When looking at an ECHR claim, it is important to first look as sections 6 and 7 of the Human Rights Act 1998. In these sections, it shines light on whether an ECHR claim is possible. In order to be able to bring a ECHR claim, a vehicle claim must be raised. This is where a Private law action is launched, which is usually Breach of Confidence or Misuse of Private Information.
Section 6 of the HRA identifies that all Public Authorities are subject to ECHR law, which specifically include the National Courts. This means that individuals may go before the court and rely on their convention rights, even if that right has been infringed by another private body or individual. Each claimant brings a claim on the assurance that the court protects their rights. However sometimes this is hard when the defendant also has convention rights to rely on. In which case, the courts must balance the rights accordingly.
Section 7 of the HRA identifies that the individual’s rights specifically must have actually been breached to rely on the HRA. They are able to rely on their ECHR rights in any court or tribunal in the UK, so long as they have a valid claim to make.
The case of Campbell identified the way the courts look into and analyze whether someone’s ECHR rights have been lawfully breached or not.
Step 1– Has the right be engaged?
This step looks at whether the right of the individual has actually been breached. Whether it be the Right to Assembly, the Right to Private Home and Family life ect, there must have been a specific article right that was breached in order to bring a claim. If It has not properly been engaged, then they will not have a claim. The Articles that have been breached must be identified, and can be found it Schedule 1 of the HRA.
Step 2– Separate the breaches
In this step the courts will identify each possible breach of the claim. For example, in the Campbell case, the judges separated the interference into different breaches including
- The Drug addiction itself
- The Image of her leaving DA
- Where she was going to DA for help
Therefore, we can see that within the main interference, there may be sub breaches which interfere more than others.
Step 3– Individual breach engaged
In each individual possible breach, it will then be discussed whether each of the rights have been engaged in regards to the individual articles from the HRA Schedule 1. Some interferences may be from different articles, or not breached at all
Step 4– Carry on
Even if it appears that the individual right has been engaged, for the purposes of an exam, carry on going with the process. Conclude if it was engaged, whether it was an unlawful breach.
Step 5– Absolute, Limited or Qualified right- Lustig-Prean.
If it was limited or Absolute, the exceptions which are located in each Article of the HRA will provide scope for interference. If none of them valid interferences, then the claim will be successful. These rights have a very high threshold of allowing interference with. They are usually ideas such as National Security. The case of Menezes shows that the threshold is high. This case concerned an innocent man being shot and killed on a London tube. This interference was allowed in the name of National Security, even though they had the wrong man.
If the Right is Qualified, 3 principles will be looked at to decide whether the interference was lawful:
- Whether the interference was prescribed by law? – which law permitted the interference of the right? This is usually another HRA right, such as Article 10 Freedom of Expression.
- Whether there was a legitimate Aim for the breach? This relates to subsection 2 of the engaged Article. It will have a list of aims that may allow a lawful interference of that right. One of these aims is to give rise to other individuals rights, which is where the conflict and balance of rights must be struck.
- Whether the interference was necessary in a democratic society? This looks at the case of Bank Millat, where it looks at the importance of each right, and whether the interference was proportionate.
Step 6- Proportionality
Applying the 3-part proportionality test of Baroness Hale from the case of MGN v UK. This looks at 3 criteria to decide whether the interference was lawful. If the interference was proportionate, the claim will be unsuccessful. However, if it was not proportionate, the claim will be successful.
- The importance of each right.
- Whether there was any less proportionate measure?
- Was the balance struck?
This test looks at whether there was a fair balance of HRA rights. If it was not balanced correctly, then there will be a successful claim.
In the case of Campbell, it was found that Campbell’s rights had been disproportionately interfered by the newspaper, by a 3:2 majority.
Step 7- Conclude
Clearly this is an area of law that the courts still exercise discretion on. There are still very different views on what is proportionate, therefore in any case it would be hard to decipher whether there would be a lawful interference or not. However, as the law grows and more and more case law is produced, the line of interference starts to become more clear.