Case
law etc quotes
Democracy
– Rule of the Majority v Rule of Law:
Matadeen v Pointu:
“11. The
Lord Steyn said
in his lecture on
“A
core characteristic of a constitutional democracy is the
protection it offers to the rights of individuals against the
majority view as reflected by an elected government. In our new
constitutional order Parliament itself has placed this duty on
the courts. It permits judicial review of Acts of Parliament.
… The courts may not abdicate their responsibilities by
developing self-denying constitutional limitations on their
powers.”
Rt Hon Lord WOOLF's speech to the British Academy, Human Rights: Have the Public Benefited?, 15th October 2002:
“The real test of the HRA arises when individuals or minorities attract the antagonism of the majority of the public. When the tabloids are in full cry. Then, the courts must, without regard for their own interests, make the difficult decisions that ensure that those under attack have the benefit of the rule of law. At the heart of the HRA, is the need to respect the dignity of every individual by ensuring he or she is not subject to discrimination. This is what Jackson J said about equality in 1948:
. . . equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
Railway
Express Agency Inc v
“I regard it
as a salutary doctrine that cities, states and the Federal
Government must exercise their powers so as not to discriminate
between their inhabitants except upon some reasonable
differentiation fairly related to the object of regulation. This
equality is not merely abstract justice. The framers of the
Constitution knew, and we should not forget today, that there is
no more effective practical guaranty against arbitrary and
unreasonable government than to require that the principles of
law which officials would impose upon a minority must be imposed
generally. Conversely, nothing opens the door to arbitrary action
so effectively as to allow those officials to pick and choose
only a few to whom they will apply legislation and thus to escape
the political retribution that might be visited upon them if
larger numbers were affected. Courts can take no better measure
to assure that laws will be just than to require that laws be
equal in operation”.
Chassagnou and
Others v.
“pluralism,
tolerance and broadmindedness are hallmarks of a 'democratic
society'. Although individual interests must on occasion be
subordinated to those of a group, democracy does not simply mean
that the views of a majority must always prevail: a balance must
be achieved which ensures the fair and proper treatment of
minorities and avoids any abuse of a dominant position”.
R (Carson) v
SSWP [2005] UKHL 37, para 56:
The United States
Supreme Court in
“saddled
with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of
political powerlessness as to command extraordinary protection
from the majoritarian political process.”
Martin Luther
King Jr:
“An unjust
law is a code that a numerical or power majority group compels a
minority group to obey but does not make binding on itself. This
is difference made legal. By the same token, a just law is a code
that a majority compels a minority to follow and that it is
willing to follow itself. This is sameness made legal”.
“Sometimes a
law is just on its face and unjust in its application”.
“One
has not only a legal but a moral responsibility to obey just
laws. Conversely, one has a moral responsibility to disobey
unjust laws. I would agree with St. Augustine that "an
unjust law is no law at all" ”.
“an
individual who breaks a law that conscience tells him is unjust
and who willingly accepts the penalty of imprisonment in order to
arouse the conscience of the community over its injustice, is in
reality expressing the highest respect for the law.”
Rule of law:
R v Horseferry
Road Magistrates' Court, ex p Bennett [1994] 1 AC 42, 67F:
“There is, I
think, no principle more basic to any proper system of law than
the maintenance of the rule of law itself”.
Mercury
Energy Ltd v Electricity Corporation of New Zealand Ltd [1994]
1 WLR 521, 526A:
“judicial
review [is] a remedy invented by the judges to restrain the
excess or abuse of power. Judicial review was a judicial
invention to secure that decisions are made by the executive or
by a public body according to law ...”
R (on the
application of Alconbury Developments Ltd) v Secretary of State
for the Environment Transport and the Regions [2001] UKHL 23
[2001] 2 WLR 1389, para 73:
“The
principles of judicial review give effect to the rule of law.
They ensure that administrative decisions will be taken
rationally, in accordance with a fair procedure and within the
powers conferred by Parliament”.
R
v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1
AC 42 at 62:
“the
judiciary accept a responsibility for the maintenance of the rule
of law that embraces a willingness to oversee executive action
and to refuse to countenance behaviour that threatens either
basic human rights or the rule of law”.
R
v HM the Queen in Council, ex p Vijayatunga [1988] QB 322,
343E-F:
“Judicial
review is the exercise of the court's inherent power at common
law to determine whether action is lawful or not; in a word to
uphold the rule of law”.
R
v Ministry of Defence, ex p Smith [1996] QB 517 at 556D-E:
“[The
court] has the constitutional role and duty of ensuring that the
rights of citizens are not abused by the unlawful exercise of
executive power”.
Pretty v
“Strong
arguments based on the rule of law could be raised against any
claim by the executive to exempt individuals or classes of
individuals from the operation of the law”.
Entick v.
Carrington (1765) 19 Howell's State Trials 1030:
“The great
end, for which men entered into society, was to secure their
property. That right is preserved sacred and incommunicable in
all instances, where it has not been taken away or abridged by
some public law for the good of the whole”.
Abuse
of power, abuse of process:
R
v Inland Revenue Commissioners ex parte Unilever PLC (1996),
Lord Justice Simon Brown said:
“Unfairness
amounting to an abuse of power ...is unlawful ... because it is
illogical or immoral or both for a public authority to act with
conspicuous unfairness and in that sense abuse its power”.
R v Secretary
of State for the Home Department ex parte Pierson (1998),
Lord Steyn said:
“unless
there is the clearest provision to the contrary, Parliament must
be presumed not to legislate contrary to the rule of law. And the
rule of law enforces minimum standards of fairness, both
substantive and procedural.”
R v Secretary
of State for Home Department ex parte Brind (1991), Lord Ackner
said;
“discretion
... must be used only to advance the purposes for which it was
conferred. It has accordingly to be used to promote the policy
and objects of the Act.”
HTV Ltd v
Price Commission (1976), Lord Denning said:
“A public
body which is entrusted by Parliament with the exercise of powers
for the public good cannot fetter itself in the exercise of them.
It cannot be estopped from doing its public duty. But that is
subject to the qualification that it must not misuse its powers:
and it is a misuse of power for it to act unfairly or unjustly
towards a private citizen when there is no overriding public
interest to warrant it”.
R v Fulling [1987]
2 WLR 923 (CA):
Whether
behaviour, although clearly disreputable, amounted to
`oppression'. The Court of Appeal held that oppression was to be
given its ‘ordinary’ meaning: “The exercise of
power in a burdensome, harsh, or wrongful manner; unjust or cruel
treatment...”
AG's Reference
No.2/2001 Times Law Report 12th July 2001Lord Woolf CJ:
“if there
has been prejudice caused to a defendant which interferes with
his right to a fair trial in a way which cannot otherwise be
remedied, then of course a stay is the appropriate remedy. But in
the absence of prejudice of that sort, there is normally no
justification for granting a stay.”
R v DPP ex
parte Kebilene and others [19991 3 W.L.R. 972:
[not quote] the
House of Lords believed that in "blatant and obvious"
cases it may be open to a defendant to submit that the
prosecution is an abuse of process insomuch as it is so unfair
and wrong that the court should not allow a prosecutor to proceed
with it – e.g. if a statutory provision breaches the
Convention and so may be incompatible with the Convention.
