Constitutional law (first term)
Terms in this set (151)
The concept of rights:
- There has been a great deal of attention to identifying and protecting certain human rights, these rights are "inviolable", "fundamental" and "constitutional"
- On the 25th September 1789, the first ten amendments of the United States constitution were drafted these make up the United States Bill of Rights
- The French Declaration (1789) "in the presence and under the auspices of the supreme being, the following rights of man and citizen...."
- The american declaration of independence, the french declaration and the american bill of rights make up the 18th C intellectual and documentary foundation on which two centuries of legal protection of human rights have come to be built on
The international dimension:
- Since the 1940s rights have been guaranteed to a international, regional and national level
- The International bill of rights was formed shortly after WW2, They wanted to develop a system that would prevent states from infringing rights and give individuals and groups within states a way of challenging their treatment by the states
- On the 10th of December 1948 the UN adopted the Universal Declaration of Human Rights as a "common standard of achievement for all people and all nations"
- Victims of violations by their state can bring their situation forward to international bodies/ communities. In 1966 the UK accepted the right of individuals to bring complaints against it to the European Commission on Human Rights
- This is the most important treaty for the UK in relation to human rights
- Henry J Steiner " the ECHR was the first comprehensive treaty in the world in this field, it established the first international complaints procedure, first international court, has generated a more extensive jurisprudence than any other part of the international system, and now applies to some 30% of the nations in the world"
- The convention became particularly important when the HRA was incorporated into domestic law, this meant that the ECHR law became directly enforceable into UK domestic courts
Enforcing rights in the ECHR:
- The European Court of Human Rights sits in Strasbourg.
- Cases are brought here when states bring cases about other states not complying with the ECHR or when individuals claim to be victims of violations by states to bring claims before the court
- In order to be accepted individuals must show that they have exhausted their domestic remedies, that it has been brought within 6 months of the final decision in the domestic system and that it does not concern a matter that is substantially the same as one that has already been examined by the court
- the first case brought against the UK by an individual was in 1975 Golder v UK which held that the home secretary had infringed a prisioner's right of access to the english courts and his right to respect for his correspondence
Campaign to incorporate convention rights:
- The UK has not always been ready to implement decisions made by the Strasborg court
- There have been calls to include the convention rights into a somewhat UK bill of rights this was summarised in the Labour govt's Rights Brought Home
- A set of ground rules that can restrain and constrain the power of government
- Constitutional law definition: basic ground rules determining the powers of the government and the fundamental rights of individuals
- What are constitutions for....
- Constituions allocate state power, this is the power to do things such as make laws and exercise governmental power
- Constitutions divide power among different institutions such as the legislature and the judiciary and they also allocate power to different tiers of government so that there is a vertical and horizontal division of power such as in the UK power is shared between the EU and the UK govt etc.
- It also looks at where government power stops and individual freedom begins
- a key purpose of the constitution is to hold those in government with positions of power accountable and so that they are entrusted with power and are required to exercise it properly this is seen with election and that there jobs are not secure
Legitimacy and consensus:
- a purpose of a constitution is to allocate power in a manner that is regarded as morally acceptable. Each individual must be regarded as having equal moral worth. A main purpose of the constitution is to enable a person of a given country to be governed in a way that they regard as acceptable.
- Constitutions can be seen as legitimate as they reflect in some way the consensus of how the country should be governed.
- Constitutions are often drafted in general terms raising questions without answering them. Constitutions deal with matters that are often uncontroversial because they reflect views that are deeply and widely held.
Amendment and interpretation:
- many argue that constitutions should not be easy to amend, if their fundamental principles represent a deep seated consensus.
- Constitutions therefore normally prescribe an amendment process that demands a broad consensus. If a constitution can be amended or easily overridden it ceases to be a constitution in any meaningful sense.
- If a constitution is hard to amend, law makers may find that there hands are tied by principles that were adopted by earlier centuries
What about the UK:
- Power is developed horizontally and vertically with the UK constitution
- There are many sources and these are seen with statutes such as the Parliament Act 1911 and the Human Rights Act 1998, case law, constitutional conventions
The UK's constitutional arrangements have no special legal status. T
- he law dealing with the constitution has the same status as all other law. This means that any aspect of the constitution can be changed as easily as any other law
- The validity of any given law cannot be called into question on the grounds that it is inconsistent with the constitution
- Fundamental constitutional values and human rights cannot exist in the UK in the sense that they exist in many legal systems, they cannot operated as a brake on government power as there is not anything that is hierarchal superior in UK law
Law makers in the UK are capable of enacting legislation that conflicts with fundamental principles and rights - yet they do not usually chose to
Power divided horizontally and vertically:
- Vertically: government power and individual freedom
- Horizontal: government, EU, devolved government, local government
Post 1997constitutional reforms:
- The Labour govts of 1997 to 2010 implemented a far reaching set of constitutional reforms these included: devolution, new voting arrangements for devolved legislatures, changes to local govt, the enactment of the freedom of information act and human rights legislation, the abolition of the judicial functions of the House of Lords, the creation of the UK supreme court
- It has been argued that these reforms were not done as a coherent package
- There have been constitutional changes on the hoof (informal way) This was seen with the Constitutional Act in 2005. Also the govt press release in 2013 that the Lord Chancellor was to be replaced by the Lord Chief Justice was announced without any consultation
- It can be suggested that the legal aspects of the constitution can shape the political landscape
Anti-terrorism and security act:
- This was to allow the government to imprison (notwithstanding the absence of criminal charge or trial) suspected foreign terrorists who could not be deported, therefore they did not hold people beyond reasonable doubt but on the basis of suspicion and reasonable doubt.
- This act was highly controversial as some agreed with the governments attempts to contain the perceived threat posed by the individuals and those who deplored such a flagrant breach of basic rights and due process
- This shows that the executive had great powers allowed by the constitution in able to pass this act
The enactment of legislation:
- As the government always has the majority in the house of commons and therefore can almost always rely on passing legislation
- In addition it can be suggested that the executive branch of government faces little opposition, especially when parliament tries to rush through legislation
- One can also argue that the UK constitution imposes no absolute limits upon the authority of lawmakers. As constitutional law has no higher legal status the government can persuade parliament to enact legislation having such an effect. This means that the executive branch of government is in effective control of a legislature that has unlimited constitutional authority to make law
The Belmarsh Case (2004):
- a high number of prisoners detained under the Terrorist Act 2001 were in Belmarsh Prison, the detainees asked the courts whether the act was compatible with the HRA as it infringed one of their rights which is their right to liberty which is protected under the act.
- However, under the HRA it is possible to suspend certain rights in the event of a public emergency threatening the nation. - - The majority of judges on the case argued that the govt had not shown that it was necessary to detain foreign suspects without charge or trial. It resulted in part 4 of the Anti terrorism act to be repelled
The Rule of Law:
- The rule of law is the idea that the legal principle of law should govern a nation as opposed to arbitrary decisions by individual government officials
Key elements of the rule of law:
- no one should be able to justify their actions because of who they are but only with reference to their legal powers
- no one is above the law
- laws should be transparent and certain power should not be exercised in an arbitrary manner
- laws should be transparent and certain
- everyone is assumed innocent until proven guilty and has the right to a fair trial
- there is a strong and independent legal profession and judiciary
Dicey and the rule of law (formal conception:
- According to Dicey individuals ought not to be subjected to the power of officials wielding wide discretionary powers, fundamental to the Rule of Law therefore is the notion that all power needs to be authorised
- The first limb of his rule of law was that
"no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land." - there must be a breach of law, cannot punish someone for doing nothing
- This means the predominance of regular law in preference to the influence of wide discretionary arbitrary prerogative power
- This is a formal conception as it notes the "ordinary legal manner"
- He also talks of how it is not "arbitrary" compared to continental Europe
- The second principle of his rule of law lies on the notion of equality, what he calls "equal subjection"
- "That here every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of ordinary tribunals"
- This means that everyone is equally subject to the rule of law
- Dicey's formulation looks at the formal rights of access to the courts and not the nature of rules which individuals will find when they get there
- The third limb of the rule of law:
- "We may say that the constitution is pervaded by the rule of law on the ground that our general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts"
- The constitution is the result of the ordinary law of the land, the rights of the individual are secured and emeshed in common law and not by a constitutional document which can be suspended by a stroke of a pen
- Allen suggested that this point takes a substantive view as it looks at how the common law gives effect to certain general principles of substantive nature, which we might describes as political and civil rights
Dicey is still greatly influential:
- In the case of Sharma v Brown-Antoine: Lord Bingham and Lord Walker sad that the rule of law requires that subject to any immunity or exemption provided by the law, the criminal law should apply to all alike. A person is not singled out for adverse treatment because he or she holds a ugh or dignified office of state
Criticisms of Dicey's rule of law:
- Sir Ivor Jennings in The Law and the Constitution argued that Dicey's view is that his preference for liberty, certain the limitation of discretionary powers was inconsistent with the 20th ideas of social justice which involved the extension of discretionary powers. This is based on the distinction between civil and political rights and economic and social rights on the other hand. There was greater emphasis on c and p than on s and e tights like welfare and education etc.
