1.

The Human Rights Act 1998 (how it works, and survey of its impact on administrative law)

Development of the protection of fundamental rights before the Human Rights Act 1998 Laws 1993 PL 59; Is the High Court the guardian of fundamental constitutional rights? To what extent can, and should, the common law courts themselves elaborate and make good basic rights by building on existing public law principles, so as to insist upon and secure a high degree of priority for those central rights which broadly find their place in the principal substantive provisions of the European Convention on Human Rights and Fundamental Freedoms (the E.C.H.R.)? Judges cannot incorporate the ECHR: Treaties made between governments cannot have domestic force for a good reason: It would be v undemocratic if the executive could just impose the contents of treaties as law without requiring a vote of approval from the legislature: The crown is not a source of law. Also in the case of Bibi [1976] 1 W.L.R. 979 Lord Denning rejected the proposal to incorporate the principles o the ECHR. However, Laws says an alternative position is to use the ECHR as a text to inform the common law. Judges often change the law based on evolving social or moral concepts and that the philosophy of fundamental rights is no different to this. This has often been done with regard to criminal or tort law. Equally courts often look to decisions from other jurisdictions to inform their own decision. This is not the same as incorporation. This was done by Lord Templeman in the Spycatcher [1987] 1 W.L.R. 1248 case. If it was deployed in this private piece of legistlation, then why not in public law too? In public law, procedural judicial review has become sophisticated and well developed, but substantial judicial review (guided by Wednesbury unreasonableness) has stood still. This is motivated by the courts concern that since the merits of a decision in the public law field will ordinarily have been committed by Parliament to the decision-maker in question, they can go no further in reviewing the substance of the decision than seeing that it is one which a rational person, addressing himself to the right issues, could have arrived at. Laws believes that the worse the infringement of an individuals righ by a public authority, the greater the justification must be. This is no more of a constitutional usurpation than Wednesbury, which itself imposes a judge-made standard on ministers. In fact Laws proposal has already been done (see Brind below). The courts have so far regarded proportionality in procedural terms, and only then as a variation of Wednesbury. They have not used it itself. They have refused to countenance it as a substantive tool, lest they undertake an examination of merits and usurp the role of the decision maker under review. Laws

makes same point as above that Wednesbury does the same thing, but is simply less effective in safeguarding rights. Irrationality alone is an unsatisfactory test for cases involving fundamental rights. They arent likely to be about rationality so much as how the decision maker has ordered his priorities. This is different from irrationality where, say, the facts ascertained could not lead the decision making body to that particular conclusion. If Laws approach were to take effect, the public law rule that public law decision makers have no duty to explain their reasons behind decisions. Under Wednesbury, only the putative device needs considering, and not the general reasons. Conclusion: [W]e may have regard to the E.C.H.R. (and, for that matter, other international texts) but not think of incorporating it. We should apply differential standards in judicial review according to the subject-matter, and to do so deploy the tool of proportionality, not the bludgeon of Wednesbury. A function of this is to recognise that decision-makers whose decisions affect fundamental rights must inevitably justify what they do by giving good reasons; and the judges should not construe statutes which are said to confer power to interfere with such rights any more favourably than they would view a clause said to oust their own jurisdiction.

Sedley 1995 PL 386; Human Rights: A Twenty-First Century Agenda o Judges are becoming more assertive in holding government to account e.g. the ministerial contempt cases. This is different the the judiciary of the 40s and 50s who remained passive in this respect. o We have a still emerging constitutional paradigm, no longer of Dicey's supreme parliament to whose will the rule of law must finally bend, but of a bi-polar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown's ministers are answerable--politically to Parliament, legally to the courts. That the government of the day has no separate sovereignty in this paradigm is both axiomatic and a reminder of the sharpest of all the lessons of Eastern Europe (NB This was written just after the fall of the Soviet bloc): that it is when state is collapsed into party that democracy founders. o While shared perceptions of what those needs are [needs of society and democracy] change as societies change, there are moral and practical continuities--of which the democratic principle is one--which can be powerfully represented as fundamental values, at least within the temporal and social horizons of each society. This is a modest basis for human rights and avoids the faith-based, subjective approach of universal truths. o He says that we are heading the way of greater use of fundamental rights in law. The solution of a bill of rights is likely (14 years on, this still hasnt happened!!) and that incorporation of the ECHR rights is a possible practical solution (though this ended up happening via legislation and not judicial incorporation).

