Legal Case Evaluation Essay Based On Human Rights Act 1998.

Required Task

You are required to produce a case evaluation report based on the following scenario 

This requires a student to draw on knowledge and understanding from Learning Outcomes 1 and 3 to 6 inclusive.

Assignment

You are working for a firm of solicitors. You have interviewed a potential new client and your boss has asked you to prepare a report for her explaining the client’s issues and whether an action for judicial review will be successful. Your report must be based on the interview notes you made (see below) and independent research on the legal issues raised by the potential client. At the end of the report you should make a recommendation as to whether you think the client should be taken on.
 

Human Rights Act 1998 and its Scope

With the advent of doctrine of separation of powers and with the introduction of balance of power, the State has been divided into three separate bodies- the legislature, executive and the judiciary. The Courts, while exercising their powers of judicial review, is not concerned by the decision made by the executive. However, the process of judicial review is associated with the process of making decision rather than an appeal. In this regard, it is noteworthy to mention here that in order to control the administrative bodies by ensuring that the decision taken by them are fair and reasonable, the judiciary has proved to be beneficial.

Scenario 1:

In order to evaluate the situation of the first scenario, the scope of human rights law needs to be explained. In this regard, it is noteworthy to mention here that the articles of European Convention of Human Rights have been designed in such a way in order to restrict the power exercised by the states. According to the Section 6(1) of the Human Rights Act 1998, if a public authority acts in a manner which is consistent with a conventional right, then it is considered to be unlawful. However, Section 10 Schedule 2 of the Human Rights Act 1988 confers right on the Government to provide remedies for such breach of Convention. In this regard, it has been observed that the significance of the term public authority was accepted by the House of and has not depended on judicial review in YL v. Birmingham City Council [2007] 3 WLR 112.  

According to the provisions of Section 7 of the Human Rights Act 1998, it is not always decisive to engage proceedings of judicial review in order to affirm a right of convention against an action by the public authority which is unlawful. In this regard, it can be stated that freedom of expression is a basic fundamental right before the European Convention of Human Rights where an individual cannot be punished except in cases for a breach of law. The provisions regarding freedom of expression is covered in Article 10(2) of the ECHR.

The European Court of Human Rights (ECHR) in Magyar Helsinki Bizottság v Hungary Application no. 18030/11 has held that refusal to obtain information has been regarded as an unjustified breach of human rights under Article 10 of the ECHR. In Magyar Helsinki Bizottság v Hungary Application no. 18030/11 it was held that every person possesses the basic right of information and therefore refusal to obtain information breaches the principles of Article 10 of the European Convention of Human Rights.

Evaluation of the Situation - First Scenario

Therefore the provisions of Section 6 (1) and Section 10 of the Human Rights Act 1998 can be applied to the present case study. In the present case study it can be observed that the library cannot afford the maternity costs of Mina and therefore she was informed that she was losing her job. In this regard, it is noteworthy to mention here that Mina was already informed about the matter and therefore the basic fundamental right regarding the right to information was not violated. However, in this context, the right of freedom of expression has been breached. Like every other individual, Mina possesses the basic right of freedom of expression and therefore she has the right to express her thoughts. Therefore, in the given case it can be stated that provisions of Section 10 (1) of the Human Rights Act 1998 rights applies to the situation. The provisions of Section 10 (1) of the HRA 1998 confer right on the government authorities to provide remedies regarding breach of the principles of Section 10(1) of the Human Rights Act 1998. Therefore, the provisions of Section 10 of the Human Rights Act 1998 can be rightfully applied in the present case study so that the government authorities can provide remedies to Mina regarding breach of her human rights. In this regard, the case of The Sunday Times v. United Kingdom (1979) 2 EHRR 245, Eur Ct HR can be explained because in this case, it was recognized by the ECHR that individuals have a right to secure information even if such information is a part of the pending litigations. Therefore, from the given case study, it can be stated that as Mina was already informed that she was losing her job and due to this reason she cannot take judicial review proceedings against the library officials. 

