Case law etc quotes

 

 

Democracy – Rule of the Majority v Rule of Law:

 

Matadeen v Pointu:

“11. The United Kingdom theory of the sovereignty of Parliament is however an extreme case.  The difficulty about it, as experience in many countries has shown, is that certain fundamental rights need to be protected against being overridden by the majority.  No one has yet thought of a better form of protection than by entrenching them in a written constitution enforced by independent judges.  Even the United Kingdom is to adopt a modified form of judicial review of statutes by its incorporation of the European Convention”. 

Lord Steyn said in his lecture on 2 October 2003 in memory of Chief Justice Dickson in Canada:

“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 New York (1949), para 112, Justice Jackson in the Supreme Court of the United States stated:

“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. France (1999) ECtHR, para 112:

“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 San Antonio School District v Rodriguez (1973) 411 US 1, 29 described the concept of a “suspect class” as a class of people:

“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: April 16, 1963, Letter from a Birmingham Jail

“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 UK (2002) ECHR, para 17:

“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-Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 9:

“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-Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 132.

“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 United Kingdom (2002) 35 EHRR 1, 37, para 65. Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an under-class, but an under-class with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not”.

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. France (1999):

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”.

Para 112: “The term 'necessary' does not have the flexibility of such expressions as 'useful' or 'desirable'.  In addition, 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”.

 

 

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 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”.

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 Denmark (1984) 7 EHRR 371, paras 35 and 38, citing Van der Mussele v Belgium (1983) 6 EHRR 163, para 46, and Marckx v Belgium (1979) 2 EHRR 330, para 33, the court said this:

“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 Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is “no”, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are:

(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 Mendoza v Ghaidan [2003] 2 WLR 478, 6;  R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623, 85;  R (Purja) v Ministry of Defence [2003] EWCA Civ 1345, 23).

 

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 Douglas v North Tyneside MBC [2004] 1 All ER 709.

 

 

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.