- Jennings believed that the rule of law should be that the state as a whole must be regulated by the law, there must be an implicit separation of powers , there must be clear and general rules interpreted by the courts and that equality and liberty are essential features of the rule of law
- Raz held the view that there is no necessary connection between law and morality
- Raz believes that laws should be capable in guiding one's conduct in order that one can plan one's life
- Raz identifies 8 qualities of law, all of these qualities are related to enable individuals to plan their lives
- It is also only one value of the legal system
- Laws should be prospective, open and clear
- Laws should not be changed too often
- There should be open, clear, general and stable rules and procedures for making laws
- There should be an independent judiciary
- The principles of natural justice should be observed
- The courts should have powers of review to ensure that other components of the rule of law are upheld
- Courts should be easily accessible
- The police and prosecuting authorities should not be permitted to use their discretion to "pervert the law"
- Raz does not argue that compliance with these principles means that laws are necessarily "good" in a moral sense
- He gives a knife analogy: "sharpness is a virtue of a knife, but a sharp knife may be put to good or bad uses"
- Raz concludes that "The rule of law is essentially a negative value. The law inevitably creates a great deal of arbitrary power - the rule of law if designed to minimise the danger created by the law itself...the law may infringe people's freedom and dignity. The rule of law os designed to prevent this danger as well. Thus the rule of law is a negative value in two senses: conformity to it does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself"
Formal and substantive theories:
- Formal conceptions of the rule of law are concerned with the manner which the law comes into existence and the 'surface' qualities of the law
- A formalist would regard it imperative that laws are clear, accessible and non-retrospective
- They are concerned with the features of the law not the goals that it serves
- The neutrality of the formal conception as to the content of laws means that it is compatible with all manner of inequalities between citizens and that oppressive, tyrannical regimes may be in compliance with it
- For substantive theorists they do look at the form of law but also the use to which the knife is put, not just its sharpness is an important feature
The substantive version can run the risk of simply 'collapsing' into a broader vision of what constitutes a good society
governmental action must be authorised by law (if not, it acts ultra vires)
Entick v Carrington (1765) - Ultra Vires = state
action has no legal authorisation
openness, clarity, predictability, stability, accessibility of laws and courts, efficiency, consistency (or formal equality)
right to a fair hearing (or natural justice), right to fair trial → independent, unbiased, impartial judge
Entick v Carrington (1765), looks at formal conception of the law no arbitrary exercise of power, equality before the law:
- Principle: the executive cannot lawfully assume powers which are not known to the courts
- Two of the king's messengers acting under a warrant issued by the secretary of state, broke into the plaintiff's house and carried off his papers. The action was part of an investigation into certain seditious articles. The plaintiff sued the messengers for trespass. They claimed to have acted lawfully under the secretary of state's warrant
- Held: The secretary of state could invade the rights of a subject only if his action was authorised by the law
- There was no validity of power that he had to issue a warrant
Substantive conceptions of the rule of law:
Protection of human rights and human dignity
Substantive Fairness: a fair hearing that benefits the individual
Substantive Equality: individuals are not only equal before law, but they can equally enjoy the benefits of law
Bingham's rule of law:
- He defined the rule of law as...
- Lord Bingham stated that at the heart of the concept of the rule of law is the principle that all persons and authorities within the state, whether public or private should be entitled to the benefit of laws publicly and prospectively administrated by the courts
- "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administrated in the courts"
His concepts on the rule of law:
-legality: All decisions and acts of public officials must therefore be legally authorised
- Certainty: This is the idea that the rule of law should be certain and predictable. For Dicey certainty rather than substantive fairness was the key value here. Hayek suggested that "the important thing is that the rule enables us to predict other people's behaviour correctly, and this requires that it should apply in all cases - even if in a particular instance we feel it to be unjust".
concepts on rule of law cont:
- Certainty: Certainty has an instrumental value in that it allows decisions to be planned in advance and people to know clearly where they stand. There is also substantive fairness in the value of legal certainty. One can suggest that when a person is encouraged by the decision-maker to believe that a particular course of action will take place, certainty will dictate that his "legitimate expectation" shall not be disappointed.
- Consistency: This is the idea of consistency or formal equality. Dicey said that the highest officers of state must be treated similarly to everyone else. Law enforcers must apply the rule of law regardless of the status of any person or any threats or inducements to the decision-maker
- Accountability: This is that rules provide a published standard against which to measure the legality of official decision
Concepts of the rule of law 3:
- Efficiency: Rules announce or clarify official policies to people who will be affected by them, this mean fruitless applications will be avoided.
- Due process and the access to justice: Bingham argued that people should be entitled to the "benefit" of law and to ensure this by being able to challenge both the announced rule or the implementation of the rule by the official, in order to do this the claimant would have to access the courts, so access to justice is another element of the rule of law.
- There is also the idea of due process which encourages that decisions are consistent and that cases should be treated alike.
The key features of a legal system based on the rule of law: the government according to the law
- This is based on the constitutional principle in Entick v Carrington: in deciding that a warrant used by the secretary of state to enter and search the C's premises and seize property was illegal the Court of king's bench determined that the executive can do nothing without the legal authority. Where a public power claims to have the power to do something it must be able to identify the precise legal source of power
R v Secretary of State for the Home Department ex p Fire Brigades Union (1995):
- Lord Mustill in dissenting speech, the role of the courts is to make sure that powers are lawfully exercised by whose to whom they are entrusted, not to take those powers into their own hands and exercise them afresh
Other interpretations by judges in accordance with the rule of law:
- Lord Steyn in R v Secretary of state for the Home Department (2003) - A decision to punish an offender by imprisonment may only be made by a court of law
- Lord Hoffman in Matthews v Ministry of Defence - civil rights must be determined by an impartial and independent judiciary and that the executive should not arbitrarily be able to instruct a court to dismiss a C's action either by saying that there is not cause for action without the govt's consent or by issuing a certificate that the action is not to proceed
M v Home Office:
- Facts: there were proceedings brought against the Home Secretary for contempt of court. The HL determined that the courts had jurisdiction
- Principle: The judiciary enforces the law against individuals and against those as well who represent the executive. A litigant finding a minister in breach of the law can bring this to the courts. The courts have the power to grant remedies and the courts are armed with coercive powers exercisible in proceedings for contempt of court
Secretary of State for the Home Department v Rehman:
- Facts: a Pakistani arrived in the UK in 1993 after being granted entry clearance to work as a minister of religion. In 1998 the secretary of state refused his application for indefinite leave to remain in the UK and gave notice that because of his association with a terrorist organisation in India he made a deport ion order under s3(5)(b) of the Immigration Act 1971 on the ground that it would be the interest of public good and national security
- Princple: The interests of national security can be threatened not only by an action against the UK but also indirectly by activities directed against other states. No particular standard of proof is appropriate to the formation of his executive judgement or assessment to whether it is conducive to the public goods that a person be deported, which is a matter of reasonable and proportionate judgement
- Dworkin looks at the rights conception which "assumes that citizens have moral rights and duties with respect to one another and political rights against the state as a whole
- Substantive Conception. Govt should never exercise power against individuals except in accordance with rules set out in advance and made available ("the rule book"); however, moral rights also require recognition in the law - the rule book should also capture and enforce these.
Practical implantation of the rule of law:
- As the UK has an unmodified constitution the rule of law serves as a principle that can constrain governmental power, the rule of law can disable the government from abusing its' power
- How does the rule of law operate in practice in the UK? - our courts have not been able to display primary legislation that offends the rule of law. The rule of law also serves as a basis for the evaluation of all laws and provides a critical focus for public debate
Does the UK legal system comply with Dicey conception of the rule of law?
WIDE AND ARBITRARY POWERS:
- A statutory belief that a public body may do something if/as they reasonably believe something is a subjective discretionary power
- In the case of Liversidge v Anderson: the HL said that under normal circumstances the judges are "no respecters of persons", they stand between the citizen and any attempted enrichments on his liberty, they particularly ensure that any coercive action is justified by law. In times of emergency, arbitrary and wide subjective discretionary powers are permitted
- Issues relating to the court's power to scrutinise wide discretionary powers were discussed by the HL in the case of A and others v Secretary of State for the Home Department: Lord Nicholls looked at indefinite imprisonment without charge is contrary to the rule of law because it deprives the detained person of the protection given to them by criminal charge. The burden of protecting national security lies with the executive. The role of the judiciary is a legal system based on the rule of law and to make sure that legislation and ministerial decisions do not overlook the human rights of those adversely affected. The courts will only intervene when it is apparent that in balancing various considerations involved the primary decision maker must have given insufficient weight to the human rights factor
Conclusions of the rule of law:
- The significance of the rule of law was emphasised by its inclusion in S1 of the Constitutional Reform Act 2005 and by the many references to its importance by judges
- Adherence to the rule of law may provide a check on abuse of power
- Must be noted that the rule of law is not directly enforceable by the courts and there is no legal sanction for behaviour which contravenes it. It is best thought of as a guiding principle
NEW TOPIC,:Judicial review
- The practical implementation of the rule of law has taken place primarily through judicial review of the actions of public officials
- The courts are not challenging the merits of the decision by rather whether it is a decision that the body is entitled to make. Lord Brightman in Chief Constable of North Wales v Evans: "judicial review is concerned, not with the decision, but with the decision making process"
- Legality: requires officials to act within the scope of their lawful powers in this sense to make sure that official decisions do not stray past the "four corners" of a statute,
- Procedural propriety: this requires decision makers to be unbiased and to grant a fair hearing to claimants before depriving them of a right or to that of significant interest. A Hearing will be required where a "legitimate expectation" has been induced by the decision maker.
- Irrationality: uch as suppose police only charge bearded drivers. Where the rule of law or fundamental rights or constitutional principles are in issue the courts scrutinise the decision with greater care
R v Lord Chancellor, ex P Witham (substantive equality, judicial review):a
- Principle: where a statutory power does not clearly authorise the infringement of a fundamental right the court will draw the inference that the intention of the statute was not to infringe that right
- The Lord Chancellor increased the fees for issuing a writ and abolished the exemption from paying fees for litigants in person in receipt of income support. The applicant was an unemployed man in receipt of income support who wished to issue proceedings in person for defamation, for which legal aid was not available
- Held: access to the courts is a constitutional right at common law. The Lord Chancellor had no power to prescribe fees so as to deny the poor access to courts, this was ultra vires and unlawful
R (on the application of Anufrijeva) v Secretary of state for the home department (substantive fairness):
- This was to do with an Lithuanian asylum seeker called Anufrijeva
- A appealed against the decision that withdrawal of her income support four months prior to being notified that her asylum had been rejected was unlawful and unconstitutional. She argued that a decision to refuse asylum has no legal effect until the asylum seeker if notified.
