Judicial Review and the Human Rights Act

The incorporation of the European Convention on Human Rights into UK law by way of the Human Rights Act 1998 which came into force on 2 October 2000, has added legal rules to UK law which deal with personal liberty. The HRA 1998 allows citizens of the UK greater and easier access to the terms of the Convention. Most articles of the ECHR are designed to restrict the way in which state power is exercised, but some articles also deal with private officials and individuals.

The Human Rights Act 1998 s 6(1) states that it is unlawful for a public authority to act in a way which is compatible with a convention right. Public authority is defined by the HRA flexibly and expressly, including courts and tribunals and any persons whose functions are of a public nature. Section 3 of the Human Rights Act 1998 provides that so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. The High Court and higher courts have power to declare legislation to be incompatible with Convention rights, but the legislation remains in force until repealed, however if delegated legislation is challenged as being incompatible with Convention rights, the courts may be able to quash it if it is inconsistent with the enabling Act. Section 10 and sch. 2 of the HRA enable the Government to make delegated legislation to remedy a breach of the Convention. The case of YL v. Birmingham City Council [2007] 3 WLR 112 is significant in that the House of Lords accepted the meaning of the term ‘public authority’ in the HRA depends not on judicial review case law, but on jurisprudence of the European Court of Human Rights. Under section 7 of the HRA, it will not always be necessary to bring judicial review proceedings to assert a convention right against an unlawful act by a public authority, and a court hearing a private law claim may also have to interpret convention rights.

Freedom of expression is generally held to be a fundamental right in a modern democracy and the traditional view in English law before the ECHR was that no man could be punished except for a distinct breach of the law. Article 10 of the ECHR covers freedom of expression, however 10 (2) states that these freedoms carry duties and responsibilities and may be subject to restrictions necessary in a democratic society, which include maintaining the authority and impartiality of the judiciary.

In the case of Thompson and Venables v. News Group Newspapers Ltd, although newspaper isn’t within the definition of public authority as defined under s.6, it was thought that since the court is a public authority, it must itself act in a way compatible with the Convention and have regard to European jurisprudence.

As one of the legitimate aims which can limit freedom of expression is the need to protect administration of justice, as set out in ECHR Article 10 (2), this could restrict the freedom of expression for the editor of the Grayton Gazette. The law on contempt of court in the UK has changed since the case of The Sunday Times v. United Kingdom (1979) 2 EHRR 245, Eur Ct HR, where the ECtHR recognised that the public have a right to receive information about a matter, even if the information formed the background to pending litigations. The Contempt of Court Act 1981 created an offence of interfering with active court proceedings. The principle of strict liability as set out in s. 2 (2) applies to any publication that creates a substantial risk to the course of justice, so that proceedings will be seriously impeded or prejudiced, and applies to communication addressed to the public at large or a section of the public, if the legal proceedings are active at the time of publication and the publication creates a substantial risk of serious prejudice. Contempt of court is a criminal offence where an act interferes with the course of justice, and so the editor of the Grayton Gazette will be in breach of the Contempt of Court Act 1981 if he prints the article.

Word Count 700

Bibliography

The Sunday Times v. United Kingdom (1979) 2 EHRR 245, Eur Ct HR.

European Convention on Human Rights Section 10, 10 (2)

Human Rights Act 1998, sections 3, 6, 6(1), 7, 8.

The Contempt of Court Act 1981

YL v. Birmingham City Council [2007] 3 WLR 112.

References

Cases & Materials on Constitutional and Administrative law, Allen & Thompson, Oxford, pages 457-459.

Constitutional & Administrative law, Hilaire Barnett, seventh edition, Routledge-Cavendish, pages, 532-533.

Open University, Law: the individual & the state, Manual 2

Question 2

Judicial review is part of public law where a judge reviews the lawfulness of public bodies, to ensure they are kept within the confines of the power conferred upon them by an Act of Parliament or common law.

Under a constitution dominated by the sovereignty of Parliament, an arrangement where three institutions of government operate in isolation would be unworkable and lead to legal and constitutional deadlock, as the Prime Minister and Cabinet (executive) are elected Members of Parliament (legislature), so fusing the two. The United Kingdom constitution is described as a mixed government and a weak separation of powers. The concept insists that the primary functions of state should be allocated clearly, and that there should be checks to ensure no institution encroaches significantly upon the function of the other. There requires a degree of separation of powers so that individuals can rely on laws made by the legislature, which bind the executive, but requires a need for co-ordination, as if the laws made by the legislature are not enforced by the executive, then individuals can not rely on the laws. Judiciary adjudicates upon conflicts between individuals, state institutions and between state and individual. Judicial independence is of importance in relation to government according to law and in the protection of liberty of citizen against the executive. In practical terms, local authorities and the civil service constitute the executive, which is an important aspect in this case, as the Grayton Street Licensing Committee (GSLC) were given the power to grant the Street Café Licence under the Street Activity Act 2005.

