Chapter 6: Introduction to the Human Rights Act 1998 Flashcards

Question

3.2 Margin of appreciation

Answer 1

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.

Answer 2

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.

Answer 3

In this case, which concerned an interference with freedom of expression under article 10(1), the ECtHR explained that: 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 those requirements [of morality] as well as on the “necessity” of a “restriction” or “penalty” intended to meet them […]

Answer 4

Does not give the Contracting States an unlimited power of appreciation. The court, which, with the Commission, is responsible for ensuring the observance of those States’ engagements, is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision

Answer 5

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

Answer 6

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

Answer 7

(Note that the margin of appreciation, strictly defined, only applies to ECtHR cases. It will not apply to domestic UK cases, as these are being decided by a home court and not an international, supervisory one.)

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

The HRA 1998 created four key new obligations that have had a very significant impact on UK domestic law. These obligations are: (a) Section 2 HRA: In determining legal questions, including common law development, the courts must take into account relevant ECHR case law. (b) Section 3 HRA: Legislation must be read and given effect (by the courts), so far as is possible, in a way that is compatible with ECHR rights. (c) Section 4 HRA 1998: If the above (s 3) is not possible, the court may make a declaration of incompatibility. (d) Section 6(1) HRA 1998: It is unlawful for ‘public authorities’ (including courts and tribunals) to act in a way that is incompatible with Convention rights. Section 2 is considered further below. Sections 3, 4 and 6 will be considered in the next chapter.

Answer 12

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 […]

Answer 13

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.

Answer 14

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’

Answer 15

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

Answer 16

The decision in R v Horncastle [2009] UKSC 14 (which also related to article 6) also illustrates a departure from previous Strasbourg case law.

Answer 17

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

Answer 18

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.

Answer 19

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 and may decline to follow it in the hope that it may be reconsidered: R v Horncastle […].

Answer 20

Section 6(1) places an obligation on ‘public authorities’ to act in a way that is compatible with Convention rights. Relevant parts of s 6 provide

Answer 21

6. Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. […] (3) In this section “public authority” includes- (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature… […] (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private

Answer 22

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.

Answer 23

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

Answer 24

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.) Core and hybrid public authorities are discussed below.

Answer 25

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 a core public authority, there is no definitive test

Answer 26

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 […]

Answer 27

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.

Answer 28

(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.

Answer 29

(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

Answer 30

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’.

Answer 31

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).

Answer 32

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.

Answer 33

In 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

Answer 34

(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

Answer 35

In the instant case, the PCC (Police & Crime Commissioner) 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’.

Answer 36

preceded Aston Cantlow. One additional factor identified in Poplar, but not expressly discussed in Aston Cantlow, as relevant to assessing whether a function is public was the proximity of the relationship between the private body and the delegating authority. In Poplar the housing association and the local authority, which had transferred its housing stock to the association, were described as ‘so closely enmeshed’.

Answer 37

the House of Lords held that privately run care homes for the elderly were not functional public authorities for the purposes of the HRA. Lord Scott stated that the care homes were owned by a private company, which entered into private law contracts with its residents and local authorities, and which received no public funding and enjoyed no special statutory powers. Note, however, the strong dissenting opinions in this case from Lord Bingham and Lady Hale in the minority.

Answer 38

With the less restrictive approach taken in R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587 where a housing association was found to be a hybrid public authority in relation to the actions it had carried out, which had impacted on the claimant’s article 8 rights.

Answer 39

This more liberal line in Weaver was reflected in the coming into force of a specific statutory provision, designed to remedy the difficulties presented to the courts in care home cases like YL.

Answer 40

Specifically provided that a care home provider was to be taken (for the purposes of s 6(3)(b)) to be exercising a function of a public nature when providing accommodation together with nursing or personal care. (This provision was repealed, however, in 2015 by an Order made under the Care Act 2014.)

Answer 41

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, their conduct 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).

Answer 42

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.

Answer 43

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 […]’.

Answer 44

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 […].

Answer 45

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.

Answer 46

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.

Answer 47

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.

Answer 48

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.

Answer 49

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.

Answer 50

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.

Answer 51

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).

Answer 52

Actions under the HRA 1998 must be commenced within one year of the date of the act complained of (HRA 1998, s 7(5)).

Answer 53

An extension of time may be granted in exceptional cases where the court considers it ‘equitable’ to do so in all the circumstances.

Answer 54

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.

Answer 55

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)).

