Impact of the HRA (read with HRA)

Question 0

Wilson v First Country Trust (No.2)

Answer 0

The deliberate reference to the ECHR rather than C Rights seems to give weight to the assumption that C Rights were merely a device to give domestic effect to the identical Convention articles
A DOI was given – not easily reconcilable with expansive interpretation of R v A

Question 1

R v A (No. 2)

Answer 1

The divergent views of Lord Steyn and Lord Hope -
LS - the rule of inadmissibility of evidence in rape trial was contrary to article 6, not resorting to s3, but then did resort to comply
LH - deemed it compatible but felt that LS’s approach overstepped constitutional boundaries

Question 2

Poplar Housing and Regeneration Community Association v Donoghue

Answer 2

Lord Woolf explained that a ‘radical’ interpretation may be needed - as in R v A, which was certainly quite radical, but the consequences on the individual were greater there

Question 3

R(International Transport) v Secretary of State for the Home Dept

Answer 3

Automatic fines seemed contrary to Art 6 - here s3 did not assist - as in Wilson the CA’s reasoning led to a DOI – NB distinction between ‘schematic’ and ‘isolated’

Question 4

Re S

Answer 4

Lord Nicholls delivering judgment took a less expansive view of s3 and reinjected a dose of literalism into s3 interpretative process away from R v A although the latter was indeed an ‘isolated’ provision

Question 5

Bellinger v Bellinger

Answer 5

Reaffirmed Re S – Nicholls took the view that the issue was systemic, the implications of whether she was a woman for the purposes of the law reached far beyond the validity of her marriage

Question 6

Ghaidan v Mendoza

following Salgueiro v Portugal

Answer 6

Still uncertain as to s3 - here L Nicholls attempted to clarify by saying that s3 should not be invoked where the interpretation would be ‘inconsistent with a fundamental feature of the legislation’ ie policy objectives – this ‘fundamentality’ was therefore another barrier to s3

Question 7

R v Lambert, Ali and Jordan

Answer 7

A degree of deference should be paid to the view of P as what is the general public interest when upholding rights of the individual under the Convention per Lord Woolf

Question 8

R v DPP, ex p Kebilene

Answer 8

There is therefore a judicial hierarchy of C rights - some ‘basic’ (no deference) and some ‘allocation of resources (deference to legislative opinion) which adds further elaboration to how the HRA can be applied in courts

Question 9

R v Horncastle

Answer 9

Courts realise that C Rights and Convention articles are not necessarily the same

Question 10

Manchester CC v Pinnock

Answer 10

Following a long line of ECon and UK case law, the SC did accept Strasbourg’s ruling – they also stated that where there is case law which does not contravene a fundamental substantive or procedural aspect of law, then there would be no reason not to follow it

Question 11

D v East Berkshire Community NHS Trust
(after pre-HRA decision in X v Bedfordshire CC)
Z v UK

Answer 11

Issue of precedent - The CA held that it was not bound by the HL in X so did not have to breach C Rights - HL held this as correct – the effect of this was, however, the accordance to the ECtHR as a final court per the HRA

Question 12

Kay

Answer 12

Resiled substantially from the reasoning in D - held that lower courts were bound by domestic precedent, for legal certainty - the proper approach being to hear the Convention point and grant leave to appeal if necessary

Question 13

Aston Cantlow v Wallbank

Answer 13

The church council was a public authority partly because it was created by statute, however, NB this was not decisive – the power at issue was essentially one of taxation which is a government function

Question 14

Poplar Housing and Regeneration Community v Donoghue (public authority definition)

Answer 14

Lord Woolf CJ accepted that s6(3)(b) should be given a ‘generous interpretation’ having regard of administrative law - however, a contractual relationship with a public authority was insufficient, like here, there needed to be a ‘close assimilation’ between the two

Question 15

R (Heather) v Leonard Cheshire Foundation

Answer 15

Applied the Poplar test but held here that the Foundation was not closely assimilated to the public authority and therefore was not itself public - this was driven by policy concerns

Question 16

Aston Cantlow (new test?)
Holy Monasteries v Greece (affirming above)

Answer 16

Dichotomy between ‘core’ and ‘hybrid’ public authorities - a possession of ‘special powers’ (Nicholls) - rather than conclude that the function had a ‘public’ character, the court concluded that it was simply enforcing a private law obligation

Question 17

R (Beer) v Hampshire Farmers Market

Answer 17

Aston Cantlow at the HL was considered at the CA here - the market was de jure a private company - despite council intervention was it subject to CL JR? was it in s6? Dyson LJ said sometimes these are the same answers – the market was a ‘hybrid’ public authority and amenable to JR

Question 18

YL v Birmingham and Others

Answer 18

L Scott for the majority (Bingham, Hale dissenting) - Southern Cross care home was not a public authority but as Loveland has criticised, the analogy used by him in his judgment brushes over the fact that provision of a lifeguard is not analogous to a care home, the latter of which intimately related to Art 8 rights

Question 19

Weaver v London and Quadrant Housing

Answer 19

Here the CA upheld a much more expansive interpretation of ‘public body’ than seen in YL - the money they received from the government as well as housing policy meant that Quadrant was a public body despite having no statutory basis nor being a privatisation of the council - analogous to the ‘function’ idea in Aston

Question 20

Douglas and Zeta-Jones

followed in Venables

Answer 20

Shows that the passage of the HRA has provided a sharp stimulus to the courts to stretch the reach of existing CL principles to cover interferences with C rights by bodies other than ‘public authorities’ – NB horizontality following Wilson and Mendoza

Question 21

Wainright v Home Office
Campbell v MGN
affirmed in HRH Prince of Wales

Answer 21

HL stated that the HRA could not ‘found’ new CL rights
NB here where it is seemingly accepted that a new tort of breach of confidence was found and that CL rules were subject to s3

Question 22

Daly (Lord Steyn)

Alconbury (Lord Slynn)

Answer 22

Despite much reluctance the courts did develop a proportionality review of certain government actions interfering with C. Rights
Seemed to conclude that a gvt decision concerning a ‘policy matter’ would leave it possible to be assessed per a Wednesbury reasonableness

Question 23

Denbigh High School (Art 9)

Miss Behavin’ (Art 10)

Answer 23

CA both applied procedural proportionality review of the decisions, which were criticised as being impractical – both reversed by HL who said that it should be solely concerned with the outcome of the decision making process

Question 24

Doherty v Birmingham CC

Manchester CC v Pinnock

Answer 24

How intense should this review be? Wednesbury unreasonableness seems to provided little use but the more that is built the more powerful the courts become – Doherty was v. confused cf. Lord Hope ‘arbitrary, disproportionate, unreasonable’ - Pinnock confirmed that Art 8 could be reviewed per proportionality

Question 25

R (On the application of Q) v Sec of State

Anisminic, Gilmour, Lord Woolf on cl. 11

Answer 25

David Blunkett clearly breaching constitutional principle when Collins J declared a refusal to enter the country unlawful
Getting around the ouster clauses, but this was pre-human rights era - Lord Woolf’s criticism at Inner Temple provoked the withdrawal of the clause but could have been a ‘revolution’ of the bench