ECHR Application

The UK Supreme Court is not bound to follow the Court of Human Rights decisions. It is obliged by the Human Rights Act to take them into account. It may choose not to do so if impractical, inappropriate, or it affects the ability of the court to engage in a constructive dialogue with the European Court of Human Rights on the terms of developing the law generally and internationally.

Courts, in interpreting legislation, primary or secondary, should interpret it and apply it in a manner consistent with the rights and principles protected in the Human Rights Act. This principle does not affect the validity of any legislation, primary or subordinate. This applies both to legislation as such and also to the exercise of the royal prerogative by way of orders in Council.

Where a court determines that a piece of primary or secondary legislation is incompatible with one or more Convention rights, it may make a declaration of incompatibility. This may be done by the Higher Courts in England, Scotland, Northern Ireland, and Wales.

The declaration of incompatibility does not affect the validity, continuing operation, or enforcement of the legislation in question. It is not binding on the parties to the proceeding. However, the court may grant a remedy where there is a violation of the rights. Parliament may be expected to take action to amend the incompatible legislation.

Courts have adopted the long-standing European concept of proportionality and necessity. The principles are self-derived in legal systems. The principle provides that legislation should be assumed to do no more than necessary for achieving its purpose or objective.

The Convention rights are typically framed in terms of an absolute right, but potential limiting factors or restrictions justified in the courts of law and necessary in a democratic society to achieve objectives of public health, security, safety, etc.

The legislation is made by legislatures, but courts may determine whether it is proportionate. Under the Convention, courts may consider whether it is necessary and proportionate. The principle has origins in domestic common law. In particular, the core concepts of unreasonableness in the context of administrative action are a broadly similar notion.

Courts have reviewed legislation in terms of proportionality in its objective. Where the courts have found that derogation from Article 5 for certain provisions allowing indefinite detention under the Antiterrorism and Security Act 2001 was disproportionate as it was not necessary.

In other cases, the Supreme Court found that the imposition of actions against a particular bank, Romanian Bank, was disproportionate with reference to the quality of rating around the nuclear program.

Courts are to interpret legislation in a way that is compatible with the events and rights insofar as it is possible to do so. The duty does not go so far as finding an artificial interpretation that it is not framed in a meaning it may not properly bear.

The Act is not retrospective. It does not apply to conduct occurring before commencement. The Act could not free earlier law by changing earlier substantive law or introducing earlier rights that did not exist in common law.

Courts may not rewrite the law or reinterpret law under the guise of interpretation. The Act provides that common law should be developed in a manner consistent with the Convention rights in principle. This is best illustrated in the context of the right to privacy, which did not exist in such common law. Which is in a very embryonic sense in common law was developed significantly in the setting of the Convention right to privacy.

Ministers, being current with an action which the Human Rights Act is pleaded entitled to appear before the court, unless in relation to matters, the objectives, and purpose of the legislation and other relevant matters.

The Crown or department should be joint where a declaration of compatibility may arise.

Courts employ a principle of deference in view of legislation in relation to declarations of compatibility. They recognize that Parliament in the case of primary legislation and the government and other equivalent bodies in the case of secondary legislation are competent to adjudicate on the matters, are elected democratically to determine the balance, of rights and obligation, in particular, striking a balance between the interest, competing interests. This is equivalent to the European court concept of margin of appreciation. Also relating to the separation of powers, by which it does not unduly interfere in the sphere of another organ of another body, the legislature or executive.

An individual may make an application if he or she is or would be a victim of an unlawful act. Proceedings may be brought against the relevant public authority.

The person must have sufficient interest or standing in the matter concerned. This requires that he be a victim or potential victim or certain other closely affected parties.

Interested groups, which may be allowed to take actions in relation to judicial reviews, are not victims for the purpose, bodies having expertise or a concern or interest. They may, however, be made entitled to make, permitted to allow, allowed to make submissions to the courts on matter on which they are expert by submission of written briefs but not as a full party.

Proceedings must be brought within a year of the act concerned. The limit may be extended if it is equitable having regard to any other time limits applicable.

The Convention requires that every person shall have an effective remedy before a National Authority, but this is not being specifically incorporated in the Human Right Acts. Section 8 provides that courts which find a public authority has acted unlawfully may grant such remedy, relief, or other order within its jurisdiction as it considers just or appropriate.

Damages may be awarded by a court which has power to award damages or order compensation in civil proceedings. Damages may only be awarded if in the circumstances of the case and having regard to other remedies available, the court is satisfied that it is necessary to give just satisfaction to the person affected.

The court is to take account of the principles of the European court in the award of compensation. In many cases, a declaration of incompatibility will suffice.

Declarations, injunctions, and orders of the type available in judicial review are available to courts which have power to grant them.

The Human Rights Act provides for declarations to be made in Parliament that the legislation is compatible with the Convention. A Minister, piloting a bill to a Parliament must before the second reading, make a statement as to whether the bill complies with the Convention rights.

Where a higher court makes a declaration of incompatibility, the relevant Minister has the power to make remedial legislation by order in Council subject to approval by both Houses of Parliament.

Under the standard procedure, a draft is laid before a Parliament for 60 days before approval by resolution. The Minister must provide information explaining the incompatibility which the proposed order seeks to remediate, particulars of the court declaration, statement of reasons for proceeding, using this provision.

Representations may be made by any person. Draft must summarize representations made and any changes arising in consequence.

If the Minister considers there are compelling reasons, he may amend the legislation as necessary to remove incompatibility by statutory instrument. This applies to both primary and secondary legislation.