Before the Human Rights Act

• R v Ministry of Defence, ex p Smith [1996] QB 517: The applicants were discharged from the armed forces under a policy that being homosexual was incompatible with serving in the armed forces.  The Human Rights Act was not yet in force.  The applicants claimed that this policy was ‘irrational’ on traditional Wednesbury principles.  The Court of Appeal rejected this argument.   In the human rights context, the greater the interference with human rights, the more the courts will require by way of justification; but the courts could still only interfere if the decision was outside the range of reasonable responses open to the decision-maker.
• Smith and Grady v UK (1999) Application 33985/96 (European Court of Human Rights 27.09.99): The Court found that Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy before a national authority) of the Convention had been violated in the case of the applicants in ex p Smith (above).  The question of whether the discharge policy violated Article 8 could not properly be answered by a court where the only issue was irrationality, as the threshold of irrationality was so high that any consideration of necessity and proportionality were effectively precluded.
• R v Home Secretary, ex p Venables and Thomson [1998] AC 407: The applicants alleged that the Home Secretary, in exercising his statutory power to set the tariff period for child murderers, had taken an irrelevant consideration into account (namely, a newspaper campaign calling for a long tariff).  The House of Lords quashed the Home Secretary’s tariff decision.  They held, inter alia, that in fixing the tariff, the Home Secretary is carrying out a classic judicial function (contrary to the separation of powers).  Parliament must be assumed to have entrusted him with that power on the supposition he would not act contrary to fundamental principles governing the administration of justice (including the natural justice duty of ignoring media campaigns designed to influence him).
• V v United Kingdom Application no. 24888/94 (European Court of Human Rights, 16.12.99) (On the same day, the Court delivered a similar judgment in T v United Kingdom Application 24724/94): The applicants in ex p Venables and Thompson took their case to Strasbourg, alleging Convention breaches in respect of both their criminal trials and their sentences.  The Court did not consider that their sentences breached Article 3 (inhumane and degrading treatment), but found that they breached Article 6.  The Home Secretary’s setting of the tariff is a sentencing exercise to which Article 6(1) applies.  The Article 6(1) requirement of an independent tribunal means independent of the parties in the case and independent of the executive.  Since the Home Secretary is clearly not independent of the executive, Article 6 was violated.  The Court also found a breach of Article 5(4) (the applicants had no opportunity to have the continued lawfulness of their detention determined by a judicial body). 

After the Human Rights Act

• R (Anderson) v Home Secretary [2002] UKHL 46:  The House of Lords decided that, in setting the minimum period to be served by an adult mandatory life-sentence prisoner (the tariff period) under s 29 Crime (Sentences) Act 1997, the Home Secretary is carrying out a sentencing function.  Since sentencing is part of the ‘trial’ for Article 6(1) ECHR purposes, tariff-fixing must be carried out by an independent and impartial tribunal, which the Home Secretary is not.  The House thus issued a s 4 Human Rights Act declaration of incompatibility with respect to s 29, and refused to use s 3 Human Rights Act to reword the Home Secretary’s tariff-setting power as a duty to follow the trial judge’s recommendation. 

Section 3 of the Human Rights Act

• Ghaidan v Godin-Mendoza [2004] UKHL 30: The House of Lords used s 3 Human Rights Act to ‘reinterpret’ The Rent Act 1977 Schedule 1 Paragraph 2, so as to make survivorship rights in respect of statutory tenancies apply to cohabiting same-sex couples, and not just to those who lived together as husband and wife.  The House of Lords reached that conclusion even though the legislation only gave survivorship rights to a person ‘living with the original tenant as his or her wife or husband’. The case shows the willingness of the judges to use s 3 of the Human Rights Act to depart from legislation. But they will only do so to give effect to Convention Rights, and they will not do so if the proposed reading of legislation runs contrary to a ‘fundamental feature’ of the legislation.
• R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30: A statutory bereavement allowance (by way of deduction from income tax liability) was payable only to widows.  A widower claimed that the refusal of the Inland Revenue to give him a similar allowance affected his Article 1 Protocol 1 ECHR right (to peaceful enjoyment of possessions) and breached Article 14 ECHR (non-discrimination).  The House of Lords inter alia rejected the claimant’s argument that s 3 Human Rights Act could be used to extend the statutory provision for bereavement allowance so as to include widowers (see [14] – [19]).
• R (Hooper) v Work and Pensions Secretary [2005] UKHL 29: A similar problem to R (Wilkinson) involved discrimination, contrary to Article 14 ECHR, between widows and widowers as regards widows’ benefits.  The claimants here argued this problem could be solved if the Work and Pensions Secretary used the common law power of the Crown to make discretionary payments to give money to widowers matching widows’ statutory benefits.  The House of Lords rejected this approach.  If Parliament established a discriminatory scheme of benefits for widows and not widowers, Ministers could not avoid that law by paying equal benefit to widowers under a common law power to make discretionary payments.  s 6(2) Human Rights Act gives primacy to Parliamentary sovereignty over Convention rights.   

