Public - The Human Rights Act

‘negative’ civil liberties - Wheeler v Leicester City Council [1985] AC 1054

• Based not upon any express provision

• Those kinds of freedoms that you have that do not require interception from the state

• The liberties that you have not because a state mentions them but because a statute doesn’t prohibit you from acting in any way

• Free to do what you want AS LONG AS law doesn't prohibit you from doing it

Principle of legality - Regina v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115

• If the Parliament ever tries to take away human rights, it will come at a great cot

• Whether a fundamental right is to be taken away, Parliament will have to use explicit words to do so.

• Parliamentary Sovereignty means Parliament can legislate contrary to human rights but at a political cost

• Fundamental rights cannot be overridden by general or ambiguous words

The European Convention on Human Rights:

• Drafted post-World War II to guarantee human rights of the people from the (46) countries belonging to the Council of Europe; entered into force Sept 1953

• Individuals as well as states can initiate legal cases against states on grounds of HR violations

• ECHR has 46 judges, one from each signatory although the judges make decisions independent of their country's position

Types of rights: Absolute rights

• cannot justifiably be violated by a state e.g. Article 3

• is the conduct of the State prohibited under ECHR?

Types of rights: limited rights

• can be restricted under certain explicitly provided for circumstances e.g. Article 2

• 2 stage test:

  • Is the conduct of the state prohibited under the terms of the protected right?

  • Does the conduct fall within the terms of one of the stated exceptions to the right?

Types of rights: qualified rights

• can be interfered with by the state so long as fair balance is maintained between individual and societal interests e.g. Article 9 and 10

• 3 stage test:

  • Is the conduct of the state prohibited under the terms of the protected right?

  • Does the conduct fall within the terms of one of the categories of permissible restrictions upon the right?

  • Is the conduct proportionate to the aims being pursued?

Structure and framework of HRA:

Section 1: defined and specifies the incorporated Convention Rights

Section 2: imposes duty to take into account Convention Rights

Section 3: imposes an interpretive obligation

Section 4, 5, 19, 10: provides for a declaration of incompatibility and situations arising thereof

Section 6: key enforcement provision that specifies 'victim' and 'public authority' requirement

Phases in examining HR infringements:

• What right (if any) was infringed? Is this right protected by the HRA?

• What is the conflicting right/public interest? Is this right/interest protected by the HRA?

• Whether a fair balance has been achieved?

• What remedies are available for such an infringement?

Section 1 HRA

Section 1: The convention rights

(1) In this Act 'the convention rights' means the rights and fundamental freedoms set out in-

1. Articles 2 to 12 and 14 of the convention

2. Articles 1 to 3 of the First Protocol, and

3. Article 1 of the thirteenth protocol

As read with Articles 16 to 18 of the convention.

(2) Those Articlesz are to have effect for the purposes of this Act swubject to any designated derogation or reservation (as to which see sections 14 and 15)

(3) The Articles are set out in Schedule 1

Section 21 HRA - convention

(1) In this Act—

“the Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom;

Duty to 'take into account' Convention case law:

•  Section 2(1) imposes a duty on courts and tribunals to ‘take into account’ the case law of the ECtHR

•  HRA did not establish free-standing rights, gives domestic effect to ECHR rights and freedom

• Makes it a duty on the domestic courts and tribunals to take into account the case law of the European Courts of Human Rights.

Mirror principle:

"The duty of the courts is to keep pace with the Strasbourg jurisprudence as it evolved over time; no more, but certainly no less" - Lord Bingham

Duty of domestic courts is to keep pace with the ECPHR. UK judges shouldn't do more or less than what the Strasbourg judges are doing. Mirror Strasbourg law into UK law.

"Of course, we should usually follow a clear and constant line of decisions by the European Court… But we are not actually bound to do so." - Lord Pinnock

Lord Neuburger:

Impractical to bind ourselves to the Strasbourg jurisprudence. Point of instituting section 2.1 is to create dialogue between both courts. UK courts can respond instead of simply just mirroring.

Depart from the mirror principle

• State has to balance individual rights and societal interests e.g. freedom of speech and expression and public safety

• Identify the convention right is being broken

• Go through section 1 of ECHR and look for a competing societal interest as it is a qualified right to look at if there is social conflict.

• Just because a potential Human Rights violation has been identified doesn't mean that there is a full breach. Nature of qualified rights is so that the courts need to figure out the scope and what it includes. Identify the bigger picture link between the words and how you believe them to be defined.

UK court protection

floor of minimum protection but no ceiling of rights protection (bare minimum)

Ghaidan v Godin-Mendoza [2004] UKHL 30

• Happened before the Civil Partnership Act 2004 and Marriage Act 2013

• Same-sex relationship, one passes away and has a statutory tenancy.

• According to the Rent Act 1977, surviving partners may have access to the statutory tenancy if they resided as the husband or wife of the deceased.

