HRA judicial review
A public authority acts unlawfully if it a) acts in a way which is incompatible with one or more convention rights b) and the statutory provision empowering the action did not require the public authority to act in this way.
Arises out of the incorporation of the HRA into English law in 1998. The act came into force in 2000. S6 of act provides 1) it is unlawful for a public authority to act in a way which is incompatible with a convention right. 2) S(1) does not apply if a) 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 leglislation whihch cannot be read or given effect in a way which is compatible with convention rights, the authority was acting so as to give effect to or enforce those provisions.
This means there are two stages to any dispute where it is contended that a public authority has acted unlawfully contrary to section 6 of the HRA. Stage 1- involves examining whether the public authority has acted in a way which is incompatible with convention rights. Stage 2- involves examining whether the action was required by the statute conferring the particular power to act ie if the court is convinced the PA has acted incompatibly, this does not mean they have acted unlawfully. To be unlawful it must also be shown that the empowering statute did not require the PA to act in the way it did.
HRA judicial review
That these matters need to be dealt with in this order is established in Brown v Stott 2000 where the court rejected the argument that since the relevant statutory provision clearly required the Public authority to act the way it did, the court need not hear argument on where or decide whether, the act done was incompatible with the complainants convention rights. The reason for rejecting this contention was that S6(2) of the Act comes only to be considered at all, if the court has concluded in the first place that the Public Authority has acted in a way which is incompatible with Convention Rights.
Stage 1- S6(1) it is unlawful for a public authority to act in a way which is incompatible with Convention rights.
Preliminary matters- a) what is a public authority for these purposes? This is regulated by S6 and is not straight forward in all circumstances. It definitely includes the following- i) any body which under previously used tests would be considered liable to judicial review eg government bodies and officials of all sorts, also local government and police etc. ii) the courts themselves are public authorities, and therefore obliged not to act in a way that is incompatible with the convention. iii) parliament is not a public authority for the purposes of the HRA.
b) note S8 of the Act provides 'in relation to any act of a public authority which the court finds is unlawful, it may grant such relief or remedy, or make such an order, within its powers as it considers just and appropriate.'
c) what are convention rights? These are defined in S1. The convention rights 1) in this act the convention rights means the rights and fundamental freedoms set out in a) A2-12 and 14 of the convention b) A1-3 of First Protocol c) A1 and 2 of the Sixth protocol as read with A16 to 18 of the Convention. 3) the articles are set out in S1.
The rights set out in the shedule are as follows 2) Convention rights: interpretation- s2 of the HRA provides that 2(1) a court or tribunal determining a question which has arisen in connection with a Convention Right must take into account any- a) judgement, decision, declaration or advisory opinion of the ECHR b) opinion of the Commission given in report adopted under A31 of Convention c) decision of the Commission in connection with A26 or 27(2) of the Convention or d) decision of the Committee of Ministers taken under A46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
Adjudication as to whether a public authority has acted incompatibly with a convention right: S6 (1) of the act provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. Establishing this/adjudicating on this has two steps. Stage 1a) does the act of the public authority involve an inteference with convention right. Stage 1b) if it does involve such an inteference, is the act nevertheless an interference which the relevant article permits. If it is an interference which the Convention right permits, then the Public Authority has not acted incompatibly with a Convention right, and therefore has not acted unlawfully in this sense. It is not an interference with the Convention right permits, then the Public Authority has acted in a way which is incompatible with a Convention right. However this only constitutes an unlawful act, if the statute setting out the power to act meant that the Public Authority could not have acted differently.
Stage 1a) has there been an interference with a convention right? This involves consideration of the i) scope of the right and ii) whether there has been interference.
i) scope of the right- A10 as an example- A10 provides 'every has the right to freedom of expression. This right shall include freedom to hold opinions and recieve and impart information and ideas without inteference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema.'