- It was decided that it was unlawful that her income benefits had been taken away before she was notified however, I still think that her asylum was not approved
- At the appeal Lord Bingham held that A should have received her income benefits until she was notified that her asylum had been rejected. Lord Steyn suggested that it was a fundamental constitutional principal that notice had been required before that decision was considered a determination with legal effect as the individual affected had to be able to challenge that decision. It was also suggested that the delaying of communication on the decision amounted to an abuse of power
ROL and parliamentary sovereignty:
- In the UK the principle of parliamentary sovereignty has always been able to override the rule of law this is on the authority of commentators such as Dicey
- It has been suggested that it is no longer self-evident that a legislature in a modern democracy should be able with impunity to violate the structures of the rule of law
- Parliament has no legislative superior. Courts cannot strike down or invalidate any provisions enacted by Parliament (Bingham, p162).
- The RoL serves as a written constitution and constrains governmental powers.
- Lord Steyn, in the Pierson case, said that: 'Parliament must be presumed not to legislate contrary to the RoL'.
- Lord Hoffman in the Simms case explained that: 'Parliamentary sovereignty means that Parliament can, if it chooses, to legislate contrary to fundamental principles of human rights'. 'But the principle of legality means that Parliament must squarely confront what it doing and accept the political cost'.
1st ground for judicial review..Illegality:
Lord Diplock described this as: "the decision maker must understand correctly the law that regulates his decision making power and must give effect to it"
It is where a public body in which legal power is vested must act within the scope of power allocated to it
It was also established in the GCHQ case that powers deriving from the royal prerogative are also susceptible to judicial review and the scope of these powers is often highly uncertain
Public bodies are usually able to do which is "reasonably incidental" to their powers however, courts can consider that sometimes such powers are not incidental
- Illegality includes ultra vires, improper purpose, relevant and irrelevant considerations and a failure to exercise discretionary power
- Ultra vires: the court will have to decide if the public body has the power to do something
Attn-Gen v Fulham Cooperation: in the case of statutory power, the court is concerned with the meaning and effect of the empowering words of the statute which concern what the public body can and cannot do.
The local authority had the power under the Baths and Wash Houses Act 1846 to establish baths, wash houses and open bathing areas. The court held that this did not give it the power to operate a commercial laundry . It was held to be ultra fires.
R v Secretary of State for the Home Department ex p. Leech:
Substantive ultra vires: this is where a public body takes a decision to embark upon a decision-making process without authority of power means that it acts ultra vires or without jurisdiction
A prisoner was involved with various civil actions feared that his correspondence with his solicitor was being censored under prison rules . He applied for judicial review to quash the governor's power of censorship over letters as it being ultra vires of the Prisoner Act (was appealed). It was held that for the prison to stop prisoner-solicitor correspondence under prison rule 33 (3) was ultra vires.
illegality cont ...
Errors of law/ errors of fact: a reviewing court is constitutionally empowered to scrutinise decisions which may be based upon errors of law, given that the determination of the meaning of the law is the fundamental role of the judiciary. This can be seen as a jurisdictional error (means power to inquire or decide)
Anisminic v Foreign Compensation Commission:
- Following the Suez Crises, property owners by Anisminic was nationalised by the Egyptian government and given to an organisation called TEDO. Anisminic negotiated a financial settlement with the Eygptian government. Subsequently, the British government signed a treaty with the E govt. Under these rems funds were set aside to compensate British nationals. The Foreign Compensation Commission was empowered by the Foreign Compensation Act 1950, was given the job of determining entitlement of compensation. A's claim was rejected by the FCC on the ground that it had "sold" its property to TEDO which was not a British national. A claimed from the high court that the FCC's decision was void. HL: the key word was "determination" in the act should not be construed as including everything which purported to be a determination because the FCC had misconstrued the statutory regulations defining their jurisdiction. HL: claimed that the FCC had made a jurisdictional error and had misconstrued the meaning of "successor in title" - TEDO was not one of these
It can be noted that a decision maker can be afforded power in the forms of duties (an obligation to act in a certain way) and discretion (choice of actions) - it is possible for a duty to be phrased in such a way that the decision maker has virtually unlimited choice in how to go about fulfilling it one can use the duty to uphold the independence of the judiciary S3(1) of the Constitutional Reform Act as an example
It must also be held that it is unlawful for the body to which power is allocated to assign the decision making power to someone else or for a body to act in a certain was because another body has instructed it to do so
Lavender & Son Ltd v Minister of Housing and Local Government:
Fettering discretion: the decision maker can adopt a policy legitimately but in exercising it mustn't exclude the merits of individual cases and prevent authority from exercising its discretion in in individual cases
A gravel extraction company bought some land part of which was in an area reserved for agriculture and sought planning permission to work the site. The Minister of Agriculture told the planning authorities that he had strong objections on agricultural grounds. The company appealed under the Town and Country Planning Act 1962 to the Minister of Housing whose inspector concluded that the land could be properly restored after extraction, but would make no recommendation because he was in no position to judge whether the agriculture should be maintained. The Minister was obliged to exercise his statutory discretion by giving consideration to whether on planning the land could be worked. By his stated policy he had in effect inhibited himself from exercising his discretion in cases where the minister of agriculture had raised objection. It was held that the minister had wrongly delegated his statutory duty to the Minister of Agriculture
A public body may also act unlawfully by abusing discretionary power with which it was conferred to by statute or prerogative - a decision maker has acted in pursuit of improper objective, or that it failed to take relevant factors into account
R v Home Secretary, ex p. Venebles: a public body must take into account relevant matters and discard anything irrelevant. Where the relevant considerations are expressly stated in a statute any deviation will make a decision invalid.
The applicants murdered a small child when they were 10 and were sentenced to be detained during her majesty's pleasure. The trial judge argued that a min of 8 years should be used.The Lord Chief Justice set a tariff of 10 years. The Secretary of state encouraged by the media set a tariff of 15 years. The applicants sought judicial review to HL. It was held that the secretary of state was acting as a sentencing judge and natural justice required him to ignore irrelevant public petitions or public opinion expressed in the media . The Secretary of State had not considered the welfare of the applicants as required by s44(1) Children and Young Persons Act 1933
Improper purpose: the public body must exercise a discretionary power for the purpose of which it was granted. If a statute states the purposes for which discretion is to be exercised, the courts will treat the stated purpose as exhaustive.
- Congrieve v Home Office:
- The C renewed his TV license early to avoid the new higher TV license fee
- His TV license was revoked and the Home Secretary stated that he was entitled to do this under s1(4) Wireless Telegraphy Act 1949
- The C sought a declaration that the renovation of the TV act was unlawful
- The key principle is that the statutory power conferred on a minister for the purpose of granting and revoking license cannot be used for the unauthorised purpose of raising money
- The CA granted a declaration
unlawful failure to exercise a discretionary power:
- A body cannot limit its discretion by unlawfully refusing to exercise its jurisdiction by adopting a policy which shuts its ears to certain types of application
- R v Secretary of State for the Home Department ex p Hindley: the discretionary power of the Home Secretary to release a mandatory life sentence prisoners under s 27 Prison Act 1952.
- The Home Secretary had adopted a policy where the review and reduction of a senatance would only be considered in exceptional circumstances. It was alleged that he had unlawfully fettered his discretion. The HL reeled that he had not unlawfully fettered his discretion because his policy did not rule out reconsideration from time to time.
Powerpoint slide illegality...
Did a public body act beyond its powers (acts not incidental to its powers)?
Did a public body use its powers for an improper purpose?
Did a public body fail to exercise discretion?
Did a public body fail to fetter its powers?
Did the public body take into account irrelevant considerations (or did it fail to take into account relevant considerations)?
A decision maker in whom discretionary power is vested must not exercise that power in a way that no reasonable body would
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation:
The Sunday Entertainments Act 1932 empowered local authorities Sunday cinema opening "subject to such considerations as the authority may think fit to impose" On a Sunday they did not allow those under the age of 15 to be admitted. The CA found in favour of the council on the basis that the moral welfare of children was a relevant factor to the exercise of its licensing powers and that the condition imposed was not unreasonably wide.
An illustration of this principle is Short v Poole Corporation: this is where a judge had given an example of a teacher sacked because she had red hair
R v Ministry of Defence ex p Smith
- By a statement made in 1994 by the Ministry of Defence its policy was reaffirmed that homosexuality was incompatible with serving in the armed forces, 4 personnel by 1995 had been discharged on the grounds that they were homosexual
-They key principle is where an administrative decision is being made in the context of human rights the court will require a proportnatley greater justification before being satisfied that the decision is within the range of responses open to a reasonable decision maker
- The CA held that it was not irrational
- This went up to the court of Human Rights and changed the legislative framework in the UK. This is the substantial interference test.
Lord Diplock" " a decision which is so outrageous in its defiance of logic or as of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"
The section of judicial review is concerned with the decision making itself (the outcome of the decision) , it the courts were to regularly intervene on this basis, they would be substituting their view for that of the original decision maker
The irrationality test is not always applied in a strict manner, rather, it is applied more or less intensively according to the context. It is therefore a 'sliding scale of review, more or less intrusive according to the nature and gravity at stake'
This test has been criticised. Lord Cooke described Wednesbury as "an unfortunately retrogressive decision in English administrative law' which, if applied strictly, justified too high a level of judicial restraint in reviewing executive action
Some judges have advocated replacement of the irrationality standard by the test of proportionality, which is used in EU law and ECHR law
This relates to procedures employed by public bodies in making decisions. In some instances, procedural requirements may be laid down in legislation. There are components of procedural impropriety that derive from common law such as the notion of natural justice
Essentially the breach of natural justice and failure to comply with statutory procedural requirements
Natural justice: the rules of natural justice have to be observed where there is a duty to act judicially and this duty is not confined to the procedure of a court of law but exists where any body of persons has legal authority to determine questions affecting the rights of others. The HL decision in Ridge v Baldwin changed the law in that Lord Reid stated that the rules of natural justice are capable of applying in principle where an administrative body acts judicially, judicially in this aspect means any decisions affecting the rights of the individual
Ridge v Baldwin, this was a fundamental change as it meant that the concept of natural justice applied to administrative bodies as well as judicial bodies, also the idea that one must be fairly heard
The chief constable of Brighton was tried for conspiracy to obstruct the court of justice. Using its powers under the Munincipal Corporations Act 1882 the borough watch committee voted to dismiss him, forfeiting his pension rights - he had not been invited to appear in front of the committee. He applied for judicial review as a breach of natural justice. The watch committee was seen to be in breach of the principles of natural justice. It was contrary to natural justice to decide the issue without hearing the chief constable.
