PLAIR Handout PDF

PLAIR Handout Lecture 1: 1. Lecture Context 1.1 Dual Function of Public Law Public law both 1) constitutes and 2) regulates the institutions of the state as well as the relationships between those institutions and individuals in society. 1) Constitutive task lies in creating (or recognisin...

PLAIR Handout Lecture 1: 1. Lecture Context 1.1 Dual Function of Public Law Public law both 1) constitutes and 2) regulates the institutions of the state as well as the relationships between those institutions and individuals in society. 1) Constitutive task lies in creating (or recognising) state institutions and conferring upon them specified powers. 2) The regulative task involves protecting individuals rights and preventing the arbitrary exercise of public power through political and legal checks. PLUS - constitutive dimension/task (state institutions & ECHR, EU law, parl sovereignty, separation of powers, relations btw insts) PLAIR - regulative dimensions/task (legal methods for protecting individuals > JR, human rights protections, constraining and enabling acts of governmental insts & pub bodies) 1) Judicial review of administrative action 2) Human rights and the protection of liberty Important areas of overlap btw PLUS & PLAIR - JR linked to separation of powers and parliamentary sovereignty. 1,2 Administrative law and administrative justice JR - legal accountability mechanism (opposed to a pol account mechanism e.g Parl Questions/Select Committees) - form administrative justice mechanisms. The admin justice system - wide range of mechanisms and processes, JR, appeals to tribunals, complaints to ombudsman (gov employee who tries to solve issues by mediating), ensure individs/grps given legal avenues to challenge acts, decisions or omissions of public authorities thereby ensuring that those authorities are accountable to the ppl they serve when treated unfairly. Mechanisms like JR - some based on common law, others - statutes. IMPORTANT: scope of administrative law broader than admin justice, admin law has constitutive task namely creation of admin entities/agencies equipped w powers to act on behalf of state and of the community at large. Governing agencies’ creation, composition, powers, duties, procedure. Admin law = branch of pub law which regulates composition, procedures, powers, duties, rights, liabilities of the various public bodies responsible for administering pub policies. 2. Defining judicial review Stair Memorial Encyclopaedia (Admin Law, 1.1) defines JR as follows: Judicial control of administrative action refers to the legal rules that allow courts to review the actions or inactions of public officials and authorities. These rules are based on the idea that the government must follow the law (constitutional doctrine). Parliament grants powers and duties to public authorities, and judicial oversight ensures that these authorities act within legal limits. This process protects individuals from unlawful actions by public bodies and upholds the rule of law by making sure that public authorities follow proper legal procedures. In short, judicial control ensures that public administration operates lawfully. Judicial control of admin action = legal rules allowing courts to review actions/inactions of public officials/authorities. Another definition by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385, 412-413: The CoS had power within its supervisory jurisdiction to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power, authority has been delegated/entrusted by statute, agreement or any other instrument. Lord President Hope explains JR is distinguishable from a right of appeal. Appeals challenge merits of act or decision, review challenges legality (not always obvious). JR available, NOT AS MACHINERY FOR AN APPEAL, to ensure decision maker does not exceed/abuse powers or fail to perform duty delegated to them. Not competent for court to review act on merit nor may substitute own opinion for that of the person or body to whom the matter has been delegated or entrusted. - West v Sec of State of S 1992 SC 385, 413 West, Lord Hope other key aspects of the Scots law of judicial review. JR in S exercised in CoS’s name ‘supervisory jurisdiction’: The sole purpose of SJ - to ensure person/body doesn’t abuse/exceed jurisdiction, authority, power or fail to do what the juris, power, authority requires. – West v Secretary of State for Scotland 1992 SC 385, 413 N.B Supervisory jurisdiction/JR recognised by HOL early as 1917: Where any tribunal/admin bodies exceeded powers conferred by statute to the prejudice of the subject (i.e individual) the juris of CoS’s jurisdiction to set aside such excess of power as incompetent and illegal is not open to dispute. - Moss’ Empires v Assessor for Glasgow 1917 SC (HL) 1, 6 (per Lord Kinnear) SJ purpose - ensure person/body doesn’t exceed or abuse that jurisdiction or fail to do what the juris/power requires. – West v Secretary of State for Scotland 1992 SC 385, 413 In West, scope of CoS’s JR power: The term "jurisdiction" refers to the power, duty, or authority given to a person or body that is subject to the court's supervisory oversight. It means the "power to decide" and applies to decisions made by administrative bodies, similar officials, and lower tribunals. An excess or abuse of jurisdiction occurs when a body acts beyond its authority, fails to stay within its limits, violates natural justice, misunderstands the law, or considers irrelevant factors/matters which ought to not been taken into account. These categories are flexible and can evolve as administrative law develops. – West v Secretary of State for Scotland 1992 SC 385, 413 Cf. R v Panel on Takeovers and Mergers, ex p Datafin plc QB 815 Decision by government Decision by non-statutory Decision by non-statutory department under body performing body performing non-statutory powers ‘governmental’ function non-governmental function E.g whether to use public E.g regulation of takeovers E.g disciplinary decisions money to pay pension under and mergers by a taken by Jockey Club in non-statutory powers: self-regulatory body: Datafin relation to horse racing: Aga Hooper Khan >>>> Possibility of judicial review decreases as ‘governmental’ element reduces >>>> The validity of the application doesn't rely on the difference between public law and private law. It's not limited to cases that English law allows for judicial review, and it's not accurate to call judicial review under the relevant Rule of Court only a public law remedy. – West v Secretary of State for Scotland 1992 SC 385, 413 CoS has power, in exercise of SJ, to regulate process by which decision are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement, or any other other instrument. – West v Secretary of State for Scotland 1992 SC 385, 412-413 Tripartite relationship, btw body that conferred the juris, the body exercising it, and the person affected by the exercise of juri. Typically, greater reach than in Eng. Lord President Hope, no substantive diff btw S & E law on grounds of review: - No substantial difference btw E & S law on grounds on which process of decision-making may be open to review. So reference may be made to E cases in order to determine whether there has been an excess or abuse of the jurisdiction, power or authority or a failure to do what it requires. N.B - key reference point regarding grounds of review is judgement of Lord Diplock in GCHQ case: Judicial review has developed to a point where the reasons for challenging administrative actions can be grouped into three main categories. First is "illegality," where the action breaks the law. Second is "irrationality," where the decision is unreasonable or makes no sense. Third is "procedural impropriety," where the correct process or rules are not followed. – Council of Civil Service Unions v Minister for the Civil Service AC 374, 410-411 Grounds of Judicial Review  - Illegality: decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. - Irrationality: “Wednesbury unreasonableness” - decision so outrageously in its defiance of logic or of accepted moral standards that no sensible person who had applied [their] mind to the question to the question to be decided could have arrived at it / no sensible person would’ve came up with this using their own logic. Council of Civil Service Unions v Minister for the Civil Service AC 374, 410 (per Lord Diplock) - Procedural impropriety: I use the term "procedural impropriety" instead of "failure to follow basic rules of natural justice" or "failure to act fairly" because it also includes situations where an administrative body does not follow specific procedural rules set by the law, even if this doesn't result in unfairness or a breach of natural justice. The decision-maker makes an error, not fair or breaching some expressed/implied provision or common law standard. Functions of Judicial Review JR - overlapping and complementary functions in contemporary constitution: - Upholding the rule of law - Upholding the sovereignty of Parl - Protecting the individ and/or grp - Interpreting statutes - Elaborating and vindicating fundamental rights - Adjudicating institutional relationships - Vehicle for interest representation, i.e trade unions - Ensure transparency of government - Improve administrative decision-making processes Council of Civil Service Unions v Minister for the Civil Service AC 374, 411 (per Lord Diplock However, Scots law of JR differs in key respects, including concerning the q of who is susceptible to review: The validity of the application doesn't depend on the difference between public law and private law. It isn't limited to cases that English law allows for judicial review, and it's not right to call judicial review under the relevant Rule of Court only a public law remedy. – West v Secretary of State for Scotland 1992 SC 385, 413 Successful JR claims to lead to court ‘reducing’ unlawful decision, contrasts w delictual liability of government and officials for wrongful acts, which typically leads to an award of damages in favour of the pursuer. 3. Functions of JR JR = overlapping functions in contemporary constitution, go well beyond providing a legal check on administrative action and decisions: · Upholding the rule of law · Source of legitimacy · Statutory interpretation · Adjudicating institutional relationships · Protection of the individual · Establishing and applying general principles · Insistence on core values of good governance · Structuring deliberative and administrative processes · Elaboration and vindication of fundamental rights · Vehicle for interest representation · Instrument of transparency or ‘tin-opener’ These functions outlined in C.Harlow and R.Rawlings, Law and Administration(4th edn). Cambridge: Cambridge University Press. 