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Hra1998 How It Works And Its Impact On Administrative Law Notes

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The Human Rights Act 1998 (how it works, and survey of its impact on administrative law)

Development of the protection of fundamental rights before the Human Rights Act 1998 Laws 1993 PL 59; Is the High Court the guardian of fundamental constitutional rights?

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"To what extent can, and should, the common law courts themselves elaborate and make good basic rights by building on existing public law principles, so as to insist upon and secure a high degree of priority for those central rights which broadly find their place in the principal substantive provisions of the European Convention on Human Rights and Fundamental Freedoms (the E.C.H.R.)?"

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Judges cannot incorporate the ECHR: Treaties made between governments cannot have domestic force for a good reason: It would be v undemocratic if the executive could just impose the contents of treaties as law without requiring a vote of approval from the legislature: The crown is not a source of law. Also in the case of Bibi [1976] 1 W.L.R. 979 Lord Denning rejected the proposal to incorporate the principles o the ECHR.

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However, Laws says an alternative position is to use the ECHR as a text to inform the common law. Judges often change the law based on evolving social or moral concepts and that the philosophy of fundamental rights is no different to this. This has often been done with regard to criminal or tort law. Equally courts often look to decisions from other jurisdictions to inform their own decision. This is not the same as incorporation. This was done by Lord Templeman in the Spycatcher
[1987] 1 W.L.R. 1248 case. If it was deployed in this private piece of legistlation, then why not in public law too?

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In public law, procedural judicial review has become sophisticated and well developed, but substantial judicial review (guided by "Wednesbury unreasonableness") has stood still. This is motivated by the courts' concern "that since the merits of a decision in the public law field will ordinarily have been committed by Parliament to the decision-maker in question, they can go no further in reviewing the substance of the decision than seeing that it is one which a rational person, addressing himself to the right issues, could have arrived at." Laws believes that the worse the infringement of an individual's righ by a public authority, the greater the justification must be. This is no more of a constitutional usurpation than Wednesbury, which itself imposes a judge-made standard on ministers. In fact Laws' proposal has already been done (see Brind below).

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The courts have so far regarded proportionality in procedural terms, and only then as a variation of Wednesbury. They have not used it itself. They have refused to countenance it as a substantive tool, lest they undertake an examination of merits and usurp the role of the decision maker under review. Laws makes same point as above that Wednesbury does the same thing, but is simply less effective in safeguarding rights.

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Irrationality alone is an unsatisfactory test for cases involving fundamental rights. They aren't likely to be about rationality so much as how the decision maker has ordered his priorities. This is different from irrationality where, say, the facts ascertained could not lead the decision making body to that particular conclusion.

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If Laws' approach were to take effect, the public law rule that public law decision makers have no duty to explain their reasons behind decisions.

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Under Wednesbury, only the putative device needs considering, and not the general reasons. Conclusion: "[W]e may have regard to the E.C.H.R. (and, for that matter, other international texts) but not think of incorporating it. We should apply differential standards in judicial review according to the subject-matter, and to do so deploy the tool of proportionality, not the bludgeon of Wednesbury. A function of this is to recognise that decision-makers whose decisions affect fundamental rights must inevitably justify what they do by giving good reasons; and the judges should not construe statutes which are said to confer power to interfere with such rights any more favourably than they would view a clause said to oust their own jurisdiction."

Sedley 1995 PL 386; Human Rights: A Twenty-First Century Agenda o Judges are becoming more assertive in holding government to account e.g. the ministerial contempt cases. This is different the the judiciary of the 40s and 50s who remained passive in this respect. o We have a "still emerging constitutional paradigm, no longer of Dicey's supreme parliament to whose will the rule of law must finally bend, but of a bi-polar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown's ministers are answerable--politically to Parliament, legally to the courts. That the government of the day has no separate sovereignty in this paradigm is both axiomatic and a reminder of the sharpest of all the lessons of Eastern Europe (NB This was written just after the fall of the Soviet bloc): that it is when state is collapsed into party that democracy founders." o "While shared perceptions of what those needs are [needs of society and democracy] change as societies change, there are moral and practical continuities--of which the democratic principle is one--which can be powerfully represented as fundamental values, at least within the temporal and social horizons of each society." This is a modest basis for human rights and avoids the faith-based, subjective approach of "universal truths". o He says that we are heading the way of greater use of fundamental rights in law. The solution of a bill of rights is likely (14 years on, this still hasn't happened!!) and that incorporation of the ECHR rights is a possible practical solution (though this ended up happening via legislation and not judicial incorporation). o The major challenge to having a set of fundamental rights through a legislative/constitutional instrument is that rights will mean whatever judges say they mean, and we will get the unfettered rule of judges, who in the UK have historically been very illiberal e.g. the Privy Council struck down Canada's equivalent of Roosevelt's new deal, seemingly because of political alignment (AG for Canada v AG for Ontario). By contrast in Australia, the High Court judges have been finding "implied" rights where none seemingly exist, undermining the constitution. o The judiciary ought to take a more prominent role in holding government to account
*Brind [1991] 1 AC 696: A minister, within power granted to him by legislation, ordered the BBC no to show interviews with members of terrorist groups on a list. It was argued that this infringed article 10 ECHR. HL said that it is true that this limited the editorial freedom of BBC and freedom of expression for terrorists, but that the European Convention for the Protection of Human Rights and Fundamental Freedoms was not part of English law and, although the presumption that Parliament had intended to legislate in conformity with it might be resorted to in order to resolve ambiguity or uncertainty in a

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