Article 6 of the Convention

• R (Alconbury) v Environment Secretary [2001] UKHL 23: The House of Lords considered the compatibility of certain statutory powers of the Environment Secretary regarding planning matters with the Article 6(1) ECHR (see pp 173-6 for an outline of the planning process). The Lords held that there was no breach of Article 6(1).  Where administrative decisions concerning civil rights were taken by elected officials subject to supervision by the courts in judicial review, regard must be had to both stages.  The question was whether the reviewing court had sufficient control to ensure Article 6(1) compliance.  Where the decision is one of administrative policy (such as planning), the present supervisory jurisdiction over legality and procedures is adequate to ensure Article 6(1) is complied with.
• Begum v Tower Hamlets LBC [2003] UKHL 5: Begum was homeless, and the Council offered her accommodation which she said was unacceptable. The Council’s rehousing manager conducted a review and decided that Begum should have accepted the flat. Begum appealed on the ground that she had not had a hearing before an independent tribunal, because the rehousing manager was not independent. The House of Lords held that the housing allocation decision was a ‘determination of civil rights’, so that Art 6 of the Convention applied. But they held that she had had a fair hearing before an independent tribunal, even though the rehousing manager was not independent. The whole review procedure (the reviewing officer's decision plus an appeal to the County Court (an independent tribunal) on a point of law) provided the protections required by Art 6. Where administrative decisions determine civil rights, Article 6 does not necessarilyrequire an independent tribunal to make the determination in the first instance; Art 6 is fulfilled so long as adequate fairness safeguards are in place, and there is ultimate control of the determination by a court with adequate jurisdiction according to the nature of the case.

Proportionality

• R v Oakes [1986] 1 SCR 103 (Canadian Supreme Court): A statute provided that once a person is found by the court to be in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking, and will be convicted of trafficking unless he proves to the contrary.  The Supreme Court was asked whether this was consistent with the Canadian Charter of Rights and Freedoms.  Since s 11(d) of the Charter (presumption of innocence) was clearly violated, the Supreme Court considered whether the statute was a reasonable limit prescribed by law and demonstrably justified in a democratic society (s 1 Charter).  The Chief Justice explains in a methodical fashion the meaning of proportionality for the purposes of the Charter. Proportionality has four components:(i) . . . The objective of the measures in question must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’ [69].

• (ii) . . . ‘the measures adopted . . . must be rationally connected to the objective. . . .’

• (iii) . . . ‘the means . . . should impair “as little as possible” the right or freedom in question. . . .’

• (iv) . . . ‘there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective. . .’ [70]

• Schräder v Hauptzollamt Gronau (Case 265/87) [1989] ECR 2237: Schräder argued that a levy imposed on cereals was unlawful because, inter alia, it infringed the principle of proportionality.  The European Court of Justice disagreed, and elaborated on the meaning of proportionality.  Proportionality in EU law requires that a measure must:(i) be appropriate and necessary for meeting legitimate objectives;

• (ii) be the least onerous appropriate measure being chosen; and

• (iii) not impose burdens disproportionate to the aims pursued. 

• R (Huang) v Home Secretary [2007] UKHL 11: This case highlights the far-reaching judicial role ushered in by the Human Rights Act.  The House of Lords held that in deciding appeals on Convention grounds (Article 8) against refusals of leave to enter or remain, the appellate immigration authorities (including the Immigration Appeal Tribunal (IAT)) are not limited to a secondary function of reviewing the rationality and procedural propriety of the primary decision-maker’s decisions.  The IAT must decide for itself whether refusal of leave would prejudice family life in a manner sufficiently serious to amount to an Article 8 breach, taking into account all the factors weighing in favour of refusal.  There is no additional requirement that a case should be ‘exceptional’. 
• Bank Mellat v HM Treasury (No 2) [2013] UKSC 39: The Treasury had imposed financial restriction orders under the Counter-Terrorism Act 2008, preventing UK financial institutions from dealing with Bank Mellat. The Treasury imposed the orders without notifying the Bank beforehand, or giving them a hearing as to whether the orders should be imposed. The Supreme Court held, 5–4, that the orders were unlawful because they were a disproportionate interference with ‘peaceful enjoyment of possessions’, contrary to Art 1 of the first Protocol to the European Convention, and also that the common law of procedural fairness required the Treasury to consult the Bank before imposing the measures.

