Public Law and Human Rights II – Coursework

PART 1

Grounds for Challenging Decision of Council

Westbury Multiplex Cinema (WBC) can challenge the decision by Westbury Council on a number of grounds. The conditions include:

• Is there an illegal act (the state agency complies with the law and the related instructions for making a decision? Does the state agency understand the law? Is there an unreasonable delay? The state agency takes into account factors relevant or unrelated?)
• Is there an injustice (was there a consultation? Is there a bias? Does the state authority abuse its authority? Has the government not kept its promise?)
• Decide if it is unreasonable (in determining if it is unreasonable, no other public authority can do it)?
• Decide whether a violation of human rights is done (according to the Human Rights Act of 1998, does this decision include an individual’s rights? Will this decision disproportionately affect the human rights with national goals?)

Remedies

The remedies that are provided to redress the wrongs that are done to the common people by the administrators’ actions are categorized into two types including public law remedies and private law remedies.[1] The private law remedies include declarations, injunctions and actions for damages. Furthermore, the public law remedies include Writ of Mandamus, Writ of Certiorari and Writ of Prohibition.[2]

Private Law Remedies

In the United Kingdom, damages can be used as a remedy for judicial control in limited circumstances. Compensation cannot be received simply because the actions of state agencies are illegal. To incur losses, a person must (a) Recognize private acts of negligence or breach of legal obligations, or (b) claims under European law or the Human Rights Act 1998.[3] An injunction is a court order to prevent illegal actions of state institutions. The fact that a ban can be mandatory is not common, that is it forces a government agency to do something. However, in the modern law of the United Kingdom, consideration of administrative behaviour is a relatively minor approach. Furthermore, there is no availability of it before the crown.

The Crown Proceedings Act 1947 confirmed this position in accordance with section 21 clause (1). According to a recent decision by the English courts in the M v Home Office and another,[4] the scope of the ban has become quite common in English law. A statement is a court decision that clarifies the parties’ obligations and respective rights to the proceedings, without reaching a final decision, unlike other resources, the judge orders the parties not to take any action on the complaint. The origin of the shares in the law of the United Kingdom is said to be true. Initially, it was available only in the Court of the Chancellery, and at the request of the plaintiff, only relief could be announced.[5]

Public Law Remedies

In English law, ‘prerogative remedies’ refers to the writs of quo warranto, mandamus, prohibition, certiorari and habeas corpus. The writ of quo warranto has been ineffective and banned. Moreover, injunctions might be issued from the Division of Queen’s Bench. For remedies of public law, the Judicial Review’s forum in the Administrative Court of the United Kingdom is available for the individuals and parties to claim their damages and get compensation for any of the government department’s actions.[6]

Advise to Westbury Multiplex Cinema (WBC)

Considering the grounds for challenging the decision of Westbury Council and the remedies available, it can be advised to Westbury Multiplex Cinema that they can challenge the decision of Westbury Council in judicial review as the council has made an unjust decision by charging £2,200 and also it has violated the amount mentioned in the schedule i.e. £2,000. Furthermore, it is advised to Westbury Multiplex Cinema that they can get the public law remedy in judicial review from the Westbury Council through claiming in the High Court as well as in the Queen’s Bench Division.

PART 2

Introduction

On June 7, 2018, the Supreme Court of the United Kingdom decided a case, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland),[7] in which there were different opinions provided by Lady Hale, Lord Lloyd-Jones, Lady Black, Lord Reed, Lord Wilson, Lord Kerr and Lord Mance. In this case, issues relating to the abortion law’s compatibility in Northern Ireland with the European Convention on Human Rights (the convention or the ECHR) articles 8 and 3 were discussed. Also, Attorney General for Northern Ireland raised the procedural issue through challenging the Northern Ireland Human Rights Commission (NIHRC)’s standing for bringing such proceedings. In this part of the assessment, the reasoning of Lord Reed and Lord Kerr will be compared and contrast. In addition, the key focus will be on the legal standing, Article 3 ECHR and Article 8 ECHR.[8]

Discussion

Standing

Lord Kerr’s position was that the discussion on the Commission’s position began with the Belfast agreement and its impact on the National Intelligence Agency. The Act was enforced to implement the agreement reached in Belfast between the political parties in Northern Ireland on April 10 (1998). Lord Kerr stated that he explicitly considered that Article 71 (2) B did not limit the possibility for the Commission to take measures to determine the specific behaviour of a particular person.[9] Although it could be said that this might be a theoretical explanation of the reserve, its adoption would directly violate the spirit of the amendment.

Lord Kerr said that Article 13 of the European Court of Human Rights does not include the 1998 HRA work program since it was believed that the HRA itself of 1998 provided effective remedies. Furthermore, he added that after the event, the number of women who had to undergo a fatal foetal’s trauma of abnormality pregnancy or a pregnancy caused by rape or incest, they would claim a violation of their rights after the event. If the Northern Ireland Human Rights Commission (NIHRC) cannot file a complaint to protect the rights of these women due to their lack of qualifications, Lord Kerr stated that they would be deprived of the effective and effective remedies guaranteed by Article 13. Therefore, Lord Kerr believes that the NIHRC has the opportunity to present the current procedure.

On the other hand, Lord Reed believes that the NIHRC does not have the right to file a case. They are not identified by illegal actions or potential victims. The NIHRC is based on the strength of section 69 (5) (b) of the Northern Ireland Act 1998 to develop these procedures. According to section 71 (2C) (a) (ii), these procedures constitute a ‘human rights dispute’ and, therefore, are subject to section 71 (2B). According to section 71 (2B) and (2C), in the case of a complaint about human rights’ violation presented by the NIHRC, it is not necessarily a victim but should have illegal actions’ potential or actual victims related to the complaint.

