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Human Rights Notes

BPTC Law Notes > Judicial Review Notes

This is an extract of our Human Rights document, which we sell as part of our Judicial Review Notes collection written by the top tier of City Law School students.

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HUMAN RIGHTS OVERVIEW................................................................................................................................................... 2 Rights: examples........................................................................................................................ 2 Absolute Rights....................................................................................................................... 2 Limited Rights......................................................................................................................... 2 Qualified Rights...................................................................................................................... 3 Rights contingent upon others - Art 14 (Prohibition of Discrimination).............................................5 RELEVANT PROVISIONS OF THE HRA......................................................................................................6 The "horizontal and vertical effect" of the HRA.............................................................................6 S7: "Victim" and the ambit of the HRA........................................................................................... 7 S6(1) Public authorities Acting compatibly...................................................................................... 8 S3: Courts' powers and duties...................................................................................................... 8 Declarations of incompatibility................................................................................................... 8 S2 - following ECHR Jurisprudence.............................................................................................. 9 EUROPEAN DOCTRINES.......................................................................................................................... 10 Margin of Appreciation.............................................................................................................. 10 Balance.................................................................................................................................. 10 Proportionality.......................................................................................................................... 10 Proportionality - UK Courts' interpretation................................................................................. 10 Further Interpretation............................................................................................................. 10 The Fourth Stage.................................................................................................................. 11 QUALIFIED RIGHTS: THE PROCESS.......................................................................................................12 No Interference........................................................................................................................ 12 Justification............................................................................................................................. 12 Human Rights v JR - A Difference Of Approach............................................................................ 13 Application........................................................................................................................... 13 Where the legislative scheme provides sufficient justification..........................................................14 ECtHR v domestic Courts.......................................................................................................... 14 What happened next................................................................................................................. 15 Exception: Immigration Cases................................................................................................. 16 Exception: Where there is no fair "legislative scheme"................................................................16 ARTICLE 6 AND JUDICIAL REVIEW......................................................................................................... 17 Approach of the ECHR.............................................................................................................. 18 Where the "first tier" decision-maker should look at the facts...........................................................19 Where Judicial Review may not be sufficient................................................................................ 20 Where the ECHR requires a full "merits review"............................................................................21

1 HUMAN RIGHTS OVERVIEW This is t look at JR in a HR context. This is done by:Reminding what the rights are under the ECHRTo look at the operation of HRA in outline To remind of the impact of the convention as incorporated through the HRAVictimsThe approach of the Admin Court to cases involving Human Rights:Expectations of public authoritiesJudicial Review and its compatibility with Article 6

Rights: examples Absolute Rights Eg Right to Life and Prohibition of Torture, inhuman/degrading treatment (Arts 2 and 3) ARTICLE 2:

Right to life

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.

ARTICLE 3:

Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Limited Rights The rights have in them in built limitations or exceptions In Prison - categorisation and allocation cases, Art 5 doesn't apply - as lawful detention is an exception Eg Article 5: Right to Liberty and Security ARTICLE 5:

Right to liberty and security 2

HUMAN RIGHTS

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Qualified Rights These rights falls into two (2) parts: i.

Interference with the right; and

ii. Justification - it is permissible to interfere with that right if the justification is shown. The Court will look at the justification and carry out a balancing exercise

It operates like an inbuilt proportionality test 3

HUMAN RIGHTS Eg: Art 8 - Respect for Private & Family Life Art 9 - Freedom of Thought, Conscience and Religion Art 10 - Freedom of Expression ARTICLE 8:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 9:

Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 10:

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Rights contingent upon others - Art 14 (Prohibition of Discrimination) This right has to be linked to another right, commonly Art 8 (the respect for private and family life) 4

HUMAN RIGHTS ARTICLE 14:

Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

5 HUMAN RIGHTS RELEVANT PROVISIONS OF THE HRAS6: Public Authorities must act compatibly with relevant convention rightsS3: Courts and tribunals must interpret legislation in accordance with relevant principles of the conventionS2: Courts must have regard to ECHR jurisprudence The Strasbourg jurisprudence is not binding, it is treated more like a guidance on the Supreme Court and the lower Courts in UK.S7: "Victims" may bring a challenge Slightly different terminology than terminology of standing in JR

The "horizontal and vertical effect" of the HRA These concepts rarely come up in JR as the party will always be going against a public authority. That is known as a "Vertical" effect of the HRA. A challenge which is either to administrative decision maker; public authority; to a piece of legislation; or against a Court."VerticalIndividual v Administrative decision-makerIndividual v StatureIndividual v Court

Whereas the "Horizontal" effect of HRA would mean that either the Court is expected to apply HR jurisprudence or because indeed, that UK as a state may have a proactive duty to promote HR. Thus, a claim may be brought by one individual to another. This is as of yet not recognized by the UK Courts. Its relevance to JR proceedings would really only be where one wanted to take a JR style claim against an unincorporated association or a Housing Cooperative where public law type arguments may apply but it is difficult to show that they are a public body."Horizontal""Individual v Individual?

The horizontal effect There are two (2) main cases on the Horizontal Effect:Douglas v Hello! Ltd [2001] QB 967 LJ Sedley saw that horizontal effect could be developed because: i.

The positive obligations of the State to promote HR; and 6

HUMAN RIGHTS ii.The obligation of the Courts itself to give effect to HRA.

Wainwright v Home Office [2004] 2 AC 406 The matter of horizontal effect was not taken any further in this case.

S7: "Victim" and the ambit of the HRA A more direct applicability to JR proceedings is the concept of "Victim" in s7. Two interesting cases involving the war in Iraq, R (Al-Skeini and ors) v Secretary of State for Defence [2007] UKHL 27; and R (Al Sadoon) v Secretary of State for Defence [2008] EWCA 1528, has caused the government some anxiety. In R (Al-Skeini and ors) v Secretary of State for Defence [2007] UKHL 27, a challenge was brought by families of people who has been said to be unlawfully killed by UK soldiers in Iraq. The question was - Could families based in Iraq be "Victims" and fall within the ambit of HRA because the British Army was based in Iraq. The Court made a distinction with Ms Case, where in M, the death happened in the detention unit and HL said that that could be held to fall within the auspices of the convention because Ms son had met his death within UKs jurisdiction. In other instances where the deaths happened in Iraq but not within the British compound, they were said to fall outside the convention jurisdiction because it couldn't be said that the UK had the sort of control over Bazra, the sort of governmental control, which would have allowed it to discharge its obligations including positive obligations of a State which has contracted to apply the Convention.HRA applies to public authorities within the boundaries of the UKExceptionally, may apply outside UK boundaries where the act performed falls "within the jurisdiction" of the UK"Within UK jurisdiction" could include: a. Where the state is exercising some or all of the powers normally exercised by the government of the relevant authority; b. Cases involving activities of diplomats abroad In Al-Skeini, the UK government, although there was no real government at that time in Iraq, was not held to be responsible to implement convention rights within parts of Iraq which did not fall within British compound.

The question in R (Al Sadoon) v Secretary of State for Defence [2008] EWCA 1528 was whether or not the decision of the Secretary of State to transfer two (2) Iraqis who had been charged with the murder of British soldiers, from British detention to the Iraqi High Commission, knowing that if they did so, they will be executed. The question was also whether Art 2 or 3 were engaged. It was held that the transfer of Iraqi nationals in Iraq from the British custody to the custody of Iraqi authorities was lawful. This is because in particular, the detention of Iraqi nationals by British forces in Iraq

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