#15506 - Human Rights Act 1998 - GDL Constitutional and Administrative Law

Con & Ad : Human Rights Act 1998, Preliminaries & General

Background & objectives

• HRA 1998: to incorporate provisions of ECHR into domestic law. Ensure that every domestic court & tribunal is obliged to declare the common law, interpret statutes, and review administrative decisions, consistently with Convention rights; and, where appropriate, grant effective remedies where rights have not been respected.

• UK signatory of Convention since 1950, but only gave binding force in domestic legal system with the HRA.

• Previously, individuals had to go to ECtHR to bring an action under the Convention--could be politically embarrassing for the gov, ‘washing the UK’s dirty linen in public’.

• Gov White Paper, Rights Brought Home: The Human Rights Bill (1997)

• Human Rights Act (1998) (HRA) incorporates ECHR into English law.

ECHR jurisprudence – s2 HRA, ‘take into account’

• Ss2(1) HRA:

  • “A [UK] court …determining a question which has arisen in connection with a Convention right must take into account any judgment, decision (etc) of the ECtHR”

• Approach to s2(1), has changed over time: ‘Comity’ approach to ‘dialogue’ approach:

• R (Alconbury Developments) v SoS Environment:

  • Domestic courts should follow any clear and consistent ECHR jurisprudence, unless special circumstances.

• Ex p Ullah, mirror approach, Bingham

  • Mirror principle—level of protection afforded by UK courts no les, but certainly no more than that afforded by ECtHR

• Shift to ‘dialogue’ approach, R v Horncastle

  • Re admissibility of hearsay evidence (no cross-examination), re whether breaches Art 6.

  • UKSC departed from Strasbourg decision—aid there were sufficient safeguards in place.

• Dialogue approach:

  • Animal Defenders v UK: ECHR influenced by UK domestic courts approach.

• Lambeth London BC v Kay

  • UK lower courts must still adhere to rules of precedent: If conflicting decisions, decision of a domestic senior court > ECtHR.

PRELIMINARIES for Human Rights Question

Standing

• S7(1) HRA: ‘victim’.

  • Victim can bring proceeds as sword; or use ECHR rights as shield.

• S7(7): ‘victim’ test under s7(1) is same as Art 34 ECHR.

• Art 34: any person, NGO or group of individuals claiming to be a ‘victim’.

• Klass v Germany: definition of ‘victim’ for Art 34 = person must be ‘directly affected’ by the potential violation.

Public Body

• Defendant in HRA case = a ‘public body’

• S6(1) HRA: lawful for ‘Public authority’ (‘PA’) to act incompatibly.

• S6(3)(a)—includes courts & tribunals.

• [Parliament excluded, s6(3)].

• Hybrid/functional PAs: s6(3)(b): ‘functions of a public nature’.

• S6(5): ‘private acts/bodies’ excluded.

• Core PA always liable; Hybrid/function PA liable when carrying out a public function.

• No precise definition of PA in HRA.

• Rights Brought Home (1997), White Paper for HRA, gave egs of core PAs, para 2.2

  • central gov (including exec agencies);

  • local gov;

  • police;

  • immigration officers;

  • prisons;

  • courts & tribunals;

  • companies responsible for activities previously in public sector (eg privatized utilities).

• Aston Cantlow (Lord Nicholls)

  • Facts: church in parish; steeple needed repair. Is a parochial church council a PA?

  • Lord Nicholls: PA = ‘a body whose nature is governmental in a broad sense’.

  • Core PAs:

    1. Possession of special powers

    2. Democratic accountability

    3. Public funding (in whole or part)

    4. An obligation to act only in the public interest

    5. A statutory constitution

  • A Core PA cannot itself enjoy Convention rights.

  • Hybrid PAs, stressed the nature of the function being performed.

    1. Public funding

    2. Statutory power for exercise of function

    3. ‘Taking place of gov’ or local authorities’

    4. OR providing a public service

  • On facts itself, the Parochial Church Council not a PA: due to nature of the act—trying to enforce an obligation to repair against the lay rectors, not a public function.

• Hybrid/function PA?

  • Yes: Poplar Housing; Weaver

  • No: YL v Birmingham; Leonard Cheshire

• Housing associations:

  • Poplar Housing Association v Donoghue: was a hybrid PA—‘enmeshed’ with activities of local council, ‘assimilated’ with local council, taking place of gov, providing a public service. Key factors: (1) extent of control over the function exercised by a core PA, the local council; (2) proximity of relationship between the private body and the delegating authority.

  • R (Weaver) v London & Quadrant Housing Trust (widened law after YL v Birmingham)

    • Was a hybrid PA, as was housing association cancelling tenancy under statute.

    • Leonard Cheshire, YL and Aston al found no public function, so didn’t consider the act itself.

    • Weaver says:

    • (a) look at functions of the body (s6(3)(b), ask if functional/hybrid PA.

