Administrative Law - Week 4

Judicial Review of Discretion – part 2

HUMAN RIGHTS CASES

Hilary 2002

 

 

 

Introduction

This week we focus on the special rules governing judicial review of discretion where one party alleges the possibility of an infringement of human rights. In reading this list (and any additional cases decided between now and your Finals!) it is important to bear in mind the fact that you will be examined on what the cases tell us about judicial review of discretion and not about what the cases tell us about particular convention rights. Judges, by contrast, are obliged to decide questions about particular convention rights and do not always expressly set out their views about the general topic of judicial review of discretion. Consequently, when you read and note the cases try to concentrate on the general topic rather than the particular rights. (I’ve tried to classify the cases, but, naturally, some cases belong under more than one heading and some would quarrel with my classification!)

 

 

 

The Texts

Craig, pp. 546-577, and re-visit notes on ch. 18

 

 

 

Common Law

R v Cambridge Health Authority ex p. B [1995] 2 All ER 129

R v Ministry of Defence, ex p. Smith [1996] 1 All ER 257

*Smith & Grady v UK, 27 Sept 1999, ECHR; (1999) 29 EHRR 493 (www.echr.coe.int)

R v Lord Chancellor, ex p. Witham [1997] 2 All ER 779

 

 

 

Human Rights Act 1998

*Sections 2, 3, 4, 6, 7, 8 (read these carefully)

 

Using Interpretation to Limit the Scope of the Power Granted

R v Secretary of State for the Home Department, ex p. Simms [2000] 2 AC 15

 

 

Using Interpretation to Limit the Scope of the Right

*R (Alconbury) v Secretary of State for the Environment, Transport & Regions [2001] 2 WLR 1389

Brown v Stott [2001] 2 All ER 97, at 113-117

R (Pretty) v. DPP [2001] 3 WLR 1598, esp. Bingham, Steyn, and Hope (NB para 76)

 

Proportionality

*R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532

Craig, “The Courts, The Human Rights Act and Judicial Review” (2001) 117 LQR 589

*Gough v. Chief Const of Derby Constabulary [2001] 3 WLR 1392, at paras. 72-81

*R (P) v. Sec of St for the Home Dept [2001] 1 WLR 2002, at paras. 54-66, 99-106

R (Anna Ford) v. Press Complaints Commission [2002] EMLR 5

 

‘Public body’ – cross-reference ‘Scope of Judicial Review’ (Week 1)

Law Com No. 266, “Damages Under The Human Rights Act 1998”, paras. 2.11 – 2.13

*Donoghue v Poplar Housing [2001] 4 All ER 604, paras. 55-66 (67-78 also interesting)

*Heather v Leonard Cheshire Foundation (2001) ACD 401

 

‘Victim’ – cross-reference Standing (Week 6)

Law Com No. 266, “Damages Under The Human Rights Act 1998”, para. 2.15

 

 

 

Strategic guidance

Two pieces of advice.

  1. This list assumes that you will try to work out what is going on mainly by reading the cases which are trying to work out what is going on … so …
  2. Where does ‘proportionality’ come from? Once you can answer this you will be better placed to appreciate, (a) why it makes a huge difference which Convention right is being invoked, and (b) how Alconbury fits with the other cases.

 

 

 

Essay Title:

Compare the intensity of judicial review of discretionary administrative decisions in cases possibly involving human rights before and after the Human Rights Act 1998.

[Complete the essay in no more than one hour (45 mins to write, 15 mins to check things in notes)]

 

 

Reading List Week 5

Back to Admin. Law Reading List Index