#14782 - Human Rights - BPC Judicial Review

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

This is t look at JR in a HR context. This is done by:

• Reminding what the rights are under the ECHR

• To look at the operation of HRA in outline

To remind of the impact of the convention as incorporated through the HRA

• Victims

• The approach of the Admin Court to cases involving Human Rights:

• Expectations of public authorities

• Judicial Review and its compatibility with Article 6

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:

1. in defence of any person from unlawful violence;

2. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

3. 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.

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

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:

1. the lawful detention of a person after conviction by a competent court;

2. 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;

3. 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;

4. 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;

5. 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;

6. 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.

These rights falls into two (2) parts:

1. Interference with the right; and

2. 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

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.

This right has to be linked to another right, commonly Art 8 (the respect for private and family life)

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.

• S6: Public Authorities must act compatibly with relevant convention rights

• S3: Courts and tribunals must interpret legislation in accordance with relevant principles of the convention

• S2: 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

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.

• “Vertical

• Individual v Administrative decision-maker

• Individual v Stature

• Individual 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?

There are two (2) main...