Standing under the human rights act 1998: Theories of rights enforcement & the nature of public law adjudication

Cambridge Law Journal

Volumn 59, Issue 1, 2000, Pages 133-167

  Miles, Joanna ^a  

^a TRINITY COLLEGE   (United Kingdom)

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EID: 85011454552     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300000052     Document Type: Article

References (175)

1. Rights Brought Home: the Human Rights Bill, Home Office, Cm. 3782.
2. Supreme Court Act 1981, s. 31(3)
3. R.S.C. Ord. 53 r. 3(7).
4. E.g., R. v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 W.L.R. 275.
5. E.g., R. v. Secretary of State for Social Security, ex parte CPAG [1990] 2 Q.B. 540
6. R. v. Inspectorate of Pollution, ex parte Greenpeace (No.2) [1994] 4 All E.R. 329, (where some members of the group may in fact have been regarded as victims of the measure in question, though it is not clear to what extent this factor influenced the decision to grant standing)
7. R. v. Secretary of State for Foreign & Commonwealth Affairs, ex parte World Development Movement [1995] 1 W.L.R. 386
8. R. v. Sefton MBC, ex parte Help the Aged [1997] 4 All E.R. 532
9. R. v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 W.L.R. 275.
10. See generally Cane, “Standing up for the public” [1995] P.L. 276.
11. A clear example is provided by Rose L.J. in ex parte World Development Movement [1995] 1 W.L.R. 386, 395G-396B.
12. Per Lord Diplock in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed & Small Businesses [1982] A.C. 617, 644: “It would in my view be a grave lacuna in our system of public law if a pressure group… or even a single public spirited [citizen] were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”
13. Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223.
14. See generally Murray Hunt, Using Human Rights Law in English Courts (Oxford 1998).
15. For one view, see Supperstone & Coppel, “Judicial Review after the Human Rights Act” [1999] E.H.R.L.R. 301, 308–309.
16. Hansard HL Deb. vol. 583 cols. 827–828 (24 November 1997).
17. Existing jurisprudence on the victim test derives mostly from Commission decisions on the admissibility of claims taken to Strasbourg. Until 1998, the Court itself rarely pronounced on the standing question, though it did have jurisdiction to find applications admitted by the Commission to be inadmissible. Following the abolition of the Commission by Protocol 11, the new full-time Court will take over its functions, including decisions on standing. The new Court will not necessarily follow the Commission's interpretation of the victim test. See generally: Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights (London 1995), pp. 630–638
18. Van Dijk & Van Hoof, Theory & Practice of the ECHR 3rd ed. (London 1999), pp. 44–60
19. Zwart, The Admissibility of Human Rights Petitions: the case law of the European Commission on Human Rights & the Human Rights Committee (London 1994), ch. 3.
20. The Admissibility of Human Rights Petitions: the case law of the European Commission on Human Rights & the Human Rights Committee, at p. 633.
21. (1978) 2 E.H.R.R. 214.
22. (1982) 4 RH.R.R. 149.
23. (1982) 38 D.R. 74.
24. Compare comments in Times Newspapers v. UK (1990) 65 D.R. 307 concerning the possibility of generating victim status from the chilling effect of defamation laws.
25. Klass v. FRG (1978) 2 RH.R.R. 214, para. 33
26. X v. Austria (1976) 7 D.R. 87.
27. Though cases such as Northern Ireland Civil Rights Association v. UK (1976) 36 Coll. 1 may suggest that the Commission might sometimes be prepared to take a very loose view of the standing requirements
28. see Van Dijk, Judicial Review of Governmental Action & the Requirement of an Interest to Sue (Alphen 1980), p. 350.
29. E.g., churches: X & Church of Scientology v. Sweden (1979) 16 D.R. 68
30. trade unions: Council of Civil Service Unions v. UK (1987) 50 D.R. 228
31. Ahmed & UNISON v. UK (1995) 2 RH.R.R. CD 72.
32. Norris & The National Gay Federation v. Ireland (1984) 44 D.R. 132.
33. Some UK applicants are represented by Liberty lawyers: see for example Hilton v. UK (1988) 57 D.R.108.
34. Confédération des Syndicats Médicaux Franais v. France (1986) 47 D.R. 225.
35. Dudgeon v. UK (1982) 2 E.H.R.R. 214, para. 41.
36. (1972) 16 Yearbook of the ECHR 212.
37. 16 Yearbook of the ECHR, at p. 260.
38. 16 Yearbook of the ECHR, at p. 47.
39. (1978) 2 E.H.R.R. 1.
