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Summary Public Law Problem Question Notes
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Human Rights and the HRA: HRA as incorporated the ECHR into English Law. Specifically, s.2(1) HRA creates a duty for courts or
tribunals, when dealing with questions connected to ECHR rights, to take into account any judgement
or decision by the ECHR.
The Human Rights Act 1998 is the main mechanism that English law provides for enforcing Convention
Rights. Section 6(1) provides that it is unlawful for a public authority to act in a way which is
incompatible with Convention Rights.
Actions under the ECHR may be brought by one signatory state against another (Georgia v Russia 1 and
2) and also by individuals against states.
Judgements of the ECHR are binding but do not have direct force in signatory states.
o In Alconbury, the HoL clarified that lower courts should follow a clear and consistent line of
jurisprudence with the ECHR unless there are special circumstances, or the decision is at odds
with the distribution of power in the UK.
o In ex parte Ullah, the mirror principle was established. This means that the level of protection
afforded by UK courts is no less, but certainly no more than the one afforded by the ECHR.
Preliminaries:
o Consider the scope of the rights. Are they Absolute, Limited or Qualified?
Absolute: rights must always be upheld without exceptions.
Limited: any restrictions on the right is clearly defined and limited to specific situations.
Qualified: where a balance has to be struck between individual rights and wider public
interest.
o Does the applicant have standing?
He must be a victim (s.7(1) HRA). According to s.7(7) HRA ‘victim’ is given the same
definition as art.34 ECHR, which means any legal person directly affected by an Article
infringement.
o Has the potential violation been committed by a public authority? There are two types of public
authorities:
Core public authorities s.6(1) ie governmental bodies, which are those with a statutory
constitution, public funding, democratic accountability, funded wholly or partially
through public funds, and/or which have special powers. Courts and tribunals are core
public authorities s.6(3)(a).
‘functional’ or ‘hybrid’ public authorities s.6(3)(b) are obliged to uphold only when
exercising public functions, but not when exercising private functions s.6(5). Functional
public bodies perform functions of a public nature, such as:
Acting in lieu of governmental bodies or local authorities;
Exercising statutory powers;
Using public funding (YL v Birmingham CC); or
Providing a public service.
o Eg private elderly care homes were not held to be a functional public
authorities, except where they act under statutory powers (YL v
Birmingham CC): although, under Health and Social Care Act 2008 they
are now considered functional public authorities.
o Is the action in time?
The case must be brought within a year of violation (unless exceptional circumstances
apply and the court considers it equitable to extend time limits) s.7(5).
o The violation must have been committed within the jurisdiction of the United Kingdom. (art.1
ECHR).
Substantive Violation:
o If they have satisfied all the preliminary issues, or you are unsure whether they have done so,
should go on to discuss the merits of their claim.
,o State that there has been a prima facie breach of a Convention right and identify the relevant
events: eg “V has been arrested under the Act, which could be a breach of art. 5 ECHR.”
o Then go on to discuss the substantive issues around any of the relevant Articles eg how exactly
the actions violate the ECHR, and whether the public body has a valid derogation.
o There are certain key phrases to look for when discussing whether a violation has occurred and
whether the public authority has a valid derogation. For example, any derogations from art 5
ECHR must be “prescribed by law” and be “in pursuit of a legitimate aim” whilst any derogations
from art 8 must be “in accordance with the law”, “in pursuit of a legitimate aim” and “necessary
in a democratic society.”
o Prescribed by Law: (in accordance with the law)
The test for this is laid out in Sunday Times v UK. Should use this test when assessing
whether there has been a valid derogation:
i) is there a valid legal basis under which the violation is enabled? In Khan v UK
surveillance evidence could not be admitted because the police had no warrant.
ii) the legal basis must be accessible, which it will be if it has been published: any
statute will have been.
iii) the legal basis must also be clear and predictable. It will be clear and
predictable if an individual or their legal advisor can know in advance how and
when it will be applied, such that the individual can regulate their conduct
accordingly. (Malone v UK).
It must also not be possible to apply that law in an arbitrary manner, such as a
broad stop-and-search power without oversight. If this is possible then this will
be in and of itself a prima facie breach.
o In pursuit of a legitimate aim:
The legitimate aims will be listed in the article itself. For example:
Art 8(2): in the interests of national security, public safety or the economic well-
being of a country.
