The Human Rights Act and ECHR in the UK Flashcards
The HRA incorporated the ECHR into domestic law. Does legislation have to follow the ECHR and European Court of Human Rights’ judgments?
S2 HRA – states that domestic courts must take judgments of ECtHR into account, but they aren’t bound to follow them
S3 – insofar as possible, legislation must be read and given effect in a way that is compatible with ECHR rights (applies to past and future legislation)
S4(2) - a declaration of incompatibility can be issued, meaning legislation is declared incompatible with ECHR rights; this does not affect the validity of the provision, but puts political pressure on the government to change the law
Can remedy incompatibility by:
- Making a remedial order to amend or repeal offending legislation
- Amend or repeal offending legislation by way of Act of Parliament
Is a public authority able to contravene ECHR rights?
No, S6 HRA states that it is unlawful for a public authority to contravene ECHR rights
- This adds an additional ground to judicial review (European ground which covers breach of a convention right)
This does not expressly apply to individuals
- However, court is public body, so it has a duty to apply the Convention
When a case relating to contravention of ECHR comes before court, the court can consider the contravention by way of horizontal effect – ECHR rights therefore can affect relations between private individuals
- Private individual 1 can ask the court to apply the ECHR against private individual 2 when bringing a claim based on an existing cause of action
Who can bring a claim for breach of an ECHR right under the HRA?
S7 – can bring claim for breach of ECHR right if they are a victim of breach (must be directly and personally affected)
- Pressure groups may exceptionally have standing in relation to climate change litigation
What remedies might a court award for a breach of the HRA?
S8 – court can award damages for breach of ECHR rights where it is necessary to afford just satisfaction
- This is usually a common law action under which damages can be claimed
What requirements must be met before a person can bring a judicial review claim under the HRA?
Public law matter and public body
Standing
- Must be directly and personally affected as a victim to bring a JR claim under the Convention right ground
Ouster clause
Within the time limit
Grounds of review
- Either one of the domestic grounds (illegality, irrationality, procedural impropriety) or breach of a Convention right
It is possible to qualify Convention rights under the HRA, as it is under the ECHR.
What is required for a qualification of a right to be valid?
Any qualifications of Convention rights must be prescribed by law, legitimate aim and necessary in democratic society
Consider proportionality test:
- (i) whether the objective of the restriction order is sufficiently important to justify limiting a fundamental right;
- (ii) whether the restriction order is rationally connected to this objective;
- (iii) whether a less intrusive measure than the restriction order could have been used; and
- (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community
Is there a hierarchy of rights? Which 2 rights often conflict with one another?
No strict hierarchy of rights, so no one right is considered more important than another
- Courts determine priority on a case-by-case basis, by analysing the case facts
Often, conflicts arise between Article 8 (right to respect for private life) and Article 10 (freedom of expression) in the context of celebrities and press expression
- Court will look to strike a balance between the two rights, which can be a considerable challenge
S12(4) HRA - attempts to prevent restriction of the press through privacy claims
- Court will assess the extent of the material already in the public domain
- Courts will also assess whether the publication is in the public interest
- They will also see if there is any relevant privacy code
What case discussed the protection of identities of criminals? What conclusions were reached?
Identities of criminals protected to enable them to establish relationships with others and to prevent risk of harm/harassment - Mary Bell case – priority given to privacy over freedom of expression
This would only happen in rarer circumstances and priority was placed on the fragile mental health of the applicant. Other considerations:
- (a) the young age at which she committed the offences;
- (b) the length of time that had expired since offences were committed; and
- (c) the serious risk of potential harassment and possible physical harm.
The Campbell case introduced a test to see if an individual has a reasonable expectation of privacy.
What was the conclusion in the case and what is the test?
Campbell case – courts favoured Article 8 where there was a misuse of private information
HL applied the test of whether C had a reasonable expectation of privacy in the protection of the particular circumstances
This is an objective test, considering all circumstances of the case, including:
- Nature of activity engaged in
- Attributes of the claimant
- Nature and purpose of the intrusion
- Absence of consent
- How the information reached the publisher
If C has a reasonable expectation of privacy, courts will balance Articles 8 and 10 to see if there has been a breach of Article 8
When considering if a qualification of a right is necessary in a democratic society, a 4 part proportionality test is applied.
Is this test relevant when balancing 2 rights in conflict?
The 4-part proportionality test from is not applied when balancing two rights – only applied when assessing an interference with one convention right
Instead, court assesses the comparative importance of the rights claimed where there is conflict and the justification for interfering with those rights and then consider the proportionality of interference
What did the Von Hannover cases indicate about photographs, medical issues and how these tie into Article 8 and Article 10 conflicts?
Medical issues attract additional privacy
Photographs and articles should be considered separately and together to obtain an overall view of the potential intrusion
Von Hannover (1) made it clear that public figures still have a right to respect for their private life when in a public place
Von Hannover (2) held that photographs were found to be a matter of public interest due to concern’s about the Prince’s health
- Photographs must contribute to a genuine debate of public interest
What are some other noteworthy cases in relation to Article 8 + 10 conflicts?
Murray case – if there is a reasonable expectation of privacy, then it must be asked how to strike a balance between C’s right to privacy and the publisher’s right to publish
- This infringement of the right to privacy should be assessed on an objective and case-by-case basis
Mosley v NGN – there must be sufficient public interest in a particular matter to justify publication
Ferdinand v MGN Ltd – there is a public interest element in demonstrating that a person’s perceived image is false
