LAW139 Public Law: Human Rights and

Public Law

Dr Joe Atkinson
March 2021
Week 7: Operation of the HRA 1998
 The HRA: quick recap
The HRA incorporates the ECHR (ss.1-2) and
introduces domestic protections for Convention
rights.
Human rights are not just about the courts.
Parliament has a significant role in securing human
rights, and the HRA attempts to maintain
Sovereignty.
Different legal mechanisms used by the HRA to
protect rights: review of administrative action and
review of legislation.
 Operation of the HRA: Overview
1.

1. Human rights review of public authorities

2. Human rights review of legislation
3. Current issues in UK human rights law.
Administrative review under the
Human Rights Act 1998
Human Rights Review of Public
Authorities
 Review of Public Authorities under s.6
Key issues:
1.

1. Who counts as a public authority, and what actions

can be challenged on human rights grounds?
2. Who can bring claims against public authorities?
3. What remedies are available for breaches of human
rights by public authorities?
4. How do courts apply the HRA to review
administrative acts of public authorities?
 Who is a Public Authority?
HRA s.6:
.

- Exclusion of Parliament under s.6(3).

- Inclusion of Courts as public authority under s.6(3)
(a).
- ‘Core’ public authorities, and ‘hybrid’ public
authorities under s.6(3)(b).
 Who is a Public Authority?
Core public authorities are organisations where:
“nature is governmental in a broad sense of that expression
… such as the possession of special powers, democratic
accountability, public funding in whole or in part, an
obligation to act only in the public interest, and a statutory
constitution.”
~ Lord Nicholls, Aston Cantlow PCC v Wallbank [2003] UKHL 37
 Who is a Public Authority?
HRA definition of public authority includes ‘any person
certain of whose functions are functions of a public nature’
[s.6(3)(b).
Difficult question of which organisations count as hybrid
public authorities; includes some private companies carrying
out public functions.
But s.6 does NOT apply to acts of these organisations which
are purely private in nature.
 Bringing proceedings against PAs
Who can claim?

…
 Bringing proceedings against PAs
Time limits:
- s.7(5)(a): any proceedings brought against a public
authority under the HRA must be commenced before the
end of “the period of one year beginning with the date on
which the act complained of took place”.
-

- s.7(5)(b): time limit may be extended to “such longer

period as the court or tribunal considers equitable having
regard to all the circumstances”.
Remedies for violations of human rights
 Remedies under the HRA
“finding rights violation will] itself be an important
part of his remedy and an important vindication of
the right he has asserted”
~ Lord Bingham,
R (Greenfield) v SoS for Home Department, [2005] UKHL 14

“where the breach of a Convention right has clearly

caused significant pecuniary loss, this will usually
be assessed and awarded.”
~ Lord Woolf,
Anufrijeva v Southwark LBC [2005] HLR 22
Human rights review of public authorities
AM (Zimbabwe) v SSHD [2020] UKSC.
.

Was immigration Tribunal decision permitting deportation unlawful

because deporting would lead to violation of Article 3?
Found that must consider whether deportation would reduce life
expectancy or lead to intense suffering. If so, it would be unlawful.

R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55

.

Police decision to prevent people attending anti-war protest.

Interfered with Articles 10 and 11.
Was this proscribed by law and necessary in democratic society
(i.e. proportionate) for a legitimate aim? No, on both counts.
Review of legislation under the
Human Rights Act 1998
 Human Rights Review of Legislation
HRA does not empower courts to strike down primary
legislation.
But it does allow them to consider the compatibility of
statutes with human rights.
Sections 3 and 4 aim to maintain Parliamentary Sovereignty
at the same time as providing judicial protection for human
rights.
 Legislation and Human Rights Review
Sections 3 and 4 aim to maintain Parliamentary Sovereignty
at the same time as providing judicial protection for human
rights:
.

Section 3: obligation for domestic courts to interpret

legislation consistently with human rights wherever
possible.
Section 4: where human rights consistent
interpretation is not possible domestic courts can
issue declarations of incompatibility.
Section 3: Interpretation of Legislation
 Applying s.3 and s.4
1. Is legislation compatible with Convention rights
under normal principles of interpretation?
i.e. does normal interpretation violate rights, taking
account of ECtHR position under s.2?
2.

3. If incompatible, is it possible to interpret statute in

line with Convention rights under s.3?
4.

