Public - Human rights review of public authorities

Human rights judicial review

• Human rights Act functions as a 'bolt-on' to traditional judicial review

• Traditional judicial review is limited - HRA provides a much more balanced approach

• e.g. proportionality less rigid than Wednesbury unreasonableness test in traditional judicial review

• HRA review process could represent a step towards compromise in the UK constitutional design between the 2: court protects rights and Parliament remains sovereign

Key provisions:

• Section 6(1) – The Duty of Public Authorities: It is unlawful for 'public authorities' (including courts and tribunals) to act in a way that is incompatible with Convention rights.

•  Section 7 – Who Can Bring a Claim?: The test for standing to bring a claim under the HRA (with reference to article 34 ECHR); s. 7(5): Time limits to bring a claim.

•  Section 8 : Where a court finds that a public body has acted contrary to its duty under s. 6(1), HRA 1998, it may grant such remedy as it considers ‘just and appropriate’.

•  Section 2 – The Role of Strasbourg Case Law: Courts must ‘take into account’ ECtHR jurisprudence when determining the scope of Convention rights.

Can't challenge a right if it is aligned with Parliament and we cannot challenge Parliament for the original right as it is sovereign and holds Parliamentary power

Additional constitutional safeguards:

• Section 19 HRA: Statements of compatibility concerning Bills in Parliament.

•  Article 1 ECHR: This provision contains the fundamental duty upon Contracting States (High Contracting Parties) with regard to their jurisdiction.

•  Articles 15 & 57 ECHR: Allow limited ’derogations’ and ‘reservations’ in exceptional circumstances.

Convention rights as a ‘sword’ (offensive use)

• Individuals may bring a claim against a public authority for acting incompatibly with convention rights

• Based on s.6 HRA: public authorities must respect convention rights

• Individuals can initiate proceedings against the authority in a court or tribunal

• Time limit: 1 year from unlawful act (s.7(5) HRA)

• If combined with judicial review, the stricter 3-month JR time limit applies

Convention rights as a ‘shield’ (defensive use)

• Individuals may invoke convention rights to defend themselves in proceedings brought by a public authority

• Common in criminal justice contexts

• Individual must still show they are a 'victim of a rights' violation

Procedure & Preliminaries

Preliminaries include: time limits, application to be granted leave to bring proceedings in front of the court and standing and scope before we move onto substantive analysis of lawfulness of interference with selected rights

Range of remedies for HR violations:

• Declarations of incompatibility; declarations of invalidity and other declarations in general e.g. parties rights, clarifying their position and entitlement

• Injunctions

• Quashing/mandatory/prohibitory orders

• Damages; last result

Right to an effective remedy: Article 13 ECHR

• Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’

•  Law Commission (No. 266) (‘Damages under the HRA 1998’) ( October 2000): ‘Perhaps the most striking feature of the Strasbourg case-law, to lawyers from the United Kingdom, is the lack of clear principles as to when damages should be awarded and how they should be measured.’

Just and appropriate remedies:

•  See ECtHR Practice direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007 and amended on 9 June 2022 (re ‘just satisfaction’ claims)

• Not uncommon for the court to provide more than one remedy at once

•  Section 8(1) HRA gives the court power to ‘grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’

• Combining other remedial measures with damages to achieve ‘just satisfaction’

Tort v Human rights damages

1. Tort law

•  The aim is to restore the claimant to the position they would have been in had the breach not occurred.

•  Compensation is a right once liability is established.

2. Human Rights Act (s.8)

•  Courts may grant remedies that are ‘just and appropriate’.

•  Damages only where necessary to provide ‘just satisfaction’.

•  Not automatic and not awarded as of right.

The role of the Strasbourg Court

• Domestic courts must take into account ECtHR principles.

•  However, Strasbourg has not developed fully clear rules on damages.

(See e.g., Lord Woolf; Law Commission Report on Damages under the HRA)

Remedies are discretionary and must be just and appropriate; highly contextual. Must provide just satisfaction.