o The major challenge to having a set of fundamental rights through a legislative/constitutional instrument is that rights will mean whatever judges say they mean, and we will get the unfettered rule of judges, who in the UK have historically been very illiberal e.g. the Privy Council struck down Canadas equivalent of Roosevelts new deal, seemingly because of political alignment (AG for Canada v AG for Ontario). By contrast in Australia, the High Court judges have been finding implied rights where none seemingly exist, undermining the constitution. o The judiciary ought to take a more prominent role in holding government to account *Brind [1991] 1 AC 696: A minister, within power granted to him by legislation, ordered the BBC no to show interviews with members of terrorist groups on a list. It was argued that this infringed article 10 ECHR. HL said that it is true that this limited the editorial freedom of BBC and freedom of expression for terrorists, but that the European Convention for the Protection of Human Rights and Fundamental Freedoms was not part of English law and, although the presumption that Parliament had intended to legislate in conformity with it might be resorted to in order to resolve ambiguity or uncertainty in a statutory provision, there was no such ambiguity here. HL also refused to apply the test of proportionality in reviewing the ministers use of his discretion (granted by the legislation) since this would be to second-guess the ministers decision (a power and duty that was granted to him by parliament). Lord Bridge: [W]e are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. Only the Wednesbury principles should be considered in determining whether the minister acted irrationally. Lord Ackner: The only relevance of the ECHR in domestic law is where there is an ambiguity and the courts are entitled to assume that parliament intended to legislate in compliance with their international treaty obligations (why could this not be said of ANY law? Possibly because if a parliament unambiguously passed a law that would breach ECHR, it would be a myth to interpret it in light of ECHR obligations.) *R. v. MOD, ex parte Smith [1996] QB 517, 554: The MOD had a ban on homosexuals becoming soldiers, which was challenged in CA on the grounds of (1) judicial review (Wednesbury unreasonable) and (2) being in breach of art. 8. CA held that ECHR was not domestic law and could not therefore found a claim in domestic courts. However, where the decision was subjected to judicial review on the grounds of irrationality, and the challenge had a human rights aspect, the court would require proportionately greater justification before being satisfied that the decision was within the range of responses open to a reasonable decision-maker, according to the seriousness of the interference with

those rights. Here though, because the policy was policy-laden, supported by parliament and involved security, the claim of irrationality could not succeed. Sir Thomas Bingham MR endorsed Pannick QCs outline: "The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decisionmaker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above." *R. v. Lord Chancellor, ex parte Witham [1998] QB 575, 585-586: The LC tried to increase court fees with the effect that many poor people would be incapable of bringing cases. A person affected by this sought judicial review, which was granted. CA held that access to the courts was a constitutional right which could only be abrogated by a piece of legislation specifically allowing the LC to do so. The legislation under which the LC purported to raise the fees did not do this. Accordingly the decision to raise fees was ultra vires and therefore unlawful. Laws J: It is unnecessary to refer to ECHR articles because the right of access to the courts is enshrined in domestic law through precedent. This approach (finding a right substantively the same as those in the ECHR in precedent) was done with regard to free speech in Derbyshire CC v Times Newspapers. It is so important a right that only an explicit parliamentary provision can allow the executive to abrogate from it. R. v. Home Sec., ex parte Simms [1999] 3 All ER 400 (HRA 1998 NOT YET IN FORCE!): Some journalists believed that the prisoners were wrongly convicted and wanted to interview them to publish a story on their conviction. The sec. or state imposed a ban on journalists interviewing prisoners except insofar as they agreed not to use the information professionally. The prisoners argued that the restriction infringed their right of free speech. HL held that this was an infringement of the prisoners rights of free speech. Any legislation affecting fundamental human rights was presumed to be subject to those rights (presumed parliamentary intention), unless explicitly stating that it was intended to breach those rights. Therefore the ban made by the sec of state, under legislation which did not explicitly permit an interference with freedom of speech, was unlawful. Lord Hoffmann: Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. He says that s.3 of HRA will give legislative effect to the legality

principle i.e. that statutes not explicitly derogating from human rights will be presumed to be subject to them. The Human Rights Act 1998 Craig, Administrative Law (5th ed., 2003) pp. 568-603: The Standard of Judicial Review:

ECHR Precepts: 1.) Paradigm circumstance: court decides there has been a PF interference with a convention right, then D argues that this was warranted on the facts of the case. 2.) National court has to decide whether the interference was in accordance with the law as demanded by various convention articles. Clear that this phrase requires not only that there must be some proper source of the law authorising the interference, but also that it has the quality of law & is adequately accessible to the citizen. 3.) National court may then have to decide whether the limitation on a Convention right serves a legit aim. 4.) Then the national court determines whether the interference with the right was proportionate. Any interference must be proportionate to the legitimate aim being pursued & this has to be judged not in the abstract, but by whether the interference was necessary having regard to the facts & circumstances prevailing in the case before it. Application of the test affected by the right that is in issue in the instant case.
Margin of appreciation: When determining whether interference with a protected right was necessary in a democratic society some deference would be given to state authority, which would be in a better position than the international judge to determine the needs within its own country. The doctrine helps to define the relationship between a supranational court & national authorities, including national courts premised on the assumption that what might be necessary to attain the stated interests might vary from state to state even within democratic societies & distance of ECtHR from local circumstance as compared to the national executive means that some deference should be accorded to the latter. But clear that English courts havent adapted MoA twin rationales arent appropriate where Convention Rights are applied by domestic courts. Sir John Laws: they will not be subject to an objective inhibition generated by any cultural distance between themselves and the state organs impleaded before them.

Domestic Concept of Deference: Lord Hope in Kebliene (2000): MoA n/a but national courts should recognise that difficult choices have to be made between the rights of the individual & the needs of society. Follows that in some circumstances the courts should acknowledge an area of judgement within which the judiciary will defer, on democratic grounds,

to the considered opinion of the elected body or person whose actual decision is said to be incompatible with the Convention. More likely found when: Convention required a balance to be struck or issues of social or economic policy. Less likely: right was unqualified or of high constitutional importance the courts were well placed to assess. Lord Hoffman in Alconbury noted the importance of deference & its limits: in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies, or persons accountable to them. Notes that sometimes P will legislate directly, but in others not possible to formulate general rules so the question would have to be decided on a case-bycase basis, as with planning P delegates decision making to ministers or LAs, thereby preserving the democratic principle. In such instances the only fair method of decision is by some person or body accountable to the electorate the HRA was no doubt intended to strengthen the rule of law, but not inaugurate the rule of lawyers. But limits: certain basic rights should not be capable of being overridden by the majority, even if they think that the public interest so requires. There are rights which belonged to individuals simply by virtue of their humanity, independently of any utilitarian calculation.

