Spelsbury Council and Human Rights - Essay Example

Administrative Law Ans Tracy’s action for judicial review of the decision of the Directors of the limited liability Company may not be successful. Firstly, an action for judicial review can only be brought against the decision of a public body, not a limited liability corporation.1 The “limited liability”1a aspect would help the Directors to escape liability for civil or criminal actions by taking shelter behind the corporate veil, therefore they will be indemnified from civil action such as a judicial review that may be initiated by Tracy. Under the law, the new corporation that has taken over the function of the Spelsbury District Council has moved from the status of “state” to “person”, which are the only two groups in society that are assumed under the European Convention of Human Rights, which aims to protect the rights of “people” from the “state”. Thus, when a judicial review process is considered, the Spelsbury Council would clearly fall under the category of “state” and Tracy would be “person” whose rights have to be protected. However, since the limited liability1b aspects impart the status of personhood upon such corporations that enjoy its benefits, therefore the Directors of the new company would be absolved of responsibility for civil actions against them because the corporation itself would be considered a person, just like Tracy, thereby blurring the distinction that allows a judicial review process to proceed against a clearly defined public body. However, since the limited liability company has been set up to carry out a public function that was originally carried out by the Spelsbury District Council and for the benefit of the public, it is likely that the courts may be amenable on this aspect of the case and Tracy may be allowed to seek permission from the High Court to ask for a judicial review of the decision.2 Section 31 of the Supreme Court Act of 1981 governs the judicial review process in England, whereby the question of permission being granted by the High Court may be subject to whether the Court “…….considers that the applicant has a sufficient interest in the matter to which the application relates.”3 In the case of R v Inland Revenue Commission ex parte national Federation of Self Employed4 Lord Wilberforce set out three separate criteria on deciding whether sufficient interest exists and one of these was the relative positions of the defendant and the plaintiff and the nature of the breach that is alleged to have been committed. In this case, the decision has been made by a body that is not strictly a public body, i.e, it is not the Spelsbury District Council. Therefore the nature of the relationship between the parties is not an individual versus a public body, but rather a dispute between an individual and a limited liability corporation in relation to a matter that is not life threatening or a serious infringement of Tracy’s fundamental rights from the point of view of the impact made upon it by the administrative process. Such a dispute may be deemed to be more relevant under the context of alternative remedies that may be sought under common law, rather than a judicial review process. In a subjective matter such as a decision on whether or not to include an artwork in an exhibition, the challenge to the law making or decision making process by public authorities which is the grounds for a judicial review, may not be satisfied in this case. The decision cannot be considered to be aberrant, as established in R v Civil Service Appeal Board ex parte Cunningham5 neither can it be classified as a decision threatening Tracy’s personal liberty as in R v Secretary of State for the Home Department, ex parte Doody6, in which Lord Mustill also laid out the established view that there is no duty to give reasons unless fairness dictates that such reasons be given.7 Moreover, at the outset, a judicial review can only challenge the manner in which the decision has been made and whether it is in accordance with the law, it may not change the outcome and ensure that the decision to exclude Tracy’s works is changed. Therefore, it may not serve to achieve the outcome that Tracy wants8 and is not a recommended course of action. Craig also points out that bodies that are challenged for their decisions are required to provide reasons for them, but this general duty is based on substance, not form9, therefore judicial review as a mechanism cannot be effective in deciding cases like Tracy’s which would require an ad hoc decision based upon fairness rather than the legality of administrative action. (b) Tracy may have a stronger case in her favor if she seeks a judicial review under the European Convention of Human Rights. With the incorporation of the ECHR into UK law, British courts are obliged to give effect to the provisions contained therein. There is a good cause of action in Tracy’s fundamental right to freedom of expression being violated, since EC law has been breached. However, it is unlikely that this will affect the actual decision itself, neither is it likely to satisfy the grounds for judicial review laid out by Lord Diplock in the case of CCSU v Minister of State for Civil Service – (a) illegality (b) irrationality and (c) procedural impropriety.10 The Directors have provided Tracy with a reason for their refusal which cannot be deemed to be an irrational reason, neither