812-813 4. Next steps Constitutional basis of JR, procedure: who is susceptible to JR, where and when? Rules on standing: who can seek JR? Grounds of review: on what basis? Illegality - irrationality - procedural impropriety - proportionality. Lecture 1 Slides: Introduction to Judicial Review 1. Legal Context: Dual Function of Public Law PL constitutes and regulates the institutions of the state, and the relationships between those institutions and individuals. Constitutive task: create (or recognise) state institutions and confer powers. Regulative task: protect rights and prevent the arbitrary exercise of public power through political and legal checks 2. The distinction between PLUS and PLAIR echoes these two tasks: PLUS: constitutive task (e.g. UK and Scottish state institutions, separation of powers, parliamentary sovereignty, etc). PLAIR: regulative task (e.g. judicial review, human rights protection, etc) There are also important areas of overlap between PLUS and PLAIR (e.g. judicial review linked to separation of powers and parliamentary sovereignty) Judicial review is a legal accountability mechanism, which forms part of a broader suite of administrative justice mechanisms. pp.137; 434-35; 519-520 Administrative justice mechanisms ensure that individuals can challenge the acts, decisions or omissions of public authorities when they consider that they have been treated unfairly. p.9, 433-4 631ff Some mechanisms are primarily based on the common law, while others are based on statute. ch. 15-17 generally Defining Judicial Review (pp.516-518) The judicial control of administrative action comprises the legal rules and principles by which the acts and omissions of public authorities and officials may be subject to scrutiny and review in the courts. These rules and principles derive from the constitutional doctrine that government must be conducted according to law. It is on the assumption that public administration must rest on a sound legal basis that Parliament confers powers and duties upon public authorities. Judicial control of administrative action thus reinforces the legislative authority of Parliament. It also serves to protect the individual against action taken by a public authority that adversely affects [them] and for which no legal authority can be shown, or which departs from any requirement of the law regarding the manner in which action is taken.– Stair Memorial Encyclopaedia (Administrative Law, 1.1) Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision maker does not exceed or abuse [their] powers or fail to perform the duty which has been delegated or entrusted to [them]. It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted…– West v Secretary of State for Scotland 1992 SC 385, 413 The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires…– West v Secretary of State for Scotland 1992 SC 385, 413 Wherever any inferior tribunal or any administrative body has exceeded the powers conferred on it by statute to the prejudice of the subject [i.e., the individual] the jurisdiction of the Court [of Session] to set aside such excess of power as incompetent and illegal is not open to dispute.– Moss' Empires v Assessor for Glasgow 1917 SC (HL) 1, 6 (per Lord Kinnear) An excess or abuse of jurisdiction may involve stepping outside it, or failing to observe its limits, or departing from the rules of natural justice, or a failure to understand the law, or the taking into account of matters which ought not to have been taken into account. The categories of what may amount to an excess or abuse of jurisdiction are not closed, and they are capable of being adapted in accordance with the development of administrative law.– West v Secretary of State for Scotland 1992 SC 385, 413 Lecture 2: Judicial Review: Constitutional Basis, Substantive Grounds, and Climate Change 1. Justifying Judicial Review In an absence of codified set of constitutional rules and rules, the underlying constitutional basis for S/UK court’s power to scrutinise, actions of executive, legislature, remains controversial. Approaches justifying court’s JR power (case law/acad lit) : ultra vires doctrine (‘beyond powers’) and common law theory. 1.1 Ultra vires doctrine Through JR, courts enforce pre-existing statutory limits imposed on gov power. JR - police limits of executive capacity set out by legislature: courts interpret legislation in order to determine scope of powers entrusted to ministers and administrative bodies by Parl. Theory consistent with Parl sov: courts’ power of JR enforcing P’s will or intention. Ultra vires challenges: how do we know Parl intended statutory powers should be exercised in specific ways (reasonably, fairly?) - not explicitly said. How can it account for development of new grounds of review by the common law. To challenge, UV argue we should infer Parl intends that any created powers should be in accordance with rule of law. But difficulties remain - how can UV theories account for JR of non-statutory powers (prerogative powers). 1,2 Common Law Theories Alt approach, JR rooted in common law rather than statute. CL theories = courts aren’t enforcing ‘intention of Parl’ rather than CL principle that decision-makers must act reasonably, fairly, etc. Underlying justification for JR - rule of law: via JR, courts act as guarantors of RoL, understood as a set of liberal moral values. Challenges: if JR based on JL not statute, does it mean CL theorists assume Parl authorises decision-makers to act unreasonably, unfairly, etc? If P sovereign, what is constitutional basis for CL to intervene via JR? Addressing challenges: endorsing form of common constitutionalism > sovereignty of Parl displaced by ‘higher order’ constitutional principles including ‘thick’, moralised (liberal) account of the rule of law, encompassing the protection of fundamental rights. In practice, some evidence of rights-based, common law constitutionalist approach to JR in the case law. PREMISE BY KHETHI: Controversial: There isn't really a set or written constitutional rules or principles for the constitutional basis for what the S and UK courts should get involved. HOWEVER, there's 2 approaches to say why courts should have JR. Ultra vires - beyond powers > gov put it in statute that people should not go beyond powers so when court sees someone s doing so, they are reeling them back in. Common law theory: not Parl legislation, saying the court will strike down a decision if not made in a fair way or did not go about it the right way. Also, advantages > since not specifically from statute, confined to interpreting statute, can develop more over time and apply decisions not based directly on statute. ‘Thin’/’weak’ approach - fundamental rights as aids to statutory interpretation in cases of ambiguity (the principle of legality): Parl sov - Parl can legislate contrary to fundamental HR principles. Principle of legality means P must squarely confront what it is doing and accept political cost, fundamental rights cannot be overridden by general or ambiguous words. In absence of express language or necessary implication, courts presume even most general words were intended to be subject to the basic rights of the individual. - R v Secretary of State for the Home Department, ex parte Simms UKHL 33 (per Lord Hoffman) ‘Thick’/’strong’ suggests, in exceptional circumstances, courts nay even set aside Acts of Parl in order to uphold rule of law: Dicey’s account on supremacy of Parl = out of date in UK today BUT Parl supremacy still general principle of const - common law construct. The judges created it. In exceptional circumstances involving attempt to abolish JR or ordinary role of courts, the Appellate Committee of HOL or new SC may have to consider whether this is a constitutional fundamental which even a sovereign P acting at the behest of a complaisant HOC can’t abolish. - Jackson v Her Majesty’s Attorney General UKHL 56, (per Lord Steyn) Critical step by court in Cart was to confirm, what was perhaps implicit in some of earlier cases, that it is ult for courts, not the legislature, to determine limits set by rule of law to power to exclude review. - R (Privacy International) v Investigatory Powers Tribunal UKSC 22 (per Lord Carnwarth) 2. Substantive Grounds of Review No diff btw E & S on substantive grounds of review - West v Secretary of State for Scotland 1992 SC 385, 402 (Lord President Hope); Brown v Hamilton DC 1983 SC (HL) 1, 42 (Lord Fraser) Lord Diplock’s statement on grounds of review (GCHQ case): JR developed to where one can conveniently classify under 3 heads the grounds upon which admin action is subject to control by JR - 1st ‘illegality’, 2nd ‘irrationality’ and third ‘procedural propriety’. - Council of Civil Service Unions v Minister for the Civil Service AC 374, 410 (per Lord Diplock) Illegality: Decision-makers must know laws regulating their power and give effect to it, if have or not is the justiciable question to be decided. - Council of Civil Service Unions v Minister for the Civil Service AC 374, 410 (per Lord Diplock) Irrationality: “Wednesbury unreasonableness” - so outrageous in its defiance of logic, no sensible person would arrive at it. If decision is this is a q judges by their training and experience should be equipped to answer - Diplock N.B - “Wednesbury unreasonableness” test worded: if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. - Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1 KB 223, 230 Procedural impropriety JR under this head covers also failure by an admin tribunal to observe procedural rules that are expressly laid down in leg instrument by which its juris is conferred, even where such failure doesn’t involve any denial of natural justice. - Lord Diplock, CCSU v MOCS 1985 411 Like illegality, PI = wide range of grounds (breach of express provision, natural justice and fairness, legitimate expectations, right to be heard (audi alteram partem), rules against bias (nemo judex in causa sua) and duty to give reasons. Diplock noticed grounds not fixed & CL might develop more. “I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the admin law of several of our fellow members of the Eu Econ Com EEC.” Similar point by Hope in West: categories amounting to an excess/abuse not closed, capable of being adapted in accordance w development of admin law. 3. A ‘Climate-Oriented’ Focus Often for immigration, housing, etc. Now, commercial parties challenge public law including decisions of regulatory authorities, HM Revenue and Customs, etc. Range of ps w divergent interest: - Seeking to achieve more urgent interes to climate change: Friends of the Earth Ltd, R (On application of) v Secretary ofState for International Trade/UK Export Finance (UKEF) & Anor EWCA Civ 14 - Challenging decisions where climate change has been a reason for a decision: Sheakh, R (On the Application of) v London Borough of Lambeth Council EWCA Civ 457 - Supporting and defending the administrative decision being challenged Spurrier, R (On the Application of) v The Secretary of State for Transport EWHC 529 (Admin) - Protecting their position after changes in the law - Solar Century Holdings Ltd & Ors v Secretary of State for Energy & Climate Change EWHC 3677 (Admin) Not all successful, some fail at being granted permission to bring JR - Global Feedback Ltd, (On the Application of) v Secretary of state for environment, food and rural affairs EWHC 3269 (Admin) Also substantive aspects to this case law with significance for