Unbiased element: An element of natural justice is that a decision maker should be independent and impartial. "it is of fundamental importance that justice should be done but must manifestively and undoubtedly be seen to be done". There are two types of bias, pecuniary bias which arises where the adjudicator may have a financial interest in the outcome of the decision. This is seen with the Pinochet case. Personal bias is anything that may cause an adjudicator to view on side of the dispute more or less favourably than the other.
Porter v Magill:
- The test concerned issues such as if the test concerning bias formulated by Lord Goff in R v Gough needed to be modified
- The Conservative majority of Westminster council adopted a policy to sell council houses in parts of the City where it was believed that home owners were more likely to vote Conservative. It became known as "the homes for votes scandal", involving Shirley Porter. As the leader of Westminister City Council, she helped formulate a policy which appeared to be designed to sell off council housing for the purpose of electoral advantage in marginal wards. It was held that they could not use their powers for electoral wins
- The key principle is that the court will ascertain all the circumstances which have a bearing on the suggestion that the judge was biased and ask whether those circumstances would lead to a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased
R v Bow Street Magistrate, ex p. Pinochet:
The Chilean dictator was arrested in London under extradition warrants in Spain. The prosecutor appealed to the HL after the divisional court quashed his warrants. Amnesty international obtained leave to intervene in the proceedings and was represented by counsel.Lord Hoffman was part of the majority in the HL but was an unpaid director of Amnesty International Charitable Trust Ltd. It was held that as Hoffman was involved in the same organisation he was disqualified from sitting in on the court case. It was seen that the judge was ideologically involved in "promoting the same causes in the same organisation as is a party to the suit"
The second principle of natural justice is the idea of the right to a fair hearing. However, the precise requirements which the reviewing court will impose will depend on the context of the case, including the importance of the matter and the consequences to the individual, the relevant statutory framework and the nature of the decision making body
Another concept of natural justice is the duty to act fairly which has provided an impetus to courts to develop procedural protections in situations in which they would not previously have intervened. The courts have shown an increasing willingness to require that a decision-maker must provide reasons for the decision.
R v Secretary of state for the Home Department, ex p. Fayed:
Two brothers had been granted indefinite leave to remain in the UK. The Secretary of State refused both applications and declined to give reasons for his decision. It was held that the Secretary of State should have informed the applicant of the nature of matters weighing against granting his application and give him an opportunity of addressing them
A process of consultation should ensure that sufficient information and time to comment is provided to consulteees and that the outcome of consultation should be considered when the final decision is taken
R (on the application of Greenpeace) v Secretary of State for Trade and Industry:
- The secretary of state's decision that nuclear power would have a role to play in the immediate future alongside other energy sources , contained a consultation document with a 12 week period
- The document had been inadequate as it failed to address the issues with the disposal of radioactive waste
- It breached the C's legitimate expectation that there would be a "full consultation process"
it was acknowledge that a decision maker had wide discretion on how to carry out a consultation exercise, especially where it was aimed at the entire adult population of the UK
Proportionality/ legitimate expectation:
Consistency and certainty in decision making are values which the courts will also seek to uphold
Legitimate expectation: if public bodies indicate that they are going to act in a certain manner - for example, by making a promise or representation, declaring a policy or through consistent past practice to that effect - it might be regarded as an abuse of power if they were subsequently to go back on such assurances and to act differently
R v North and East Devon Health Authority, ex parte Coughlan (Court of Appeal):
Facts: a severely disabled woman who had been receiving long term nursing care form the NHS sold her house after the promise was made by a health authority that she would have a "home for life" at Mardon House a facility run by NHS. The court ruled in favour of her as she had a substantive legitimate expectation. This was a substantive case.
- the key principle here is that if a public body exercising a statutory function makes a promise as to how it will behave in the future which induces a legitimate expectation of a benefit which is substantive, to frustrate that expectation can be so unfair that it will amount to an abuse of power
R v Secretary of State for the Home Department, ex p Brind:
The Secretary of State made orders under the Broadcasting Act 1981 banning television and radio stations from broadcasting the words spoken by spokesmen of organisations proscribed under anti-terrorism legislation. The Broadcasters stated that it was outside the secretary of state's powers. The court would not apply the doctrine of proportionality because that would mean substituting its own judgement of what was needed to achieve a particular object for that of the secretary of state who had been given that duty by parliament. The appeal would be dismissed.
Is the measure adopted to pursue a legitimate aim?
Can it serve to further that aim?
Is it the least restrictive way of doing so?
Viewed overall, do the ends justify the means?
Cases: Brind, Daly, Smith
British Oxygen Co Ltd v Minister of Technology (fettering of discretion):
The company produced gases and transported these in tankers, in hydrogen trailers towed by tractors in mental cylinders. It sought grants for new transporters but the board of trade decided tankers were ineligible as "vehicles". It would not exercise discretion to make grants for cylinders that cost less than £25. The company asked the court to determine whether the equipment was "machinery or plant" thus eligible for a grant. It was held that they were neither and therefore, not eligible for grant. The cylinders might be eligible for grant, but the minister had a discretion not to make a grant. The minister could adopt a policy or make a limiting rule as to the future exercise of his discretion, provided he listened to any applicant who had something new to say. The declaration was refused.
Padfield v Minister of Agriculture, Fisheries and Food (improper purpose):
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when compared with prices paid to producers in other regions. The Minister refused to appoint a committee.
Held: The Minister had a discretion so that the real question was how far it was subject to judicial control. The minister had the power to refer complaints about the Milk Marketing scheme to a committee. He refused to refer a complaint of substance to the committee. It subsequently emerged that one reason for his decision was that he had taken into account the fact that the publicity about the complaint could be politically damaging for the government at this time. The court said that it was an irrelevant consideration which rendered his decision as unlawful.
Bromley (irrelevant decisions/ fail to account for relevant decisions, subjective discretionary powers):
labour party promised that if they came to power that would slash transport fares in the greater London area by 25%, however, it had a severe economic effect and was told to the decision makers before but they decided to go ahead as they made a campaign promise. The courts argued that economic effects are more important that campaign promises.
- Key principle: public bodies owe a duty to taxpayers to have regard to the interests of the taxpayers when making decisions involving public spending. The HL held that the discretionary powers here were implied limited by an obligation to run London Transport Services in a business like way and that they were in breach of that implied obligation, the proposed scheme was said to be ultra fires
If someone was gay they were not allowed to serve in the armed forces. Smith was investigated for her sexual orientation and was dismissed from the job, she challenged this on her right to privacy and in the domestic court she lost her case. This went up to the court of Human Rights (ECHR) and changed the legislative framework in the UK. This is the substantial interference test.
R (Daly) v Home Secretary (proportionality):
The House of Lords held that the Home Secretary's blanket policy allowing prison staff, in the absence of prisoners, to examine purported legal correspondence to ensure it was bona fide, was unlawful. This case is an example of the principle of legality at work: a grant of administrative power phrased in general terms will be read down so that it must be exercised in manner compatible with certain basic values (here, the common law right to confidentiality of privileged legal correspondence) in order to be exercised lawfully.
NEW TOPIC: HUMAN RIGHTS ACT, TUTORIAL 5
PARLIAMENTARY SUPREMACY VERSUS FUNDAMENTAL RIGHTS
- The notions of special constitutional protection of human rights, based upon a higher legal order than ordinary law was regarded as incompatible with parliamentary supremacy
- Incidents like the Bill of Rights 1688-89 recognised some important personal rights and liberties, the terms of the constitutional settlement were mainly concerned with the rights and liberties of Parliament
- The doctrine of the supremacy of Parliament described by Lord Halisham that operated in practice as an "elective dictatorship", became the keystone of the British constitution
- There were no rights that were fundamental in the sense that they enjoy special constitutional protection against interference by Parliament
- According to the traditional English theory, the judges constitutional task is faithfully and strictly to interpret the will of parliament expressed in detailed legislation to read according to its so called "plain meaning", and to declare common law principles when the law is incomplete or obscure
- There is a distinction between civil and political rights, these are included in the ECHR and social and economic rights such as health care and education, some national constitutions do not have the judicial enforcement for this
- However, the human rights based philosophy became profoundly influential in creating a new international legal order in the wake of the horrors of WW2, in December 1948 the UN General Assembly adopted the Universal Deceleration of Human Rights
- Drafting: after the WWII as a response to Nazist atrocities - Main drafters: UK and France
- Aims/Duties imposed on states: to protect individuals against state interference (negative obligation) AND to protect individuals from the violations caused by other individuals (positive obligation)
- The UK ratified this treaty in 1951, however, the treaty was not incorporated into domestic law
- It created a binding international code of human rights with effective legal safeguards for all victims of violations of contracting states. there would be no privilege or immunity enabling state authorities automatically to shield themselves against super national European judicial scrutiny
- In Dec 1965, the first Wilson government decided to accept the right of individual petition (RIGHT FOR PETITION) and the jurisdiction of the ECHR to rule on cases brought by individuals against the UK
The ECHR protects civil and political rights and is 'a living document'.