does the decision involve any illegality or procedural impropriety, since the limited liability company is a legally constituted body carrying out public policy and also enjoys some protection against liability for its actions and decisions. Ans 2: Damien has excellent grounds for seeking a judicial review of the decision by the BDA. Article 8 of the European Convention of Human Rights, which has been incorporated into UK law in the form of the Human Rights Act of 1988, mandates that UK law must incorporate the respect for a private life, set out under Article 8. When Damien provided his blood, the Government body – the BDA assured him that his privacy would be respected and his anonymity would be preserved. But this is being violated in the new request that his identity is to be divulged and therefore there is a clear violation of his rights to privacy. For example, the case of Goodwin v UK11 involved the violation of Article 8, which was the right to privacy, where Godwin contended that the UK laws on transsexuals violated convention rights. The European Court held in his favor in this case, since there was a clear violation of the UK law on transsexuals in the right to privacy of individuals. First of all, the BDA is a public body, so the correct legal procedure to seek action against its decisions would be through a judicial review. Secondly the three criteria laid out by Lord Diplock12 must be applied to the decision in question in order to examine its validity, therefore judicial review is the appropriate procedure in this case, especially since the ECHR has been incorporated into UK law. The first principle laid out by Lord Diplock was that of irrationality where an irrational decision was defined as one “which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."13 However the decision by the BDA cannot be contested on this basis, in view of the fact that donated blood was found to be infected. But the decision of the BDA can definitely be contested on the basis of procedural impropriety and illegality since a public body has a statutory duty to ensure that the fundamental rights of individuals, as laid out in the ECHR are not infringed. The question that needs to be asked in this case is whether the discovery of some of the blood being infected justifies a violation of the fundamental rights to privacy of numerous other individuals who have given their blood on the condition of anonymity? According to Boulle, a rational decision must be a reasoned decision.14 Reason cannot justify the compromising of the privacy of numerous individuals on the basis of a few infected blood samples. It may also be noted that there are other courses of action open to the BDA, rather than requiring an all out policy mandating disclosure of identity of the donor in every case. The BDA could for example, revise its policy to state that in the event an infection develops or an anomaly is discovered, then identity of the donor may be required to be disclosed. Therefore, there are other options open to the BDA and reason does not fully justify the rationality of its decision to impose disclosure of the identity of the donor in every case. A major issue that arises in this case is also the question of procedural impropriety in changing the rules arbitrarily on a comprehensive, overall basis when initial consent for blood donations have been obtained under different premises. The procedural requirements that were in place when Damien first took the blood test were that his privacy would be respected, however the procedure has been changed, hence the question of impropriety does arise. Finally, the supremacy of European law will be an issue in this case. Since Section 3 of the Human Rights Act mandates the incorporation of the ECHR into UK law, therefore UK law and policy must be framed in accordance with it, hence the decision of the BDA could very well be violative of Article 8 of the ECHR that respects the privacy of Damien and others in his position. Section 6(1) of the Human Rights Act of 1988 also states that “it is unlawful for a public authority to act in a way which is incompatible with a convention right” and in this case, the decision of the BDA is clearly incompatible with Damien’s Convention right to his privacy and the right to have his identity kept secret unless it needs to be disclosed for a compelling health reason. As Lord Browne Wilkinson has pointed out, British judges have used their judicial power in several cases to protect what they consider as fundamental rights15 indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”16 Since the policy decision by the BDA impacts upon the fundamental rights to privacy of individuals such as Damien, it would qualify as one deserving of anxious scrutiny, since it deals with human rights. Moreover, after the introduction of the Human Rights Act, the process of judicial review has made a definite shift in favor of upholding individual rights, therefore Damien’s rights to privacy will have precedence before the Court. On this basis, Damien is therefore likely to have a very good chance to bring about a judicial review of the decision of the BDA. Ans 3: SWIC has excellent grounds under common law to file a case for judicial review of the decision of the Oxford City Council to refuse their application. Applying the principles laid out by Lord Diplock as stated above, the decision of the Council may