Chapter 4 Guidance on answering the exam questions

The Human Rights Act 1998 (1) rights and duties

1. The Human Rights Act should be replaced. It does not go far enough and give full and complete protection to people in the UK from statutes or executive practices which are capable of and do violate the rights in the ECHR which the UK, as a state, has agreed to guarantee.

By reference to the terms of the HRA, explain this statement and give reasons for agreeing or disagreeing with it.

  • For this answer you both need to argue a case but also and importantly, show knowledge of the main features of the Act.
  • Consider sections 3, 4, and 10 – how incompatible legislation remains valid and what the consequences of a declaration of incompatibility are. You might consider whether or not this aspect of the HRA should have been strengthened to prevent incompatible legislation. This is a good opportunity to discuss the constitutional balance (between courts, Parliament and the executive) that the HRA achieves – such as discussion of the way the HRA embodies the supremacy of Parliament, and whether this is appropriate for the protection of human rights.
  • Consider sections 6, 7 and 8 – on public authorities. Note section 6(2) which allows public authorities to act incompatibly with Convention rights if they are putting an incompatible Act into effect. Consider whether the definition of a public authority is too narrow because it means that some of the most vulnerable people, who are looked after by commercial or charitable organisations are public expense may not enjoy some important and relevant human rights.
  • Other issues that might be discussed include whether section 2 HRA limits UK courts too much in their ability to develop human rights appropriate to the UK. This point could expand into a more general consideration of whether a distinctly British Bill of Rights would be appropriate.
  • Conclude by bringing together such arguments into a general assessment of the effectiveness of the HRA against your view of how human rights protection ought to be.

2. The Ministry of Justice decides to introduce a new, severe regime into some of the nation’s prisons. There are good grounds for thinking that aspects of this new regime are so tough that they may violate Article 8 (private life), perhaps even Article 3 (inhuman and degrading treatment).

 Advise the following on whether the UK courts would be able to hear the following cases:

    1. Prisoners in prisons directly operated by the Prison Service (an executive agency of the Ministry of Justice; in effect a part of the civil service) bring a case against the Prison Service and the Minister of Justice alleging a violation of Articles 3 and 8.
    2. Prisoners in prisons operated by Bars R Us, a (fictitious) security company which runs a number of prisons under contract from the Prison Service, bring a similar case.
    3. An employee of Bars R Us speaks to the press about the issues and is sacked for being in breach of a ‘gagging’ clause in his contract of employment. He claims that, because of Article 10 (the right to freedom of expression), his dismissal is unfair.
  • This question requires you to display and apply knowledge of section 6 HRA involving the definition of a public authority. General principles governing the issue might be discussed here (e.g. the analysis in Aston Cantlow v Wallbank)
  1. These prisoners are bringing a case against a core public authority as defined in Aston Cantlow. These are “governmental” organisations, certainly “in the broad sense of the term” and clearly the UK would be responsible for their actions before the Strasbourg authorities.
  2. Section 6(3) includes “any person” exercising “functions of a public nature” as public authorities. Though Bars R Us are a commercial firm operating for profit they are clearly, in this situation, exercising public functions – their authority over the prisoners is ultimately derived from statute, they have special coercive powers and they are ultimately responsible to a minister who is responsible to Parliament. These criteria are included in YL v Birmingham as indicating the exercise of public functions.
  3. This is more complex. Bars R Us, on the basis of section 6(5) HRA are probably exercising private powers in regard to their employment contract with employee. If so, they are not bound to abide by Convention rights. However, the employee has a right not to be unfairly dismissed – this is a statutory right. The statute, under section 3 HRA, must be interpreted so that it can only authorise actions which are compatible with Convention rights (so far as possible) (see X v Y). On this basis the employee may be able to argue successfully that his Article 10 rights are engaged (though since Article 10 is a qualified right there may be sufficient reasons to justify this interference by Bars R Us.
  • You could conclude by summarising your answers.
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