1998.001 ‘Which sort of Human Rights
Act?’ 148 NLJ 488
Francis Bennion asks a last-minute
question
Soon we shall have our very own Human Rights Act, when the Bill
now going through Parliament comes into force. Which sort of Act
will it be? There are still two possibilities open. Either it
will mirror the European Convention on Human Rights (the Convention),
producing much the same result as going to Strasbourg (the mirror-image
Act), or it will be a free-standing affair waiting to be developed
by our judges as they think fit (the free-standing Act).
Does it matter?
The mirror-image Act is what everyone has been led to expect.
It requires the following four characteristics. (1) The rights
protected by the Act should be exactly the same as the rights
protected at Strasbourg. (2) The same exclusionary rules as at
Strasbourg should govern the question of who can make an application
under the new Act. (3) In British cases, the defendant at Strasbourg
is always "the United Kingdom" (with an enlarged meaning),
so it should be same under the new Act. (4) The British Government
has without a single exception always implemented the findings
of the Strasbourg court, even when hostile, so the same should
apply under the new Act.1
If the free-standing Act were adopted, none of that would follow.
Even though the Act set out the relevant articles of the Convention
(as the Human Rights Bill does in Schedule 1), they would not
necessarily have the same meaning as at Strasbourg. Instead they
would have whatever meaning our judges chose to put upon them,
in the name of developing a distinctive "British" human
rights regime. The persons entitled to apply under the Act would
not be the same as those entitled to apply to Strasbourg. The
defendant would not be "the United Kingdom" but whoever
the judges elect to find suitable when construing the largely
undefined term "public authority" used in clause 6 of
the Bill. It is uncertain whether the British Government would
without a single exception always implement the findings of our
courts under the Act.
The story so far
The story begins with a consultation paper published in December
1996 entitled Bringing rights home; Labour's plans to incorporate
the European Convention on Human Rights into UK law. The
authors were two Labour MPs, Jack Straw and Paul Boateng. The
paper explained that "Labour is committed to incorporating
[the Convention] into UK law through a new Act of Parliament".
That was how Labour would bring rights home, so that there would
no longer be any need for people to go to Strasbourg. "The
new Act will allow British people to assert and enforce their
rights under [the Convention] through the ordinary UK courts and
tribunals." That sounds very much like the mirror-image Act.
Next came the new Labour Government's white paper of October
1997 entitled Rights Brought Home: The Human Rights Bill
(CM 3782). It opened with Tony Blair's pledge "based on bringing
the European Convention on Human Rights into United Kingdom law".
The paper went on to say that the Bill would give people in the
United Kingdom opportunities to enforce their rights against the
state under the Convention in British courts rather than having
to incur the cost and delay of taking a case to Strasbourg. Again,
what that promises is the mirror-image Act.
The Human Rights Bill has passed through the House of Lords,
with some minor amendments, and awaits committee stage in the
Commons. Does it deliver a mirror-image Act? I cannot in an article
cover the whole field, so in answering this I shall stick to the
four points already mentioned.
(1) Interpreting the Convention
articles
The Convention is a treaty. Domestic law requires our courts
to construe a treaty in the same way as courts in other countries
construe it. In Re H and others (minors) (abduction: acquiescence)
[1997] 2 All ER 225 at 234 Lord Browne-Wilkinson said: 'An
international convention, expressed in different languages and
intended to apply to a wide range of differing legal systems,
cannot be construed differently in different jurisdictions. The
convention must have the same meaning and effect under the laws
of all contracting states'.
The Bill is confused on this point. It refers throughout to "the
Convention rights" and defines these as the rights and fundamental
freedoms set out in articles 2 to 12 and 14 of the Convention
"as read with articles 16 to 18". (I ignore the protocols,
which do not affect the argument.) The last words are odd, because
the rule of interpretation is that a document must be read as
a whole. If "the Convention rights" are to mean the
same as the meaning found by the Strasbourg court, then the cited
articles must be read along with the entirety of the
Convention, not just articles 16 to 18.