Freedom of expression
Leaves a range of matters for inquiry and disputation- 'expression'- what does it mean/ include? i) does it include offensive/ valueless information? ii) what about forms other than speech? eg paintings Muller v Switzerland 1988 dress S v UK 1986 and actions Steel v UK 1999.
Freedom to hold opinions- what does this mean? Vogt v Germany 1995.
The right to recieve and impart information- what does this mean? Open Door Counselling and Dublin Well Woman v Ireland 1992- Does it include a right to acess information which someone else wishes to keep secret? Leander v Sweden 1987.
ii) what constitutes an interference of the right? Two sets of distinctions are worth noting as regards to 'inteferences' with the right to freedom of expression as set out in A10.
a) prior restraint and post publication interference- prior restraint- Sunday Times v UK 1979-1980 prohibition on publication.
Post publication- Muller v Switzerland 1991- forfeiture or confiscation of the paintings constituted an interference with Freedom of Expression.
Handyside v UK 1979- conviction under criminal obscenity laws constituted an interference with the right to freedom of expression.
b) direct/ indirect interference- i) the interference results from action taken by the state where speech is affected as a consequence of something else which the state does, which is an incidental consequence of the other action taken by the state. Agee v UK 1976- 'in the present case the applicant has not shown that the deportation decision in reality constituted a penalty imposed on the applicant for exercising his rights under A10 of the Convention, rather than proper exercise on security grounds of the power of deportation.'
Piermont v France 1990- 'the impact of her expression was not merely a collateral or incidental consequence of the action of expulsion, rather it was the whole reason for expelling her- and in this was this case can be distinguished from the decision of the Commission on the issue of interference in Agee v UK.
ii) the interference results from inaction of the state- 'postive obligations of the state' The European Court has held that A10 imposes 'positive obligations' on the state to take action to protect freedom of expression- thus A10 should not merely be seen as a list of negative prohibitions ie it is not simply saying that the state shall not do anything which interferes with
expression, but rather involves postitive duties to act to protect expression. Plattform Artze For das Leben v Austria 1988.
Stage 1B- is the interference with the right in question an interference which the convention allows? Simply because an act involves an interference with the right as set out in the Convention, this does not mean that the interference is prohibited by the convention. Taking, as example here, A10 the right to freedom of expression.
A10- 1) written before hand. 2) the exercise of these freedoms, since it carries with it duties and responsibilites, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of others, for preventing the disclosure of information recieved in confidence or for maintaining the authority and impartiality of the judiciary.
In considering whether the interference is allowed A10(2) a number of matters need to be addressed: there are 3 elements.
a) the interference must be justified by reference to a legitimate aim, b) the interference must be in 'accordance with' or prescribed by law or c) the interference must 'necessary in a democratic society.'
a) the interference needs to be justified by reference to one of the legitimate aims set out in the article- In A10(2) the interference with freedom of expression needs to be justified by the interests of national security, territorial integrity, public safety, disorder of crime, protection of health or morals (Muller v Switzerland 1988) , reputation of others, disclosure of information recieved in confidence and the maintanence of the authority and impartiality of the judiciary (Sunday Times v UK 1979-80)
b) the interference must be 'prescribed by law'- There are two senses here which must be fulfilled- 1) the ordinary sense- the action must have been lawful in the sense of being in compliance with the domestic law governing the exercise of power eg if a police officer searches in circumstances not permitted by PACE, he will have acted unlawfully in the ordinary sense, but in so far as such a search involves an interference with your rights protected under A8, and is not in 'accordance with law' he has also acted incompatibly with your Convention right.
2) the special sense required by the Convention- contains terminology and concepts which have
a specific meaning in the context of the Convention that is independent of the meaning which such terms have under national systems. These are what are referred to as 'autonomous' concepts, that is to say they are autnomous or independent of national law. The phrases in 'accordance with law' and 'prescribed by law' are autnomous concepts and have particular meaning very different to that which was adopted in British law in a number of ways.
