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( 155 .)


Professor Sandra Fredman has written of this case that it shows how in a
human rights framework positive duties play a ˜pivotal role™. ˜The House of
Lords in Limbuela,™ she adds, ˜has articulated a basic value of our unwritten
constitution, namely that the state is responsible for preventing destitu-
tion which arises as a consequence of the statutory regime™ (see Fredman,
˜Human rights transformed: positive duties and positive rights™ [2006] PL 498,
That there are limits, however, to the extent to which the courts will rule that
Convention rights impose positive obligations on the state is illustrated by the
tragic case of N v Secretary of State for the Home Department [2005] UKHL 31,
[2005] 2 AC 296. N, born in Uganda, sought asylum in the United Kingdom.
Her claim was refused and the Secretary of State proposed to deport her. She
su¬ered from advanced HIV/AIDS. With medical treatment her condition had
stabilised such that, if the treatment continued, she could live for decades.
Without continuing treatment (principally medication), however, her progno-
sis was ˜appalling™: as Lord Nicholls reported it (at [3]), ˜she will su¬er ill-health,
discomfort, pain and death within a year or two™. As Lord Nicholls went on to
say (at [4]), ˜The cruel reality is that if [N] returns to Uganda her ability to
750 British Government and the Constitution

obtain the necessary medication is problematic. So if she returns to Uganda
and cannot obtain the medical assistance she needs to keep her illness under
control, her condition will be similar to having a life-support machine switched
o¬.™ She argued that, in these circumstances, deporting her to Uganda would
be incompatible with her rights under Article 3. The House of Lords unani-
mously rejected this argument. Lord Nicholls ruled (at [15]“[17]) that ˜Article
3 does not require contracting states to undertake the obligation of providing
aliens inde¬nitely with medical treatment lacking in their home countries . . .
Article 3 cannot be interpreted as requiring contracting states to admit and treat
AIDS su¬erers from all over the world for the rest of their lives.™ Were this an
exceptional case, he suggested, ˜the pressing humanitarian considerations of her
case would prevail™ (at [9]) but, alas, it was far from exceptional, the prevalence
of AIDS worldwide, and particularly in southern Africa, being ˜a present-day
human tragedy on an immense scale™ (at [9]).

(iii) Scope of protection
As we have seen, section 6(1) of the HRA provides that ˜It is unlawful for a
public authority to act in a way which is incompatible with a Convention right™.
Section 6(1) does not apply (s 6(2)(a)) if the public authority was compelled to
act as it did as a result of primary legislation or (s 6(2)(b)) if it acted so as to give
e¬ect to such legislation, notwithstanding its incompatibility with Convention
rights. As we saw in chapter 2, incompatible primary legislation does not cease
to be valid (ss 3(2)(c) and 4(6)).
The Act does not de¬ne a public authority or provide a list of persons or
bodies that have this status. Rather it is left to the courts to determine whether
any particular person or body quali¬es as a public authority. It is plain that, for
instance, ministers, government departments, local authorities, the Director of
Public Prosecutions, the security services, and police, prison and immigration
o¬cers and such like are public authorities for the purposes of the Act and gov-
ernmental bodies or these kinds have been characterised by writers and the
courts as ˜standard™ or ˜core™ public authorities. In Aston Cantlow Parochial
Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, Lord Nicholls
said that behind the ˜instinctive classi¬cation™ of such organisations ˜as bodies
whose nature is governmental lie factors such as the possession of special
powers, democratic accountability, public funding in whole or in part, an
obligation to act only in the public interest, and a statutory constitution™ (at [7],
acknowledging the valuable article by Dawn Oliver, ˜The frontiers of the state:
public authorities and public functions under the Human Rights Act™ [2000]
PL 476). A body of this class, added Lord Nicholls, ˜is required to act compat-
ibly with Convention rights in everything it does™. Such a body is not itself
capable of having Convention rights or of being the ˜victim™ of the breach of
such a right.
Besides the core public authorities, other bodies are brought within the reach
of section 6(1) by section 6(3):
751 Liberty and the constitution

In this section ˜public authority™ includes:

(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connec-
tion with proceedings in Parliament.

Then it is provided in section 6(5):

In relation to a particular act, a person is not a public authority by virtue only of subsection
3(b) if the nature of the act is private.

