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#hra #law #public
The HRA 1998, s 1 gives effect to ECHR rights and freedoms in UK domestic law.

The relevant rights and freedoms are set out in the HRA 1998, Schedule 1. Articles 1–3 of the First Protocol (subject to a reservation) and Articles 1–2 of the Sixth Protocol are also included.

Note that the ECHR, art 13 is omitted, as it was considered that an effective remedy is provided by the HRA 1998, s 8.

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In determining legal questions, including common law development, the courts must take into account relevant ECHR case law: HRA 1998, s 2.

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Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR rights: HRA 1998, s 3. If this is not possible, the court can make a declaration of incompatibility: HRA 1998, s 4.

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It is unlawful for 'public authorities' (including courts and tribunals) to act in a way that is incompatible with ECHR rights: HRA 1998, s 6.

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The HRA 1998, s 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

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The first decision to consider the meaning and extent of HRA 1998, s 2(1) was R (Alconbury Developments Ltd) v Secretary of State for the Environment, [2001] UKHL 23, where the House of Lords held that, while the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent jurisprudence unless there were special circumstances, or the decisions of the ECtHR compelled a conclusion fundamentally at odds with the distribution of powers under the UK constitution.

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R v Spear [2002] UKHL 31 was the first decision in which the House of Lords declined to follow the jurisprudence of the ECtHR.

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The relationship between the UK courts and the ECtHR has increasingly been described as a 'dialogue', with UK judges and academics being keen to argue that legal reasoning on Convention issues developed in this country should have an influence in Strasbourg: in other words, the process should not apply in one direction only. A good example of this came with the case of Animal Defenders International v UK

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#hra #law #public
The HRA 1998, s 3(1) provides that:

'[S]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.'

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The approach to be taken under the HRA towards the interpretation of legislation has been controversial, as can be seen in R v A (Complainant's Sexual History) (No 2) [2001] 2 WLR 1546. The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict the circumstances in which evidence and questioning about a complainant's prior sexual history in trials concerning sexual offences could be permitted. The issue was whether this new provision prejudiced the defendant's right to a fair trial under the ECHR, art 6.

The House of Lords held that the Youth Justice and Criminal Evidence Act 1999, s 41 was incompatible with the right to a fair trial. As a consequence of this finding, their Lordships went on to consider their obligations under the HRA 1998, s 3. Lord Steyn, in particular, advocated a 'wide' approach to interpretation under the HRA 1998, s 3. He reasoned:

'[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings … Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise.'

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In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a very radical reinterpretation of provisions of the Children Act 1989. The House of Lords reversed this: the opinion of Lord Nicholls provides very useful early guidance on the use of the HRA 1998, s 3:

'In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament … Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament … it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.'

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It seems therefore that, where the use of the HRA 1998, s 3 would represent a major change in the law, having far-reaching consequences, the courts will be more unwilling to use the HRA 1998, s 3.

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In Ghaidan v Godin-Mendoza [2004] UKHL 30 the House of Lords used the HRA 1998, s 3to read in the additional words 'as his husband and wife' into the Rent Act 1977, s 76(1) in order to make it compatible with the Convention. The law lords held that the courts should take a broad approach to interpretation under the HRA 1998, s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used. In order to make a provision convention- compliant, a court may be required to depart form the clear and unambiguous meaning that the provision would otherwise have borne. The court can interpret the language restrictively or expansively. It can read in words which change the meaning of the legislation.

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Lord Hoffmann, in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (at paragraphs 17-18), made the following comments on the scope of the HRA 1998, s 3 and the interpretative obligation it imposes on courts:

'I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to "resolve ambiguities" in a text which had notionally been read without raising one's eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute. It is therefore sometimes possible, as my noble and learned friend Lord Nicholls of Birkenhead pointed out in Ghaidan v Godin-Mendoza [2004] 2 AC 557, paras 26–33, to construe a statutory provision as referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament. Thus in the Ghaidan case, the words "as his or her wife or husband" (my emphasis) were interpreted to refer to a relationship of social and sexual intimacy exemplified by, but not limited to, the heterosexual relationship of husband and wife. The deemed background of the Convention enabled the House to adopt this construction in preference to the more restricted construction adopted before the 1998 Act came into force. It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the "intention of Parliament". But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.'