For an interference to be in 'accordance with law' or to be 'prescribed by law' more is required than simply the national law allows it. Rather the Convention requires that the particular law empowering the action, must have certain qualities or characteristics in order to be consider law for these purposes.
In Sunday Times v UK 1979- the court said 'the following are the two requirements that flow from the expression 'prescribed by law'. First the law must be adequately accessible, the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct, he must be able- if need be appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty, experience shows this to be unattainable. Again whilst certainty...
is highly desirable it may bring in its train excessive rigidity and the law must keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent and whose interpretation are a matter of practise.'
The court found that the common law had been developed with sufficient certainty to give a clear enough indication to enable the applicants to foreses a risk that publication might result in contempt. Muller v Switzerland 1991- where the ECHR was dealing with obscenity laws- it emphasised 'the impossibility of attaining absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society. The need to avoid excessive ridigity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which to a greater or lesser extent are vague.' Compare with Khan v UK 2001.
c) the inteference must be 'necessary in a democratic society'. Involves considering such matters as i) the 'expression in question'- what type of expression is it, how is it communicated, at whom it is aimed and what consequences flow from the expression in the individual case? ii) the interference- is the interference in question proportionate to the legitimate aim which it is claimed necessitates the interference? iii) are the reasons/evidence offered for the interference 'relevant and sufficient' in the instant case?
Necessary in democratic society
i) considering the expression in question- the type/ kind of expression- R v SoS for Home Dep ex p Simms 1999- that 'the value of speech in a particular case must be measured in specifics. Not all types of speech have equal value.' eg political expression- Lingens v Austria 1986- 'Court has to recall that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individuals fulfillment... it is not applicable only to information or ideas that are favourably recieved or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Such are the demands that pluralism, tolerance and broadmindedness without which there is no democratic society... These principles are of particular importance as far as the press are concerned. Whilst the press may not overstep the bounds set for the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on polictical issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to recieve them.'
Thus in Bowman v UK 1998- 'free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system. The two rights are interrelated and operate to reinforce each other: for example as the court has observed freedom of expression is one of the conditions necessary to ensure free expression of opinion of the people in the choice of the legislation.'
Necessary in democratic society
In contrast see Otto- Preminger Institute v Austria 1995.
The audience- compare Handyside v UK 1979-80 children with Schrer v Switzerland 1994- adults only.
ii) considering the interference- is the interference in question proportionate to the legitimate aim which it is claimed necessitates the inteference? i) it should not go too far: contrast Sunday Times v UK- an injunction issued pursuant to a rule of law banning any discussion of an ongoing case went too far because it failed to leave room for discussion when issues of public importance arose. with Ahmed and Others v UK 2000- restriction on polictical expression of local government employees was a) specifically confined to the top three levels of local authority employees who were involved in politically sensitive roles and b) provision was made in respect of level 2 and 3 to be exempted from the rule in individual cases.
ii) were other less onerous means available? Castells v Spain 1992- government could have used the media and press to defend themselves against allegations, no need to resort to criminal sanctions.
iii) the reasons/evidence offered- are the reasons/evidence offered for the interference 'relevant
and sufficient' in the instance case? Open Door Counselling and Dublin Well Woman v Ireland- the action in the present case difficult to sustain given that information was already widely available through other outlets. Observer and Guardian Newspapers v UK 1992 (Spycatcher)- failed to sustain argument concerning the need to supress publication when the material was already in the public domain.
Stage 2- S6(2)- violation not unlawful if Public Authority could not have acted differently as a result of the provisions of legislation.
Subsection 1 does not apply if a) as a 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 provisions.
If the court finds that a public authority has acted in a way which is incompatible with Convention rights, the public authority does not act unlawfully if legislation requires it to act that way. This protection only operates when the public authority COULD NOT HAVE ACTED DIFFERENTLY. Even where the legislation does not appear to convey a choice because it imposes a duty, that is not the end of the matter, beacuse the courts are no longer
S3 and 4
to be concerned with the true meaning of the provision. Need to turn attention to provisions. Need to examine the effect of S3 of the HRA- '1) 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. 2) this section a) applies to primary legislation and subordinate legislation whenever enacted, b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation and c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if primary legislation prevents removal of incompatibility.'
