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 - continued

One mystery is that this refers to "an individual", whereas section 22(4) is not limited to proceedings against individuals. Another mystery is that it says section 7(1)(b) applies "whenever the act in question took place" yet on a literal interpretation section 7(1)(b) applies only to an act done after section 6(1) comes into force. An act done before then cannot be "made unlawful by section 6(1)".

I sought enlightenment from the Home Office, who were courteous enough to send me the following reply-

"Subject to what I say below, the Act has effect only in relation to acts and omissions occurring after, or omissions dating from when, the Act comes into force. This is the position as far as the institution of civil or tribunal proceedings challenging the act or omission of a public authority is concerned."

"The position is different in a case where proceedings have been instituted by a public authority. Although section 6(1) only applies to acts committed after commencement, section 22(4) makes clear that section 7(1)(b) (and by necessary implication section 6(1)) is applicable in proceedings of the kind detailed in section 22(4) as if those sections had been in force before commencement. The outworking of this is that from the commencement of the Act, it will be possible to raise in one's defence in any proceedings before a court or tribunal brought by a public authority, or in an appeal (including a case-stated or judicial review) from a decision of a court or tribunal in such proceedings, any Convention argument available under the Act irrespective of whether the act or failure to act giving rise to the Convention argument took place before or after the Act comes into force."

"This could mean that it is, for example, only in his appeal against his conviction that a person can for the first time run a Convention argument in his defence or only after the Act comes into force that a ground of appeal becomes available to him."

This gives the Government's answer to one of my "mysteries", that arising from the fact that section 22(4) says section 7(1)(b) applies "whenever the act in question took place" yet an act done before section 6(1) comes into force cannot be "made unlawful by section 6(1)". The Home Office assert that the meaning they desire is given "by necessary implication". It remains to be seen whether the courts will uphold this.

An Example

An example of how the section 22(4) provision might work is furnished by an item in the Times of 8 February 1999. Frances Gibb reported that-

"A key legal weapon in the fight against terrorism would be lost if a test case next month by four alleged bombers is successful. Lawyers for the Middle Eastern men claim that the Prevention of Terrorism Act is in breach of the new Human Rights Act. They say that it forces the burden of proof on to the defendants, who can be found guilty unless they can prove an innocent reason for having materials that can be turned into bombs . . . The Act is not yet in force but the men are arguing that, were their case to come to trial, then the prosecution could be successfully be contested under that Act, which is likely to be in force by next year. The men have won High Court leave to bring judicial review proceedings against the Crown Prosecution Service . . ."

Ms Gibb does not mention the section 22(4) provision in her piece. However if the prosecution she refers to were to be instituted before section 7 comes into force the section 22(4) provision might apply in the following way. (I repeat the analysis given above.)

When is the provision applicable? In legal proceedings brought by or at the instigation of a public authority. [The CPS is clearly 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. . . [It might be argued that initiating the proceedings was contrary to the Convention if the Convention gave the Middle East defendants a watertight defence.]

What is the effect? In relation to the act or omission, a party to the proceedings can rely on the Convention right concerned. [This would entitle the Middle East defendants to rely on the Convention.]

Conclusion

A very wide range of bodies may be held to be public authorities within the meaning of the 1998 Act. All of them are liable to find that under the section 22(4) provision their acts or omissions occurring before the Act was passed, or during the period between royal assent and general commencement in 2000, become relevant in legal proceedings brought by them, or brought at their instigation, if the acts or omissions can be said to have contravened the Convention.