British cases before the ECHR:
- The right of petition gave British lawyers an important opportunity to obtain redress for their clients under the ECHR, for want of effective remedies within the UK
- The first case where the ECHR found a breach by the UK was the Golder case where the Home Secretary infringed a prisoner's rights of access to the English courts and his rights to respect for his correspondence
- The first case in which the court held that the HL had breached the ECHR was in Sunday Times v UK (1979) which was where an injection restraining the Sunday Times from publishing an article about the "thalidomide" tragedy because it was prejudicial to pending civil proceedings
- There have been 270 judgements of the ECHR finding breached by the UK
British cases before the ECHR 2:
- There have been cases on many things such as...
- Ireland v UK (1978): facts, the detention of several IRA members infringed article 5 and 3 of the convention as they were subjected to inhumane treatments. Holding, they had amounted to violation of article 3.
- Dudgeon v UK (1981): facts, D was a gay activist in Belfast and was interrogated by the police about his sexual activities, holding, that the Northern Ireland's criminalisation of homosexual activities was a violation of Article 8 of the convention
- However, In the case of Brind, 1991 (Home Secretary issued directives prohibiting the BBC the broadcastings of speeches by representatives of terrorist organisations, the applicants held that this violated the ECHR because of freedom of speech, it was held that as the convention was not part of domestic law, the courts presumed that Parliament intended to legislate in conformity with the convention)
The Human Rights Act 1998 1:
- The HRA reconciles formal adherence to the doctrine of parliamentary sovereignty with the need to enable the courts to provide effective legal remedies for breaches of convention rights . Parliament like every public authority is bound in international law to comply with international human rights law
- Convention rights are legally enforceable civil and political rights
- The Act does not empower the judiciary to strike down legislation that cannot be possibly read in a way compatible with convention rights
- It is seen as weaker than EC law as it is not directly enforceable into domestic law
- However, it endows the UK judiciary with strong interpretive powers which are intended to be used robustly
- It must be noted that many convention rights are limited or qualified such as art 10: "'may be subject to restrictions prescribed by law and necessary in a democratic society', thus, proportionality plays a big role
- section 1(4): Secretary of State may amend Act by order to reflect effect of protocols (existing or future) which UK has signed or ratified;
- section 1(2): rights have effect subject to any derogations or reservations. Sections 14 and 15 enable derogations and reservations to be added by ministerial order.
- section 2: court or tribunal 'must take into account' relevant Strasbourg jurisprudence (Court and (formerly) Commission) when determining questions which arise in relation to Convention rights.
The Act, Parliamentary Sovereignty and Section 3 of the Act I:
- Section 3 imposes a duty on the courts and the tribunals to strive to avoid incompatibility between domestic legislation and the ECHR. The crucial words are "possible" and "must" because of parl sov below...
- "In this context, Parliamentary sovereignty means that Parliament is competent to make any law on any matter of its own choosing and no court may question the validity of any Act that it passes" Rights Brought Home: The Human Rights Bill, White Paper October 1997
- This duty applies to primary and secondary legislation, courts must "read down" and read into legislation necessary procedural safeguards of Convention rights
- Lord Bingham has warned that section 3 allowed for judicial interpretation but not judicial vandalism so as to give the statutory provision "an effect quite different from which parliament intended"
- Lord Steyn examined in the case of R v A "in accordance with the will of parliament as reflected in s3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained"
- Lord Nicholls in Ghaidan v Godin Mendoza observed that s3 "is one of the primary means by which convention rights are brought into the law of this country"
- Also s 19 requires a minister in cage of the bill to issue a statement that it is compatible with convention rights
Ghaidan v Godin- Mendoza (2004):
The House of Lords used s 3 Human Rights Act to 'reinterpret' The Rent Act 1977 Schedule 1 Paragraph 2, so as to make survivorship rights in respect of statutory tenancies apply to cohabiting same-sex couples, and not just to those who lived together as husband and wife. The House of Lords reached that conclusion even though the legislation only gave survivorship rights to a person 'living with the original tenant as his or her wife or husband'. The case shows the willingness of the judges to use s 3 of the Human Rights Act to depart from legislation. But they will only do so to give effect to Convention Rights, and they will not do so if the proposed reading of legislation runs contrary to a 'fundamental feature' of the legislation.
- The court must ask itself three questions
- 1: the legislative objective is sufficiently important to justify limiting a convention right
- 2: the means used to impair the convention right are rationally connected to it
- 3: the means used to impair the convention right are no more than is necessary to accomplish that objective
- Although the courts have adopted new interpretive techniques they cannot usurp the legislative powers of parliament by adopting a construction which it could not be said that Parliament had intended by enacting the HRA 1998 and be previously or subsequently enacting the impugned statutory provision
- Lord Steyn has commented that the Act has strengthened the rule of law and the separation of powers in the UK, and made Britain to an extent a "constitutional state"
Judicial interpretation and declarations of incompatibility, s4:
- There are some rights that are absolute for example the prohibition of torture, however, many convention rights require a fair balance to be struck between competing rights and interests
- The declaration of incompatibility is found in s4 of the act, it is not binding on the parties involved so leaves the possibility of government to argue before the ECHR that the measure concerned is compatible with convention rights
- However, failures to make such amendments to remedy the domestic court's declaration could lead to a complaint by the ECHR with a high probability that this court would take the same conclusion
- There have been twenty six declarations of incompatibility, 18 of these have become final and 8 have been overturned or appealed
A v Secretary of State for the Home Department (2001):
Facts: the 9 applicants were detained under the Anti-terrorism, Crime and Security Act 2001, part 4 of the Act provided for their indefinite detention without trial and deportation, this only was relevant to non-british nationals
Held: that this part of the act was incompatible with ECHR and in response the relevant provisions were repealed and a system of control orders was contained in the Prevention of Terrorism Act 2005
Effect on powers and duties of public authorities, section 6:
- The HRA radically affects the scope of powers conferred and duties imposed upon public authorities
- In relation to any act of a public authority, which the court finds unlawful, it is able to grant such relief or remedy or make such order, within its powers as it considers just and appropriate
- Section 6: unlawful for a public authority to act in a way which is incompatible with a Convention right unless it could not have acted differently as a result of primary or secondary legislation.
- What is a public authority: section 6 (3) specifies it includes a court or tribunal and 'any person certain of whose functions are functions of a public nature'; and section 6 (4) excludes Parliament
- The fact that courts and tribunals have a duty to act with the ECHR is significant because of the Act's potential horizontal effect upon the common law and equity and statutory interpretation
YL v Birmingham City Council (2008):
- It can be seen that the courts have taken a strict and narrow approach to what is meant by a body exercising "public functions"
- Facts: HL was asked whether a private care home when providing care and accommodations to residents under arrangements with a local authority, whether this body was performing functions of a public nature for the purposes of section 6(3) of the HRA
- Held: there is no one test of whether a body carries out a public function, the duties exercised by the care homes were similar to that of the council but were undertaken by a different purpose, not under any statutory duty. This meant that the care home was not exercising a function of public nature
Remedies for Breach:
- Where the court finds a breach of convention rights it may grant such remedy as it is just and appropriate, provided that the remedy is within its powers
- UK judges have also displayed a more general reluctance to award damages in human rights cases, which cannot be attributed solely to the limited utility of Strasbourg jurisprudence
- It is found in section 8 of the Act: Remedies. In relation to unlawful acts under s.6, court may grant relief or remedy, including damages (if court has power to do so) to accord 'just satisfaction' to party
The Human Rights Act and beyond:
- The HRA has been attacked by many of the political parties
- The Brown administration toyed with the idea of introducing a so called British Bill of Rights and Responsibilities, to stand alongside the HRA
- The Conservatives threatened to repeal the Act and replace it with a British Bill of Rights
- The Liberal Democrats wanted constitutional reform with a written constitution and to determine this constitution in a citizen's convention and to protect the HRA 1998
- The HRA, means that the UK will remain bound to art 1 to secure convention rights for everyone within its jurisdiction and by art 13 to provide effective domestic remedies for violation of convention rights
NEW TOPIC: FREEDOM OF INFORMATION AND THE HUMAN RIGHTS ACT AND PROPORTIONALITY
- The importance of freedom of expression in relation to personal identity and societal development, it can be described as the "lifeblood of democracy"
- People believe in freedom of expression as they believe that autonomous individuals should be permitted to express themselves
- most legal systems recognise that, in despite of these arguments, the right of free speech should be subject to some limits. Some forms of expression - spreading vicious lies about someone for example may cause considerable harm
- However, just because it has some negative effects such as offending others it does not necessarily mean that it should be prohibited; rather the harm must be outweighed against the good
Types of rights:
- Qualified rights/ these are limited and can be restricted, for example restricting rights to protect others and for national security
- Proportionality/ non-absolute rights can be restricted legally, when a public body complies with the proportionality test
- Non absolute rights can be restricted legally when a pubic body complies withe the proportionality test
- The test:
1. Can it serve to further that aim?
2. Is it the LEAST RESTRICTIVE way of doing so?
3. Viewed overall, do the ends justify the means? Is there a fair balance between the interests of the individual and how to can affect the wider community
4. Compare the ground of irrationality and proportionality? Which scrutinises public decisions more intensively?
Proportionality v Irrationality:
R (Daly) V Secretary of State for the Home Department :
- Facts: the applicant was a prisoner and he kept correspondence with his solicitor in his cell. Everyday his cell was searched and in accordance with rules made under s47(1) Prisoner Act 1952, he was excluded from his cell while the search was conducted. Officers could examine the correspondence. He sought judicial review of the decision to require examination of prisoners' legally privileged correspondence in their absence. The principal from this case was that a person stanched to a custodial order retains the right to communicate confidentially with a legal advisor. Such rights can only be curtailed by clear and express words and then only to the extent reasonably necessary to meet the ends which justify the curtailment
- It was held that the policy was unlawful intrusion into personal privacy protected by art 8(1) ECHR, it was also what was beyond necessary to satisfy art8(2)
- It can also be seen to infringe section 6 of the HRA which is it is unlawful for a public authority to act in a way which is incompatible with convention rights
R (Begum) v Governors tof Denbigh High School:
- Facts: Begum was a pupil at Denbigh High School. The school wished to be inclusive of other faiths and regarded the school uniform as promoting a sense of communal identity. Female pupils could also wear a punjabi. Begum argued that she be allowed to wear a jhab and she refused to attend for three years unless she was allowed to wear the jihab to school, the chools supporters argued that after her parents death she had come under the undue influence of her brothers who were radical islamists. They also believed if they allowed Begum to adopt this dress code this may put others under pressure to wear a jihab. Begum and her brothers issued a claim for judicial review on the grounds that she was not allowed to wear the jihab. The claim was made that it interfered with art 9 (freedom of thought, conscience and religion) and art 2(1) (the right to education)
- Judgement: her case won at appeals at the CA but then this decision was overturned at the House of Lords.
