It’s not unusual nowadays for campaign groups of all kinds to take judicial review proceedings against public authorities: it’s now well established that their knowledge of and involvement in matters of public interest means they can have a sufficient interest entitling them to challenge public law decisions within the area of their expertise. The key case establishing the principle in the mid nineties was the Pergau dam case – R v Foreign Secretary ex parte Word Development Movement.
But things are different under the Human Rights Act 1998, as last week’s judgment in the Administrative Court in Children’s Rights Alliance v Justice Secretary reminds us. The Children’s Rights Alliance were trying to force the Ministry of Justice to track down and contact people who may have been subjected to unlawful restraint while in Secure Training Centres as youths, between 1998 and 2010.
Mr Justice Foskett decided to look at the case on its merits – and rejected it. There’s no requirement on ministers to go through this exercise of tracing and contacting those who may have been unlawfully restrained, whether under the Human Rights Act or common law.
But in any event, he concluded, he would have been obliged to throw the case out as far as it related to human rights, because the CRA was not itself the victim of any human rights breach. Section 7 of the Human Rights Act 1998 says that
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
The European Court has a fairly flexible approach to what makes you a victim; but this doesn’t extend to allowing applications by campaign groups acting on their own, on behalf of those whose rights they say have been breached. Of course if a campaign group’s own rights have been curtailed – its freedom of expression, for instance – then it is itself the victim of an alleged breach, and can use human rights arguments in court. That’s what happened for instance in R (Animal Defenders) v Culture Secretary  UKHL 15. But it’s not what happened in this case.
The answer under section 7 is clear: the CRA was not the victim of any unlawful restraint, and so could not rely on human rights arguments to force the Secretary of State to do anything (see paragraphs 212-225 of the judgment).
Foskett J made it clear he thought this was “unfortunate” and that he reached his conclusion with little enthusiasm (paras. 223-4). But since that is the law, was it a good use of public resources to hold a three-day hearing, much of which must have been dedicated to the very human rights arguments that the CRA could not lawfully advance?
Happy New Year.
Preliminary point – is the applicant within section 7.
HNY to you too, Obiter!