Rights and Accountability 1024 First-Class Problem Question (awarded an 80)

Updated: Nov 3, 2020

By: Tavisha Sood


Ms. Malsafety is to be given legal advice concerning the impact the Sections of the Community Safety Act 2020 (Act 2020) might have on her human rights under the Human Rights Act 1998 (HRA), when read in correlation with Article 6, 14, 10, and Article 11. Assuming the judicial review application is brought forward within the set time limit, Ms. Malsafety will be advised on how to bring forward her Judicial Review Application and the chances of success of the said application.

(i) Standing

Under Section 7 of the HRA, Ms. Malsafety qualifies to be a ‘victim’ who would be directly affected by the Act 2020 due to its the ‘breach of duty’ under Section 6 of the HRA. We know this to be true since all three sections of the Act 2020, directly affect Ms. Malsafety’s rights; Specifically, under both Section 7(1)(a) and (b). Ms. Malsafety also has standing under Article 34 ECHR where “Any person, non-governmental organisation or a group of individuals” can bring forward a judicial review application. Furthermore, Mrs. Malsafety should also be informed that she cannot bring forward the application through Animal Justice due to the precedence set in Re CAJ [2005] and will have to bring forward the application individually. However, the Animal Justice group can act as an intervener and provide support (Referring to Re Ewart [2019], where Amnesty International acted as an intervenor and provided said support).

Since Ms. Malsafety qualifies under Section 7 of the HRA, she does not need to qualify under the Section 18(4) of the Judicature (NI) Act 1978 and RCJ Ord 53 where the applicant must have ‘a sufficient interest in the matter to which the application relates’.

(ii) Reviewability

Ms. Malsafety can bring forward her application basis the ‘Source of power’ test, whereby as long as the decision maker’s power was arising out of a statue, Lloyd LJ in Datafin [1987] stated how ‘the body is question will be subject to judicial review’.

Ms. Malsafety’s application qualifies for reviewability under the ‘Public Interest’ test as well. This is because Section 1 impedes on the public’s Freedom of Speech and Section 2 and 3 infringes on Article 6 for everyone involved in Animal Justice, not just Mrs. Malsafety. While the meaning of the ‘public interest’ is ‘vague and laden’ it’s application in Re Kirkpatrick Application [2003] has shown that judges are aware of its ‘laden’ nature and give it a ‘wide interpretation’.

An approach available for amenability is the Wednesbury Unreasonableness test. Ms. Malsafety’s case would fall under Substantive Wednesbury, under Sub-Wednesbury; the threshold being lowered due to the presence of violated Human Rights (R v Ministry of Defence [1996]). However, I would propose our client go down the proportionality principle since both give the same outcome, but proportionality has a ‘stronger analytical foundation’ (Gordon Anthony 2014).

Furthermore, the Act 2020 is clearly not consistent with the proportionality principle. Under section 2 of the HRA, the courts are ‘obliged’ to take into account the body of ECHR jurisprudence which includes the proportionality principle; this is beneficial since it requires for an intense judicial scrutiny of the substantive choices of the decision-maker (Re Martins Application [2003]). The key case that gave effect to the proportionality principle concerning the HRA is R (Daly) v Secretary of State for the Home Office [2001] that allows the court to take a four-limbed approach: “(i) whether the [decision’s] objective is sufficiently important to justify the limitation of the right or interest; (ii) whether [the decision] is rationally connected to the objective; (iii) whether a less intrusive [decision] could have been [taken]; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community” (Bank Mellat). Under the basis of questions (iii) and (iv), Ms. Malsafety has good standing since Section 2 and 3 both infringe on Ms. Malsafety’s right to a fair trial under Article 6 and because this is an absolute right, it can only be subject to rare limitations and is thus open to judicial review.

An obstruction to her amenability could be the “Ouster Clauses” whereby, due to Parliament Sovereignty and Separation of Powers, there is a hesitation to call into question the legislation passed by the Parliament. However, Article 6 ECHR has a range of procedural requirements that all revolve around the right of access to a court (Z v UK [2002]). Also, the precedence set in Perez de Rada Cavanilles v Spain [1998] clearly states that the public bodies cannot enjoy any ‘immunity’ from proceedings even under the ouster clauses. Since Section 2 and 3 clearly infringes on our client’s rights under Article 6, and other Human Rights such as Article 10, 11 and 14 the ouster clauses cannot oust judicial review in this case. Following the precedence set by Privacy International [2019], the High Court held that judicial review cannot be ousted by clause since it was ‘an essential balancing act to Parliament’s ability to make law under the Rule of Law’. Under Aston Cantlow PCC V Wallbank [2003], ‘core’ public authorities, such as the Minister (Home Secretary), has an obligation to uphold the HRA. Furthermore, the leading authority Anisminic [1969] has set solid precedence where any error of law by a public body is judicially reviewable.