be seen to be clearly violative on grounds of procedural impropriety, notably through the refusal to provide a reason for the decision. The process of judicial review could fail at the outset through the refusal of the administrative body to provide a decision, as laid out in Schedule 4 of the Government Trading Act of 1982. Such a facility for refusal could create the situation where, as stated by Swinton Thomas LJ - “….in the absence of reasons, it is impossible to make any judgments about his.”17 Under the rule of law, a decision made by a public authority must have the authority to back it up, especially the upholding of the royal prerogative18, thereby removing many administrative decisions from the sphere of judicial review through the refusal to provide a reason. However this could make a decision potentially unfair and capricious, as is also the case with the decision of the Oxford City Council and this principle was recognized in the case of Doody19, where a failure to give reasons was deemed to be valid grounds for a case of procedural impropriety by an administrative body. Several cases have also emphasized fairness as an underlying basis to require that administrative bodies provide reasons for their decisions20. The case of SWIC which has been distributing pamphlets without objections before but now finds itself restrained for no justifiable reason by the failure of an administrative body to grant it the necessary permit, could fall under the category of cases where there may be “something peculiar to the decision which in fairness calls for reasons."21 The court is likely to consider whether the refusal to provide a reason is itself fair, as was also clarified by Swinton Thomas LJ. It is likely that under the circumstances the refusal of the Oxford Council to provide valid reasons for their refusal could constitute unfairness and therefore there are good grounds to bring a case for procedural impropriety. While the generally accepted view is that an administrative body is not bound to give reasons for its decisions, as per Lord Mustill in the case of Doody.21a However, there are several instances when fairness will require that a reason be given, as also laid out by Sedley J in the case of R v Higher Education Funding Council, ex parte Institute of Dental Surgery .21b The requirement for providing reasons will be mandates especially in cases where decision appears to be aberrant, as was the case in R v Civil Service Appeal Board, ex parte Cunningham.21c In this case, the decision of the Oxford Council could qualify as aberrant, since it refuses to provide the permission for distribution of pamphlets to which no objections have been demonstrated by the public or anyone else. The inclusion of the Human Rights Act into the framework of UK law has also mandated the requirement for a fair trial as laid out under Article 6 and the freedom of expression as stated under Article of the ECHR, both of which would be relevant in this case and have been violated by the refusal of the Oxford Council to provide license to SWIC and their refusal to provide valid reasons for the same. In fact, an application for judicial review that invokes the provisions of Article 6 is likely to be even more successful because it is evident that in this case, SWIC has not been provided the opportunity to present their case before their application for consent was refused by the Council. Since the Human Rights Act specifically requires that Parliament legislation should be interpreted in such a manner as to give effect to the goals of the Convention22 and moreover requires that judges make a declaration of incompatibility when there is a violation23, it is likely that the judicial review procedure would be more successful in eliciting a remedy such as a quashing or prohibiting order, as opposed to an application for judicial review under the common law, where the court may accept that the Council has acted improperly but may not grant a remedy. Therefore, a better outcome may be expected by filing under the Human Rights Act. Ans 4: The case of Ridge v Baldwin concerned the dismissal of a constable who was not allowed the opportunity to present a case in his defense before he was asked to quit.24 In this case, the Court held that the appellant’s rights had been violated and that the respondents should have “informed the constable” of the grounds on which they were proceeding against him and “given him a proper opportunity to present his case in defence.”25 Therefore, the rights of the appellant to a fair trial were upheld by the Court. However, one important aspect that was raised in this case was the limitations of the judiciary as a collective unit26, in the conflict that is raised between the principles of natural justice vis a vis legislation passed by Parliament to regulate dismissal of county constables, as provided in the Municipal Corporations Act.27 Lord Reid also pointed out that the decision in the case of Local Government Board v Arlidge28 wherein it was clarified that in some cases, the eschewing of an individual’s rights may be justified in the larger public interest and this highlights the conflict between judicial powers to enforce individual rights as opposed to parliamentary legislation which is in favor of collective rights. Parliament is sovereign, as articulated by Oxford Professor A.V. Dicey who stated that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority.29 