9.1.3 Human Rights Act 1998 Lecture - Hands on Examples
Working through practical examples is a very useful way of discovering whether you have understood the points of law that you are revising and are able to apply them in practical situations. You may need to refer back to the notes on the chapter on The Human Rights Act 1998. These exercises are aimed to help you understand the application of human rights principles in the courts as well as the need to balance competing human rights which are owed to different individuals. Suggested answers are available below.
Q1 - The government introduces Terror Suspects Act 2015. Section 12 of the Act introduces a scheme of Stay At Home Orders which mean that terror suspects prescribed as such by the Home Secretary must stay at home between the hours of 2pm and 12 noon, allowing them to leave the house only 2 hours a day. A consequence of this is that Kevin is unable to adhere to a custody arrangement with his 5 years old son to see him after school each evening between 4 and 6pm. Kevin has been prescribed as a suspected terrorist under the 2015 Act; he seeks to challenge to Act as incompatible with his convention rights under Article 5 and Article 8 European Convention on Human Rights. The Court of Appeal are required to rule on the compatibility of the 2015 Act with the Human Rights Act 1998, how is the Court of Appeal likely to rule? What steps might the government take after the Court of Appeals ruling?
Q2 – The Views of the World Newspaper wants to print a story about a famous boy band member’s (known as Tarquin) battle with alcoholism and drug addiction and his stay in a well-known treatment facility. They have published the story about the band member who has been attending Alcoholics Anonymous meetings including pictures of him leaving a local church where the meetings are being held. Tarquin to claim damages based on an Article 8 breach based upon the Views of the World publishing the story and the photographs. Explain the various human rights at stake within this scenario and how a UK court might go about deciding whether to protect the rights of the newspaper to print the story and the band member to prevent the story from being published.
A1: The Stay At Home Order imposed against Kevin is possibly incompatible with the Right to Liberty under Article 5 ECHR as well as Article 8 on his right to a private and family life. In AP v Secretary of State for the Home Department  3 WLR 51, the Supreme Court held that an Article 8 restriction was relevant consideration in determining whether a Control Order (introduced by the Terrorism Act 2005) breached Article 5, it was capable of being a decisive factor and capable tipping the balance.
In Secretary of State for the Home Department v JJ ( 1 AC 385) in relation to a Control Order which included a curfew of 18 hours other restrictions than mere confinement could tip the balance in deciding whether the restrictions, overall, deprived the controlee of his liberty. Although individual Control Orders could be struck down in these circumstances, it appears that Section 12 of Terror Suspect Act 2015 may be incompatible with Convention rights since the curfews always last for 22 hours.
The Court of Appeal may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. The most important effect of the declaration of compatibility is that it puts pressure on the government to change the law. Furthermore, section 10 of the Human Rights Act 1998 provides for a fast-track procedure to allow the amendment of legislation which is found to be incompatible with a Convention right. However, the government are not bound to amend the legislation; the most likely outcome of a section 4 declaration is amending legislation invoking the remedial order under section 10.
A2: Since the coming into force of the Human Rights Act 1998, citizens of the UK are now able to enforce the human rights outlined in the European Convention on Human Rights in a UK court. The relevant Articles that may be active in this scenario are Article 8 on the right to a private and family life, and Article 10 on the freedom to receive and impart information. These two rights are frequently found to be competing within the courts and a balancing act has had to be achieved between the two human rights. In Campbell v MGN  2 AC 457, the UK House of Lords had to consider the claimants right to privacy against the Mirror Group Newspaper’s freedom of expression. To require the balancing of Article 8 and Article 10 rights the House of Lords held that there must be a reasonable expectation that the information would be confidential. It appears in the current case that treatment from drug and alcohol addiction may be sensitive to Tarquin and so there appears to be a reasonable expectation that he would not want this information to be made public. If this is the case then the court must balance Tarquin’s interests in keeping the information private with the Views of the Worlds interests in publishing it.
In Campbell the House of Lords recognised that although there was a public interest in reporting that she had a problem with drug addiction and was receiving treatment for it but claimed breach of confidentiality and compensation under s.13 Data Protection Act 1998 for the publication of further details. This additional information contained the details and nature of the claimant’s treatment and additional information revealed in the photographs. The House of Lords found that this additional information was confidential as it would have led a person of normal sensibilities to be experience significant discomfort if it was to be revealed. Thus in Tarquin’s case it is necessary to distinguish the information that is considered to be in the public interest, which may be the fact that he is experiencing problems with alcohol and drug dependency, but that the nature of his treatment (i.e. the attendance at an AA meeting) and information on the photographs which contained the location of that meeting is likely to be a breach of his Article 8 rights to privacy which would outweigh any public benefit that could be achieved through the Views of the World publishing his photos and enjoying a right to Freedom of Expression under Article 10 ECHR.
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