JR practice and scholarship. E.g, judgement in R (on application of the Good Law Project) v Secretary of State fpr Health and Social Cate EWHC 2468 (TCC), (GLP, Abingdon) - beyond more normal few cursory judicial remarks on standing, over 50 paras judgement. Controversial public interest group the Good Law Project is interesting in a number of ways. Professes to engage in ‘ campaigning’ litigation and to use ‘the law to hold power to the account, protect the environment and ensure no one is left behind’. This organisation has generating its own microcosm of standing case law. (Bell). JR is freq matter of detailed statutory interpretation, in literature - JR court-focussed activity but reading cases, only party true and the “centrality of statutory construction in climate change administrative law adjudication reflects this fact” (Fisher) Statutes - “legal instructions transmitted into a highly developed framework of legal values and expectations. The existing law, modes of reasoning, and established localised value systems provide the interpretive context in which statute is read. Upon receipt of a statutory text, lawyers and the judiciary seek to knit it into the fabric of the law.” - P Sales, “Modern Statutory Interpretation” 92016) 38 Statute Law Rev 125 Lecture 3: Judicial Review: Procedure, Standing, and Scope 1. Scope West established Cos’ JR depends on tripartite relationship: Between person or body to whom power/juris has been delegated/entrusted to, the person/body by whom it has been delegated pr entrusted and person or persons of or for whose benefit that juris/power is to be exercised. - West v Secretary of State for Scotland 1992 SC 385, 413 (per Lord Hope) The conferring authority delegates power to body/individual > decision-maker to whom power is entrusted and an individual who is subject to a decision by the decision-maker in exercise of power delegated by the conferring authority. ‘Two-party’ relationship fall outside JR scope: Contractual rights and obligations btw employer and employee etc are not amenable to judicial review. - West v Secretary of State for Scotland 1992 SC 385, 413 (per Lord Hope) Sole purpose of JR - ensure decisionmakers don't act in excess of powers or fail to do what powers require of them, not appeal on merits of a decision. E & S differ to kind of bodies whose decisions are susceptible to JR: Unlike E & W, JR not limited to public authorities: Principle upon which SJ is exercised not affected by distinction which may exist for other purposes btw pub bodies and those who exercise a juris under a priv contract. Pub or priv nature of inferior body or tribunal is not decisive, nor is it necessary to inquire whether the decision of the inferior body or tribunal is administrative in character. West v Sec of State for Scot 1992 SC 385, 399 (per Lord Hope) CoS found decision of a golf club’s council to expel one of its members amenable to JR: Decisions taken by club council are susceptible to the court’s supervisory juris, on basis theres a tripartite relationship under which council members are entrusted by membs of club as a whole with a decision-making power in respect of any member whose conduct is in issue. - Crocket v Tantallon Golf Club 2005 SLT 663, 673 E & W position - R v Panel on Takeo-Overs and Mergers, ex parte Datafin QB 815; M. Elliot and R. Thomas, Public Law (5th edn) Oxford: Oxford University Press. 596-607 Territorial scopeL CoS has juris over decisions taken in S relating to people located in S. Decisions by UK body sitting in England in respect of persons located in S is less clear-cut. This issue was addressed - HOL: Tehrani v Secretary of State for the Home Department UKHL 47 Tehrani clarified that the location where decision is made is not decisive. SJ of courts of the constituent parts of UK could hardly depend definitively upon particular place where, as a matter of convenience, the decision … under review was made. (per Lord Nicholls) Instead, petitioner must demonstrate ‘sufficient connection with Scotland’ to invoke CoS’ supervisory jurisdiction. The facts of the petitioner was resident in S at time determinations were made 2) their harmful effects were liable to be felt by him in S and 3) the determinations were made in the exercise of SJ which extends throughout UK, taken together, indicate there's a sufficient connection w S for the supervisory juris to be exercised. (per Lord Hope) If both S & E courts have juris: Either court can, and must, exercise its juris to provide the remedy which is sought unless respondent takes a plea of forum non conveniens - Rodger 2. Procedure (DIFFER IN E AND S but closer in alignment recently) 1) Standing, 2) permission, 3) timing, 4) remedies, 5) costs Ch58 of Rules of the Court of Session (some procedure rules), others in common law. 2.1 Standing Bell J - ‘The resurgence of standing in judicial review’ 2024.. - courts’ approach to0 standing depends on type of decision: 1) unfavourable targeted (removal/refusal of benefit;highly restrictive), 2) favourable targeted (conferral of a benefit; generous) and 3) non-targeted decisions (no individ subject; in between) Standing (locus standi) = common law matter Post AXA General Insurance Ltd v Lord Advocate UKSC 46, S closer to E law. Before applicants had to demonstrate title and interest to sue (priv laws rights) Interest to sue, need to be: - Party to legal relationship which gives [them] some right which the person against whom [they raise] action either infringes or denies - D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 Lord Dunedin E.g, Scottish Old People’s Welfare Council, Petitioners 1987 SLT 179, CoS held legis providing for state benefits conferred rights on membs of public, organisation had title to sue: Leg purpose to make state benefit available to any memb of the public who may qualify for it and its not unreasonable to see duty of the proper administration of the legislation as a duty owed to the public. On basis that any memb of public has at least a title to sue and the only question remaining would be whether he had an interest to do so. Scottish Old People’s Welfare Council, Petitioners 1987 SLT 179, 185 (Lord Clyde) By contrast, in Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527, petitioners don’t have title to sue in challenge to Home Secretary’s decision to grant Mike Tyson, convicted rapist, leave to enter the UK for match. Held immigration rules in question were addressed to the officials that had to apply them and no express or implied rights were conferred on any other parties. The legislation under which the rules are made, and the rules themselves, fall to be contrasted with the legos;tion being considered in.. Scottish Old People’s welfare council…in that they did not confer general duties owed to members of the public as a whole, creating between the Secretary of State and a member of the public, who is not an applicant for admission to the United Kingdom or for leave to be admitted, a ‘legal relationship’. The scope and function of the legislation, and the rules, did not provide a legal nexus between the petitioners and the Secretary of State when he was exercising the discretion under them.’ - Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527, 535 (Lord Clarke) Lord Hope (2001). Mike Tyson Comes to Glasgow - A Question of Standing. Public Law. Interest to sue: The interest must be such as to be seen to be material or sufficient. The pursuit of an academic issue would not suffice, nor would an attempt to seek a general pronouncement of law on facts which were hypothetical. There must be a real issue. But the existence of a sufficient interest is essentially a matter depending upon the particular circumstances of the case. - PAGE 15 CONTINUE Lecture 4: Judicial Review: Illegality  1. Judicial Review - Illegality Understand correctly the law that regulates his decision-making power and must give effect to it - GCHQ, supra, at 410 (Lord Diplock) N.B Role of discretion and deference Cox & Ors, R (On the Application Of) v Oil and Gas Authority EWHC 75 (Admin) OGA required to pursue “maximising the economic recovery of UK petroleum” (“MER”, s.9A Petroleum Act 1998) In February 2021, OGA new strategy came into force, including new obligations relating to UK’s net zero target. Claimants argued theres an error of law/frustration of statutory purpose in that the pre-tax approach in the Strategy proceeds on basis of an incorrect definition of the principal objective in s.9A 1998 Act. Held: its for OGA to determine how to assess “economic recovery”, subject only to Wednesbury test of unreasonableness. Relevant statutory prov is “couched in imprecise terms.. In all the circumstances hallmarking the exercise as one to be done by reference to the authority’s specialist understanding and judgement.” Court affording considerable deference to regulator’s expert view, arguing it was highly unlikely that Parl intended court, rather than expert regulator, to determine best method of economic assessment. Concept broken into many sub-headings, main: 1. Excess of Powers (substantive ultra vires) Where body entrusted with powers, exceeds, acts ultra vires and act invalid. - D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7: no power to run pleasure trips - Bromley LBC v Greater London Council 1 AC 768: cheap LT fares incompatible with running as “economic services” - McColl v Strathclyde Regional Council 1983 SC 225: no power of fluoridation for health reasons Express or implied powers? Local Government (Scotland) Act 1973 s.69: Local authority has the power to take any action, including spending, borrowing, lending money, or acquiring or disposing of property or rights, if those actions help them carry out their duties or functions. Essentially, they can do whatever is necessary or helpful to perform their responsibilities effectively, even if it involves financial or property-related decisions. Local Government Act 1972: s.111, see R v Richmond upon Thames Council ex parte McCarthy and Stone Limited 2 AC 48 Local Government in Scotland Act 2003: s.20 Whether a body has exceeded their powers is often a question of interpretation. 2. Error of Law Bodies like tribunals might make errors taking outside of juris Anisminic v Foreign Compensation Commission 2 AC 147: not necessary to draw a distinction between “jurisdictional” errors and “non jurisdictional” errors R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others EWCA Civ 187 R v Home Secretary ex parte Venables AC 407: determining of the “tariff” period for two young murders Wordie Property Limited v Secretary of State for Scotland 1984 SLT 345: Secretary of State’s decision would be unlawful if it was “based upon a material error of law going to the root of the question for determination.” (347) More recent case: National Aids Trust v NHS England EWHC 2005 (Admin): “NHS England has erred in deciding that it has no power or duty to commission the preventative drugs in issue […] NHS England has in any event the power under the legislation to commission preventative treatments (and therefore falls within its powers however that power is defined); because it facilitates and/or is conducive and/or incidental to the discharge of its broader statutory functions”. Justice Green at 3. Unlawful Delegation A statutory delegate may not be allowed to sub-delegate: - Young v Fife Regional Council 1986 SLT 331: Committee tasked with decision could not rely on subcommittee - Ellis v Dubowski 3 KB 621: local authority could not have BBFC deciding on cinema - Rooney v Chief Constable, Strathclyde 1997 SLT 1261: whether there may be sub-delegation depends upon the wording of the statute in question and there are circumstances where it could be held to permit sub-delegation - Local authorities are in most circumstances permitted to act through subcommittees and officers by the Local Government (Scotland) Act 1973: ss.56-57. - Carltona Limited v Commissioners of Works 2 All ER 560: officials are taken to be the alter ego of their Ministers (‘the Carltona principle’) Somerville v The Scottish Ministers 2007 SC 140; 2008 SC (HL) 45, House of Lords confirms that the Scottish Ministers benefit from the same presumption as to the delegation of functions to officials or junior ministers - R (Bourgass v Secretary of State for Justice UKSC 54, the constitutional position of an official in a government department and that of the holder of a statutory office are different. Statutory office holders exercise an independent power. The Carltona principle applies differently 4. Unlawful Fettering Bodies w discretion to make decisions (grant licence or not’ to refuse or grant planning permission) must consider matter on its merits and individual circumstances, cannot adopt policy which restricts or fetters that discretion. R v Home Secretary, ex parte P and Q 2 FLR 383: a body can adopt a general policy that it will apply in the absence of any exceptional circumstances  - Sagnata Investments Limited v Norwich Corporation 2 QB 614 but it cannot adopt a policy that certain applications will always be refused, here in relation to the blanket ban on amusement arcades in Norwich - Macbeth v Ashley (1874) LR 2 HL Sc 352 in relation to the early closing of all bars on Rothesay - Miss Behavin’ Ltd v Belfast CC UKHL 19; 3 All ER 1007 – though that is not to say that in all circumstances a blanket ban cannot be justified ie. Belfast can ban sex shops 5. Improper Purposes Bodies may not use powers given for stated/implied purposes for wholly or predominantly extraneous purposes. - Municipal Council of Sydney v Campbell AC 338: compulsory purchase not to be used for investment reasons - Congreve v Home Office QB 629: threat to revoke television licence unless a fee was paid was an improper use of the discretion to revoke television licences - - Highland Regional Council v British Railways Board 1996 SLT 274: “ghost trains” running on a line to avoid closure of the line and the accompanying consultation that would be required was an improper use of discretion 6. Relevance Power is not lawfully exercised if a body takes ‘irrelevant considerations’ into account/fails to take account of what should be relevant factors - Packham v HS2 EWCA Civ 1004 : review report on which Government relied dealt amply with UK’s commitments on greenhouse gas emissions and climate change. “It was legally impeccable.” The Gov made its decision to proceed with HS2 whilst aware of the UK’s commitments under the Paris Agreement, and its own responsibilities under the Climate Change Act, and to have taken those commitments and responsibilities into account. “There is no basis for concluding that any “obviously material” consideration was disregarded”. - R v Secretary of State for the Home Department, ex parte Venables AC 407: the Home Secretary had also taken account of irrelevant considerations, in this case, public petitions about the length of detention that was appropriate. Furthermore, he had failed to take account of a relevant consideration by not having regard to both prisoners progress in detention Breach of convention rights A public authority acts in a manner that is incompatible with a Convention right acts unlawfully (s6(1) Human Rights Act 1998) S6 HRA: Subsection 1 does not apply if - 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 those provisions.” According to s6(3) HRA 1998: In this section, ‘public authority’ includes - a court or tribunal and b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. If the public authority failed to consider any possible Convention rights, but still made the correct decision, it matters not that they failed to address their mind to the Convention rights issue: Miss Behavin’ Ltd, supra, at (Lord Hoffmann) and Begum, supra, at (Lord Bingham) Cf Lady Hale at for a more nuanced vie FINISH 4 PROPERLY Lecture 5: Judicial Review: Procedural Impropriety Diplock, GCHQ Supra at 411 - PI not failure to observe basic rules of natural justice or failure to act w fairness towards person affected by decision bc under this, also failure by admin tribunal to observe procedural rules expressly laid down in leg instrument by which its jurisdiction is conferred where such failure does not involve any denial of natural justice. JR on this ground can be for either: Breach for an express provision Breach of an implied provision or other common law standard (court-imposed standards of natural justice, fairness, etc) 1. Breach of an express provision In public body case, procedure to be followed set out in statute, statutory instrument or other code/set of regulation. Procedure by other bodies may be set in some constitution, code, contract or other document. Ultra vires if does right thing but in wrong way too. Moss’ Empires Ltd v Assessor for Glasgow 1917 SC (HL) 1, 1916 2 SLT 215: valuation increase for theatre. Not always ultra-vires if noncompliant, once court favoured distinction between “mandatory” (non-observance fatal) and “directory” (non-observance may be excused). BUT High Court of Australia in Project Blue Sky inc v Australian Broadcasting Authority (1998) 194 CLR 355 - “elusive distinction.” Before, moved away from “mandatory/directory” distinction. London and Clydeside Estates Limited v Aberdeen District Council 1980 SC (HL) 1 Lord Hailsham LC recognised what courts normally faced w was “not so much a steak choice of alternatives but a spectrum of possibilities”. Privy Council (Wang v Commissioner of Inland Revenue 1 WLR 1 1286 - court should ask 2 questions.  1) Did the legislature intend that person making decision should comply with the provision and 2) If so, did the legislature intend that failure to comply with the provision should render any purported decision null and void? Lord Slynn of Hadley at 1296D. R v Soneji [2005[ UKHL 49; 4 All ER 321 HOL endorsed High Australian court approach - mandatory.directory distinction outlived its usefulness. Lord Steyn at 23. Q should be asked, according to LS, was “whether Parl can fairly be taken to have intended total invalidity” as consequence of non-compliance. Soneji approach approved in Scotland - Shahid v Scottish Ministers CSOH 192 35-45 Lord Malcolm. Lord Carswell alluded in Soneji 61-63 possible continuation of usefulness of mandatory/directory distinction. Approach to private bodies McDonald v Burns, 1940 SC 376 - binding authority by Macphail in Smith v Nairn Golf Club 2007 CSOH 136 2. Breach of implied provision or other common law standard. Standard of fairness on decision-making procedures. Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386 - little regard for natural justice/fairness in golfing club. A) Natural justice and fairness Expressions confirmed by inner house in Errington v Wilson 1995 SLT 1193. Also, Art 6 of ECHR (right to fair trial) extends to protection the determination of “civil rights and obligations” & criminal proceedings. “Elementary rule of the administration of justice” that neither p privately communicate with judge. Judgement controversy: Court of Appeal in R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs EWCA Civ 65 and EWCA Civ 158 and of the Master of the Rolls’ original judgement. B) Legitimate expectations No identifiable rights being prejudiced, test used for entitlement to hearing - have a legitimate expectation. Procedural legitimate expectations involve a right to a fair process, such as natural justice or consultation, based on the public body’s behavior that creates this expectation. Substantive legitimate expectations involve applicants seeking a claim to a specific benefit or commodity, like a welfare benefit or license, based on governmental actions that justify the expectation. Craig P.P., ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55 Cambridge Law Journal 289, 290 Substantive legitimate expectations rationale: fairness in public admin, reliance and trust in gov, equality, rule of law and legal certainty. HOWEVER, liberty to make policy changes inherent in gov, legit expectations should not unduly fetter discretionary choices, need expectation proof, proof body had sufficient reasons to depart from expectation. Paul Craig 2021, Administrative Law (Sweet and Maxwell 9th ed) such expectation held to hae arisen in ways: - Where body followed practice in past: GCHQ case 1985 AC 374. - Where individ has ‘future interest’ - McInnes v Onslow Fane 1 WLR 1520 - Where pub body has representation as to its future conduct - A-G of Hong Kong v Ng Yuen Shiu 1983 2 AC 629. Scottish cases on legitimate expectations: - Lennon v Hamilton District Council, 1990 SCLR 514 - Walsh v Secretary of State for Scotland, 1990 SLT 526 – a legitimate expectation to be released from prison on the originally appointed date of release - Rooney v Chief Constable of Strathclyde Police, 1997 SLT 1261 – a legitimate expectation that procedural guidelines issued by the Secretary of State would be followed C) Audi alteram partem - right to be heard. - Ridge v Baldwin AC 40. - St Johnstone Football Club Ltd v Scottish Football Association, 1965 SLT 171. - Stewart v Secretary of State for Scotland, 1998 SLT (HL) 385: procedures to be followed in removal of sheriff due to ‘inability’. - Abbas v Home Secretary, 1993 SLT 502: no general right to representation, so rule could bar it for deportees before advisory panel. - NB: Courts apply standards of procedural fairness, including the right to be heard, with different intensity depending on the circumstances of the case - R (Smith) v Parole Board (No. 2) (2005) UKHL 1: Parole Boards should offer an oral hearing to prisoners whose licences are revoked, to oppose revocation. - R (Osborn) v Parole Board UKSC 61, - (per Lord Reed): a detailed exploration of cases where the Parole Board may need to offer an oral hearing D) Rules against bias/impartiality “Nemo iudex in sua causa” - no man should be a judge in his own cause. Actual and potential bias: “of fundamental important that justice should not only be done but should manifestly and undoubtedly be seen to be done” - R v Sussex Justices ex parte McCarthy 1 KB 256, 259 (Lord Hewart CJ) Act of Sederunt 1594 prohibiting Lord of Council and Session from sitting case which father, brother or son was litigant - rule has long history. Actual bias: Judge is a party to litigation