Con & Ad - HRA

Question 1

Are domestic courts bound to follow judgments of the ECtHR? (section?)

Answer 1

No, but must take them into account - s 2

Question 2

Which level of court can make a declaration of incompatibility? (section?)

Answer 2

High Court and upwards - s 3

Question 3

What’s set out in:
a) section 2
b) section 3
c) section 4

Answer 3

a) section 2 - domestic courts must take into account decisions of the ECtHR
b) section 3 - legislation must be read and given effect in a way that is compatible with convention rights
c) section 4 - declarations of incompatibility

Question 4

What does section 6 say (public authorities).
Section 7?

Answer 4

s 6 - unlawful for a public authority, including a court, to act in a way that is incompatible with Convention rights
s 7 - someone can bring proceedings against such an authority/ rely on a Convention right, if they are a victim

Question 5

Provided for in s 8 (re. civil claims)?
Frequency?

Answer 5

Court can award damages where a public authority unlawfully infringes a Convention right, if it is necessary to ‘award just satisfaction’ to the injured party.
Will often be no need to do so, because other remedies (e.g. those available in private actions, or for JR) will be adequate.

Question 6

Provided for in s 10? (re. legislation)

Answer 6

Fast-track procedure for changing legislation.
Government can, if there are compelling reasons to do so, make a remedial order changing UK law. Has to be approved by Parliament under the ‘affirmative procedure’.

Question 7

Limits on s 6 (public authorities)

Answer 7

Public authority won’t have acted unlawfully in acting incompatibly with Convention rights if they could not have acted differently because of an Act of Parliament, or if they are giving effect to an Act of Parliament.

Question 8

Relevance of s 6 to judicial review cases?

Answer 8

It effectively adds an additional ground of JR - breaching a Convention right. ‘Public body’ (for the purposes of JR), and ‘public authority’ (for the purposes of a Convention right), are synonymous.

Question 9

What’s the horizontal effect?

Answer 9

Means that Convention rights can affect relations between private citizens/ companies, because the court has a duty to apply the Convention.

Question 10

Standing - provisions in s 7?

Answer 10

A claimant can only bring proceedings for breach of a Convention right if they are a ‘victim’ of the breach. An individual or organisation must be directly and personally affected.

Question 11

Balancing different rights in the Thomson and Venables case?

Answer 11

Article 8 rights didn’t superseded Article 10 rights in that case, but court judged that publication of information about them posed a real and serious risk to their Article 2 and 3 rights. Court granted permanent injunctions.

Question 12

Balancing different rights

Anonymity orders and sections 2/3/8/10?

Answer 12

Anonymity order granted for Ian Huntley’s girlfriend, who was convicted for perverting the course of justice, but not the more serious crime. Held necessary to protect ‘life and limb’ and her psychological health

Question 13

Balancing different rights

Threshold for preventing publication of personal details for the sake of protecting someone found guilty of a criminal offence?

Answer 13

High - must be a high risk of harm to life to engage Article 2 or some exceptional circumstances to engage Article 8 - e.g. very poor mental health of the person concerned. (In Bell, her age at the time of commission of the offence (11) and the time that had passed were also significant)

Question 14

Balancing different rights

Anonymity of judges in the Sara Shariff case?

Answer 14

No - court found to evidence that 2, 3, or 8 were engaged - threats were typical/ generic.
Anonymisation would only be justified if risks were so serious that security measures would be insufficient; only exceptionally grave risks could override the principle of open justice.

Question 15

Approriate test re. Article 8/ Article 10 from the Campbell case?

Answer 15

Did Claimant have a reasonable expectation of respect for her private life in the particular circumstances? If so, Article 8 will be engaged.

Question 16

Approach by Baroness Hale in Campbell (when rights are in conflict)

Answer 16

• Court looks at the comparative importance of the actual rights being claimed in the individual case
• Then looks at the justifications for interference with/ restriction of the rights
• Then applies the proportionality test to each

Question 17

Someone wants to bring a JR claim on the basis of breach of a convention right. Do they need ‘standing’ under the HRA, or would (e.g) a pressure group suffice?

Answer 17

They need to have standing.