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Introduction to Human Rights II - HRA (Defendant - Section 6 (Hybrid…
Introduction to Human Rights II - HRA
ECHR jurisprudence
"A [UK] court... determining a question which has arisen in connection with a Convention must take into account any judgement, decision (etc.) of the ECHR" - Section 2(1)
Comity or dialogue?
R (Ullah) v Special Adjudicator (2004) - "the duty of the national courts is to keep pace with the Strasbourg jurisprudence... no more but certainly no less"
Mirror principle - Lord Bingham
R v Horncastle (2009) - dialogue - UKSC - ECtHR
Claimant - standing
s7(1) - "any person who claims that a public authority has acted [unlawfully] may bring proceedings... but only if he is a victim"
s7(7) - victim has same definition as Article 34 ECHR
Any person, NGO or group of individuals claiming to be a victim
Test - Klass v Germany (1978) - directly affected
Defendant - Section 6
S6(1) - "It is unlawful for a public authority to act in a way which is incompatible with a Convention right"
Unless it has a defence - s6(2)
Public authority (PA)
"Rights Brought Home" - White Paper (1997) - examples of core PAs given
Section 6(3)(a) - includes courts - horizontal application
Aston Cantlow - Lord Nicholls
Special powers
Democratic accountability
Public funding
Acting in public interest
Statutory constitution
Hybrid authorities
s6(3)(b) - "any person certain of whose functions are functions of a public nature"
s6(5) - "in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private"
Aston Cantlow
Public funding
Statutory power for exercise of function
"Taking place of government"
Providing a public service
Case law
Liable
Poplar Housing Association v Donoghue (2001) - so closely "enmeshed"
R (Weaver) v London & Quadrant Housing Trust (2009)
Not liable
R (Heather) v Leonard Cheshire Foundation (2002)
YL v Birmingham (2007) - "contracting out of services"
Liability
Public Authority
Core PAs - liable in all situations
Hybrid/functional PAs - liable only when carrying out a public function
Will have acted unlawfully in domestic law if acts incompatibly with an ECHR right - s6(1)
Unless UK legislation required or allowed it to act incompatibly - s6(2)
Defence
Section 6(2) - defence will be available to public authority
Unless court is able to interpret the incompatible legislation in such as way as to make it compatible with the ECHR right, using s3(1) powers
Interpretation of 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"
R v A (CSH) (2001)
S41 Youth Justice and Criminal Evidence Act 1999 - admissibility of evidence in rape trial - Article 6 "right to a fair trial"
Lord Steyn - s3 - strong interpretive duty - defence of incompatibility as last resort
"In accordance with the will of Parliament, as reflected in s3, it will sometimes be necessary to adopt an interpretation which may appear linguistically strained"
Lord Hope - "The rule of construction which s3 lays down is quite unlike any previous rule of statutory interpretation... Compatibility with convention rights is the sole guiding principle... But the rule is only a rule of interpretation. It does not entitle judges to act as legislators."
Incompatibility
Bellinger v Bellinger (2003) - Matrimonial Causes Act 1973 - institutional competence
Re S and Re W (2002) - Children Act 1989 - care orders - beware "amendment of legislation"
Current approach
Ghaidan v Godin-Mendoza (2004)
Rent Act 1977 - surviving spouse - change went "with the grain" of legislation - within court's competence
Lord Nicholls - "the interpretive obligation decreed by s3 is of an unusual and far-reaching character... Section 3 may require the court to depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, s3 requires a court to depart from the intention of the enacting Parliament"
Section 4 - provides that if a higher court considers a provision in an Act of Parliament incompatible with human rights, it can make a declaration of incompatibility
Consequences
DOI "does not affect the validity, continuing operation or enforcement of the provision" - s4(6) - Parliamentary Sovereignty
Minister/Parliament should amend the law, including s10 power to take remedial action
S6(2)
Preserves the statutory defence for PA
No remedy for claimant
Remedial effect of s3 - UK law now read compatibly with ECHR
Define public authority - if violated a right and acted unlawfully (domestically) s6(1) - claimant gets remedy - s8