Article 3 ECHR

Lord Kerr stated that the purpose of a criminal act or the purpose of a person or the reasons for his status has been studied, firstly, if not the only, to assess whether the appeal cannot meet the criteria of Article 3 The limit is exceeded for this reason or purpose. People could easily understand why this is so. Aggressive behaviour constitutes a violation of Article 3 and could become a condition of basic motivation, as it could lead to degrading or inhuman qualities. It is more difficult to understand how the motivation of the victim or the objective to which he is subject could translate an action that otherwise satisfies the criteria of article 3 to a state that does not meet the criteria of article 3. The point of view of Lord Kerr was considered relevant to Lord Reed because he stated that the risk of incompatibility with the rights of Article 3 is to give the state a positive obligation to avoid such risks. Lord Kerr said that if he chose not to violate Article 3, he would have concluded that there is no right balance between conflicting interests.

On the contrary, Lord Reed said that for the purposes of Article 3, decisions concerning A, B and C, in his opinion, could serve as a valuable guide. As in Ireland, the real effect of Northern Ireland law is that women must travel to other places if they wish to terminate the pregnancy. In general, it is forbidden to interrupt work for reasons unrelated to life-threatening or serious health risks, and also to give recommendations to doctors and other specialists regarding information and recommendations to be given to women who want to be fired. The guide recommends that healthcare professionals could provide information on legal abortion services in other jurisdictions for women who legally practice abortions in Northern Ireland, as well as their freedom to move there.[10] It also informs healthcare professionals that they are responsible for providing follow-up care and other support services for women who terminate their pregnancy outside Northern Ireland.

Article 8 ECHR

Lord Kerr concluded that in the case of balance training, the scale would seriously violate Article 8. According to current law, women’s autonomy is not considered. In addition to the limited circumstances allowed by the Acts of 1861 and 1945, severe criminal sanctions were applied to those who had aborted in Northern Ireland. Undoubtedly, this has a great impact on women who want to have abortions and on doctors who could help them. Abortion is available in most European countries if the fetus is fatally abnormal or if the pregnancy is caused by rape or incest. The ECtHR found that the weights presented in cases A, B and C does not exist in this more limited example. Lord Kerr is convinced that the preservation of the 1861 Act’s sections 58 and 59 and 1945 Act’s section 25 constitutes a violation of the European Convention on Human Rights Article 8. In addition, it would establish such provisions in appropriate cases. Furthermore, it would make an incompatibility’s declaration with respect to the provisions in the cases that involve fatal foetal abnormality or where due to incest or rape, the pregnancy has resulted.

On the other hand, Lord Reed agreed with Lord Mance with respect to article 8 and stated that incompatible statements cannot be made. At the beginning, he stressed the fact that the court repeatedly stated that contesting the validity of the legislation on the basis of adequate proportionality encounters major obstacles: if the legal provisions could act in accordance with the rights of the Convention If in all or almost all cases, this unjustifiably violates Article 8, the same legislation would not be incompatible with the rights of the Convention.[11] In addition, Lord Reed also noted that, in the case of Article 3, the request in the case had been filed with the court. Moreover, if these cases had been established in a single petition, this would probably have resulted in a violation of Article 8, mainly due to shortcomings and providing advice and support to the medical professionals. However, in some individual cases, there might be a possibility of violation of Article 8 and there is no guarantee that a non-respectful declaration would not comply with Article 8. He also stated that the court should consider any case that might arise. However, in the course of ongoing proceedings, the Court does not need to initiate a democratic debate firstly on legal changes or mechanisms for the provision of medical services or to determine the requirements of the Convention prior to the discussion.

Conclusion

From the discussed points, it can be concluded that Lord Reed and Lord Kerr had different opinions on the applicability of the Human Rights law, specifically Article 3 and Article 8. However, the decision of the majority was not considered in the case and Lady Hale decided that Lord Kerr’s opinion on compatibility issues was different from Lord Reed’s opinion. Similarly, Lord Reed’s opinion on procedural issues was different from Lord Kerr’s opinion. Therefore, Lady Hale decided that in this case, the decision will be considered as per the seniority, therefore, the decision made by Lord Kerr must be followed by all the others.

Bibliography

Cases

Christian Institute v Lord Advocate [2016] HRLR 19

M v Home Office and another [1994] A.C.1 377

Legislation

Crown Proceedings Act 1947

Human Rights Act of 1998

Northern Ireland Act 1998

Journal Articles

Crouch, Melissa. The Prerogative Writs as Constitutional Transfer. 2018. Oxford Journal of Legal Studies 38, no. 4 653-675.

McCrudden, Christopher, John McGarry, Brendan O’Leary, and Alex Schwartz. Why Northern Ireland’s institutions need stability. 2016. Government and Opposition 51, no. 1 30-58.

Ní Ghráinne, Bríd, and Aisling McMahon. Abortion in Northern Ireland and the European Convention on Human Rights: Reflections from the UK Supreme Court. (2019). International and Comparative Law Quarterly, Forthcoming.

Stark, Shona Wilson. Northern Ireland’s Abortion Legislation: Procedural and Substantive Confusion Over Declarations of Incompatibility. 2018. The Cambridge Law Journal 77, no. 3 448-451.

Books

Torroja, Helena, ed. Public International Law and Human Rights Violations by Private Military and Security Companies. Springer International Publishing, 2017.

Von Glahn, Gerhard, and James Larry Taulbee. Law among nations: an introduction to public international law. Routledge, 2017.

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