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Human Rights Act 1998 Notes

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Con & Ad : Human Rights Act 1998, Preliminaries & General Background & objectives
? HRA 1998: to incorporate provisions of ECHR into domestic law. Ensure that every domestic court & tribunal is obliged to declare the common law, interpret statutes, and review administrative decisions, consistently with Convention rights; and, where appropriate, grant effective remedies where rights have not been respected.
? UK signatory of Convention since 1950, but only gave binding force in domestic legal system with the HRA.
? Previously, individuals had to go to ECtHR to bring an action under the Convention--could be politically embarrassing for the gov, 'washing the UK's dirty linen in public'.
? Gov White Paper, Rights Brought Home: The Human Rights Bill (1997)
??? ?Human Rights Act (1998) (HRA) incorporates ECHR into English law. ECHR jurisprudence - s2 HRA, 'take into account'Ss2(1) HRA: o "A [UK] court ...determining a question which has arisen in connection with a Convention right must take into account any judgment, decision (etc) of the ECtHR"
?????Approach to s2(1), has changed over time: 'Comity' approach to 'dialogue' approach:
?????R (Alconbury Developments) v SoS Environment: o Domestic courts should follow any clear and consistent ECHR jurisprudence, unless special circumstances.
? ?? ? Ex p Ullah, mirror approach, Bingham o Mirror principle---level of protection afforded by UK courts no les, but certainly no more than that afforded by ECtHR
?????Shift to 'dialogue' approach, R v Horncastle o Re admissibility of hearsay evidence (no cross-examination), re whether breaches Art 6. o UKSC departed from Strasbourg decision---aid there were sufficient safeguards in place.
?????Dialogue approach: o Animal Defenders v UK: ECHR influenced by UK domestic courts approach.
?????Lambeth London BC v Kay o UK lower courts must still adhere to rules of precedent: If conflicting decisions, decision of a domestic senior court >

1 PRELIMINARIES for Human Rights Question Standing
? S7(1) HRA: 'victim'. o Victim can bring proceeds as sword; or use ECHR rights as shield.
? S7(7): 'victim' test under s7(1) is same as Art 34 ECHR.
? Art 34: any person, NGO or group of individuals claiming to be a 'victim'.
? Klass v Germany: definition of 'victim' for Art 34 = person must be 'directly affected' by the potential violation. Public Body
?????Defendant in HRA case = a 'public body'
?????S6(1) HRA: lawful for 'Public authority' ('PA') to act incompatibly.
?????S6(3)(a)---includes courts & tribunals.
?????[Parliament excluded, s6(3)].
?????Hybrid/functional PAs: s6(3)(b): 'functions of a public nature'.
?????S6(5): 'private acts/bodies' excluded.
?????Core PA ? always liable; Hybrid/function PA ? liable when carrying out a public function.
?????No precise definition of PA in HRA.
?????Rights Brought Home (1997), White Paper for HRA, gave egs of core PAs, para 2.2 o central gov (including exec agencies); o local gov; o police; o immigration officers; o prisons; o courts & tribunals; o companies responsible for activities previously in public sector (eg privatized utilities).
?????Aston Cantlow (Lord Nicholls) o Facts: church in parish; steeple needed repair. Is a parochial church council a PA?
o Lord Nicholls: PA = 'a body whose nature is governmental in a broad sense'. o Core PAs:

1. Possession of special powers

2. Democratic accountability

3. Public funding (in whole or part)

4. An obligation to act only in the public interest

5. A statutory constitution o A Core PA cannot itself enjoy Convention rights. o Hybrid PAs, stressed the nature of the function being performed.

1. Public funding 2

2. Statutory power for exercise of function

3. 'Taking place of gov' or local authorities'

4. OR providing a public service o On facts itself, the Parochial Church Council not a PA: due to nature of the act---trying to enforce an obligation to repair against the lay rectors, not a public function.
?????Hybrid/function PA?
o Yes: Poplar Housing; Weaver o No: YL v Birmingham; Leonard Cheshire
?????Housing associations: o Poplar Housing Association v Donoghue: was a hybrid PA---'enmeshed' with activities of local council, 'assimilated' with local council, taking place of gov, providing a public service. Key factors: (1) extent of control over the function exercised by a core PA, the local council; (2) proximity of relationship between the private body and the delegating authority. o R (Weaver) v London & Quadrant Housing Trust (widened law after YL v Birmingham) o Was a hybrid PA, as was housing association cancelling tenancy under statute. o Leonard Cheshire, YL and Aston al found no public function, so didn't consider the act itself. o Weaver says: o (a) look at functions of the body (s6(3)(b), ask if functional/hybrid PA. o (b) If found to be public function, then look at nature of the specific act undertaken (in accordance with s6(5)) ? if private, not liable, even if public function
?????Charity---not liable o R (Heather) v Leonard Cheshire Foundation. Foundation was not 'enmeshed' with activities of local council, applying Poplar Housing test.
?????Care homes o YL v Birmingham CC: o Local authority contracted out to private care home for elderly. o HL, 3/2 majority (Lord Scott): not a hybrid PA, contractual relationship with residents, no statutory powers, profitmaking/commercial market. o Note vigorous dissent (Bingham/Hale): had statutory underpinning; this was precisely the case which s6(3)(b) was intended to embrace. o Hale: the company was performing a public function, statutory arrangements, public expense, in public interest. o Hale: the function (looking after vulnerable elderly ppl) =
inherently public function, whether or not state paid for it. o YL followed by more liberal line in Weaver 3

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