Human Rights & Proportionality Flashcards
What does sections 2-4 of the Human Rights Act 1998 say?
S2- In making a decision in relation to a convention right a court must consider decisions of the ECtHR
S3- Legislation must be read and given effect in a way which is compatible with convention rights
S4- Courts can make a declaration of incompatibility if legislation cannot be read in a way that fits with convention rights
What does section 6 of the Human Rights Act provide?
(1)- Unlawful for a public body to act in a way that is incompatible with a convention right
(3)- Public authority includes
A. a court or tribunal and
B. any person certain of whose functions are functions of public nature
(5)- A person is not a public authority if the nature of the act is private
What do sections 7 & 8 of the HRA provide?
S7- A person can bring proceedings against a public authority only if they are or would be a victim
S8- The Court may grant relief or remedy that is just and appropriate if the award is necessary for just satisfaction
What is proportionality a relationship between?
- The value of pursuing a legitimate state purpose by some action
- Some resulting detriment to an interest that is protected by a convention right
What are the four main questions that should be asked for proportionality and which case established this?
R (Quilla) v Secretary of State for the Home Department
1. Is the objective sufficiently important to justify limiting a fundamental right?
2. Are the measures designed to meet it rationally connected to it?
3. Are they no more necessary to achieve it?
4. Do they strike a fair balance between the rights of the individual and interests of the community?
What is the public/private debate?
Whether when a public body contracts out a function to a private body, this private body should be held liable under s6
-Craig and Donnelly would say yes, critize judgements of YL and Donoghue
What do the early cases on the public private debate say?
Poplar Housing v Donoghue- Lord Woolf gave a list of factors to determine when a body should be regarded as public including statutory authority
R (Heather) v Leonard Cheshire Foundation- Followed Donoghue, a private body would only be a public authority if the act has a ‘public flavour’
What was the decision in YL v Birmingham City Council and why is this contentious?
MAJORITY- Ruled care home was not a public authority as the relevant act provided the duty to arrange for the provision of care but not to provide it
DISSENT- The statute was clearly a public function imposed in public interest and was part of the post-war social welfare reforms, Parliament intended for care to be provided it did not matter by who
-Craig argues the wording of the relevant statute does not support the reasoning of the majority
What do the early cases on proportionality suggest about its existent in English law?
Daly- Intensity of review is greater under proportionality as it may require assessing the balance which the decision maker has struck, not merely whether it was in their range
Prolife Alliance v BBC- The courts will defer to the balance struck by the government and Parliament on policy matters as a matter of legal principle – judicial deference is a legal principle not a mere courtesy
How has the view of proportionality changed over time?
Belfast CC v Miss Behavin- A decision maker does not have to show it carried out a proprotionality inquiry to prove its measures proportionate; the question is still whether there has actually been a violation and not whether the decision maker considered if rights would be violated
Quilla- Set out the four questions for proportionality (SEE ABOVE) the fourth limb of which was suggested in Huang and confirmed in Bank Mellat
How has the case of Pham changed understanding of proportionality?
Pham v SoS for the Home Department- Carnwarth, Mance and Sumption thought there was no difference between proportionality and rationality review, the two involved the same considerations therefore there would be no difference in outcome
How has the case of Keyu changed the understanding of proportionality?
LORD NEUBERGER & HUGHES- 4 stage proportionality test should be applied in place of rationality in domestic judicial review
LORD KERR- Supported proportionality in relation to interference with fundamental rights however not in cases where there is no legislative objective and no interfence with a fundamental right, in this case he suggested a more loosely structured proportionality challenege
BARONESS HALE (DISSENT)- Applied rationality review, said the decision was irrational since refusal was based on doubts as to whether the truth could be properly established
How has the case of Youssef shaped understanding of proportionality?
-Citing Pham and Keyu, it was held there is a measure of support for use of proportionality
-However, application of a proportionality test is unlikely to lead to a different result from traditional grounds
What is Taggart’s view of the proportionality vs irrationality debate?
-Should be a rainbow of review
-Proportionality and Wednesbury can exist side by side
-Proportionality used for cases involving rights (common law, statutory and constitutional rights)
-Wednesbury review used for cases of public wrongs
What is Hickman’s view of the proportionality vs irrationality debate?
-Argues for bifurcation of the law
-However thinks only rights under the common law, human rights act and ECHR should be reviewed by proportionality
