Enforcement of HR

Enforcement of HR 

 

Judicial Review 

 

  • These are usually 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 King’s 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 or failing to do so OR 

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

 

  • This area covers public and hybrid public bodies, but where the body is entirely private it will be covered by the laws of employment and tort 

  • The claim being brought has to have a sufficient connection to the claimant. This is called ‘locus standing’. 

  • The three grounds for a review are Illegality, Fairness, and Irrationality/proportionality.  

  • The remedies available are quashing orders, prohibiting orders, injunctions, mandatory order, declaration, and damages 

  • Section 7 allows you to make a claim under the HRA. For judicial review you can both claim for judicial review and make a claim under section at the same time allowing you to double up and maybe get more compensation 

 

Appealing to the ECtHR 

 

  1. Applicant applies  

  1. European Court of Human Rights  

  1. Single judge decides it admissability 

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

  1. Then a Grand Chamber of 17 judges considers the merits of the case and any failure to comply with judgement 

  1. Finally, a committee of ministers considers infringement proceedings and enforcement  

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 their decision 

  • The complainant cannot be anonymous 

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

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

  • The individual must have suffered a significant disadvantage