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#hra #law #public
A more recent example of the courts applying the HRA 1998, s 3(1) is provided by Pinnock v Manchester City Council [2010] UKSC 45. The case concerned a local housing authority which sought a possession order from the county court under the Housing Act 1996, s 143 on the grounds of anti-social behaviour on the part of a 'demoted' tenant. It was held by the Supreme Court that county court judges were required by the ECHR, art 8 to consider the proportionality of evicting a person from his home when granting this type of possession order. It was noted that the Housing Act 1996, s 143 had been drafted by Parliament with the intention that county court judges would grant possession orders against demoted tenants once the housing authority had adhered to the procedural requirements contained within the Act. The Supreme Court, however, read the word 'lawful' into the Housing Act 1996, s 143 (using its power under the HRA 1998, s 3(1)), so that county court judges could review the proportionality of the possession order.

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#hra #law #public
The courts have no power to strike down primary legislation that is incompatible with ECHR rights, because of the key importance of the principle of parliamentary sovereignty.

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#hra #law #public
in situations where the court does not consider it appropriate to adopt a HRA 1998, s 3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right: see the HRA 1998, s 4(2) regarding primary legislation and the HRA 1998, s 4(4) regarding subordinate legislation.

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#hra #law #public
Under the HRA 1998, s 4(5), only the High Court and appellate courts have the power to make such declarations of incompatibility.

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#hra #law #public
When a question of legislative incompatibility is raised in proceedings, the HRA 1998, s 5(1) confers a right on the relevant minister to be joined as a party. In this way the court will hear submissions from the government on the objects and purposes of the legislation in question and any other relevant matter.

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In Bellinger v Bellinger, [2003] UKHL 21 the House of Lords made a declaration of incompatibility in respect of the Matrimonial Causes Act 1973, s 11(c), as the fact that it made no provision for the recognition of gender reassignment made it incompatible with the ECHR, arts 8 and 12.

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#hra #law #public
In A and Others v Secretary of State for the Home Department [2004] UKHL 56, the House of Lords made a declaration under the HRA 1998, s 4 that the Anti-Terrorism, Crime and Security Act 2001, s 23 was incompatible with the ECHR, arts 5 and 14, insofar as it was disproportionate and permitted detention of suspected international terrorists without charge or trial and discriminated on the ground of nationality or immigration status.

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#hra #law #public
See too the case of R (Anderson) v Secretary of State for the Home Department, [2002] UKHL 46 where the House of Lords found the Crime (Sentences) Act 1997, s 29 to be incompatible with the ECHR, art 6(1), as it left the decision on tariffs for mandatory life term prisoners solely in the hands of the Home Secretary.

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#hra #law #public
The public authority may, however, appeal against a decision to make a declaration under the HRA 1998, s 4. See, for instance, the case of R (on the application of H) v Secretary of State for Health, [2005] UKHL 60 where the House of Lords overturned a declaration made by the Court of Appeal that the Mental Health Act 1983, s 2 was incompatible with the ECHR, art 5 (4).

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The HRA 1998, s 10(2) provides that, in response to a declaration of incompatibility made under the HRA 1998, s 4 (or to a decision of the ECHR), the relevant ministers may take expedited 'remedial action' to amend the relevant legislation as necessary to remove the incompatibility, if 'there are compelling reasons for proceeding under this section'.

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#hra #law #public
HRA 1998, s 6(1) makes it: 'unlawful for a public authority to act in a way which is incompatible with [ECHR] rights'.

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#hra #law #public
However, a public authority will not breach the obligation imposed by the HRA 1998, s 6(1), if:
(a) it is required by primary legislation to so act: HRA 1998, s 6(2)(a), or
(b) it is acting so as to give effect to or enforce incompatible primary or subordinate legislation: HRA 1998, s 6(2)(b).