Factors taken into account by courts:

Laws LJ in Roth: 4 general deciding principles: 1.) Greater deference paid towards an Act of P rather than decision of exec or subordinate. 2.) More scope for deference where Convention itself said a balance should be struck, much less so where the right was stated in terms which were unqualified. 3.) Where particularly within the democratic powers constitutional responsibility, e.g. defence of the realm. 4.) Whether the subject matter was more readily within the actual or potential expertise of the democratic powers or the courts, e.g. why economic matters usu. gov control. Courts sometimes pick and mix on the facts of the case, e.g. with A, where in relation to whether there was a risk of terrorist attacks at some future date, which was the foundation of an order derogating in certain aspects from Convention rights, HL characterised issue as mostly political & gave great weight to the judgement of the exec & P. But with treating nationals & non-nationals equally, HL engaged in a more extensive review because the right to liberty was at stake. Lord Hoffman is against deference because he thinks it has overtones of servility. When a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law.

 Proportionality under the HRA: Daly: Standard of review under HRA is important & the courts have adopted proportionality as the appropriate standard. From Daly (2001), where A challenged the policy, made pursuant to s.47(1) of the Prison Act 1952, whereby a prisoner could not be present during a search of his cell, when prison officers examined legally privileged correspondence. Argued that this infringed his common law right to communicate confidentially with his legal adviser & art. 8 ECHR. Lord Steyn held that there was a material difference between the heightened scrutiny test (Wednesbury) & one framed in terms of proportionality. Acknowledged that many cases would be decided the same way under either test, acknowledged that the intensity of review would be greater under proportionality for two reasons: 1.) Require the reviewing court to assess the damage struck by the decision maker, not merely whether it was within the range of reasonable decisions. 2.) Oblige the court to pay attention to the relative weight accorded to relevant interests, in a manner not generally done under the traditional approach to review. Proportionality test will apply whenever the public authority argues that the restriction of a right was necessary in the interests of a democratic society on one of the grounds specified in the relevant article. No inconsistency with having proportionality as a test for review & recognising that deference/respect/discretionary area of judgment will impact on how proportionality is applied in a particular case. Test applied & the effect of D/R/DA on the application of that standard, are two distinct issues. Proportionality will be relevant when deciding whether the limitation really was necessary in a democratic society. If it were not proportionate then it would not be deemed unnecessary.
Classic three stages of the proportionality inquiry: 1.) whether the measure was necessary to achieve the desired objective; 2.) whether it was suited to doing so and 3.) whether it nonetheless imposed excessive burdens on the individual.

Proportionality under HRA: The Role of the Court & the Initial Decision-Maker: 1.) Court will make the ultimate decision on whether there has been a breach of a Convention right, including the proportionality issue which is integral to the final decision as to whether there has been a violation of the relevant Convention right. The proportionality analysis will be taken in accordance with Steyns approach in Daly. 2.) Will still, however, be open to the reviewing court to give weight to the views of the primary decision-maker insofar it believes that they should be accorded some deference/respect, or that the issue falls within the primary decision-makers discretionary area of judgment.

3.) Weight given by the court to the view of the primary decision-maker will also be influenced by the extent to which the latter addressed Convention issues when it made its deliberation. There will be a greater likelihood of the public bodys decision being regarded as proportionate if it consciously addressed the Convention issues when making its decision.

*Hoffmann (1999) 62 MLR 159; Human Rights and the House of Lords: What will the impact of the HRA 1998 be? (Written before the act came into force in 2000). Obviously the act will not allow the HL to strike down primary legislation, and so HL will still be less powerful than other supreme courts around the world. However a declaration of incompatibility will lead to such great pressure that the govt would de facto have to change the law and therefore this distinction is merely technical. (Really? In some cases the govt might actually gain political capital for refusing to comply e.g. in anti-immigration/terrorism measures). He says that less human rights decisions will be required here than in the US. There, many key issues were not legislated on for political reasons, so that the Supreme Court had to make interpretations based upon the vague provisions of the constitutions. Here, many of those subjects have been the subject of detailed legislation. E.g. death penalty, civil partnerships, sex discrimination etc. Furthermore, the stronger party system of the UK and wide areas of consensus over human rights (really?) means that politicians will not leave the same gaps inlegislation as their US counterparts. There is a potential conflict between the courts of the UK and those of Strasbourg where they are not in agreement, especially because s.2(1) merely requires UK courts to take into account decisions from Strasbourg, but are not bound by them. E.g. Osman v UK where the CA had struck out Ps claim that had the police not been negligent in policing her husband wouldnt have been shot by X, since under UK law the police cannot be sued for negligence in policing methods/allocation of resources. The Strasbourg court held that this breached Ps right to have her case heard by a court or tribunal. What would have been the point of allowing the case to go ahead when it had zero prospect of success? He is concerned that the Strasbourg court will attempt to impose uniformity on all signatory countries. Whats wrong with having a basic level of human rights enforced by all signatories? Fredman 2000 Current Legal Problems 99 Irvine The Impact of the Human Rights Act: Parliament, Courts and the Executive [2003] PL 308: The act doesnt undermine parliamentary sovereignty, since a declaration of incompatibility doesnt void the legislation. Furthermore s.6(3) excludes parliament from the definition of public authority. S.19 requires that a minister introducing a bill either state that the bill is, in his belief, compatible with the

