Constitutional and Administrative Law: The Human Rights Act 1998 (3)

CASE: R (Alconbury Developments Ltd) [2001] System of development plans allowing environmental protection to be considered in policy making. Policy guidance issued from central gov't provides road map of convention and practice in the country. Planning system - provides power to control activities by imposing various conditions for a grant of planning permission. Held - disputes of planning matters such as compulsory purchase orders and the determination of planning conditions did involve rights protected by the Convention Analysis: H of L reviewed many cases determined under ECHR involving decisions by ministers and their accountability to Parliament. Article 6 - court does not have full jurisdiction over every aspect of these ministers' powers. Lord Hoffmann - Jurisdiction related to a full jurisdiction to deal with the case as the nature of the decision requires. Neither appropriate nor required that court should consider all aspects of planning law - sufficient there was a review of the decision's legality and of the relevant procedures followed. The extent to which judicial review had been expanded over recent years was sufficient to provide the necessary protection for the individual. Case illustrates the self-limitations placed on interpreting Convention rights by the courts.

CASE: Marcic [2004] Repeated flooding damaged C's garden - threatened internal flooding to C's property. Thames Water Utilities set priorities for flooding prevention schemes. Marcic's property did not qualify for renovation of preventative work C undertook some remedial work at his expense. Water Industry Act 1991 s.94(1) - provided enforcement notices; but s.18 only allowed performance via regulator, not directly for the property owner. Common law remedy? Nuisance? Rylands v Fletcher? Article 8 ECHR? Article 1 First Protocol? High Court:  Convention rights breached - remit of HRA provided against serious environmental harm. Cases such as Hatton v UK on aircraft noise were applied.

CASE: Marcic [2004] (cont'd)Court of Appeal: Common law claims may succeed - landowners required to take positive steps to enforce the law. HR claim upheld - statutory scheme inadequate. Decision allowed for positive rights approach to upholding environmental rights. House of Lords: Overturned C of A decision - statutory scheme adequate to protect C's rights; regulatory system was capable of providing a remedy. Common law remedies would therefore be unnecessary. Original decision of Hatton v UK reversed by ECtHR between the C of A and H of L decisions. CONCLUSION: Rights may be protected within the margin of appreciation applicable within the national scheme; Human Rights and the environment is problematic; Pressure groups possibly unable to rely on HRs to add to the effectiveness of environmental litigation.

Current Issues: Individual litigants may not have access to courts through specialist lawyers and expensive procedures. Limited legal aid Need for a specialised environmental tribunal / court? Human rights may present a wrong focus for environmental litigation. Application of rights: Right of public participation and adequate consultation - recent examples show how the courts are vigilant; Regulators acting on behalf of the citizen may be more effective (e.g. corporate manslaughter, Environment Agency, etc). MacRory Review and Post Hampton: Role of criminal law has been considered in light of the MacRory Review. Use of adjudicatory regulatory crimes undertaken as civil sanctions.

CASE: A v Secretary of State [2004] Indefinite detention under Anti-Terrorism Crime and Security Act 2001 s.23 was unlawful - violated Articles 5 and 14. Applicants detained under ATCSA as 'suspected international terrorists' Challenged their detention in the Special Immigration Appeals Commission (SIAC). ECtHR held that derogation was valid, but detention measures only applied to foreign nationals was discriminatory.  In the SIAC proceedings, allegations were general assertions or contained entirely in closed evidence unavailable to the applicants or their counsel, and could not be effectively challenged. ECtHR stated that there was no way for the applicants to claim compensation before national courts in respect of these violations. ATCSA Part IV repealed - replaced with control order system under PTA 2005. Decision applied in AF [2009] - at least the gist of closed evidence should be provided to those involved in cases before the SIAC. Subsequently, where such safeguards are not applied, control orders must be revoked.

Joint Committee on Human Rights: Rejected the Government's argument that no further general measures were required - system practically replicated in control order system. A v UK: Concerned the 2001 Act, not the 2005 Act, yet the reasoning regarding potential unfairness caused by secret evidence requires measure to be taken in relation to control orders in order to prevent future violations. Need for an urgent review of counter-terrorism legislation.

CASE: Ghaidan v Godin-Mendoza [2004] Question was whether a same-sex partner in close relationship with statutory tenant was entitled to succeed the tenancy under Rent Act 1977. Wide application of HRA s.3. Articles 8 and 14 applied - applicant had right to succeed to a statutory tenancy. Interpretation illustrative of how important it is to "read" legislation in a compatible way.

Strasbourg case law:JM v UK Application (2010): Applicant claimed she suffered discrimination due to sexual orientation (Art.8 and Art.1 Protocol 1 in conjunction with Art.14). Had she entered into a heterosexual relationship, her maintenance contributions to her children under the Child Support Act 1991 would have been less. Held: There were violations.Government response: No further general measures necessary to avoid repetition of such a breach - any such discrimination would be eliminated by Civil Partnership Act 2004.

CASE: Daly [2001] Prisoners could not be present during cell search - prison officers required to search cells and examine belongings, including legal documents and case notes.  Prison Act 1952 s.47 - Secretary of State was authorised to making rules for regulation of prisoners.      Officers were to “examine”, not “read”, any legal correspondence to ensure the content did not endanger prison security. Applicant sought leave to apply for judicial review of the decision to require examination of prisoners' legally privileged correspondence in their absence. Legal Issue: Was the cell search reasonable / excessive / disproportionate? Analysis: House of Lords reversed Court of Appeal decision - held that the policy of cell searches infringed Daly's common law rights to legal professional privilege.  PROPORTIONALITY TEST!Disproportionate - greater than could be regarded as justified. Decision-makers: Had to decide whether their use of search powers was reasonable.  Courts: Needed to consider the use of powers in terms of rights and the proportionate application of the rights to the case.

Prisoner Voting Rights: ECtHR - Greens v UK / M.T. v UK (2010): Blanket ban on voting imposed automatically on applicant due to status as a convicted offender detained in prison. No right to enrol on electoral register for domestic and EP elections. ECtHR found blanket ban in violation of Protocol 1 Article 3 ECHR (the right to free and fair elections). UK under pressure to bring forward legislative proposals to end the current blanket ban on prisoner voting. ECtHR noted: Wide range of policy alternatives available to UK government - broad margin of appreciation. Government should decide how to achieve compliance with Protocol 1 Article 3. Currently considering what to do.

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