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In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under the HRA 1998, s 6(2):

'The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do. The language of the paragraph tells us that this may be the result of one provision taken by itself, or that it may be the result of two or more provisions taken together. Where more than one provision is involved, they may be part of one enactment or they may be found in several different enactments. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority. If the legislation imposes a duty to act, the authority is obliged to act in the manner which the legislation lays down even if the legislation requires it to act in a way which is incompatible with a Convention right. The authority has no discretion to do otherwise. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable. The situation to which paragraph (b) is addressed on the other hand arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights. The source of that discretion may be in a single statutory provision which confers a power on the authority which it may or may not choose to exercise.'

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#hra #law #public
One group of bodies/persons is expressly excluded, however: the Houses of Parliament in their legislative roles and any person exercising functions in connection with proceedings in Parliament. This exclusion is designed to protect parliamentary privilege and sovereignty.

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#hra #law #public
It is interesting to note, though, that the legislative competence of the Scottish Parliament is limited by the ECHR. The Scotland Act 1998, s 29(2)(d) provides that an Act of the Scottish Parliament is not law if it is incompatible with any of the Convention rights. For an (unsuccessful) challenge to an Act of the Scottish Parliament under the Scotland Act 1998, s 29(2)(d) see AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46. See also ANS v ML [2012] UKSC 30.

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The HRA 1998, s 6 effectively recognises three types of bodies:
1. 'core' public authorities (HRA 1998, s 6(1));
2. 'functional/hybrid' public authorities (HRA 1998, s6(3)(b));
3. private bodies (HRA 1998, s 6(5)).

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#hra #law #public
In the leading case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, [2003] UKHL 37 the House of Lords gave some guidance on what constituted the scope of a core public authority. Lord Nicholls (para 7) suggested that the phrase 'public authority' in the HRA 1998, s 1 is 'essentially a reference to a body whose nature is governmental in a broad sense'. His Lordship further suggested that the following factors could be considered relevant in determining whether a body is a 'core' public authority:

(a) the possession of special powers;
(b) democratic accountability;
(c) public funding in whole or in part;
(d) an obligation to act only in the public interest;
(e) a statutory constitution

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#hra #law #public
The HRA 1998, s 6(3)(a) recognises that courts and tribunals are 'core public authorities'. This suggests that their judgments and orders must be compatible with Convention rights, even in proceedings between private parties, allowing Convention rights to affect the substance of private law by virtue of the court's duty, owed to litigants, not to act incompatibly with their rights. This effect between private parties is referred to as the indirect 'horizontal effect' of the HRA 1998 (as distinct from the 'vertical effect' between a private individual and a state body).

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#hra #law #public
The HRA 1998, s 6(3)(b) provides that the term 'public authority' includes ‘any person certain of whose functions are functions of a public nature’. These are distinguished from those acts performed by such bodies that are of a 'private nature': HRA 1998, s 6(5).

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Whereas 'core' public authorities are potentially bound by the ECHR in respect of all their actions, 'hybrid' public authorities are only bound by the ECHR in respect of those functions they carry out which are of a public nature.

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#hra #law #public
The first case to consider the application of the functional public authority definition in detail was Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595. The question for the court was whether a housing association, which had taken over a local housing authority's housing stock and was providing rental accommodation on behalf of the authority (a core public authority), was performing a public function. The Court of Appeal seemed to reject a functional approach to the application of the HRA 1998, s 6(3) and set down the general principle:

'The fact that a body is performing an activity which otherwise a public body would be under a duty to perform cannot mean that such performance is necessarily a public function. A public body, in order to perform its public duties, can use the services of a private body.'

The Court of Appeal went on to consider what factors would be relevant in identifying whether a body was performing a public function and mentioned the following:
(a) The fact that a body is a charity or is not motivated by profit does not necessarily mean that it performs a public function.
(b) Statutory authority for what is being done can help to establish the act as being public.
(c) The extent of control over the function exercised by a core public body.
(d) Proximity of relationship between the private body and the delegating authority. In Poplar the last two factors were decisive. On the facts, the court found that the Housing Association was so 'enmeshed' in the activities of the local authority that it was a functional public authority.

