Public law 1 - Protecting human rights

What 2 features of protection does international law provide which is lacking in domestic law?

1) international law imposes obligations on the states to protect the rights of people in their jurisdictions. the fact that law imposes obligations on states to protect human rights means that states cannot claim that the way they treat the people under their control is no one elses business

2) it gives the victims of violations penetrated by the state methods of bringing their situation to the notice of international boadies and the international community.

Why was the government concerned about allowing individuals to take cases to an independent international court? - A. Moravcsik, ‘The origins of human rights regimes: Democratic delegation in postwar Europe’ (2000) 54 International Organization 217, 238

• a common complaint was that judicial review would undermine parliamentary sovereignty

• there was also concerns over the fear of resurgent totalitarianism (dictatorship) abroad which may pose a military threat

How are matters taken to the ECtHR?

1) states bring cases against each other claiming that they have failed to comply with the ECHR ie Greece against the UK concerning Cyprus

2) individual petition procedure which enables groups, individuals etc to claim that they are victims to violations by state and to bring their claims before the court

Why did people want to incorporate the convention rights into the UK?

• most advocates of a UK bill of rights had come round to the view that the best way of achieving their objectives would be to find a means of incorporating the terms of the ECtHR into the the UK’s domestic law

• People also found it absurd that they would have to go to the Strasbourg court which was miles away to obtain rights under the European convention that should have been theres already ie it was expensive going all the way there and time consuming

A. King, The British Constitution (2007, Oxford: OUP), pp. 129–30

• enabling UK courts to rule on the application of the convention will help to influence the development of case law

• the UKs courts decisions would provide the ECtHR with a source of information and reasoning for its own decisions

• enabling convention rights to be judges by UK judges would also lead to a closer scrutiny of human rights implication of new legislation and policies

Secretary of State for the Home Department, Rights Brought Home: The Human Rights Bill, Cm 3782 (October 1997)

Why were people against the idea of incorporating convention rights into the UK? - A. King, The British Constitution (2007, Oxford: OUP), pp. 129–30

• they would be against giving judges more power

• they were against imposing limitations on the executive

• political constitutionalists argued that more law was not the answer and that controversial issues should be determined by political processes than in courts

• some believed that the common law was satisfactory and that it provided a better approach than the vague provisions of the ECtHR

What is the purpose of the human rights act?

It aimed to give effect to the rights and freedoms guaranteed under the ECHR. The act adds to the rights protection that is provided by the common law etc by also enabling claimants to rely on most of the rights/ freedoms contained in the ECHR in domestic legal proceedings.

What are the key elements of the human rights act 1998?

• all legislation (primary/ secondary) must be read and given effect in a way which is compatible with convention rights, as far as possible to do so (s.3)

• if legislation can’t be made compatible then the courts may issue a declaration of incompatibility (s.4)

• if legislation has been declared to be incompatible with convention rights, ministers may make delegated legislation to amend it or an act of parliament can remove the incompatibility (s.10(2) and (3)

What is the duty to take into account convention case law?

Section 2(1) of the HRA imposes a duty on courts and tribunals to take into account the case law of the ECtHR. This recognises that the HRA did not establish new free-standing rights, but instead gives domestic effect to the rights and freedoms that are established by the ECHR and which have been interpreted by the ECtHR.

Theres controversy over what is meant by take into account ie Lord Hoffmann said that domestic courts are bound to follow the ECtHR - but this is seen as an extreme view

Lord Neuberger in Pinnock v Manchester City Council [2010] UKSC 45 said that the courts are not bound to follow every decision of the European court but we should follow a clear and constant line of decisions by the European court

What is the mirror principles?

This principle was developed by Lord Bingham in R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26 where he stated that domestic courts should do no more than accurately reflect the decisions of the ECtHR. But this idea has been opposed by others who believe that the wording of the HRA suggests that it provides a floor of rights protection, but not a ceiling on the ability of the courts to interpret rights dynamically.

Ie Lord Mance in Commissioner of Police of the Metropolis (Liberty and others intervening) v DSD and another [2018] UKSC 11 said that “there are however cases where the English courts can and should, as a matter of domestic law, go with confidence against Strasbourg authority ie Rabone v Pennine Care NHS Foundation Trust

Parliament can of course extend rights beyond those set out in ECHR

What is the current position in relation to UK courts on section 2 of the HRA? - Independent Human Rights Act Review 2021 Cp 586, p. 64

• there is an order of priority in assessing rights protection: domestic statute, the common law then convention rights

• Free standing convention rights can’t be established by UK courts but they may go beyond the ECtHR if it is a natural development of their case law or if they haven’t specially resolved the issue

• There are specific instances where UK courts have declined to follow the ECtHR where ie the ECtHR case law was criticised when it was introduced or the decision was based on a misunderstanding etc

• common law rights protection can still being developed and can be developed further than provided by the convention

What is the interpretative obligation of the Human Rights Act?

This is under section 3 of the HRA - so far as is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights. This does indicate that legislation will remain valid and enforceable in operation even if a human rights-compatible interpretation is not possible.

If primary legislation dictates that subordinate legislation will be incompatible with convention rights, then the subordinate legislation will continue to operate, but if primary legislation doesn’t do this then it may be rendered invalid

What is the principle of legality?

This was stated by Lord Hoffman in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131. HE said that Parliament was taken to have intended that its legislation would be read to be complaint with human rights unless it had expressly stated otherwise/

What is a declaration of incompatibility?