Mandatory
presumption of guilt [CPS Abuse of process guide]:
Statutory
presumptions, which transfer the persuasive burden on the
defendant, may violate the presumption of innocence and thus may
breach the Convention. However, with the exception of a mandatory
presumption of guilt, the matter may not be capable of being
fully assessed until after all the evidence has been heard. Even
then, if the conclusion is reached that prima facie the provision
breaches the presumption of innocence, other factors may need to
be considered by the court:
§
whether the burden of proof on the prosecution itself is heavy;
§
whether the burden on the defendant is something readily in the
defendant's knowledge or to which the defendant readily has
access;
§
the nature of the threat faced by society which the provision is
designed to combat.
R. v. Martin
(Alan) [1998] 2 W.L.R. 1, at 25, Lord Clyde stated:
“No single
formulation [of abuse of process] will readily cover all cases,
but there must be something so gravely wrong as to make it
unconscionable that a trial should go forward, such as some
fundamental disregard for basic human rights or some gross
neglect of the elementary principles of fairness.”
R. v. Beckford
(1996) 1 Cr. App. R. 94, at 100G:
“The
jurisdiction to stay can be exercised in many different
circumstances. Nevertheless two main strands can be detected in
the authorities:
a) Cases where
the court concludes that the defendant cannot receive a fair
trial;
b) Cases where
the court concludes that it would be unfair for the defendant to
be tried.”
Discrimination:
Matadeen v. Pointu
[1999] AC 98, para 8:
“Their
Lordships do not doubt that such a principle [of equality] is one
of the building blocks of democracy and necessarily permeates any
democratic constitution. Indeed, their Lordships would go further
and say that treating like cases alike and unlike cases
differently is a general axiom of rational behaviour. It is, for
example, frequently invoked by the courts in proceedings for
judicial review as a ground for holding some administrative act
to have been irrational”.
Ghaidan
v Godin-
“Discrimination
is an insidious practice. Discriminatory law undermines the rule
of law because it is the antithesis of fairness. It brings the
law into disrepute. It breeds resentment. It fosters an
inequality of outlook which is demeaning alike to those unfairly
benefited and those unfairly prejudiced. Of course all law, civil
and criminal, has to draw distinctions. One type of conduct, or
one factual situation, attracts one legal consequence, another
type of conduct or situation attracts a different legal
consequence. To be acceptable these distinctions should have a
rational and fair basis. Like cases should be treated alike,
unlike cases should not be treated alike”.
Ghaidan v Godin-
“Such a
guarantee of equal treatment is also essential to democracy.
Democracy is founded on the principle that each individual has
equal value. Treating some as automatically having less value
than others not only causes pain and distress to that person but
also violates his or her dignity as a human being. The essence of
the Convention, as has often been said, is respect for human
dignity and human freedom: see Pretty v
Thlimmenos v
Greece (2000) 31 EHRR 15, para 44:
“The Court
has so far considered that the right under Article 14 not to be
discriminated against in the enjoyment of the rights guaranteed
under the Convention is violated when States treat differently
persons in analogous situations without providing an objective
and reasonable justification. However, the Court considers that
this is not the only facet of the prohibition of discrimination
in Article 14. The right not to be discriminated against in
the enjoyment of the rights guaranteed under the Convention is
also violated when States without an objective and reasonable
justification fail to treat differently persons whose situations
are significantly different”.
R(Carson)
v SSWP [2005] UKHL 37, para 49:
“Discrimination
is regarded as particularly objectionable because it disregards
fundamental notions of human dignity and equality before the
law.”
Middlebrook
Mushrooms Ltd v Agricultural Wages Board (2004) EWCA 1447
Admin:
“74. It
follows that the Board had no lawful justification for the
exclusion of mushroom pickers from the MHW rate. “It is a
cardinal principle of public administration that all persons in a
similar position should be treated similarly.” (Lord
Donaldson MR in R (Cheung) v Hertfordshire County Council,
The Times, 4 April 1998, cited in de Smith, Woolf & Jowell,
Judicial Review of Administrative Action, fifth edition,
at paragraph 13-041. This principle was infringed. The exclusion
of manual harvesters of mushrooms from the MHW category was Wednesbury
unreasonable and unlawful: if the Board had correctly applied
the law, the decision to exclude them would not and could not
have been made”.
Statutory
interpretation:
R
v Secretary of State for the Home Department, Ex p Simms [2000]
2 AC 115 at para 131, Lord Hoffmann said:
“Parliamentary
sovereignty means that Parliament can, if it chooses, legislate
contrary to fundamental principles of human rights. The Human
Rights Act 1998 will not detract from this power. The constraints
upon its exercise by Parliament are ultimately political, not
legal. But the principle of legality means that Parliament must
squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous
words. This is because there is too great a risk that the full
implications of their unqualified meaning may have passed
unnoticed in the democratic process. In the absence of express
language or necessary implication to the contrary, the courts
therefore presume that even the most general words were intended
to be subject to the basic rights of the individual”.
Wilson v First
County Trust (No 2) [2003] 3 All ER 568:
“the House
[of Lords] gave some guidance on the granting of declarations and
the interpretation of legislation. In their Lordships’ view,
when a court was exercising its jurisdiction under the Act in
assessing the compatibility of primary legislation, it was
entitled to have regard to the policy objectives behind the
legislation by looking at ministerial statements at the time the
Bill was proceeding through Parliament. In considering that
material, the court was not encroaching upon parliamentary
privilege or questioning proceedings in Parliament. However, the
content of parliamentary debates had no direct relevance to the
issues the court was called upon to decide in compatibility
matters and those matters were not a matter for investigation or
consideration by the courts”.
Discretion:
R v A (No.2)
[2002] 1 AC 45 HL at 36:
“when the
question arises whether in the criminal statute in question
Parliament adopted a legislative scheme which makes an excessive
inroad into the right to a fair trial the court is qualified to
make its own judgment and must do so”.
Regina v.
Secretary of State for the Home Department, Ex parte Bugdaycay
[1987] A.C. 514, at p 537H:
“In my opinion
where the result of a flawed decision may imperil life or liberty
a special responsibility lies on the court in the examination of
the decision-making process.”
Margin of
appreciation v strict scrutiny:
The European
Court has used the term ‘margin of appreciation’ to
refer to the degree of discretion given to the State with regard
to restrictions on Convention rights. The Court has on a
number of occasions indicated the rationale behind the margin of
appreciation as reflecting primarily concerns of sovereignty, subsidiarity
and democracy. The margin of appreciation reconciles the
effective operation of the Convention with the sovereign power
and responsibilities of governments in a democracy.
The degree of
discretion afforded the State dictates the extent to which the
Court will scrutinise the State’s justification for the
restriction of rights. A close relationship between the
margin of appreciation and the proportionality test is evident
from the jurisprudence of the Court. A wide margin of
appreciation has attracted reduced scrutiny by the Court, such as
that exemplified by the ‘manifestly disproportionate’
test. By contrast, a narrow margin of appreciation has
attracted higher scrutiny by requiring the State, for example, to
provide more compelling reasons (that are ‘relevant and
sufficient’) or a ‘pressing social need’ to
justify the restriction or to show the
‘proportionality’ of the measure to the legitimate aim
pursued. Although the Court’s terminology has not
always been consistent with regard to the test applied, it has
been clear that the narrower the margin of appreciation the
greater the burden on the State to justify the restrictive
measure. In all cases, the Court examines whether the State
struck a ‘fair balance’ between the demands of the
general interest and the protection of the individual’s
fundamental rights.
Ghaidan v. Godin-Mendoza
[2002] EWCA Civ 1533 [2003] 2 WLR 478
“I have no
hesitation in saying that issues of discrimination, which it is
conceded we are concerned with in this case, do have high
constitutional importance, and are issues that the courts should
not shrink from. In such cases deference has only a minor role to
play. 20 … once it is accepted that we are not simply bound
by whatever Parliament has decided … then we need to see
whether the steps taken in implementation of the supposed policy
are, not merely reasonable and proportionate, but also logically
explicable as forwarding that policy.
44 Where
discrimination against a minority is concerned, amounting on the
face of it to a breach of article 14 rights, the courts are
entitled to require to be satisfied that a proper and rational
justification for the difference in treatment has been made out.
It is, as Buxton LJ has emphasised, a matter involving rights of
high constitutional importance where the courts are equipped to
arrive at a judgment. It is indeed a classic role of the courts
to be concerned with the protection of such minority
rights.”
International
treaties:
JH Rayner
(Mincing Lane) Ltd v DTT [1990] 2 AC 418 (HL) at p476, Lord Templeman
said:
“The
Government may negotiate, conclude, construe, observe, breach,
repudiate or terminate a Treaty. Parliament may alter the laws of
the United Kingdom. The courts must enforce those laws; judges
have no power to grant specific performance of a Treaty or to
award damages against a sovereign state for breach of a Treaty or
to invent laws or misconstrue legislation in order to enforce a
Treaty.
A treaty is a
contract between the governments of two or more sovereign states.
International law regulates the relations between sovereign
states and determines the validity, the interpretation and the
enforcement of treaties. A treaty to which Her Majesty’s
Government is a party does not alter the laws of the United
Kingdom. A treaty may be incorporated into and alter the laws of
the United Kingdom by means of legislation. Except to the
extent that a treaty becomes incorporated into the laws of the
United Kingdom by statute, the courts of the United Kingdom have
no power to enforce treaty rights and obligations at the behest
of a sovereign government or at the behest of a private
individual”.
Duty to
reconsider (where an important error of fact is made known):
R v Newham
London Borough Council ex parte Begum (1996):
“the
decision cried out for review when the error, on so important a
matter, was drawn to the council’s attention by the
claimant’s solicitors ............ A failure to reconsider
the decision in these circumstances would in my judgement have
been unlawful.”
[My comment: so
even if no prior promise had been made to review classification
(Jan 06), then new evidence in July 06 would have legally
required a review to meet MDA purposes]
Role of public
opinion:
Dudgeon v UK
(1981) ECHR, para 60:
“Although
members of the public who regard homosexuality as immoral may be
shocked, offended or disturbed by the commission by others of
private homosexual acts, this cannot on its own warrant the
application of penal sanctions when it is consenting adults alone
who are involved”.
Smith
& Grady v UK (1999), para 97:
“The Court
observes from the HPAT report that these attitudes, even if
sincerely felt by those who expressed them, ranged from
stereotypical expressions of hostility to those of homosexual
orientation, to vague expressions of unease about the presence of
homosexual colleagues. To the extent that they represent a
predisposed bias on the part of a heterosexual majority against a
homosexual minority, these negative attitudes cannot, of
themselves, be considered by the Court to amount to sufficient
justification for the interferences with the applicants’
rights outlined above any more than similar negative attitudes
towards those of a different race, origin or colour”.
R v Secretary
of State for the Home Department, ex p Venables (1998) AC:
[not a quote,
Blackstone’s Public Law Principles, 28] in 1994, the then
Home Secretary, in deciding the appropriate minimum jail sentence
for the two 11 year olds convicted of murdering Jamie Bulger,
openly took into account the fact that his office had been sent
(by patrons of the Sun newspaper) over 21,000 coupons urging
their detention for life (prompted by headlines such as
“80,000 call TV to say Bulger killers must rot in
jail”). As Lord Steyn in the House of Lords commented (and
perhaps, with respect, under-stating the position), this was
inappropriate, since the Home Secretary’s sentence-setting
(and therefore quasi-judicial) role required him to “ignore
the high-voltage atmosphere of a newspaper campaign”: see R
v Secretary of State for the Home Department, ex p Venables
[1998] AC 407. By having thought that the views of those Sun
readers who had followed the promptings of its editor were
materially relevant, the Secretary of State’s resulting
decision was flawed, since their views were in fact irrelevant to
the question before him.
The duty to
give reasons:
·
The accepted view is that there is no general duty to give
reasons: R v Secretary of State for the Home
Department, ex parte Doody [1994] 1 AC 531, 564E, per Lord
Mustill.
·
However, there are situations in which fairness will require
reasons to be given. Sedley J, in R v Higher Education
Funding Council, ex parte Institute of Dental Surgery [1994]
1 All ER 651, marked out the pathways through which fairness will
justify exceptions to the general rule.
o
First, there is the type of case where "the nature of the
process itself calls in fairness for reasons to be given"
[1994] 1 All ER 651, 667c. Decisions concerning personal liberty,
such as in Doody, fall into this category.
o
Secondly, there may be "something peculiar to the decision
which in fairness calls for reasons" [1994] 1 All ER 651,
667C. Where the decision appears aberrant, as in the view of the
majority of the Court of Appeal in R v Civil Service
Appeal Board, ex parte Cunningham [1991] 4 All ER 310,
fairness will require reasons to be disclosed to enable the
recipient to know whether the aberration is real or merely
apparent.
R v Secretary
of State ex parte Doody [1994] 1 AC 531:
“Since the
person affected cannot make worthwhile representations without
knowing what factors may weigh against his interests, fairness
will very often require that he is informed of the gist of the
case which he has to answer.”
565G-H, Lord Mustill:
“it important
that there shall be an effective means of detecting the kind of
error which would entitle the court to intervene, and in practice
I regard it as necessary for this purpose that the reasoning of
the Home Secretary be disclosed”.
Wooder v Dr Feggetter
(2002), para 24:
“one of the
classes of case where the common law implies a duty to give
reasons is where the subject-matter is an interest so highly
regarded by the law (for example, personal liberty) that fairness
requires that reasons, at least for particular decisions, be
given as of right”.
R v Brent
London Borough Council, ex p Baruwa (1997) 29 HLR 915 at 929:
“It is trite
law that where, as here, an authority is required to give reasons
for its decision it is required to give reasons which are proper,
adequate, and intelligible and enable the person affected to know
why they have won or lost. That said, the law gives
decision-makers a certain latitude in how they express themselves
and will recognise that not all those taking decisions find it
easy in the time available to express themselves with judicial
exactitude.”
R (Richards) v Pembrokeshire
County Council, (2004) EWCA Civ 1000
[not a quote] the
Court of Appeal explained that the primary source for identifying
the reasons for a decision was the contemporaneous
documented reasoning; that where there is any ambiguity in the
reasons, that ambiguity can be resolved by reference to fresh
evidence, provided that that evidence is credible and
authoritative.
Swinton-Thomas LJ
summed this up:
“...in the
absence of reasons, it is impossible to make any judgement about
this....”
Sir John Laws
explains (Laws 1992, para 12):
“If legal
certainty and the avoidance of capricious power require reasons
to be given, and nothing save perhaps a modicum of administrative
inconvenience and cost points the other way, a decision to refuse
reasons will be an irrational one; and so will itself be in
breach of duty.”
Duty to
consult:
R (Nadarajah
and Abdi) v Secretary of State for the Home Department [2005]
EWCA Civ 1363, para 68:
"Where a
public authority has issued a promise or adopted a practice which
represents how it proposes to act in a given area, the law will
require the promise or practice to be honoured unless there is
good reason not to do so."