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The second case to deal with the HRA 1998, s 6(3)(b) was R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. The Leonard Cheshire Foundation provided accommodation in a care home for residents with disabilities whose places were being funded by a local authority under the National Assistance Act 1948. The charity decided to re-develop the home which meant that certain existing residents could not remain. The residents sought judicial review of the decision, arguing that the loss of their home constituted a violation of the ECHR, art 8 (right to respect for home). The crucial question was whether the charity was exercising a public function for the purposes of the HRA 1998. The Court of Appeal adopted the criteria set out in Poplar and found that the HRA 1998, s 6(3)(b) did not apply to the managers of the care home. It noted that there was no material distinction between the services they provided for residents funded by the local authority and those it provided to privately funded residents. Furthermore, although the Foundation was performing a function delegated under statutory authority, it was not itself exercising statutory powers. On the facts, the Foundation was held not to be 'enmeshed' in the activities of the local authority in the same way that Poplar Housing had been.

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As indicated above, the concept of 'public authority', both core and functional, was reviewed by the House of Lords in Aston Cantlow, which was decided after Poplar and Leonard Cheshire. (Although note that these cases were not specifically overruled by the House of Lords.) The House of Lords stressed that it was the nature of the function being performed that should determine whether a body was a functional public authority. Lord Nicholls suggested that there should be a 'generously wide' interpretation of public function so as to further the statutory aim of promoting human rights protection. Lord Hope stated that the concept of a functional public authority:

'… has a much wider reach, and is sensitive to the facts of each case. It is the function that the person is performing that is determinative of the question whether it is a … "hybrid" [functional] public authority.'

Lord Nicholls (para 12) suggested that the following factors may be relevant in assessing whether or not the relevant function is a public one:
(a) the extent to which, in carrying out the function, the body is publicly funded; or
(b) exercising statutory power; or
(c) taking the place of central government or local authorities; or
(d) is providing a public service.

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To determine whether the Parochial Church Council was performing a public function in Aston Cantlow, the House of Lords stressed the importance of considering the nature of the particular act being carried out by the body in question. In the instant case, the PCC was trying to enforce an obligation to repair against the lay rectors. Their Lordships decided that this was not a public function. Lord Hope stated: 'The function which it is performing has nothing to do with the responsibilities which are owed to the public by the State'.

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The most important recent case dealing with the concept of what constitutes the performance of a public function is YL v Birmingham City Council [2007] UKHL 27. This case involved the provision of care and accommodation in privately run care homes for the elderly. In the Court of Appeal, Lord Justice Buxton confirmed that, following Leonard Cheshire, a private care home, when accommodating the appellants, was not performing the functions of a public authority under the HRA 1998, s 6(3)(b). The House of Lords, in a 3-2 majority decision, confirmed that the care home was not a functional public authority for the purposes of the HRA 1998. Lord Scott (in the majority) summarised as follows at paragraph 26:

'Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti- discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.'

However, he stated at paragraph 28:

'The position might be different if the managers of privately owned care homes enjoyed special statutory powers over residents entitling them to restrain them or to discipline them in some way or to confine them to their rooms or to the care home premises.'

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A less restrictive line was taken by the Court of Appeal in the subsequent case of R (Weaver) v London and Quadrant Housing Trust, where the court determined that the defendant housing association, which was a registered social landlord, was liable under the HRA 1998 (specifically the ECHR, art 8) in respect of their action in terminating the claimant's tenancy. In this case, the Court of Appeal appears to have clarified the law further in respect of hybrid authorities. It stated that if any of the functions that a body performs are public, it will be seen as a hybrid public authority. However, a final very important further proviso applied before liability under the HRA 1998, s 6(1) would apply, namely the nature of the action which the body is carrying out at the relevant time. Here, it stated that the court should ask whether the specific act undertaken by the authority is nevertheless private in nature? If it is, the defendant will be able to rely on the HRA 1998, s 6(5) and will not be subject to liability under the HRA 1998 in relation to this action. However, if the action is considered public in nature, the body will be potentially liable.

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The Health and Social Care Act 2008, s 145 specifically provides that a care home provider is to be taken (for the purposes of the Human Rights Act 1998, s 6(3)(b)) to be exercising a function of a public nature when providing accommodation together with nursing or personal care. This provision does not apply, however, to acts carried out before the Act came into force in July 2008.

