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rights in legal proceedings.

Scotland Act 1998


s.29 - cannot legislate outwith competence, inc. if incompatible with ECHR
s.57 - Scottish Executive cannot act incompatibly with ECHR
s.101 - legislation to be read as narrowly as is required for it to be within competence, if
such a reading is possible.
Charting the increased scrutiny of Review
Bugdaycay [1987] AC 514 - immigration case where applicant argued right to life. Court:
when case concerned such a fundamental right, deserved "anxious scrutiny".
Brind [1991] 1 AC 696 - challenged television-ban on those affiliated with a terrorist
organisation as contrary to freedom of expression. Court: rejected notion of proportionality;
only have unreasonableness. Emphasised judicial review's supervisory rather than appellate
jurisdiction.
R v MOD ex p. Smith [1996] QB 517 - gays in military. CA: higher standard of review in human
rights cases, but application still failed.
Smith and Grady v UK (2000) 29 EHRR 493 - David Pannick QC - the more substantial the
interference with human rights, the more the court will require by way of justification.
Ms Smith and Mr Grady subjected to very detailed and potentially derogatory
interviews when their homosexuality was discovered, then discharged.
Interferences with right to private life must be "in accordance with the law", have an
aim which is legitimate and must be "necessary in a democratic society" (which it will
be if it answers a pressing social need and is proportionate to the legitimate aim
pursued)
Concerning as this case did a most intimate aspect of an individual's private life,
particularly serious reasons by way of justification were required.
Test applied in British courts was one of "irrationality" - a court was not entitled to
interfere with the exercise of an administrative discretion on substantive grounds save
where the court was satisfied that the decision was unreasonable in the sense that it
was beyond the range of responses open to a reasonable decision-maker, and
therefore upheld the policy => applicants had no effective remedy in relation to the
violation of their right to respect for their private lives under Art 8, therefore Art 13
breach. Not a high enough test.
Daly [2001] 2 AC 532 - D objected to his cell being searched without him being present due
to solicitor's correspondence. Court: accepted proportionality test. Legitimate aim, but went
further than necessary - there were less obtrusive ways of obtaining the information.
Emphasised that proportionality test may go further than the traditional grounds of review.
Said that even the heightened scrutiny test of Smith is not necessarily appropriate to the
protection of human rights. Formulation of proportionality per Lord Steyn:
a. Must be sufficiently important objective to justify breach
b. Measures used must be rationally related to advancing the objective
c. Means used must be no more than necessary
Balance rights of individual with public interest
R(SB) v Governors of Denbigh High School [2006] UKHL 15 - Muslim girl wanted to wear jilbab
rather than shalwar kameez, and not allowed to attend school as a result. HoL: uniform
policy, which allowed 3 different uniforms and had been taken after consultation with
parents and religious leaders, was for legitimate purpose of protecting rights and freedoms
of others, and was proportionate, => justified.
Legitimate curtailing of applicant's Art 9 right to freedom of religion as was
proportionate.
Emphasised that proportionality test led to a greater intensity of review than was
previously appropriate - the domestic court must make a value judgement by
reference to the circumstances prevailing at the relevant time.
s6 of HRA does not require decision-makers expressly to take human rights principles
into account during decision-making processes - what matters is practical outcome
rather than process which led to it.

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Law and Government Page 10

Anufrijeva [2004] 1 AC 604 - Asylum seeker only found out of Home Office's refusal of
her application when income support stopped. Lord Steen: breach of common law
right of access to justice - notice of decision essential so it can be challenged.
Reasons to be given
Doody [1994] 1 AC 531 - right to be told how much of life sentence judge
recommended the recipients of a mandatory life sentence would serve.
Requirement to have oral hearing
Not necessarily, especially if complainant didn't ask for one Lloyd v McMahon [1987] 1
AC 625, and outcome merely a fine
Cf Campbell, Petitioner [2008] CSOH 16 - prisoner who asked for parole board entitled
to oral hearing - stricter standard if about individual liberty
Legal representation
Hone [1988] 1 AC 379 - natural justice did not require board of prison officers to allow
legal representation in every case
S v Miller (No 1) 2001 SC 977 - S denied lawyer in children's hearing re. death and
serious injury he had caused. Court: legal aid had to be made available to him.
Cross Examination
Bushell [1981] AC 75 - no cross-examination allowed in road building enquiry. HoL:
depended on practicalities.
Errington v Wilson 1995 SC 550 - petitioner's counsel had been denied the opportunity
of testing the strength of the opposition's witnesses by cross-examination.

