Self-test questions: Human rights: the HRA/ECHR

. The Human Rights Act 1998 (HRA) is legislation that gives effect to:

The European Charter of Rights and Freedoms

The Universal Declaration of Human Rights

Previously uncodified rights and freedoms of the common law

The European Convention on Human Rights

. In 1992 Julie was told by her employers (a council committee for school planning) that she could not wear anything with a religious symbol on it when at work. A few months later, Julie has quit her job but is convinced the decision not to allow her to wear anything with a religious symbol on it contravenes the right to freedom of religion as provided for in article 9 of the European Convention on Human Rights (ECHR), and so has decided to seek a legal remedy.

What is her best course of action?

Because the UK had declared their recognition of the competence of the European Commission to deal with petitions from its citizens, Julie could bring her claim to Commission.

Julie can bring a claim under sec 6(1) of the HRA directly to the UK domestic courts and can only appeal to the ECtHR if all domestic remedies have been exhausted.

Julie can make a claim to UK domestic courts on the basis of the common law grounds for judicial review but cannot make a claim directly to the European Commission based on an infringement of Convention rights.

In order for the claim of an infringement of a Convention right to be admissible, applicants must bring their claim within six weeks of the action that affected the right. Therefore, too much time has passed for Julie to make a claim.

Julie would have a right to directly seek to have the European Court of Justice to decide her case on the basis of the UK's membership in the European Union.

. When interpreting a Convention Right, the UK courts:

Must take into account any judgement or opinion of the European Court of Human Rights (ECtHR) if it is relevant to the case.

Are bound by the decisions of the Grand Chamber as the highest court of appeal of the ECtHR, but not the lower courts or committees.

Are bound by all of the decisions of bodies of the Council of Europe when interpreting Convention rights.

Are neither bound by, nor have to take into account, decisions from the ECtHR.

Must take into account the jurisprudence of the European Court of Justice.

. Emily is unlawfully residing in the UK and the government seeks to have her deported, however, in her home country she is likely to be tortured by the state for her political views. Which of the following best describes how the UK court is likely to respond to a claim that to extradite her would violate the prohibition on torture provided by article 3 of the Convention?

As the torture would occur outside their jurisdiction, the UK will not have violated a Convention right if Emily is deported and the HRA 1998 would not apply.

The court would find that the UK could be held accountable under the HRA for the violation of a convention right as the decision to deport Emily occurred within the UK and the consequence is not too remote so as to avoid responsibility. If the court found that article 3 has been interfered with, the UK would be prevented from deporting Emily.

As Emily is not a citizen of the United Kingdom she cannot make a claim against the UK government under the HRA.

The court would find that the UK could be held accountable under the HRA for the violation of a convention right as the decision to deport Emily occurred within the UK and the consequence is not too remote so as to avoid responsibility. However, the government may succeed in arguing that the infringement is lawful if there is a legitimate aim to the action and the action is 'proportional'.

As the torture would occur outside their jurisdiction, the UK will not have violated a Convention right if Emily is deported and the HRA 1998 would not apply.

. Emily is unlawfully residing in the UK and the government seeks to have her deported, however, in her home country she is likely to be tortured by the state for her political views. Which of the following best describes how the UK court is likely to respond to a claim that to extradite her would violate the prohibition on torture provided by article 3 of the Convention?

As the torture would occur outside their jurisdiction, the UK will not have violated a Convention right if Emily is deported and the HRA 1998 would not apply.

The court would find that the UK could be held accountable under the HRA for the violation of a convention right as the decision to deport Emily occurred within the UK and the consequence is not too remote so as to avoid responsibility. If the court found that article 3 has been interfered with, the UK would be prevented from deporting Emily.

As Emily is not a citizen of the United Kingdom she cannot make a claim against the UK government under the HRA.

The court would find that the UK could be held accountable under the HRA for the violation of a convention right as the decision to deport Emily occurred within the UK and the consequence is not too remote so as to avoid responsibility. However, the government may succeed in arguing that the infringement is lawful if there is a legitimate aim to the action and the action is 'proportional'.

As the torture would occur outside their jurisdiction, the UK will not have violated a Convention right if Emily is deported and the HRA 1998 would not apply.

. A public authority for the purposes of the HRA is described as including two categories: (i) core public authorities whose nature is governmental in a broad sense of that expression; (ii) and, hybrid public authorities, whose functions include functions of a public nature but are not 'governmental'.