Our courts will have to make sense of the specified articles.
Government spokesmen on the Bill have constantly diverted questions
as to its legal meaning by saying they must be left to the courts
to decide. But the courts cannot successfully operate in a vacuum.
What are they to conclude when told that they must not consider
the entire Convention?
Another rule of interpretation is relevant. It is sometimes expressed
in Latin phrases such as expressum facit cessare tacitum
(no inference is proper if it goes against the express words)
or expressio unius est exclusio alterius. (to express
one thing is to exclude another thing not expressed). What these
mean is that if you say, as here, that the specified articles
are to be read with articles 16 to 18, that by implication means
they are not be read with any other parts of the Convention.
Yet they need to be read with the Preamble, which invokes the
Universal Declaration of Human Rights and explains the Convention's
purpose. They need to be read with article 1, which demands that
'The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section
1', making clear that it is the European states themselves, and
no one else, who have the duty of obeying the obligations imposed
by the Convention.
They also need to be read with article 34 (formerly article 25),
which states: "[t]he court may receive applications from
any person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in the Convention . . ."
The effect of this has been described in D J Harris, M O'Boyle
and C Warbrick, Law of the European Convention on Human Rights
(1995), page 630, as follows: "While 'non-governmental organisations'
and 'groups of individuals' are broad categories they do not cover,
for example, bodies such as municipalities, other local government
organisations or semi-state bodies." Even the word "person"
in article 34 does not include one of these bodies, which cannot
therefore object that "the United Kingdom" has infringed
its rights.
Because the presumption from the wording of clause 1 of the Bill
is that the specified articles are not to be read with the rest
of the Convention it seems that our judges are meant to have a
free hand in construing them. This is confirmed by clause 2, which
requires a court applying a Convention article to take into
account rulings on its meaning given by the Strasbourg court
without being bound by them. This is in line with the civil law,
which has no doctrine of binding precedent. It permits allowance
to be made for the "margin of appreciation" which is
permitted under the Convention jurisprudence. On this the Lord
Chancellor said in a debate on the Bill that "[o]ur courts
must be free to develop human rights jurisprudence by taking into
account European judgments and decisions, but they must also be
free to distinguish them and to move out in new directions in
relation to the whole area of human rights law" (HL Deb.
24 November 1997, col. 835). Definitely a flavour of the free-standing
Act there.
The first question asked above was whether the rights protected
by our new Act will be exactly the same as the rights protected
at Strasbourg. The answer has to be no.
(2) Who can apply?
The second of the four questions to be used for establishing
whether the Act will be a mirror-image Act is who will be able
to apply to our courts to have their rights protected? Not everyone
is entitled to go to Strasbourg, so will the same exclusory rules
govern an application under the new Act? Here the answer lies
in clause 7 of the Human Rights Bill. If we were intended to have
a mirror-image Act, one would expect to find here something equivalent
to article 34 of the Convention (set out above). We do not.
Instead we find clause 7(1) stating, with one caveat that I shall
come to, that any person with a claim will be entitled to pursue
it. Here of course "person" is used with its wide English-law
meaning, including all natural and artificial persons, and not
with the narrower meaning which, as I have said, is applicable
to article 34. The caveat I mentioned is that the applicant "is
(or would be) a victim of the unlawful act". What does that
curious expression mean? We are told in clause 7(6). A person
is a victim only if he or she would be a victim for the purposes
of article 34 of the Convention!
So we are brought back to article 34 after all, but the position
is not as clear as it might be. The Notes on Clauses say of clause
7(6): "[t]his attracts the Convention jurisprudence on 'victim'.