Section 4 enables the senior or higher courts to make a declaration that legislative provisions are incompatible with convention rights, but this does not affect the validity and continuing operation of the act and it doesn’t make Parliament change the law (ie parliamentary supremacy)

Declarations of incompatibility also are not binding on the parties to the proceedings ie declarations do not provide remedies for the claimants or impose legal obligations upon public authorities

Why are declarations of incompatibility significant? - A. Bradley, ‘The Sovereignty of Parliament: Form or Substance?’ in J. Jowell and D. Oliver (eds) The Changing Constitution, 7th edn (2011, Oxford: OUP), p. 65

He argued that although legislation is not formally invalidated due to a declaration, he said that when legislation is declared incompatible with human rights its fatally wounded and this does effect parliamentary supremacy - so courts use this remedy as a last resort ie they try to stretch legislation as much as they can ie in Ghaidan v Mendoza

Case of R (Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary)[2018] UKSC 32

This concerns declarations of incompatibility. Here the UK supreme court granted a declaration that the civil partnership act 2004 is incompatible with convention rights as it prevents a different sex couple from entering into a civil partnership. This declaration was made despite the government agreeing to an emendment in a private members bill that would if enacted alter the civil partnerships act

How has the HRA made sure to support parliamentary sovereignty? - Independent Human Rights Act Review, December 2021, CP 586, p. 224.

The HRA was “carefully drafted to ensure that parliamentary sovereignty was not weakened. .. Irrespective of the way in which UK courts can interpret legislation consistently with section 3 of the HRA or issue a declaration of incompatibility under section 4, the UK parliament can always over-rule them”

Case of R (on the Application of Nicklinson and Another) V Ministry of Justice [2014] UKSC 38?

The key questions were whether s.2 of the Suicide Act 1961 which makes it a criminal offence to assist someone with suicide is incompatible with convention rights as it infringes on art 8 (respect for private life) rights of and secondly if it does infringe on it then could the court make a declaration and should the court do so? The court agreed that it was incompatible with the ECHR and could not be made compatible through interpretation. But there were difference in what should be done. The majority said that it was within the competence of the court to make a declaration but only 2 judges would do so on the circumstances of the case. The minority believed that it was a matter for parliament and the court could only make a declaration if Parliament chose not the consider the issue at all. Another minority 2 judges said that the matter was for parliament alone

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

Lord Neuberger:

• the secretary of state contents that the determination of the criminal law on a controversial issue such as assisted suicide is one which is much for parliament

• but the mere fact that Parliament has recently enacted or approved a statutory provision does not prevent the courts from holding that it infringes a convention right

• even if it would otherwise be right to do so it would not be appropriate to grant a declaration of incompatibility at this time

lord sumption

• the question on assisted dying would involve unacceptable risks to vulnerable people so this is the kind of issue which should be decided by parliament

• this issue involves a choice between 2 fundamental moral values upon which there is no consensus in society

• Parliament has made the relevant choice ie it passed the suicide act in 1961 and in 2009 amended section 2 without altering this principle

• the parliamentary process is a better way of resolving issues which involve controversial complex questions of fact

lady Hale

• parliament is the preferred forum for the issue to be decided

• but have reached the conclusion that the law is not compatible with our convention rights

• she sees little to be gained from refraining from making a declaration of incompatibility so parliament is then free to cure the incompatibility or to do nothing

What is the section 6 duty under the HRA?

This section says that its unlawful for public authorities to act in a way that’s incompatible with convention rights

Vertical and horizontal effects of the HRA

Traditionally international human rights obligations are imposed on states and its states that are parties to the ECHR. As the purpose of the HRA is to give better effect to rights under the convention, the HRA retains the principle that its the UK as a state that responsible for protecting rights, but in the UK theres no legal concept of a state as such as the act imposes obligations on bodies that can be brought under the umbrella of the state ie public authorities

This means that unless stated, private persons do no have direct obligations under the state, no matter how powerful they are. But they may have obligations imposed on them by the indirect effect of the act

Case of Campbell v MGN Ltd [2004] UKHL 22

This case concerns vertical and horizontal effects of the HRA. In this case, Naomi Campbell went against the Mirror group in respect of articles and photos that where published in the Daily Mirror. She sued in tort claiming a breach in confidentiality.

Lord Nicholls of Birkenhead:

The values embodied in Articles 8 and 10 are as much applicable in disputes between individuals or between an individua and non government body ie a newpaper as they are between individuals and a public authority.

What is a public authority?

Its a phrase which is essentially a reference to a body whose nature is governmental in a board sense of that expression - lord nicholls of birkenhead - Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] UKHL 37

What is a hybrid public authority?

This is in 6(3)(b) of the HRA which includes within the expression public authority persons or bodies that are private, but perform functions of a public nature

What is the issue with the reference of a public body in the HRA?

The problem is that the act does not tell us what constitutes a public nature ie this has different meanings and it has been left to debate. Ie some believe that public functions should be interpreted narrowly so that the reach of the HIRA is limited ie define them as only functions which are exercised by the state and not public bodies.

Whereas some believe that they should be interpreted more broadly so that it extends to beyond situations in which special powers are needed ie providing education would be enough to be seen as a public function

What is meant by the victim requirement?

A claimant under s.6(1) of the HRA must show that he or she is a victim of the unlawful act

What are the remedies under the HRA?

When a court decides that a public authority acts unlawfully under s.6(1) it may grant such relief or remedy to make sure order within its powers as it considers just ie remedies can include paying damages etc