5. If not ‘possible’ then can make declaration under

s.4.
 Interpreting Legislation under s.3

“Section 3 … is also apt to require a court to read in words which change the
meaning of the enacted legislation, so as to make it Convention-compliant. In other
words, the intention of Parliament when enacting section 3 was that, to an extent
bounded only by what is ‘possible’, a court can modify the meaning, and hence the
effect, of primary and secondary legislation.
~ Lord Nicholls in Ghaidan, [2004] 2 AC 557, [32].
 Interpreting Legislation under s.3

Parliament, however, cannot have intended that in the discharge of this extended
interpretative function the courts should adopt a meaning inconsistent with a
fundamental feature of the legislation. That would be to cross the constitutional
boundary section 3 seeks to demarcate and preserve … Nor can Parliament have
intended that section 3 should require courts to make decisions for which they are
not equipped. There may be several ways of making a provision Convention-
compliant, and the choice may involve issues calling for legislative intervention.”
~ Lord Nicholls in Ghaidan, [2004] 2 AC 557, [33].
 Interpreting Legislation under s.3
Examples of strength of rights protection under s.3:
- R v A (No.2) [2001] UKHL 25
-

- R (Hammond) v Home Secretary [2005] UKHL 69

-

- Principle Reporter v K [2010] UKSC 56

Section 4: Declarations
Section 4: Declarations
 Declarations under s.4
Examples of s.4 declarations:
- Anderson v SoS Home Department [2003] 1 AC 837
-

- Re S (Minors) [2002] 2 AC 291

 Declarations under s.4
Since the HRA came into force on 2 October 2000 until the end of July 2020, 43
declarations of incompatibility have been made. Of these:

9 have been overturned on appeal (and there is no scope for further appeal)
5 related to provisions that had already been amended by primary legislation at the
time of the declaration
8 have been addressed by Remedial Order
15 have been addressed by primary or secondary legislation (other than by Remedial
Order):
1 has been addressed by various measures:
1 has been overturned on appeal but there is scope for further appeal:
2 the Government has proposed to address by Remedial Order:
2 are under consideration:

Source: Report to the Joint Committee on Human Rights on the Government’s response to Human
Rights judgments 2019-20 (December 2020) CP 347.
Current Issues in UK Human Rights Law
 Current Issues in UK Human Rights Law
1.

1. Assessing the HRA

2. The future of human rights in the UK
3. Human rights and ‘dialogue’
 Assessing constitutional review in the
HRA
How accurate is the characterisation of the HRA as only
providing ‘weak’ human rights review of statutes?
.

Operation of section 3 does not look weak in

practice.
Too simplistic to equate strike down power and
strong protection of human rights.
 Assessing constitutional review in the
HRA
Is the HRA compatible with constitutional principles of
Parliamentary sovereignty, the SoP and RoL?
.

Legislature has the final word… BUT courts depart

from Parliament’s clear wording/intent.
Do courts overstep their institutional competence?
Does fact Parliament passed HRA make a difference?
Courts enforcing abstract rights could could
undermine the RoL, but so might lack of protection for
rights.
 Reform of the Human Rights Act?
Some criticisms made of the HRA:
.

- Some think it undermines Sovereignty. Others think

it is not strong enough protection of rights.
-

- Use of s.3 amounts to judicial legislation.

-

- Courts follow ECtHR too closely.

-

- The HRA has failed to create a human rights culture.

 Reform of the Human Rights Act?
There has long been calls for a ‘British Bill of Rights’ or
reform of the HRA:
.

- Commission on a Bill of Rights

- Conservative party proposals from 2010-2019
- Current ‘Independent Human Rights Act Review’
 Reform of the Human Rights Act?
"After Brexit we also need to look at the broader aspects of our constitution: the
relationship between the Government, Parliament and the courts; the functioning
of the Royal Prerogative; the role of the House of Lords; and access to justice
for ordinary people. The ability of our security services to defend us against
terrorism and organised crime is critical. We will update the Human Rights Act
and administrative law to ensure that there is a proper balance between the rights
of individuals, our vital national security and effective government. We will ensure
that judicial review is available to protect the rights of the individuals against an
overbearing state, while ensuring that it is not abused to conduct politics by
another means or to create needless delays.”
~ Conservative Party Manifesto, (2019) p.48
 Reform of the Human Rights Act?
The ‘Independent Human Rights Act Review’ (2020):

1.

1. The relationship between domestic courts and the

European Court of Human Rights (ECtHR)
2.

3. The impact of the HRA on the relationship between

the judiciary, the executive and the legislature
 Reform of the Human Rights Act?
Seems like BBoR has been dropped, in favour of HRA
reform.
Unclear what reforms this will involve:
.

- New/different rights?
- New/weaker mechanisms for protection?
- Status of existing human rights decisions?
 Reform of the Human Rights Act?
Underlying the debate are fundamental questions about the
proper role and function of the courts.
Should courts have responsibility for securing/protecting
human rights?
Should courts have power to strike down executive acts and
secondary legislation?
 Common Law Fundamental Rights
“the common law principle of open justice remains in vigour, even when
Convention rights are also applicable. In another recent decision, R
(Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, this
court referred at para 61 to the importance of the continuing development
of the common law in areas falling within the scope of the Convention
guarantees, and cited as an illustration the case of R (Guardian News
and Media Ltd) v City of Westminster Magistrates’ Court (Article 19
Intervening) [2012] EWCA Civ 420; [2013] QB 618, where an issue
falling within the ambit of article 10 was decided by applying the
common law principle of open justice.”
~ Lord Reed, A v BBC [2014] UKSC 25
 Human Rights Dialogue
To what extend does/should the HRA create a ‘dialogue’
about human rights:

1.

1. Between the ECtHR and domestic courts?

2.

3. Between domestic courts and Parliament?