- Lord Bingham of Cornhill stressed at the outset of his judgment that,
- " this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule on whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country."
- There was a 3/5 majority that her rights had not been interfered with
Eweida and Others v UK:
- Facts: Ewedia was a BA employee and was asked to cover up her cross neckless and was placed on unpaid leave when she refused to take it off or cover it up. Ewieda planned to sue on the basis of religious discrimination. BA were criticised for double standards as Sikhs and Muslims were allowed to wear this religious uniform however, BA did not see it necessary for Ewedia to wear the neckless.
- Judgement: her case was taken up all the way to the ECHR, her case was heard with another three cases, it was held that her there was a violation of her rights in relation to art 9 of the ECHR
- They ruled this as they said British Airways had not reached a fair balance between Eweida's religious beliefs and the company's desire to have a particular corporate image
S.A.S v France:
-Facts: The appellant argued that her rights had been violated with in accordance to art 8 and art 9 of the ECHR and in conduction with art 14 as France had banned the wearing of a full face veil in public. French Law prohibited the wearing of the veil as they are a secular country. M submitted that the law violated art 8 as the veil was part of her social and cultural identity and art 9 as it prevented her from manifesting her faith in public. She argued that it did not pursue a legitimate aim however the state argued that it the legitimate aims of ensuring public safety and ensuring respect for the minimum set of values of an open and democratic society.
- Judgement: the complaint was dismissed. 1) The Law interfered with the rights guaranteed by art.8 and art.9. An individual's choices about her appearance related to the expression of her personality and therefore fell within the notion of private life. To the extent that the Law prevented individuals from wearing clothing required by their religion, it interfered with art.9.
- (2) The question was whether the interference pursued a legitimate aim and was necessary in a democratic society. In order to be legitimate, any aim had to be linked to the exhaustive and restrictively-defined exceptions set out in art.8(2) and art.9(2). While there was evidence that the Law sought to ensure public safety, the aim of ensuring respect for the minimum set of values of an open and democratic society was not expressly referred to in art.8(2) or art.9(2). However, the court did recognised that the state sought to pursue a legitimate aim for protecting the rights and freedoms of others
- The Law was, however, justified and proportionate insofar as it sought to guarantee the conditions of "living together". While the ban mainly affected Muslim women, it was significant that it was not expressly based on the veil's religious associations, but solely on the fact that it concealed the face.
- The Strasborugh court decided that they did not have the expertise to decide on this, how to manifest religion is a controversial topic
R v Home Secretary, ex parte Simms :
- Facts: D's wanted to communicate with journalists so that they could argue there innocence that they were not guilty of murder. The journalists wanted to access the prisoners, however, the prison prevented any prisoners from speaking to journalists professionally, the journalists could not look into their stories because of this restriction
- All of the judges emphasised the importance of Freedom of Information
- Lord Steyn: "First, it promotes the self fulfilment of individuals in society(...) The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials."
Truth, democracy and tolerance
- There are 'consequentialist' arguments for the freedom of speech these emphasise the beneficial social consequences that stem from affording people the freedom to say what they wish - this promotes a "marketplace" of ideas
- it has also been argued that the freedom of speech promotes tolerance. It requires people to be exposed to a wide range of views, ideas and values and that such exposure will serve to promote a more tolerant, harmonious, broad-minded society
- Freedom of information is important as it ensures that government is held to account, effective accountability can only happen if people have access to information about what the government has done
- The second key theme is a shift from a political constitution to a legal constitution, this principal engines of that change is the growing legal acknowledgement and enforcement of individual rights.
ARTICLE 10, ECHR:
- Article 10(1) looks at that "everyone has the right to the freedom of expression", art 10(2) sets out the circumstances in which it is legitimate to restrict the freedom of speech
- Unlike art 10 of the ECHR, art 10 in the HRA is not as infinitely wide, it looks at hardcore porn as being somewhat expression however, when white supremacists call black people animals this does not constitute to expression
- It also looks at whether speech that constitutes expression protected by art10(1) may nethertheless be restricted by art10(2). This involves looking at applying the proportionality test
Freedom of information and the media:
- The media is in a powerful position so this s legitimised in the UK with art10(1) of the ECHR which says that the right to freedom of expression "shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises"
- Under UK law there is an extra layer of legal regulation which applies to television and radio, The code is issued by the regulatory body of Ofcom
Much of the code applied to the BBC as well as commercial broadcasters, and to the extent that it does not the BBC is under separate obligations that are at least as onerous
The Broadcasting Code underlines the importance of the freedom of expression, and it is clear that the restrictions which the code places on broadcasters closely relate to the ground which, according to Art10(2) of the ECHR free speech may be legitimately curtailed
R (Profile Alliance) v BBC:
- Facts: the Profile Alliance is a political party and in 1997 submitted a video for political advertisement which was very graphic in nature. The video the HL stated showed "the products of suction abortion". The broadcasters refused to show the view on the grounds of that it could be very offensive or disturbing to a large number of people. The appellants applied to the ECHR alleging a violation of art 10. The application was seen as indissmissible.
- Judgement: prollife alliance won their case on appeal at the CA however, this was overturned by the HL
Self regulation of the media:
- There is a sharp distinction which exists between the regulatory regime applicable to television and radio broadcasters and the position of newspapers
The press adopted a system of self regulation under the Press Complaint's Commission (PCC), this is non-statutory and voluntary. Newspapers can only be regulated by this is they agree to it and cannot legally enforce decisions
- In 2009, the House of Commons Select Committee on Culture, Media and Sport published a repot on press standards and regulation. It strongly criticised the PCC's response to a major scandal in which journalists had intercepted public figures voicemails saying that the Commission's report was "simplistic and surprising"
- The Leveson Inquiry, which reported in 2012 that self regulation via the PCC was inadequate
While stopping short of arguing statutory regulation of the press, the Leveson inquiry posed that legislation should prescribe requirements and that a new self-regulatory body should meet and that legislation should also establish a mechanism for determining whether the new body meets those requirements
Contempt of Court:
- Civil contempt: this is by disregarding a court order such as an injunction
- Criminal contempt: this has a number of forms, these can bring into play the tension between the right to freedom of expression and other important rights and interests
- Prejudicial publications:
- According to Art6 of the ECHR, everyone is entitled to a fair hearing whenever their civil rights and obligations or any criminal charged made against them is being determined
- However, this sometimes can be made impossible because of the media
- This issue in particular arises in relation to criminal trials involving a jury: while judges are trained to take into account only evidence that is relevant and admissible in the court proceedings, members of the public - of which judges are composed - are not
There, it then the need to strike a balance between the rights to free speech and to a fair trial -PROPORTIONALITY
tSunday Times v UK :
- English law did not strike that balance acceptably. The HL had upheld an injunction that had been granted to prevent the publication of a newspaper article on the ground that the publication would have constituted contempt of court. This article concerned the drug thalidomide, which had been given to a pregnant women and had caused birth defects, the article intended to encourage the drug manufacture against which the victims had begun legal proceedings that had not yet reached trial - to agree to a generous out-of-court settlement. The ECHR held that the injunction breached the right to free speech (ART 10), they held that it was not necessary
- In wake of that judgement there was the Contempt of Court Act 1981 which was enacted in an attempt to recast English law in terms consistent with the convention. Liability can arise under the act more easily than under the common law offence that was at stake in the Sunday Times case
- However, the act does contain a number of safeguards of free speech by ensuring that liability does not exceed that which is permitted by Art 10
- 'Defamation' looks at libel (which concerns statements made in the permanent form) and slander (concerns oral statements)
- Ingredients of liability:
- The statement must refer to the claimant either explicitly or implicitly
- The statement must be published - someone other than the claimant or the defendant's spouse
- The statement must be defamatory, meaning that it must have the capacity to damage the claimant's reputation
- In Thornton v Telegraph Media Group Ltd the judge incorporated 'a threshold of seriousness' into the concept of defamation
- In the Defamation Act 2013 it was stated that it must be able to cause "serious harm", the Act therefore tilts in the favour of freedom of expression
Defences of defamation:
- Truth/ it is a defence to show "that the imputation conveyed by the statement complained of is substantially true"
- Honest opinion/ while truth is a defence in relation to allegations of fact, it can have no application to statements of opinion. Under s3 of the Defamation Act there are three elements of how it can be a common law defence. First, in utterance in question must be a statement of opinion. What marks out opinion is that it "can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc
- The statement must indicate the basis of the opinion
The opinion must be one that an honest person could have held
- Racial Hatred:
Sections 18 -23 of the Public Order Act 1986 creates a series of criminal offences concerned with the incitement of "racial hatred" meaning "hatred against a group of persons defined by reference to colour, race and nationality"
