public authority, standing and absolute/qualified rights

Question 1

what is public authority?

Answer 1

Not the same as in judicial review, which is defined in common law.
- Not defined in the Act
- Parochial Church Council of Aston Cantlow v Wallbank
[2003] UKHL 37, Lord Nicholls, para. 6: ‘A body whose nature is governmental’?
- Lord Nicholls, para. 7: No single test for identifying a public authority, or body exercising public functions.
- Poplar Housing and Regeneration Community Association v Donoghue[2001] EWCA Civ 595, Lord Woolf CJ, para. 58

Question 2

victim status

Answer 2

s.7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—* (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

Question 3

absolute riht definition

Answer 3

rights that cannot be qualified
a right that cannot be limited or in-fringed under any circumstances, not even during a declared state of emergencyqu

Question 4

qualified right definitoon

Answer 4

those requiring a balance between the rights of the individual and the needs of another, or of the wider community, for example, when your right to free speech may have to be restricted to protect someone else’s right to privacy.

Question 5

smith vs UK (2000)

Answer 5

proportionality test developed
- Facts: C’s in Ex parte Smith sued UK before ECtHR, arguing Art.8 ECHR breach (right to respect for private and family life).
Held: The policy was indeed a violation of the Art. 8 rights - the English standard of unreasonableness was incompatible with this article.
Para 138: ‘The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 ECHR.’

Question 6

proportionality vs wednesbury unreasonableness

Answer 6

Proportionality is more intense than Wednesbury.
- Proportionality is malleable - see Mahmood
- Proportionality is variable and context-dependent - see James and Fedesa.
Proportionality offers more structured/transparent inquiry than Wednesbury unreasonableness.
UKSC didn’t take up such suggestion in Keyu - such a change in test would have profound constitutional consequences.

Question 7

daly v sshd 2001

Answer 7

Importance: Wednesbury unreasonableness
Facts: Prisoner (Mr Daly) challenging new govt policy – “blanket policy” – requiring prisoners not to be present when their (privileged) legal correspondence is examined by prison officers (during random search).
Held: The Home Secretary’s blanket policy requiring correspondence between a prisoner and his legal advisers to be examined in the prisoner’s absence was unlawful and constituted a breach of the Human Rights Act 1998 Sch.1 Part I Art.8.1.
Lord Steyn [27]: intensity of review greater under proportionality because requirecourts to assess balance the decision maler struck and not what is within rational decisions.

Question 8

lord steyn about proprotionality in daly 2001

Answer 8

Lord Steyn [27]: intensity of review greater under proportionality because requirecourts to assess balance the decision maler struck and not what is within rational decisions.