R v North
& East Devon Health Authority, ex parte Coughlan [2001]
QB 213:
Para 108:
"It is
common ground that, whether or not consultation of interested
parties and the public is a legal requirement, if it is embarked
upon it must be carried out properly. To be proper,
consultation must be undertaken at a time when proposals are
still at a formative stage; it must include sufficient reasons
for particular proposals to allow those consulted to give
intelligent consideration and an intelligent response; adequate
time must be given for this purpose; and the product of
consultation must be conscientiously taken into account when the
ultimate decision is taken: R v Brent London Borough Council,
Ex p Gunning (1985) 84 LGR 168."
para 112:
"[the
consulting authority’s] obligation is to let those who have
a potential interest in the subject matter know in clear terms
what the proposal is and exactly why it is under positive
consideration, telling them enough (which may be a good deal) to
enable them to make an intelligent response. The
obligation, although it may be quite onerous, goes no further
than this."
para 115:
"The risk an
authority takes by not disclosing such documents is not that the
consultation process will be insufficient but that it may turn
out to have taken into account incorrect or irrelevant matters
which, had there been an opportunity to comment, could have been
corrected."
R (Medway
Council and others) v Secretary of State for Transport [2002]
EWHC 2516 (Admin), para 28:
"It is an
aspect of what is 'proper' - the word used in Coughlan (para
108). ... it is axiomatic that consultation, whether it is
a matter of obligation or undertaken voluntarily, requires
fairness."
R (Edwards and
others) v Environment Agency and others [2006] EWCA Civ 877:
Para 90:
"It is an
accepted general principle of administrative law that a public
body undertaking consultation must do so fairly as required by
the circumstances of the case".
Para 91:
“Focusing
more closely on the issue thrown up by this case, namely whether
fairness in decision-making subject to public consultation
requires internal workings of a decision-maker also to be
disclosed as part of the consultation, the answer given by the
House of Lords in Bushell & Anor v Secretary of State for
the Environment [1981] AC 75 and in a number of other
authorities since, is generally not. In Bushell, Lord
Diplock, with the agreement of the majority, expressed the
principle in the context of a minister’s decision-making
role on his department’s motorway proposal, in which the
minister took into account governmental policy as to the method
of assessing future traffic growth, unavailable or unpublicised
at the material time. He said, at 95E-96A and 102E/F:
“…
What is fair procedure is to be judged … in the light of the
practical realities as to the way in which administrative
decisions involving forming judgments based on technical
considerations are reached. … Discretion in making
administrative decisions is conferred upon a minister not as an
individual but as the holder of an office in which he will have
available to him in arriving at his decision the collective
knowledge, experience and expertise of all those who served the
Crown in the department of which, for the time being, he is the
political head. The collective knowledge, technical
as well as factual, of the civil servants in the department and
their collective expertise is to be treated as the
minister’s own knowledge, his own expertise. …
This is an integral part of the decision-making process itself;
it is not to be equiperated with the minister receiving evidence,
expert opinion or advice from sources outside the department
after the local inquiry has been closed. …
… Once he
has reached his decision he must be prepared to disclose his
reasons for it, … but he is, in my view, under no obligation
to disclose to objectors and give them an opportunity of
commenting on advice, expert or otherwise, which he receives from
his department in the course of making up his mind. If he
thinks that to do so will be helpful to him in reaching the right
decision in the public interest he may, of course, do so; but if
he does not think it will be helpful – and this is for him
to decide – failure to do so cannot in my view be treated as
a denial of natural justice to the objectors.”
Para 94:
“Thus, if
in the course of decision-making a decision-maker becomes
aware of a new factor, as in Interbrew SA v Competition
Commission [2001] EWHC Admin 367, or some internal
material of potential significance to the decision to be made, as
in R v Secretary of State for Health, ex p United States
Tobacco International Inc [1992] QB, 353, CA, at 370-371 (per
Taylor LJ) and 376 (per Morland J), fairness may demand that the
party or parties concerned should be given an opportunity to deal
with it”.
Para 103:
“In general,
in a statutory decision-making process, once public consultation
has taken place, the rules of natural justice do not, for the
reasons given by Lord Diplock in Bushell, require a
decision-maker to disclose its own thought processes for
criticism before reaching its decision. However, if, as in United
States Tobacco (see per Taylor LJ, as he then was, at
370-371, and at 376, per Morland J), and in Interbrew (see
per Moses J at pp 33-35 of the transcript), a decision-maker, in
the course of decision-making, becomes aware of some internal
material or a factor of potential significance to the decision to
be made, fairness may demand that the party or parties concerned
should be given an opportunity to deal with it. See also
the remarks of Schiemann J in R v Shropshire Health Authority,
ex p Duffus [1990] 1 Med LR 119, at 223 as to the changing
scene that a consultation process may engender and the
consideration by Silber J in R (Smith) v East Kent Hospital
NHS Trust [2002] EWHC 2640, at 39-44, of the possible need,
depending on the circumstances, for further consultation on
matters and issues that the initial consultation may have thrown
up.”
Bushell & Anor
v Secretary of State for the Environment [1981] AC 75, at 96D
(quoted in Edwards 2006):
“Fairness
… also requires that the objectors should be given
sufficient information about the reasons relied on by the
department as justifying the draft scheme to enable them to
challenge the accuracy of any facts and the validity of any
arguments on which the departmental reasons are based.”
Greenpeace v
SSTI [2007] EWHC 311 (Admin), para 63.
“a
conclusion that a consultation exercise was unlawful on the
ground of unfairness will be based upon a finding by the court,
not merely that something went wrong, but that something went
"clearly and radically" wrong”.
Government
guidance: The Judge over your shoulder 4, 2006:
“Consultation
2.45
Consultation, with the persons likely to be affected by the
decision, is very often part of the decisionmaking process, being
an aspect of "Hearing the other side's case". It helps
to make the process a fair one. (It also helps to ensure that the
decision-maker is in possession of all the relevant information,
so that the decision is a "rational" one as well).
Where consultation is undertaken, whether or not it is strictly
required, it has to be conducted properly, if it is to satisfy
the requirement for procedural fairness. Four conditions have to
be satisfied:
·
Consultation must be undertaken when proposals are still at a formative
stage;
·
Sufficient explanation for each proposal must be given, so
that those consulted can consider them intelligently and respond;
·
Adequate time needs to be given for the consultation
process;
·
Consultees' responses must be conscientiously taken into
account when the ultimate decision is taken.”
Proportionality
& rationality:
The basic
formulation: a threefold test
According to
‘Leyland and Anthony’, p.331:
‘A measure
will therefore typically be proportionate only where (a) the
means adopted by the authority when using its power is in line
with the legislative purpose; (b) the authority employs
only means that minimise harm to the individual; and (c)
any injury caused to the individual is not disproportionate
relative to the benefits secured for the public generally.’
According to
Craig, p.622:
‘The most
common formulation is a three-part analysis. The court
considers: (1) whether the measure was necessary to
achieve the desired objective; (2) whether the measure was suitable
for achieving the desired objective; (3) whether it
nonetheless imposed excessive burdens on the individual.
(This part is often termed proportionality strictu sensu.)’
R (Mahmood) v.
SSHD [2001] 1 WLR 840, Laws LJ (considering a pre-HRA
case):
“that
approach [ie. review of increased intensity where fundamental
rights are involved] and the basic Wednesbury rule are by no
means hermetically sealed one from the other. There is, rather,
what may be called a sliding scale of review; the graver the
impact of the decision in question upon the individual affected
by it, the more substantial the justification that will be
required. It is in the nature of the human condition that cases
where, objectively, the individual is most gravely affected will
be those where what we have come to call his fundamental rights
are or are said to be put in jeopardy. In the present case,
whether or not the Convention is under consideration, any
reasonable person will at once recognise the right to family
life, exemplified in the right of the parties to a genuine
marriage to cohabit without any undue interference, as being in
the nature of a fundamental right … .”
