This is an extract of our Nature & Sources Of Human Rights document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.
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Wednesbury test -
A reasoning or decision is Wednesbury unreasonable if it is so unreasonable that no reasonable person acting reasonably could have made it (Wednesbury). The test is a different test than merely showing that the decision was unreasonable.
Margin of appreciation -
Developed by the ECtHR, to judge whether a state party to the
ECHR should be sanctioned for derogations. The doctrine allows the
Court to reconcile practical differences in implementing the articles of the Convention. Such differences create a limited right,
for contracting Parties, "to derogate from the obligations laid down in the Convention"
The expanded margin of appreciation doctrine has been used to interpret European Convention guarantees regarding due process
(that is, Articles 5 and 6) and personal freedoms (that is, Articles 8-11)
[Common law fundamental rights]
1. Limited in scope - despite judicial rhetoric insisting that common law rights broadly cover convention rights, they only apply rarely and have a limited scope, primarily concerned with procedural justice - rights of access to courts; principle of open justice; etc.
a. No right to private family life, right against torture, etc.
b. Not a coincidence -
i. Court has particular legitimacy and jurisdiction in developing rights in these areas, to protect the RoL -
obedience of the law becomes superfluous when one can't go to a court for legal recourse ii. On the other hand, questions of legitimacy arise from developing a broader, more comprehensive scope of rights - usurping parliament's role, and courts are not legitimized by democracy c. Examples -
i. Raymond: by common law, held that a prisoner retained all his civil rights which were not taken away expressly or by necessary implication, s.47
Prison Act does not take away the right of access to courts
2. Judicial rhetoric a. Daly - common law used to establish and enforce the common law right of confidentiality of legal correspondence, despite a Convention right available to reach the same conclusion a. Kennedy - not the purpose of HRA that common law should become an ossuary - Common law HR exist alongside
Convention rights i. "natural starting point" in any dispute is to start with domestic law, & development of the common law rights did not come to an end with HRA
ii. Sometimes common law may go further b. Osborn - HRA does not supersede the protection of HR
under the common law
3. Why were they used in Daly, Osborn, etc.?
a. **Orthodox constitutional hierarchy places statutes above judge-made common law - when statute &
common law govern the same issue, judges ought to rely on the statute (HRA), rendering common law rights logically only relevant where Convention rights end i. Example - Moohan - no common law right for fair elections, rights are a statutory creation - better view is majority is that rights have a statutory basis (HRA),
not a common law basis b. It is clear that convention rights don't take over common law rights in the sense of making them no longer exist, but unclear why courts are prioritising common law c. Explanation - i. Partly muscle flexing by courts, attempting to establish that convention rights are unnecessary because when common law rights are available ii. Assertion of independence and strength
1. Lord Bingham's mirror principle in Ullah -
a. 'Domestic courts should in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court… the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certain no less'. Followed by -
i. Alconbury (predating Ullah) - In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human
1. Rebuttal - no magic in the mantra "clear and constant jurisprudence" - that ECtHR
repeatedly endorsed a proposition does not transform nature of UK courts' duty under s.2(1)
ii. AF - HoL had to determine how to respond to the
Grand Chamber's recent judgment in A v UK, where it held that Art.6 imposed an absolute requirement that a terrorist suspect be informed of the "gist"
or essence of the case against him. HoL
unanimously allowed the appeal, and clearly proceeding on the premise that it was obliged to do so
1. Lord Hoffmann - A v UK requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong…your
Lordships have no choice but to submit…it is true that s.2(1a) of HRA requires us to only
'take into account''… but UK is bound by the
Convention in international law to accept the decisions of the ECtHR on its interpretation. To reject such a decision would put UK in breach of the international obligation
2. Lord Rodger - **Strasbourg has spoken, the case is closed
2. Margin of appreciation a. International concept that Strasbourg uses to allow room for national courts to exercise discretion as to rights obligations - nation states can go their own way i. Recognition of reality of the situation that if
Strasbourg intrude too much national courts would just refuse - if it continues to run up against national governments it will lose a lot of its authority
3. Proportionality a. More stringent than traditional Wednesbury grounds of judicial review of executive action - not only whether it is justifiable, but whether it is in fact the right one,
requiring more justification to declare a decision reasonable b. S.(3,4,6) HRA may all involve proportionality principle c. Applies *only to qualified Convention rights, including 8-11; does not apply to absolute rights
4. Dialogue a. Horncastle - UK courts argued that Strasbourg jurisprudence was insufficiently attentive to peculiarities in the national context - lead to dialogue,