According to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities30. In cases involving such rights, the Courts have adopted a common law perspective and have implied that the courts have the right to independently assess Government actions in the areas impacting upon fundamental rights and where necessary, invalidate such infringing Government actions.31 In the case of R v Secretary of State, Lord Bridge clarified that in cases involving fundamental rights, the Courts are “perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.”32 However, the indivisibility of Parliamentary power requires that all exercise of Governmental power, including judicial review as a collective judicial function, be authorized by Parliament, since it is the source of all valid authority.33 As a result, the British power of judicial review would not include the power to invalidate Acts of Parliament, rather the Courts may only use their powers to constrain any abuse of powers by the other arms of Government, such as the legislative and executive branches34. But with the introduction of the Human Rights Act of 1988, there are some significant provisions that have been introduced. The Human Rights Act of 1988 incorporated the goals of the European Convention of Human Rights35 within the framework of national law, by including a provision that Parliament legislation is to be interpreted and read in such a manner as to give effect to the goals of the Convention36, while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights37. Therefore the Human Rights Act represents a strengthening of the power of judicial review and an enhancement of the judicial function. By allowing judges to make a declaration of incompatibility under Section 4, judges have been given added powers to contest decisions of public authorities and even challenge Parliament legislation, thereby enabling them to add teeth to the provision of ensuring a fair trial. The current existence of the Human Rights Act has resulted in significant changes within the UK, with the individual supremacy mandated by the European Convention often rising in conflict with established principles of UK law and statutes38. Therefore, the individual’s right to a fair hearing would have precedence over the administrative authority’s decision making powers. However, as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights.”39 Nevertheless, the Act does allow a more stringent judicial review as opposed to the earlier situation where a decision to refuse a fair hearing had to be so unreasonable that no reasonable decision maker would have come to it. However, after the introduction of the Human Rights Act, decisions which are deemed to be unfair or violative of individual rights will also be eligible for remedies under judicial review. Ministers and policy makers will now be made more accountable and demonstrate their adherence to the principles laid down in the European Convention, including the right to a fair trial. Moreover, the Act also allows several wider ranging issues to come up before the Courts for judicial issues, such as issues involving fundamental rights laid out in the European Convention, which would not have been eligible earlier for a judicial review. Thus the Act reinforces the principles of the right to a fair trial laid down in Ridge v Baldwin but widens the scope and context of its application. Bibliography Books/Articles: * Boulle, L, 1987. "Elements in the Crucible: Developing Public Law for the Future" 104 South African Law Journal at 104. * Craig, P.P., 1991. Administrative Law 3rd edn. Sweet and Maxwell * Craig, Paul, 1990. Public Law and Democracy in the United Kingdom and United States of America, pp 21-22 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471. * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 * Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397 * Stevens, R, 1999. “A loss of innocence: judicial independence and the separation of powers.” Oxford Journal of legal Studies, 19(3) page 365 * Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 Websites/Legislation: * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * http://www.judiciary.gov.uk/judgment_guidance/judicial_review/index.htm * http://www.dca.gov.uk/judicial/speeches/lcj030304.htm * http://www.publiclawproject.org.uk/simpleguide.html#3 * Human Rights Act of 1988 [online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm * Section 191(4) of the Municipal Corporations Act of 1882 * Section 31(3) of the Supreme Court Act of 1981 Cases: * CCSU v Minister of State for Civil Service (1985) AC 374 * Godwin v UK * Ghaidan v Godin Mendoza (2004) UKHL 30 * Local Government Board v Arlidge, 37 (1915) A.C. 120; 30 T.L.R. 672, H.L * R v Inland Revenue Commission ex parte national Fdeeration of Self Employed * R v Civil Service Appeal Board ex parte Cunningham (1991) 4 All ER 310 * R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. * R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 * R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349 * R v The Mayor and Commonalty and Citizens of the City of London ex parte Matson * Ridge v Baldwin [1964] AC 40 * R v Secretary of State for the Home Department, ex parte Brind (1991) 1 AC 696 * R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651 at 667C * R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769. Read More