In English law, it is considered that the government should be subject to the jurisdiction of ordinary Common Law courts. The doctrine of Parliamentary sovereignty means that a person wronged by an Act of Parliament can have no judicial review of primary legislation, however there can be judicial review in some cases where primary legislation is contrary to the European Convention of Human Rights and European Union law. Judicial review is a procedure where the courts supervise the exercise of power on application of an individual to the Administrative Court, a division of the Queen’s Bench Division of the High Court, for a review of a decision by a government authority, such as local authorities, Government departments, tribunals or inferior courts or ‘quangos’, to have the unlawful decision quashed and to sometimes obtain damages. The court can also compel the authority to restrain it acting illegally by making an injunction or mandatory order, so that those responsible would commit the criminal offence of contempt of court if they acted in breach of the court order. Regardless of the way a statute defines the powers of a tribunal, the courts are prepared to intervene by judicial review to correct any error of law made by a tribunal. The High Court is fulfilling the constitutional function to ensure that public bodies do not act unlawfully. A public body would be acting unlawfully, as introduced by Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374, if it acts in a way which is illegal, irrational (unreasonableness) or procedural impropriety, whether or not it has infringed any civil liberty or private rights, and does not act to give effect to any private rights of the applicant.

Illegality is where the decision maker must correctly understand the law that regulates its decision making power and must give effect to it. However, this can cover a number of challenges in a case such as ‘ultra vires’ where a public authority has gone beyond the area of power or jurisdiction given to it by statute, and ‘abuse of power’ where a public authority has failed to use a power for its proper purpose. Procedural impropriety can cover any procedural error, whether it is a breach of common law rules of fairness or procedures laid down by statute.

The statute which gave the power to the Grayton Street Licensing Committee (GSLC) to give the Street Café Licence to Zak was the Street Activity Act 2005. It is the principal function of the court in Judicial Review to ensure that the public authority have acted lawfully and followed the Act correctly. As Zak has always abided by the attached conditions of the Street Activity Act 2005, the GSLC have acted illegally by immediately withdrawing his licence. The GSLC have also breached statutory requirements for procedural impropriety, by not following the procedure of the Act to give 14 days notice if the holder of the licence fails to abide by the attached conditions.

As there doesn’t seem to be any discretion in the wording of the Act for the licence to be withdrawn if Zac has abided by the terms of his licence, the court would be willing to intervene to ensure the GSLC are performing their duties. If the GSLC had discretionary powers that were too evasive, Zak would be uncertain of the rules to follow. If there is discretion in the Act, the court would have to ensure the GSLC are performing what is required for the minimum performance of their duties. By withdrawing the Street Café licence from Zak, the GSLC are exceeding their jurisdiction and acting ultra vires because it has deliberately defied the Activity Act 2005. The Administrative court will be guided by the wording of the Act and its view of the responsibility the GSLC have for carrying out its decision. The court may quash the decision of the GSLC if it has made errors in the way it has discharged its responsibility, by misunderstanding the fact of the Act to come to an irrational conclusion. Even if there is local pressure to withdraw Street Café licences, the local authority would conflict with Parliamentary legislation by not abiding by the law in the Act.

Judicial Review is designed to produce a swift decision on the question of whether a public authority is acting lawfully. In this case there is a public interest for the court to supervise the action of the public authority and there is no alternative remedy for Zak to take before he seeks judicial review. Zak will be granted judicial review under s. 31 of the Supreme Court Act 1981 and Part 54 of the Civil Procedure Rules 1998 (CPR), as he is locus standi (standing) and has ‘sufficient interest’ in the decision of his licence being taken away, so he can seek the right remedy in the right proceedings. However Zak must request Judicial Review within 3 months from the date he has knowledge of the decision to take away his Street Café Licence. The Administrative Court would quash the decision of the GSLC so it has no legal effect. The Court will not substitute its decision for that of the public body, but merely quash the decision, so the public body is left to take another decision with the benefit of the court’s ruling of the law. Under s. 31 of the Supreme Court Act 1981, damages can only be awarded where they could have been awarded in ordinary civil proceedings such as tort or contract and the issues are beyond the public law issues of the main case, so I do not think Zak will have grounds for damages.

Word Count 1,206

References

Cases & Materials on Constitutional and Administrative law, Allen & Thompson, Oxford, pages 547

Constitutional & Administrative law, Hilaire Barnett, seventh edition, Routledge-Cavendish, page 74, 75, 77

Open University, Law: the individual & the state, Manual 2