Judicial Review and the Human Rights Act

JUDICIAL REVIEW AND THE HUMAN RIGHTS ACT Cavendish Publishing Limited London • Sydney JUDICIAL REVIEW AND THE HUMAN RIGHTS ACT Richard Gordon QC Barrister at Brick Court Chambers, London, and Visiting Professor in the Faculty of Laws at University College London and Tim Ward Barrister at Monckton Chambers, London Cavendish Publishing Limited London • Sydney First published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 E-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com © Gordon, R and Ward, T 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing in Publication Data Gordon, RJF Judicial review and the Human Rights Act 1 Civil rights—England 2 Civil rights—Wales I Title II Ward, Tim 342.4’2’085 ISBN 1 85941 430 3 Printed and bound in Great Britain To Edmund and Adam and To Ethan ‘What are the Rights of Man and the Liberties of the World but Loose-Fish?’ Herman Melville, Moby Dick, Ch 89. FOREWORD The Rt Hon Lord Justice Brooke Rights, they say, are coming home, even though English judges have been creating, shaping and defending our rights for nearly a thousand years. Experience has shown, however, that our freedom-based laws could not prevent some ‘no-go’ areas being created in which it has been hard for judges to perform their traditional role of doing right to all manner of man (and woman). The Human Rights Act aims to eliminate those ‘no-go’ areas. From October 2000 onwards, every public authority, including every court, will be behaving unlawfully if it acts in a way which is incompatible with a Convention right. Courts and tribunals must take Convention jurisprudence into account whenever a question arises in connection with one of those rights. But Strasbourg jurisprudence is vast, and there are very few Human Rights Law Reports in circulation outside specialist corners of practice. Hence the importance of this book. The new Act poses formidable challenges to practitioners in connection with both law and practice in the public law field. We are fortunate that Richard Gordon QC and Tim Ward have brought together into one place a mass of valuable material to help us find our way through the labyrinth we will all be entering. If we keep this book with us, we are far less likely to get lost in the maze. Henry Brooke Court of Appeal September 2000 vii PREFACE This book seeks to address the profound changes which the Human Rights Act 1998 will bring both to the practice of public law, and to the nature of judicial review itself. Chapter 1 provides an analysis of the provisions of the Act and considers how it is likely to work in practice. Chapter 2, ‘Claimants and Defendants’, asks which bodies will be affected by the Act. There are important differences between the test for standing in ‘ordinary’ judicial review, and the requirement under the Human Rights Act that an applicant should have the status of ‘victim’. If the domestic courts apply the Strasbourg case law, the test for standing under the Act will clearly be narrower than that which applies in ‘ordinary’ judicial review in certain important respects. In some circumstances, it is likely that the Convention may be brought to bear upon purely private disputes thereby further increasing its reach. It is also probable that there are bodies which are susceptible to challenge under the Act which have not been thought to be amenable to judicial review. Some ‘obvious’ public authorities (at least) face challenge under the Act in respect of functions such as, for example, those governed by employment law, which have previously been held to be outside the scope of judicial review. There is, therefore, little doubt that the broad approach to the question as to susceptibility to challenge under the Act will bring about a considerable widening of public law supervision. Chapter 3 addresses ‘Convention Concepts’: the interpretative and analytical tools employed by the Strasbourg institutions. The Human Rights Act requires the domestic courts to ‘take into account’ the Strasbourg case law in determining any question which arises in connection with a Convention right. This cannot be done without also taking into account (at least some of) the concepts which are themselves integral to Strasbourg’s reasoning. This conceptual framework brings the prospect of change to fundamental canons of domestic law, not least the doctrine of precedent. In some circumstances, the Wednesbury test may fail to satisfy the Court’s doctrine of effectiveness and give rise to a breach of the closely related right to an effective remedy contained in Article 13. Chapter 4 provides a brief exegesis of the substantive rights contained in the Convention. Article 6, the right to a fair trial, however, is of such significance for domestic public law that it is given separate treatment in Chapter 5. The substantive rights themselves have given rise to challenges to the sufficiency of judicial review. Aside from Article 6, questions have arisen as to the ability of judicial review to satisfy Article 5, the right to liberty and security, and, perhaps surprisingly, Article 1 of Protocol No 1, the right to property. The seed of such challenges can be found in the preamble to the Convention which emphasises the importance of the rule of law as part of the common heritage of the Contracting States. The Convention contains an explicit requirement that state action which serves ix Judicial Review and the Human Rights Act to limit certain freedoms which are protected by the Convention must be ‘lawful’ and/or ‘inaccordance with the law’. The Strasbourg approach to the requirement of legality goes far beyond the Diceyan concept of the rule of law. In essence, the latter requires only adherence to the requirements of the law, such as they are. The European Court of Human Rights takes a substantive approach to the requirement of legality. It demands not merely adherence by the state to the rules of domestic law, but in addition, imposes requirements as to the ‘quality’ of domestic law. This requires adequate legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention. It is this prohibition on arbitrariness, inferred by the Court from the Convention requirement of legality, which gives rise to a control on the quality of judicial review. In United Kingdom cases, applicants have typically alleged that the adherence by the judicial review courts to the Wednesbury test, and the absence of a substantive review of the exercise of public law powers entails that the quality of review does not provide sufficient protection against arbitrariness. As shall be seen, some—although by no means all—such challenges have succeeded in Strasbourg. There are some circumstances in which judicial review in its current form cannot be said to give rise to a fair trial within the meaning of Article 6. This issue is considered in Chapter 5, as are two further questions of central importance. The first is the scope of the application of Article 6. Adherence by the domestic courts to the Strasbourg case law on this question may serve to exclude a number of important areas of domestic public law, such as immigration, from the ambit of Article 6 protection. The second question is the extent to which the requirements of Article 6 differ from those of the common law doctrine of natural justice. In many important respects, Article 6 is considerably more stringent in its demands. The Human Rights Act introduces the possibility of a remedy in damages for a breach of Convention rights. There is no general right to damages in public law, and the new remedy may therefore be of great practical importance. The Act requires the domestic courts to take into account the principles applied by the Strasbourg Court in deciding whether to award damages for a breach of Convention rights, and the amount of such an award. In Chapter 7, the Strasbourg case law is analysed, and such principles as may be extracted from it are considered. The final chapter of the book examines the relationship between the Convention and Community law. The European Court of Justice in Luxembourg applies the Convention in construing the fundamental rights which form part of the general principles in Community law. Important questions arise as to the role of the Convention in Community law, and indeed the best tactical approach to questions which engage fundamental rights but also fall within the scope of Community law. x Preface We have endeavoured to state the law as at 1 August 2000. Later changes have been incorporated where possible. In particular, the new rules for judicial review contained in CPR Pt 54 have been considered. Finally, we would like to thank our wives, Jane (for her endless patience) and Catherine (for inspiration during gestation). Richard Gordon QC Tim Ward Brick Court Chambers Monckton Chambers xi CONTENTS Foreword vii Preface ix Table of Cases xix Table of Statutes and Statutory Instruments xliii

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