The concept of ‘just satisfaction’ in Strasbourg

• Article 41 ECHR

• the general aim of restitutio in integrum

• pecuniary loss vs non-pecuniary loss

• ‘costs and expenses’

• exercise of discretion under Article 41 & other measures in response to a violation

• ‘just satisfaction’ by a finding of a violation

• degree of loss; seriousness of the violation; conduct of the respondent/claimant; precautions; and others…

• causation & speculative losses

ASY and Others v SSHD [2024] EWCA Civ 373

in situations when an individual is exposed to a system that puts them in immediate danger of inhuman or humiliating treatment, damages can be granted without requiring proof that the victim actually experienced such treatment in violation of Article 3 ECHR.

Core ideas: traditional JR v HRA JR

• Part 54.1(2)(a) of the CPR: ‘A claim for judicial review means a claim to review the lawfulness of - … (ii) a decision, action or failure to act in relation to the exercise of a public function.’

•  Datafin – [64-65] LJ Llyod

VS

• Section 6 HRA 1998

• S 6(1) HRA: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

• Public authority includes according to sec 6(3)(b) ‘any person certain of whose functions are functions of a public nature…’

S6 Public Authorities

• Section 6(1) places an obligation on ‘public authorities’ to act in a way that is compatible with Convention rights. Pertinent parts of section 6 provide:

‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. […]

(3) In this section “public authority” includes-

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature…’

‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.

• Section 6 effectively recognises three types of bodies: ‘core’ public authorities (s. 6(1)); ‘hybrid’ or ‘functional’ public authorities (s. 6(3)(b)); and private bodies (s. 6(5)).

Core public authorities per The White Paper, ‘Rights brought Home’

• Human Rights Bill in October 1997, set out a list of those that would be included, and some broader guidance.

• In Chapter 2.2 the paper stated that: 'Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

• Lord Nicholls at [7] lists the following relevant considerations to be taken into account:

(a) the possession of special powers;

(b) democratic accountability;

(c) public funding in whole or in part;

(d) an obligation to act only in the public interest;

(e) a statutory constitution.

Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595

• Concerned housing authority that provided accommodation on behalf of local authority.

• Argument that they were carrying out public function when they carries out the act.

• Courts rejected fundamental approach and favoured outlining factors to take into account when deciding whether something should be classed as a functional or hybrid public authority.

(a) The fact that a body is a charity or is not motivated by profit does not necessarily mean that it performs a public function.

(b) Statutory authority for what is being done can help to establish the act as being public.

(c) The extent of control over the function exercised by a core public authority.

(d) Proximity of relationship between the private body and the delegating authority.

Aston Cantlow [2003]

• Wallbanks, as lay rectors, were required to pay for the repairs of parish church.

• HOL held hat parochial church council wasn't a core public authority under ECHR and that liability was private not public.

(a) the extent to which, in carrying out the function, the body is publicly funded; or

(b) exercising statutory power; or

(c) taking the place of central government or local authorities; or

(d) is providing a public service.

R (Heather) v Leonard Cheshire Foundation [2002]

• Loss of home constituted a violation of S.8 HRA. Can we review?

• Court applied factors and said not a public authority.

• No distinction between services that were public and private.

• LCF not exercising statutory powers even though there was statutory authority.

Health and Social Care Act 2008 - S 145

• provides that a care home provider is to be taken (for the purposes of s. 6(3)(b)) to be exercising a function of a public nature when providing accommodation together with nursing or personal care.

• (This provision does not apply, however, to acts carried out before the Act came into force in July 2008).

• The case law of the higher courts is still relevant to cases which do not concern care falling under s.145, and to cases which concern an entirely different context

indirect horizontal effect

• Private bodies with no public functions at all (S 6(5) HRA) / claims between private parties à indirect horizontal effect

• The ‘indirect horizontal effect’ of the Act arises from s. 6(3)(a), HRA which recognises that courts and tribunals are public authorities and are therefore obliged, in accordance with s. 6(1) HRA, to act compatibility with the Convention.

