Human Rights Act 1998 Flashcards
(35 cards)
1
Q
HRA incorporates provisions of ECHR into domestic law
A
- designed to ensure every domestic court and tribunal is obliged to declare common law, interpret statutes, review administrative decisions consistently with Convention rights, grant remedies
- while UK signed since fifties, not given binding force domestically so individuals had to go to ECtHR which was politically embarrassing for gov.
2
Q
History of incorporation of ECHR law in UK
A
- recommended by early Fabian Society pamphlet in sixties
- Bingham gave address on ECHR in 1993 arguing for incorporation into UK domestic law, said common law unable to protect citizens against increasing power of executive
- Labour election manifesto 1997 promised gov committed to protection of human rights, led to enacting of HRA came into being a year later
3
Q
Rights covered by HRA
A
- Section 1 HRA gives effect to ECHR rights and freedoms in domestic law
4
Q
Main provisions of HRA
A
- three new obligations:
- in determining legal questions, including common law development, courts must take into account relevant ECHR case law: HRA 1998 s2
- legislation must be read and given effect in a way that is compatible with ECHR rights: HRA 1998 s3: if this is not possible, court can make declaration of incompatibility: HRA 1998 s4
- unlawful for ‘public authorities’ to act in way incompatible with ECHR rights: HRA 1998 s6(1)
5
Q
Strasbourg Jurispurdence
A
- HRA s2(1): provides UK courts and tribunals have obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with ECHR right
- first decision to consider this was R (Alconbury Developments Ltd) v SoS for Environment - HoL held that while case law of ECtHR not binding, domestic courts should follow clear and consistent jurisprudence unless special circumstances
- R (Ullah) v Special Adjudicator - made following comments: Bingham said duty of national courts to keep pace with Strasbourg jurisprudence as it evolves over time, no obligation to do more or less
6
Q
Strasbourg jurisprudence: mirror approach
A
- Klug and Wildbore first discussed
- example in SoS for Home Sec v AF, AM and AN: law lords followed ECtHR decision in A v UK dealing with question of withholding closed evidence from terror suspect and right to fair trial, departed from own previous decision in SoS for Home Dep v MB
- Lord Hoffman disagreed with Strasbourg’s decision and felt it to be wrong but felt bound by it
- Klug and Wildbore: mirror approach not simply right or only approach: in UK 2010 judgements and wording of s2 HRA some scope for departure from the ‘straightjacket’ of ECHR jurisprudence
7
Q
UK departure from ECtHR jurisprudence
A
- R v Spear first decision in which HoL declined to follow jurisprudence of ECtHR
- R v Horncastle also departure because of differing legal culture etc. and desire to create a dialogue
- judiciary also seen possibility of extending application of Convention rights under HRA s2(1) for wide margin of appreciation where there is no settled ECHR case law
8
Q
Idea of dialogue between UK courts and ECtHR
A
- relationship increasingly described, first coined by Lord Phillips, argue legal reasoning should have influence in Strasbourg
- i.e. Animal Defenders International v UK - ECtHR strongly influenced by how analysed in UK domestic court to depart from approach it took in VgT v Switzerland
9
Q
Lord Mance and Lord Hughes laid out current position between domestic and Strasbourg jurisprudence in R (Haney and Others) v SoS for Justice
A
“It follows from the wording of the Act that domestic courts in interpreting and applying such rights are not bound by the jurisprudence of the European court, but are bound to take it into account.”
