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HRA Intro - Coggle Diagram
HRA Intro
S7 HRA (standing)
s 7 (1) HRA, an applicant must show that s/he is (or would be) a victim of the unlawful act
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a group cannot claim on behalf of someone e.g. Re Northern Ireland Human Rights Commission regarding strict abortion law
An NGO can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation e.g. Liberty v UK- pressure group had interception of communications
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Time limits
Actions under the HRA 1998 must be commenced within one year of the date of the act complained of (HRA s7(5))
Extensions of time may be granted in exceptional cases where it is considered ‘equitable’ in all circumstances
if it is considered to be a continuing matter rather than a single incident, time will not start running until the violation ceases to operate e.g. O'Connor v Bar Standards Board
if a HRA claim is being brought within a wider judicial review application, the stricter JR time limits will apply (Al-Saadoon v Secretary of State for Defence)
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Jurisdiction
Article 1 states The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this convention
there is no requirement of citizenship or residency of a contracting state in order to benefit from the Convention protections. The test is whether the person is within the jurisdiction of the state
wider jurisdiction
Bankovic v Belgium- re bombings by NATO- showed extra-territorial jurisdiction could be recognised in some very limited circumstances
when it might apply: diplomatic staff abroad, or when state has effective control of relevant territory and its inhabitants abroad as a consequence of military occupation or gov acquiesced to exercise of it’s powers
Al-Skeini and Others v UK- ECtHR found that in the special circumstances which applied in Iraq in 2003–4, when the UK and USA were effectively occupying powers with responsibility for security, the extent of control and power exercised by the UK military was sufficient to render the actions of its armed forces subject to regulation under the ECHR and HRA, whether on or off UK bases
R (Al-Skeini and Others) v Secretary of State for Defence: Uk could not have a case against military operations in Iraq because they were killed in the course of general security operations when UK did not have sufficient control over Iraq. However, the sixth civilian, Baha Mousa, came within the jurisdiction of the UK under Article 1, as he died as a result of injuries inflicted by UK armed forces personnel inside a detention unit controlled by British forces
R (Jason Smith) v Secretary of State for Defence [2010] UKSC 29, the Supreme Court found that jurisdiction under the ECHR and HRA did not extend to the protection of the deceased soldier's rights because he died in an area seen to be outside the UK's control
HRA key provisions
Obligations
S2: when determining legal questions, including common law, the courts must take into account relevant ECHR law
R (Alconbury Developments Ltd) v Secretary of State for the Environment shows European Court decisions are not binding but they should follow clear and consistent jurisprudence unless there are special circumstances or the decision would be fundamentally at odds with the UK constitution
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R (Ullah) v Special Adjudicator- duty to keep up to date with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’
Departure from ECthR decisions: R v Horncastle- Said the European Court could not accommodate particular aspects of our domestic process. Said they should of course give reasons to create a valuable dialogue between this court and Strasbourg court
from mirror to dialogue
Now academics say the influence should go both ways, Strasbourg should consider UK court developments also. E.g. Animal Defenders International v UK
current position: R (Haney and Others) v Secretary for Justice- ‘Usually, domestic and Strasbourg jurisprudence march hand in hand, as contemplated by the 'mirror' principle. More radically, the domestic court may conclude that such Strasbourg authority as exists cannot be supported and may decline to follow it in the hope that it may be reconsidered.’
S3: legislation must be read and given effect (by courts) so far as is possible, in a way that is compatible with ECHR rights
S4: if S3 not possible, the court may make a declaration of incompatibility
S6(1) unlawful, for public authorities (including courts and tribunals) to act in a way that is incompatible with convention rights
Public authorities definition: S6(1)(3)(a) a court or tribunal and (b)- any person certain of whose functions are functions of a public nature (Parliament is excluded)
S6(1)(5)(3)(b) public authorities by virtue of 3b will not apply if the nature of the act is private
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Aston Cantlow Guidelines: look at the following factors to determine if something is a public authority: possession of special powers, democratic accountability, public funding in whole or part, obligation to act only in public interest, statutory consitution
Functional public authorities. originates form S6(3)(b) HRA 1998 ‘public authority’ includes ‘any person certain of whose functions are functions of a public nature’
A body which is private in nature but performing functions of a public nature may be liable under HRA in respect of that particular function
Aston Cantlow guidelines for functional public authorities: extent to which function is publicly funded, exercising statutory power, taking place of central gov or local authorities, public service
case law
YL v Brimingham City- privately run care homes are not functional public authorities for HRA purposes. They are private companies, entered into private law contracts, which received no funding and no special statutory powers
Poplar Housing Assosiation v Donoghue- shows proximity of relationship between private body and delegating authority matters
R (Weaver) v London and Quadrant Housing Trust- HA found to be hybrid authority for it’s functions. This is more liberal, following statutory provisions
Section 145 of the Health and Social Care Act 2008 specifically provided that a care home provider was to be taken (for the purposes of s 6(3)(b)) to be exercising a function of a public nature when providing accommodation together with nursing or personal care. This provision was subsequently replaced by s 73 of the Care Act 2014 which similarly provides for registered care providers to be treated as exercising a public function
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