S6 HRA

• Section 6 of the HRA 1998 and the doctrine of parliamentary sovereignty exist in a state of ‘controlled tension’, where the judiciary must enforce Convention rights without violating the constitutional principle of parliamentary sovereignty.

• Courts CANNOT invalidate primary legislation.

• S 6(3): ‘In this section “public authority” includes […] but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.’

• S 6(6): ‘”An act” includes a failure to act but does not include a failure to - (a)introduce in, or lay before, Parliament a proposal for legislation; or (b)make any primary legislation or remedial order.’

S6(2) HRA

(2) Subsection (1) does not apply to an act if -

as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions

Section 7 HRA

‘(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act …

(b) …but only if he is (or would be) a victim of the unlawful act.’

‘(7) For the purpose of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention…’’

Article 34 ECHR

Standing - the HRA has effectively incorporated the victim test from Article 34, ECHR. It provides that for individual applications the ‘Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights…’

The scope of the standing test

• Indirect victim of a violation are permitted only in exceptional circumstances e.g. Centre for Legal Resources on behalf of Valentin Campeanu v Romania [2014]

• Concept of what a 'person' is has raised some difficult issues for the ECHR e.g. Vo v France [2005]

• An NGO can only bring an action when it can claim that a state is violating the rights that it enjoys itself as an organisation.

• It is possible in very exceptional circumstances for a ‘person’ without close relative status to be given standing to challenge a particularly egregious violation of the ECHR

Who is a victim?

COA noted there are 2 broad groups of cases where the ECHR has decided a person who hadn't personally/directly suffered a breach of a convention right could bring a claim

1. Cases concerning secret surveillance which provide little assistance in this context

2. 3 sub groups

1. direct victims who have died in circumstances which engage Article 2 ECHR (right to life) in which others, such as close relatives, can bring a claim

2. Applicants who have died during proceedings

3. Claims brought by a representative organisation on behalf of actual or likely victims

Court of Appeal held that to recognise the claimants as victims would mark a ‘significant development’ of the ECtHR case law and, as such, was not a step that it should take.

Standing, indirect victims and other Cs

[on behalf of a dead relative] ‘In this type of situation, the Court must examine whether relatives can be considered to be “indirect victims” of the alleged violation of the Convention suffered by the deceased “direct victim”, in default of which the application will be declared inadmissible as being incompatible ratione personae with the provisions of the Convention.’

Cannavacciuolo and Others v Italy, nos. 51567/14 and 3 others

Article 34: applicant associations not “directly affected”, thus lacking standing/victim status in accordance with the established case-law, since the approach taken in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland is limited to the context of climate change.

Ghazaryan and Bayramyan v Azerbaijan, no. 33050/18

Article 34: existence of exceptional circumstances allowing applicants to lodge the application, without written authority, in the name and on behalf of their vulnerable son, with mental health issues and in detention. Locus standi.

Rights:

Absolute (rights) – e.g., Article 3 ECHR

Limited rights – e.g., Article 2 ECHR

Qualified rights – e.g., Articles 8; 9; 10 ECHR

Qualified rights hold proportionality at the heart of them and the nature of them clashing with one another or crashing with general interests causing questions.

Article 14; doesn’t fit with any of the categories, doesn’t create a standalone right to no discrimination but it's only when exercising convention rights

Article 8 - right to respect for private and family life

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

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

Right to die falls under the right to a private life but finding a violation often isn't easy

Family law

• Principles regarding the 'best interest of the child'

• Family life in immigration cases; interference and assess lawfulness

e.g. Quila v Secretary of State for the Home Department [2011]

Evans v UK [2007]

• Competing family rights; partner trying to get rid of her embryos that they discussed together. Court recognised interference with her right to a family life

• New developments recognise same sex couples and their rights under Article 8 e.g. inheritance

‘Home’:

• Court recognises the concept of a home

• If you can prove something interferes with your home, it may come under Article 8. Not the right to housing but the way the house is framed e.g. family

• Article 8 cannot be used as a defence in the case of tenant facing eviction