HR: Preliminaries
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1.
1. Does the applicant have standing?: Victim - Article 34
ECHR, s7(1) HRA 1998
12.
'directly affected' by actual or potential breach Klass v
Germany - which articles are engaged? State it.
This test is incorporated into UK law in article 7(7) of HRA 1998
and under Article 7(1) which means X will be able to bring a
claim in domestic law.
2.
Housing association was so enmeshed with LA that it was held
to be a functional public authority.
13.
2. Has the potential violation been committed by a PUBLIC
AUTHORITY?
Is it a core or hybrid public authority?: Core - S.6(1) Human
Rights Act 1998 and Rights Brought Home: they are subject to
the s6(1) duty imposed by HRA 1998 to act in accordance with
ECHR when carrying out its duties.
14.
4.
3. Time - how long to bring an action?: Section 7(5) of the
Human Rights Act tells us that a potential claimant has 1 year
to bring a claim. As XXX was XXXX in XXX he would have to
bring his claim within the next XXX. The courts can extend this
7(5)(a) if equitable to do so 7(5)(b).
s7(5) Human Rights Act 1998
5.
4. Was it committed in jurisdiction?: Article 1 European
Convention on Human Rights imposes an obligation to protect
individual rights to all within a member state's jurisdiction,
therefore X can bring a claim
6.
UK jurisdiction includes: Article 1 ECHR.
Al-Skeini this applies to embassies, military bases and
occupied territories
7.
Derogations: Article 15
8.
Which rights are absolute?: Article 3: Freedom from torture and
inhuman or degrading treatment
9.
Which rights are limited/narrow?: Article 2: Right to life
Article 5: Right to liberty and security
Article 6: Right to a fair trial
10.
It is unlawful for a public authority to act in a way which is
incompatible with ECHR rights: s.6(1) HRA
11.
Statutory defence: s.6(2) HRA
Provision of care for elderly in private care home: YL v
Birmingham City Council - not PA s.6(3)(b)
Was a strictly commercial enterprise, did not meet AC criteria.
Would have been different if they had been exercising
statutory powers.
Aston Cantlow hybrid criteria: HYBRID: S6(3)(b) obliged to
uphold convention rights when exercising public functions,
Aston Cantlow:
- possession of special powers;
- democratic accountability;
- public funding whole/partial;
- obligation to act in public interest;
- statutory constitution
Services provided by the care home were not enmeshed,
nor were the managers of the care home exercising
statutory powers: Heather v Leonard Cheshire - s.6(3)(b)
NOT a functional public authority - were not taking the place
of a central government or public service
Hybrid - Aston Cantlow
3.
Functional/hybrid public authorities: POPLAR HOUSING WAS a functional PB under s.6(3)(b)
Hale and Bingham dissented, arguing P must have intended
s.6(3)(b) to cover this as YL was providing a service which had
a public nature,
15.
If the functions being performed are of a public at the
relevant TIME then can be held liable under s.6(1): Weaver v
Quadrant Housing Trust
D housing association was a registered social landlord, was
liable under Article 8 for terminating claimants tenancy.
16.
just and appropriate remedy: s.8(1) HRA