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1. What would you say was the principal reason for enacting the HRA?
The principal reason was to enable alleged breaches of Convention rights to be decided in the UK courts.
2. What is the ‘mirror’ principle governing the relationship with Strasbourg under the HRA and what are the major exceptions to it?
This is the idea that the interpretation and application of Convention rights in the UK should be no less generous (to the applicant) than it would be in Strasbourg but also no more generous. This is a controversial principle and significant doubts have been expressed and exceptions recognised. In particular the mirror principle will not commit UK courts to apply Convention law in a way that is inconsistent with important principle of UK law.
3. When should section 3 HRA be used rather than ‘ordinary’ canons of statutory interpretation when a court is applying a statute?
The case law (e.g. Ghaidan v Godin-Mendoza) suggests that section 3 should come into play only if a compatible interpretation is not available from using ordinary canons of statutory interpretation. These canons already include the idea that ambiguous legislation should be read for compatibility. So section 3 may only really be necessary in respect of legislation that is clearly, unambiguously, inconsistent with Convention rights.
4. What is a ‘declaration of incompatibility’ and what consequences does it have?
Under section 4 HRA a senior court can declare a statutory provision, which cannot be read compatibly with Convention rights using section 3, to be incompatible with Convention rights. It does not change the incompatible law nor alter the position of the applicant. The executive and Parliament can then (and usually does) enact legislative changes to remedy the defect. There is a fast track procedure available under section 10.
5. When would a UK court be likely to use a declaration of incompatibility rather than use section 3 HRA to find a Convention-compliant meaning to a statute?
When the will of Parliament is so clear that using section 3 would amount to the court “legislating” rather than interpreting. Likewise, if reading the law for compatibility would require the court to go beyond its judicial function or undertake an assessment of the issue that, as a court, it is not institutionally competent to do (e.g. because of insufficient access to all the available information). These criteria are not certain. They flow from underlying constitutional theory (e.g. about the proper relationship between courts and Parliament) and these are matters on which judges may disagree.
6. What are the main indicators that a body is a ‘public authority’ or is exercising a ‘public function’?
A public authority is defined in relation to the kinds of activity or organisation for which the UK, as a signatory state, would be responsible for in Strasbourg. These are bodies which are “governmental” or which are exercising public functions. The indicators of functions being “public” include: the body is exercising statutory powers, or has been created by statute or is directly or indirectly responsible to a democratic assembly. In particular is the idea that the body is exercising coercive or regulatory powers founded in statute; it is able to control the activities of others in a way that the rest of us cannot. Public funding is a relevant factor but is not decisive. Controversially, just because something is done for which the government takes ultimate responsibility (e.g. the care of the vulnerable) this does not, of itself, make it a public function.
7. Under what circumstances can a person bring an action under section 7 of the HRA?
If they can allege that they are a “victim” (as understood by Strasbourg) of an alleged breach of the Convention by a public authority. If so, they can either bring a case directly against the “public authority” or can use their Convention rights in any other proceedings, such as part of their defence in criminal proceedings.
8. What remedies are available under the HRA for breach of a Convention right by a public authority?
Any remedy that is within the jurisdiction of the court determining the breach of Convention rights. These can include a financial remedy by way of “just satisfaction”.
9. What is the responsibility of a minister introducing a Bill to Parliament under the HRA?
Under section 19 the minister must make a statement declaring that the bill is compatible with Convention rights or, if it is not, saying so and giving reasons why it is still desirable to proceed to enactment.
10. When, if at all, does the HRA impose obligations on UK officials for actions taken overseas?
When the actions are taken within the “jurisdiction” of the UK. UK courts define “jurisdiction”, in this context, to follow the approach of the ECtHR. So that it applies within the normal territory of the UK but is subject to some very important exceptions, including where the UK is exercising control over a foreign territory.