By singling out speech promoting racial hatred, these offences constitute restrictions on free speech that are not content-neurtal, those who are fans of free speech believe that to some extent they censor particular views
In terms of Art 10, it is arguable that these offences may help to prevent crime and protect the rights of others
- Hatred on the ground of religion or sexual orientation:
- The offence of blasphemy - that is of publishing matter that insults, offends or vilifies 'the Diety of Christ or the Christian religion or some part of its doctrine" such as a poem depicting Jesus Christ as a promiscuous gay man - has been abolished
- The Racial and Religious Hatred Act 2006 was deeply controversial, the main bone of contention being whether it risked stifling free speech to an unacceptable degree and thereby compromising the underlying principles that free speech serves
The 1986 Act (as amended) also criminalises the stirring up of hatred on the ground of sexual orientation, using the same scheme as that which applies to religious hatred
NEW TOPIC: FREEDOM OF INFORMATION AND PRIVACY
-There was an emphasis in the UK in the 19th and 20th Century on protecting the information that the state had acquired, most famously the use of Official secrets legislation in 1989, however pressure did amount for disclosure of information to the public held by the state and public bodies
-people wanted to move towards the state being more transparent and open
-The desirability of giving information about the operation of public authorities exercising public power to those who are primarily affected - the public
-It involves a vision of governance in which citizens are treated as responsible individuals and not simply les administres
- There was no legal concept of a right to official information. Freedom of Information (FOI), as will be shown means access to publicly held information as a presumptive right subject to exemptions: it does not mean complete freedom to information
-The first significant concession by central government towards relaxation of official secret laws came with the Official Secrets Act 1989. The measure was described by the Home Secretary as an "essay of openness", this Act repealed Official Secrets Act 1911, S2
-Under the Official Secrets Act 1989, six protected classes of information covering security and intelligence , defence, international relations, prevention of crime, disclosure of information relating to social investigations by the security and intelligence services and interceptions of communication
-The Act also has provisions about unauthorised disclosure... the first is those who are security and intelligence officials, disclosure by them of security and intelligence information if prohibited
-The second group is other Crown servants and government contractors who make "damaging" disclosures of information
-The third group is others such as (editors of journalists) who make damaging disclosures of information communicated in breach of the Act knowing, or having reasonable cause to believe, the disclosure would be damaging
Courts, secrecy and openness:
-The EU has pressured the government to introduce reforms allowing individuals access to personal information or data by what are known as data controllers
-The law is now the DPA 1998, which is a number of information statutes accompanying the FOIA 2000
-"opening up" government information and IT:
-The Office of Public Sector Information is at the heart of information policy, setting standards, delivering access and encouraging the re-use of public sector information
The creation of the FOIA 2000:
-This act had grand claims such as seeing "the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust"
-In Jan 2009, the Dacre Review of the Public Accords Act looked at how "the UK government has not fully reconciled itself to the implications of its own act". The report also described how "openness, transparency and accountability have been strengthened by the act"
-Oncoming to power in May 2010, the coalition government immediately announced a new emphasis on extra-statutory transparency in a series of pronouncements
-The announcements included financial details of all government expenditure and contracts of government and details of senior officials' salaries
The kinds of rights the FOIA can access:
-The number of bodies covered by the FOIA 2000 is huge: between 100,000 and 115,000, it famously includes parliament
-The minister of justice has the power to designate private bodies as public authorities for the FOIA 2000 purposes
-Breaches of the FOIA 2000 itself create no rights of action, but negligence and confidentiality are common law actions, not breaches of the Act. Disclosures are privileged unless malice is present
-If it is anticipated that the fees involved will exceed the fees limit the requester may be asked to make a payment of the estimated amount. Fees are waived for up to £600 (central govt, armed forces and parliament) and £450 for all other authorities
-An authority refusing a request must state under the FOIA 2000, s17 which exemption applies and the reasons why it applies and if relying on a public interest, must state the reasons why the public interest applies
Exemptions of the FOIA:
-FOI has exemptions, the act is qualified and subject to public interest test which is measured first of all by the authority to which the request was made
-The onus of establishing an exemption, or public interest is non disclosure lies on the authority, not the requestor
-Some exemptions in the act are absolute, meaning that there is no public interest override in favour of disclosure
- All of these exemptions are found in part II of the Act
-Some of these exemptions are class exemptions so from this perspective the class is exempt
-The exemptions are set out in ss 21 to 44, these define the protected interests
-There are numerous exemptions such as, bodies relating to security matters, defence, international relations the economy, communications with the sovereign and formulation of government policy
-S 37 was amended by Constitutional Reform and Governance Act 2010, s 46 and schedule 7 so that communications by authorities with the sovereign and heir and second in line of succession to the throne are absolutely exempt as are communications with those who subsequently become soveirgn
The ministerial veto:
-The FOIA 2000 allows a cabinet minister to issue a veto which overrides the decision of the Commissioner or Tribunal to allow disclosure or to rule that the Neither Confirm Nor Deny provision is not applicable
-The NCDC applies to most exemptions and allows an authority to override the duty to confirm or deny whether it holds a document upon request where such confirmation or denial would involve the disclosure of exempt information
-There have been two vetos to date both in 2009 and both referring to disclosure of cabinet minutes concerning discussion of the Attorney General's legal advice on invading Iraq, and on devolution
Examples of the FOIA in action:
-The most significant case concerned the MPs expenses saga where MPs had abused the system for claiming accommodation and other expenses
-There was disclosure on negotiated terms of the Attorney General's advice on the legality of the war in Iraq after leaks
-There were disclosures over a period of four years relating to the Iraq weapons of mass destruction dossier
-Refusals to disclose Prince Charles' correspondence with ministers have been upheld and subject to appeal to the tribunal **this was overturned by the Supreme Court in March 2015
-National security and international and diplomatic relations have been respected although there have been public interest disclosures in the latter
The right to privacy: does English law recognise a right to privacy?
Kaye v Robertson :
Facts: R and the editor of "Sunday Sport" appealed against an injunction restraining them for publishing an interview and photograph of a well known actor (K). The newspaper journalist had entered K's hospital room contrary to notices and K was incapable of giving consent.
Held: the appeal was allowed in part, an injunction could not be granted on the grounds of libel and there was no evidence of libel.
Principle: this case shows there is no right to privacy under common law
The right to privacy: does English law recognise a right to privacy 2?
Von Hannover v Germany :
Facts: the Princess had for some time attempted to prevent pictures being published of her in the German press. In 1999 the courts granted her an injunction to prevent publication of images of her children stating that their need for protection was greater than of adults
Held: the ECHR held that there was a breach of Art 8.
Principle: states have a positive duty to protect the private life of individuals against the intrusion by other individuals (horizontal effect)
The right to privacy: Does English law recognise a right to privacy?
Douglas v Hello :
Facts: Micheal Douglas and Catherine Zeta Jones had entered into an OK! mag which would give the company exclusivity over their wedding in 2000. There was strict security and no guests were allowed to take pictures. However, a freelance photographer managed to get into the wedding and take pictures and sold these pictures to Hello mag. The deal between the couple and OK! mag was 1 M
Held: it was held in 2005 in the HL with a 3-2 judgement that the photographs of the wedding were confidential
Principle: Sedley LJ recognised a right to privacy and that art 8 protects not only confidence, but also against any intrusion of privacy
The right to privacy: have the British courts struck a fair balance in this context?
Campbell v MGN :
Facts: the C was a supermodel who claimed that her privacy had been violated by the publication of details concerning treatment she had received for drug addiction and rehabilitation. The HL had to consider the right for privacy against the right for expression
Held: HL stated that the balancing of art 8 and art 10 may begin when a person publishing the information knows or ought to know that there is reasonable expectation that the information in question will be kept confidential. Once the info is identified as "private" in this way the court must balance the C's interest in keeping the info private with the interest of the recipient publishing it. It was held by the HLthat in the circumstances the C's right to privacy protected by art 8 was violated because the publications amounted to breach of confidence
The right to privacy:
Loreena McKennit v Ash :
Facts: a singer wanted to sue in England to prevent the publication o of extracts written by a former friend on the grounds of privacy, her former friend and employee wanted to publish intimate details of their relationship.
Held: it was held that there was a breach of confidence and a misuse of Mckennit's private information
Principle: Art 8 that protects the right to private life of the singer outweighed art 10 that protects the right of freedom of expression of an author
Murray v Express Newspapers:
Facts: D took a photograph of C the infant child of JK Rowling and this was later published. Rowling on behalf of the child began proceedings against the newspaper for breach of privacy
Held: C's claims for breach of privacy were struck out. The DPA claim was dismissed on grounds that C was unable to establish causation or damage of a species which s.13 allowed to be recovered.