Scenario 2:

The Mayor has been considered as a public body. The decisions taken by such public body can be challenged under the proceedings of judicial review. In this regard, it is noteworthy to mention the grounds that are responsible to carry on the proceedings of judicial review. These proceedings can be illegality, discretion, irrationality and procedural impropriety. The public body who is the sole decision maker shall not act illegally and must not abuse its powers. In this regard, it can be stated that unlawful delegation of power falls under the category of illegality. It is required that the public authority must act according to the powers granted by the legislation. It is unlawful if the public body acts outside its powers if the powers have been delegated to it by the higher authority. Therefore, it can be stated that it will be unlawful if the Mayor is allowed to abuse its power outside its authority.

Evaluation of the Situation - Second Scenario

The abuse of discretionary power has been considered to be unlawful. Since time immemorial, the exercise of statutory powers is vested upon the Parliament. In Porter v Magill it was held that if a power is not exercised by the public authority for the purpose of the public then in that case it is regarded as unlawful. It was also held that the power conferred on a public body by the superior authority is for the purpose of public benefit and not for electoral gains of a political party. However, if the verdict given by the public authority is unreasonable then the courts are at the authority to interfere.

The provisions of Section 6 of the Human Rights Act 1998 considers that it would be unlawful for a public body to act in a way which is inconsistent to the principles of a Convention right. When the Human Rights Act 1998 came into force, the individuals were affected by the violation of the human rights which were passed by the public bodies. However, there was a scope for challenge before the court of law with the help of proceedings of judicial review. In this regard, the European Convention of Human Rights had no such role to play. The provisions of Section 6 of the Human Rights Act 1998 confers right upon individuals to challenge the decisions of the administrative bodies and the decision taken by the subordinate legislation, if their rights has been violated or infringed in any way. 

This can be explained with the help of R v Panel on the Takeovers and Mergers, ex parte Datafin plc [1987] QB 815 (CA). In this case it was observed that a panel has been established in London in order to regulate the business operations of the companies including its mergers and acquisitions. It was observed that the decision taken by the panel appeared to be unreasonable and outside its powers. Therefore, Datafin challenged the decision of the panel before the administrative tribunal and sought judicial review. In this case, the panel has been regarded as a public body and therefore the nature of the decisions taken by it were subjected to judicial review.

The government authorities must use its discretionary decision in application with the law of the land. This has been explained in Regina v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association: CA 1972. In this case, the decision of the Council was challenged by the cab drivers. The decision of the Council was regarding the increase of number of hackney cabs that has been operating in the city for a long time. However, it was held by the Chairman in at a public meeting prior to the decision of the Council that the number of the hackney cabs would not be increased until the legislation provides permission regarding the matter. It was held that, the taxi cab owners considered the resolution of the Council to be unfair and therefore they have the right to approach the Court of Justice for fair trial.

Application of Article 9 and 11 of Human Rights Act 1998

In the given case study, it can be observed that the Mayor of the local council reduced the service of bus in the village of Little Taddlecombe once a day. It can be observed that such decision not only affected Mina but also her friends living in that village. Therefore, in the given case study, the Mayor can be regarded as the public body. The public body has the power to take decision for the benefit of the individuals and not for his personal gains. The mayor did not like the village as he could not enter the biggest marrow competition held at the village. Therefore, he took such decision for his personal gains and for his political party which is unlawful. In this regard, it is noteworthy to mention that Mina can seek judicial review against the unreasonable and unlawful decision made by the Mayor.

