CON & AD LAW: HRA PRELIMINARIES
STEP 1: Discuss the Preliminaries
If all four elements are satisfied, the C will be able to bring the claim
1) Does the petitioner have Standing? Is the C a victim? s7(1) & s7(7) HRA 1998
- s7(1) HRA 1998: a person who claims that a public authority has acted in a way which is made
unlawful by s6(1) may bring proceedings against the PA under the HRA – if a ‘VICTIM’
- s7(7) HRA: ‘Victim’ test under s7(1) is the same as under Art 34 ECHR ‘any person, non-
governmental organisation or group of individuals claiming to be a victim of a violation'
- Klass v Germany: Natural or legal person must be ‘directly affected’ by the potential violation
APPLY TO THE FACTS OF THE SCENARIO: STATE HOW HE HAS BEEN AFFECTED
- X (victim) will be allowed standing, as he will be seen as a victim for the purposes of Art 34
ECHR. s(7) HRA 1998 adopts the same definition as Art 34 of a victim and therefore the test
is the same so X will be able to make a claim under s7(1) HRA because he has been directly
affected by an interference with his rights (state the right) as required by Klass v Germany
- Not restricted to human beings, applicants can be ‘legal persons’ but can only bring an action
when they are claiming that their rights (as distinct legal persons) have been violated so an NGO
cannot bring a claim on behalf of people whose rights may have been violated by a contracting
state; The Sunday Times v UK
- The only exception as to when someone (close family members) can bring an action on behalf of
someone else is if they have died due to action/inaction of the state (Osman v UK)
2) Has the violation been committed by a Public Authority? s6(1) HRA 1998
s6(1) HRA 1998 ‘It is unlawful for 'public authorities' (including courts and tribunals) to act in a
way that is incompatible with ECHR rights’ Therefore the D has to be a public authority for s6(1)
HRA duty to apply
- Under s6(1) or s6(3)(b), depending on whether the PA is a core or hybrid, there is an obligation for
PA’s to act in accordance with convention rights
Core public bodies: s6(1) HRA
- s6(1) HRA: Core PA’s are bound by the ECHR and thus liable for all their actions if they do not act
compatibly with ECHR rights
- Rights Brought Home – White Paper (1997): Includes central government departments &
ministers; local authorities; the police; the Inland Revenue (now HMRC); immigration
officers; prison authorities; privatised utilities, NHS – any bodies of the state they are
intuitively known to be a core PA
- Aston Cantlow v Wallbank: Lord Nicholls gave some guidance on the factors which could be
relevant in determining whether a body is a core public authority the possession of special
powers; are democratically accountable; publically funded in whole or in part; have an
obligation to act only in the public interest; have a statutory constitution.
- The police is an inherently public body and is therefore seen as a ‘core public authority’, as outlined
in Rights Brought Home – it also fulfills the criteria set out in Aston Cantlow. Therefore it owes a
duty under s6(1) HRA 1998 to act compatibly with the ECHR in all its activities and will be acting
unlawfully if it does not do so.
Functional/Hybrid public authorities (s6(3)(b))
Functional PAs - can also be liable under s6(1) HRA if certain of their functions are of a public
nature s6(3)(b but only in relation to their public functions only. Cannot be held liable for functions of
a private nature under s6(5) HRA
STEP 1: Discuss the Preliminaries
If all four elements are satisfied, the C will be able to bring the claim
1) Does the petitioner have Standing? Is the C a victim? s7(1) & s7(7) HRA 1998
- s7(1) HRA 1998: a person who claims that a public authority has acted in a way which is made
unlawful by s6(1) may bring proceedings against the PA under the HRA – if a ‘VICTIM’
- s7(7) HRA: ‘Victim’ test under s7(1) is the same as under Art 34 ECHR ‘any person, non-
governmental organisation or group of individuals claiming to be a victim of a violation'
- Klass v Germany: Natural or legal person must be ‘directly affected’ by the potential violation
APPLY TO THE FACTS OF THE SCENARIO: STATE HOW HE HAS BEEN AFFECTED
- X (victim) will be allowed standing, as he will be seen as a victim for the purposes of Art 34
ECHR. s(7) HRA 1998 adopts the same definition as Art 34 of a victim and therefore the test
is the same so X will be able to make a claim under s7(1) HRA because he has been directly
affected by an interference with his rights (state the right) as required by Klass v Germany
- Not restricted to human beings, applicants can be ‘legal persons’ but can only bring an action
when they are claiming that their rights (as distinct legal persons) have been violated so an NGO
cannot bring a claim on behalf of people whose rights may have been violated by a contracting
state; The Sunday Times v UK
- The only exception as to when someone (close family members) can bring an action on behalf of
someone else is if they have died due to action/inaction of the state (Osman v UK)
2) Has the violation been committed by a Public Authority? s6(1) HRA 1998
s6(1) HRA 1998 ‘It is unlawful for 'public authorities' (including courts and tribunals) to act in a
way that is incompatible with ECHR rights’ Therefore the D has to be a public authority for s6(1)
HRA duty to apply
- Under s6(1) or s6(3)(b), depending on whether the PA is a core or hybrid, there is an obligation for
PA’s to act in accordance with convention rights
Core public bodies: s6(1) HRA
- s6(1) HRA: Core PA’s are bound by the ECHR and thus liable for all their actions if they do not act
compatibly with ECHR rights
- Rights Brought Home – White Paper (1997): Includes central government departments &
ministers; local authorities; the police; the Inland Revenue (now HMRC); immigration
officers; prison authorities; privatised utilities, NHS – any bodies of the state they are
intuitively known to be a core PA
- Aston Cantlow v Wallbank: Lord Nicholls gave some guidance on the factors which could be
relevant in determining whether a body is a core public authority the possession of special
powers; are democratically accountable; publically funded in whole or in part; have an
obligation to act only in the public interest; have a statutory constitution.
- The police is an inherently public body and is therefore seen as a ‘core public authority’, as outlined
in Rights Brought Home – it also fulfills the criteria set out in Aston Cantlow. Therefore it owes a
duty under s6(1) HRA 1998 to act compatibly with the ECHR in all its activities and will be acting
unlawfully if it does not do so.
Functional/Hybrid public authorities (s6(3)(b))
Functional PAs - can also be liable under s6(1) HRA if certain of their functions are of a public
nature s6(3)(b but only in relation to their public functions only. Cannot be held liable for functions of
a private nature under s6(5) HRA