or has an interest in outcome = automatic disqualification Potential bias: conduct or bhv of judge is such as to give rise to suspicion that he is not impartial = possible disqualification Automatic disqualification Applied where decision-maker had ‘pecuniary’ interest in case (related to money), Sellar v Highland Railway Co, 1919 SC (HL) 19; 1 SLT: arbiter a shareholder in party to arbitration. Now, encopmasses interests in ‘promotion of a case’. R v Bow Street Metropolitan stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) 1 AC 199; 1 All ER 577: Lord Hoffman (director of Amnesty International Charity Ltd). What does or does not amount to “promotion of a cause” - Fotheringham, Petitioner CSOH 170 at 32. Possible disqualification Test applied, decision-maker should be disqualified. Lord Hope (unanimously supported by house) - Porter v Magill 2 AC 357; 2 WLR 37 at - question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Only if “fair-minded and informed observer” (a reasonable member of public is neither complacent or unduly sensitive or suspicious - Johnson v Johnson 2000 201 CLT 448 at 53 [Kirby J]) concludes “real possibility” of bias - disqualification necessary. Prevailed in criminal courts too - Mellors, Petitioner, 2003 SLT 479. Helow v Secretary of State for the Home Department UKHL 62; 1 WLR 2418, Lord Hope of Craighead - “fair-minded and informed observer” at 2-3. Appearance can be important - Pentland-Clark, Petitioner CSOH 41. Reformulation, influenced by art 6 ECHR, closer to test employed by S courts in past: - Bradford v McLeod, 1986 SLT 244: remarks concerning striking miners made by Sheriff at social function. This is still considered good law: Richardson v Pirie HCJAC 43. - Doherty v McGlennan, 1997 SLT 444: Sheriff invited witness to chambers to socialise with him. What results in disqualification? See strong judgement ‘strong’ Court of Appeal (Lord Chief Justice, Master of the Rolls and Vice-Chancellor) in Locabail (UK) Ltd v Bayfield Properties Ltd QB 451: Objections to a judge’s impartiality should be based on specific facts. However, objections cannot be validly based on the judge’s religion, ethnicity, gender, age, social or educational background, political associations, or similar personal characteristics. Hoekstra v HMA (No 2), 2000 SCCR 367 - cautionary tale as to potential consequences of extra-judicial utterances. Intermingling of functions refers to situations where the same body or individuals perform multiple roles (e.g., investigator, prosecutor, and judge), which can undermine the fairness of decisions. This principle was highlighted in the case of R v Barnsley MBC, ex parte Hook (1976), where such intermingling was found to potentially invalidate decisions. However, policy-making bodies often have an ‘institutional interest’, meaning they have a vested interest in the outcomes of their policies. This can influence how strictly the rules against intermingling of functions are applied. The case of London and Clydeside Estates Ltd v Secretary of State for Scotland (1987) illustrates that the presence of an institutional interest can modify the application of these rules, allowing for some flexibility. In essence, while intermingling of functions can compromise decision-making, policy-making bodies’ institutional interests can justify a more lenient application of this principle. E) Duty to give reasons Justice not done if its not apparent to parties why one has one and other has lost - English v Emery Reimbold & Strick 1 WLR 2409 at (Lord Phillips MR) Denied general rule requiring reasons to be given for decisions but fairness and ability to see if decision-making process is intra-vires may require reasons: Lutton v General Dental Council CSOH 96. Judicial character of decision may nominate decision-making proceed where reasons must be given: Stefan v General Medical Council 1 WLR 1293. No duty yet given anyways, reasons reviewed by court. If reasons show error in law (having regard to irrelevant considerations), no answer that there was no requirement to give reasons: Rooney v Strathclyde Joint Police Board, 2009 SC 73 at. For a recent example of the English Court of Appeal allowing an appeal due to lack of reasons, and for their approach for doing so, see Southall v GMC EWCA Civ 407 at -. The question quite often becomes not one of a lack of reasons but one of whether the reasons provided were sufficient: Decisions leave informed reason and court in no substantial doubt as to what reason for it were and what material considerations taken into account - Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348 (Lord President Emslie) Remedial discretion and procedural grounds of review RA is discretional: court may/maynot grant remedy. W & E, circumstances where obliged to withhold relief. “Makes no different” principle: E and W new provisions in s31 of senior courts act 1981 by a84 of Criminal Justice and Courts act 2015 - The High Court— (a) must refuse to grant relief on an application for judicial review, and  (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied. Procedural I thought not to apply to Acts of Scottish Parliament (SA 1998 s28(5) and 6)) Lecture 6: Judicial Review: Irrationality and proportionality In S, JR not only abt legality of decision by pub bodies but bodies exercising jurisdiction more generally (includes private). 1. Irrationality Diplock GCHQ - “what can now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it…" WR test set out by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, 1 KB 223: “a conclusion so unreasonable that no reasonable authority could ever have come to it”. Short v Poole Corporation Ch 66. 91 per Warrington L.J - possible to prove that act of pub body, though in good faith and without taint of corruption, so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body thus inoperative. Difficult to suggest any act would be UV under this head though performed bona fide. E.g, dismiss teacher c red hair or foolish reason, court declare attempted dismissal void. R v Chief Constable of Sussex, ex parte International Ferry Traders Ltd, 2 AC 418. Decision not to provide livestock exporters w full time police protection against animal rights protestors not found to be unreasonable. “It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the United Kingdom and beyond”. A simpler formulation for the test would be that a decision could be quashed as irrational when it is "so unreasonable that no reasonable authority could ever have come to it." Per Lord Cook R v Ministry of Defence, ex parte Smith QB 517. Not allowing homos in armed forces not irrational, when test of proportionality applied in ECHR - breach of applicants’ rights under Art 8 ECHR (rights to privacy) - Smith and Grady v the UK. This “unreasonableness” under ground of review - must consider merits of decision and question and not just legality. Although standard of review high, thus difficult to fulfil, claims of irrationality sometimes do succeed. Arguable whether decisions complained were “outrageous in their defiance of logic or accepted moral standards”. R. v Secretary of the State for the Home Department ex parte Bugdaycay UKHL 3, AC 514 “the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny”. Lord Bridge at 531E-G. Gerry Cottle’s Circus v City of Edinburgh District Council 1990 SLT 235 (manner in which licensing powers could be exercised. Court - council was acting outwith its pwoers by refusing an application based solely on view that the concept of performing animals. Closely related to improper purpose.) Woods v Secretary of State for Scotland, 1991 SLT 197 (refusal of awards agency to provide student allowance because of missed application deadline) La Belle Angele v City of Edinburgh Licensing Board, 2001 SLT 801 (shorter extension of hours could not be justified by flyposting problem; closely related to “irrelevant considerations” 2. Proportionality: its status and the case for and against Court examines i) Whether the measure was suitable to achieve the desired objective. ii) Whether the measure was necessary for achieving the desired objective. (iii) Whether it none the less imposed excessive burdens on the individual. Court decides how strictly to apply criteria which may require court to consider alt strategies for attaining desired end. Follows from fact, cort will in fundamental right cases, consider whether there was less restrictive method for attaining the desired objective. Proportionality ‘‘ordains that administrative measures must not be more drastic than is necessary for attaining the desired result.’ H.W.R. Wade and C.F. Forsyth (2014), Administrative Law (OUP 11th ed) p. 305. R v Barnsley Metropolitan Borough Council, ex parte Hook 1 WLR 1052: Stallholder had his licence revoked for disorderly behaviour in the street. This was found to be a disproportionate penalty to his offence. R v Home Secretary, ex parte Brind 1 AC 696: A refusal of the BBC to publicly broadcast the direct statements of IRA members was challenged on the ground that it was disproportionate Unless P incorporates the Convention into domestic law, court which is well-known has a strong body of support, there appears to me to be at present no basis upon which the proportionality doctrine applied by the Eu Court can be followed by the courts of this country. Lord Ackner. Lord Lawry: “It finally occurs to me that there can be very little room for judges to operate an independent judicial review proportionality doctrine”. “Judges are not, generally speaking, equipped by training or experience, or furnished with the requisite knowledge and advice, to decide the answer to an administrative problem where the scales are evenly balanced, but they have a much better chance of reaching the right answer where the question is put in a Wednesbury form” Translation: judges lack expertise to decide advatnage of terminology oanswer to an administrative problem but there’s a better chance at reaching the right one if the question is put in Wednesbury form. R (on the application of Daly) v Home Secretary 2 AC 532: A rule requiring correspondence between a prisoner and his lawyers to be examined in the prisoner's absence was found to be a disproportionate restriction of the prisoner’s right to privacy under Article 8 ECHR. Lord Bingham: “the infringement of prisoners’ rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified.” R (Pro-Life Alliance) v BBC UKHL 23, 1 AC 185: A refusal of the BBC to broadcast an election campaign video that contained graphic images of abortions was not found to be a disproportionate restriction of freedom of expression. A Shift in Proportionality? Bank Mellat v Her Majesty's Treasury (No. 2) UKSC 39 Kennedy v The Charity Commission UKSC 20 Lord Mance: advantage of terminology of proportionality - introduces element of structure into exercise, by directing attention to factors such as suitability or appropriateness, necessity and balance or imbalance of benefits and disadvantages. No reason why such factors should be relevant in JR even outside scope of Convention and EU law.” Speaking generally, true Wed and EU review 2 