In particular, the person must be directly affected by the act"
(my italics). The suspicion is that this talk of a "victim"
is merely intended to exclude persons indirectly affected, such
as interest groups, and does not have in mind the exclusion of
directly-affected persons of the wrong type, such as
local authorities. This reading is borne out by statements in
debate by Government spokespersons (see eg the Lord Chancellor
in HL Deb. 24 November 1997, col. 831: "The wording of clause
7 therefore reflects the terms of the Convention, which stipulates
that petitions . . . will be ruled inadmissible unless the applicant
is the victim of the alleged violation").
We may have to await a certain answer until some body such as
a local authority tries to bring a claim under the new Act, as
assuredly they will.
(3) Will the defendant always
be "the United Kingdom"?
The third of our four questions to be used for establishing whether
the future Human Rights Act will be a mirror-image Act is: Will
the defendant always be, as at Strasbourg, "the United Kingdom"?
Here the answer has to be no, though as we shall see it still
may be possible occasionally to make the United Kingdom, or the
Crown, the defendant. The follow-up question is: Who then will
the defendant be? Here in many cases the answer is not obvious.
At Strasbourg, an application for breach of human rights can
only be made against one of the High Contracting Parties. The
Human Rights Bill is concerned only with cases where the High
Contracting Party is the United Kingdom. An official notice of
the European Commission of Human Rights dated 5 January 1998,
issued for the guidance of applicants under the Convention, says:
"You can only complain . . . about matters which are the
responsibility of a public
authority (legislature, administration, courts of law,
etc) of [the state]. The Commission cannot deal with complaints
against private individuals or private organisations." In
the second sentence of this, "private" is contrasted
with a meaning of "public" which equates it with belonging
to the state. So an organisation which is in ordinary usage
"public" (such as a public limited company or p.l.c.)
cannot be the subject of an application under the Convention because
it is not a manifestation or emanation of the British state.
Clause 6 of the Bill says that, subject to exceptions, that it
is unlawful for a "public authority" to act in a way
which is incompatible with a Convention right. It does not say
that here "public authority" has the same meaning as
in the Convention. Indeed it does not say what meaning it has,
though it says what meaning it does not have. Its meaning does
not, for example, include either House of Parliament, nor presumably
(though it does not say so) the Queen in Parliament, the source
of our primary legislation. This cuts out the very first type
of body (legislature) which as we have seen is named by the Commission
as an example of a public authority to which the Convention applies.
Strike one against the mirror-image Act.
Strike two is the exclusion from the future Act of cases (not
of course excluded by Strasbourg) where under prevailing United
Kingdom law the public authority complained against "could
not have acted differently".
Strike three is the apparent Government view that bodies like
the Press Complaints Commission (PCC) will be public authorities
under our new Act. The PCC is certainly not a public authority
under the Convention, because it is considered to be privately
constituted. (I was assured of this by lawyers of the Commission
when I raised the point with them.) The Government has shuffled
its feet on this one, as indicated by Sir Nicholas Lyell: "Is
the Press Complaints Commission a public authority? At one moment
the Government said it was not, but they took advice from David
Pannick QC and then said it was." (Commons Hansard 16 February
1998, col. 855.) Lyell received no distinct reply from the Government
spokesperson, but the conclusion from Government answers generally
is that though it will be for the courts to decide the answer
is probably in the affirmative.
It is obvious that on the test of the third point the new Act
will not be a mirror-image Act but a free-standing Act which even
from the start gives markedly different answers to those laid
down by the Convention.
(4) Will the Government always
implement rulings?
The last of the four questions to be used for establishing whether
or not Britain is to get a mirror-image Act concerns the fact
that our Government has without a single exception always implemented
the findings of the Strasbourg court, even when hostile. [See
above though.] Will the same apply under the new Act?
In the debates on the Human Rights Bill the Home Secretary, Mr
Jack Straw, was asked the following question by Simon Hughes of
the Liberal Democrats (Commons Hansard 16 February 1998, col.
774): "If a Government introduced legislation [banning such
as GCHQ workers] from belonging to a trade union would they be
able to go to a British court immediately for a remedy . . ."
The answer, though Mr Straw did not give it straight out, is no.