40. (1966) 20 Coll. 86, 99. The Court has not been consistent in exercising this power
41. see Van Dijk & Van Hoof, 16 Yearbook of the ECHR, at p. 222
42. criticising this aspect of the Court's judgment in De Becker v. Belgium (1962) 1 E.H.R.R. 43.
43. Brownlie, Principles of Public International Law, 5th ed. (Oxford 1998), ch. XXII, esp. at pp. 482–496.
44. Austria v. Italy (1961) 4 Yearbook of the ECHR 116, 140.
45. Winterwerp v. Netherlands (1979) 2 E.H.R.R. 387
46. Young, James & Webster v. UK (1981) 3 E.H.R.R. 20.
47. E.g., McCann v. UK (1995) 21 E.H.R.R. 97, para. 5
48. Harlow & Rawlings, Pressure through Law (London 1992), ch 6
49. Lester, Pressure through Law.
50. E.g., JUSTICE's application to intervene in Monnell & Morris v. UK (1987) 10 E.H.R.R. 205.
51. (1995) 38A Yearbook of the ECHR 236.
52. Rules of Procedure of the European Court of Human Rights, Rules of Court (1998) Rule 61.
53. Straw & Boateng, “Bringing Rights Home” (1997) E.H.R.L.R. 71, 76.
54. Per Lord Chancellor, Hansard HL Deb. vol. 583 col. 831 (24 November 1997).
55. Hansard HL Deb. col. 835.
56. For the purposes of Article 13, a judicial remedy is not necessarily required: see generally Harris & O'Boyle & Warbrick, Hansard HL Deb., ch. 14.
57. Both these provisions are excluded from those Convention rights covered by the scheme of the Act: s. 1. For further discussion see Hansard HL Deb. vol. 583 cols. 475–481 (18 November 1997).
58. International law has traditionally maintained that states alone have procedural capacity, even in respect of claims concerning losses sufered by individuals: Brownlie, Hansard HL Deb., ch. XXV.
59. See Otton J. in R. v. Inspectorate of Pollution, ex parte Greenpeace (no. 2) [1994] 4 All E.R. 329, 350
60. Lord Diplock in R. v. IRC, ex parte National Federation of Self-Employed & Small Businesses Ltd [1982] A.C. 617, 644.
61. See Spencer & Bynoe, The Human Rights Commission: The Options for Britain & Northern Ireland (London 1998). Amendments to the Human Rights Bill to establish a Commission were unsuccessful
62. Hansard HL Deb. vol. 585 cols. 820–828 (5 February 1998). The Human Rights Task Force of non-governmental organisations set up to assist in the process of implementing the Act and in creating a “human rights culture” is likely to make recommendations on this topic as will a Parliamentary Human Rights Committee which is likely to be established, as envisaged in the Government's White Paper. The Commission established under the Northern Ireland Act 1998 is empowered to bring proceedings involving law or practice relating to the protection of human rights: s. 69(5)(b). However, it may not bring cases on the ground that any legislation or act is incompatible with Convention rights, or rely on Convention rights in any proceedings; such arguments are expressly reserved for victims and the Law Oicers: s. 71. But the Commission is empowered to assist victims who bring their own actions under the Human Rights Act 1998: s. 70(3).
63. Mr. O'Brien, M.P., Hansard HC Deb. vol. 314 col. 1086 (24 June 1998)
64. Lord Chancellor, Hansard HL Deb. vol. 583 col. 832 (24 November 1997).
65. See Wadham & Mountfield, Blackstone's Guide to the Human Rights Act 1998 (London 1999), at pp. 40–41.
66. See Earl Russell, Hansard HL Deb. vol. 585 cols. 807–808 (5 February 1998)
67. and various speakers at Hansard HC Deb. vol. 314 cols. 1062–1082 (24 June 1998). Academic commentators paint a similar picture
68. e.g., Van Dijk, Hansard HC Deb. note 23, at pp. 232–233.
69. See Spencer & Bynoe on the advantages of Human Rights Commission-instigated litigation: Hansard HC Deb., at p. 90.
70. Indian Council for Enviro-Legal Action v. Union of India A.I.R. 1996 S.C. 1446, 1460, per Jeevan Reddy J. The petitioners here brought an action on behalf of villagers whose right to life (enshrined by Article 21 of the Indian Constitution) had been infringed by environmental pollution.
71. SP Gupta v. India A.I.R. 1982 S.C. 149
72. People's Union for Democratic Rights v. Union of India A.I.R. 1982 S.C. 1473
73. Bandhua Mukti Morcha v. India A.I.R. 1984 S.C. 802. This was regarded in Gupta as an extension of the standing rules which enable children and prisoners to be represented in court: para. 16.
74. Thorson v. Canada (Attorney General) [1975] 1 S.C.R. 138
75. McNeil v. Nova Scotia Board of Censors [1976] 2 S.C.R. 265
76. Canada (Minister of Justice) v. Borowski [1981] 2 S.C.R. 575
77. Canada (Minister ofFinance) v. Finlay [1986] 2 S.C.R. 607
78. Canadian Abortion Rights Action League v. Attorney General of Nova Scotia (1990) 69 D.L.R. (4th) 241 (Nova Scotia S.C.)
79. Canadian Council ofChurches v. Canada [1992] 1 S.C.R. 236.
80. Thorson v. Canada (Attorney General) [1975] 1 S.C.R. 138, 146 per Laskin J.
81. Supreme Court Act 1985, R.S.C., c. S-26, s. 53
82. Hogg, Constitutional Law of Canada, 4th ed. 64 (Ontario 1997), pp. 224–225.
83. Cahill v. Sutton [1980] I.R. 269, per Henchy J. (Ireland)
84. see also Canadian Council of Churches [1992] 1 S.C.R. 236, 254–255, per Cory J. (Canada)
85. Valley Forge Christian College v. Americans United for Separation of Church & State (1982) 454 US 464, 472, per Rehnquist J. (USA).
86. See Re Danson and Attorney General of Ontario [1990] 2 S.C.R. 1086: insistence on factual basis for cases brought under the Canadian Charter of Rights and Freedoms.
87. [1990] 2 Q.B. 540.
88. See also R. v. Inspectorate of Pollution, ex parte Greenpeace (No. 2) [1994] 4 All E.R. 329, and other cases listed in note 6.
89. [1992] 1 W.L.R. 711.
90. (1990) 110 S.Ct. 1717.
91. [1980] I.R. 269.
92. Brilmayer, “The Jurisprudence of Article III: Perspectives on the ‘Case or Controversy’ Requirement” (1979–1980) 93 Harv. L.R. 297
93. see Tushnet's criticisms, “The ‘Case or Controversy’ Controversy” 93 Harv. L.R. 1698 and Brilmayer's reply thereafter, at p. 1727.
94. Hilson & Cram, “Judicial review and environmental law–is there a coherent view of standing?” (1996) 16 L.S. 1. The exceptional case suggested–involving an issue of national interest–may be compared with the Convention striking out cases under Article 37, see p. 130 above at notes 32–34. It is impossible to define in advance what constitutes a case sufficiently important to warrant (continued) judicial investigation in the face of victim opposition (or mere apathy?), so any rules formulated on this basis will necessarily be uncertain.
95. Per Bhagwati J., SP Gupta v. India A.I.R. 1982 S.C. 149 at para. 13.
96. See Feldman, “Public Interest Litigation and Constitutional Theory” (1992) 55 M.L.R. 44.
97. Re T [1993] Fam. 95.
98. R. v. Secretary of State for the Home Department, ex parte Leech (No. 2) [1994] Q.B. 198.
99. Since the preparation of this article, Feldman has suggested what may be called an instrumental approach to rights enforcement based on competing individualist or “collectivist” philosophies, which may be applied alongside the non-instrumental approach discussed here. His concern is with the extent to which particular rights are perceived as satisfying public as opposed to purely individual purposes, and the role of social values in defining the scope of the rights protected by any system. Where such collective values are present, as he argues is the case with the European Convention, an individualistic standing test may be inappropriate, since it will fail to reflect the collectivist values that inform the content of the rights protected. Feldman, “The Human Rights Act 1998 and constitutional principles” (1999) 19 L.S. 165, at pp. 173–178, 193–194.
100. The following account and discussion of these models is derived from Spann, “Expository Justice” (1983) 131 U.Pa.L.R. 585
101. Chayes, “Public Law Litigation” (1976) 89 Harv.L.R. 1281
102. Fiss, “The Forms of Justice” (1979) 93 Harv.L.R. 1
103. and Monaghan, “Constitutional Adjudication: the Who & When” (1973) 82 Yale L.J. 1363. The author is grateful to Christopher McCrudden for directing her to this literature.
104. See O'Regan J. in Ferreira v. Levin NO & others [1996] 1 S.A. 984, at para 229 (South African Constitutional Court).
