purpose of the HRA
pragmatism & efficiency:
enforcing Convention rights in Strasbourg was costly & lengthy
Belfast Agreement (‘Good Friday Agreement’) 1998:
placed a duty on the UK gov to incorporate the ECHR into NI law so that people could challenge injustice in their courts if their rights were breached - this was achieved via HRA 1998
section 7 HRA - standing victims
S7(7) “for the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the ECTHR in respect of that act”
Article 34 states that “the court may recieve applicants from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties”
S7 - ‘indirect’ & ‘potential’ victims
‘indirect victim’ - Rabone
‘potential victim’ - JR1’S Application
public interest litigation - Northern Ireland Human Rights Commission
NIHRC challenged the law in NI that criminalised abortion in all but very limited circumstances so it argued in the SC that the law was incompatible with the ECHR as it didn’t provide an exception to the prohibition of abortion in cases of serious malformation of the unborn foetus as a result of rape / incest
these proceedings were brought in the name of the NIHRC rather than the name of particular victims although examples of particular individuals were relied on
the majority held the the NIHRC did not have standing to bring appeal stating that the NIHRC must represent an individual who is “personally adversely affected” by the alleged violations
“victim” and its relationship to JR
“victim” approach under HRA suggests an approach to standing narrower than that for standing at common law (“sufficient interest”) - the applicant is to be taken to have sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act
S6 amenability & relationship to JR
CPR 54.1 “exercise of a public function”
S6 HRA “public authority” & “exercising functions of a public nature”
Aston Cantlow - core public functions
“a body whose nature is governmental in a broad sense of that expression”
“lie factors such as the possession of special powers, democratic accountability, public function in whole or in part, an obligation to act only in the public interest, and a statutory constitution”.
Aston Cantlow - hybrid public authorities
hybrid public authorities are only bound by the HRA when they are performing ‘public functions’
“factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government to local authorities, or is providing a public service”
Poplar Housing - core & public authorities
local housing association issues a note for repossession of a property from Donoghue. a summons was issues under the Housing Act 1988 and the court was then required to make an order for repossession. at the hearing, D asked for an adjournment to enable her to produce evidence that the housing association was a ‘public authority’ or performing a ‘function of public nature’ for the purpose of Section 6 HRA. D argued that once that was established, then she would argue that the repossession order would be contrary to her right under Article 8 ECHR
core & public authorities - Leonard Cheshire Foundation
long stay patients in a private care home owned by Leonard Cheshire Foundation were placed there by a local authority, further to obligations under the National Assistance Act. trustees of the home decided to stop running the care home in its then form and one consequence was the appellants would need to be relocated to a difference facility - the appellants complained and argued that the Foundation was exercising ‘functions of a public nature’ and kicking them out would be a breach of their rights under Article 8 ECHR
contracting out - YL
HOL decided, 3-2, that a privately owned care home, operating on a for-profit basis and pursuant to contract with a local authority, was not a hybrid public authority under S6(3)(b) of HRA
“private, profit-earning company”
parliament later reversed the decision in YL with S145 Health & Social Care Act 2008 > Care Act 2014
Weaver
Weaver was a tenant of the Quadrant Housing Trust (a registered social landlord under the Housing Act 1996) who wanted to challenge a possession order made against her (she hadn’t paid her rent) arguing a breach of Article 8 ECHR
CA held: trust was a functional public authority as was granted a substantial public subsidy / statutory duty to cooperate with the local authority / subject to regulation that goes beyond ensuring good standards of performance / trust had charitable objectives
in contrast to Weaver - Walker
which a mutual housing organisation (owned & run by its members) was not a functional public authority - it received no public subsidy / had an informal relationship with the local authority / not subject to statutory regulation in the same way as housing associations
the difficulty with “hybrid” bodies & S6(3)(b)
BROAD: a broader definition or when a body falls within S6 HRA could confer too many public obligations on private bodies - in pragmatic terms, it might be likely to stifle the market, making it less likely that private bodies will take up the slack on public functions that local authorities cannot manage to discharge
NARROW: a narrow definition would undermine the HRA’s aim to improve accountability in public services - it would also create an imbalance in protections with some people who are owed a duty by the state could have weaker human rights protections than others purely because the service they are accessing had been contracted out
horizontal effect of the HRA
in practice, the courts have been quite cautious about extending the reach of the HRA to private relationships - private parties are bound by the HRA only:
• where the common law has evolved to absorb human rights norms
• compatibility with Convention rights (S3 HRA) e.g. Ghaidan
exceptions to liability under S6
does not apply:
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the convention rights, the authority was acting as to give effect to or enforce those provisions