The specific distinction between core and hybrid public authorities is described in:

Article 16 of the ECHR

Section 6 of the HRA 1998

Section 2 of the HRA 1998

R. v Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] QB 815

Aston Cantlow v Wallbank [2003] UKHL 37

. The 'Gremlins', a local post-punk band, are seeking to make a claim under the HRA 1998 against the Church Council for the Parish of Brigadoon on the basis that the decision to cancel their gig in the church hall had breached article 10 (freedom of expression), article 9 (freedom of thought, conscience and religion), and article 14 (the prohibition against discrimination) of the Convention. The Church council regularly rented out the premises for all kinds of art and community events but had chosen to cancel their contract to rent out the hall to the Gremlins after a complaint from a parishioner that some of the lyrics of the Gremlin's songs had atheist overtones.

Why are the Gremlins likely to be unsuccessful in their claim?

The Church Council is not a public authority and therefore are not accountable under the HRA 1998

The Church Council is a hybrid public authority and therefore a claim can be made against them. However, articles 9 and 10 are qualified rights the Church may argue that the interference was proportional with a legitimate aim.

While the Church Council may be found to be a 'hybrid' public authority, if the decision was not in relation to a public function it will not trigger accountability under the HRA. As the decision concerns a contract to rent the space as an events venue, this would not trigger accountability under the HRA.

The Church Council is a core public authority and therefore a claim can be made against them. However, as the 'Gremlins' are a group rather than an individual, they would not have standing and therefore could not bring a claim.

. Asma is an elderly woman who has had her accommodation at her care home terminated because her behaviour was found to have been disruptive. Her care home is owned by a private company, Sunset Village. However, the contract for her accommodation and care is between and Sunset Village and the local authority as the local authority has a statutory duty to provide Asma with accommodation and care. Asma is claiming the termination breaches Article 8 of the Convention (respect for his home).

Based on the facts given, which of the following best describes whether the termination of accommodation may be unlawful under the HRA?
(All facts and refence to statutory legislation other than the HRA 1998 and the ECHR are fictional.)
For an act to be unlawful under the HRA it must be attributable to a 'public authority'. This includes 'core' public authorities, as well as 'hybrid' public authorities (that is any person certain of whose functions are functions of a public nature). The facts in this scenario closely resemble those in YL v Birmingham City Council [2007] UKHL 27. In YL, a private care home provided accommodation to both private individuals as well as those whose fees were paid in full or in part by the local authority. In the case of those who were funded by the local authority the care home had a contract with the local authority to provide accommodation to those individuals. The local authority had a statutory duty to provide accommodation and care to the applicant.
The majority of judges decided that the services were provided on a commercial basis by a private party and distinguished this from the function of the local authority in making arrangements for accommodation and care for those who were entitled to it under statutory provisions. Lord Scott compared the services of the care home to other service offered to local authorities if they were running a care home themselves (such as cleaning services or catering and cooking services). The decision was controversial, and legislation was later changed to prevent care homes providing services under such circumstances from escaping accountability under the HRA. Despite the controversy and change to legislation, the principles used in determining whether the care home was a public authority is still considered good law.

Because the state has delegated its responsibility for provision of a public service to Sunset Homes, the termination of Asma's accommodation may be found unlawful under the HRA.

As the provision of accommodation and care is fulfilling a statutory legal requirement, with the same functions as a care home run directly by the local council would have, Sunset Care Homes is a hybrid public authority and the services being provided to Asma are a public function. Therefore, the termination of his accommodation may be found unlawful under the HRA.

Sunset Homes is providing a commercial service to the local authority as one of their customers. None of the facts as given indicate that Sunset Homes is a Hybrid public authority. Therefore, the termination of Asma's accommodation would not be found unlawful under the HRA.

Sunset Homes have not been given any special statutory powers over those in their care, therefore they are not performing a public function. As the care home is neither a core public authority nor a hybrid public authority, the termination of Asma's accommodation would not be found unlawful under the HRA.

Sunset Homes would be considered a hybrid public authority because its functions are functions of a public nature. However, the provision of accommodation and care are private acts and therefore the termination of Asma's accommodation would not be found unlawful under the HRA.

. Idris has recently received an eviction notice from his landlord. Although his landlord is not a public authority, Idris wishes to challenge the eviction on the basis that the requirements for evicting tenants, as set out in section 5 of the Happy Homes Act 2001, should be interpreted compatibly with article 8 of his Convention rights, and as such, the court should assess the lawfulness of the eviction based on a test of proportionality.

In relation to this scenario, which of the following statements are Correct?

There is no requirement for the Courts to interpret domestic legislation compatibly with Convention rights, and so Idris will have no remedy under the HRA 1998 against his landlord. However, the Court may find section 5 of the legislation itself unlawful if incompatible with Idris' article 8 Convention rights.