ECHR or that he wishes parliament to proceed anyway. This strengthens parliaments function as a scrutiniser of legislation. Critics of the bill said that the judiciary would become politicised. Lord Irvine said that every big public law case inevitably has political controversies inherent to it, and this happened as much before the acts introduction as prior to it e.g. the cases of Brind and Smith (both above). Also the courts had been using ECHR principles long before the HRA actually came into force. Other critics were concerned about the act leading to the rule of lawyers i.e. that enthusiastic lawyers would undermine policies of governments etc by bringing human rights cases. This placed little faith in the ability of judges to rule against unmeritorious cases and failed to see the extent to which our laws were already compliant (or made to be compliant in the courts) with the ECHR. The margin of appreciation brought in to the UK was facilitated by the introduction of the ECHR to UK law by the HRA 1998. However he accepts that the new tests will require analysis of the policies behind legislation (as Laws LJ predicted, see above), under an examination of proportionality. In Daly Lord Steyn identified 3 key differences between the doctrines of proportionality and traditional judicial review: First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is in the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test (i.e. a hands off approach where security is concerned) developed in ex p Smith is not necessarily appropriate to the protection of human rights. Irvine argues that the balance struck between ss.3 and 4 is evidence of the new cooperative balance between the three branches of government. What about where the courts deliberately attempt to use s.3 so as to avoid passing back the legislation to parliament/executive for resconsideration i.e. judicial activism? Also what about the ambitions of some judges to move towards full substantive judicial review e.g. Lord Steyn/Baroness Hale in Jackson. Following the introduction of the HRA the executive will have to build ECHR considerations into pieces of legislation, which is their new duty under this new arrangement between branches of government. Conclusion: It has corrected a 50-year long anomaly, by which British people had rights but could only access them in Europe, not at home. In doing so, it has moved public decision-making in this country up a gear, by harnessing it to a set of fundamental standards. And it has breathed new life into the *P.L. 325 relationship between Parliament, government and the judiciary, so that all three are working together to ensure that a culture of respect for human rights becomes embedded across the whole of our society. -Challenges to Legislation

Human Rights Act 1998, sections 2,3,4,10 and 19: s.1 = incorporation of articles 1-12 and 14 of ECHR and 1-3 of first protocol and art.1 of 13th protocol, as read with art.16 + 18 of ECHR (these are set out in schedule 1) s.2 = courts must take into account of European Court of Human Rights (i.e. their decisions, opinions, declarations), decisions of Council of ministers and opinions and decisions of commission which are relevant to the proceedings. s.3 = So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. This section also says that this has no effect on continued validity, enforcement or operation of primary legislation and same is true for secondary legislation whose removal is prevented by primary legislation. s.4 = courts can make a declaration of incompatibility where a piece of primary legislation is incompatible with an ECHR provision or where a piece of secondary legislation, whose removal (ignoring repeal of primary legislation possibility) is prevented by primary legislation, is incompatible S.10= If a provision of legislation has been declared incompatible with the ECHR under s.4 and either there cant be a further appeal or the parties involved do not intend to appeal, then the following applies: A minister who considers that there are compelling reasons for doing so may make a remedial order under this section to amend the legislative provision to remove the incompatibility as he considers necessary. This also applies to primary legislation under which a secondary piece of legislation that was ECHR incompatible was made. R. v. A (No 2) [2001] UKHL 25; [2002] AC 45: D was accused of rape and wanted to be permitted to question the victim over their previous relationship and her sexual activity immediately prior to the supposed rape. The Youth Justice and Criminal Evidence Act prevented such questioning so as to avoid unnecessary humiliation of rape victims at trial. D claimed that this denied him the right of fair trial (article 6 of ECHR) and that he sought either a s.3 interpretation or a s.4 declaration. HL said that since the evidence D wished to bring forward was relevant to his case, and since article 6 was an absolute right, to deny him the ability to adduce such evidence would be to deny him his right. HL decided that to reconcile the legislation and the right under article 12, they would ask whether the evidence was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6; and that where that test was satisfied the evidence should not be excluded. This was an application of s.3 HRA 1998. In this case the evidence D wished to adduce was not so relevant that to exclude it would jeopardise the fairness of the trial and therefore Ds appeal was dismissed.