105. Davis, “An Approach to Problems of Evidence in the Administrative Process” (1942) 55 Harv. L.R. 364, 402–403.
106. Bryden, “Public Interest Intervention in the Courts” (1987) 66 Can Bar. Rev. 490
107. Singh, The Future of Human Rights in the UK (Oxford 1997), ch. 10.
108. Egg., R. v. GLC, ex parte Blackburn [1976] 1 W.L.R. 550
109. R. v. Speyer [1916] 1 K.B. 595
110. discussed by Sedley J. in R. v. Somerset CC, ex parte Dixon [1997] Crown Office Digest 323.
111. Contrast mandamus, a remedy which seems historically to have reflected more of a right/duty analysis of public law: Schwartz & Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford 1972), p. 294.
112. Historically, the prerogative remedies were the means by which the sovereign, via the royal courts, controlled and supervised the inferior courts and administrative bodies: see Wade & Forsyth, Administrative Law,7tth ed. (Oxford 1994), pp. 702–705.
113. Remedies in Administrative Law, Law Com WP 40 (London 1971) para. 74.
114. “The Function of Standing Rules in Administrative Law” [1980] P.L. 303, 323–324.
115. Hansard HL Deb. vol. 585 col. 805, (5 February 1998).
116. R. v. Somerset CC, ex parte Dixon (1997) Crown Office Digest 323, at 331
117. cited by Lord Lester in support of a broader standing rule for the Human Rights Act: Hansard HL Deb. vol. 585 cols. 805–806 (5 February 1998).
118. See also Administrative Law: Judicial Review and Statutory Appeals, Law Com 226 (Cm. HC 669) para 2.5: public interest in vindicating the rule of law.
119. Gouriet v. Union of Post Office Workers [1978] A.C. 435.
120. R. v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 W.L.R. 275, 292, per Simon Brown L.J.
121. [1995] 1 A.C. 1.
122. [1995] 1 A.C. 1, 8–9.
123. See O'Reilly v. Mackman [1983] 2 A.C. 237 and subsequent cases developing the so-called public/private divide. It is not clear why the individual applicant could not argue the general EU law point at stake as a public interest applicant
124. see Cane, “Standing up for the public” [1995] P.L. 276, 284.
125. [1993] 1 W.L.R. 872, 894.
126. Hirst L.J. was similarly of the view that the EOC could, if it wished to see the matter resolved, support a test case through the industrial tribunal system, 1 W.L.R. at pp. 902–903.
127. [1999] 1 A.C. 450.
128. Sun Life Assurance v. Jervis [1944] A.C. 111, distinguished in Salem as inapplicable to public law.
129. See also Royal College of Nursing v. DHSS [1981] A.C. 800, though the nature of the case was not discussed by the HL
130. Gilick v. W.Norfolk & Wisbech AHA [1986] A.C. 112, especially Lord Bridge.
131. See also Administrative Law: Judicial Review and Statutory Appeals, Law Com 226 (Cm. HC 669) paras. 8.12, 8.14
132. Laws, “Judicial Remedies & the Constitution” (1994) 57 M.L.R. 213.
133. Cf. Beatson, “Prematurity & Ripeness for Review”, in Forsyth & Hare (eds.), The Golden Metwand and the Crooked Cord, (Oxford 1998).
134. Compare the procedure for obtaining advisory opinions from the Supreme Court of Canada: note 63. See also Attorney General's References under the Criminal Justice Act 1972, s. 36
135. Jaconelli, “Attorney General's References–a Problematic Device” [1981] Crim.L.R. 543.
136. See Practice Directions & Standing Orders applicable to Civil Appeals, HL, direction 34(1)
137. R. v. Bow Street Metropolitan Stipendiary Magistrate & others, ex parte Pinochet Ugarte (Amnesty International & others intervening) (no. 3) [1999] 2 W.L.R. 827
138. R. v. Khan [1997] A.C. 558, Lord Nolan at 578 F-G.
139. For the position in the Court of Appeal, see R.S.C. Ord. 59 r. 8(1).
140. As did the Public Law Project in R. v. Lord Chancellor, ex parte Witham [1998] Q.B. 575.
141. English, “Wrongfooting the Lord Chancellor: Access to Justice in the High Court” (1998) 61 M.L.R. 245.
142. See also Singh, The Future of Human Rights in the United Kingdom, (Oxford: Hart, 1997) ch. 7.
143. 100 R.S.C. Ord. 53 r. 5(3).
144. Fiss The Future of Human Rights in the United Kingdom, at p. 36.
145. See in particular appeals to the House of Lords: leave may be refused where the petition does not involve a point of law “of general public importance”, House of Lords Practice Directions 4.6.
