SAMPLE NOTES FROM OUR LLB CASE BOOK: Public Law Human Rights in the UK and the Human Rights Act 1998 and Article 2 (Right to Life) chapters
LLB Answered is a comprehensive, first-class set of exam-focused study notes for the Undergraduate Law Degree. This is a sample from one of our Case Books. We also offer dedicated Core Guides. Please visit lawanswered.com if you wish to purchase a copy. Notes for the LPC are also available via lawanswered.com.
This chapter is provided by way of sample, for marketing purposes only. It does not constitute legal advice. No warranties as to its contents are provided. All rights reserved. Copyright © Answered Ltd.
HUMAN RIGHTS IN THE UK AND USING THE HUMAN RIGHTS ACT 1998 KEY CASES CASE
Aston Cantlow and Wilmcote PCC v Wallbank [2003]
Handyside v UK [1976]
Klass v Germany [1978]
FACTS
PRINCIPLE
A church council attempted to enforce an obligation to contribute towards church repairs against a lay rector (a lay rector is someone with an obligation to maintain a church – usually because they own land in the direct vicinity).
The issue was whether the PCC was a public body. It was not, it was a hybrid public body; it had no connection to government and existed for religious purposes. In this context it was not acting as a public body. Stated obiter that bodies considered to be “public bodies” for the purposes of the HRA will generally also be the kind of bodies that are amenable to judicial review.
The British publisher of the “little red schoolbook”, a revolutionary handbook for schoolchildren, was found guilty of publishing obscene books for monetary gain. He appealed to the ECtHR on a number of grounds, including a violation of Article 10.
1. Freedom of expression has a wide interpretation: it protects both favourablyreceived ideas and those that may “offend, shock or disturb”.
A group of individuals opposed the process by which Germany could carry out interceptions of citizens’ phones.
Established the definition of a “victim” for the purpose of Article 34 ECHR. The law related to all Germans and they therefore fell within the class of victim.
2. Protection of health and morals is a legitimate aim. Handyside was not successful in his appeal.
1. The state's armed forces deployed abroad could fall within the Court's jurisdiction under Article 1 ECHR. Smith, Ellis, Allbutt and Redpath v Ministry of Defence [2013]
The relatives of UK soldiers killed in Iraq claimed that the MoD had provided inadequate equipment, breaching Article 2 ECHR by failing to take reasonable steps to protect the soldiers against foreseeable risks.
24
2. The Courts can review whether there has been a breach of Article 2, but this depends on the circumstances – procurement decisions might be reviewable, but some wartime decisions would not be appropriate for review by the Courts. The court could not impose unrealistic or excessively burdensome requirements. “Combat immunity” was also considered, this should be narrowly construed and did not apply to failures at the planning stage or to preparations for active combat.
HUMAN RIGHTS IN THE UK AND USING THE HUMAN RIGHTS ACT 1998
ADDITIONAL CASES CASE
FACTS
PRINCIPLE
A UK citizen was arrested by US soldiers in Iraq and placed in a Basra prison (run by British forces) for several years. During his internment, he was deprived of his British citizenship. When he was released, he sought to challenge the removal of his citizenship but failed, and then progressed to challenge his detention as a violation of his human rights.
Al-Jedda v UK [2011]
This concerned various test cases from over 2,000 Iraqis claiming human rights violations against them during the occupation of Iraq. It was claimed that these fell under UK jurisdiction as a result of Article 1 ECHR. Examples: • Al-Saadoon & • Ors v Secretary of State for • Defence [2016]
Mr Khalaf’s death in a petrol queue managed by British troops. Mr Taleb’s death after failing to stop at a crossroads and being shot by British troops. Mr Karim’s death during a raid on his house by British troops (but note that US-led operations using British troops did not qualify). Individuals who were first detained and then killed fell under the jurisdiction, but individuals who were simply killed would not (e.g. Mr Awdeh’s death by a swerving British Army truck did not qualify). The court stated that the ECtHR would have to resolve this apparent illogicality.
25
Military bases, and occupied territories (as in Al-Skeini) are within the jurisdiction of the UK for the purposes of Article 1 ECHR. The UK has a duty under Article 1 to “secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of [the] Convention”. This duty had been breached and a compensation order was made. COMPARE with Al-Skeini and AlSaadoon For the purposes of Article 1 ECHR, if a state's agent has authority and control over an individual within the state's jurisdiction, then Article 1 necessarily covers the use of lethal force against that individual. NOTE: This follows Al-Skeini, but Lloyd Jones LJ here did not think that the effect of Al-Skeini is “to establish a principle of extra-territorial jurisdiction under Article 1 to the effect that whenever and wherever a state which is a contracting party to the Convention uses physical force it must do so in a way that does not violate Convention rights.” Although the court agreed that it is possible for an individual who is not detained but who is in occupied territory to be under the state's jurisdiction, this is a question of fact and degree as to the level of authority and control the state exercises. COMPARE with Al-Jedda and AlSkeini
HUMAN RIGHTS IN THE UK AND USING THE HUMAN RIGHTS ACT 1998
CASE
Al-Skeini v UK [2011]
Gillan & Quinton v UK [2010]
FACTS
PRINCIPLE
Claims were brought under the ECHR in respect of deaths caused by British soldiers during their military operations in Iraq. It was argued that there was no jurisdiction under the Convention for acts which took place abroad. An appeal was brought to the ECtHR against the House of Lords decision that the duty of investigation did not apply in foreign territories outside of Army bases. The Grand Chamber held that deaths of civilians caused by British military had to be investigated to satisfy the UK’s obligations under the ECHR.
Police stop and search powers under the Terrorism Act 2000 were held to have been used in breach of Article 8.
