Human Rights Act 1998

What does the HRA do

Incorporates the rights set out in the ECHR into domestic law

Gives further affect to the rights & freedoms guaranteed under the convention

Protection of rights

What is stated in s2

Rights under the convention are directly enforceable in UK courts without need to apply to the ECtHR in Strasbourg

What is stated in s3

Judges must read & give affect to primary & secondary legislation in a way which is compatible with the convention rights so far as its possible to do so

What is stated in s2(1)

Judges must take into account decisions of the ECtHR but are not bound by them

What is s4

Declaration of incompatibility

If an act of parliament breaches convention rights the higher courts can declare legislation to be incompatible

What is stated in s3(2) in relation to declarations of incompatibility

Don’t affect the validity of parliament it remains up to them whether or not they decide to amend the law

- maintains parliamentary sovereignty

The courts have no power to overrule or refuse to apply an act of parliament if it is incompatible

Case example for s4

A & Others v Home Secretary

HOL decided that the detention without trial of foreign nationals (under the Anti-Terrorism, Crime & Security Act 2001) was incompatible with A14 - discriminates on the grounds of nationality or immigration status

Applicants remained in detention under s3(2)

What is stated in s10

If a minister thinks there are strong reasons to do so they can make an order to amend legislation in order to remove an incompatibility using a Remedial order

Case example for s10

R (H) v Mental Health Review Tribunal

Gov passed the Mental Health Act (remedial order) 2001 after the court found the original act to be incompatible

Enforcing rights

What is stated in s6

It is unlawful for public bodies to act in a way which is incompatible with convention rights

(Unless under a statutory duty to do so)

Anyone’s whose rights have been violated can bring court proceedings against a public authority

Who is a public authority under s6(3)

Any person who’s functions are of a public nature

Two categories:

. Core - always exercise functions of a public nature (police)

. Functional - private bodies which are at the relevant time exercising functions of a public nature (any private company)

Case example for core authorities

Rabone & Another v Pennine Care NHS Trust

The decision to allow a suicidal woman home leave against her parents wishes breached her A2 right to life

Failed to take steps to protect her from the risk

What is meant by horizontal affect

Courts & tribunals hearing cases involving human rights issues are a core public authority

Limiting convention rights

What is taken into account when limiting individuals from enforcing convention rights

Was it in accordance with the law

In pursuit of a legitimate aim

Necessary in a democratic society

What is meant by in accordance with the law

Any interference with a right must be based on a law that is clear & predictable that the claimant can access, and in respect of which the decision maker is subject to control

Case example for not in accordance with law

Editorial Board of PD & S v Ukraine

Ukrainian court ordered a newspaper to apologise for allegedly defamatory comments about a person - not made in accordance with the law (breached A10)

What is a legitimate aim (Example)

Depends on the contents of the relevant article

E.g. A8 the legitimate aim is national security

When is taken into account following Handyside v Uk when deciding if a limitation is necessary in a democratic society

Is it proportional?:

. Is there a pressing social need

. Does the restriction correspond to this need

. Is it a proportionate respond to this need

. Are the reasons presented by the authorities relevant & sufficient

What is the margin of appreciation

There are areas in which national authorities are better placed than courts to decide what is best for those in their jurisdiction, better for them to apply the convention rights in their own way

Can be wide or narrow

What is stated in s8

If the court finds that a persons convention rights have been infringed they can award damages or an injunction

Case example for s8

OOO (&others) v Commissioner of Police

Four young Nigerian women were brought to England illegally and made to work where they were subjected to physical & emotional abuse

Court found the police failed to take operational measures to protect he victims of human trafficking & failed in their investigative duty under A3 after they received credible complaints of the abuse

Rewarded 5000 each