Week 18: Key concepts in ECtHR's reasoning, Human Rights Law in UK, Human Rights Act 1998

Question 1

What are the key legal doctrines utilised by the European Court of Human Rights?

Answer 1

• Margin of appreciation
• Proportionality

Question 2

Explain margin of appreciation as a key legal doctrine used by the ECtHR

Answer 2

Discretion afforded to States by the ECHR to balance conflicting public goods which limit one or more rights

This doctrine recognizes that national authorities, being closer to their societies, are often in a better position to judge the necessity and extent of any restrictions on rights guaranteed by the Convention

Developed by European Court of Human Rights, not in text of European Convention on Human Rights

Similar to idea of “deference” in domestic law

• Idea being that those situated within the jurisdiction are better placed to understand the complexities of the issue and determine an appropriate response

Question 3

Handyside v United Kingdom (1979-80) 1 EHRR 737

Answer 3

• The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines…
• By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on
• the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. [48]

This legal doctrine can also be identified in A v Secretary of State (Belmarsh) [2004] UKHL 56, [37]-[42]

Question 4

Proportionality

In determining whether an interference with a Convention right is justified,what must the courts inquire

Answer 4

In determining whether an interference with a Convention right is justified the courts must inquire whether:
1) the legislative objective is sufficiently important to justify limiting a fundamental right;
2) the measures designed to meet the legislative objective are rationally connected to it; and
3) the means used to impair the right or freedom are no more than is necessary to accomplish the objective”

Question 5

proportionality

Bank Mellat v Her Majesty’s Treasury (No 2)[2013] UKSC 38

Answer 5

The approach … can be summarised by saying that it is necessary to determine
(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
(2) whether the measure is rationally connected to the objective,
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
Lord Reed at [74] - see also Lord Sumption at [20

Question 6

A v Secretary of State for Home Department (Belmarsh) [2004] UKHL 56

Answer 6

Anti-terrorism, Crime and Security Act 2001 s.23

• Was the derogation from Article 5 acceptable in the context of national security and the treatment of suspected terrorists?

Proportionality:
Quoted de Freitas tests [30]

Margin of appreciation:
Decision was a “pre-eminently political judgment.” (Lord Bingham [29])

Question 7

Describe common law tradition of civil liberties

Answer 7

Rights and freedoms that protect individuals from government power – enforced by the Courts

• Exist in the gaps between the law
• Courts apply presumptions in favour of them
• But always vulnerable to state

Influenced by ancient legal texts

• Magna Carta 1215
• Bill of Rights, England, 1689

Question 8

What was the position of the ECHR before HRA and what were the problems with it?

Answer 8

UK signed treaty in 1950, ratified in 1951
Accepted right of individual petition in 1965

Two problems:

• UK is a dualist state: international law is not part of domestic law
• Parliamentary sovereignty: Kaur v Lord Advocate 1980 SC 319

Convention and case-law merely an aid to interpretation

Question 9

Why was the Human Rights Act 1998 introduced?

Answer 9

Home Office, Rights Brought Home (Cm 3782, 1997)

• Cases going to ECtHR costing (on average) £30,000
• Delay on a case being brought to the ECtHR was (on average) 5 years
• Political embarrassment
• Rights not adequately protected
• Brits able to argue for their rights in the British courts
• British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe

Question 10

What does the Human Rights Act 1998 Do?