R (Watford
Grammar School for Girls) V Adjudicator for Schools [2003]
EWHC 2480 (Admin), [2004] ELR 40, Collins J:
granted JR for
failure to appreciate less intrusive ways of achieving intended
result (para 82).
R (Wandsworth
LBC) v. Schools Adjudicator [2003] EWHC 2969 (Admin), [2004]
ELR 274 Goldring J:
JR granted
because remedy chosen not rationally capable of achieving
objective pursued (para 72).
Huang v .SSHD
[2005] EWCA Civ 105 & Machado v. SSHD [2005] EWCA Civ
597:
The CA in Huang
adopt proportionality (in accordance with the test expounded by
the HL in Daly) as the appropriate test in decisions which
involve 'an element of policy'.
HRA/ECHR
ECHR
effective, not theoretical, must evolve:
Stafford v UK
[2002]
“68.
…It is of crucial importance that the Convention is
interpreted and applied in a manner which renders its rights
practical and effective, not theoretical and illusory. A failure
by the Court to maintain a dynamic and evolutive approach would
risk rendering it a bar to reform or improvement”.
Selmouni v
France (2000) 29 EHRR 403, para 101:
“having
regard to the fact that the Convention is a "living
instrument which must be interpreted in the light of present-day
conditions", the Court considers that certain acts which
were classified in the past as "inhuman and degrading
treatment" as opposed to "torture" could be
classified differently in future. It takes the view that the
increasingly high standard being required in the area of the
protection of human rights and fundamental liberties
correspondingly and inevitably requires greater firmness in
assessing breaches of the fundamental values of democratic
societies.”
In accordance
with the law:
Copland v
United Kingdom (2007):
45. The
Court recalls that it is well established in the case-law that
the term “in accordance with the law” implies - and
this follows from the object and purpose of Article 8 - that
there must be a measure of legal protection in domestic law
against arbitrary interferences by public authorities with the
rights safeguarded by Article 8 § 1. This is all the more so in
areas such as the monitoring in question, in view of the lack of
public scrutiny and the risk of misuse of power (see Halford,
cited above, § 49).
46. This expression not only requires compliance with
domestic law, but also relates to the quality of that law,
requiring it to be compatible with the rule of law (see, inter alia,
Khan v. the United Kingdom, judgment of 12 May 2000, Reports of
Judgments and Decisions 2000-V, § 26; P.G. and J.H. v. the
United Kingdom, cited above, § 44).
Amann v
Switzerland
56. According
to the Court’s established case-law, a rule is
“foreseeable” if it is formulated with sufficient
precision to enable any individual – if need be with
appropriate advice – to regulate his conduct (see the Malone
v. the United Kingdom judgment of 2 August 1984, Series A no. 82,
pp. 31-32, § 66). With regard to secret surveillance measures
the Court has underlined the importance of that concept in the
following terms (ibid., pp. 32-33, §§ 67-68):
“The Court
would reiterate its opinion that the phrase ‘in accordance
with the law’ does not merely refer back to domestic law but
also relates to the quality of the law, requiring it to be
compatible with the rule of law, which is expressly mentioned
in the preamble to the Convention ... The phrase thus implies
– and this follows from the object and purpose of Article 8
– that there must be a measure of legal protection in
domestic law against arbitrary interferences by public
authorities with the rights safeguarded by paragraph 1 ...
Especially where a power of the executive is exercised in secret,
the risks of arbitrariness are evident...
... Since the
implementation in practice of measures of secret surveillance of
communications is not open to scrutiny by the individuals
concerned or the public at large, it would be contrary to the
rule of law for the legal discretion granted to the executive to
be expressed in terms of an unfettered power. Consequently,
the law must indicate the scope of any such discretion conferred
on the competent authorities and the manner of its exercise with
sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection
against arbitrary interference.”
Article 8
& autonomy:
Article 8 provides:
1. Everyone has
the right to respect for his private and family life, his home
and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.
There
are three components in the exceptions permitted under article
8(2). The intervention must be:
·
'in accordance with the law',
·
in pursuit of one of the legitimate aims defined in article 8(2),
and
·
'necessary in a democratic society'.
In accordance
with the law: see above
Necessary
in a democratic society: There must be a “pressing social
need”. The Court interprets the needs of a democratic
society fairly liberally, stressing that included in the
hallmarks of a democratic society are broadmindedness, tolerance
and pluralism.
Proportionality:
The Court will examine the extent to which the reasons which the
State advances for justifying an interference are relevant and
sufficient. The Court will examine the nature and degree of the
interference of the person’s rights: the more interference
with a person’s rights, the more justification there will
have to be for any interference. If less restrictive means of
achieving the legitimate aim are available, then restrictions
will be viewed as disproportionate.
Margin
of appreciation: The Court gives States some flexibility in
deciding whether an interference is justified – this is the
“margin of appreciation”. The margin of appreciation
which the Court will allow will vary from case to case, depending
on the nature of the activity, and the need and reasons given for
restricting it.
Marckx v
Belgium (1979) 2 EHRR 330 at p 342 the European Court of
Human Rights said about Article 8:
“As the
Court stated in the Belgian Linguistic Case [(1968) 1 EHRR
252, 282, para 7], the object of the Article is 'essentially'
that of protecting the individual against arbitrary interference
by the public authorities”.
Botta
v Italy (1998) 26 EHRR 241, para 32, the Court defined
the concept of private life as including:
“Private
life, in the Court's view, includes a person's physical and
psychological integrity; the guarantee afforded by Article 8 of
the Convention is primarily intended to ensure the development,
without outside interference, of the personality of each
individual in his relations with other human beings.”
Connors stated that Article 8:
“concerns
rights of central importance to the individual’s identity,
self-determination, physical and moral integrity, maintenance of
relationships with others and a settled and secure place in the
community.”
A & B v
East Sussex County Council:
Munby J described
this as including a right to human dignity. It is a right to
respect for a person’s fundamental humanity: their physical
and bodily integrity, personal identity and lifestyle; and –
importantly – the right to develop a private sphere both
alone and in conjunction with others. It contains an
“inviolable core” of personal autonomy.
Pretty v UK (2002)
ECHR,
para 61:
“Although no previous case has established as such any right
to self-determination as being contained in Article 8 of the
Convention, the Court considers that the notion of personal
autonomy is an important principle underlying the interpretation
of its guarantees”.
para 62: “The
Court would observe that the ability to conduct one's life in a
manner of one's own choosing may also include the opportunity to
pursue activities perceived to be of a physically or morally
harmful or dangerous nature for the individual concerned. The
extent to which a State can use compulsory powers or the criminal
law to protect people from the consequences of their chosen
lifestyle has long been a topic of moral and jurisprudential
discussion, the fact that the interference is often viewed as
trespassing on the private and personal sphere adding to the
vigour of the debate. However, even where the conduct poses a
danger to health or, arguably, where it is of a life-threatening
nature, the case-law of the Convention institutions has regarded
the State's imposition of compulsory or criminal measures as
impinging on the private life of the applicant within the meaning
of Article 8 § 1 and requiring justification in terms of the
second paragraph”.
para 65:
“The very essence of the Convention is respect for human
dignity and human freedom”.
Joint
Committee on Human Rights – 6th Report Health
Bill 2005:
“1.23 The
main human rights issues are raised by Part 1 of the Bill …
are … (2) whether the Bill's provisions controlling smoking
in enclosed public places and workplaces are a proportionate
interference with smokers' right to respect for their private
life and home under Article 8 ECHR. 1.28 We therefore conclude
that the Strasbourg case-law does not require the UK to introduce
a total prohibition on smoking. A failure to prohibit smoking
completely would be unlikely to be found to be a breach of the
UK's positive obligations under Article 2 or 8 ECHR.
(2)
THE INTERFERENCE WITH SMOKERS' ARTICLE 8 RIGHTS
1.34 We consider
that the Bill's provision for the prohibition of smoking in
certain premises, places and vehicles does engage the Article 8
rights of smokers to respect for their private lives, and
therefore calls for justification under Article 8(2). It is true
that the prohibition serves the legitimate aims of the interests
of public safety, the protection of health and the protection of
the rights and freedoms of others in Article 8(2). The question
is whether the interference with smokers' Article 8 rights in
pursuit of those aims is proportionate. The Explanatory Notes do
not address this question, but merely assert that the
interference is justified on grounds of protection of health. A
proper consideration of the proportionality of the interference
with smokers' Article 8 rights requires consideration of the
weight of the evidence of the dangers of exposure to tobacco
smoke, in order to assess the importance to be attached to the
aim in the balancing exercise, and the scope of the exemptions
which are envisaged.
1.35 The evidence
relied on by the Government to justify the partial smoking ban is
set out in the regulatory impact assessment which accompanies the
Bill.[37]
It is estimated that the total number of averted deaths could be
as many as 2,500 a year, and the saving to the NHS in health
costs could be as much as £100m a year.
1.36 The
prohibition on smoking does not extend to a person's home (unless
it is also a place to which the public have access or a workplace
for more than one person). The exemptions envisaged also include
"premises where a person has his home, or is living whether
permanently or temporarily (including hotels, care homes and
prisons and other places where a person may be detained)." A
person who wishes to smoke will therefore still be able to do so
in the privacy of their own home, including where that home is a
prison, long term residential care home, or other place where
they are living permanently.
1.37 In view of
the evidence relied on in support of the proposed prohibition,
the fact that it does not extend to a person's home, and that
provision is made to exempt places which are people's de facto
homes, the interference with the private life of smokers is in
our view likely to be upheld as being proportionate”.
Moser v
Austria [2006]:
“67. the
Court’s well established case-law that Article 8 contains
implicit procedural requirements. What is to be determined is
whether, having regard to the particular circumstances of the
case and notably the serious nature of the decisions to be taken,
the parents have been involved in the decision-making process,
seen as a whole, to a degree sufficient to provide them with the
requisite protection of their interests (Elsholz v. Germany
[GC], no. 25735/94, § 52, ECHR 2000-VIII, P., C. and S.
v. the United Kingdom, cited above, § 119, and Venema v.
the Netherlands, no. 35731/97, § 91, ECHR 2002-X, with
references to W. v. the United Kingdom, judgment of 8 July
1987, Series A no. 121, pp. 28-29, § 64).
1. Having
regard to the authorities’ failure to examine all possible
alternatives … [and] … applicant’s insufficient
involvement in the decision making process, the Court considers
that although the reasons relied on by the domestic courts were
relevant, they were not sufficient to justify such a serious
interference with the applicants’ family life.
Notwithstanding the domestic authorities’ margin of
appreciation, the interference was therefore not proportionate to
the legitimate aims pursued.
2. Consequently,
there has been a violation of Article 8 of the Convention as
regards the transfer of custody of the second applicant to the
Youth Welfare Office”.
Niemetz v
Germany [1992] 16 EHRR 97 para 29-30
There
appears…to be no reason of principle why [an] understanding
of the notion of “private life” should be taken to
exclude activities of a professional or business nature
…This view is supported by the fact that, as was rightly
pointed out by the Commission, it is not always possible to
distinguish clearly which of an individual’s activities form
part of his professional or business life and which do not. Thus,
especially in the case of a person exercising a liberal
profession, his work in that context may form part and parcel of
his life to such a degree that it becomes impossible to know what
capacity he is acting at a given moment.
Article 1 of
Protocol 1: property rights
Art. 1/1 of the
ECHR relates to the protection of property. It provides:-
“Every
natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions
provided for by law and by the general principles of
international law.
The preceding
provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or
penalties.”
Art. 1/1 has
consistently been explained by the European Court of Human Rights
(“the ECtHR”) as follows:-
The first rule,
set out in the first sentence of the first paragraph, is of a
general nature and enunciates the principle of the peaceful
enjoyment of property. The second rule, contained in the second
sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions. The third
rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control
the use of property in accordance with the general interest.
The three rules
are not, however, “distinct” in the sense of being
unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the
light of the general principle enunciated in the first rule.
In each case a
balance must be struck between the rights of the individual and
the public interest to determine whether the infringement was
justified.
Entick v.
Carrington (1765) 19 Howell's State Trials 1030:
“The great
end, for which men entered into society, was to secure their
property. That right is preserved sacred and incommunicable in
all instances, where it has not been taken away or abridged by
some public law for the good of the whole”.
Chassagnou
and Others v.
Para
95: “In conclusion, since the result of the difference in
treatment between large and small landowners is to give only the
former the right to use their land in accordance with their
conscience, it constitutes discrimination on the ground of
property, within the meaning of Article 14 of the Convention.
There has therefore been a violation of Article 1 of Protocol No.
1 taken in conjunction with Article 14 of the Convention”.
Article 14
– Discrimination:
Article 14
provides:
The enjoyment of
the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status.
Thlimmenos v
“The Court
has so far considered that the right under Article 14 not to be
discriminated against in the enjoyment of the rights guaranteed
under the Convention is violated when States treat differently
persons in analogous situations without providing an objective
and reasonable justification. However, the Court considers that
this is not the only facet of the prohibition of discrimination
in Article 14. The right not to be discriminated against in
the enjoyment of the rights guaranteed under the Convention is
also violated when States without an objective and reasonable
justification fail to treat differently persons whose situations
are significantly different”.
Stec &
Others v UK [2005], para 40:
“The
prohibition of discrimination in Article 14 thus extends beyond
the enjoyment of the rights and freedoms which the Convention and
Protocols require each State to guarantee. It applies also to
those additional rights, falling within the general scope of any
Convention article, for which the State has voluntarily decided
to provide”.
Test 1:
In Rasmussen v
“Article 14
safeguards individuals who are 'placed in analogous situations'
against discriminatory differences of treatment . . . For the
purposes of article 14, a difference of treatment is
discriminatory if it 'has no objective and reasonable
justification', that is, if it does not pursue a 'legitimate aim'
or if there is not a 'reasonable relationship of proportionality
between the means employed and the aim sought to be
realised'.”
Test 2:
The analytical
process required by Article 14 is set out in the judgment of
Brooke LJ in Michalak v Wandsworth LBC [2003] 1 WLR 617,
§20:
It appears to me
that it will usually be convenient for a court, when invited to
consider an Article 14 issue, to approach its task in a
structured way. For this purpose I adopt the structure suggested
by Stephen Grosz, Jack
(i) Do the facts
fall within the ambit of one or more of the substantive
Convention provisions .. ?
(ii) If so, was
there different treatment as respects that right between the
complainant on the one hand and other persons put forward for
comparison (”the chosen comparators”) on the
other?
(iii) Were the
chosen comparators in an analogous situation to the
complainant’s situation?