Lord Steyn: it is logical to use S.3 widely so as to reconcile legislation with rights since presumably, if parliament were told about the rights their law was breaching then they would have changed it. S.3 is a strong obligation and, where necessary, the courts should take a contextual and purposive approach, even where the meaning of the legislation is clear and the interpretation of HL appears linguistically strained. A s.4 declaration of incompatibility is the last resort since it neither guarantees rights or gives remedies whereas s.3 interpretations, indirectly, can. Lord Steyn comes up with the test above. Lord Hope: It is the courts duty to interpret and not legislate and therefore the courts should not be amending legislation. Bellinger. v. Bellinger [2003] UKHL 21: A male to female transsexual who had married as a woman sought a declaration from the courts to the effect that she had contracted a valid marriage. Under the Matrimonial Causes Act, marriage had to be between a man and a woman, using criteria that prevented gender reassigned individuals, such as the plaintiff, from being recognised as having become a woman. HL accepted that this was a breach of Ps article 8 and 12 rights and granted a s.4 declaration of incompatibility. Lord Nicholls: He denied that no useful purpse would be served by s.4. He said that it was appropriate for the house of lords to recognise that the law was incompatible with ECHR at the moment and that it was better to use s.4 than s.3 since the government was planning primary legislation on the matter anyway. Ghaidan v. Godin-Mendoza [2004] UKHL 30; [2004] 3 WLR 23 (noted Young [2005] PL 23): A was in a homosexual relationship with B who had a protected tenancy. B died and under the Rent Acts a partner acting as a husband or spouse who was living with him was entitled to an assured tenancy. HL ruled that in order to make the act compatible with convention rights, they would make a s.3 interpretation so as to say that homosexual couples can also count as spouses. S.3 usage does not depend on their being some ambiguity in legislation. Lord Nicholls: He said that to exclude homosexuals would be to make the act incompatible with article 14 (non-discrimination). He says there is difficulty in deciding what s.3 HRA means by as far as possible. He accepts Steyns view in R v A (no.2) and says S.3 is unusually far-reaching: Parliament, in passing the HRA 1998, is consenting to the courts modifying an acts meaning as far as possible so as to make it compatible with convention rights, even if this goes against the clearly intent of parliament. Use of s.3 does not rely on their being some ambiguity in legislation- that would render its usage a semantic lottery. However the meaning imported must be compatible with the underlying thrust of the legislation construed & any word implied must be within the grain of the legislation.

Lord Steyn says that the aim of HRA 1998 was to bring rights home, which only s.3 interpretation can do: the declaration cannot. He reaffirms the need for s.4 to be treated as a last resort (it is NOT remedial). Though it can lead to a change in the law which has the benefits of keeping clarity in the law, avoiding linguistic strain and allows an amendment to happen quickly by remedial order under s.10. Lord Millett (dissenting) denied that s.3 could be used. The statute could not feasibly be given the meaning that the majority considered it to have. He says that S.3 is NOT really conferring a quasi-legislative function rather than purely an interpretative one. A and X v. Secretary of State for the Home Department [2004] UKHL 56: Under Antiterrorism, Crime and Security Act 2001 (c 24), s. 23 the govt detained non-nationals whom it suspected of terrorism whom it wished to deport but could not out of fears for their safety/other practical problems etc. The govt also announced that it would be derogating from the right to personal liberty, as set out under art. 5 of ECHR. HL said that the legislation was ECHR incompatible and therefore a s.4 declaration would be made. NB Article 15 states that: In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (1) Derogations are made under the requirements of article 15 of the Convention despite that article not being included in UK law. The requirements included a threat to the life of the nation and all the lords, except for Hoffman, accepted that this was an inherently political judgement to be taken by the executive, not the courts. (2) As for the requirement that the derogation be strictly confined to the exigencies of the threat, this was to be answered by whether the derogation was proportionate to the threat (this is just as political as saying whether the threat exists so Hoffman seems to be more realistic). HL said that since the right to liberty was fundamental, and since the provision of the legislation was discriminatory (it didnt relate to nationals of equal threat) and since there was the risk of ordinary people being deprived of liberty then the derogation order seemed a disproportionate response. (3) The derogation orders would be quashed and s.23 of the 2001 Act would be declared incompatible with ECHR Lord Bingham (WITH MAJORITY) said that the threat was a political question and a hard one on which reasonable minds differ, so that great weight should be given to the judgement of the Home Secretary and it would be wrong for the court to deny a

situation threatening the life of the nation existed. He accepted the arguments that terrorism was not just threatened by foreign nationals and that there were non-detention based ways of stopping terrorism as these are used on British suspects. Building on this he came o the highly political decision that the act was not a rational way of fighting terrorism since it only related to foreigners and therefore the discrimination made no sense and was therefore disproportionate to security needs. He also accepted that the courts are entitled to review derogation orders on proportionality grounds. This is consistent with other areas of judicial review. Given what is said above, the derogation order is disproportionate given how fundamental the right to liberty is and how discrimination is contrary to UK law. Baroness Hale adds that although it might sometimes be acceptable to treat aliens differently, in this case it is not and is not proportionate to how much it would help fight terrorism, which in the majoritys view is not much. How can they make such a political call? Simply because the removal of most suspected terrorists will not solve all terrorism problems doesnt mean it wont help greatly. They should be intellectually honest and say that his is really about rights Vs security and that rights win. Lord Walker (dissenting): The threat is massive and the court would be right to err on side of safety, as was accepted in Ireland v UK. Its not a discrimination based on race but on right to be in UK (to extend this to UK nationals would in fact be far more oppressive). He also says that if we accept that govt will know better than the court how great the threat is (e.g. secret intelligence sources etc) then it is the govt too who will know whether the derogation order and the acts made on the basis of this derogation are justified. Lord Hoffman (agreeing with majority conclusion, but on different basis): Physical terrorist violence is not threatening the life of the nation. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory. I.e. he says that terrorism is not really threatening our institutions and way of life as defined by rule of law, right to liberty etc. Therefore a derogation from these and an act against these is unconstitutional. He rightly does not try to avoid making a call as to the size of the threat. If there are clear criteria, e.g. threat to the nation then there is no reason why the courts cannot determine such questions. It makes far less sense to say that is there a threat is political, but is the response proportionate is not political. R. (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] 1 A.C. 1312: P wanted to run a TV advert arguing against cruelty to animals, with the aim of stopping testing on animals. The Broadcast Advertising Clearance Centre, an informal body that monitors adverts for commercial broadcasters, didnt give clearing to the advert since political broadcasting is banned under the Communications Act. HL held that Ps article 10 right had NOT been

