Enforcement of HR

Judicial Review

• Held in the Administrative Courts in which they review the lawfulness of a decision or action, or failure to act, by a public body exercising a public function.

• These courts come under the Kings Bench Division

For this challenge to succeed the claimant will need to prove

• A public body is under a legal duty to act or decide in a certain way and is unlawfully refusing to do so

Or

• A decision or action has been taken by a public body that is beyond the powers given in law.

Grounds for Judicial Review

• Illegality: misuse or exceeding of legal powers by decision makers

• Irrationality: decisions so unreasonable that no reasonable authority would have made them (the Wednesbury principle)

• Procedural impropriety: failure to follow proper procedures such as consultation or impartiality

• Human Rights violation: Breaches of convention rights, including unlawful detention, interference with privacy, or restrictions on protest.

Appealing to the ECtHR

1. Applicant applies to European Court of Human Rights

2. Single judge decides its admissibility

3. Then either, a three judge panel considers the application if its based on previous cases OR a chamber of seven judges considers merits of the case if it is entirely new.

4. Then a grand chamber of 17 judges considers the merits of the case and any failure to comply with judgement.

5. Finally a committee of ministers considers infringement proceedings and enforcement.

Guiding principles of the ECtHR

• Living Instrument Doctrine: The convention is interpreted as evolving with society, ensuring rights remain relevant

• Proportionality: restrictions on rights must be necessary and proportionate in a democratic society

• Margin of Appreciation: states are granted limited discretion in applying human rights standards, recognising cultural and political diversity, but not permitting serious violations.

Criteria for admission

• The person referring the issue has to be a victim and directly affected

• Domestic remedies have to be exhausted

• The application has to be made within 6 months of the domestic court delivering its decision

• The complaint cannot be anonymous

• It cannot be substantially the same issue as was considered in a previous case

• It cannot be incompatible with the convention or an abuse of process

• The individual must have suffered a significant disadvantage.