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Law and Government Page 15

i. Getting it right - acting in accordance with the law, guidance, and good practice
ii. Being customer focused - ensuring access to services and dealing with people
sensitively and helpfully
iii. Being open and accountable
iv. Acting fairly and proportionately
v. Putting things right
vi. Seeking continuous improvement through reviews and feedback
Not allowed to question the merits taken without maladministration by a government
department or other authority in the exercise of discretion
E.g. Bradley [2007] EWHC 242 (Admin) - number of people had lost all or part of their final
salary pensions when their occupational pension schemes were wound up. PCA:
maladministration by SS on several counts. SS: rejected all but 1 of those findings. Court:
body whose conduct was subject of investigation is entitled to reject a finding of
maladministration, but the rejection was subject to a rationality review by the courts - have
to have reason for rejection. SS had acted irrationally in rejecting PCA's finding that the
official information was incomplete and potentially misleading => decision quashed.
Who can complain?
S6(1) - anyone bar local authorities, nationalised industries, or other bodies appointed
by a minister or government department
Must be made by aggrieved person, or a personal representative, within 12 months of
the date on which the person aggrieved first had notice of the matters alleged in the
complaint, but the PCA has discretion to allow a claim to proceed outwith that time
limit.
Must be UK resident, or re. action taken while he/she was present in the UK
Must be addressed initially to an MP - PCA is viewed as an adjunct to Parliament; not
intended to be an independent citizen protector
If addressed to PCA, PCA may forward to MP stating he is willing to consider the
case should the MP wish him to do so.
Purposes of "MP filter":
1) Acknowledges status of Commissioner as a servant of Parliament
2) Provides MP with opportunity to deal with the complaint
3) Filters out inappropriate and vexatious complaints => reduced workload for
PCA
Postcode lottery - some MPs forward nearly all complaints while others rarely
send any.
Reform? Private Member's Bill of 2000 failed to abolish MP filter but Scottish
Parliamentary Ombudsman has no such filter
Procedure:
a. Screening
Removes cases where PCA lacks jurisdiction
b. Investigation
Conducted in private; PCA has wide discretion as to type of information required
Department or body complained of must be given an opportunity to comment on
any allegations contained in the complaint
Does not invalidate or suspend action taken by an authority
c. Reports
Sent to MP who requested investigation, to the principal officer of the
department concerned, and can be laid before each House of Parliament
Enforcement:
No formal power to grant a remedy, but if non-compliance with findings, can submit
special report to Parliament, or as in Bradley, possibility of judicial review to challenge
the rejection of the PCA's findings
In practice, reports lead to apologies, action to prevent recurrence of the problem,
action to remedy failure identified or to reconsider the decision, or financial
compensation for loss, inconvenience, or distress

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Law and Government Page 21

GREENPEACE - procedurally unfair not to consult G after promising to if changing nuclear


policy

Procedural Impropriety
Acting fairly - natural justice
COOPER V WANDSWORTH BOARD OF WORKS
RIDGE V BALDWIN
POLEMIS
ANUFRIJEVA
DOODY
HONE
S V MILLER
LLOYD V MCMAHON
CAMPBELL, PET'R
BUSHELL V SS FOR ENVIRONMENT
ERRINGTON V WILSON
Bias - natural justice
PORTER V MAGILL
DIMES
PINOCHET
HELOW - bias cannot be established by mere membership of an organisation
GILLIES - ok for doctor who had prepared reports on benefits to sit on tribunal professional
FRANKLIN V MINISTER FOR TOWN AND COUNTRY PLANNING - no evidence
minister had not genuinely considered objections to plan which he'd said was going
ahead no matter what
Statutory procedure
BRADBURY V ENFIELD LBC
CONEY V CHOYCE
POW
AYLESBURY MUSHROOMS
ASSOCIATION OF METROPOLITAN AUTHORITIES
AGRICULTURAL, HORTICULTURAL, AND INDUSTRIAL TRAINING BOARD V KENT
ECHR and due process
BRYAN V UK - possibility of JR by High court meant art 6(1) compliant, even though
initial appeal not independent
ALCONBURY - sensitive policy area => should be accountable to Parliament. JR
sufficient to cure first-instance non-compliance
RUNA BEGUM V TOWER HAMLETS LBC - non-independent reviewing officer's
decision reviewable by appeal to county court => sufficient
TSFAYO V UK - immigrant refused appeal by independent review board - not
compliant as decision-maker was deciding simple fact question, so appellate court,
to be compliant, would need to be able to substitute its own opinion
AF - subject of control order made on basis of closed material. HoL: could be a fair
trial even though controlee was not provided with the details or sources of evidence,
but if open material consisted merely of general assertions, requirements of fair trial
not satisfied.

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Liability of Public Authorities


Negligence
DONOGHUE V STEVENSON
DORSET YACHT CO V HOME OFFICE
MITCHELL V GLASGOW CC
CAPARO
Law and Government Page 27

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