Section 6(3)(b) and (5) were elucidated, in the course of proceedings on the
Human Rights Bill, with the example of Railtrack (since dissolved), which had
statutory public powers and functioned as a safety regulatory authority, but
might also carry out private transactions, for instance in the acquisition or
development of property (HL Deb vol 583, col 796, 24 November 1997). Some
of the functions of such ˜hybrid™ or ˜functional™ public authorities are of a public
nature but they may also engage in private activity and to that extent will fall
outside section 6(1). Being non-governmental organisations they may, on the
other hand, themselves enjoy Convention rights (see Article 34 of the European
Convention on Human Rights and section 7(1), (7) of the HRA).
The question whether a body is a hybrid public authority in that certain of
its functions are ˜of a public nature™ (s 6(3)(b)) is one of ˜fact and degree™ and
the expression ˜public function™ is to be given a generous interpretation (Poplar
Housing and Regeneration Community Association Ltd v Donoghue [2001]
EWCA Civ 595, [2002] QB 48, [65]“[66]; Aston Cantlow Parochial Church
Council v Wallbank, above, at [11], [41]). ˜Factors to be taken into account™, said
Lord Nicholls in the latter case (at [12]), ˜include the extent to which in carry-
ing out the relevant function the body is publicly funded, or is exercising statu-
tory powers, or is taking the place of central government or local authorities, or
is providing a public service™. The amenability of a body to judicial review
(a question considered in chapter 10) may be a relevant factor but is not deci-
sive. (For a critical analysis of the principles and their application in decided
cases see the Joint Committee on Human Rights, Seventh Report, HL 39/HC 382
of 2003“04, concluding that courts have been too restrictive in deciding
whether a function is ˜public™ in terms of section 6(3)(b), so opening a gap in
the protection of Convention rights. See further Oliver, ˜Functions of a public
nature under the Human Rights Act™ [2004] PL 329; Sunkin, ˜Pushing forward
the frontiers of human rights protection™ [2004] PL 643.)
While neither House of the United Kingdom Parliament is a public authority
for the purposes of section 6 of the HRA (see s 6(3)), the Scottish Parliament and
the Scottish Executive have no power to act incompatibly with the Convention
752 British Government and the Constitution

rights (Scotland Act 1998, ss 29(2)(d) and 57(2)). The devolved institutions in
Wales and Northern Ireland are likewise core public authorities.
Section 7 of the Human Rights Act provides the avenues of redress for
persons who claim that their Convention rights have been infringed by a public

7(1) A person who claims that a public authority has acted (or proposes to act) in a way
which is made unlawful by section 6(1) may:

(a) bring proceedings against the authority under this Act in the appropriate court or tri-
bunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he
is (or would be) a victim of the unlawful act.

The concept of a ˜victim™ is adopted from the European Convention (Article 34)
and its jurisprudence: a person is a victim of an unlawful act for the purposes
of section 7 only if he or she would have standing to bring proceedings in the
European Court of Human Rights as a victim of an alleged violation of the
Convention (s 7(7)). While a non-governmental organisation or a group or
association of individuals may qualify as a victim, this will be so only if its own
rights have been infringed by the unlawful act and it is not acting in the inter-
est of its members or others who may be a¬ected “ unless persons whose rights
have been infringed have speci¬cally authorised it to act as their representative.
A victim need not have su¬ered actual detriment: a person who is a ˜poten-
tial™ victim as being at particular risk of a violation of his or her Convention right
may have standing. For instance, a pupil at a school which practised corporal
punishment could be a victim of inhuman treatment contrary to Article 3 of the
Convention even though he had not as yet himself been punished in this way.
(See Campbell and Cosans v United Kingdom (1982) 4 EHRR 293.)
In reliance on section 7 the victim of an alleged violation of a Convention
right may, according to the circumstances, bring civil proceedings, or a claim
for judicial review, or raise the question of violation by way of defence to civil or
criminal proceedings brought by a public authority. It is provided by section 8
that a court or tribunal which ¬nds the act of a public authority to be unlawful
under section 6(1) may grant whatever relief or remedy within its powers that
it considers ˜just and appropriate™, and in particular may award damages if
satis¬ed that that is necessary, in all the circumstances of the case (including any
other relief or remedy granted) ˜to a¬ord just satisfaction™ to the victim. In
deciding on damages the court must take into account the principles applied by
the European Court of Human Rights in awarding compensation. It has been
remarked that while remedies other than damages are fully available under the
Act, ˜damages are conceived of only as a subsidiary form of redress™ (S Grosz,
J Beatson and P Du¬y, Human Rights (2000), para 6“19). The principles to be
applied in the award of damages under section 8 are considered by Lord Millett
753 Liberty and the constitution

in Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39,
[2003] 1 WLR 1763 at [75]“[84] and, in relation to a violation of Article 6 (right
to a fair trial), by Lord Bingham in R (Green¬eld) v Secretary of State for the
Home Department [2005] UKHL 14, [2005] 1 WLR 673 at [7]“[19]. See further
Law Commission No 266, Damages under the Human Rights Act 1998 (Cm
4853/2000) and Clayton [2005] PL 429.
The remedy for a party whose Convention rights are prejudiced in conse-
quence of the decision of a court is by way of an appeal against the decision or,
where appropriate, by a claim for judicial review (s 9(1)). In the particular event
that the judicial act of a court or tribunal breaches the Convention right to
liberty and security of person (Article 5 of the Convention), the victim of a
resulting unlawful arrest or detention may recover damages from the Crown
(s 9(3), (4)).
Section 11 of the Act provides that a person™s reliance on a Convention right
is not to restrict any other right or freedom that he may have under UK law.