violated, since the policy served by the act was justified as necessary in a democratic society and therefore compatible with ECHR. Lord Bingham: The justification for the policy is to prevent political pressure being applied and debate dominated by wealthy groups with bad aims e.g. anti-abortion groups, pro-gun groups etc. He says that the reason we need this in TV/radio and not other mediums is that they have a more immediate, powerful effect. The blanket ban is no more than is necessary- there is no other practicable means of limiting exposure to TV e.g. a rationing system (note this as an example of making judges politicised: Bingham is having to discuss policy alternatives and se if there is a less intrusive one to art 10 than the current policy).

*Kavanagh 24 OJLS 259: o When making s.3 interpretations, judges have to make both interpretive evaluations i.e. evaluations about the limits of s.3 and their ability to interpret, as well as substantive evaluations, which involves considerations of the broad moral terms in which convention rights are framed e.g. what is the meaning if fairness in the right to a fair trial. o Interpretation is an evaluative activity which goes well beyond the mechanical task of 'discovering' and then 'declaring' legal meaning. Really? Even when accepting that judges have to make the kind of substantive evaluations mentioned above, this is still to discover the meaning of the law. It is meaningless to speak of discovering the meaning of X so as to render it Y. Clearly this would not be so much discovering meaning as amending or discovering the meaning as we would like it to be. o In many of the cases arising under the HRA 1998 there will be novel problems which therefore do not have precedent. In such a context obviously judges will have to make new law. o Three discoveries about HRA interpretation: FIRST: although the law which develops under the HRA will be informed, shaped and limited by the terms of the Act itself, it will nonetheless be judge-made law. This is because Parliament has formulated the Act in broad terms, which inevitably require elaboration by the courts in order to apply it to the circumstances of each new case. SECOND, even in cases where judges apply existing law, they cannot avoid facing the question of whether to change and improve it. They will always have to evaluate whether to conserve existing law or innovate it, weighing up the competing considerations which pull in favour of each option. THIRD, the suggestion that interpretation involves a combination of applying existing law and developing new law emphasises what has been referred to as 'the Janus-like aspect of interpretation'. Interpretation faces both backward, aiming to elucidate the law as it is, and forward, aiming to develop and improve it. So the judge engaging in the interpretative enterprise must interpret the words of the legal provisions (and also any relevant or analogous case law), but will also have to decide whether or how to

develop the law in further directions in order to decide the case at hand. Interpretation has an applicative and creative aspect. o On the issue of whether to apply the existing law or change/develop it (I.e. whether to conservatively use s.4 or radically apply s.3) judges having to take account of certain factors. A conservative approach will help legal certainty and stability, as well as the idea of parliamentary supremacy. In favour of innovative interpretation is the concern of fairness/justice, as well as the fact that parliament intended to give the courts sweeping powers under the HRA 1998 given the vague language and large areas of discretion. o What of the statement that judges under the HRA have the right to interpret, not legislate? (1) It is an impossible recommendation, since many of the terms used in the text are indeterminate i.e. open ended. This would also undermine the whole point of the act, which is to have a stable framework in which human rights can be protected, which is impossible without judicial creativity. (2) In practice, if not in theory, it is hard/impossible to distinguish between interpretation and law-making. (3) It is therefore more sensible to view this statement as meaning that judges are not as free as legislators to make law. The former have to have strong regard to what the legislators intended/which words have been put in the act/convention, whereas the latter can do whatever they want. Also, only judges are constrained by precedent. o In interpreting under s.3(1), judges have the negative task of seeing whether there has been an infringement of an ECHR article, and the positive task of finding a way to remove that infringement. What are the limits of this interpretive power (i.e. where should s.4 be invoked and s.3 be dropped)? In R v A Lord Hope suggested that the outer limit would be giving a meaning to a piece of legislation that was expressly contrary to its actual meaning. Lord Steyn, R v A said this should be the only limitation, since parliament had specifically rejected the NZ model which only allows judges to make reasonable interpretation i.e. parliament intended the courts to use s.3 v extensively. He also noted the statements of the Lord Chancellor in Hansard that it should be 'possible' for the courts to find a Convention-compatible interpretation 'in 99 per cent of the cases that will arise',75 and that the declaration of incompatibility under section 4 is a measure of last resort. It followed, according to Lord Steyn, that section 3 allows judges to occasionally adopt an interpretation which linguistically may appear strained. Lord Hope in addition has suggested necessary implications of acts place another restraint on the use of s.3. These are clauses that are so essential to the act that the express terms imply their existence. -Challenges to acts of public authorities Human Rights Act 1998 sections 6, 7, 8 and 9: S.6: Section 6(1): provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Creates a new statutory head of illegality for