Answer 10

Incorporates the ECHR into domestic law:

• Imposes obligation upon public authorities (except Parliament) to act in a Convention-compliant manner
• Explicitly retains Parliament’s right to act in contravention of HR
• Also embedded in devolution settlements since devolved administrations have no power to act incompatibly with Convention rights

Came into effect 2nd October 2000
No retrospective effect (R v Lambert [2001] UKHL 37)

Question 11

Describe the status of Human Rights Act 1998

Answer 11

Human Rights Act 1998 is an Act of the UK Parliament

• Notion of a ‘constitutional statute’ (Thoburn v Sunderland City Council [2002] EWHC 195 [62])
• but can be expressly repealed

Arguments from some quarters that should repeal the Human Rights Act 1998

• British Bill of Rights
• Independent Human Rights Act Review

Question 12

Explain interpretation of statutes under the Human Rights Act 1998

Answer 12

Section 3(1) - “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”

Applies to primary and secondary legislation (s.3(2)(a) Human Rights Act 1998)
Does not affect the validity, continuing operation or enforcement of incompatible primary legislation (s.3(2)(b)) or subordinate legislation where primary legislation prevents removal of incompatibility (s.3(2)(c))

Question 13

Explain examples of interpretation under the HRA 1998 in practice

Answer 13

• Courts must interpret legislation in a manner that is consistent with the rights enshrined in the European Convention on Human Rights (ECHR)
• If a piece of legislation can be interpreted in more than one way, courts are obligated to choose the interpretation that is compatible with human rights, as defined by ECHR.
• However, if it is not possible to interpret legislation in a way that is compatible with human rights, courts do not have authority to override legislation
  [Section 3(1)] is a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity.
• Lord Nicholls in Re S (Care Order) [2002] UKHL 10 [37]
• The rule of construction which section 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity
• But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators

The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible.
- Lord Hope (dissenting) in R v A (Complainant’s Sexual History) [2002] 1 AC 45, 87

Question 14

When can a court make a declaration of incompatibility

Answer 14

Where a court is “satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”

Question 15

Describe declarations of incompatability

Answer 15

• Do not affect the validity, continuing operation or enforcement of the provision in respect of which it is given;
• Are not binding on the parties to the proceedings in which it is made (s.4(6))
• Does not apply to devolved legislation (automatically outwith competence)

Question 16

When can Courts Issue a Declaration of Incompatibility?

Answer 16

Declarations of incompatibility are intended to be rare
Examples of declarations of incompatibility include:
Bellinger v Bellinger [2003] UKHL 21
Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916
Miranda v Sec of State for Home Dept [2016] EWCA Civ 6

Question 17

What are the consequences of a declaration of incompatability?

Answer 17

No direct legal consequences

• Law remains unchanged
• Expectation that law will be changed to become compatible
• Fast-track procedure for legislation – s.10 Human Right Act 1998

If nothing happens, no domestic remedy

• Victim likely to succeed if takes case to European Court of Human Rights (Although still no direct sanction if UK ignores that court)

Question 18

What role do the judgments of the European Court of Human Rights play?

Answer 18

Courts and tribunals must take into account any judgments, etc from the European Court of Human Rights when determining a question that is connected with a Convention Right (s.2(1))

Question 19

Give an example of a deviation fromSection 2 of the Human Rights Act 1998

Answer 19

R v Horncastle [2009] UKSC 14, Lord Phillips [11]
‘The requirement to “take into account” the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will, however, be rare occasions where the domestic 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 the domestic court to decline to follow the Strasbourg decision’

Question 20

Who is legally bound to respect Human Rights?

Answer 20

‘Vertical effect’ – rights can be claimed against the state

• Covers wide range of bodies not just the Government

Public authorities must not infringe rights by their own actions (s.6(1))
And duty to ensure rights are protected against acts of others

Question 21

What is a Public Authority Under Section 6 of the HRA 1998 and what does it not include?

Answer 21

“public authority” includes—
a) a court or tribunal, and
b) any person certain of whose functions are functions of a public nature (s.6(3))

Does not include:

• functions done in connection with proceedings in Parliament, (s.6(3))
• where a person who has public functions does something which relates to their private lives (s.6(5))

Clearly covers UK, devolved and local government, police, army, official regulatory bodies etc.