(iv) If so, did
the difference in treatment have an objective and reasonable
justification: in other words, did it pursue a legitimate aim and
did the differential treatment bear a reasonable relationship of
proportionality to the aim sought to be achieved?
Brooke LJ’s
approach has been endorsed in numerous subsequent Court of Appeal
decisions (eg
Ambit: Art
14 applies only to discrimination in “the enjoyment of the
rights and freedoms set forth” in the ECHR, ie conduct which
falls “within the ambit” of one of the substantive ECHR
rights. See R (Clift) v Home Secretary [2004] 1 WLR
2223 at paragraph 14. Moreover, Art. 14 is not engaged if a
matter is merely related to the subject matter of a substantive
right in a general way. See
Justification:
Discrimination must be “objectively justified”. See R
(Carson and Reynolds) v Secretary of State for Works and Pensions
[2003] 3 All ER 577 at paragraph 25.
·
Note as regards objective justification for differential
treatment that this will not be avoided even if Art. 14 does not
apply because there is no substantive right to which to link it.
The developing common law and constitutional principle of
equality is likely to apply. Indeed the sense in which measures
may be unreasonable include when they are found to be
“partial and unequal in their operation as between different
classes”: the classic formulation of Lord Russell CJ in Kruse
v Johnson [1898] 2 QB 91 at 99. Modern instances of measures
being found to be unreasonable as being discriminatory include Edwards
v SOGAT [1971] Ch 354, R v Barnet LBC, ex p Johnson
(1989) 88 LGR 73 per Parker LJ at 84, (1990) 89 LGR 581, and R
v Immigration Appeal Tribunal, ex p Manshoora Begum [1986] Imm
AR 385.
·
As to the development of a common law constitutional principle of
equality of treatment, which prohibits measures which make
unjustifiable or unfair distinctions between individuals, see eg
de Smith, Woolf & Jowell, Judicial Review of Administrative
Action, 5th edition, paragraphs 13-005 and 13-036 to
13-045, Craig, Administrative Law, 4th edition, from
page 650, and Fordham, Judicial Review Handbook, page 55. In R
v Hertfordshire County Council, ex p Cheung, The Times, 4
April 1986, Lord Donaldson MR said that “it is a cardinal
principle of good public administration that all persons who are
in a similar position shall be treated similarly”.
·
This principle has particular application in the field of
taxation, in respect of which the importance of acting
even-handedly is often stressed. See eg Board of Education v
Rice [1911] AC 179, IRC v National Federation of Self
Employed [1982] AC 617; Preston v IRC [1985] AC 835; R
v IRC, ex p Unilever [1996] STC 681; and R (British Sky
Broadcasting) v Customs and Excise Commissioners [2001] STC
437. The principle is, however, by no means confined to the field
of taxation. See eg Matadeen v Pointu [1999] 1 AC 98; R
(Montana) v Home Secretary [2001] 1 WLR 552 per Tuckey LJ at
paragraph 15; Hooper, referred to above, and R
(European Roma Rights Centre) v Immigration Officer at Prague
Airport [2004] 2 WLR 147.
·
In A v Home Secretary [2003] 2 WLR 54, Lord Woolf CJ said,
at paragraph 7:-
“The right
not to be discriminated against is one of the most significant
requirements of the protection provided by the rule of law. It is
now enshrined in article 14 of the Convention, but long before
the Human Rights Act 1998 came into force the common law
recognised the importance of not discriminating.”
·
Of course, there is no an absolute bar on disparity of treatment.
As Supperstone and Goudie, Judicial Review, 2nd
edition, puts it, at 6.34:-
“Plainly in
many cases it will be the duty of a decision-maker to
discriminate between those who are, and those who are not,
entitled to exercise of his statutory powers. The vice exists
where the discrimination is “partial and unequal” in
the sense that it is not founded upon any rational distinction
between the classes in question.”
However, when
there is a discriminatory impact, a Wednesbury approach to
reasonableness is unlikely to suffice. What will be required will
be to demonstrate not only that the objective is legitimate, but
also that the measure is proportionate to the objective, and is
objectively justifiable.
Art
3 & Art 14:
Cyprus
v Turkey (2001):
“The Court
concluded that the discriminatory living conditions imposed by
Turkey on Greek Cypriots … are contrary to Article 3
ECHR”.
“the
situation in which the Karpas Greek Cypriots live and are
compelled to live: isolated, restricted in their movements,
controlled and with no prospect of renewing or developing their
community. The conditions under which that population is
condemned to live are debasing and violate the very notion of
respect for the human dignity of its members. In the Court's
opinion, and with reference to the period under consideration,
the discriminatory treatment attained a level of severity which
amounted to degrading treatment.” (Par. 309 and 310)
Smith
& Grady v UK (1999)
“3. The
Court recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the
Convention. The assessment of that minimum is relative and
depends on all the circumstances of the case, such as the
duration of the treatment and its physical or mental effects (see
the Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, p. 65, § 162).
It is also
recalled that treatment may be considered degrading if it is such
as to arouse in its victims feelings of fear, anguish and
inferiority capable of humiliating and debasing them and possibly
breaking their physical or moral resistance (see the Ireland v.
the United Kingdom judgment cited above, pp. 66-67, § 167).
Moreover, it is sufficient if the victim is humiliated in his or
her own eyes (see the Tyrer v. the United Kingdom judgment of 25
April 1978, Series A no. 26, p. 16, § 32).
121. the Court
would not exclude that treatment which is grounded upon a
predisposed bias on the part of a heterosexual majority against a
homosexual minority of the nature described above could, in
principle, fall within the scope of Article 3 (see, mutatis
mutandis, the Abdulaziz, Cabales and Balkandali v. the United
Kingdom judgment of 28 May 1985, Series A no. 94, p. 42, §§
90-91).
4. Accordingly,
the Court concludes that there has been no violation of Article 3
of the Convention taken alone or in conjunction with Article
14”.
Semhi v UK
[1998] - ECtHR can take into account conclusions from Council of
Europe:
The Court recalls
that ill-treatment must attain a minimum level of severity if it
is to fall within the scope of Article 3 of the Convention.
Further, the Court has held that the suffering occasioned must
attain a certain level before treatment can be classified as a
inhuman. The assessment of that minimum is relative and depends
on all the circumstances of the case, such as the duration of the
treatment and its physical or mental effects (Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, p.
65, § 162). It is also recalled that it is not excluded that
certain sentences may falls within the scope of Article 3 of the
Convention (for example, Hussain v. the United Kingdom judgment
of 21 February 1996, Reports of Judgments and Decisions
1996-I no. 4, p. 269, § 53) or that the Court could take into
account relevant conclusions of an organ of the Council of Europe
in its examination of a case (for example, Aerts v. Belgium
judgment of 30 July 1998, Reports 1998-V, no. 83,
p. 1962, § 49).
Common Law:
Fettered
discretion:
Elias v SSD
(2006):
21. The first
ground of challenge is that the Minister has acted unlawfully in
fettering his discretion and refusing to consider whether Mrs
Elias should be treated as an exceptional case, either because of
the particularly harsh treatment meted out to her, or because she
has developed a very close connection now with the United
Kingdom.
22. It is well
established that in exercising public law discretions, a decision
maker must not adopt rules or policies which disable itself from
exercising its discretion in individual cases. The principle was
formulated by Lord Reid in the well-known case of British Oxygen
v Board of Trade [1971] A.C.610, 625D as follows:
"The general
rule is that anyone who has to exercise a statutory discretion
must not "shut his ears to an application"......I do
not think there is any great difference between a policy and a
rule. There may be cases where an officer or authority ought to
listen to a substantial argument reasonably presented urging a
change of policy. What the authority must not do is to refuse to
listen at all."