There is no requirement for the Courts to interpret domestic legislation compatibly with Convention rights, and so Idris will have no remedy under the HRA 1998 against his landlord. Although the Court could declaration the section incompatible with Idris' article 8 Convention Rights, the legislation will remain valid and as such the Court will not be able to assess the lawfulness of the eviction on this basis.

Courts are required to interpret domestic legislation compatibly with Convention rights (so far as possible), but this will have no bearing on cases between private individuals. However, the Court may find section 5 of the legislation itself unlawful if incompatible with Idris' article 8 Convention rights.

Courts are required to interpret domestic legislation compatibly with Convention rights (so far as possible). This requirement also applies to the interpretation of legislation in cases between private individuals (and is the basis for the principle that the HRA 1998 has 'horizontal effect'). The Court will be required to assess the proportionality of the eviction.

Courts are required to interpret domestic legislation compatibly with Convention rights (so far as possible). This requirement also applies to the interpretation of legislation in cases between private individuals. However, the courts have been unwilling to extend this principle of interpretation to imply a test of proportionality where legislation has already considered the balance of rights.

. George is a resident and patient at a privately-owned mental health hospital. The hospital is subsidized by the government and has coercive powers as provided by the Healthy Minds Act 1987 – including the power to detain patients. Due to ongoing disputes between George and some of the other patients, George has been put into solitary confinement for weeks at a time. George seeks to bring proceedings against the hospitable on the basis that his article 3 Convention right (prohibition of torture) has been violated.

Which of the following statements in true in relation to this scenario?

The hospitable is privately owned and is not a public authority. Therefore, George cannot make a claim under the HRA 1998 that they have interfered with his Convention rights.

As a hybrid public authority exercising functions of a public nature when detaining George, a claim may be brought under the HRA 1998 against them. If it is found that the hospitable has interfered with George's article 3 rights, the courts may assess the proportionality of the action provided there was a legitimate aim in keeping George in solitary confinement for this period.

As a hybrid public authority exercising functions of a public nature when detaining George, a claim may be brought against them under the HRA 1998. If it is found that the hospitable has interfered with George's article 3 rights the action will be found unlawful (unless the authority could not have acted otherwise as a result of primary legislation). If the provisions within the Act itself cannot be read compatibly with Convention Rights, the Court may make a declaration of incompatibility.

As a hybrid public authority exercising functions of a public nature when detaining George, a claim may be brought against them under the HRA 1998. If it is found that the hospitable has interfered with George's article 3 rights the action will be found unlawful. If the Act providing the power of detention cannot be read compatibly with Convention Rights, the Court may find the relevant provisions invalid.

. Advocates for Freedom of Expression (AFE), a non-governmental organisation, has applied for judicial review of recent legislation that has requires schools to assess and remove from their libraries books that are deemed to 'undermine' British values – including the 'British value' of patriotism. AFE argue this violates article 10 (freedom of expression) of the Convention.

Which of the following best describe whether AFE can bring forward a claim under the HRA 1998?

A group cannot be considered a person for the purposes of section 7 of the HRA 1998, therefore AFE cannot bring proceedings under the HRA.

The court may consider AFE to have locus standing on the basis that there is a legitimate public interest served by assessing the compatibility of the legislation with Convention rights under the HRA 1998. The court may 'set aside' the legislation if it is found incompatible with article 10.

The court may consider AFE to have locus standing on the basis that there is a legitimate public interest served by assessing the compatibility of the legislation with Convention Rights under the HRA 1998. The court may make a declaration of incompatibility if they find the legislation incompatible with article 10 of the Convention.

AFE would need to demonstrate they are a 'victim' of an act (or proposal to act) of a public authority in order to bring a claim under sections 6 and 7 of the HRA. If no one within the group (or the group itself) is an identifiable victim of an act (or proposal to act) of a public authority they will not be able to bring proceedings under sections 6 and 7 of the Act. However, they can bring a claim under section 3 of the HRA on the basis that the legislation itself is unlawful.

AFE would need to demonstrate they are a 'victim' of an act (or proposal to act) of a public authority in order to bring a claim under sections 6 and 7 of the HRA 1998. They also cannot bring proceedings on the basis that an act of legislation is unlawful or incompatible with Convention rights. If no one within the group (nor the group itself) is an identifiable victim of an act (or proposal to act) of a public authority, AEF will not be able to bring the claim forward under the HRA 1998.

. Which of the following best answers the question of whether the HRA 1998 has horizontal effect?