breach of a Convention right free standing statutory ground of challenge. Most cases will probably be brought under this head rather than ss.3/4 as people only concerned with their own situation. It applies to failure to act too, though parliament is exempt from this provision. S.6(2) exempts public authorities that could not have acted differently because of primary legislation. Section 6(3)(a): a public authority includes a court or tribunal, & section 6(3)(b): any person whose functions are functions of a public nature. Section 7(1): a person who claims that a PA has acted (or proposes to act) in a way which is made unlawful by 6(1) may a.) bring proceedings against the authority under this Act in the appropriate court or tribunal, or, b.) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Section 7(3) makes the standing criterion of being a victim operates when the proceedings are brought by way of judicial review. Time limits in section 7(5) when proceedings are brought under s.7(1)(a) they must be commenced before the end of one year beginning with the date on which the act complained of took place, or such longer period as the court or tribunal considers equitable having regard to all circumstances. However expressly made subject to any rule imposing a stricter time limit on the procedure in question. Also the time limit only applies to offensive claims and not defensive purposes. Section 8(1): in relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just & appropriate. Section 8(3) damages should only be awarded where other relief cant afford just satisfaction to D. Section 9: Proceedings regarding a judicial act can be brought by appeal/judicial review, though this doesnt affect any rule(s) preventing the courts decision being judicially reviewable. If successful damages can be awarded, provided the minister responsible for the courts is joined in the appeal.

Definition of public authority *Poplar Housing and Regeneration Community Association Ltd v. Donoghue [2002] QB 48: The applicant was provided interim accommodation in council property. The local council transferred the property to Poplar Housing and Regeneration Community Association Ltd, a housing association. Poplar Housing began possession proceedings and the applicant sought to rely on Article 8. CA concluded that the role of the housing association was so closely assimilated to that of the council that it was to be considered a public authority in this instance. CA set out some guidelines on what constitutes a public authority (PA). Just because an act is undertaken by a body which otherwise a PA would have a duty to provide does not mean that the body is a PA. It could be a hybrid

organisation, which has both public and private functions and is therefore a public authority in respect of its public duties, but not in respect of its private ones. Indicators of being a PA: Statutory authority; Control over the function by another body which is a public authority; Acts which might be of a private nature being enmeshed in the activities of a public body; Closeness of the relationship with a public body; Transfer of responsibilities between public and private sectors; Supervision by a regulatory body; Carrying out functions which would be public if they were carried out by a public bodies; Performing activities in what is perceived is the public interest. R. (Heather) v. Leonard Chesire Foundation [2002] 2 All ER 936, [2002] HRLR 30: Appellants were long-term patients in a home run by LCF & sought judicial review of LCFs decision to close the home. Argued that they had been promised a home for life in their current accommodation, that the decision to close the home was in breach of art.8 of ECHR & that this was so even though alternative accommodation in community-based units would be provided. Majority of residents had been placed there by social services departments of their local LA or health authority. Placements were paid for by the authorities & made under statutory powers, which provided that the accommodation could be provided in house by LA itself or contracted out. Lord Woolf gave judgement & followed Donoghue. If the LA itself provided accommodation, it would be performing a public function & where it made arrangements for the accommodation to be provided by LCF. Did not however mean that LCF should be regarded as performing a public function to fall under HRA. Weighed up factors & concluded that LCF should not mere fact of public funding didnt determine whether the functions were public or private. There was no evidence of there being a public flavour to the functions of LCF or LCF itself, which did not exercise statutory powers in caring for As. Aston Cantlow PCC v. Wallbank [2003] UKHL 37: Parochial church council served a notice on Ds to repair the chancel of the parish church. Ds resisted payment, alleging, inter alia, that the notice infringed its rights under art.1 of the First Protocol. HL concluded that PCC couldnt be regarded as falling in either the PA or hybrid category. Although CofE had special links with central gov & performed certain public functions, it was a religious not a governmental organisation & PCCs were part of the means by which the Church promoted its religious mission & discharged financial responsibilities in respect of parish churches. The functions of PCCs were primarily concerned with pastoral & admin matters within the parish & were not wholly of a public nature were not core public authorities under s.6(1). When P took steps to enforce Ds liability for the repair of the chancel, it was not performing a function of public nature, which would have rendered it a hybrid public authority. ** YL v Birmingham City Council [2007] UKHL 27; [2007] 3 WLR 112: C (84) suffered from Alzheimers. D council had a statutory duty to make arrangements providing her with residential accommodation & it chose to fulfil that duty (as it was allowed) by contracting with 2nd D company to place her in one of its care homes, which accommodated both privately funded residents & those whose fees were paid by D in full

