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2.2.FB's writings on Human Rights
Law
2.2.2. FB's articles on Human Rights
Law
1999.001‘A Human Rights Act Provision
Now in Force’ 163 JP 164
We have been told that the Human
Rights Act 1998 will not be brought into general operation until
2000. For that reason many practitioners think it can be ignored
for the time being. This is a mistake. I now describe a provision
of the Act which has been in force since royal assent was given
on 9 November 1998 and is of wide application. For reasons that
will appear, I am going to refer to it as "the section 22(4)
provision". To explain how it operates requires close examination
of some highly complex, not to say turgid, statutory provisions.
Unfortunately this has to be borne if, as is obviously desirable,
the reader is to come out on the other side in a state of enlightenment
So let us now take a deep breath.
The section 22(4) provision
Section 22(4) applies section 7(1)(b).
This says: "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 . . . 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". Section 6(1) says: "It
is unlawful for a public authority to act in a way which is incompatible
with a Convention right." Section 1(1) says a Convention
right is a right set out in the main provisions of the European
Convention on Human Rights and its Protocols. Section 22(4) says
that section 7(1)(b) "applies to proceedings brought by or
at the instigation of a public authority whenever the act in question
took place", but otherwise does not apply to an act taking
place before the coming into force of section 7. Section 22(3)
says that section 7 shall come force on an appointed day (not
likely to arrive until 2000). Section 6(6) says that generally
speaking references to an "act" include a failure to
act.
How can all this be simplified? I suggest the following
as a basic version of the section 22(4) provision that keeps as
nearly as possible to the words of the Act.
When is the provision applicable? In legal proceedings brought
by or at the instigation of a public authority.
What is the subject-matter? A relevant act or omission
by the public authority which was incompatible with a Convention
right and took place before the coming into force of section 7.
What is the effect? In relation to the act or omission,
a party to the proceedings can rely on the Convention right concerned.
Meaning of "Public Authority"
The above basic version is still not sufficiently clear, because
we have not considered what is meant by "public authority".
The 1998 Act is unsatisfactory on this, telling us not what a
public authority is but what it is not. Section 6 says the term
includes a court or tribunal, and any person certain of whose
functions are of a public nature, but does not include Parliament.
Section 6 also excludes "private" acts or omissions.
This use of the term "public authority" without proper
definition aroused widespread criticism when the Bill was going
through. I joined in this. The nub of the difficulty is that at
Strasbourg an application for breach of human rights under the
Convention can only be brought against one of the High Contracting
Parties, but this is not so under the Act. An official notice
of the European Commission of Human Rights dated 5 January 1998,
issued for the guidance of Strasbourg applicants, says-
"You can only complain
. . . about matters which are the responsibility of a public authority
(legislature, administration, courts of law, etc) of [the state
in question]. 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 a British 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. Strangely,
the 1998 Act does not reproduce this restriction and in it "public
authority" has a much wider, though uncertain, meaning (it
has even been suggested that it includes an NHS general practitioner
practice). No satisfactory explanation has been given of this
discrepancy. As tends to happen with governments possessing an
overwhelming parliamentary majority, the provision was bulldozed
through.
Mysteries of the Section 22(4)
Provision
It was much the same with the section 22(4) provision. I find
the reason which induced the Government to insert this into the
Act elusive and mysterious. It was bulldozed through without explanation.
It seems to have escaped all attention during the proceedings
on the Bill. It was not referred to by any of the Government spokespersons,
nor was it picked up by any of the numerous Opposition and back-bench
participants in the debates. So there is nothing about it in Hansard.
All I have been able to discover is what the Government's Notes
on Clauses say about it, namely-
"This means that it will
be possible for an individual to rely on Convention arguments
after commencement in any civil or criminal action brought by
a public authority irrespective of when the events took place
or whether the proceedings had already started. Otherwise, however,
acts of public authorities committed before [section 7] comes
into force will not be capable of challenge."
Continued..........................
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