and Strasbourg changed its decision b. Pinnock - court not bound to follow every decision of the
Grand Chamber - would destroy ability of the court to engage in constructive dialogue c. But there are limits to this dialogue, manifesting in the prison voting acts - no difficulty in understanding,
simply fundamental difference in principles - Chester - the saga concerns deep philosophical differences of view between reasonable people
[HRA vs common law]
a. Much more effective than principle of legality, which relies on general/ambiguous words, and runs out when they are not present. S.6 much stricter - if the administrative body had discretion, it cannot violate any convention rights, or the action/delegated legislation would be ruled unlawful b. In particular, the proportionality, rather than Wednesbury unreasonableness, test is used to assess legality of restrictions placed by public authorities upon qualified rights
2. Nothing in common law the equivalent of s.(3-4) - for primary legislation which itself violates rights
[Broad normative questions]
1. Whether UK courts should develop HR law domestically as common law rights, or is it better to adopt an model of HR based on international treaties a. Pro domestic, common law conception of rights i. HR law will inevitably have to be sensitive to cultural or contextual specificity
1. Rebuttal - but this is where the margin of appreciation comes in, where reasonable differences can be accommodated by
Strasbourg ii. Permanence - common law rights will never be extinguished, while HRA is susceptible to repeal
1. Rebuttal - HRA is not that feeble and transient
- has taken on a semi-permanence existence because of the involvement of Sewel convention in the event of repeal - politically difficult b. Pro international HR treaties i. Courts lack jurisdiction and the democratic legitimacy necessary to develop a broad,
comprehensive scope of HR law
1. UK common law rights limited to procedural justice by the courts' constitutional role; while
ECHR is far more comprehensive, involving right to private and family life (Art. 8),
prohibition of torture (Art. 3) freedom of assembly and association (Art. 11), etc.
ii. More effective in UK context, against the backdrop of parliamentary sovereignty 1. S.3-4 HRA has no common law equivalent in dealing with primary legislation contravening
HR; S.6 is much more effective than principle of legality - no need for general/ambiguous language requirement for court to strike down executive exercise of discretion iii. Common law rights susceptible to statutory repeal
1. Doctrine of parliamentary sovereign means that parliament is always free to legislate contrary to common law rights if it wishes
2. Comparatively, convention rights cannot be abolished by P
a. But - HRA can be abolished, though it is politically difficult
LAW FUNDAMENTAL RIGHTS]
* R (Daly) v Home Secretary  UKHL 26;  2 AC 532
1. Legal significance a. Confidentiality of legal correspondence of prisoners recognised as a right both at common law and under ECHR
- court went through the common law route
2. What happened a. Home Secretary introduced a new policy in governing the searching of prison cells b. Daly contends that a blanket policy of requiring the absence of prisoners when their legally privileged correspondence is examined infringes, to an unnecessary and impermissible extent, a basic right recognised both at common law and under the ECHR, and that the general terms of s.47 of Prison Act 1952 authorise no such infringement, either expressly or impliedly.
c. Held - appeal allowed
3. Reasoning - Lord Bingham a. Custodial order inevitably curtails enjoyment, by the person confined, of rights enjoyed by other citizens - but cannot wholly deprive the confined of all rights. Amongst those are three important rights,
i. Right of access to a court ii. Right of access to legal advice iii. Right to communicate confidentially with a legal adviser under seal of legal professional privilege b. Authorities for aforementioned rights i. Hull Prison, in which Shaw LJ held that a prison remains invested with residuary rights pertaining to the nature and conduct of his incarceration -
an essential characteristic being the right of recourse to the courts ii. Raymond v Honey - Prison governor blocked prisoner's application to court, but S.47 was held to be quite insufficient to authorise interference with a right to access to a court. HoL confirmed that under
English law, a convicted prisoner retains all civil rights not taken away expressly or by necessary implication iii. Anderson - prisoner's challenge was directed to a standing order restricting visits by legal adviser to a prisoner contemplating proceedings concerning his treatment in prison. Robert Goff
LJ - reinforces idea that prisoner retains civil rights not expressly or by necessary implication taken away;
standing power regarded as ultra vires iv. *Leech - s.47(1) of Prison Act did not expressly authorise the making of a rule that prison governors can read and stop any letters sent by prisoners, and the court observed, at p 212, that a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication c. Judicial review of executive i. **Smith & Grady - European Court held that orthodox domestic approach in English courts had not given applicants effective remedy for breach of their rights under art. 8 of the convention, because threshold of review had been set too high
1. *Post-HRA, where common law and convention yield different results, courts
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