Scenario 3:

The right of an individual to freedom of thought, belief and religion is contained in Article 9 of the Human Rights Act 1998. In this regard, it can be stated that the principles of Article 9 can be applied to the given scenario. However, the principles of Article 11 can also be applied as it deals with the freedom of assembly and association. Therefore, in the present case study it can be observed that Mina was involved with a group of Muslim people and together they used to hold meeting regarding the integration of other faiths. It was observed that the meeting was banned by the Local Council without providing prior notice to the group. In this regard, it can be stated that the local council acted beyond its power and the nature of the decision was unreasonable and unlawful. In Eweida and Others v United Kingdom it was held that the principles of Article 9 was violated when the employer of the applicant refused her to wear a crucifix. R v Chief Constable of Gloucestershire and others restrictions were placed on a public meeting which was peaceful in nature and thereby violated the provisions of Article 11 of the Act. Therefore, in the given scenario, the principles of both Article 9 and 11 can be applied. It can be further stated that Mina can carry on the proceedings of judicial review against the decision of the local council. 

It can be recommended that if the decision passed by any public authority seems to be unlawful, then in that case the decision of such public body can be challenged before the Administrative Tribunals. The subject matter of public law is controlled by the Government. Therefore, the government is at the sole authority to make decision for the benefit of the general public. If the decisions made are inconsistent to the interests of the public, then such decision can be quashed before the Administrative Court of Justice. Therefore in the given case study, it can be stated that Mina has the right to seek judicial review proceedings against the mayor for reducing the bus service in the village. In this regard, Mina can also carry on the proceedings of judicial review against the local council from banning meetings and barring the group from the town hall without giving any notice.

Conclusion:

The discretionary power given by the Parliamentary government to the executive is sometimes overseen by the Judiciary. In this regard, it is noteworthy to mention here that the method of judicial review has been introduced in order to prevent administrative errors. In United Kingdom, the Parliament is considered as the supreme body and its decision are regarded as constitutional. However, in recent times with the intervention of the judiciary, there has been a scope for judicial review in order to provide limitation to the discretionary power of the higher authorities. 

References:

Craig, Paul. "EU accession to the ECHR: competence, procedure and substance." Fordham Int'l LJ 36 (2013): 1114.

Eweida v United Kingdom [2013] ECHR 37.

Fabbrini, Federico. "The euro-crisis and the courts: judicial review and the political process in comparative perspective." Berkeley J. Int'l L. 32 (2014): 64.

Gardbaum, Stephen. "Separation of powers and the growth of judicial review in established democracies (or why has the model of legislative supremacy mostly been withdrawn from sale?)." The American Journal of Comparative Law 62.3 (2014): 613-640.

Gerards, Janneke, and Joseph Fleuren. "Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case-law." A comparative analysis (2014).

Jordão, Eduardo, and Susan Rose-Ackerman. "Judicial review of executive policymaking in advanced democracies: beyond rights review." Admin. L. Rev. 66 (2014): 1.

Kavanagh, Aileen. "What’s so weak about “weak-form review”? The case of the UK Human Rights Act 1998." International Journal of Constitutional Law 13.4 (2015): 1008-1039.

Magyar Helsinki Bizottság v Hungary Application no. 18030/11.

Porter v Magill [2001] UKHL 67.

R v Panel on the Takeovers and Mergers, ex parte Datafin plc [1987] QB 815 (CA).

Regina (Laporte) v Chief Constable of Gloucestershire Constabulary. [2007] 2 A.C. 105.

Regina V. Liverpool Corporation, Ex Parte Liverpool Taxi Fleet Operators' Association And Another [1972] 2 Q.B. 299 (Ca).

Sadurski, Wojciech. "Judicial Review and Protection of Constitutional Rights." Rights Before Courts. Springer, Dordrecht, 2014. 145-166.

Stone Sweet, Alec, and Thomas L. Brunell. "Trustee courts and the judicialization of international regimes: The politics of majoritarian activism in the European convention on human rights, the European union, and the world trade organization." Journal of Law and Courts 1.1 (2013): 61-88.

The Sunday Times v. United Kingdom (1979) 2 EHRR 245, Eur Ct HR.

YL v. Birmingham City Council [2007] 3 WLR 112.