1. Article 1 ECHR, although not explicitly adopted by the HRA, applies to UK human rights claims. 2. Places under UK control, such as areas under military occupation count as within the jurisdiction for the purposes of ECHR. The UK had “control and authority” over areas of Southern Iraq and had obligations to its citizens.
Further clarified the “prescribed by law” test: a power should not be so broadly defined as to allow it to be applied arbitrarily. COMPARE with Sunday Times v UK
Kay v Lambeth London Borough Council [2006]
Khan v UK [2013]
Malone v Metropolitan Police Commissioner [1979]
A dispute over whether licence agreements in respect of council properties had become tenancies. The courts explored the extent to which Article 8 ECHR (respect for home) supports someone with no legal or equitable right to remain in occupation of premises.
A listening device had been installed by the police at a time when there was no statutory regulation concerning such procedures. Evidence gathered from tape recordings was used to convict Mr Khan of drugs offences. It became evident during a trial that the police had intercepted the phone calls of the defendant. Malone sought declarations that this was unlawful. However, the Court held that there was no law forbidding the conduct.
26
Where the ECtHR has decided a case in a way that conflicts with the decision of a senior domestic court, the domestic court’s decision should be preferred. National authorities are given a “margin of appreciation”. The ECtHR understands that national authorities are in a better position to apply legal principles in a domestic context.
This was a breach of Article 8, as it was not “in accordance with the law”. NOTE: legislation has subsequently been enacted to permit surveillance.
1. There is no right of privacy in English law. 2. There is no right of property in words transmitted by telephone. Continued overleaf
HUMAN RIGHTS IN THE UK AND USING THE HUMAN RIGHTS ACT 1998
CASE
Malone v Metropolitan Police Commissioner (Continued)
Malone v UK [1984]
Poplar Housing and Regeneration Community Association v Donoghue [2001]
R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001]
R (Heather) v Leonard Cheshire [2002]
FACTS
PRINCIPLE
NOTE: this case was decided prior to the HRA 1998. At this time the ECHR had no domestic legal status and so no action could be founded on it. Subsequently Malone brought a case under the ECHR.
This case was Malone’s appeal to the ECtHR following his lack of success against the Metropolitan Police Commissioner (see above). Poplar Housing (a social housing provider) had taken over local authority housing and were providing similar services to those previously offered by the council. A tenant threatened with eviction argued that Poplar was a public body and that its actions impinged on her rights under s.6 HRA.
A review was brought against the Secretary of State’s decision on planning matters where he had also been in consultations formulating planning policy.
A charity providing care home accommodation redeveloped a care home to turn it into a high dependency unit. This rendered it unsuitable for some existing residents. They brought an action claiming breach of their Article 8 ECHR right to a home. The first issue was whether the charity was a public body.
27
3. Although no law authorised telephone tapping, there was no law that prohibited it. The courts will not enforce a rule not found in law. COMPARE with Entick v Carrington: this decision arguably contradicts Entick as it allowed the Executive to do something which was not expressly provided for in law. The interference was not “in accordance with the law”, so was in breach of Article 8.
Poplar were “enmeshed” with the local authority and were acting in the public sphere, so were deemed to be a hybrid public authority. COMPARE with R (Heather) Leonard Cheshire and YL Birmingham CC
v v
In a democracy, where judicial review is available the courts have sufficient oversight and control over administrative decisions to ensure compliance with Article 6(1) ECHR. A government minister may be both a policy maker and decision taker. It is not necessary for the minister to act impartially when making decisions based on his/her policy, but all acts must be lawful. 1. Hybrid public authorities will usually be bodies exercising statutory powers. 2. The care home in this case was not enmeshed with the local authority or fulfilling its functions, so was not deemed to be a hybrid public authority. COMPARE with Poplar v Donoghue and YL v Birmingham CC
HUMAN RIGHTS IN THE UK AND USING THE HUMAN RIGHTS ACT 1998
CASE
R (Weaver) v London and Quadrant Housing Trust [2009]
R v Special Adjudicator (ex parte Ullah) [2004]
Smith and Grady v United Kingdom [1999]
FACTS
PRINCIPLE
A housing association evicted one of its tenants for being in arrears on rent payments. The tenant sought judicial review, claiming eviction would interfere with her human rights. The housing association claimed that it was not a public body.
Where some of the actions a body performs are public, it may be considered a public body. The housing association was partly state funded, and was a hybrid public body and subject to judicial review, but here there was no breach of human rights.
Ullah attempted to rely on the ECHR to prevent being deported to Pakistan, where he said he would be unable to practise his religion. The court found that he could practise, they left open the possibility that the case might have been decided differently had there been clear evidence of a denial of his right to practise his religion.
States have a right to control entry to their borders subject to their treaty obligations. The “duty of national courts is to keep pace with Strasbourg jurisprudence as it evolves over time”. Domestic courts should provide as much protection as is available under the ECHR but are not required to provide more protection.
Smith and Grady were discharged from the RAF following admissions that they were gay. The MoD had a blanket policy excluding homosexuals from military service, which it purported to justify on the grounds of morale and operational effectiveness. Smith and Grady contended that this breached their rights to respect for their private lives and nondiscrimination under Articles 8 and 14 ECHR.
1. Article 8 ECHR had been violated without justification. A blanket policy against the employment of homosexuals was a breach of the ECHR. 2. The applicants could only succeed in an application for judicial review if they could show that the decisions were irrational. This was a high bar which they could not satisfy. The courts could not review the substance of the policy or its proportionality. COMPARE with GCHQ
YL v Birmingham City Council [2007]
The Court was asked to decide whether a private care home was acting as a public authority.
28
The private care home in this case was not carrying out actions “of a public nature” pursuant to s.6(3) HRA. COMPARE with Poplar v Donoghue and R (Heather) v Leonard Cheshire