• Individual rights (Article 14 read with Article 8) VS societal interests (protection of traditional family)

court decision in Ghaidan

1. The capacity to bear or beget children is not a prerequisite for valid marriage in English law.

2. The presence of children may be relevant in determining if a relationship is marriage-like but if the couple are raising children together, it is unlikely to matter whether or not they are biological offsprings of the parties

3. Protection under the Rent Act for the surviving partner's home is not specifically for the couple's children

relevant statute to Ghaidan v Godin-Mendoza

Paragraph 2(1) of Sch. 1 to the Act granted a right of succession to the 'surviving spouse' of a tenant. Under these circumstances, the market value of the house doesn't impact rent (significant benefits). The meaning of 'surviving spouse' was extended in 1988 to include 'a person who was living with the original tenant as his or her wife or husband'. This phrase is under contention due to different interpretations.

Relevant common law: Fitzpatrick v Sterling Housing Association Ltd [2001]

• Court had decided that Schedule 1, para 2(2) of the Rent Act 1977 did not include persons in a same-sex relationships.

• Not the Human Rights Act 1998 has come into force so the old interpretation can no longer withstand the Human Rights Act (specifically sections 20 and 21). Convention rights prevent discrimination based upon sexual orientation.

Bank Mellat v HM’s Treasury (No 2) [2013] UKSC 39 - proportionalioty criteria

1. Whether it's objective is sufficiently important to justify the limitation of a fundamental right

2. Whether it is rationally connected to the objective

3. Whether a less intrusive measure could have been used

4. 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

These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.

Stages in examining HR violations

• Identify the right/interest at stake

• Identify the conflicting right/interest and check if it constitutes a legitimate aim

• Bank Mellat 4 stage proportionality

Application: Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27

Relevant statutory background:

Sections 58 and 59, Offences Against the Person Act 1861 (UK Parliament)

Section 25(1), Criminal justice Act (NI) 1945 (NI legislature)

Proportionality test whether the NI law banning abortion is legitimate aim and whether it is rational or intrusive and whether there is fair balance between the woman wanting the abortion and societal interest.

Identify the rights/interests at stake:

• Article 3; Prohibition of Torture

• Article 8; Right to Respect for Private and Family Life

• Society's interest in protecting the life, health and welfare of pregnant women

Identify the conflicting right/interest:

• Article 8 (2); society's moral interest in protecting the life, health and welfare of the unborn child

Application of 4 questions

1. Whether the objective is sufficiently important to justify the limitation of a fundamental right?

In terms of Article 8(2), the potentially relevant interests are the protection of health or morals and if a foetus is treated as or equated with an 'other'

2. Whether it is rationally connected to the objective?

Doesn't prevent abortions but makes pregnant women experience stress and away from their environment in order to get an abortion in another country like England - potentially a sign of disproportion. In terms of foetus' may survive, a blanket ban on abortions doesn't seem rationally connected especially if the mother is in good health

 3. Whether a less intrusive measure could have been used?

Can it be argued that letting the mother carry to term is the less intrusive measure for the foetus. Comparing what the legislative aim is and what options are available and how intrusive they are.

 4. Whether a fair balance was maintained between individual and societal interest?

Is there a fair balance between the rights of the mother and the societal interests of the community? All of the stress does not have a fair balance between the mothers rights and societal interest

Remedies under HRA:

Section 3: duty to reinterpret legislation to exclude meanings which would undermine the incorporated ECHR rights

Section 4: power to formally notify the Parliament of any primary legislation which cannot be reconciled with ECHR rights by process of reinterpretation

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

• Whatever interpretation and effect the courts are giving to the offending provision, will not affect the validity of the provision

• The meaning imported by application of S3 must be compatible with the underlying thrust of the legislation being construed.

Section 4: Declaration of incompatibility

(1)Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(3)Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4)If the court is satisfied—

(a)that the provision is incompatible with a Convention right, and

(b)that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility.

(6)A declaration under this section (“a declaration of incompatibility”)—

(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b)is not binding on the parties to the proceedings in which it is made.

R (on the application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38

• C suffered paralysing stroke and says right to life = right to die

• Section 2 of Suicide Act 1961 makes it criminal for 3rd parties to assist in suicide

• Asks them to look into whether assisted dying is compatible with section 8 right to life and to find remedies or issue a declaration of incompatibility via section 4

• Court doesn’t issue it as Section 3 powers aren’t enough to reinterpret the Suicide Act in order to make assisted dying legal.

3 different viewpoints on section 3 & 4

• Lord Neuberger: Section 4 should be used in extreme cases and judges should look at what Parliament is doing

• Lady Hale: not about politics but about a dialogue between two institutions

• Section 3 and 4 are complimentary and a better way of looking at it is to see how they function alongside each other

How do we restrict the scope of the offending words and make it convention compliant?

• Restricting/ enlarging the scope of a statute e.g. 'shall' to mean 'may'.

• Add a qualifier, proof can mean a lot of things - could instead say 'reasonable proof'

• Read in new meanings that weren't obvious via the meaning of the statute