

This has created massive difficulties in interpretation.

Question 34

Leonard Cheshire Foundation [2002] (section 6)

Answer 34

Facts: Two residents of a disabled home were denied judicial review of a decision to redevelop the home, leaving the two residents without a home to go. LCF is a charity providing this home.
Judgment: LCF is not standing in the shoes of a local authority, nor does any statute grant it power. Thus LCF is not a public body, and the appellants claims for a breach of Art 8 were dismissed.
Further info: three factors were used for this determination ( the home was publicly funded but there was no other evidence of a public function, it was not standing in the shoes of a public body, the nature of the service was not different between residents of publicly funded homes.) The need to secure Art 8 was not enough to change the classification of a function. This case took a notedly ‘institutional’ approach to the public function question.

Question 35

Poplar Housing v Donoghue [2001] (section 6)

Answer 35

Facts: D’s property was transferred to the Housing Association (the claimant) from the local authority who sought to handle a substantial portion of the local authority’s housing stock. The housing association ordered under s21(4) of the Housing Act 1988 repossession of their house and D applied for an adjournment to lodge a claim that the Housing Association is a public authority for the purposes of the act and therefore reposession would amount to a breach of Art 8(1). The application for adjournment was denied and they appealed.
Judgment: Lord Woolf held that the housing association was a public authority in this instance as despite providing housing not making them a public body, its role was so close to that of the local council that it was found to be a public authority.
Further info: the test set out in this case that the courts will look at statutory authority, level of public control, acts of a private nature enmeshed with public activities and the closeness of a relationship with a public body were restrictive to the test and future cases such as YL and Quadrant Housing would show a much more expansive approach.

Question 35

Other considerations for s6

Answer 35

It may be taken into account the question of whether, if a particular body did not exist, would the govt have set up one to carry out that fucntion. Thus, in the absence of statutory indications,institutional connections with government are important (as in Poplar the overlap of personnel with the body and the govt was deemed important).

The justification for a wide reading of s6 are so that whole industries aren’t, at the moment of privatisation, absolved of all human rights protection. Thus, where a ‘public function’ is being carried out by a govt, individuals need protection where they would normally have it in this sector. Likewise a Joint Committee on Human Rights paper suggested that a wide reading is given to s6 to allow a full protection of rights in sectors that need protection.

Question 36

Parochial Church Council of the Parish of Aston Cantlow v Wallbank [2004] (section 6)

Answer 36

Facts: the question was asked whether a PCC could be deemed a public authority.
Judgment: Nicholls determined that there was no single test for determining public functions. Nicholls recognised the consideration of public funding, statutory powers, standing in the shoes of public authorities and providing public services. The PCC was found to not be a core public authority as if they were they could themselves invoke the HRA, in particular s13 which concerns freedom of expression. The court found the PCC to be carrying out a public function in this instance but they are not core public authorities by any means
Further info: this approach is approved in Strasbourg (Holy Monasteries v Greece). This case built on Poplar Housing and will be built on by YL.
The Lords focused on a more functional approach than the initial CA judgment. Nicholls noted the need for a wide interpretation of s6 in order to secure convention rights. The Lords noted that the test of amenability in judicial review is not definite for the public body approach in the HRA, as Strasbourg takes its own approach.

Question 37

YL v Birmingham CC 2008

Answer 37

Facts: whether a private care home, when providing accommodation to a resident under arrangement with a local authority under statute, is performing functions of a public nature.
Judgment: Mance held that while the courts should hold to account government functions that are delegated to private institutions, Strasbourg jurisprudence (notably Sychev v Ukraine) notes that private care homes do not acquire or exercise obvious state powers/duties.
Bingham dissented saying there is no difference between activities of a local authority managing care homes and those of privately owned ones.
Thus the private care home was found not to be exercising a public function for the purposes of the act (though this has been overturned by the Health and Social Care Act 2008).
Further info: the decision was overturned by the Act, but it still showed the wish for the courts to expand the view of the state for the purposes of the HRA.

Question 38

Sections 7 to 9

Answer 38

ss7 and 8 offer a remedy to those who have suffered a breach of rights.

Question 39

R (On the Application of Weaver) v London Quadrant Housing [2009] (section 6)

Answer 39

This case built on the criteria used in Poplar, YL and Aston-Cantlow to decide that a trust was a government function as the trust was publicly funded, subject to intense govt regulation, had to carry out govt policy and had to cooperate with the local authority.
The courts have moved towards a more functional approach of s6 of the HRA.

Question 40

Victims

Answer 40

They must be victims as per s7(1)(a).

They can rely on the ECHR in any legal proceedings as per s7(1)(b).

The House of Lords accept Strasbourg interpretations of victims, i.e. allowing them to not actually have been damaged by the breach (Norris v UK) or being represented by pressure groups (Open Door and Well Woman v Ireland) or family members of victims (McCann v UK).

Question 41

Remedies

Answer 41

Damages, certiorari, mandamus and prohibition are all available to victims of breaches of the Convention, however they must be on ‘just satisfaction’ (s8(3)).

Question 42

Do Convention rights have horizontal effect?

Answer 42

Yes and no - they cannot ground a claim in themselves as s6 places the obligaiton only on public authorities to be able to breach convention rights, but seeing as the courts are public authorities, they must develop common law in line with convention rights.

Thus an existing cause of action must exist.

Question 43

Wilson v First County Trust [2003]

Answer 43

Where a statute is being interpreted and applied under s3 in a case between two private parties, the courts will apply it as if one of the parties was a public authority.