    • (b) If found to be public function, then look at nature of the specific act undertaken (in accordance with s6(5)) if private, not liable, even if public function

• Charity—not liable

  • R (Heather) v Leonard Cheshire Foundation. Foundation was not ‘enmeshed’ with activities of local council, applying Poplar Housing test.

• Care homes

  • YL v Birmingham CC:

  • Local authority contracted out to private care home for elderly.

  • HL, 3/2 majority (Lord Scott): not a hybrid PA, contractual relationship with residents, no statutory powers, profit-making/commercial market.

  • Note vigorous dissent (Bingham/Hale): had statutory underpinning; this was precisely the case which s6(3)(b) was intended to embrace.

  • Hale: the company was performing a public function, statutory arrangements, public expense, in public interest.

  • Hale: the function (looking after vulnerable elderly ppl) = inherently public function, whether or not state paid for it.

  • YL followed by more liberal line in Weaver

  • Now, Health & Social Care Act 2008, s145: care home provider exercising public function for purposes of HRA s6(3)(b) when providing accommodation + nursing or personal care.

• 4-stage approach, from Aston Cantlow, YL and Weaver:

  • (1): is D a court or tribunal? If so, then public authority (s6(3)(a)).

  • (2) Is D a core public authority -- assessed by looking at the nature of the body itself--if yes, then must act compatibly with Convention in all its actions, cannot rely on s6(5).

  • (3): is D a hybrid public authority? Assessed by looking at the functions that the Defendant performs--if any of them are public, then hybrid PA (s6(3)(b)).
    (4): if is a hybrid PA, is the specific act undertaken nevertheless private in nature? If so, D will be able to rely on s6(5) and will not be subject to HRA relation to this action. If the action is public, will be liable.

Time Limit

• S7(5)(a) HRA: 1 year.

• S7(5)(b) HRA: can be extended if equitable.

• [[IF HRA claim brought as part of wider JR application, the stricter JR time limit will apply: Al-Saadoon v SoS Defence]].

Jurisdiction

• Art 1 ECHR.

  • UK has obligation to uphold the Convention rights of everyone with their territory.

  • Eg tourist within UK counts. No requirement of citizenship of the state.

• Outside jurisdiction, occupied countries—> degree of control:

  • Al-Skeini v UK: re Iraqi civilians killed by British armed forces in Basra. Key question is whether sufficient degree of control and authority exercised by British troops in Basra—yes, in this case.

• Rights are applicable to UK armed forces extra-territorially, in areas under UK control

  • Restrictive approach--R (Smith) v SoS Defence, SC: re whether Snatch Land Rovers adequate protection. jurisdiction of ECHR did not extend to protection of Smith’s Art 2 rights; he died as result of conditions in field of operation, outside UK control.

  • CF, current position--Smith, Ellis and Allbutt v MoD, SC 2013: re ‘Snatch Land rover’ claims. Yes, within ECHR jurisdiction death of servicemen in battlefield fall within Art 1 ECHR jurisdiction, regardless of whether operating in areas under control of the contracting state. The equipment supplied to troops is a control issue.

    • Used Al-Skeini Strasbourg ‘control’ test—servicemen relinquish almost total control over their lives to the state.

Sections 3 & 4 HRA

• S3(1): ‘So far as it is possible to do so ... legislation ... must be read and given effect in a way which is compatible with Convention rights’.

• S4: Declaration of Incompatibility (DOI)

• R v A (Complainant’s Sexual History) (No 2) use s3 where possible

  • Re s41 Youth Justice & Criminal Evidence Act 1999, re admissibility of evidence about complainant’s sexual history in rape trial.

  • S41 seemed to say inadmissible.

  • HELD: s41 incompatible with ECHR Art 6 (right to fair trial).

  • S3 interpretation of s41: where the evidence was so relevant as to make the trial unfair without its admission evidence is allowed to be admitted.

  • Lord Steyn: Parl never intended to take away right to fair trial—Act seemed to say ‘never’, but should be interpreted to mean up to trial judge to decide whether evidence is relevant enough.

  • Lord Steyn: ‘strong’ interpretative obligation—applies ‘even if there is no ambiguity’ in the language; sometimes necessary to ‘adopt an interpretation which linguistically may appear strained—reading down express language, and even implication provisions.

  • Declaration of Incompatibility (DOI) under s4 = ‘last resort’-> avoid unless ‘plainly impossible’ to do so.

  • Lord Hope, more restrictive, prefers DOI: though does not formally dissent. S3: is ‘only a rule of interpretation. It does not entitled the judges to act as legislators’.

• S3 not used:

  • Re S, Re W (Care Orders), HL:

  • Re children Act 1989, care orders for children in care.

  • Lord Nicholls:

  • CA was acting at ‘the outer edges of interpretation’—courts must be ‘mindful of this outer limit’-cannot became legislators.

  • A bigger...