May also include private bodies, dependent on the nature of their functions

Question 22

Explain human rights between individuals

Answer 22

Often referred to as the “horizontal effect”

HRA 1998 does not provide ‘new cause of action’ based upon Convention rights

• Campbell v MGN [2004] 2 AC 457: established an important precedent in UK law regarding the protection of privacy rights

But existing law must be read in a manner compatible with such rights

• McDonald v McDonald [2016] UKSC 28 [45-46]: underscores the importance of human rights principles, such as the right to family life and the right to an effective remedy, in shaping legal outcomes

Question 23

Who Can be Granted Remedies Under the Human Rights Act 1998?

Answer 23

An individual who is or would be a ‘victim of the unlawful act’ can

• bring proceedings against the relevant Authority (s.7(1) HRA 1998)
• rely on Convention rights in proceedings (s.7(2) HRA 1998)
  Victim: same meaning as ECHR, Art.34 (s.7(7) HRA 1998)
• ECHR, Art 34: any person, NGO or group of individuals claiming to be a victim of a violation by a Contracting Party of the Convention rights
  Proceedings must be brought within 1-year (s.7(5)(a) HRA 1998)
• unless shorter period specified by other procedural rules
• subject to extension if deemed ‘equitable having regard to all the circumstances’ by the court (s.7(5)(b) HRA 1998)

Question 24

Remedies under the HRA 1998: What is Available?

Answer 24

The courts ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’ (s.8(1))

• Damages
• Injunction/ interdict
• Order that that subordinate legislation is invalid (unless primary legislation gives no option – s.3(2) HRA 1998)
• Declaration of incompatability
• Quashing order/ reduction and other judicial review remedies
• Decalaration/ declarator

Question 25

Remedies under the HRA 1998: What Should be Granted?

Answer 25

The courts ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’ (s.8(1) HRA 1998)
To award damages court must be able to do so in relation civil proceedings (s.8(2) HRA 1998)
No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy available, it is necessary to afford just satisfaction (s.8(3) HRA 1998)

• Usually only if direct loss, not just upset or to mark breach
  Must take into account principles applied by the ECtHR under Art 41 (s.8(4) HRA 1998)

Question 26

Explain the different meanings of ‘liberties’ and ‘rights’

Answer 26

Having the liberty to do something means that it is lawful to do it because the law does not prohibit it. But if someone has a right to do something then the law specifically provides that it can be lawfully done. Liberties are thus residual, whereas rights are positive and declaratory.

Question 27

What are the three limiting factors in the courts interpretive obligation

Answer 27

The extent to which courts are prepared to stretch statutory language in order to secure compatibility with the Convention is informed by the following three factors:

• fundamental features of the legislative scheme;
• the constitutional limits of the courts’ policy-making role;
• the practical consequences of according the provision a Convention-compliant interpretation.

Question 28

Ghaidan v Godin-Mendoza [2004] UKHL 30

Answer 28

Rent Act 1977 Schedule 1 Para. 2 – Where a person dies while renting aproperty, a person can claim succession of the lease provided they wereliving with the original tenant as his or her wife/husband

• Statute presupposed a heterosexual relationship

Court interpreted this provision to also extend to cohabiting same-sexcouples, in line with Articles 8 and 14 of the ECHR

• Contrary to the pre-HRA decision of Fitzpatrick v Sterling Housing Association Ltd [2001] 1AC 27
• Rent Act 1977 has since been amended by the Civil Partnership Act 2004

The intention of Parliament in enacting section 3 was that, to anextent bounded only by what is “possible”, a court can modify the meaning, andhence the effect, of primary and secondary legislation.”

• Although cannot be inconsistent with the fundamental features of the legislation

Question 29

Explain proportionality as a key legal doctrine used by the ECtHR.

Answer 29

Proportionality is a fundamental legal doctrine used by the European Court of Human Rights (ECtHR) in assessing the compatibility of state actions with the European Convention on Human Rights (ECHR).
It serves as a guiding principle to balance competing interests and rights, ensuring that any interference with human rights is justified and not excessive.