Question 44

A v B PLC [2003]

Answer 44

In this case, concerning the common law tort of a breach of confidence, Lord Woolf stated that the court is under a duty to not act incompatibly with Convention rights, therefore the ‘…court is able to achieve this by absorbing the rights which articles 8 and 10 protect in to the long-established action for breach of confidence.’

Question 45

Campbell v MGN [2004]

Answer 45

It was stated in this case that the HRA creates no cause of action between private persons but if there is a relevant cause of action applicable, the court must act compatibly with both parties’ convention rights.

It is implicit in this case that a form of indirect horizontal effect has been accepted.

Question 46

Venables and Thompson [2001]

Answer 46

Butler Sloss LJ stated that ‘the claimants in private law proceedings cannot rely upon free-standing application under the Convention.’

This established the proposition that free standing claims cannot be made under the HRA.

Butler Sloss also rejected Buxton’s theory of no horizontal effect of the HRA, as the Claimants rights under Art 2 of the Convention demanded protection which could be provided by extension of the law of confidence

Question 47

McKennitt v Ash [2007]

Answer 47

This case confirmed the death of the common law tort of breach of confidence being replaced with articles 8 and 10 of the Convention.

The courts thus have a duty as public authorities to develop the common law compatibly with convention rights.

Question 48

Three academic views regarding horizontal effect

Answer 48

The strong model
The weak model
The constitutional constraint model

Question 49

Ex p Kebilene [2000] (MoA)

Answer 49

This case recognised an initial development of the margin of appreciation doctrine in national law.

Hope stated that “In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds to the considered opinion of the [democratic body or person]…”

Question 50

Proportionality, deference, and the ‘discretionary area of judgment’

Answer 50

Deference is the equivalent of the margin of appreciation doctrine but on a local level. A wide margin of appreciation is applied from Strasbourg to matters of national security, social policy and public morality.

Rehman v Sec of State [1999] showed the courts giving the Home Sec a wide latitude for determining security risks and combatting them. The executive deference in Rehman has not been shown in other cases.

Question 51

Brown v Stott [2001] (MoA)

Answer 51

This case concerned a drink driving charge. Under the Scotland Act, acts of the Scottish executive are void if incompatible with Convention rights. the question therefore was whether the Scottish ‘procurator fiscal’ (local coroner and public prosecutor) could lead evidence of the admission which Miss Brown had been compelled to make under s172(2) of the Road Traffic Act or whether his involvement amount to a breach of Art 6 of the Convention.

The courts further found the deference doctrine developing in domestic law and thought that because an Act had specified the use of a certain method, deference should be paid to it as they had analysed the research and the best way of prosecuting individuals for drink driving.

Question 52

Huang v Home Sec [2007] (MoA)

Answer 52

This case added an overriding requirement of those set down in de Freitas [1999] in calculating proportionality: the ‘need to balance the interests of society with those of individuals and groups’

Thus when a proportionality test is being applied, deference should not stand in the judiciary’s way; the court can carry out itself the legislative exercise of taking into account interfering factors.

Question 53

A and Others v Home Secretary [2004] (MoA)

Answer 53

Facts: a number of detainees were detained under ss21 and 23 of the Anti-Terrorism, Crime and Security Act 2001 under a derogation from the arts 5 and 14 from the UK under art 15. The detention was indefinite for non-nationals who the Home Sec deemed a danger to society.
Judgment: Bingham found it appropriate that degrees of deference should be afforded to the legislature and the executive in issues of national security on the basis of ‘institutional competence’. He stated that “the more purely political a question is, the more appropriate it will be for political resolution and the less likely to be an appropriate matter for judicial decision…” however he also said that the function of independent judges should not be heralded as undemocratic and they are entitled to review the actions of the executive.

Question 54

Lord Steyn (extra judicial writings re Deference)

Answer 54

• there cannot be any judicial no-go areas due to their constitutional importance as the guardian of human rights.
• Hoffman notes that the exec should have the ultimate say in national security measures because they have access to special information and have special expertise. Thus Steyn thinks that special deference should be paid to their decision.

Question 55

Re P [2009] (in relation to deference)

Answer 55

This case concerned discrimination and as a result the courts cut off all deference that would be afforded to the Northern Irish Assembly. Lord Hope found that the matter at hand - discrimination - was definitely within the court’s sphere of competence and thus was definitely not subject to review. The legislation was thus quashed. He recognised the test that if the sphere of competence is one of the courts, the exec, the legislature or whatever, then deference should be paid to them.

IMPORTANT: “The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.”

It was thus found that the legislation in question (banning unmarried straight couples to adopt) is discriminatory and thus should be quashed.

Question 56

Jowell opinion on deference

Answer 56

• Agrees with Hoffman that deference should be paid to the exec in issues of national security but the courts are the ultimate arbiters
• Nonetheless the exec has the competence for national security matters as they have the derived democratic legitimacy

Question 58

Do we have a Bill of Rights - or do we need one?

Answer 58

• British courts can develop their own jurisprudence regarding human rights so it is similar to a bill of rights
• Strasbourg jurisprudence is not binding as many might believe, so it is domestic in that sense
• The HRA is somewhat entrenched (having constitutional value as per Laws LJ in Thoburn)
• the HRA has special significance likewise because of its effect on all future and past legislation, similar to the EC Act 1972.
• s4 protects the peculiarity of the British Constitution which is parliamentary sovereignty, but s3 has provided enough of a scope to allow the judiciary to safeguard human rights in the UK