or part. Cs fees were paid by the council, save for a small top-up fee paid by her relatives. 2nd D company sought to terminate the contract for her care & remove her from the home. C argued that the company fell within s.6(2)(b) HRA & its actions were in breach of 2, 3, 8 of ECHR. Majority of HL rejected this claim distinguished between the function of LA in making its statutory arrangements for those who couldnt make arrangements for themselves & that of a private company in providing such care under contract on a commercial basis rather than by subsidy from public funds. Held that the actual provision of care & accommodation by the private company (as opposed to its regulation & supervision pursuant to statutory rules) was not inherently a public function fell outside of 6(3)(b). Thus while C had retained public law rights against the LA that arranged the accommodation, she didnt have Convention rights against the care home. But powerful dissent by Lord Bingham & Baroness Hale. The statutory legislation allowed the LA to discharge its duty by arranging care itself or doing so via a secondary organisation: alternative means by which the responsibility of the state may be discharged. Rejected the distinction made by the majority between arranging for & providing accommodation intent of P was that care should be provided important that the duty WAS performed, not HOW it was performed. Bingham: when the 1998 Act was passed, it was very well known that a number of functions formerly carried out by private bodies. S.6(3)(b was clearly drafted with this well-known fact in mind. He also says that those in care are the most vulnerable and therefore have a greater need for protection. Clearly the provision of care is a public function. Lord Neberger said that Lord Neuberger: core public authorities are bound by s.6 in relation to every one of its acts whatever the nature of the act concerned. See Palmer article (below) *9th Report of the Joint Committee of Human Rights for 2006/7 http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/77/77.pdf: It was the intention of parliament that those providing public services should be considered persons with functions of a public nature. Both the then home secretary and lord chancellor said that contracted-out services should still be made to act in a convention-compliant way. The courts current definition of Pas is problematic as it leaves a gap in human rights protection. It is out of touch with reality, now that many services, such as care homes and schools or law enforcement and running prisons may not be run directly by PAs, but contracted out e.g. publicprivate partnerships. The 2004 report recommended that to address this problem the government should publish guidance to LAs and intervene in cases to argue for a wider interpretation of PAs. The government adopted these, but the courts have not gone for a wider interpretation. Regarding the definition of PAs, the protection of human rights is dependent not on the type of power being exercised, nor on its capacity to interfere with human rights, but on the relatively arbitrary criterion of the bodys administrative links with institutions of State.

 There are concerns of legal uncertainty both for service users and providers. There is an argument that service providers will leave the market if forced to comply with human rights legislation. JCHR is dubious: There has so far been fairly few cases against pure PAs and similar threats have been made by companies at the introduction of any consumer rights law without actually materialising. Also government contracts are too big and profitable to ignore. Also, none of the major service providers themselves who gave evidence to the committee threatened to leave the market! In addition to strengthening the measures already in place (guidance + legal intervention by govt) there may also be a case for primary legislation to flesh out he definition of public authority/function of a public nature. This could be done by o Scheduling PAs, but this could lead to inconsistency and confusion as to whether unlisted or unspecified public authorities should be considered subject to the application of the HRA. This could result in a narrower application of the HRA than that currently required by the courts interpretation in Leonard Cheshire. Bad solution. o Extending PAs by sector could cause inconsistencies/omissions and prevent a general solution from being found. o The problem with trying to amend s.6 is that, in the current political climate, the application of the act would probably be decreased, not increased. Therefore amendment should be a last resort. Perhaps a separate, interpretive statute, giving PAs a definition would be preferable.

Palmer, Public, Private and the Human Rights Act 1998: An Ideological Divide 66 CLJ 559 (discussing impact of the YL decision); Given the increasing use of PFI and PPP the definition of PA is critical. In principle, PAs can be held responsible for the acts of private parties e.g. where a state has delegated responsibility for making its operation convention compatible to others/ where the state has positive duties under the convention e.g. art. 3 prohibition on torture or right to a fair trial under art. 5 or right to private/family life under art. 8. This has been established by Strasbourg jurisprudence. Also the HRA 1998 was made against the backdrop of a shrinking public sector and must have been intended to operate in this context. In parliamentary debates, it was made clear that contracted out services were intended to be covered by the act. In arriving at the criteria on which to decide whether or not a party is a PA, the courts have used institutional factors to guide them (e.g. the source of power, links to govt etc) rather than functional factors i.e. was this a public service. The result has been to leave a rights gap.

 In the YL case, Lord Mance (majority) said that a profit making care home couldnt be considered a PA he said that the rationale of s.6 was addressed to the scope of state responsibility in Strasbourg. Therefore he found the concept of governmental helpful and said that the existence and source of any special powers or duties must be a relevant factor. He said that the actual provision of care, unlike arranging for its provision, was not an inherently governmental function. He also said that the commercial, profit making nature of the private contractor meant that it could not be a PA- note the institutional nature of his test. He also said that there was a public law-private law tension and human rights duties would undermine the service providers freedom of contract. Also he said it would lead to unequal treatment of those funded by LA compared to self-funded residents. Lord Scott (majority) said that there was a distinction between a LA running its own care home and contracting an independent party to provide this service. The LA was operating under statutory duty and had public law duties. A private care homes duties will be determined by contractual and tortious duties, set out in the contract between the car home and its residents. The dissenters said that the distinction was a false one, considering that the state had assumed a responsibility to provide care to the residents. Baroness Hale said that s.6 was intended by parliament to cover contracting out situations and the basic rationale of the act was to provide an effective remedy where convention rights are broken. Any distinctions to get out of this would be artificial and legalistic. Lord Bingham, unlike the majority, denied the relevance of previous authority to the case, since s.6 is designed to widen the scope of bodies that can be challenged, including those that are not normally susceptible to judicial review. This is good because judicial review and human rights law have different rationales. There is no reason why the availability of judicial review and human rights claims should be identical. Baroness Hale gave an analysis of emerging social welfare law and concluded that social welfare was now very much part of the states role, whereas Lord Mance said that generally people acting in their own self-interest benefits the whole of society-hence his concern to protect freedom of contract. This reflects an ideological divide. Standing Human Rights Act 1998, s.7: See above.