2.2.FB's writings on Human Rights Law

2.2.2. FB's articles on Human Rights Law

1999.007 ‘The Human Rights Act 1998’ CLW 16/99

SECTION 22(4) OF THE HUMAN RIGHTS ACT 1998

Because a great deal of preparatory work is required in the training of judges, magistrates and officials, most provisions of the Human Rights Act 1998 will not be brought into force until 2000 or perhaps even 2001. However there is an important provision of the Act which has been in force since royal assent was given on 9 November 1998. This is section 22(4), which is explained in this article. Unfortunately section 22(4), and the provisions it applies, are highly complex and the effect is not entirely beyond doubt.

Details of section 22(4)

Section 22(4) of the Human Rights Act 1998 reads-

"Paragraph (b) of subsection (1) of section 7 [of this Act] applies to proceedings brought by or at the instigation of a public authority whenever the act [or omission] in question took place; but otherwise that subsection does not apply to an act [or omission] taking place before the coming into force of that section."

This applies section 7(1)(b) of the Act, and one therefore needs to begin there. Section 7(1)(b) reads:

"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". This takes us to section 6(1) of the 1998 Act, which says that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

We are here confronted with three terms of art, "public authority", "victim" and "Convention right", which I will next endeavour to explain. I will leave "public authority" to the last as it is somewhat complex. The term "victim" has a fairly narrow technical meaning worked out in case law by the European Court of Human Rights at Strasbourg (see s. 7(7) of the 1998 Act). A "Convention right" is a right comprised in the main provisions of the European Convention on Human Rights and its Protocols, which are set out in Schedule 1 to the 1998 Act. The meaning of "public authority" requires more space to explain.

What is a "public authority"?

Section 6(3) of the 1998 Act says the term "public authority" includes a court or tribunal, and any person certain of whose functions are of a public nature, but does not include Parliament or the House of Lords in its judicial capacity. Section 6(5) says that in relation to a particular act or omission a person or body is not a public authority if the nature of the act or omission is private. The complex and incomplete definition creates difficulty. In deciphering it our courts are likely to rely on the jurisprudence at Strasbourg, where the term "public authority" is commonly used.

The main difficulty over "public authority" arises because at Strasbourg an application under the Convention can only be brought against one of the High Contracting Parties whereas this is not so under the 1998 Act, which is intended to apply to a wider range of defendants. 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."

Here "private" is contrasted with a meaning of "public" which regards it as meaning belonging to the state. So a British company which we would regard as "public" may not be able to be taken to Strasbourg under the Convention because it is not regarded as a manifestation or emanation of the British state. The 1998 Act fails to reproduce this restriction so in it "public authority" has a much wider, though uncertain, meaning. It has even been suggested that it includes an NHS medical practice, but on questions of this kind we shall not know the answers for certain until our courts have pronounced on the Act.

The effect of section 22(4)

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 or 2001). I would summarise the effect of section 22(4) as follows.

It applies, in legal proceedings brought by or at the instigation of a public authority, to 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. The effect of section 22(4) is that, in relation to the act or omission, a party to the proceedings can rely on the Convention right concerned even though breach of the right took place before the coming into force of section 7.

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