Art 8 and 10: the prevention of disorder or crime.
Art 8 and 10: the protection of health and morals.
Art 8: the protection of the rights of freedoms or others.
Art 10: the prevention or discourse of information received in confidence.
o Necessary in a democratic society:
There must be a ‘pressing social need’.
This was considered in Handyside v UK and Smith & Grady v UK.
It is a proportionality test which asks: is the interference in order to fulfil a social
need so pressing that it outweighs the public interest in upholding that freedom?
ie is it a proportionate way of pursuing the legitimate aim? It may be helpful to
ask whether they could have achieved the same result by less intrusive means.
o Did the public authorities choose methods which did not go further than
necessary.
State is allowed a ‘margin of appreciation’ in judging necessity (R v Handyside) this
means that where MS may legitimately reach different conclusions, the ECHR will
respect the judgement of a MS as to what the public interest requires.
BANK MELLAT TEST of proportionality.
Does the aim justify the interference?
Are the measures taken rationally connected to the statutory purpose? Ie is
there a rational connection between the aim and action.
Are the measures taken no more than necessary (what are potential less
interfering methods that could have occurred?) to meet the objective/fair
balance between the rights of the individual and the rights of the community?
o Derogations:
Under Article 15 of ECHR,
, Compatibility with the ECHR:
o If there has been a substantive violation of a Convention right, and that violation appears to be
enabled by UK legislation: can the UK legislation be read in a way that will be compatible with
the ECHR?
Article 2: Right to Life
The leading case on art.2 is McCann, Farrell & Savage v UK. It laid down two positive obligations for the
state:
o 1) to conduct an investigation into situations in which a public body has directly taken a life. This
investigation must be:
A) proper and effective; and
B) Full, open and transparent. Should be conducted in public, independent of the State
and involve, where possible, the participation of the deceased’s family.
o 2) a positive duty to refrain from unlawful killing. This duty has also been expressed as ‘the duty
of command, control and training’ ie ensuring that those who take life (such as police
marksmen) are highly trained and overseen at all times.
If the state has not followed these two obligations, then any killing is lawful (R v Osman)
Medical Law Cases:
o Evans v UK: Art.2 will not protect the destruction of embryos when one party removes their
consent to implantation.
o R (Pretty) v UK: Assisted suicide is not allowed as a matter of policy.
o Nicklinson v Ministry of Justice: A decision to end one’s life must follow a procedure capable of
reflecting the autonomy of the individual involved, otherwise Art. 2 may be engaged.
Article 3: Prohibition against tourtue and inhuman or degrading treatment
or punishment:
Article 3 is an absolute right: unqualified and permits no derogations.
Tyrer v UK, the punishment by birching in the Isle of Man was deemed to violate art. 3.
Article 5: Right to Liberty and Security (Brogan)
The overall purpose of Article 5 ECHR has been described as ensuring that no one is deprived of their
liberty in an arbitrary fashion.
No person can be deprived of their liberty except in cases of lawful arrest (art.5(1)(a-f) and in
accordance with a procedure prescribed by law (The Sunday Times criteria).
What is lawful arrest or detention?
o Johnson: when a mental patient was detained after recovery because of a lack of treatment
facilities, this was held to be an unlawful detention because the state was at fault by failing to
provide adequate facilities.
o A v SoS for the Home Department: Belmarsh case: the indefinite detention of terrorist suspects
had the potential to amount to a breach of Art 5.
o Control orders may amount to a deprivation of liberty:
An 18 hour curfew was held to be a breach of art. 5. (Guzzardi v Italy)
The individual was subject to ‘harsher conditions than a prisoner in an open prison’; this
was held there to be a breach of art 5 (RE JJ)
Article 5(1)-(5) outline the procedures necessary to ensure that an arrest is lawful:
o Breach (or reasonable suspicion of breach) of some known law.
o Art. 5(2) the detainee must be informed promptly and clearly of the reasons for an arrest – so
that they can challenge them. Full reasoning is not required when an individual is arrested,
provided it is given at a later stage.
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