Constitutional and Administrative Law: The Human Rights Act 1998 (2)

Democratic Principle:Potential for conflict between the principle of democratic decision-makers and judges.CASE: R (Alconbury Developments Ltd)Lord Hoffmann:  No conflict between HRs and DP. Respect for HRs requires that certain basic individual rights not at all capable of being overridden by the majority, even if they think that public interest so requires. Other rights should only be overridden in exceptional circumstances - rights which belong to individuals 'simply by virtue of their humanity'. FACTS: System of development plans considered in policy-making for environmental protection. Development control requiring that acts of development must conform to planning permission from relevant local authority.

Interpretation of Strasbourg: HRA s.2 - Domestic courts can now have direct reference to the Articles, principles and case law of the ECHR. Courts should not apply decisions of the ECtHR. There are judgments that are nonetheless taken into account. CASE: Al-Jedda v UK (2011) Internment of Iraqi civilian for 3+ years in a detention centre in Iraq run by British forces. The ECtHR found a violation of Article 5(1). CASE: Al-Skeini v UK (2011) Deaths of applicants' close relatives in Basrah, Iraq whilst UK was an occupying power. Six victims killed in various circumstances, mainly by British soldiers. Given that the UK had assumed authority in SE Iraq, the UK had jurisdiction under Article 1 ECHR (obligation to respect human rights) in respect of civilians killed during security operations carried out by UK soldiers. Article 2 had also been violated - there had been a failure to conduct independent and effective investigations into the deaths of the applicants' relatives.

FACTS (cont'd): Held: Disputes of planning matters did involve rights protected by the Convention (Article 6 ECHR).

Government Response: Government considering these decisions - will implement judgments in due course. UK will need to consider domestic arrangements and compatibility when implementing these decisions. Indisputable that the Supreme Court must give effect to HRA.

ECtHR Jurisprudence (cont'd):CASE: Gillan and Quinton v UK Stop and search of the two applicants at a demonstration in the vicinity of the "arms fair" in Sep 2003 (Defence Systems and Equipment International Exhibition). One applicant was to take part in the demonstration - the other was a journalist intending to film the demo. Both stopped and searched under Terrorism Act 2000 s.44 - stopped and searched for articles that could be used in connection with terrorism, even where no suspicion of presence of such articles. Nothing incriminating found - applicants allowed to go on their way. ECtHR held that the lack of adequate safeguards on power powers to "stop and search" individuals without reasonable suspicion under TA 2000 s.44 violated Article 8. Government response: Public announcement that powers under TA s.44 and 46 would no longer be used in a way incompatible with Article 8. Terrorism-related stops and searches conducted instead under TA 2000 s.43 (i.e. stops and searches to be conducted on the basis of reasonable suspicion).

Explanation: s.44 would no longer be used for individual searches - subsequently used for vehicle searches as long as authorised, and on the basis that they were 'necessary' for the prevention of terrorist acts.

Public and Private Bodies: HRA s.6(1): Unlawful for public authorities to act in a way inconsistent with ECHR. HRA s.6(3): Private body may be considered a public authority if it performs public functions. Classified as a hybrid that is a body with several different functions but crosses the divide between public and private. CASE: YL v Birmingham City Council [2007] C, 84-year-old suffering from dementia, placed in care home by D - shortage of publicly funded homes - D placed C in private care home operated by D. Duties discharged under Assistance Act 1948 s.21. Breakdown in rel'tns between C's family and care home. Home terminated C's membership. C had rights that should have been considered before decision was made. HL ruled 3 to 2 against C - purpose of s.6(3) to focus on the function of the body, not nature of activities performed for the majority; care home was a private body; outside remit of ECHR.

Questions on YL v B'ham: How can the distinction between function and nature be addressed? Body publicly funded? Contracting out of care to the private body insufficient to turn the private body into a public function. Body operating under statutory powers? Possibly relevant, yet plenty of private bodies possessed statutory powers (e.g. Mental Health Act 1983, applicable to private hospitals). Is the body regulated and do the regulations suggest a public function? No simple test to apply - no clarity and predictability. Yet individual rights should be protected.Reaction: British Institute of Human Rights: Undermined HR protection. Old and disabled people stand to lose from this decision. Joint Committee on Human Rights: Reports criticising this decision. Government: Health and Social Care Act 2008 - person who provides accommodation together with nursing or personal care in a care home is to be taken under HRA s.6 to be exercising public functions.

CASE: Re P [2008] Adoption Order 1987 prohibiting unmarried couples from adopting in N. Ireland- violated Arts 8 + 14. H of L held Adoption Order incompatible with ECHR. Application of Strasbourg Decisions: Several decisions relating to same sex couples and adoption. Suggestion that for situations concerning tax and social security benefits, domestic courts had a margin of appreciation to apply. Court could freely decide whether to follow Strasbourg decisions or not. How and when should the margin of appreciation be applied? Courts must be aware of social and domestic considerations that may apply to rights. CASE: A v Ireland (2010) Applicants travelled to England to undertake abortion - Irish Constitution says that state has a duty to protect its citizens from unjust attack by force of law. Irish Constitution generally interpreted to provide protection against abortion - criminal offence, exceptions where mother is at risk (Offences Against the Person Act 1861 ss. 58 + 59).

ECtHR held the restriction to be justified by the Irish state. Discussion of the moral / political views of the state. Margin of Appreciation Test (Strasbourg):CASE: Begum (2005) A school's decision that C not attend school unless she wore the correct uniform violated Article 9 and Article 2 Protocol 1 (right to education). HELD:  CASE: Hirst v UK (2005) Total ban on prisoners not voting in elections violated Article 3 Protocol 1 (free elections). Conclusion: Uncertainty over Strasbourg decisions - courts sometimes feel bound to follow - allows some creativity / additional judicial discretion. On the other hand, could create confusion over precedents and binding decisions made by Higher Courts. What about proportionality?

Human Rights and Democratic Principle (Alconbury Case)

Interpretation of Strasbourg (I)

Interpretation of Strasbourg (II)

Public and Private Bodies

Other Jurisprudence