diff models - one tighter, loser - same judicial concept which is the imposition of compulsory standards n decision makers to security the repudiation of arbitrary power. But right approach now surely to recognise inappropriate to treat all cases of JR together under general but vague principle of reasonableness and preferable to look for underlying tenet or principle which indicates basis on which court should approach any admin law challenge in a particular situation. Lord Mance: “A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy …, be both available and valuable for the purposes of such a review”. Lord Reed: Can infer where P authorises signif interference w important legal rights, courts may inter legislation as requiring such interference should be no greater than is objectively established to b3 necessary to legitimate aim of interference - requirement of proportionality. Key Points on Proportionality and Judicial Review Lord Mance Strict Standard of Judicial Review: Emphasizes the need for a strict standard when reviewing the exercise of power under section 40(2). Proportionality: Advocates for the use of proportionality as a valuable tool in judicial review, referencing the Kennedy case. Lord Reed Interference with Legal Rights: Courts may interpret legislation authorizing significant interferences with legal rights as requiring that such interference be no more than necessary to achieve a legitimate aim. Proportionality Requirement: Essentially, this interpretation aligns with the principle of proportionality. Lord Sumption Evolution of Proportionality in English Law: Although not formally adopted, English law has evolved towards a concept similar to proportionality, influenced by European jurisprudence. Historical Context: References the House of Lords decision in R v Secretary of State for the Home Department, Ex p Bugdaycay (1987), which recognized the need to differentiate between rights of varying importance and degrees of interference. Rationality Review: Suggests that rationality review has expanded to incorporate elements of proportionality at common law. Lord Neuberger (Keyu v Secretary of State for Foreign and Commonwealth Affairs UKSC 69) Reconsidering Judicial Review: Proposes reconsidering the basis for judicial review of executive decisions, advocating for a shift from Wednesbury rationality to a more structured proportionality-based approach. Panel Limitation: Notes that a five-judge panel is insufficient to address this issue comprehensively. Academic Commentary by Mark Elliott  Proportionality vs. Wednesbury: Discusses the nuanced relationship between proportionality and Wednesbury rationality, suggesting that the distinction may not be as stark as traditionally thought. Co-existence of Principles: Argues that proportionality and rationality can coexist, and their boundaries may overlap. Additional Reading Mark Elliott’s Commentary: For a deeper understanding, refer to Mark Elliott’s article on proportionality and contextualism in common-law review, particularly in the context of the Supreme Court’s judgment in Pham. These notes should help you grasp the key concepts and arguments related to proportionality and judicial review. Let me know if you need further clarification on any point! Lecture Handout 7: Controls on delegated legislation What is delegated legislation? Power to enact leg freq by body other than legislature. UK, Monarch some powers to act - Orders in Council w Privy council advice. Often residual prerogative powers, OiC sometimes under statute. Other leg - ‘delegated legislation’ or ‘secondary’/’subordinate’ legislation. UK P can delegate to who it wishes, local authorities, port authorities, national park authorities, rail operators even RSPCA. Mostly gov mins. Op of gov carried not directly through laws by Parl but rules made by membs of executive under delegated powers from Parl. Use and potential abuse over delegated legislation = cocern over balance of constitutional powers between powers of executive and legislature. Courts have role in reviewing legality of del leg. Exec must command confidence of Commons so will able to pass whatever leg wishes (delegate leg-making power including to self however much it wishes) How do Parliaments delegate legislation-making powers? Via Act of P (usually ‘parent act’ or enabling act). Del leg often in SIs form, regulations, orders, rules. Various forms of secondary leg like OiC and local authority orders. All SI are secondary but not all secondary legs are SI; only SI if parent act states must be made by SI. SI Act 1946 - e.g, SI must be published - s0ome legal rules don;t apply generally (ie dont apply to del leg which is not an SI) Why do Parl delegate legislation-making powers Efficiency of gov: if Parl do all self, leg machine clog up and/or laws assed without enough scrutiny. Del can fill details. Technical matters may be best under non-P process enables better knowledge and experience of experts, prof bodies and commercial itneresrs to be utilised. Adaptability: can’t foresee every issue, takes longer to enact primary leg than secondary. Swift response to new situations. Constitutional reasons: S mins have greater executive competences than Holyrood has legislative competences ie on speed limits. However, creates danger - overly powerful exec that create laws without proper scrutiny. HOC Library rsch briefing - ‘delegated powers and framework leg’ - Sim, Whittake and Cowie highlight increasing use btw 1991 and 2023 of ‘fraemwork bills’ (sekeleton bills) - “tjpse where most of policy cotnent is to be determine dby delegated lgeislation” and raise scrutiny concernson this. Henry VIII Powers Parl grants exec power to amend or repeal primary leg (acts of P) refers ot Henry making laws by rpcolomation authroised by a law of 1539. Enable only very limited changes to primary legislation sometimes and justified by courts: for legislation to be effective, it might be necessary to update or amend laws that fall under the responsibility of another department. This could involve minor changes like updating references or modernizing the language used. HV can go further. Definition and Scope: Henry VIII powers allow Ministers to make substantive changes to primary legislation. These powers can be justified by the need to legislate quickly in emergency situations. Key Legislation: Civil Contingencies Act 2004 (CCA): ○ Permits emergency legislation. ○ Imposes conditions and enhances scrutiny on the exercise of these powers. Public Health (Control of Disease) Act 1984: ○ Used by Boris Johnson’s Government for COVID-19 regulations. ○ Criticized for evading scrutiny under the CCA. ○ Refer to: House of Lords Select Committee on the Constitution report (2021) and T Hickman KC’s work. Controversial Uses: Legislative and Regulatory Reform Act 2006, Section 1: ○ Allows Ministers to make provisions to reduce burdens from any legislation. European Union (Withdrawal) Act 2018, Section 8(1): ○ Allows Ministers to address failures or deficiencies in retained EU law post-Brexit. ○ Refer to works by M Elliott, S Tierney, and Kenneth Campbell for more details. Criticism and Debate: General Criticism: ○ Richard Gordon KC argues these powers should be abolished. Specific Criticism: ○ Nicholas Barber and Alison Young argue that empowering Ministers to amend or repeal future primary legislation is constitutionally problematic How is government held accountable when producing delegated legislation? 1) Parliamentary control Pre-emptive: during process for enacting Parent Act, should be scrutiny (and debate) on extent of powers PA will delegate. Ministerial responsibility: mins subject to gen principles of accountability (answerable to P for making del leg for eg) Procedural: give opportunity for Parl to block it (negative resolution procedure) or make conditional on P’s approval (positive resolution and super-affirmative procedures) Most require no P scrutiny at all, no requirement to bring b4 Parl eg orders which close a road, commencement orders. SI formally subject to P scrutiny depends on PA terms, 3 types of procedureL Negative (or ‘negative resolution’) Procedure: SI becomes law when signed by a Minister. Must be laid before Parliament; either House can annul it within 40 days by passing an ‘early day motion’. Last annulled by UK Parliament in 1979. SIs made by this procedure are called ‘negative instruments’. Affirmative (or ‘positive resolution’) Procedure: Draft SI must be laid before Parliament and becomes law only if approved by a resolution of each House within 40 days. Exceptions for some financial matters, which need only Commons approval. Last rejected by House of Commons in 1978. SIs made by this procedure are called ‘affirmative instruments’ (200-250 made per year). Super-affirmative Procedure:  Involves an additional stage where the Minister presents a proposal for an SI with an explanatory statement. Parliamentary Committees consider the proposal and can make recommendations. SI is then made under the affirmative procedure. Parliamentary Control through Select Committees: Controls apply to both the parent Act and the delegated legislation. Includes policy control (appropriateness of power to the executive) and technical/legal control (compliance with requirements, EU Law, ECHR, etc.). Committees Involved: Joint Committee on Statutory Instruments (JCSI): ○ Conducts technical (legal) scrutiny. ○ Reports on points such as ultra vires, unusual use of powers, defective drafting, and other non-policy issues. House of Lords Committees: ○ Delegated Powers and Regulatory Reform Committee: Examines Bills and reports on legislative powers proposed to be delegated. Provides technical scrutiny of Legislative and Regulatory Reform Act 2006 orders. ○ Secondary Legislation Scrutiny Committee: Examines policy merits of SIs or regulations subject to parliamentary procedure. House of Commons Committees: ○ Delegated Legislation Committees: Consider merits of SIs subject to affirmative or negative procedure. Can only accept or reject SIs, not amend them. ○ Constitution Select Committee: Reviews and comments on delegated powers in draft legislation with constitutional concerns. Scottish Parliament: ○ Delegated Powers and Law Reform Committee: Conducts technical review of delegated legislation and delegation in primary legislation. General function of committees to consider merits of relevant delegated legislation. Key Information for Exams: Understand the different procedures for SIs (negative, affirmative, super-affirmative). Familiarize yourself with the roles of various committees in scrutinizing SIs. Be aware of the historical context and examples of annulled or rejected SIs. Know the types of control (policy and technical/legal) applied to delegated legislation. 2) Judicial control through judicial review Legality reviewed by courts (largely on same grounds of JR of admin decisions), suggestions courts should show more deference when reviewing del leg approved by P esp on soem grounds (rationality). 