(iii) Grounds for Review

Ms. Malsafety should be advised that she is challenging primary legislation and that this can be done through assessing the proportionality principle (her strongest argument) as potential grounds for judicial review, alongside the principle of fairness and illegality.

Ms. Malsafety should be advised that her first grounds for review is through the basis of illegality, allowing to courts to read the legislation, in light with Section 3 of the HRA, in a more ‘purposive and interpretive manner’. The courts would assess whether Ms. Malsafety’s ECHR rights have been engaged and ‘whether the legislation under review is/would breach those rights unless it is revised in an interpretive approach’ (Department for Social Development V MacGeagh [2006]). In our client’s case, the legislation is in direct breach of her rights under Article 6, 10, 11 and 14, in particular Section 1 of the Act 2020, is in direct breach of her Freedom of Assembly and Association, an ECHR stated in Article 11. Furthermore, Section 2 and 3 of the Act 2020, impedes her absolute right under Article 6 which means the court is likely to show less restraint in declaring the legislation ‘incompatible’.

Assessing the grounds of ‘illegality’, the court will also consider whether the decision-maker’s arrival at their decision was influenced through irrelevant consideration or through a failure to take account relevant considerations. In Ms. Malsafety’s case, the Act 2020 intends to persecute every member of the Animal Justice group whether or not they were involved in the damages caused during the rally. The government’s decision to deny everyone their rights under Article 11 and 10, including people who have not broken any laws, shows sufficient grounds for illegality. This is especially due to the fact that while these qualified rights might be open to limitations placed on them in the instance of ‘public safety’ or ‘public disorder’ these limitations are still subject to legality and proportionality.

A comparison can be made to the case of R v Lewisham London Borough Council [1988], whereby the House of Lords stated that it is wrong to use ‘statutory power to punish a body or person who has not broken any English law’.

Furthermore, the Act 2020 also impinges on her Freedom of Expression where Section 1 of Article 11 states how this right includes ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authorities regardless of frontiers’. However, while exceptions exist in the case of ‘public disorder’ or ‘public safety’, whereby limitations can be placed by the decision-maker, these are still subject to legality and proportionality.

The Section 2 of the HRA also binds the courts into ‘taking into account’ the ECHR case law and general principles of law when interpreting an Act of Parliament and thus Ms. Malsafety should be advised that she may be able to challenge the UK government actions under Article 6 of the ECHR which protects Right to a Fair Trial. In particular Section 3(c) states that everyone has a right to ‘defend themselves in person or through legal assistance of their own choosing’. These rights have been infringed upon by Section 2 of the Act 2020 in this scenario since it clearly states that the ‘Home Secretary can make regulations permitting evidence to be withheld from the defendant’. This impedes her rights under the Freedom of Information Act 2000. Section 1 details the general right of access to information to help the public authorities in that ‘any person making a request for information to a public authority is entitled to have that information communicated to him’.

Ms. Malsafety must also be advised that her denial of a fair trial under Article 6 is contrary to the Common Law Rules of Fairness as well. In particular, section 3(a) states that everyone has the ‘minimum right to be informed properly… the nature of the cause and the cause for accusation against him’. The denial of this right can be linked to the legitimate expectation of a fair hearing. This section also empowers ‘the Home Secretary to make Regulations permitting evidence to be withheld from the defendants who are charged with an offence under Section 1.’ Moreover, it also allows for the Home Secretary to appoint ‘Independent Advocates’, impinging on her absolute right. Following the ‘equality of arms’ principle, Ms. Malsafety’s right to a fair trial can also be impeded depending on the regulations made under section 2. If this is done, it can trigger the precedence by A v UK [2009], whereby if the decision of the court is solely based on the withheld evidence, it would be a violation of her rights under Article 6. However, Ms. Malsafety must be reminded that the government does have discretion when imposing limitation on absolute rights if it is to do with national security.

(iv) Remedies

Despite legislative supremacy, the HRA, is given a high degree of prioritisation through Section 4 and Section 3 of the HRA. However, since Ms. Malsafety is challenging Primary Legislation, the court’s remedy, if the legislation cannot be read compatibly with the HRA, will be a ‘declaration of incompatibility’. Section 4(a) clearly states that this does not however ‘affect the validity, continuing operation or enforcement’ of the provisions they challenge. However, usually when declarations of incompatibility are issued, the government uses this as a way of ensuring that the Parliament revises the legislation in a HRA compatible way.