Need to note S4 also - 1) subsection 2 applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a convention right. 2) if the court is satisfied that the provision is incompatible with a convention right they may make a declaration of that imcompatibility... 6) a declaration under this section a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given and b) is not binding on teh parties to the proceedings in which it is made.
Got to consider when S6(2)(a) and (b) apply, and consider cases where judges have applied S3 and examine different views about what S3 allows judges to do when interpreting legislation.
S6(2) of HRA sets out the circumstances where it is not unlawful for a public authority to act in a way which is incompatible with Convention rights. Speaking simply, it is not unlawful for a public authority to act in a way which is incompatible with Convention rights if a) it acted that way because an Act of Parliament required it do so and thus couldnt have acted differently ie S62a or b) it acted in that way in order to give effect to an act of parliament where the results of giving effect to the act of Parliament involved acting incompatibly with Convention rights ie s62b.
S6(2)a provides that it is not unlawful for a public authority to act in a way which is incompatible with convention rights if a) as the result of one or more provisions of primary legislation, the authority could not have acted differently. This will apply where (even applying S3) the public authority had a duty to act in the way that it did.
S6(2)b provides that it is not unlawful to act in a way which is incompatible with the Convention rights if b) in the case of one or more provisions of 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. This applies where the public authority was acting to give effect to primary legislation whcih even when applying S3 couldnt have been interpreted in a way thats compatible with convention rights. Therefore S6(2)b applies where a public authority has a power, as distinct from a duty to act, but the power in
in question is a power which can never be exercised compatibly with convention rights. This is different to S6(2)a because here the public authority can act differently, since it could chose to never exercise the power. Therefore b was considered necessary in order to guarentee the lawfulness of the exercise of powers, where the power needs to be exercised in order to give effect to provisions of legislation which cannot be interpreted in a way which is compatible with Convention rights. eg arresting someone or prosecuting them for an offence, where the offence as defined involves a violation of Convention right.
3) intepreting legislation in a way that is compatible with Convention rights- dealing with situations where, having considered what has been done, in the light to the relevant statutory provisions, the Court concludes that what has been done is incompatible with Convention rights. The question then arises as to whether S6(2)a or b applies such that the act is a lawful act. In deciding which one of these sections applies, the court is obliged to interpret the relevant statutory provisions so that they are compatible with Convention rights so far as that is possible. It may be possible, and therefore necessary, to give words or provisions of statutes a meaning they would not normally bear or to change previously existing interpretations, or to add words, so as to ensure the statutory provisions in question bear a Convention compliant meaning. R v Offen 2001, R v A No.2 2001 and Ghaidan v Godin Mensoza 2004.
Where a court concludes its not possible to adopt a convention compliant meaning, then the fact that public authority has acted in a way which is incompatible with Conventions rights, but can rely on S6(2) a or b means the decision is lawful, though the particular provision of the legislation which could not be interpretated in a way which was compatible with Convention rights is incompatible with Convention rights. This leads to the making of a declaration of incompatibility under S4 in relation to the particular statutory provision in question. R (International Transport Roth) v SoS for Home 2002, R (Anderson) v Sos for Home 2002. Re S and Re W (Minors) 2002 which reversed the decision of the court of appeal in Re W and B(Children: Care Plan) 2001.
The question of whether it is 'possible' to interpret a statute in a way which is compatible with Convention rights can give rise to considerable differences of opinion, both as a matter of general principle and in individual cases.
In Ghaidin v Godin Mendoza 2004- Steyn explained 'having had the opportunity to reconsider the matter in some depth I am not disposed to try to formulate precise rules about where S3 may not be used. What is necessary is to emphasis that interpretation under S3(1) is the prime remedial remedy and that resort to S4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights. Perhaps the opinions delivered in the House today will serve to ensure a balanced approach.'
