In the latest instalment of a continuing series, we offer advice on the issues which face solicitor-advocates

Judicial review applications provide an ideal opportunity for solicitor-advocates to exercise their higher rights and there are important points for consideration in potential Human Rights Act 1998 (HRA) claims in a judicial review application.

Q Public authority or private body?

A Before ruling out the possibility of a judicial review action against a private body, it is worth considering the nature of the services being delivered.

The drive by successive governments and local authorities to outsource public services has blurred the private/public body distinction.

Before the HRA came into force, there was much debate as to how the definition of 'public authority' (section 6(1) of the HRA) and 'public function' (section 6(3)(b) of the HRA) would be interpreted by the domestic courts.

These points were considered in Donoghue v Poplar Housing and Regeneration Community Ltd [2001] EWCA Civ 595.

The Court of Appeal found that Poplar, a registered social landlord, was performing a 'public function', as the local authority had transferred properties to Poplar and Poplar's activities were underpinned by statutory regulation.

By contrast, in Heather and Others v The Leonard Cheshire Foundation and Another [2001] EXCH Admin 429, the Court of Appeal concluded that the foundation - the UK's leading voluntary sector care provider to people with disabilities - was not performing a 'public function', as it was established by private individuals; there was a commercially-based contract between it and the local authority and its services were not underpinned by statutory regulation.

The court noted that the service contracts pre-dated the HRA.

Had they been drafted post-October 2000, the contracts would have to observe the article 8 rights of the claimants.

A request in the High Court pre-action protocol letter for a copy of the private body's contract with the relevant government department or local authority, should reveal the extent of the regard for the service user's convention rights.

Q How do the concepts of proportionality and Wednesbury fit together?

A The judicial review application must address the traditional grounds of Wednesbury unreasonableness in relation to the points of domestic law, followed by proportionality arguments on the HRA points.

The majority of convention rights may be restricted - article 2 (the right to life) may only be restricted in limited circumstances, while article 3 (the prohibition on torture) can never be restricted - provided there is a legitimate aim and the restriction is proportionate to the end achieved.

In R v Secretary of State for the Home Department, ex parte Daly [2001] HL 26, Lord Steyn outlined three distinctions between the two arguments:

- Proportionality requires the court to assess the balance that the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions;

- The proportionality test may go further than the traditional grounds of review, as it may require more attention to be directed to the relative weight attached to the respective interests considerations; and

- The heightened scrutiny test developed in R v Ministry of Defence, ex parte Smith; R v Admiralty Board of the Defence Council, ex parte Beckett; R v Ministry of Defence, ex parte Grady [1996] QB 517, 554, is not necessarily appropriate to the protection of human rights.

Q When can an article 3 right be invoked?

A The jurisdiction of the European Court on Human Rights (ECHR) has imposed a high subjective threshold before the article 3 right can be invoked.

In Ireland v UK (series A, no 25) (1978) 2 EHRR 25, the court determined that ill-treatment must attain a minimum level of severity if it is to fall within the scope of article 3.

It is worth remembering that under article 8, 'private life' includes the right to physical integrity (see Costello-Roberts v UK (1993) 19 EHRR 112, and X and Y v the Netherlands (1985) 8 EHRR 235).

It is good practice to plead article 8 as a safety net to the article 3 points.

Q How do article 6 and article 14 fit with the other convention rights?

A Article 6(1) (right to a fair trial) and article 14 (prohibition of discrimination) are not free-standing rights.

They are 'parasitic' rights that must attach to other convention rights.

In criminal practice, article 6(1) presents few difficulties.

In civil law, the issue becomes more complicated.

The article 6(1) safeguard applies only when the claimant is determining a 'civil right'.

We are well versed that the convention is a 'living instrument' and new civil rights are constantly emerging.

However, the domestic courts will be reticent about finding rights not already established by the ECHR.

It is advisable to carry out an Internet search of recent ECHR decisions to find out how civil rights are extending before attaching article 6 to a perceived civil right.

For example, under the ECHR's jurisdiction, education is not an individual civil right, it is a public right, and there is no civil right to uphold your reputation.

Q Can I argue article 13?

A The HRA has excluded article 13 (the right to an effective remedy).

The government justified this on the basis that citizens have a right to a judicial review and/or appeal from a tribunal of fact on a point of law.

Article 13 arguments can be used in conjunction with article 6, on appeal to the ECHR.

Q Can I use international human rights instruments?

A The ECHR has demonstrably passed judgment on convention rights supported by principles taken from other international human rights conventions.

For example, when the commission considered the admissibility of the complaint brought by Thompson and Venables (see T & V v UK (1999) 16 December) under article 6, its opinion was based on the principles contained in the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, as well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('the Beijing Rules').

Practically, other international instruments should be no more than an interpretative tool or guidance.

But, used correctly, references can be persuasive.

Q What about case law?

A In part 5 'Detailed statement of grounds', the domestic law submissions should be detailed first, followed by the HRA grounds.

The HRA creates a regime for awarding damages in which principles of English common law do not play a definitive part.

The ECHR case law must be relied on unless there are special circumstances (see The Queen on the application of N v The Secretary of State for the Home Department [2003] EWHC 207 (Admin)).

Q Where can I look for more information?

A For human rights and public law information, contact the advice line for solicitors with Legal Services Commission contracts, tel: 0808 808 4546, Mon/Wed 2pm to 5pm, Tues/Thurs 10am to 1pm.

See the Council of Europe Web site for the full text of ECHR cases at: www.echr.coe.int/.

And the United Nations Web site for the full text of international human rights instruments at: www.unhchr.ch/tbs/doc.nsf.

This column was prepared by the Solicitors' Association of Higher Court Advocates.

For details of SAHCA or for a membership application form, contact Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk.