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Who can legally try a claim under the Human Rights Act 1998?

Re: Who can legally try a claim under the Human Rights Act 1

Postby Denning » Thu Jun 04, 2015 3:13 am

Hairyloon, thanks for the simplification.

atticus, where an alleged breach of the Human Rights Act relates to the exercise of judicial power any remedy is likely to be brought by permission of the court. Would you agree that since this court principal role is that of reviewing the decision of the lower court or tribunal where the breach took place the word "try" may not be limited to the definition you provided that is to conduct the trial of the claim or action?
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Re: Who can legally try a claim under the Human Rights Act 1

Postby dls » Thu Jun 04, 2015 3:47 am

The conduct of any court case involves many decisions, not all of which involve deciding the issues central to the legal decision. I suspect therefore that 'try' does refer to a more limited range of issues. The distinction may not always be obvious, but it is a regular preliminary decision in a case as to whether or not a human rights issue is raised.

It seems necessary to me that there has to be a way of a lower court deciding both 'Wait on, this case raises Human Rights issues, and I cannot try it, so I now decide that it must be reserved to an appropriate judge' and also its corollary, 'Whatever you say, what you describe does not raise a human rights issue and I can try this. Appeal if you wish.'
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Re: Who can legally try a claim under the Human Rights Act 1

Postby atticus » Thu Jun 04, 2015 7:50 am

Ding, it is possible. It appears that we may be getting (hairy-like) to the point of your question on the third page of the thread. I think that what you are getting at is: can permission be refused by a person who may not "try" such a case?
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Re: Who can legally try a claim under the Human Rights Act 1

Postby Hairyloon » Thu Jun 04, 2015 2:39 pm

Denning wrote:Hairyloon, thanks for the simplification.

I don't know that it is any simpler, just phrased differently. I don't even claim that it is right, but if it is wrong, then it should clarify what I have misunderstood.
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Re: Who can legally try a claim under the Human Rights Act 1

Postby Denning » Thu Jun 04, 2015 3:29 pm

[Section 7 of the Human Rights Act 1998]

7 Proceedings.

(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.

(2)In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
...

[Section 9 of the Human Rights Act 1998]

9 Judicial acts.

(1)Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—
(a)by exercising a right of appeal;
(b)on an application (in Scotland a petition) for judicial review; or
(c)in such other forum as may be prescribed by rules.

(2)That does not affect any rule of law which prevents a court from being the subject of judicial review.
...
(5)In this section—
...
“court” includes a tribunal;
“judge” includes a member of a tribunal, a justice of the peace (or, in Northern Ireland, a lay magistrate)] and a clerk or other officer entitled to exercise the jurisdiction of a court;
“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; ...

dls, I think there is a difference between Human Rights issues (which I think any judge including a District Judge, Master and Deputy High Court Judge can consider) and the alleged breach of judicial powers captured within the quoted passages of Sections 7 and 9 of the Human Rights Act 1998 above (which is in the territory of the question).

atticus provided a part of the question which I can adapt to:
1. can a case be dismissed (at the substantive hearing) by a person who may not "try" such a case?
2. can a case be refused (at the permission stage) by a person who may not "try" such a case?
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Re: Who can legally try a claim under the Human Rights Act 1

Postby atticus » Fri Jun 05, 2015 3:45 pm

As a matter of interest, it will be observed that s9 HRA 1998 contains a definition of "judicial act".
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Re: Who can legally try a claim under the Human Rights Act 1

Postby Denning » Tue Jun 09, 2015 12:06 am

Still waiting for opinions to the two adapted questions in my last post above.
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