UK judicial reasoning pre HRA
dualist system - international law and domestic law exist separately
have to pass domestic law for international law to take effect
thus, ECHR could not strictly behind us in domestic law before 1998
stat interp - ambiguity/principle legality
Brind - will presume that parliament intended to legislate in conformity with the convention, not in conflict with it
- but presumption only applies where provision is ambiguous
Simms - legality means parliament must confront what it is doing and accept the political cost
anxious scrutiny
Bugdaycay - courts are entitled to sibject an administrative decision to the more rigorous examination to ensure that it is in no way flawed
common law protection of rights
Malone highlights how common law can fall short of ECHR
purpose of the HRA
pragmatism and efficiency - enforcing rights in Strasbourg was costly so this allows rights to be enforced in domestic courts
Section 6 HRA
s6(1) - it is unlawful for a public authority to act in a way which is incompatible with a convention right
focuses on public authorities - includes courts or tribunals and any person whose functions are of a public nature BUT NOT PARLIAMENT!!
Is parliament still sovereign?
S19 - if parliament are proposing a law, the minister must make a statement to teh effect that in his view the provisions are compatible with ECHR or make a statememt that although he is unable to make a statement of compatibility the bill should proceed
so - yes, option to pass a law which is not compatible
standing under the HRA
s7 (7) - a person is a victim of an unlawful act, only if he would be a victim for the purposes of Art 34 of the convention, if proceedings were brough in the ECHR
Art 34 - claiming to be a victim of violation by one of the High Contracting Parties
indirect victims
Rabone v Pennine Care
yes, indirect victims can sometimes bring claims
why not use the sufficient interest test?
imitating the convention model
prevent a flood of claims
potential victims
JR 1s application 2011 - the threat was hypothetical
this is not enough - have to be directly affected by a public authorities decision
public interest litigation
creates an exception under Equality and HR commission need not be a victim - have to identify which victims would be affected, cannot claim damages
R v NIHRC - majoirty held that they did not have standing, must represent an individual who is ‘personally adversely affected’
amenability
S6(1) - a public authority
s6(3)(b) - exercising functions of a public nature
meaning of public authority
parliament is excluded to preserve sovereignty
obvious examples - govt departments, authorities, the police etc (if encounter these in problem question, wont say much more than a line)
Aston Cantlow - hybrid public authorities - only when they are performing public functions are they bound by HRA, must take into account factors such as publicly funded?
contracting out
difficulty comes when a public authority contracts some of its functions to a private body
YL v Birmingham - have to look at who is exercising power/who has assumed responsibility
in what way does HRA apply
vertically
in some cases, horizontally - Godan v Mendoza
exceptions to liability under s6(2)
6 (2) - subsection 1 does not apply to an act if:
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 on a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions
