Judicial Review and Human Rights: Analysis of Legal Cases (PLII4051)

This assignment provides a comprehensive analysis of judicial review, addressing two key questions. The first question examines the case of Westbury Multiplex Cinema and the challenges it faces regarding licensing conditions imposed by Westbury Council, exploring the application of the Human Rights Act 1998 and the European Convention on Human Rights. The analysis delves into the concept of ultra vires and suggests potential remedies. The second question focuses on the issue of standing, specifically the Northern Ireland Human Rights Commission's challenge to abortion laws, and examines the interpretation of Articles 3 and 8 of the European Convention on Human Rights. The assignment contrasts the reasoning of the judges involved, highlighting the complexities of human rights law and judicial review in these contexts. The document provides a detailed examination of relevant case law and legal principles.

Judicial Review

Table of Contents
Answer to Question 1.................................................................................................................3
Answer to Question 2.................................................................................................................4
Standing..................................................................................................................................4
Article 3..................................................................................................................................5
Article 8..................................................................................................................................6
Bibliography...............................................................................................................................8

Answer to Question 1
Sub-section 1 of Section 6 of the Human rights Act of 1998 implies that it is illegal on part of
a public authority to act in contravention of the rights enshrined and envisaged in the
European Convention on Human Rights of 1951. In accordance with Sub-section 3 (b) of
Section 6 of the Human rights Act of 1998, the term public authority applies to any
organization whose acts are of a public level. As a result, it is imperative from the facts of the
case that Westbury Council is a public authority within the meaning of Sub-section 3 (b) of
Section 6 of the Human rights Act of 19981. The facts of the case also imply that Westbury
Council is charging an additional two hundred pounds along with the prescribed fees of two
thousand pounds as per the fictional Licensing Act of 2018. Article one of the First Protocol
of the European Convention on Human Rights of 1951 implies that any legal person must be
granted an opportunity with regard to the enjoyment of property and possessions in a peaceful
manner. In such aspect, Westbury Council has acted in gross violation of the First Protocol
of the European Convention on Human Rights of 1951 with regard to the rights of Westbury
Multiplex Cinema. With regard to the compulsory screening of British movies on Tuesdays
along with the weekly shows of directors having a background with regard to Black, Asian,
Minority and Ethnic mandatorily is in blatant contravention of Article 14 of the European
Convention on Human Rights of 1951. It is also claimed by Westbury Multiplex Cinema that
such a condition has a high probability on imposing economic restrictions over its business
with regard to screening of shows. To a certain extent, such an act on part of Westbury
Council also results in the violation of the rights concerning freedom of expression under the
ambit of Article 10 of the European Convention on Human Rights of 1951. It is further
observed from the facts of the case that such kinds of acts on part of Westbury Council are
not in the interest of equality and fairness as far as natural justice is concerned2. There would
be judicial review in this aspect since the facts of the case imply that the Westbury Council is
a public body whose actions are to be reviewed by the court of competent jurisdiction. If the
court of competent jurisdiction is of the opinion that the Westbury Council has acted in
violation of the law in force, it is at discretion to issue an injunction over the Westbury
Council. It is also to be taken into account whether the Westbury Council has exceeded its
powers vested upon it by the Parliament with regard to the doctrine of ultra vires as far as
Parliamentary sovereignty is concerned with regard to the aspects related to constitutionality.
1 Human Rights Act 1998
2 European Convention on Human Rights 1951

As implied by the Civil Procedural Rules, a claim for judicial review would only be
entertained if permission or an approval is granted by the High Court of England and Wales
for the same. In the case of R v Panel for Takeovers and Mergers Ex p Datafin it was held by
the Civil Division of the Court of Appeal of England and Wales that the decision which is
being challenged for judicial review must have been undertaken by a body or an authority
having been entrusted with discharging of functions at the public level3. As a result, such a
decision can be referred to in the provided scenario as the Westbury Council is a public body.
In the case of Thomas Bonham v College of Physicians, it was held by the Court of common
Pleas of England that the legislations and statutes passed and enacted by the Parliament of
England are to be governed by the common law as far as the concept of judicial review is
concerned. It was criticized for the non-consideration of the aspect of parliamentary
sovereignty. One of the main reasons for the dismissal of Edward Coke as the Chief Justice
of the Court of common Pleas of England is perceived to be the judgment delivered by him in
the case.
Answer to Question 2
Standing
The locus standi involved in the case is the averment of Northern Ireland Human Rights
Commission with regard to the possible harm which can be the outcome as a result of the
application of the abortion laws of Ireland such as the Offences Against the Persons Act of
1861and the Criminal Justice Act of 1945 (Northern Ireland)4. The case involves the
challenging of such provisions on grounds of being incompatible with Article 3, Article 8 and
Article 14 of the European Convention on Human Rights of 1951. As a result, a declaration
of incompatibility was sought after by the Northern Ireland Human Rights Commission
before the Supreme Court of the United Kingdom in accordance with Sub-section 2 of
Section 4 of the Human rights Act of 1998. Lord Reed in this case along with the majority of
the judges in the bench held that Northern Ireland Human Rights Commission does not have
any standing with reference to the bringing of the proceedings before the court and the court
does not have any jurisdiction for the issuance of a declaration of incompatibility in such
3 R v Panel for Takeovers and Mergers plc [1987] QB 815
4 Offences Against the Persons Act 1861

matters5. However, Lord Kerr in this case along with the minority of the judges in the bench
held that Northern Ireland Human Rights Commission has a standing with reference to the
bringing of the proceedings before the court and the court is at the discretion for the issuance
of a declaration of incompatibility in such matters. Lord Reed in this case further held that
Parliament has not conferred the powers over Northern Ireland Human Rights Commission to
file an application before the court for the purpose of the issuance of a declaration of
incompatibility. Lord Kerr in this case dissented by stating that the provisions with regard to
illegality of abortions have resulted in traumatic experiences for women.
Article 3
Article 3 of European Convention on Human Rights of 1951 implies that there should be no
torture or inhuman act upon a person thereby resulting in the degrading treatment of such a
person. In the case of Atuan Rojo v Spain, it was held by the European Court of Human
Rights that laxity in the conducting of proper and appropriate investigation with regard to the
allegations of derogatory treatment of the applicant was in gross contravention of Article 3 of
European Convention on Human Rights of 1951. The facts of the case imply that traumatic
experience with regard to pregnancy as a result of restrictions and limitations on abortion by
law implies the treatment of such women in an inhuman manner which is in gross
contravention of Article 3 of European Convention on Human Rights of 1951. In Jeremy
Bamber’s case, it was held by the Grand Chamber of the European Court of Human Rights
that life imprisonment without any kind of scope and opportunity with reference to parole is
in gross contravention of Article 3 of European Convention on Human Rights of 1951. The
case also implies physical and mental torture of pregnant women which contravenes Article 3
of European Convention on Human Rights of 1951 as far as the averment of Northern Ireland
Human Rights Commission is concerned. In the case of M.C. v. Bulgaria, it was held by the
European Court of Human Rights that rape implies degradation of human. As a result,
offenders with reference to the heinous crime of rape must be punished in a stringent manner.
Additionally, the case also implied that it is necessary to conduct investigations in rape cases.
It is implied from the application filed by the Northern Ireland Human Rights Commission
that pregnancy as a result of rape must be dealt with in a sensitive manner as far as abortion is
concerned. As a result, the Northern Ireland Human Rights Commission must file an appeal
at the European Court of Human Rights for striking of the laws related to abortion in force as
far as the territorial jurisdiction of Northern Ireland is concerned since such laws seem to be
5 Criminal Justice Act 1945 (Northern Ireland)

in gross contravention of Article 3 of European Convention on Human Rights of 1951. In the
case of Cazan v. Romania6, it was held by the European Court of Human Rights that ill-
treatment comprises a violation of human rights as far as Article 3 of European Convention
on Human Rights of 1951 is concerned. Preventing abortion also implies ill-treatment of
women thereby leading to non-consideration of humanitarian grounds as per the application
filed by the Northern Ireland Human Rights Commission. As a result, it is imperative that the
Supreme Court of the United Kingdom has failed to consider the merits of the case by
dismissing the application filed by the Northern Ireland Human Rights Commission as far as
the issuance of a declaration of incompatibility in accordance with Sub-section 2 of Section 4
of the Human rights Act of 1998 is concerned.
Article 8
Article 8 of European Convention on Human Rights of 1951 implies that privacy of a person
must be respected accordingly. It further states that there should not be any kind of intrusion
to privacy by the authority in question into the life of the concerned person along with the
person. It also implies the respect towards the personal and family life of a human being in a
proper and appropriate manner as far as the life at the personal home is concerned. As
implied from the application filed by the Northern Ireland Human Rights Commission, the
laws governing abortion as a punishable offence are in gross contravention of Article 8 of
European Convention on Human Rights of 1951 as far as privacy and family life is
concerned. In the case of Silver v the United Kingdom, it was held by the European Court of
Human Rights that the censorship of correspondence of a prisoner attracted a gross
contravention of Article 8 of European Convention on Human Rights of 1951. In the case of
A, B and C v. Ireland, it was held by the European Court of Human Rights that the Republic
of Ireland acted in gross contravention of Article 8 of European Convention on Human
Rights of 1951 as far as the establishment by women for abortion in a legal manner is
concerned even though the right with regard to abortion is concerned. As a result, the
application filed by the Northern Ireland Human Rights Commission implies that Northern
Ireland acted in gross contravention of Article 8 of European Convention on Human Rights
of 1951 as far as the laws of abortion are concerned thereby making it extremely difficult for
pregnant women. In the application made by the Northern Ireland Human Rights
Commission before the High court of Northern Ireland, it was held by the High court of
Northern Ireland the criminalization of abortion in cases of foetal abnormality or rape is
6 Cazan v Romania [ECHR] 2018

incompatible with Article 8 of European Convention on Human Rights of 1951. It capitulates
upon the application filed by the Northern Ireland Human Rights Commission as far as the
issuance of a declaration of incompatibility is concerned. It further implies that the laws on
abortion in force in Northern Ireland are in direct violation of the right to family and privacy
as far as Article 8 of European Convention on Human Rights of 1951 is concerned. In the
case of S and Marper v the United Kingdom, it was held by the European Court of Human
Rights that the preservation of information related to the DNA of people is in gross
contravention of Article 8 of European Convention on Human Rights of 1951.

Bibliography
Cazan v Romania [ECHR] 2018
Criminal Justice Act 1945 (Northern Ireland)
European Convention on Human Rights 1951
Human Rights Act 1998
Offences Against Persons Act 1861
R v Panel for Takeovers and Mergers plc [1987] QB 815