Instead Mr Straw explained that the policy of the Bill is to accept
that Parliament is supreme (even though since the passing of the
European Communities Act 1972 it is not in practice supreme).
However he added: "According to 50 years of practice on both
sides, we always put the action right, and bring it into line
with the Convention". [Cf note above.] The burden of his
remarks was that this policy of implementation might
be continued, though he could not bind his successors.
The truth
The truth emerges that, as the Bill stands, the Human Rights
Act we are about to be given will be more a free-standing Act
than a mirror-image Act. This is unsatisfactory, because it means
that in some cases at least a different result will be obtainable
at Strasbourg than can be got at home. It also gives a blank cheque
to our judges to develop the Convention's open-textured articles
as seems good to them. The state is likely to suffer, as well
as legal certainty. Here the following quotation is apposite.
"In recent years . .
. it has been difficult for the State to obtain justice from the
judges of the High Court . . . the weight of prejudice against
the State in the minds of many members of the Court of Appeal
and Judges of the High Court has been such as seriously to affect
the Administration of Justice."
This might be thought a recent utterance, but the capitals give
it away. It was addressed to the Lord Chancellor of 1929 by his
permanent secretary (cited by Robert Stevens in The Human
Face of Law (1997), pp 245-6). Some may think it has grown
truer over the years, and that if we get this free-standing Act
it will grow truer still.
Perhaps the biggest objection to the Bill as it stands now is
that under it an applicant will probably not be able, as can be
done at Strasbourg, to proceed against the United Kingdom on the
ground that there is a lacuna on some aspect of British law. Many
articles of the Convention require a state's law to include certain
provisions. Our courts should be able to make a declaration (akin
to a declaration of incompatibility under clause 4) where a necessary
law is absent.
I use the word "probably" in the preceding paragraph
for this reason. As the term "public authority" in clause
6 is essentially undefined it would be possible to argue that
it includes the United Kingdom, or at least the Crown, and proceed
in that way where our law is deficient. One cannot sue either
House of Parliament, but the court might possibly hold that one
can sue the Crown and at least obtain a declaration. Then, in
line with existing practice regarding Strasbourg rulings, the
government would be expected to promote the necessary legislative
change.
Conclusion
I conclude by listing the main amendments needed to the Human
Rights Bill to ensure that the Act we get is a mirror-image Act
and not a free-standing Act.
1. Amend clause 1(1) (meaning of "the Convention rights")
to require the relevant articles of the Convention to be interpreted
by our courts as they would be by the Strasbourg court, allowing
for the national "margin of appreciation".
2. Widen clause 4 (court declaration that a provision of legislation
is incompatible with the Convention) to include the case where
neither the common law nor our legislation includes a provision
required by the Convention.
3. Amend clause 6(3) (meaning of "public authority")
so as (1) to exclude any person who under the Convention would
not fall to be treated by the Strasbourg court as an emanation
of the United Kingdom, and (2) so as to include the Crown in cases
where the law of the United Kingdom is challenged.
4. Amend clause 7(1) (description of persons who may complain
of a breach of their convention rights) so that it excludes a
person who does not fall within the phrase "any person, non-governmental
organization or group of individuals" contained in the new
article 34 of the Convention.
In addition a Government statement should be made that it is
intended to continue, in relation to court findings under the
new Act, the present invariable practice of giving effect to the
rulings of the Strasbourg court.
1998(1) ‘Which sort of Human Rights Act?’ 148 NLJ
488.
1This
statement is challenged by Luke Clements in ‘The Human Rights
Act – A New Equity or a New Opiate: Reinventing Justice
or Repackaging State Control?’, 26 JLS (1999) 72, 82. However
it is supported by a Government statement in Rights Brought Home:
The Human Rights Bill (CM 3782), para 1.10.
Footnotes: To read a footnote
simply move the cursor so that it "hovers" over the footnote number
in the text. It is not necessary to press any mouse buttons as the footnote
will appear automatically.
