8. The HRA Flashcards
(15 cards)
R v A (2002)
Key principle:
In applying a statutory provision in the light of the ECHR it may sometimes be necessary to adopt an interpretation which may appear to be linguistically strained.
Facts:
The defendant had been charged with rape. He had claimed that sexual intercourse with the complainant had been by consent and that they had had a prior sexual relationship for about three weeks. At a pre-trial hearing the judge relying on s 41 of the Youth Justice and Criminal Evidence Act 1999 had ruled that the complainant could not be cross-examined and that evidence could not be led about her alleged sexual relationship with the defendant. The defendant appealed against the decision. The Court of Appeal allowed the appeal and conveyed the following question to the HL: ‘May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under s 41 Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant’s right to a fair trial?’
Held (HL):
Section 41 of the 1999 Act should be read in accordance with s 3 of the HRA 1998 and given effect in a way that was compatible with the fair trial guaranteed under Art 6 of the ECHR. An implied provision should be read into the section that evidence or questioning which is required to secure a fair trial under art 6 of the ECHR should not be treated as inadmissible.
Commentary:
This case illustrates the new interpretative technique introduced by the HRA and is an example of a bold use of the court’s powers. The HL (in a majority decision, Lord Hope dissenting) considered that the defendant’s prior relations with the complainant, although they might be relevant, could not be admitted under normal canons of statutory interpretation under s 41 of the Youth Justice and Criminal Evidence Act. The House avoided making a declaration of incompatibility by interpreting the section in a manner compatible with the demands of Art 6 of the Convention. Lord Steyn made it clear that the courts should not imply the word ‘reasonable’ into s 3. In other words they should find a possible, not necessarily a reasonable, interpretation according to the wording. It is arguable however that the kind of creative juridical reasoning adopted here flouts the will of Parliament. Lord Hope deferred to the original intention of Parliament and stated that compatibility was not ‘possible’ if the legislation contained provisions that expressly or impliedly contradicted the meaning which the legislation would have to be given to make it compatible. In R v A Lord Steyn’s more liberal interpretation of s 3(1) of the HRA was in part based on the desirability of avoiding making a declaration of incompatibility. He said that such a declaration would only be made if ‘a clear limitation on Convention rights is stated in terms…’ The position Lord Steyn forward suggests that he would only make a declaration of incompatibility if the statute stated expressly that it was limiting Convention rights. Such an occurrence would be rare.
The courts are developing their approach to demarcate between the s 3 interpretive technique and incompatibility under s 4. Subsequent cases (eg R v Lambert) moved closer to Lord Hope’s position in R v A. (…)
Re S (Care Order: Implementation of Care Plan) (2002)
Abstract:
On an appeal from care orders, held (HL), the judicial imposition of a mechanism for further review was impermissible amendment of the statutory scheme which (if it were necessary for compatibility with the HRA) Parliament alone could effect.
Summary:
The idea that section 3 interpretations should respect the ‘fundamental features’ of a statute was first mentioned in the case of Re S. The House of Lords in that case overturned a section 3 interpretation of the Children Act 1989 given by the Court of Appeal. The Court of Appeal had interpreted the Act as allowing extensive judicial supervision of care orders, which ensured that regular access to court was possible to review the case of any child in care. However, the House of Lords found that this interpretation was at odds with a series of provisions in the Act that restricted judicial supervision of care orders and granted exclusive responsibility to the local authority to supervise most aspects of a care order. These restrictions on judicial intervention constituted a ‘fundamental feature’ of the Children Act, the House of Lords held.
Poplar Housing Assoc v Donoghue (2002)
Key principle:
The definition of a public body under the HRA is not necessarily determined by the approach of the courts in identifying bodies and activities subject to judicial review.
Facts:
The appellant had been originally granted a tenancy by the local authority which later transferred it to Poplar Housing and Regeneration Community Association Ltd. Poplar was a non-profit organisation created by the local authority to manage the housing stock. An order was made by the local authority for the possession of the appellant’s property which was held under an assured shorthold tenancy according to s 21 of the Housing Act 1988. The authority had determined that the appellant was intentionally homeless. The appellant appealed against the order for possession on the grounds that Poplar, being a public authority in terms of s 6 of the HRA, was making a disproportionate interference under Art 8, the right to respect for private life. A subsidiary issue was the procedure to be followed when the Crown was notified that the court might be considering a declaration of incompatibility under s 4 of the HRA.
Held (CA):
Poplar was a public body but there was no breach of Art 8 in its application of s 21 of the Housing Act 1988. The transfer by the local authority to Poplar of their housing stock did not also transfer their public duties but only the means by which to enact them. Providing houses for rent was not, without more, a public duty. The court should defer to the will of Parliament which had given the courts limited intervention powers in the area of possession against people with low housing priority.
Ghaidan Godin-Mendoza (2004)
Summary:
In a housing case, held, the surviving member of a same-sex couple was entitled to succeed to his deceased partner’s statutory tenancy: although (1) the ordinary meaning of the Rent Act 1977 Sch 1 treated surviving homosexual partners less favourably than surviving heterosexual partners without any rational or fair ground incompatibly with HRA / ECHR Art 14 (with Art 8); nevertheless (2) it was possible to read it compatibly to eliminate its discriminatory effect without contradicting any cardinal principle of the 1977 Act.
Facts:
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held:
His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act. “Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.” and “there is no reason for believing . . factual differences between heterosexual and homosexual couples have any bearing on why succession rights have been conferred on heterosexual couples but not homosexual couples.” The social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife was equally applicable to the survivor of homosexual couples living together in a close and stable relationship: “treating the survivors of long-term homosexual partnerships less favourably than the survivors of long-term heterosexual partnerships for purposes of the Rent Act 1977 violates their right under article 14 in relation to article 8(1) of the Convention. “
Douglas and Zeta-Jones v. Hello (2001)
Abstract:
- Douglas (Hello 1): Refusing an interim injunction in claim form proceedings (to restrain publication of photos of the Douglas/Zeta-Jones wedding), although there was a cause of action in breach of confidence / privacy (strengthened by the Human Rights Act 1998 s.12 and Art 8) the balance of convenience favoured the defendant magazine.
- Douglas (Hello 2): Allowing a damages claim, publication of unauthorised celebrity wedding photos was a breach of confidence under tort law, developed so as to bring English Law into line with privacy rights under HRA / ECHR Art 8.
Summary:
Douglas and Zeta-Jones, both film stars, had signed a lucrative deal with a popular magazine – UK – for exclusive coverage of their wedding. Elaborate security precautions were put in place to prevent any unauthorised photos or sound recordings being made. Another magazine nonetheless managed to acquire some photos of the event and planned to feature them in its next edition. Douglas and Zeta-Jones then sought an injunction to prevent publication. This was granted at first instances.
The CA subsequently lifted the injunction, but did so in a judgment which initially appeared to have significant implications for both the emergence of a right to privacy at common law and the likely horizontal impact of the HRA. All three judges in the CA appeared to approve the approach to horizontality advocated by Pannick and Lester; namely that the courts should see the HRA as providing legislative spur for more rapid development of indigenous common law principles.
Aston Cantlow PCC v. Wallbank (2003)
Facts:
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention right.
Held:
The parish council’s appeal was allowed. Parochial church councils, established by the 1956 Measure, are hybrid public authorities, but are not ‘core’ authorities. When exercising their powers under the 1932 Act they are not acting as public bodies, and the 1998 Act does not bite.
Chancel repair liability was a liability of the land like any other. It was part of the land itself, and was not something imposed by the Parish Council.
Lord Nicholls described the purpose of the 1998 Human Rights Act: “The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.”
R (Beer) v Hampshire Farmers’ Markets Ltd (2004)
Summary:
Granting JR of the unfair decision of the Hampshire Farmers’ Market Ltd (HFML) to exclude the claimant from stallholding at farmers’ markets, the decision:
(1) was amenable to JR because (although a limited company and lacking governmental control) HFML was (a) operating a market on public land and (b) had been set up by and stepped into the shoes of the local authority; and
(2) was equally the decision of a HRA hybrid “public authority”.
YL v. Birmingham City Council (2007)
Key principle:
Private companies carrying out statutory duties of local authorities under contract are not public bodies under the HRA.
Facts:
The claimant was a resident of a care home run by a private company. She had been placed in the care home by the local authority pursuant to s 21 of the National Assistance Act 1948. Her stay was largely funded by the local authority, her relatives paying a top-up fee. Following allegations about the conduct of the claimant’s family during visits the private company decided she should be transferred to a different home. She claimed that the move would violate her rights under Art 8 of the ECHR. The CA found that the private care home was not performing the functions of a public authority when providing care and accommodation for the claimant and was consequently not obliged to honour her Convention rights.
Held (HL):
On appeal by the claimant, the HL held that in providing care and accommodation for residents placed with it by a local authority, a privately-owned care home was not performing functions of a public nature as defined in the HRA 1998 s 6(3)(b). There was a clear distinction between the local authority, which had a statutory obligation to ensure the care and attention of persons for whom it was not otherwise available, and a private company providing services on a commercial basis under contract to the local authority. The fact that the company had a profit-making motive pointed against treating it as a body with functions of a public nature. The services provided to residents at a private care home should not depend on the nature or quality of the person with whom the home had contracted to provide services. Care homes had to treat privately and publicly funded residents as equals.
Entick v Carrington (1763)
Key principle:
The executive cannot lawfully assume powers which are not known to the courts.
Facts:
Two King’s Messengers, acting under a warrant issued by the Secretary of State, broke into the claimant’s house and carried off his papers. The action was part of an investigation into certain seditious articles. The plaintiff sued the Messengers for trespass. They claimed to have acted lawfully under the Secretary of State’s warrant.
Held:
The warrant was illegal and without effect. The Secretary of State could invade the rights of a subject only if his action was authorized by law. No statute or common law right authorized the invasion of the claimant’s house. The argument of the Secretary of State that the power to issue such a warrant was essential to government had no validity.
Malone v Metropolitan Police Commissioner (No 2) (1979)
Key principle:
The state does not need express authority for its actions if they do not breach common law or statute.
Facts:
The plaintiff was charged with handling stolen goods. At his trial, the prosecution admitted that his telephone had been tapped under a warrant from the Home Secretary and his conversations recorded. He brought proceedings against the Home Secretary for a declaration that the phone tapping was unlawful.
Held:
The tapping of a telephone could lawfully be done because there was nothing to make it unlawful. No statute authorised phone tapping with or without a warrant. But that did not mean tapping was unlawful. A search of premises which was not authorised by law was illegal because it involved the tort of trespass. But no act of trespass was involved in telephone tapping.
Commentary:
The case may be contrasted with Entick v Carrington. In that case the state needed express authority which it did not have because the search warrant was expressed in general terms. Without express authority it was committing the tort of trespass. There is no tort of invasion of privacy and so the Post Office did not need express authority for the tapping of telephones at the request of the police.
Beatty v Gilbanks (1882)
Key principle:
A group of persons acting lawfully are not to be regarded as acting unlawfully when others make threats to cause a breach of the peace.
Facts:
Members of the Salvation Army marched in procession through Weston-super-Mare, with no intention of breaching the peace, but knowing that they might be opposed by other persons organised in a ‘Skeleton Army’ in a way which would lead to a breach of the peace committed by those others. Salvation Army leaders were arrested and convicted of unlawful assembly. They appealed.
Held (DC):
The appellants had not been guilty of unlawfully and tumultuously assembling to the disturbance of the peace, and therefore could not be convicted of unlawful assembly.
AG v Guardian Newspapers Ltd (1988)
Key principle:
An interim injunction may be made to restrain publication in the interests of national security.
Facts:
A former MI5 employee, Peter Wright, wrote Spycatcher, detailing unlawful activities carried out by the security services. Confidentiality clauses in his contract prevented publication in the UK but it was published in the US. The Observer and The Guardian published an outline of his allegations and were restrained by injunction from further publication. The newspapers’ appeal against the injunction was dismissed. The Independent then published large extracts, and two London evening papers published parts of what had appeared in the Independent. The Guardian and The Observer then sought to vary the injunction against them on the basis that circumstances had changed. The Vice-Chancellor held that The Independent and the two London evening papers were not in contempt because they were not restrained by any injunction. The Sunday Times then published extracts time to coincide with the United States publication of Spycatcher. The CA reversed the decision that The Independent was not in contempt and the AG obtained an injunction against The Sunday Times. The CA allowed the newspapers to publish a general summary of Wright’s material. All the parties appealed.
Held (HL):
The injunction should be continued until the hearing of the AG’s action against The Guardian and The Observer since to allow publication would deprive the AG of the opportunity of having the matter decided at trial. The court had a duty to prevent harm to the security service and uphold its secrecy and to ensure that court orders were not flouted.
Commentary:
This majority decision restored the original interlocutory injunctions without the exception permitting inter alia reporting of what had taken place in open court in the Australian proceedings. Government claims of the threat to national security impelled the decision to maintain the injunctions despite the massive publicity the book had received in the US and elsewhere. In a subsequent decision the HL confirmed that a third party although not named in an injunction restraining another newspaper from publishing confidential information was guilty of contempt if it nullified the purpose of the original proceedings by destroying the confidentiality of the information by publishing it.
AG v The Observer Ltd (Spycatcher) (1990)
Key principle:
The government is only permitted to restrain a breach of confidence if it can demonstrate that it is in the public interest to do so. It is entitled to profits from publications in breach of confidence.
Facts:
The AG’s action against The Guardian and The Observer came before Scott J who held that Wright had broken his duty not to disclose information he had obtained while employed by MI5 but that The Guardian and The Observer were not in breach of their duty of confidentiality in publishing the articles they had published. The Sunday Times had been in breach of duty in publishing the first extract from he book, but secrecy had been destroyed by publication abroad of Spycatcher so the AG was not entitled to further injunctions, though the Sunday Times was liable to account for profits to the AG. The CA dismissed appeals by the AG and The Sunday Times. Both appealed.
Held (HL):
A duty of confidence could arise in contract or in equity. A third party with information known to be confidential was bound by a duty of confidence unless the material became generally known or there was a public interest in publication which outweighed the duty of confidence. The Crown could not show publication would be damaging since the confidential material had been published abroad. The Crown was entitled to profits for publication in breach of the injunction but not for future serialisation by The Sunday Times.
Commentary:
The case marked the end of the long Spycatcher saga in the English courts, the trial on whether the injunctions should be permanent. In his speech Lord Goff saw no inconsistency between English law on this subject and Art 10 of the ECHR. He saw it as his obligation when he was free to do so “to interpret the law in accordance with the obligations of the Crown under this Treaty”. He continued: “The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include “the interests of national security” and “preventing the disclosure of information received in confidence”. It is established in the jurisprudence of the European Court of Human Rights that the word “necessary” in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion.”
In the event in The Observer and The Guardian v UK, the Sunday Times v UK, the ECHR considered that under the Convention the injunctions were necessary before publication of Spycatcher in the United States but not afterwards.
R v IRC, ex parte Rossminster Ltd (1980)
Facts:
The Taxes Management Act 1970, s 20C, seemed to bestow sweeping search and seizure powers on Inland Revenue employees. S 20C empowered the Inland Revenue to seek a search warrant from a circuit judge. If the judge was satisfied that there were reasonable grounds to assume that evidence of a tax fraud might be found on particular premises, she could issue a warrant authorising a named officer to ‘seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence …’. The Act did not explicitly require that the warrant specify the precise offence being investigated, nor identify the suspected perpetrators.
In July 1979, the Revenue carried out a “military style operation” searching Rossminster’s premises for evidence in connection with tax frauds.
Rossminster claimed that although the legal background to this seizure was distinguishable from the background to the Entick case, Lord Camden’s reasoning was relevant to interpretation of s 20C. He argued that the court should presume that Parliament intended s 20C to be construed consistently with the common law principles informing Entick - namely that power would only be used in a precisely targeted way, and would not be invoked by Revenue officials to enable them to embark upon a speculative trawl through all of a company’s or an individual’s private papers.
Held:
The Court of Appeal held that the conduct was illegal and ordered that the documents be returned.
Lord Denning: purposive approach to the interpretation of s 20C - ensuring that government behaviour did not interfere unduly with citizens’ common law entitlements. ‘There has been no search like it - and no seizure like it - in England, since that Saturday, April 20 1763, when the Secretary of State issued a general warrant by which he authorised the King’s messengers to arrest John Wilkes and seize all his books and papers.’ … ‘As a matter of construction of the statute and therefore of the warrant - in pursuance of our traditional role to protect the liberty of the individual - it is our duty to say that the warrant must particularise the specific offence which is charged as being fraud on the revenue’. Since the warrant in this case did not do so, it was invalid.
The Court of Appeal’s judgment was subsequently reversed in the House of Lords, which adopted a straightforwardly literalist approach to s 20C.
Lord Wilberforce: the ‘plain words’ of s 20C authorised the Inland Revenue to engage in behaviour which could not be justified at common law. Parliament’s intention had been to override common law principles.
‘While the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt of interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than advance the democratic process.’
The House of Lords evidently considered that the judges in the Court of Appeal had allowed their moral distaste for s 20C to push them into adopting illegitimate interpretive strategies, and thus to overstep the boundaries of their proper constitutional role.
Neither perspective can be regarded as legally ‘correct’ in any definitive sense. Rather the case further underlines the point that there is much unpredictability in the way that courts may approach their constitutional responsibility of giving meaning to the provisions of statutes.
R v Secretary of State for Home Affairs ex p Brind (1991)
Key principle:
In cases prior to the HRA proportionality was not recognised as a distinct ground of review.
Facts:
The Secretary of State made orders under the Broadcasting Act 1981 banning television and radio stations from broadcasting the words spoken by spokesmen of organisations proscribed under anti-terrorism legislation. Broadcasters sought judicial review of the orders as being outside the Secretary of State’s powers among other reasons because the ban was disproportionate to its ostensible object of preventing intimidation by the organisations concerned. The application was dismissed by the Divisional Court and by the Court of Appeal. The broadcasters appealed.
Held (HL):
The court would not apply the doctrine of proportionality because that would mean substituting its own judgment of what was needed to achieve a particular object for that of the Secretary of State who had been given that duty by Parliament. The appeal would be dismissed.
Commentary:
Their Lordships had differing reasons for rejecting proportionality as a distinct ground of review. Lord Brige agreed with Lord Roskill that there might be scope for such a ground in the future but it was not apportionate in the present case. Lord Ackner considered it would involve a review of the merits of a decision. Lord Lowry did not see a cause for regret that proportionality was not a part of the English common law since first, Parliament entrusted discretion to elected decision-makers; secondly, judges were not equipped to apply such a ground and thirdly, stability and relative certainty in administrative decisions would be jeopardised. Lord Templeman nothing that the European Convention on Human Rights required proportionality to be considered said that the decision was not disproportionate to the damage which the restriction was designed to prevent but nor did it breach Wednesbury principles. The HRA 1998 requires courts determining rights under the ECHR to take into account the jurisprudence of the Strasbourg court. This is stimulating further development of the doctrine of proportionality in the common law.
Proportionality is now a part of the law in the UK. In Ex p Daly the HL considered the overlap between proportionality and the traditional grounds of review. A court may now have to consider proportionality in the sense of the ‘relative weight accorded to interests and considerations’.
Thus in cases where the claim for judicial review is based on an alleged breach of a Convention right the courts should consider applying the test of proportionality. This means that any interference with a Convention right should correspond to a pressing social need and be proportionate to the aim the restriction was seeking to achieve.
