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Human Rights Act 1998 (Why? (Britain often in violation of ECHR as…

- - - - Malone case - no law to prevent tapping of suspected criminals' phones, ECtHR ruled that this was a violation of Art. 8 rights and Parliament responded by legislating to provide a statutory right for phone-tapping.
- - - - MP differs from a literal interpretation of Section 2, which merely requires courts to "take into account"
      - Reinforced in Alconbury and Pinnock
      - Established by Lord Bingham in the Ullah case
      - Issues
        
        Uncertainty with what the "special circumstances" are
        
        Alconbury case - Lord Hoffmann indicated that a "special circumstance" would be if a Strasbourg decision upsets the balance of power in the British Constitution
        
        Does MP establish the ECtHR as a constitutionally superior court?
        
        Uncertainty with the extent to which the principle should be followed (diff. judges follow it differently)
- - - - Established in Ghaidan v Godin-Mendoza - HL interpreted "husband or wife" in a broad sense to include persons who were living together "as if they were husband and wife"
        
        Limitations
        
        Courts cannot make significant policy changes due to separation of powers doctrine
        
        If the interpretative impact is far-reaching, it may be inappropriate to use interpretative powers to change the law
        
        This was the criticism of the HL judgment in Ghaidan - it seemed to change the law in a very substantive manner by affecting all homosexual couples in such situations
        
        Courts will not adopt interpretations which "go against the grain" of the legislation
        
        Established in Ghaidan
- - - - Seen in how Parliament almost always changes the incompatible legislation
        
        Bellinger v Bellinger - Parliament softened restrictions on transsexual marriages after declaration
        
        There is one case in which Parliament did not legislate after a declaration
        
        Smith v Scott - concerning lack of prisoner voting rights
      - Parliamentary sovereignty is preserved as Parliament has a choice as to whether it wants to amend the legislation or not
  - - - Govt felt that derogation was justified in that there was a public emergency situation in the UK after 9/11
        
        HL deferred to govt expertise in determining whether it was a public emergency situation - BUT held that based on the proportionality test, regardless of whether there was a public emergency situation, while govt aims were legitimate, measures were disproportionate and not the least intrusive
        
        HL also criticised the Act's discriminatory nature
        
        Parliament responded by passing the PTA 2005 which removed indefinite detentions
- - - - NB: Primary legislation cannot be challenged but secondary legislation can as it is a form of administrative action.
      - To determine if a challenge will succeed, tests are applied depending on what kind of right it is:
        
        The test is two-fold:
        
        The derogation must be lawful
        
        The derogation must be proportionate
        
        It must be enacted to secure a legitimate aim (legitimate aims are listed in the Article)
        
        It must be necessary in a democratic society
        
        Derogation should have rational connection to that pressing public/social need
        
        Derogation should be the least intrusive method
        
        Derogation should be a response to a pressing public/social need
        
        Derogation must be balanced against the realisation of the aim
        
        Deference - in certain areas (for e.g. national security, economic policy, legislation compared to executive decisions) the courts are more willing to defer to decision-maker's judgment
        
        No derogation is justifiable
    - - Core - obvious ones such as the police
        
        If these bodies enter into contracts with private bodies, the contracts must adhere to ECHR conventions
      - Hybrid - private companies which exercise public functions
        
        Private contractors are generally excluded from Section 6 liability as the private contractors' act are private in nature and the contract between PC and LA is commercial in nature
        
        Established in YL v Birmingham City Council
        
        Private healthcare providers are the exception as Parliament has legislated to subject them to HRA provisions
        
        To hold private companies liable for ECHR violations, generally cannot use Section 6. Need to use existing domestic law (indirect horizontal effect) as Section 3 will require the courts to consider the case from a HRA perspective as well.
        
        Obvious limitations (such as firstly there needing to be domestic legislation governing the area of contention etc) means that some private companies cannot be held to account for HRA violations
- - - - Exceptions
        
        Indirect victims - generally someone of close proximity to victim who suffers from beyond just emotional distress
        
        Potential victims - applicants who can show that a decision will violate their Convention rights