In it was affirmed in Campbell v Mirror Group Newspapers Ltd, [2004] UKHL 22 that '[t]he 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights' (at [132]). This case has been cited as an instance of the HRA having indirect horizontal effect. It incorporated the principles of article 8 and article 10 when assessing whether there had been a 'breach of confidence' (an existing tort) between a media company and an individual. Although proceedings under the HRA may only be brought where a person is a victim of an act of a public authority which they claim has infringed their Convention rights, the Courts, as a public authority, also have a duty to 'act compatibly with Convention rights' under section 6 of the HRA.
The courts duty under section is also given as a reason for finding the HRA has 'indirect' horizontal effect.

Proceedings may only be brought under the HRA 1998 where there is a claim that a public authority has acted unlawfully. Therefore the HRA has no bearing on disputes between private persons and thus no horizontal effect.

The HRA provides protection for universal human rights and the courts do not distinguish between whether these are breached by a state or by individuals acting privately when enforcing rights. Therefore, the HRA has direct horizontal effect.

UK courts are public authorities and all of their decision must comply with Convention rights. Therefore Convention rights provide a cause for action against both the state and private persons giving the HRA direct horizonal effect.

Although proceedings may only be brought under the HRA 1998 where there is a claim that a public authority has acted unlawfully, as the Courts are themselves a public authority, they will seek to address questions of common law compatibly with Convention rights. However, interference with Convention rights do not create new causes of action against private persons. This, along with the Courts interpretive duties under the HRA, are said to provide the HRA with 'indirect' horizontal effect.

The HRA has horizontal effect as it guarantees the equal standing of all those directly affected by an infringement of Convention Rights.

. In R. (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 the lawfulness of an Order in Council (a form of primary legislation) was reviewed. The order had affirmed an earlier order removing the right of abode of Chagosians from the British Indian Overseas Territories (BIOT).

In relation to claims made under the HRA 1998, that the Order was unlawful due to infringements of Convention rights, the Court found that:

As primary legislation, the lawfulness of the Order in Council could not be reviewed under the HRA 1998.

As per the principle set out in as per the principle as set out in Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, the lawfulness of powers derived from royal prerogative may be reviewed. However, as the Convention rights considered were all qualified rights, the Court found that on a test of proportionality the interference was justified in the interest of national security.

As per the principle set out in as per the principle as set out in Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, the lawfulness of powers derived from royal prerogative may be reviewed. However, the Court found that the government had successfully derogated from the relevant rights on the basis of national security.

The legislation would be 'set aside' until the question could be considered by the European Court of Human Rights for an opinion.

The legislation would be 'set aside' until the question could be considered by the European Court of Justice for an opinion.

. In A v secretary of state for the home department [2004] UKHL 56 the appellants argued that their indefinite detention under the Anti-terrorism, Crime and Security Act 2001 infringement their Conventions right to liberty and security (article 5).

Which of the following best summarises the courts findings?
Article 5 (Right to liberty and security) may be derogated from and is also a 'qualified' right – that is an interference may be found justified according to the qualifications as set out in the article. When a right is qualified, however, the Court can assess the qualification according to a test of proportionality.

The court found that there was no 'threat to the life of the nation' allowing derogation from article 5 (Right to liberty and security), and therefore the Derogation Order was unlawful. Further, as article 5 is not a qualified right, the provision in the 2001 Act allowing the indefinite detention was also unlawful.

The Court found that there was no 'threat to the life of the nation' allowing derogation from article 5 (Right to liberty and security), and therefore the Derogation Order was unlawful. Further as article 5 is not a qualified right, the provision in the 2001 Act allowing the indefinite detention was found incompatible with Convention Rights.

The Court found that there was no 'threat to the life of the nation' allowing derogation from article 5 (Right to liberty and security), and therefore the Derogation Order was unlawful. However, as article 5 is a qualified right, on an assessment of the proportionality the Court found the interference was not an infringement of the right.

Although the majority found no reason to displace the judgement that there existed a 'threat to the life of the nation' they found the derogation was not 'strictly required by the exigencies of the situation'. On an assessment of proportionality, the court found that the interference in the applicant's article 5 Convention right was not justified, and further, that the difference in treatment between foreign national suspected of terrorism and nationals suspected of terrorism was also in violation of article 14 (prohibition of discrimination).

The court found that there was no 'threat to the life of the nation' allowing derogation from article 5 (Right to liberty and security), and therefore the Derogation Order was unlawful. Further, on an assessment of proportionality, the court found that the interference in the applicant's article 5 Convention right was not justified, and that the difference in treatment between foreign national suspected of terrorism and nationals suspected of terrorism was also in violation of article 14 (prohibition of discrimination).

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