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The final category recognised by the HRA 1998 are private bodies with no public functions at all (HRA 1998, s 6(5)). Although private individuals do not owe obligations under the ECHR, their conduct may be regulated in a Convention compatible way under the indirect horizontal effect of the HRA 1998.

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The HRA 1998, s 7(1) grants those who are, or would be, a 'victim' of an unlawful act of a public authority the right to:
(a) bring legal proceedings against the authority (a 'sword'); or
(b) rely on ECHR rights in any legal proceedings brought against them (a 'shield').

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The HRA 1998, s 7(7) provides that the term 'victim' has the same meaning as that under the ECHR, art 34.

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The 'victim' test is narrower than the 'sufficient interest' test in judicial review proceedings (see Chapter 13). It will exclude applications from pressure groups or other interest groups unless their own rights, as organisations, are directly affected. Pressure groups and interest groups may, however, be heard in proceedings in the capacity of intervenors.

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Actions under the HRA 1998 must be commenced within one year of the date of the act complained of: HRA 1998, s 7(5). An extension of time may be granted in exceptional cases where the court considers it 'equitable' to do so in all the circumstances.

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The HRA 1998, s 8 deals with the provision of remedies.

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The HRA 1998, s 8(1) provides that, where a court or tribunal finds that an act of a public authority is unlawful, contrary to the HRA 1998, s 6(1), it may grant such remedy as it considers 'just and appropriate'. The power to award a remedy is, however, limited in a number of respects (see the HRA 1998, s 8(1)– (4)). In practice, the nature of the remedy will vary greatly according to the context of the case. The normal remedies will include damages, declarations, injunctions, and the prerogative orders.

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It is important to note that, where the unlawful interference with a Convention right has been provided for by statute and the court is unable to interpret the offending piece of legislation compatibly with the Convention right and makes a declaration of incompatibility instead, the public authority will not be found to have acted unlawfully.

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The HRA 1998, s 6(2)(a) provides that a public authority will not have acted unlawfully if 'as a result of one or more provisions of primary legislation, the authority could not have acted differently'.

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The HRA 1998, s 6(2)(a) provides that a public authority will not have acted unlawfully if 'as a result of one or more provisions of primary legislation, the authority could not have acted differently'. The reasoning behind this is influenced by the idea of parliamentary sovereignty; if a court has accepted that the legislation cannot be 'interpreted' in a Convention-compliant way, then the public authority was simply acting in accordance with the intention of Parliament and therefore cannot be said to have acted unlawfully.

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the provisions of the HRA 1998, s 12(4) require courts, when considering whether to grant any relief which might affect the exercise of a right under the ECHR, art 10 to: 'have particular regard to the importance of the right to freedom of expression …'

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In addition, when proceedings relate to material which is claimed to be, or appears to the court to be, journalistic, literary or artistic material, or to conduct related to such material, the HRA 1998, s 12(4)(b) requires the court to have particular regard to 'any relevant privacy code', i.e. standards set down by the Office of Communications (Ofcom)

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The main procedural criteria for a derogation to apply for the purposes of the HRA 1998 is that it is designated as such in an order from the Secretary of State: HRA 1998, s 14(1). Reservations are subject to a virtually identical procedure: HRA 1998, s 15(1).

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The doctrine of the margin of appreciation used by the Strasbourg court to interpret ECHR rights is not strictly applicable in the domestic context. In R v Director of Public Prosecutions, ex parte Kebilene [2000] HRLR 93, the House of Lords considered the role of the margin of appreciation in UK domestic law. Lord Hope stated:

'… The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights … By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.' (Emphasis added.)

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In the important recent case of Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 (discussed in greater depth in Chapter 15), Lord Reed notes the difference as follows:

'The approach to proportionality in our domestic case law under the Human Rights Act has not generally mirrored that of the Strasbourg court. In accordance with the analytical approach to legal reasoning characteristic of the common law, a more clearly structured approach has generally been adopted [in the UK] derived from case law under Commonwealth constitutions and Bills of Rights ...'

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In the same Bank Mellat case, Lord Sumption, who gave the leading majority speech, summed up the cumulative effect of these influential cases by outlining a four-part analysis of proportionality as a concept in UK law, an approach agreed to by Lord Reed. According to Lord Sumption:

'[T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.'

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