Subsidiarity and the margin of appreciation

• Handyside v UK Application no. 5493/72 (1976) 1 EHRR 737: Handyside was convicted under the Obscene Publications Act 1959 for the publication in the UK of a Danish sex education manual.  Before the European Court of Human Rights, he alleged his right to freedom of expression (Article 10 ECHR) had been infringed.  The Court found Article 10 had not been infringed.  The Convention leaves it to Contracting States in the first instance to secure Convention rights.  The States have a margin of appreciation in respect of measures limiting the protected freedoms, as state authorities are better placed than the Strasbourg court to determine what restrictions on freedoms were needed.  The Strasbourg court has only a supervisory (rather than original) jurisdiction in deciding how Article 10 ought to be restricted; the English authorities had not acted outside their margin of appreciation in this case.
• Sahin v Turkey Application no. 44774/98 (2005) 41 EHRR 8: A Turkish medical student was excluded from lectures because she insisted on wearing an Islamic headscarf, contrary to the medical school’s rules.  She claimed her Article 9 ECHR right was infringed (freedom of thought, conscience and religion).  The European Court of Human Rights disagreed. The role of the Convention machinery was subsidiary.  In deciding whether restrictions on freedom of religion were necessary for protecting public order and the rights and freedoms of others, national authorities had a margin of appreciation.  Although the margin of appreciation goes hand-in-hand with a European supervision, in this case the Turkish authorities had not exceeded their discretion.   As the Grand Chamber affirmed, national authorities have special importance where questions concerning the state-religion relationship arise, as this is a matter on which opinion in a democratic society may reasonably differ widely.  The Grand Chamber also rejected the applicant’s claim that her Article 2 Protocol 1 right to education had been violated.

• R (Nicklinson) v Ministry of Justice [2014] UKSC 38: The claimants asked for a declaration that the Suicide Act 1961 s 2 (making it an offence to assist someone in committing suicide) was incompatible with Art 8 of the Convention. The Strasbourg Court had previously held that contracting states have a wide margin of appreciation in dealing with assisted suicide, and that the UK laws were within that margin (Pretty v United Kingdom (2002) 35 EHRR 1). In Nicklinson, Lord Sumption, Lord Hughes, Lord Clarke and Lord Reed held that the Suicide Act was compatible with Art 8. Lord Neuberger, Lord Wilson and Lord Mance held that before issuing a declaration that the Suicide Act was incompatible with Art 8, the Supreme Court ‘should accord Parliament the opportunity of considering’ whether to amend it (Lord Neuberger [113]). Baroness Hale and Lord Kerr would have declared that s 2 of the Suicide Act is incompatible with Art 8 of the Convention. There was, as a result, a 7-2 majority (Lord Sumption, Lord Hughes, Lord Clarke and Lord Reed, Lord Neuberger, Lord Wilson and Lord Mance) against declaring the Suicide Act incompatible with Art 8. But there was a 5-4 majority (Lord Neuberger, Lord Wilson, Lord Mance, Baroness Hale and Lord Kerr) in favour of the view that the UK courts should be prepared under the Human Rights Act to find a viola­tion of a Convention right, in a case in which the Strasbourg Court had held that there was no violation of the Convention because the action in question was within the margin of appreciation.
• Hirst v UK (No 2) Application no. 74025/01 (2006) 42 EHRR 41: The Representation of the People Act 1983 provides that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence …is legally incapable of voting at any parliamentary or local government election’ (s 3(1)). Article 3 of the First Protocol to the ECHR provides that ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ In Hirst v UK, a Grand Chamber of the European Court of Human rights held that the prohibition on voting by convicted prisoners was a violation of that Article. The majority held that the right to vote was not absolute [60], and that Contracting States have a ‘wide’ margin of appreciation [61], but that the Representation of the People Act ‘as it was an automatic blanket ban imposed on all convicted prisoners which was arbitrary in its effects’ [76], and was ‘outside any acceptable margin of appreciation, however wide that margin might be’ [82]. The Court did not say what restrictions on voting by prisoners might be compatible with the Convention [84].