A Hurrah for the HRA? Examining Human Rights Protection in Judicial Review

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INTRODUCTION

The Human Rights Act 1998 (HRA) was derived from the ratified European Convention of Human Rights (ECHR), which was established by the Council of Europe, of which the United Kingdom (UK) is a member.[1] This Act has given members of the public the opportunity to report any human rights violations in a domestic capacity, which was revolutionary, seeing that they did not have the same opportunity before this. The HRA has introduced the possibility of a rights-based judicial review via the proportionality test, as established in Bank Mellat.[2]

This article aims to demonstrate the overwhelmingly positive impact of the HRA on the protection of human rights in judicial review because not only did the HRA entrench judicial review, but it has also proved to be better in protecting rights via proportionality review as opposed to the ‘Wednesbury unreasonableness’-driven irrationality review.[3] It has also created a seamless connection between the UK and the European Court of Human Rights (ECtHR) in Strasbourg.

THE HRA, JUDICIAL REVIEW, AND INTERDEPENDENCE

It is incontestable that the HRA has significantly protected human rights in judicial review because the HRA was responsible for the existence of judicial review in the first place. The decision in Alconbury[4] explored how section 6 of the HRA entrenches judicial review, as it mandates for the judicial scrutiny of governmental actions as well as the existence of an independent and impartial tribunal.[5]Judicial review fulfils these obligations seamlessly.

If judicial review was eradicated, everyone would be deprived of their section 6 rights, which cannot happen. This entrenchment imposes an almost symbiotic relationship between the HRA and judicial review, as one cannot exist without the other. Judicial review has always been perceived as a way for the courts to focus more on human rights, and the HRA keeps it alive by simply existing – consequently, protecting human rights in this constitutionally-regarded practice.

THE HRA AND WEDNESBURY UNREASONABLENESS

That said, there have been instances where the approach taken by the HRA, as well as Wednesbury unreasonableness, are conflicting. This is shown in Daly,[6] where the disregard for the prisoners’ confidentiality was both irrational (as per Wednesbury unreasonableness) and disproportionate (as per Article 8 HRA).[7] The issue precipitates, therefore, as to which approach is better suited to defend and protect Daly’s rights.

Lord Bingham claimed that there would not have been a difference whether the HRA approach or the Wednesbury approach was used, rendering the HRA almost useless when it comes to an overlap between HRA rights and common law rights.[8] However, the case of Smith & Grady[9] shows that the ‘Anxious Scrutiny Wednesbury’ approach[10] is not enough to protect human rights. This was primarily because the courts were hesitant to render the homophobic military code irrational as the Parliament supports military forces.

This judicial deference in the name of upholding the separation of powers and parliamentary sovereignty creates a limitation on the domestic courts’ ability to protect human rights. The HRA, which is deeply connected to the ECHR, gets rid of this barrier.

In Smith & Grady v UK,[11] the ECtHR introduced a more scrutinising approach to human rights than the ‘Anxious Scrutiny Wednesbury’ approach – the decision-makers must have ‘taken leave of their senses’.[12] In the ECtHR, it was found that Smith & Grady’s Articles 8 and 13 rights were infringed. This would not have been possible if the case was decided in domestic courts.

This translates well into the HRA being a bridge between the domestic observation of human rights and the ECtHR, allowing for the protection of vulnerable individuals’ rights in an international scope.

THE HRA AND ITS INTERNATIONAL SCOPE

The judgement in Chahal[13] showed the striking difference between qualified and absolute rights, as the wording of Article 3 HRA (prohibition of torture) was made to be the focus of this decision.[14] Because of the definitiveness given by the phrase ‘absolutely necessary’,[15] Chahal’s rights were observed by the government and he was therefore not sent back to his country where he would have likely been tortured. Al-Skeini[16] goes out even further, drawing our attention to the possibility of having a ‘legal vacuum’,[17] and how the HRA seeks to avoid this from happening – especially in instances where territories are concerned.

The British troops being the de facto leaders of their secured territory not only gives them sovereignty, but also the responsibility to uphold the rights of that territory’s inhabitants via the HRA. The international scope of the HRA has ensured protection of human rights for people who are most vulnerable, even if they are not necessarily British citizens. Section 6(3)(b) HRA’s focus on ‘public function’ has led to some disagreement and confusion now that ‘contracted out’ rights are involved.[18]

THE HRA AND ‘CONTRACTED OUT’ RIGHTS

The difference between the decisions in Poplar Housing[19] and Leonard Cheshire[20] was mainly due to whether the legal obligation was fully ‘contracted out’[21] or not. This arguably sets a limitation as to the HRA’s protection of human rights in judicial review, seeing that this grey area has caused  a human rights barrier to arise. Nowadays, one has to establish if a private institution is carrying out a public function, making the process longer and more complicated.

