Objective Notes: W201 – Individual & State
UNIT 9 – MANUAL TWO
GENERAL PRINCIPLES
Traditional approach to protecting individuals’ rights:
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Dicey’s view - Constn (= civil liberties as opposed to rules of govt) results from
ordinary laws:
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Principles such as right to personal liberty come from judicial decisions in
specific cases;
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Private law principles have been developed by courts and laws applicable
between individuals also apply to govt/ citizen relationships;
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Thus, in Entick v Carrington, officials were subject to laws of trespass as if
private individuals;
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Civil liberties protected from common law & not from a Bill of Rights:
o Rights conferred by stat could equally be removed by stat;
o Such rights were in fact worthless unless supported by
effective remedies;
o By contrast common law rights with established enforcement
could not be easily removed by Parl without damaging the
legal system.
 Liberty is residual:
o By Parl sov doctrine, Parl can enact what it wishes – it can
restrict civil liberties;
o Liberties are thus rights to do anything not legally prohibited –
they are residual.
 A right is identified by the existence of a remedy (ubi remedium ibi ius);
 Thus, law deals with rights in a practical & not theoretical manner – e.g.
Habeas Corpus.
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Protection of rights through Judicial Review (JR):
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The judiciary has developed public law principles to additionally protect
those affected by govt/ public body exercise of power – judicial review
which is determination by High Court whether public body has acted
unlawfully at public law;
Such acts occur, irrespective of infringing private rights/ liberties where the
body acts –
o Illegally – fails to apply relevant law(s) in decision making;
o Irrationally – decisions are illogical/ manifestly absurd;
o With procedural impropriety – wrong procedures are followed.
Jurisdiction is supervisory – the court is ensuring that public bodies don’t act
unlawfully;
Remedies available to High Court should above grounds be proved:
o The act is quashed – the body must re-consider & act according to law
as stated by court; or
o Restraining the body from so acting – breach of this order is crim
contempt of court.
JR is designed to operate where other justice procedures have failed to
provide a remedy & is supervisory rather than appellate;
As explained in Chief Constable, N Wales v Evans [1982]:
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Objective Notes: W201 – Individual & State
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o JR is to protect individuals against abuse of power by public
authorities;
o Not there to take away power/ discretion properly provided by law &
neither is it to substitute court as the decision maker;
o Rather role is to ensure that powers are exercised properly & ensure
that individuals receive fair treatment;
o It is not the decision which is subject to JR but the circumstances in
which it is made - the concern is with the decision making process;
o Courts are to consider whether illegality, irrationality or procedural
impropriety were present &, if so, quash the decision & require the
body to re-consider the matter in the light of the ruling made.
With all exec power (including discretionary authority), the implication is
that it must be exercised legally, rationally & fairly;
This extends to requiring any infringements on liberty to be clearly justified
in the public interest & the impact of HRA is that JR can declare it unlawful
for any exercise of power by a public authority to breach ECHR rights.
Impact of ECHR:
Protection of rights –
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ECHR = statement of fundamental civil liberties to prevent future violations
of HR;
Member states obliged to enable citizens to enjoy human rights/
fundamental principles;
Where the UK is in breach, other states & individuals (since 1966) may bring
proceedings at ECtHR whose judgments are binding on UK;
Impact pre-HRA –
o UK is required to legislate compliantly & when found to be in
breach to remedy that breach;
o Where common law was uncertain or there was stat ambiguity,
courts would use ECHR as a guide.
Impact post-HRA –
o ECHR to be widely interp with a view to –
 Protect HRs;
 Judicial interp to avoid infringement where possible – courts
thus to base approach more on HR effect than stat wordings
 Give accord to changing social conditions.
o Positive obligation to protect HRs;
o Doctrine of proportionality now part of UK law – infringements can
only be justified to achieve legitimate objectives to the extent that they
are necessary;
o Unlawful for public authorities to infringe ECHR but not certain so far
to what extent it binds individuals;
o Courts compelled under s.3 to attempt to read stats subject to ECHR
so that the exercise of exec power may be restricted by its Arts;
o Main effect is re discretionary powers –
 Where there is choice as to action, public bodies will be acting
unlawfully if they select incompatible way;
 Breach of ECHR is an additional ground for JR challenges;
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Objective Notes: W201 – Individual & State
o Victims of unlawful public body acts can rely on ECHR in ANY
proceedings - private law cases against a body will necessitate the Crt
interp ECHR;
o Crts are empowered to award remedies as seen fit - compensation may
be given in situations where private law provides no such right of
action;
o High Crt & above are empowered to declare stats to be incompatible
with ECHR rights & effect of a dec is –
 Inconsistent stats must be applied;
 They remain valid unless repealed/ amended;
 Political then rather than legal – the govt can make a remedial
order to amend the law.
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Distinguishing between public & private law:
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If the issues could not arise in disputes between individuals, the matter is a
public law case;
Private rights are actionable through civil proceedings; whereas public rights
are enforceable through JR;
Private laws such as contract, tort & interference with liberty give rise to
civil liabilities;
Thus if public bodies breach such rights without specific legal authority they
are liable as if they were individuals;
This contrasts with public law which is a challenge to the exercise of exec
power by means of JR;
Public bodies must act intra vires, in accordance with stat authority, consider
all relevant factors & have procedures safeguarding fairness;
Remedies in private law are generally by way of damages whereas in public
law they are more normally injunctions which may quash the decision or a
declaration of what the law is;
But breaches may be mixed as in Cooper v Wandsworth Board of Works
(1863) where W had not exercised powers lawfully – they had no defence to
trespass & had acted unlawfully both as regards private & public law.
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