Answer 56

Article 1 contains the fundamental duty upon contracting states with respect to the Convention rights. It states: Article 1 Obligation to respect human rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this convention

Answer 57

Note that, under the terms of Article 1, there is no requirement of citizenship or residency of a contracting state in order to benefit from the Convention protections. The test is whether the person is within the jurisdiction of the state. For example, an American tourist in the UK could be a victim under the Convention and therefore, make a claim under the HRA 1998.

Answer 58

In certain exceptional circumstances, a person could make a claim for acts that have occurred outside the geographical jurisdiction of the relevant contracting state.

Answer 59

Concerned the bombing of Belgrade by NATO forces, the Grand Chamber of the ECtHR observed that, while Article 1 reflects an essentially territorial notion of jurisdiction, extra territorial jurisdiction could be recognised in some very limited circumstances.

Answer 60

These could include matters arising from the activities of diplomatic staff abroad, for instance, or when the state has effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation, or because the government of that territory had consented or acquiesced to the exercise of its powers

Answer 61

The applicants were relatives of six Iraqi civilians who, it was claimed, had been killed by UK armed forces in Basra during 2003. The House of Lords held that although liability under the HRA 1998 could extend outside the territorial jurisdiction of the UK in limited situations, the claims of five of the civilians could not succeed because they were killed in the course of general security operations when the UK did not have sufficient control over Iraq

Answer 62

However, the sixth civilian, Baha Mousa, came within the jurisdiction of the UK under Article 1, as he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces.

Answer 63

Conversely in this case, the ECtHR found that in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR and HRA, whether on or off UK bases. Thus, the scope of the concept of jurisdiction was significantly widened.

Answer 64

In relation to the rights of UK armed forces personnel serving overseas, domestic law initially fell in step with the earlier ECtHR decisions in Bankovic and the House of Lords decision in Al-Skeini. For instance, in R (Jason Smith) v Secretary of State for Defence [2010] UKSC 29, the Supreme Court found that jurisdiction under the ECHR and HRA did not extend to the protection of the deceased soldier’s rights because he died in an area seen to be outside the UK’s control. (He died of heatstroke whilst he was serving in the field of combat in Iraq in 2003.)

Answer 65

However, the Supreme Court unanimously decided that the so-called ‘Snatch Land Rover claims’, similarly relating to the deaths of British services personnel operating in the field of combat in Iraq (in 2005 and 2006), did attract the protection of the Convention.

Answer 66

Lord Hope found that the ECtHR’s position in Bankovic had been partly redefined in Al-Skeini v UK. The key element was the degree of control and authority exercised by the relevant state over the individual. When considering the way in which the armed forces operate, he held that serviceman relinquish almost total control over their lives to the state. Accordingly, deaths of servicemen in the battlefield fall within the jurisdiction of Article 1. R (Jason Smith) was departed from, as it was inconsistent with Al-Skeini.

Answer 67

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.

Answer 68

(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.

Answer 69

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’

Answer 70

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.

Answer 71

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’).

Answer 72

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.

Answer 73

* The constitutional need for the HRA: Factors include: the UK’s dualist constitutional system; a desire to comply with ECHR obligations; the desire to incorporate a positive statement of values into UK domestic law; and the wish to implement a more practical and efficient system to ensure these objectives.

Answer 74

* The structure of the ECHR and its protected rights contained in the articles. We were introduced to the differences between limited, qualified and absolute rights

Answer 75

* Judicial principles and techniques of the ECtHR, notably the concept of the positive obligation; the margin of appreciation; and the principle of proportionality.

Answer 76

* Section 2 HRA 1998: the UK courts have an obligation to ‘take into account’ relevant ECtHR case law (see R (Haney and Others) and have developed a relationship of dialogue with the Strasbourg court.

Answer 77

* The duty on public authorities in s 6(1) HRA to act in a way that is compatible with Convention rights. This duty applies to ‘core’ public authorities with respect to all of their acts (Aston Cantlow) and applies to ‘functional’ or ‘hybrid’ public authorities with respect to their public functions (Aston Cantlow; YL; Weaver).

Answer 78

* The test for standing in s 7(1) HRA, which is that the applicant is a directly affected victim (s 7(7); Article 34 ECHR; Klass v Germany). * The time limit to bring a claim under the HRA is one year (s 7(5)). * Jurisdiction under Article 1 ECHR: while Article 1 reflects a territorial notion of jurisdiction, extra-territorial jurisdiction will be recognised by the courts in certain circumstances (Al-Skeini v UK; Smith, Ellis and Allbutt). * Derogations(article 15 ECHR); and Reservations (article 57).

Chapter 6: Introduction to the Human Rights Act 1998 Flashcards

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