146. Kleinwort Benson Ltd. v. Lincoln City Council & others [1999] 2 A.C. 349, 378 F, (emphasis added).
147. See, in particular, Rose L.J.'s emphasis of the merits of the World Development Movement's application, [1995] 1 W.L.R. 386, 395G-396B.
148. E.g., R. v. Her Majesty's Treasury, ex parte Smedley [1985] Q.B. 657. Courts in other jurisdictions are also prepared to abandon or at least compromise the private law lis inter partes model of adjudication in public law cases to ensure the enforceability of “rights”, constitutional or otherwise, enjoyed by the public as a whole
149. SP Gupta v. India A.I.R. 1982 S.C. 149
150. Thorson v. Canada (Attorney General) [1975] 1 S.C.R. 138
151. Crotty v. An Taoiseach [1987] I.R. 713.
152. Cf. US resistance of the citizen suit movement: e.g. Schlesinger v. Reservists Committee to Stop the War (1974) 418 US 208
153. the Warren Court decision in Flast v. Cohen 88 S.Ct. 1942 (1968) seems to have suffered an ignominious “death by distinguishing”; however, Congressional standing rules often achieve citizen suits where the Supreme Court would otherwise refuse to allow it under Article III of the United States Constitution
154. e.g. in environmental legislation Bennett v. Spears (1997) 117 S.Ct. 1154.
155. [1997] C.O.D. 323, 328
156. and see R. v. Legal Aid Board, ex parte Bateman [1992] 1 W.L.R.
157. See also the courts of the other jurisdictions discussed in note 105; they too are wary of overstepping some undefined mark, so broader standing may only be awarded “if there is no other reasonable and efective manner” of briging the matter before the court (Canadian case law, note 61), or “in an appropriate case”
158. (Ireland: per Walsh J. in Society for the Protection of the Unborn Child v. Coogan [1989] I.R. 734, 743–745).
159. Lester, “Amici Curiae: Third Party Intervention before the ECHR”, in Matscher & Petzold (eds.), Protecting Human Rights: the European Dimension, 2nd ed. (Cologne 1990), specifically in relation to third party intervention under Article 36 § 2.
160. Protecting Human Rights: the European Dimension.
161. Though all will not necessarily be lost for the victim challenger. Since the court itself as a public authority will be required to act compatibly with Convention rights, (even whilst having to apply incompatible legislation), it may also be called upon to exercise any discretion that it has to mitigate the effects of the legislation on a victim before it: Feldman, “Remedies for Violation of Convention Rights under the Human Rights Act” [1998] E.H.R.L.R. 691.
162. Per Lord Scarman, Hansard HL Deb. vol. 582 col. 1256 (3 November 1997). In the case of legislation enacted after the HRA, the dialogue is in fact commenced by the Minister who makes a statement of compatibility when introducing the legislation in question into Parliament: s. 19. However, the fact that there is no requirement for these statements to contain any indication of the reasons for concluding that the legislation is compatible may make for a rather limited dialogue.
163. Feldman, Hansard HL Deb. (1998), at p. 699.
164. See Henry L.J. in R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517, 564E-F.
165. Though compare Henderson's recent discussion of proof of legislative facts: “Brandeis briefs and the proof of legislative facts in proceedings under the Human Rights Act 1998” [1998] P.L. 563.
166. Compare Lord Chancellor, Hansard HL Deb. vol. 583 col. 835 (24 November 1997)
167. Mr O'Brien, M.P., Hansard HC Deb. vol. 314 cols. 1083–1086 (24 June 1998).
168. Tyrer v. United Kingdom (1978) 2 E.H.R.R. 1, para. 31.
169. JUSTICE–All Souls Report, Administrative Justice: Some Necessary Reforms (Oxford 1988), ch. 8 para. 8.2.
170. Marriott & Nicol, “The Human Rights Act, Representative Standing and the Victim Culture” [1998] E.H.R.L.R. 730, 741.
171. On the public-private law question, see generally Oliver, Common Values and the Public-Private Divide, (London 1999).
172. On the particular question of the horizontal efect of the Human Rights Act, see Wade, “The United Kingdom's Bill of Rights”, in Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Oxford 1998), pp. 62–64
173. Hunt, “The ‘Horizontal Effect’ of the Human Rights Act at Common Law” [1998] P.L. 423
174. Bamforth, “The Application of the Human Rights Act to Public Authorities and Private Bodies” (1999) C.L.J. 159.
175. “The Application of the Human Rights Act to Public Authorities and Private Bodies” note 96.