Key Concepts

September 2000

83.3 Public authorities

The term is not exhaustively defined in the Act, though it includes two broad categories:

  1. Persons whose functions include public functions. Obvious public authorities are therefore a Minister, a Government Department or agency, local authorities, health authorities and trusts, the Armed Forces and the police. However, the House of Commons and the House of Lords (except when acting in its judicial capacity) are, specifically, not "public authorities".

Less obvious "public authorities" include persons or organisations which carry out some functions of a public nature, as well as others not of a public nature. They will be considered a public authority in relation to their public functions. For example, doctors are public authorities in relation to their NHS functions, but not when dealing with private patients.

  1. Courts and tribunals.

Notes: [s6(3)]

83.4 Victim

Proceedings can only be brought under the Act where there is a victim who has been (or would be) actually and directly affected by the act or omission that is the subject of the complaint. The concept of a victim in the Act derives from Article 34 of the Convention which states that the European Court of Human Rights in Strasbourg may receive applications from "any person, non-governmental organisation or group of individuals claiming to be the victim of a violation". A company will be able to bring proceedings in relation to certain rights under the Act such as Article 1 of the First Protocol which defines the right to protection of property as one which applies to "every natural or legal" person. It will not be possible for representative organisations such as Help the Aged or Amnesty International to do so, because they are not themselves victims. That will not, however, prevent them from supporting the claim of an individual victim.

Notes: [s7]

83.5 Hierarchy of rights

The Convention rights fall into three categories, which may be qualified to a greater or lesser extent.

  1. Absolute rights, such as the prohibition of torture in Article 3. There can be no circumstances in which torture of inhuman or degrading treatment can be excused or justified.

  2. Rights subject to specific limitations, such as the right to liberty in Article 5. There are explicit circumstances, which are defined in the Convention itself, which provide exceptions to the general right.

  3. Qualified rights, such as the right to respect for private life under Article 8. Interference with such rights is allowed subject to various specific qualifications; that any restriction must have its basis in law, be necessary in a democratic society and be related to a permissible aim set out in the relevant Article.

Notes: [Schedule 1]

83.6 The rule of law

Some qualified or limited rights may be subject to a degree of interference that is in accordance with the law, one example is Article 8. That means that no interference with that Convention right is permitted unless the basis for interference is set out in an ascertainable law. It does not matter how desirable the outcome or how justified the interference might appear, unless it is prescribed by law, it will be a violation of the Convention right.

83.7 Legitimate aims

To be justified under any of the Articles of the Convention which provide some qualification, any interference with a Convention right by a public authority must be for the achievement of a legitimate aim. Aims which are cited in the Act as legitimate in relation to a number of rights (such as Articles 8, 9 and 10) include the interests of public safety, national security, the protection of health and morals, the prevention of disorder or crime, the economic well-being of the country or the protection of the rights and freedoms of others.

83.8 Proportionality

This is a crucial concept when assessing whether a Convention right which is qualified has been violated. It means that any interference with a right must be proportionate to an intended objective. So that, even if a particular policy or action which interferes with a Convention right is in pursuance of a legitimate aim (e.g. the prevention of a crime), the interference will not be justified if the means used to achieve it go beyond those which are necessary to achieve that aim.

83.9 Margin of appreciation

The "margin of appreciation" is a doctrine developed by the Court in Strasbourg. It relates to its supervision of each State’s application of the Convention. Because social conditions vary, State by State, it is reluctant to substitute its own views of the merits of a case for those of the national authorities. This means that, provided a State acts reasonably, it is allowed a certain freedom in relation to some Convention rights, known as the margin of appreciation. Though the doctrine has no direct relevance to the way in which UK Courts will operate under the Act, it is likely that they will adopt a similar doctrine, i.e. they may allow a margin of discretion to public authorities, recognising that public authorities are sometimes best placed to judge proportionality when interfering with a Convention right.

83.10 Higher courts

For the purposes of making a declaration of incompatibility under the Act, the courts that may do so are the High Court, the Court of Appeal, the House of Lords, the Judicial Committee of the Privy Council, the Courts-Martial, the High Court of Justiciary and the Court of Sessions. The last two courts are in Scotland.


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