The Supreme Court’s decision in YL v Birmingham City Council,[22]however, has embraced that grey area and introduced a positive change in the Housing and Social Care Act.[23] Lord Bingham and Lady Hale’s dissents which were, as McDermont observes, in compliance with a paternalistic approach[24] and a dependency model[25] respectively.[26] They both argued that a publicly-funded public body carrying out a public statutory obligation must be deemed as a ‘functional public body’, eradicating the majority’s judicial economising approach,[27]having insisted that Southern Cross was ‘neither a charity or a philanthropist’[28] as it was a for-profit organisation that just happened to carry out a “public” function.

This established grey area has led to the modification of section 141(1) of the Housing and Social Services Act, which now states that any accommodation provider in the care industry is automatically serving a public function, making them responsible for housing vulnerable individuals.[29] These individuals’ right to housing may not be ensured by Article 6 HRA, as shown in Runa Begum,[30]  but this new focus on public function via section 6(3)(b) HRA[31]gives them the fundamental right to be cared for which retrospectively protects their right to life (Article 2 HRA) because rendering these vulnerable people homeless and uncared for is arguably equivalent to the State letting them die.[32]

CONCLUSION

Overall, the HRA has had a positive impact on the protection of human rights in judicial review, seeing that it has ensured the permanent use of judicial review and protection of vulnerable persons, whilst acting as a bridge between international and domestic human rights protection institutions. This does not mean that the HRA is inherently perfect, but it has definitely acted as a catalyst in the prioritisation of human rights in the UK.


[1] Human Rights Act 1998.

[2] Bank Mellat v HM Treasury (No. 2) [2013] UKSC 38.

[3] Wednesbury unreasonableness refers to irrationality as grounds for judicial review. It entails that judicial review is possible if the actions taken by public authorities are unreasonable (or irrational) under the statutory powers that they have been given. There are three approaches to irrationality, which are as follows: Super-Wednesbury, Standard Wednesbury, and Anxious Scrutiny Wednesbury.

[4] R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23.

[5] HRA (n 1), s 6.

[6] R (Daly) v Secretary of State for the Home Department [2001] UKHL 26.

[7] HRA (n 1), Article 8.

[8] Daly (n 6), [27].

[9] R v Ministry of Defence, ex parte Smith and Grady [1996] QB 517.

[10] The Anxious Scrutiny Wednesbury approach, as mentioned in (n 3), is usually brought on if common law constitutional rights are infringed. This usually results in judicial interference as opposed to deference (which is more associated with the Super-Wednesbury approach).

[11] Smith & Grady v United Kingdom (2000) 9 EHRR 493.

[12] ibid [132].

[13] Chahal v United Kingdom (1997) 23 EHRR 413.

[14] HRA (n 1), Article 3.

[15] ibid [2].

[16] R (Al-Skeini) v United Kingdom (2011) 53 EHRR 18.

[17] R (Al-Skeini) v Defence Secretary [2007] UKHL 26, [194] in ibid, [80].

[18] HRA (n 1), s 6(3)(b).

[19] Poplar Housing v Donoghue [2001] EWCA Civ 595.

[20] R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366.

[21] The concept of ‘contracting out’ refers to how the State regulates housing (as well as other public functions) by contracting them out (or outsourcing) to private providers, after having been conferred this statutory duty by Parliament.

[22] [2007] UKHL 27.

[23] Health and Social Care Act 2008

[24] The paternalistic approach revolves around the idea that if vulnerable individuals did not have any other source of accommodation, the State automatically assumes a ‘social welfare responsibility’ to fund their housing and care. In that respect, if the government is paying for these individuals’ care, Southern Cross’ actions should be amenable to judicial review.

[25] The dependency model refers to the collective responsibility that ‘publicness’ and state funding implies – vulnerable people are actively depending on the State to do their jobs (i.e. ensuring accommodation to those who need it), thus making it of public interest.

[26] Morag McDermont, ‘Commentary on YL v Birmingham City Council and Others’ in Erika Rackley, Brenda Hale, Rosemary Hunter and Clare McGlynn, Feminist Judgements: From Theory to Practice (Oxford Hart Publishing 2010), 311-328.

[27] The judicial economising approach is a juristic categorisation of decisions as economic and, therefore, in the private sphere, taking them outside the bounds of public action. The court creates a zone of non-interference around bodies not thought to be state actors, almost immunising them from constitutional constraints.

[28] Poplar Housing (n 19), [26]-[27].

[29] Heather (n 20), section 141(1).

[30] Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5.

[31] HRA (n 1).

[32] HRA (n 1), Article 2.

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