24. …once a
statutory scheme is created, officials implementing that scheme
must act in accordance with its terms. It would not be lawful to
exercise a discretion in favour of extending the scope of, or
making exceptions to, those covered by a statutory scheme unless
Parliament had provided for such a discretion to be available.
Misuse of
Drugs Act – case law summary
Taylor v UK
- UN drug Conventions:
11. Article 36 of
the Convention provides, omitting immaterial words:
“1(a)
Subject to its constitutional limitations, each Party shall adopt
such measures as will ensure that... possession, offering,
offering for sale, distribution... delivery on any terms
whatsoever... of drugs contrary to the provisions of this
Convention... shall be punishable offences when committed
intentionally....”
12. The United
Nation's Convention against illicit traffic in narcotic drugs and
psychotropic substances, adopted in December 1988, expresses
similar, albeit heightened, concerns, to those identified in the
1961 Convention. It provides, in Article 3.1 that the contracting
parties which, again, include the United Kingdom:
“...shall
adopt such measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally:
(a)(i) The...
offering... distribution... delivery on any terms whatsoever...
of any narcotic drug or any psychotropic substances contrary to
the provisions of the 1961 Convention as amended.”
13. Paragraph 2
of Article 3 provides:
“Subject to
its constitutional principles and the basic concepts of its legal
system, each Party shall adopt such measures as may be necessary
to establish as a criminal offence under its domestic law... the
possession, purchase or cultivation of narcotic drugs or
psychotic substances for personal consumption, contrary to the
provisions of the 1961 Convention... as amended....”
14. The trial
judge, in a clear and careful ruling, concluded, in the light of
the Crown's concession that Rastafarianism is a religion and
their further, perhaps somewhat surprising, concession that all
of these drugs were destined for use in connection with
Rastafarian religious purposes, that the European Convention on
Human Rights was engaged, but that those rights were qualified by
the provisions of Article 9(2). As it was common ground that the
limitations on cannabis supply imposed by the Misuse of Drugs Act
1971 are limitations prescribed by law, the crucial question was
whether those limitations were necessary in the terms of Article
9(2). That necessity, the judge said, would be shown by the
existence of pressing social need, and a reasonable relationship
between the terms employed and the aims pursued. This, the judge
commented, raised complex issues, not easy for a Crown Court
judge to resolve. But the Misuse of Drugs Act, he concluded,
fulfilled the United Kingdom's obligations, under the Conventions
of 1961 and 1998. These provided powerful evidence of an
international consensus that an unqualified ban on the possession
of cannabis, with intent to supply, is necessary to combat public
health and public safety dangers arising from such drugs. The
same conclusion, he said, applied in relation to Article 8.2 and
the restrictions it imposed on the Article 8.1 right to respect
for private life.
Air Canada v
UK [1993]: Proportionality & procedural remedies +
reasons:
34. The
prohibition on the importation of cannabis resin in Section 3(1)
of the Misuse of Drugs Act 1971 constitutes a control of the use
of that substance.
35. It
is therefore the second paragraph of Article 1 (P1-1-2) which is
applicable in the present case.
36. The
second paragraph of Article 1 (P1-1-2) recognises the right of a
State "to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or
penalties". It has not been suggested in the present
case that the seizure and return of the aircraft on payment of
£50,000 was to secure the payment of a tax or other contribution
or penalty.
37. The
Commission must however consider whether the control of use in
the present case was in itself compatible with the terms of this
provision and, if so, it must establish whether there existed a
reasonable relationship of proportionality between the means
employed and the aim sought to be realised (Agosi judgment, p.
18, para. 52).
38. In
the Agosi case the Court in examining proportionality had regard
to the procedural remedies available. In this case the
remedies were two. First there was a challenge to the
legality of the seizure. That avenue was unsuccessfully taken by
the applicant company, the Court of Appeal ruling that whether
the company was at fault was irrelevant. Secondly there was
the possibility of seeking judicial review of the Commissioners'
decision to impose a condition of payment of £50,000 for the
return of the aircraft. This course the applicant company
did not take. … Nonetheless the existence of the remedy is
an element to be taken into account in examining proportionality.
43. The
Commission finds that, although the seizure and retention of a
valuable aircraft without the giving of reasons could raise grave
problems of proportionality under Article 1 of Protocol No. 1
(P1-1) of the Convention, the present case relates rather to a
payment of £50,000 being required for the return of the
aircraft.
Legitimate aim =
crime prevention (tautology = arbitrary): Marlow v UK [2000];
Cronin v UK [2003]
Marlow:
The
Court also concludes that the said interference [prohibition of
cannabis cultivation book, Art 10] pursued a legitimate aim,
namely the prevention of crime.
Cronin:
The Court considers, on the basis of its case-law, that the
search of the applicant’s home clearly involved an
interference with his Article 8 rights (see, for example, Niemietz
v. Germany, judgment of 16 December 1992, Series A
no. 251-B; Chappell v. the United Kingdom, judgment
of 30 March 1989, Series A, no. 152-A; Keslassy v. France,
(dec.), no. 51578/99, 8 January 2002). The warrant was
issued pursuant to the statutory provisions in section 23 of the
Misuse of Drugs Act 1971 and section 15 of the Police and
Criminal Evidence Act 1984. The Court finds that it was issued
“in accordance with the law” and moreover that it
pursued the legitimate aim of crime prevention.
Cronin v UK
- Procedural safeguards against arbitrariness:
Where States
consider it necessary to resort to measures such as searches of
residential premises in order to obtain evidence of offences the
Court will assess whether the reasons adduced to justify such
measures were relevant and sufficient and whether the
proportionality principle has been adhered to (see Funke v.
France, judgment of 25 February 1993, Series A
no. 256-A). In particular the Court will consider whether
there were sufficient procedural safeguards to prevent any abuse
or arbitrariness. …
However, whilst a
highly relevant consideration, the fact that an application for a
warrant has been subject to judicial scrutiny will not in itself
necessarily amount to a sufficient safeguard against abuse (see Niemietz
v. Germany, cited above, which concerned the search of a
lawyer’s office). Rather, the Court must examine the
particular circumstances and evaluate whether the legal framework
and the limits on the powers exercised were an adequate
protection against arbitrary interference by the authorities.
Marlow -
EU cultural trend toward equality & margin of appreciation:
Turning to the
necessity test, the Court must consider whether the interference
was a proportionate response to the attainment of the
above-stated aim. In particular, it must enquire whether the
measures taken against the applicant were necessitated by a
“pressing social need” and that relevant and sufficient
reasons underpinned those measures (for a full statement of the
relevant principles, see the Ahmed and Others v. the United
Kingdom judgment of 2 September 1998, Reports of Judgments and
Decisions 1998-VI, pp. 2377-78, § 55).
In making its
assessment the Court cannot overlook the fact that there is an
increased public acceptance of cannabis for medicinal and
recreational purposes and a vociferous lobby in favour of
decriminalising certain types of use. A number of Contracting
Parties have moved in this direction. However it is impossible to
say that there is a European consensus on the desirability of
decriminalisation. In the respondent State, it still remains a
criminal offence, inter alia, to possess, produce and, of
relevance to the instant case, to incite others to produce
cannabis. In the Court’s opinion, the decision to maintain
on the statute book an offence of incitement to produce cannabis
and to penalise authors of publications which serve this end must
be considered to fall within the respondent State’s margin
of appreciation.