Horizontal effect?
It is expressly provided that courts and tribunals are public authorities for the
purposes of the Human Rights Act (s 6(3)(a)). Accordingly a court cannot
lawfully give a judgment or make any order which is incompatible with
Convention rights. It might seem to follow that the courts must, in any legal
proceedings, protect the Convention rights of an individual party to the
proceedings from infringement, whether by the action of a public authority or
by that of a private person. In this respect the Convention rights would have
a horizontal e¬ectiveness in proceedings between private persons as well as
being vertically e¬ective against public authorities. The argument for hori-
zontal e¬ect also ¬nds some support in the interpretative obligation, placed on
the courts by section 3 of the Act, which is applicable to all legislation, even in
cases involving private persons only (as in Ghaidan v Godin-Mendoza [2004]
UKHL 30, [2004] 2 AC 557, chapter 2).
The question of horizontality is strongly contested. See in particular Wade,
˜Human rights and the judiciary™ [1998] EHRLR 520; Hunt, ˜The “horizontal
e¬ect” of the Human Rights Act™ [1998] PL 423; Buxton, ˜The Human Rights
Act and private law™ (2000) 116 LQR 48; Wade, ˜Horizons of horizontality™
(2000) 116 LQR 217; Bamforth, ˜The true “horizontal e¬ect” of the Human
Rights Act 1998™ (2001) 117 LQR 34.
The question was considered by the Court of Appeal in the initial (inter-
locutory) proceedings in Douglas v Hello! Ltd [2001] QB 967 in relation to
the rights to respect for private life (Article 8) and freedom of expression
(Article 10). Brooke LJ noted that while Article 8(1) appeared on its face to
create a free-standing (horizontally e¬ective) right, Article 8(2) and the general
purport of the Human Rights Act seemed to contemplate that the right should
be enforceable only against a public authority. This dilemma, he thought, might
be resolved by taking account of the positive duty placed by the Convention
754 British Government and the Constitution

upon the contracting states to secure the Convention rights. This duty, founded
on Article 1 of the Convention and reinforced by decisions of the European
Court of Human Rights which our courts are obliged by section 2 of the HRA
to take into account, might be thought to inhere not only in the legislature but
in the courts themselves, when developing the common law. In this way, it
might be concluded, the Convention rights are to be integrated with common
law principles as these are developed by the courts. As regards freedom of
expression, in particular, Sedley LJ found that its ˜horizontal™ applicability
between private parties to litigation was con¬rmed by section 12 of the HRA,
which is expressed as being applicable to any litigation in which relief is sought
that might a¬ect the exercise of this Convention right, and gives guidance (in
section 12(4)) as to how con¬‚icts between freedom of expression and privacy
are to be resolved. (See on this case Moreham (2001) 64 MLR 767.)
In Venables v News Group Newspapers Ltd [2001] Fam 430, Dame Elizabeth
Butler-Sloss P expressed the view (at [25]“[27], [111]), that while the courts
have a positive obligation to protect the Convention rights of the individual, and
must apply the Convention principles to existing causes of action in private law
cases, that obligation ˜does not . . . encompass the creation of a free-standing
cause of action based directly upon the articles of the Convention™. This view is
compelling and the courts have given an indirect e¬ect to Convention rights in
disputes between individuals only by ˜absorbing™ such rights into already
existing causes of action. (See in this connection A v B plc [2002] EWCA Civ 337,
[2003] QB 195, [4]; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457,
[17]“[18], [50], [132]; note also the comment of Lord Nicholls in Kay v Lambeth
LBC [2006] UKHL 10, [2006] 2 AC 465, [61].) In particular, the action for
breach of con¬dence has been developed by the courts in such a way as to give
e¬ect to the Convention rights to personal privacy (Article 8) and freedom of
expression (Article 10) (each of them having to be balanced against the other).
The development was analysed and con¬rmed by the Court of Appeal in subse-
quent proceedings in Douglas v Hello! Ltd [2005] EWCA Civ 595, [2006] QB 125,

(b) Convention rights and national security: a case study
Probably the greatest single challenge that the new regime of Convention rights
has had to face thus far is that posed by the threat of terrorism and national and
international security. The terrorist outrages of 11 September 2001, universally
referred to as ˜9/11™, in the United States and the wars and the accumulation of
˜emergency powers™ that have followed have generated a substantial volume of
both legislation and case law in numerous jurisdictions, the United Kingdom
included. The British Government™s principal response to 9/11 was to introduce
the legislation that (very quickly) became the Anti-terrorism, Crime and
Security Act 2001. Bearing in mind that the United Kingdom already possessed
one of the most comprehensive counter-terrorism statutes in Europe (the
755 Liberty and the constitution

Terrorism Act 2000, weighing in at 131 sections and 16 Schedules “ a total of 155
pages), the 2001 Act, with its 129 sections and eight Schedules (coming to 118
pages) was a signi¬cant addition, to say the least. But it is not only a question of
quantity. The range of powers contained in the 2001 Act is extraordinary: it
includes provisions on terrorist property and freezing orders, on disclosure of
information, on racial hatred and religiously aggravated o¬ences, on weapons of
mass destruction, on the security of pathogens and toxins, on security in the
nuclear and aviation industries, on police powers of ¬ngerprinting, personal
search and seizure, on the retention of communications data, on bribery and
corruption, and on the implementation of measures adopted under the third


. 138
( 155 .)