1. Judicial Review in the UK: ○ Typically involves legal challenges to administrative decisions made by Ministers, public bodies, and other entities exercising public powers. ○ Does not usually extend to primary legislation, except under the controversial ‘principle of legality’. ○ In Scotland, primary legislation (Acts of the Scottish Parliament) can be challenged on various grounds such as competence and ECHR compliance. 2. Judicial Review in Other Jurisdictions: ○ In countries with a constitution as higher law (e.g., the US and Australia), judicial review often involves challenges to the legality of primary legislation. 3. Delegated Legislation: ○ In both the UK and other jurisdictions, delegated legislation can be challenged via judicial review. ○ Notable cases include: R (on the application of UNISON) v Lord Chancellor UKSC 51: The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 was found unlawful for obstructing access to justice and violating EU law. F Hoffmann-La Roche v Secretary of State for Trade and Industry AC 295: Delegated legislation is subject to judicial review even if approved by Parliament. Boddington v British Transport Police UKHL 13: It is a defense in criminal proceedings that the delegated legislation creating the relevant offense was ultra vires. R v Sheer Metalcraft QB 586: The statutory instrument was upheld as valid despite not being published, based on the Statutory Instruments Act 1946. 4. Judicial Review: ○ Legal process where courts review the lawfulness of decisions or actions by public bodies. ○ In the UK, focuses on administrative decisions rather than primary legislation. 5. Delegated Legislation: ○ Laws made by an individual or body under powers given to them by an Act of Parliament (parent Act). ○ Includes statutory instruments, orders, and regulations. Defence Against Contravention: Statutory Instrument Defence: ○ If charged with an offence under a statutory instrument, it can be a defence to prove the instrument was not issued by HMSO at the time of the alleged offence. ○ Exception: If reasonable steps were taken to notify the public or affected persons. Consultation Requirements: 1. General Duty:  ○ Bates v Lord Hailsham of St Marylebone : No general common law duty to consult those affected before making delegated legislation. ○ BAPIO Case: Some doubt cast on the above principle by comments from Sedley LJ. 2. Specific Cases: ○ Agricultural Training Board v Aylesbury Mushrooms : If the parent Act requires consultation and it is not done, the legislation may be unenforceable against those not consulted. ○ R v Secretary of State for Social Services, ex p AMA : Statutory instrument upheld despite failure to consult because the main objection was the lack of consultation, not the substance of the regulations. Severability: DPP v Hutchinson : ○ If a provision of delegated legislation is invalid, the court tests if other provisions can still apply without the invalid one. ○ If they can, they remain valid; if not, the entire instrument is invalid. Important Cases: 1. R (on the application of UNISON) v Lord Chancellor : ○ Employment Tribunals Fees Order 2013 found unlawful for obstructing access to justice and violating EU law. 2. F Hoffmann-La Roche v Secretary of State for Trade and Industry : ○ Delegated legislation subject to judicial review even if approved by Parliament. 3. Boddington v British Transport Police : ○ A defence in criminal proceedings that the delegated legislation creating the offence was ultra vires. 4. R v Sheer Metalcraft : ○ Statutory instrument upheld as valid despite not being published, based on the Statutory Instruments Act 1946. Principle of Legality: Concept: ○ Legislation must not infringe fundamental rights unless explicitly stated. Key References: ○ HJ Hooper, ‘Historical Origins of the “Principle of Legality” in British Public Law’. ○ A Latham-Gambi, ‘Sovereignty, the rule of law and the nature of legislation: reconceptualising the traditional ultra vires theory’ Public Law 109. Lecture Handout 8: Tribunals and Inquiries Overview: Tribunals are a crucial part of the UK’s administrative justice system.  They are statutory bodies that mainly hear vertical appeals (private persons vs. government decisions) but also handle horizontal disputes (e.g., employment and land tribunals). Key Strengths of Tribunals: Effective Appeals: Allow individuals to challenge state decisions that affect them. Broad Scope: Handle cases involving mental health, tenant-landlord disputes, tax, welfare benefits, and children’s needs. Tribunals vs. Judicial Review: 1. Merits Review: ○ Tribunals reconsider the merits of a decision, exercising substantive jurisdiction. ○ Their decisions are binding, to parties subject to appeal. 2. Fact-Finding: ○ Tribunals can make their own findings of fact by hearing witnesses and considering evidence. ○ They conduct ‘de novo’ reviews. 3. Jurisdiction: ○ Tribunals’ jurisdiction is established by statute. ○ Courts, in judicial review (JR), exercise inherent common law supervisory jurisdiction. Advantages of Tribunals: 1. Informality and Speed: ○ Better suited to handle large volumes of cases quickly rather than by court system. 2. Proportionate Dispute Resolution: ○ Balance between dispute issues and resolution costs/procedures. ○ Less procedural and evidential requirements reduce the need for legal representation. 3. Effectiveness: ○ More accessible and cost-effective, enabling individuals to gain remedies for state wrongs. 4. Expertise: ○ Tribunal members bring diverse skills and experiences, though they need not be legally qualified. Notable Review: Leggatt Review (2001): ○ Tribunals developed haphazardly with varied practices and perceived lack of independence. ○ The system was fragmented and overly complicated. ○ Tribunals did not adequately consider the interests of their users. Important Cases: Bates v Lord Hailsham of St Marylebone : ○ No general common law duty to consult those affected by delegated legislation. Agricultural Training Board v Aylesbury Mushrooms :  ○ Failure to consult as required by the parent Act can make legislation unenforceable. DPP v Hutchinson : ○ Invalid provisions of delegated legislation can be severed if other provisions can still apply coherently. Additional Reading: Hazel Genn, ‘Tribunal Review of Administrative Decision-Making’ in Richardson and Genn (eds), Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (OUP 1994) Leggatt Review Recommendations: Consolidation: Existing tribunals should be consolidated into a single system. Enabling Approach: Tribunals should adopt an enabling approach to conducting hearings. Tribunals Service: Various agencies administering courts and tribunals were merged into the ‘Tribunals Service’ (now HM Courts and Tribunals Service). Tribunals, Courts, and Enforcement Act 2007 (TCEA): Unified Structure: Created two generic tribunals: ○ First-Tier Tribunal (FTT) ○ Upper Tribunal (UT) Appointment of Judges: ○ New judges must be legally qualified or experienced. ○ Appointments are managed by the Judicial Appointments Commission (JAC). ○ Judges from main courts often serve as Tribunal judges, especially in the UT. Tribunal Procedure Committee: Established to make rules governing the practice and procedure of FTT and UT proceedings. First-Tier Tribunal (FTT): Structure: Divided into seven Chambers based on subject matter: 1. General Regulatory Chamber 2. Health, Education, and Social Care Chamber 3. Immigration and Asylum Chamber 4. Property Chamber 5. Social Entitlement Chamber 6. Tax Chamber 7. War Pensions and Armed Forces Compensation Chamber Function: Acts like a court of first instance, hearing evidence and legal arguments, and making binding decisions. Appeals: General right to appeal FTT decisions to the UT on grounds of legal error. Upper Tribunal (UT): Function: Mainly hears appeals on points of law from FTT decisions; has first-instance jurisdiction for some matters and limited judicial review jurisdiction. Structure: Divided into four Chambers: 1. Administrative Appeals Chamber 2. Immigration and Asylum Chamber  3. Lands Chamber 4. Tax & Chancery Chamber Superior Court of Record: UT decisions are binding precedents on the FTT. Appeals: UT decisions can be appealed to the Court of Appeal and then to the Supreme Court on points of law. Key Points: Consolidation and Reform: The TCEA reforms have integrated tribunals more closely with the court system, creating a unified structure for administrative appeals. Judicial Independence: The appointment and structure of tribunal judges ensure judicial independence and expertise. Accessibility and Efficiency: Tribunals provide a more accessible and efficient means of resolving disputes compared to traditional courts. Public Inquiries: Established on an ad hoc basis to investigate events of public importance (e.g., national disasters, major scandals). Purpose: To determine the cause, identify responsibility, and learn lessons to prevent recurrence. Legal Framework: Inquiries Act 2005: Provides the legal basis for establishing public inquiries. Key Provisions of the Inquiries Act 2005: 1. Establishment of Inquiry (s 1(1)): ○ A Minister can initiate an inquiry if events cause or are capable of causing public concern, or if there is public concern that events may have occurred. 2. Terms of Reference (s 5): ○ The Minister sets the terms of reference, outlining the scope and objectives of the inquiry. 3. Limitations (s 2): ○ Inquiries cannot determine civil or criminal liability. 4. Inquiry Chair and Panel: ○ Each inquiry has a Chair, usually a senior judge (active or retired). ○ Additional panel members may be appointed. 5. Report (s 24): ○ The Chair must deliver a report to the Minister, detailing: Facts determined by the inquiry. Recommendations (if required by the terms of reference). Any other relevant information or recommendations deemed necessary by the panel. Implementation of Recommendations: Political Decision: Whether to implement the recommendations is a political matter and not mandated by the inquiry. Why hold a public inquiry? Why Hold an Official Investigation?:  ○Establish Cause: Determine the cause of an incident to prevent or mitigate future risks. ○ Public Confidence: Restore trust in institutions or systems. ○ Political Purposes: Sometimes used to delay addressing issues, potentially leaving them for a different government. Why Conduct a Public Inquiry?: ○ Legal Powers: Statutory public inquiries can compel evidence, unlike non-statutory inquiries. ○ Non-Statutory Inquiries: Ministers can establish these, but they rely on voluntary cooperation from witnesses. Examples of Inquiries: Non-Statutory Inquiries: ○ Hutton Inquiry (2003): Investigated the death of Dr. David Kelly. ○ Butler Review (2004): Reviewed intelligence on Weapons of Mass Destruction. Statutory Inquiries: ○ Saville Inquiry (1998-2010): Investigated Bloody Sunday; took 12 years and cost £190m. ○ Hillsborough Stadium Disaster Inquiry: Produced the Taylor Report; followed by the Hillsborough Independent Panel’s investigation (2009-2012). Current High-Profile Public Inquiries: COVID-19 Inquiries: Both UK-wide and in Scotland. Scottish Child Abuse Inquiry Post Office Horizon IT Inquiry Countess of Chester Hospital Inquiry: Regarding the Lucy Letby murders. Criticisms of the Inquiries Act 2005: Parliamentary Involvement: The Act has been criticized for removing Parliamentary involvement in inquiries. Ministerial Control: Decisions on holding inquiries, their terms of reference, and personnel are made by the relevant Minister, who can also stop (s 13) or suspend (s 14) inquiries. Key Points: Public Demand: Victims and families often campaign for public inquiries after major incidents. Government Resistance: Governments may resist due to the time and expense involved. Multiple Investigations: There can be multiple investigations into the same event, both before and after a public inquiry. Overview: Judicial Review: Courts can review a Minister’s decision to establish or not establish a public inquiry, as well as decisions on terms of reference, panel membership, etc. Key Cases: 1. R (Amin) v Secretary of State for the Home Department UKHL 51: ○ Successful Challenge: The Home Secretary’s decision not to hold an inquiry into a murder in prison custody was successfully challenged.  