[2023] UKUT 00293 (IAC)

Pursuant to ground 2, Mr Toal submits that section 7(1)(b) of the Human Rights Acts provides a general ability for an appellant to rely on ECHR rights at large, without the jurisdictional constraints outlined above.

Section 7 of the Human Rights Act provides, where relevant:

“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.

[…]

(6)

In subsection (1)(b) “legal proceedings” includes—

(a)

proceedings brought by or at the instigation of a public authority; and

(b)

an appeal against the decision of a court or tribunal.”

Mr Toal also submitted that since the Human Rights Act has the quality of a constitutional statute, it cannot be subject to implied repeal. To the extent that the 2020 Regulations established an appellate framework that is inconsistent with the Human Rights Act, it is that Act that prevails. The 2020 Act did not confer upon the Secretary of State power impliedly (or expressly) to repeal the Human Rights Act insofar as it would permit the appellant to rely on section 7(1)(b). It cannot be read or applied as having that effect. The appellant was entitled to advance human rights-based submissions before the judge, pursuant to section 7(1)(b). The judge erred by not permitting him to do so.

For the Secretary of State, Mr Terrell relied on Lord Hope’s summary of the distinction between section 7(1)(a) and (b) in R (A) v Director of Establishments of the Security Service [2009] UKSC 12 at para. 45:

“45.

As Clayton & Tomlinson, The Law of Human Rights, 2nd ed. (2009), para 22.03, puts it:

‘This section contemplates two ways in which a person may advance a contention that a public authority has acted in a way which is incompatible with his Convention rights: either by making a free standing claim based on a Convention right in accordance with section 7(1)(a) or by relying on a Convention right in proceedings in accordance with section 7(1)(b).’

In R v Kansal (No 2) [2002] 2 AC 69, 105-106 I said that section 7(1)(a) and section 7(1)(b) are designed to provide two quite different remedies. Section 7(1)(a) enables the victim of the unlawful act to bring proceedings under the Act against the authority. It is intended to cater for free-standing claims made under the Act where there are no other proceedings in which the claim can be made. It does not apply where the victim wishes to rely on his Convention rights in existing proceedings which have been brought against him by a public authority. His remedy in those proceedings is that provided by section 7(1)(b), which is not subject to the time limit on proceedings under section 7(1)(a) prescribed by section 7(5) ; see also Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 90. The purpose of section 7(1)(b) is to enable persons against whom proceedings have been brought by a public authority to rely on the Convention rights for their protection.”