10
Q
Interpretation of legislation
A
- HRA 1998 s3(1) provides: “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”
- applies to legislation existing at time of HRA enacted and in future
- strong interpretative obligation
11
Q
HRA approach to interpretation of legislation has at times been controversial - as was seen in R v A (no 2)
A
- Youth Justice and Criminal Evidence Act designed to restrict circumstances in which evidence and questioning about complainant’s prior sexual offences could be permitted
- issue whether new provision prejudiced defendant’s right to fair trial under art 6
- HoL held s41 of YJCE Act incompatible with right to fair trial, went to consider their obligations under s3 HRA 1998
- said s3 places duty on court to find possible interpretation compatible with Convention rights
- sometimes be necessary to adopt interpretation may appear linguistically strained
- Lord Hope believed went too far, recognised unlike no previous rule of statutory interpretation and could be applied even if no ambiguity but found difficult to accept permissible to read in implied provision Steyn advocating
- believed entire s41 contradicted such implied provision
- he was more sympathetic to idea could be read down to render compatible
12
Q
Re S (Children) and Re W (Care Orders) CoA relied on Steyn’s approach in R v A
A
- to undertake radical reinterpretation of provisions of Children Act concerning care plans for children
- read into act new procedure for star milestone system
- found star system contrary to cardinal principle of Children Act, no provision in Act which seemed interpretable, far-reaching ramifications
- seemed where use of interpretative power in s3 would bring major change in law with far-reaching consequences, court less willing to use it
13
Q
Bellinger v Bellinger link to interpretive power of s3
A
- transsexual person who had been born man, undergone gender reassignment to become woman, married man
- problem was section of Matrimonial Causes Act had been interpreted by courts on basis of biological sex of person fixed at birth, made her man in eyes of law and marriage void
- ECtHR already established in Goodwin v UK that failure of UK to recognise new transsexual gender for purpose of marriage violated art 8 and 12 ECHR
- issue for HoL was to decide whether possible under s3 HRA to interpret ‘male and female’ as extending to transsexuals
- HoL held not possible, Nicholls gave three reasons:
1. far from self-evident what criteria and procedures should be satisfied before transsexual person legally recognised as having acquired new gender
2. recognition of gender reassignment for purposes of marriage cannot be made in isolation
3. marriage institution deeply embedded in UK culture as being two persons of opposite sex - would fundamentally change traditional concept of marriage
However… Ghaidan v GM
- HoL used s3 HRA to read in additional words as ‘husband and wife’ into Rent Act to make it compatible with ECHR
- held should take broad approach to interpretation of s3
14
Q
More on interpretive power
A
- what ultimately matters for courts is substance of provision rather than phraseology i.e. Ghaidan v GM and Bellinger
law lords indicated use of interpretive power will go too far if…
- changes substance of provision completely
- runs counter to fundamental feature of legislation or to underlying thrust of it
- contradicts provisions in legislation
- repeals or deletes language used in legislation
- involves policy decisions beyond court
15
Q
Post Ghaidan Lord Hoffman made comments on scope of s3 HRA and interpretive obligation, in the case of R (Wilkinson) v IRC
A
- “important change in process of interpretation which was made by s3 was to deem Convention to form significant part of background against which all statutes, whether passed before or after 1998 came into force, had to be interpreted.”
16
Q
Pinnock v Manchester City Council - recent example of courts applying s3 power
A
- local housing authority seeking possession for county court under Housing Act on grounds of anti-social behaviour on part of ‘demoted’ tenant
- SC held required by art 8 ECHR to consider proportionality of evicting a person from home when granting this type of order
- SC read word ‘lawful’ into section of act, enabling county court judges to review the proportionality of the possession order
17
Q
Declarations of incompatibility
A
- courts have no power to strike down primary legislation that is incompatible with ECHR rights because of principle of parliamentary sovereignty
- however, in situations where court does not consider it appropriate to adopt section 3 interpretation of relevant law, may make declaration that particular provision is incompatible with ECHR rihgt
- HRA: only High Court and appellate courts have power
- when raised, HRA s5.1 confers right on relevant minister to be joined as party, for court to hear submissions on relevant matter
- courts made several declarations of incompatibility
- declaration of incompatibility triggers political resolution of problem
- constitutional convention arisen requiring relevant minister and Parliament to take steps to remove incompatibility
- public authority may appeal against declaration under s4 HRA i.e. R(H) v SoS for Health where CoA declaration overturned by HoL
18
Q
example of declarations of incompatibility
A
Bellinger v Bellinger
- in respect of Matrimonial Causes Act because no provision for recognition of gender
A & Others v SoS for Home Dep
- HoL made declaration under s4 HRA and ATCS Act was incompatible with articles 5 and 14 ECHR: disproportionate, permitted detention of suspected terrorists without charge or trial
R (Anderson) v SoS Home Dep
- HoL found CSA to be incompatible with 6.1, left decision on tariffs for life in hands of Home Sec solely
19
Q
Remedial action
A
- s10(2) HRA - in response to declaration of incompatibility under s4 HRA 1998 relevant ministers may take expedited ‘remedial action’ to amend relevant legislation to remove incompatibility
- either through standard procedure or if urgent, may be laid before Parliament for approval after made HRA 1998 Sch2 para 4
- absence of remedial legislation may allow individual effective remedy in ECtHR, since all domestic remedies exhausted
20
Q
Conduct of public authorities and ECHR rights
A
- s6(1) HRA - ‘unlawful for public authority to act in way incompatible with ECHR rights’
not breach if
- s6(2)(a) required by primary legislation to act
- s6(2)(b) acting to give effect to or enforce incompatible primary or subordinate legislation
21
Q
R v Secretary of State for Work and Pensions, ex parte Hooper - some guidance for what represents statutory defence under s6(2)
A
A - is when effect of primary legislation is that authority has no alternative to do what legislation tells it to, has no discretion
B - where authority has discretion to give effect to provisions made under primary legislation
22
Q
Different types of public authorities
A
- s6(1) imposes legal duties on public authroity but does not define it
three types:
- core public authorities
- functional/hybrid p.as.
- private bodies
- express exclusion is HoP to protect parliamentary privilege and sovereignty. This is interesting as ECHR limits the legislative competence of Scottish Parliament, unsuccessful challenge in AXA General Insurance.
23
Q
Core public authorities
A
- clearly and inherently public bodies
- include i.e. central gov deps, local authorities, police, IRC/HMRC
- no test
- Aston Cantlow v Wallbank - HoL gave some guidance on what constituted scope of core public authority
- Nicholls suggested p.a. = “body whose nature is governmental in a broad sense”, said should consider following factors:
a. possession special powers
b. democratic accountability
c. public funding
d. obligation to act only in public interest
e. statutory constitution - body itself cannot enjoy Convention rights
- Nicholls also explains body itself cannot enjoy Convention rights because does not satisfy Convention description of victim, which includes non-governmental organisations
s6(3)(a) includes courts and tribunals
24
Q
Functional or hybrid public authorities
A
- whereas core public authorities potentially bound by ECHR in respect of all actions, ‘hybrid’ public authorities only bound by ECHR in actions they carry out in public nature
- first case to deal with this = Poplar Housing v Donoghue over whether housing association which took over local housing authority’s housing stock and was providing rental accomodation on behalf of local authority (core pa) was peforming public function
- in above case CoA identified certain factors for whether body peforming public function
a. body is a charity or not motivated by profit does not necessarily mean peforms function
b. statuory authority can help establish act as public
c. extent of control over function exercised by core public body
d. proximity of relationship between private body and delegating authority
25
Also on public authorities = R (Heather) v Leonard Cheshire Foundation
- provided accomodation in care home for residents with disabilities whose places being funded by local authority under National Assistance Act
- charity decided to re-develop home, residents sought JR of decision arguing it violated art 8
- court adopted Poplar Housing criteria and found 6.3.b. did not apply to managers of care home
- no material distinction between services they provided for residents funded by local authority and those provided to privately funded residents
- foundation itself not exercising statutory powers
- foundation held not to be 'enmeshed in activities of local authority in same way as Poplar Housing
26
'Public authority' concept both core and functional
- stressed nature of function being peformed to determine whether functional public authority, factors may be relevant...
a. extent to which body carrying out function is publicly funded
b. exercising statutory power
c. taking place of central government or local authorities
d. providing public service
27
Aston Cantlow - narrowed scope of those falling in core authorities but left hybrid category broader
- less restrictive than reasoning in Poplar and Leonard
- YL v Birmingham City Council - dealt with what is public function
- R (Weaver) v London and Quadrant Housing Trust - court determined defendant housing association registered social landlord = liable under HRA
... courts should ask whether specific action is private in nature, if action is public in nature body will potentially be liable
- more liberal line further reflected in statutory provision designed to remedy difficulties in YL... s145: care home provider is to be taken to be exercising function of public nature in nursing and personal care
28
Private bodies
- final category HRA 1998: private bodies with no public functions at all
29
s7(1)
- rights to bring legal proceedings against authority, right to rely on ECHR rights in legal proceedings against them
30
Remedies for unlawful acts by public authorities
- S8 HRA; just and appropriate
| - vary case to case
31
HRA s12
- drafted to ensure legitimate activities of media not frustrated by development of new privacy rights
32
HRA s14-17
- HRA recognises importance of UK's derogations and reservations from ECHR
33
HRA s19
Provides that prior to second reading of bill in Parliament, minister responsible for bill must make written statement on proposed new legislation and compatibility with Convention rights.
34
Judicial deference
- doctrine of margin of appreciation used by Strasbourg to interpret ECHR rights not strictly applicable in domestic context
R v Director of Public Prosecutions, ex parte Kebline: HoL on margin of appreciation said 'By conceding a margin of appreciation to each national system, Court has recognised that the Convention as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions'
35
Proportionality UK law
Bank Mellat v HM Treasury
- Reed stated difference between UK and Strasbourg, saying proportionality has been more adopted in UK from common law
- greater degree of deference to courts on cases involving social and economic benefits i.e. welfare
- for instance Humphreys v Revenue & Customs Commissioners