2. Keyu and others v Secretary of State for Foreign and Commonwealth Affairs UKSC 69: ○ Unsuccessful Challenge: Concerned the killing of 23 civilians in 1948 in Malaysia. ○ Majority Decision: The Supreme Court (4-1) found the Minister’s decision lawful, as the reasons for rejecting the inquiry were defensible and relevant. ○ Dissenting Opinion (Lady Hale): Argued the decision was unreasonable due to the public interest in the event, the private interests of relatives and survivors, and the importance of establishing the truth. 3. In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) UKSC 7: ○ Background: The Labour Government promised a public inquiry into Pat Finucane’s murder in 2004, but the Conservative-led Government decided against it in 2011. ○ Supreme Court Decision: Held that the applicant had a legitimate expectation of an inquiry, but it could not be judicially enforced as the Government acted in good faith and on genuine policy grounds. Key Points: Reviewability: Ministerial decisions regarding public inquiries are subject to judicial review. Legitimate Expectation: Applicants may have a legitimate expectation of an inquiry, but this does not guarantee judicial enforcement. Public and Private Interests: Courts consider both public interest and the private interests of those affected when reviewing decisions. Additional Reading: Sean Molloy, A Note on In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) (2019): Provides further insights into the Finucane case. Lecture 10 Handout: Introduction to Human Rights 1. Definitions and distinctions HR - moral rights grounded in moral justifications or legal rights (derived from sources of law) or both. Unlike other moral or legal rights, (citizens’ rights) HR one we hold simply by virtue of being human. Diff theories, ‘liberal approach’ - importance of human autonomy, used to justify individ freedoms from interference by states (e.g, freedom from torture, freedom of expression, etc). Others justify with ideas like human dignity, basic human needs. Criticism: too individualistic or too much weight on value of indeed freedom over equality btw indivds. Codification ofHR as legal rights, judges shouldn’t decide how far HRs protection should extend instead political matter for democratic deliberation. At present, legal sources of HR found at 4 lvls  - Global (UN HR treaties) - Regional (ECHR) - State (HRA 1998) - Devolved (Scotland Act 1998) 2. UN HR treaties 1948 Universal Declaration of HR (UDHR) important in int HRs law development. Provisions translated into two binding treaties adopted by UN 1966: International Covenant on Civil and Political (ICCPR) & International Covenant on Economic, Social and Cultural Rights (ICESCR). Core treaties: have ‘treaty monitoring body’ - expert committee for interpretation and enforcement (ICCPR - UN HR Comm) - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) - Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) - Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) - Convention on the Rights of the Child (CRC) - International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) - International Convention for the Protection of All Persons from Enforced Disappearance (CPED) - Convention on the Rights of Persons with Disabilities (CPRD) UK ratified all but ICMW and CPED. 3. European Convention on HR 3.1 Background ECHR drafted 1950 under Council of Europe. Force 1953, ratified 46 states. UK ratified 1951, could petition ECHR 1996. Council of Europe diff from EU, UK member of CoE and bound by ECHR. 3.2 Content The core Convention rights are as follows: · Right to life (Article 2) · Freedom from torture (Article 3) · Freedom from slavery and forced labour (Article 4) · Right to liberty and security (Article 5)  · Right to a fair trial (Article 6) · Freedom from retroactive criminal punishment (Article 7) · Right to private and family life (Article 8) · Freedom of thought, conscience and religion (Article 9) · Freedom of expression (Article 10) · Freedom of assembly and association Article 11) · Right to marry (Article 12) · Right to enjoy Convention rights without discrimination (Article 14) Absolute rights - no interference can be lawfully justified eg freedom from torture. Qualified (expression) - permissible if prescribed by law, pursue legit aim and necessary in democratic society. Art 15 ECHR = deviate from most ‘in time of war or other public emergency threatening the life of the nation’. Derogations never permitted in respect of art 2 (except lawful acts of war), 3, 4(1) and 7. Protocols adding stuff - right to enjoyment of possessions (art 1, protocol no.1), right to education (art 2, no 1), right to free elections (art 3, protocol no 1) and freedom of movement (art 2, no 4). Ratified separately to apply in given state. 3.3 Enforcement All states ‘shall secure to everyone within their jurisdiction the rights and freedoms set out in the convention - art 1 ECHR. Violated, indivds right to effective remedy b4 national authority, domestic courts art 13 ECHR. Absence of domestic remedy, individs, grps, NGOs can apply to ECHR. ECHR (Strasbourg) separate from CJEU (Luxembourg). Stras - 46 judges, 1 each MS of Council of Europe. Elected by Parliamentary assembly for non-renewable term of 9 yrs. Depending on case, may sit as single-judge formation, in committees of 3 judges, in chambers of 7 or Grand Chamber 17. Grand Chamber - case raising ‘serious question affecting the interpretation of Convention or Protocols’ or ‘have result inconsistent with a judgement previously delivered by the Court’ (Art 30 ECHR) Jurisidction ‘covers all matters concerning the itnerpretatui application of the Convention and the Protocols thereto’ (Art 32 ECHR) In order for their application to be admissible, an individual applicsant must;  - Be victim of convention violation (art 34) - Exhausted all domestic remedies (art 35(1) - Not raise matter alr dealt with by Court (art 35(2)) - Not make a manifestly il-founded ckaum (35(3)) - Suffered significant disavntage (art 35(3)) Apps may also be brought from one state agains another (art 33) Can’t disapply domestic leg, states ‘undertake to abide by the final judgement of the court in any case to which they are parties’ (art 46 ECHR), might require amending or repealing such leg. The execution of judgements supervised by Committee of Ministers of Council of Europe. Lecture 11: The Human Rights Act 1998 Incorporated ECHR inro UK law, prior position - R v Secretary of State for the Home Department, ex parte Brind 1 AC 696, at 747-748 (per Lord Bridge): The duty of national courts to keep pace w the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.] - R (Ullah) v Special Adjudicator UKHL 26, (Lord Bingham) Public Law and Individual Rights 1. Interpretation of Convention Rights Keeping Pace with Strasbourg Jurisprudence: ○ Case: R (Marper) v Chief Constable of South Yorkshire UKHL 39 ○ Key Point: Convention rights should evolve with Strasbourg jurisprudence, not leap ahead of it. ○ Quote: “We must interpret the Convention rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence as it evolves over time.” – Lady Hale Conflict with Domestic Court Rulings: ○ Case: R (Kay) v London Borough of Lambeth UKHL 10 ○ Key Point: Domestic courts must consider Strasbourg Court judgments but are not strictly required to follow them if they conflict with higher domestic court rulings. ○ Quote: “The mandatory duty imposed on domestic courts by section 2 of the 1998 Act is to take into account any judgment of the Strasbourg Court … Thus they are not strictly required to follow Strasbourg rulings … as they are bound by the rulings of superior courts in the domestic curial hierarchy.” – Lord Bingham 2. Statutory Interpretation (Section 3) Section 3(1) of the HRA 1998: ○ Provision: Legislation must be read and given effect in a way compatible with Convention rights, as far as possible. ○ Interpretative Obligation: Case: R v A UKHL 25  Key Point: Courts must strive to find an interpretation compatible with Convention rights, even if the language is unambiguous. Quote: “Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.” – Lord Steyn Limitations by Parliamentary Sovereignty: ○ Case: Re S UKHL 10 ○ Key Point: Not all provisions can be made Convention compliant; substantial departures from fundamental features of an Act cross the line between interpretation and amendment. ○ Quote: “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.” – Lord Nicholls Interpretation vs. Amendment: ○ Case: Ghaidan v Godin-Mendoza UKHL 30 ○ Contrasting Views: Lord Nicholls: Section 3 may require departure from the unambiguous meaning of legislation. Lord Millett: Section 3 does not allow courts to supply words inconsistent with the legislative scheme or to repeal, delete, or contradict the statute’s language. 3. Declarations of Incompatibility (Section 4) Section 4(2) of the HRA 1998: ○ Provision: Courts can declare a provision incompatible with a Convention right. ○ Effect: Such declarations do not affect the validity, operation, or enforcement of the provision. ○ Ministerial Action: Section 10(2): Ministers can amend legislation to remove incompatibility if there are compelling reasons. ○ Relevant Courts: UK Supreme Court, Judicial Committee of the Privy Council, High Court of Justiciary (non-trial), Court of Session in Scotland, High Court and Court of Appeal in Northern Ireland and England and Wales. 1. Section 4 Power vs. Section 3 Interpretation Section 4 as an Alternative: ○ Case: Ghaidan v Godin-Mendoza UKHL 30 ○ Key Point: Section 3(1) interpretation is the primary remedy, and Section 4 should be used only exceptionally. ○ Quote: “Interpretation under section 3(1) is the prime remedial remedy and that resort to section 4 must always be an exceptional course.” – Lord Steyn Example: ○ Case: Smith v Scott 2007 SC 345 ○ Key Point: Declaration of incompatibility was made regarding the statutory prohibition on prisoners voting, which conflicted with Article 3 of Protocol No. 1 to the ECHR. 2. Duties of Public Authorities (Section 6) Section 6(1) of the HRA 1998: