Human-rights based judicial review Flashcards
What is the hierarchy of laws in the UK?
According to Hans Kelsen:
- Primary Legislation (not reviewable)
- Subordinate (secondary delegated) legislation.
- Particular orders, decisions e.g. council tax
What is the Jackson exception?
If primary legislation conflicts with constitutional statutes in extreme situations, the SC may strike them down.
What are the two ways of limiting the government?
- Limiting based on preventing abuse of power : political accountability, TJR
- Limiting based on human rights
What are the limits of judical review?
Judicial review is concerned not with the decision, but with the decision-making process - L. Brightman
R v SoS for the Home Department ex parte Fire Brigades Union and Others [1995]: Parliament should be the one to ensure that the executive performs in a way which Parliament finds appropriate, not the courts.
What are the phases in examining infringement rights?
- What right (if any) was infringed? Is this right protected by the HRA?
- What is the conflicting right/public interest?
- Balancing tests?
- Remedy?
What is the proportionality test according to Bank Mellat v Her Majesty’s Treasure (No. 2) [2013]
- Whether the objective is sufficiently important to justify the limitation of a fundamental right
- Whether the means are rationally connected to the ends/objective
- Whether a less intrusive measure could have been used
- Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individuals and the interests of the community.
What is the 0 condition that is sometimes used in the proportionality test?
Whether the measures have a legitimate interest in the first place.
What is the alternative reformulation of question 3 in the Bank Mellat proportionality test?
Whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective - De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999]
What did the case of Samaroo v SoS for the Home Department [2001] say about requirement 4 of the proportionality test?
“The more serious the interference with a fundamental right and the graver its effects, the greater the justification that will be required for the interference.
Will subordinate legislation that stems for incompatible primary legislation be invalid?
No, if the primary legislation prevents removal of the incompatibility - RR v SoS for Work and Pensions [2019]
What are the two possibilities when Parent Acts are incompatible with HR?
- If PA not compatible, subordinate legislation may be lawful and valid even though it is incompatible with HRA under s 3(2)(c) and 6(2).
- If PA is compatible, subordinate legislation should be read as compatible. If it cannot and it is incompatible with HRA, it is invalid.
Who can make an argument on a human rights claim? What is the standing?
HRA S 7(b): only a victim of the unlawful act may bring a claim.
Standing = victim
What is the standing for traditional judicial review?
Anyone with sufficient interest can bring a claim.
Who is a victim according to the HRA?
HRA S 7(7): those who satisfy article 34 of the Convention if proceedings were brought in the ECtHR.
Victim = someone who’s right was breached.
“Indirect victims” = family members who are affected by the violation.
Friends are excluded unless they can establish that their members are actual or potential victims
“Potential victims” : legislation or an administrative act that would be enforced would lead to a breach of convention rights.
What are the ways round the “victim” requirement?
- Traditional JR claim based on common law.
- If breach is by an Act of Parliament, claimant may rely on s 3 and say “victim” requirement is irrelevant.
Northern Ireland Abortion Case (2018): Challenge the compatibility of legislation under s 3 and 4 of the HRA irrespective of whether there has been any unlawful act by a public authority as in Wilson v First County Trust (No 2) and Ghaidan.v Godin-Mendoza or through TRJ provided sufficient interest.