Principle: Even ordinary activities should be protected under art8 and outweigh art 10
Axel Springer AG v Germany :
- The applicant a German media company complained about an injunction preventing it from reporting about the arrest and conviction of a television actor
- The regional court held that the articles amounted to a serious interference with X's right to the protection of his personality rights, and that neither the nature of the crime committed, nor X's identity, nor any other circumstances justified publication of the articles. It held that X was not exceptionally well-known and was accused of an offence which was not particularly spectacular and could be regarded as fairly common in the entertainment world. The appeal court upheld that decision
NEW TOPIC: NATIONAL SECURITY AND CONSTITUTIONAL RIGHTS
- the legally mandated right of states to allow the suspension of certain international obligations protecting individual rights in the exceptional circumstances of emergency or war
- Derogation is a formal opt-out procedure set out in art 15 of the ECHR, the idea is to let states to adjust their obligations temporarily under the treaty in exceptional circumstances i.e. times of public emergency
- Non-derogable rights are those specially protected under treaty law such as absolute rights like art 3
- ECHR rights are non-derogable rights
Definition of an emergency:
Lawless v Ireland defined a "public emergency" for the purposes of art 15 of the ECHR as "a situation of exceptional and imminent danger affecting the general public"
Emergencies and individual rights:
- In time of emergency there is a general diminution of rights protections. A number of studies illustrate that violation of non-derogable rights, such as the right to life and the right to be free from torture, experience elevated patterns of abuse and violation during an emergency
Brogan v United Kindgom:
- Fatcs: this concerned the arrest and detention of four persons under section 12 of the Prevention of Terrorism Act. All four were held in detention services and none were brought a judicial officer in that period. They were all subsequently released without criminal charge
- Held: it was concluded by the ECHR that there was a breach of art 5. There was a violation of art 5 (3) which requires persons arrested to be brought "promptly" before a judge or "other officer authorised by law to exercise judicial review"
The Turkish cases, the interaction between the length of an "emergency" and access rights:
- The length of an emergency and definitive link with access to justice
- In the case of Sakik and Ors v Turkey, concerning the arrest and detention by police of six former members of the National Assembly who were prosecuted in a national security court. Substantively the kurt found that the derogation applied only to the region where a state of emergency had been proclaimed and did not include the City of Ankars (where the applicants were arrested, detained and subject to trial)
Demir and Ors v Turkey: derrogation, effective oversight capacity and access:
- This case also illustrated the effective oversight capacity of the ECHR combined with a heavy emphasis on throughly assessing the necessity of measures taken by the derogating state
- These three applicants were holding positions in the People's Social Democratic Party and all lived in the province of Sirnak which was subject to the state of emergency declared since 1987, they were convicted under the Criminal Code and Terrorism Act
- The court held that the periods of detention failed to satisfy the requirement of promptness laid down in art5(3)
- In short, their terrorist-related convictions did not subsequently justify lengthy periods prior of detention
Extending the scope of justice in the European Court:
- Access to justice has been measure less in terms of meaningful access for the direct victims of the relevant human rights but rather concerns access for extended victims
- Khasiyev and Akayeva v Russia: this involved the execution of five individuals by Russian serviceman soon after the Russian military regained control of Grozny in Jan 2000. The court found that Russia had failed to protect to life and failed to conduct adequate observations
- McCann and Ors v United Kingdom: the substantive rights violations were first raised in a context where the state was experiencing an emergency and where finding on the merits alone posed significant politics costs for the courts. Notably, the court emphasised the requirement of investigation brining the access to justice theme in a slightly different perspective. It required that the measurement of a state's adherence to particular human rights norms was in part established by how well the state's criminal and civil procedures responded when those norms were violated
- There has been an attempt to regulate terrorism through international law, however, this is a relatively new concept though as early 1947 the League of Nations drafted the convention for the prevention and punishment of terrorism
- Despite ongoing efforts, it is generally agreed that there had been no consensus on international legal classification
- Often states will use the term terrorism to label anti-state violence which threatens the political status quo in any way
- There is a broad definition of terrorism in the Terrorism Act 2000
- This has been criticised by Professor Conor Gearty "the definition in the 2000 Act is far wider than is popularly assumed, covering politically, religiously or ideologically motivated serious violence to the person and serious damage to the property"
- Critique by Lord Lloyd: "the fundamental difficulty remains that we're trying to create a criminal offence out of something which it just too vague and uncertain"
- The Terrorism Act 2000 was amended by the Terrorism Act 2006 which defined terrorism as the means the use of threat of action involving serious violence against a person or serious damage to property, or danger to life or a serious risk to the health and safety of the public
- This threat must be designed to influence the government or an international organisation
The Terrorism Act 2000:
- This act made it illegal for certain terrorist groups to operate in the UK, the police were given greater powers to help prevent and investigate terrorism such as more search and stop powers
The Terrorist Act 2006:
- This Act extended the detention of terrorist suspects of up to 28 days
- New offences were introduced such as allowing the police to arrest people suspected of inciting terrorist acts or seeking and providing training for terrorist purposes at home or overseas
The Anti-Terrorism and Crime Security Act 2001:
- This aimed to cut off terrorist funding and ensure that government departments and agencies can collect and share information required for terrorist threat, improve security of dangerous substances that may be targeted and used by terrorists and to ensure that we meet our European obligations in the area of police and judicial cooperation and our international obligations to counter bribery and corruption
S 2(1) of the Terrorism Prevention and Investigation Measures Act 2011:
- the secretary of state by a TPIM nice can impose specified terrorism prevention and investigation measures by individuals
- This notice remains in force for the period of a year but they can be extended under section 5
- When this is in force the secretary of state must keep under review whether the conditions set out in s3(3) and (4) of the Act are met
- Measures which maybe made in relation to an individual overnight residence measures, property measure, movement direction measures
- These changes followed the judicial criticism of the system of control orders introduced by the Terrorism Act 2005
The Terrorism Act 2006:
- This created new offences such as acts preparatory to terrorism, incitement or encouragement to terrorism it also makes amendments to existing legislation including introduction warrants to enable the police to search any property owned or controlled by a terrorist suspect
Where access and terrorism interface:
- Restrictions to individual access to legal process in accordance with terrorism has created issues
- There have been controversial issues such as fronted by the US, the creation of Special Military Tribunals by Executive Presidential Order allowing those charged with terrorism to be processed by specially created military tribunals, the creation of designated detention sights such as Guantanamo Bay
- After Sep 11 2001, there has been a marked increased in the unease articulated by international bodies , human rights organisations and concerned stated about the diminution of human rights protections
- Article 5 which is the "right to liberty and security of a person"
-The right to liberty is not that wide as that: a person is not deprived of their liberty simply because he is not permitted to enter of protest in a particular place. It follows that no difficulty in relation to art 5 arises when the police exercise their powers
-What about a situation where people engaged in a protest are forced to enter and remain in a particular location
Austin v Commissioner of Police of the Metropolis:
- in this case the police had good reason - on the basis of intelligence and the past events to expect that on May Day 201, serious public disorder would occur in central London spearheaded by up to 1000 hardcore anti-capitalism protestors. In order to prevent injury to passers by and damage to property, the protesters should be contained by placing an absolute cordon around them under breach of the peace powers. As a result 3000 people were penned to Oxford Circus and prevented from leaving for seven hours. This included many who had done nothing wrong and who has no intent of doing anything violent. The delay of releasing the majority resulted from the violent conduct of the majority of the crowd, some who threw missiles at the police.
- Had the protestors art 5 been infringed
- The court must ask themselves (1) has the claimant been deprived of her liberty and (2) if so, is that action rendered unlawful by virtue of falling within one of particular circumstances in which deprivation of liberty is permissible under art.5
-It has been argued that maintaing public order is not one of the purposes for which deprivation of liberty may lawfully occur according to art 5
- It was regarded as a legitimate purpose - that is attempting to prevent serious violence and disorder - prevented the containment of the protestors in Oxford Circus from amounting to deprivation of liberty
- The practical effect of Austin is to make deprivation of liberty lawful if it strikes a fair balance between the interests of the protestors and the need to maintain public order even though no mention is made of this in art 5.
Human Rights Framework for Counter-Terrorism:
- Art 2 duty: Osman v UK :
- Mrs Osman's husband was killed by her son's former teacher and her son was seriously wounded in the same incident
- There was an alleged failure to protect the right to life of the first applicant' husband and of the second applicant from the threat posed by an individual
- There were clear warning signs that this individual posed a threat to society
- It was held by the CA that there was no breach of duty of care
- The ECHR argued that there was not a breach of articles 2 and 3
Limitations to qualified rights:
Limitations on art 8 ECHR:
- Gillian and Quinton v United Kingdom:
- There was a case on stop ad search under s44 of the Terrorism Act 2000. The case concerns two journalists who were stopped and searched under this power and sought judicial review of the police's exercise of the power
- The journalists appealed to the ECHR alleging breached of various articles such as article 9, the right to respect for family and private life. The court found that the use of coercive powers conferred by the anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life
Limitations to qualified rights:
limitations art 10 ECHR:
Brind v United KingdomL
- The secretary of state issued directives requiring the broadcasters to refrain from broadcasting the spoken words by persons representing terrorist organisations
- They sought judicial review, that the directives infringed art 10 of ECHR
- It was held that the measures were not disproportionate
Rights challenges to counter-terrorism measures:
Chanal v UK:
- Sikh person claimed that he would be subjected to torture and persecution if he returned to India because of his political activities in the UK
- The Home Secretary refused the request for asylum
- The ECHR held that expulsion may engage the responsibility of the state under art 3 where substantial grounds are shown for believing that there would be real risk to the deportee of torture or inhume or degrading treatment in the receiving country
Art 5: What constitutes deprivation of liberty:
Control order cases:
Secretary of State for the Home Department v JJ and others:
- The men were all originally detained under the Terrorism Powers 2000, then released and then re-detained and finally place dundee control orders
- It was argued by the appellants that their right to liberty had been breached because the regime contradicted protections against unreasonable detention in human rights law
- Such as they contained 18 hour curfews
- The Law Lords argued that these were too restrictive and breached human rights
Secretary of State for the Home Department v E:
- E was a Tunisian but stateless and one of the first controllers, he lives with his family in north-west London. His order was taken out on 12th March 2005, the day after the legislation came into force, before then he had been in prison without charge under the system subsequently ruled illegal by the Law Lords. His control orders were renewed in March 2006 and then challenged further renewal in Feb 2007. E argued that renewing his control order was wrong because the Home Secretary had made no reasonable attempt to decide whether or not he should be prosecuted instead
- All of the Law Lords rejected E's case saying that it had no merit
Secretary of State for the Home Department v MB:
- Police stopped the appellant at Manchester Airport whilst he was trying to board a flight to Syria.
- Poilce officers interviewed him but allowed him to go. The next day he was stopped at Heathrow and it was believed he was trying to go to Yemen
- In making the control order the home secretary said that the security services believed MB was planning to fight in Iraq. The Law Lords said that MB was denied a fair trial because of the manner in which his case was dealt with
- The Lords rejected a second element of MB's appeal that a control order amounted to a criminal punishment which should be subject to open criminal proceedings
Art 6: The right to fair trial:
A and Others v Secretary of State for the Home Department :
- Facts: The HL had to decide whether s 23 of the Anti-Terrorism, Crime and Security Act was compatible with convention rights incorporated by HRA 1998
- Principle: the HL stated that..
1. personal injury is among the most fundamental of rights
2. although national security is a matter of political judgement for the executive and parliament, a court is required when convention rights are in issue, to give effective protection by adopting an intensive review of whether such a right had been impinged
3. the courts are not precluded by any doctrine of deference from examining the proportionality of measure taken to restrict such a right