As a starting point this position is widely accepted. However how one draws the line between interpretation and amendment is likely to give rise to debate and has in cases led to differing views such as in R v A where some commentators have observed that the Court overstepped the mark and went beyond the appropriate judicial function of interpretation. In some cases S3 duty has been allowed to prevail despite the above considerations. R v A is a good example of this- Lord Steyn said what might be characterised as the radical approach saying 'the interpretative obligation under s3 is a strong one. It implies even if there is no ambiuity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuartion by the legislature... parliament specifically rejected the legislative model of requiring a reasonable interpretation. S3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights... it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only invovle the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibilitiy is a measure of last resort. It must be avoided unless it is plainly impossible to do so.'
A less radical approach was suggested by Lord Hope in Lambert- 'the effect of S3(1) is that the interpretation which it requires is to be achieved only so far as this is possible. The word 'must' which S3 uses is qualified by the phrase 'so far as it is possible to do so'.
The obligation, powerful though it is, is not to be performed without regard to its limitations. Further justification for this qualified meaning is in the words 'read and give effect.' As the side not indicates the obligation is one which applies to the interpretation of legislation. The function belongs as it has always done to the judges. But it is not for them to legislate . S3 preserves the sovereignty of Parliament. It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator.' This matter is far from straight forward in difficult cases. However there are pointers that it is incompatible.
A court may be persuaded that a compatible interpretation is not possible when: 1) where the words of phrases under scruitiny expressly contradict the meaning which the enactment would have been given to make it compatible. R v Lambert 2001- see Lord Hopes statement. R (on the application of Anderson) v SoS for Home Dept is a good example of this. Parliament conferred the relevant power to the SoS. Said Home Secretary would mean a different word which is complete change.
2) where achieving compatibility would involve departing 'substantially from a fundamental feature of an act of parliament'- Re S and Re W (minors)- 'a meaning which departs substantially from a fundamental feature of an act of parliament is likely to have crossed the boundary...
between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.' Re S and W as well as R (on the application of Anderson) v SoS for Home Dept are good examples of this.
3) where achieving compatibility would involve overruling a decision which has already been taken on the very point at issue by Parliament- Lord Hope in R v Shayler (David Michael) 2002- 'where compatibility cannot be achieved without overruling decisions which have already been taken on the very point at issue by the legislator, the only option left to the court will be to make a declaration of incompatibility under S4(2) with the consequence that decision whether or how to amend the offending legislation is left to parliament.' See R (Anderson) v SoS for Home Not always clear where reading down/up would overrule a decision taken on the matter. In Ghaidan v Godin Mendoza there was a difference in opinion amongst the judges as to whether the statute indicated that Parliament had made a decision about gay couples.
4) Where achieving incompatibility would make the 'statute' intelligable or 'unworkable'. Hope in R v Shayler (David Michael) - 'where achieving compatibility would make the statute unintelligable or completely unworkable then the only option left to the court wil be to make a declaration of incompatibility under S4 of the act, with the consequence of decisions as to whether and how to amend the offending legislation are to be left to parliament.'
R (on application of International Transport Roth) v SoS for Home Dept shows this. Changing the statutory scheme involved trying to impose complex and altogether different set of arrangements into the complex statutory scheme already provided for by Parliament. Re S and Re W (minors) may also be analysed in the same terms.
Warning- there is a danger students will be inclined to give these precedent over the consideration of duty imposed by s3. The starting point and overriding duty is to find a compatible interpretation. DONT FORGET THAT.
Furthermore where court is minded to be persuaded that any one of these rules of thumb applies may depend on whether it adopts Lord Steyns radical conception or Lord Hopes non radical more limited view. Each side will seek to persuade the court to adopt an approach that best suits it own ends and therefore in dealing with problem questions where the matter is likely to be one of contention, you need to explain both sets of arguments.