Kris Gledhill

The Public Function Test: Have We Been Asking the Right Question?

1. Section 6 of the Human Rights Act 1998 indicates that it covers all public authorities (with exceptions for legislative functions), and indicates in subs. (3) that this covers courts, tribunals and “(b) any person certain of whose functions are functions of a public nature” (though not in relation to a private act: see subs. (5)). Other jurisdictions with similar non-supreme law but statutory protection of human rights are broadly comparable, though there has been a tendency over time to become more prescriptive about which bodies are covered or what features are relevant in the determination of the question: see ss 40 and 40A of the Human Rights Act 2004 (Australian Capital Territory (ACT)) and s. 4 of the Charter of Rights and Responsibilities Act 2006 (Victoria). For example, s. 40A(3) of the ACT statute makes it clear that utilities, emergency services and public transport are within the definition. This more prescriptive approach may be a response to the difficulties revealed by case law under the UK legislation.

Brind – Time to Move On?

1. Entering into treaties is a prerogative power of the Crown, creating obligations binding on the state in international law. But the United Kingdom has a relatively strict dualist approach, seeing international law and domestic law as two distinct bodies of law rather than a monist whole; combined with the separation of powers doctrine, this has been found to mean that domestic law is not created out of international treaty law without the express indication by the legislature in the form of legislation.1

The role of capacity in mental health laws - recent reviews and legislation

The context in which the Szmukler et al proposal is put forward is the several reviews in the different jurisdictions in the United Kingdom and in Ireland, which have led to capacity becoming a central feature in relation to civil detention in Scotland and in Ireland, and which may well lead to it becoming a central feature in Northern Ireland, though efforts to achieve the same in England and Wales were rejected. For forensic patients, however, capacity is not prominent, and the proposal made goes further than recent legislative amendments and debates have contemplated. These are set out in the order in which they occurred: the Richardson Committee review of the English statute, then the amendments in Scotland, followed by those in Ireland (which pre-dated those in Scotland but came into effect later); next was the action that was eventually taken in relation to the English statute, and finally there are the proposals as to what to do in Northern Ireland. The latter is the only one that comes close to the proposals of Szmukler and others, which they acknowledge in their paper.

Executive Action and Convention Compliance? A Risk Unrecognised by the House

R (MH) v (1) Secretary of State for Health (2) Mental Health Review Tribunal House of Lords, 20 October 2005 [2005] UKHL 60, [2005] Mental Health Law Reports 302