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 - continued

The reason which induced the Government to insert section 22(4) into the 1998 Act is not clear. The provision 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 commented on by the Opposition and back-bench participants in the debates. So there is nothing about it in Hansard. The Government's Notes on Clauses say this about it-

"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."

One puzzle is that section 22(4) 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 (which is likely to be on the same date in 2000 or 2001 that section 7 comes into force). An act done before then cannot be "made unlawful by section 6(1)". I enquired of the Home Office, who kindly sent me the following explanation-

"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 [on a day in 2000 or 2001], 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."

Another puzzle is why, since section 22(4) is now in force, a person entitled to its protection should have to wait until the general commencement of the Act to rely on it.

The Kebilene case

The sort of impact section 22(4) can have before the 1998 Act is brought generally into force in 2000 or 2001 is shown by the decision of the Divisional Court in R v Director of Public Prosecutions, ex p Kebilene and others [1998] The Times, 31 March. The case concerned a prosecution brought under the Prevention of Terrorism (Temporary Provisions) Act 1989 ss 16A and 16B, as inserted by the Criminal Justice and Public Order Act 1994 s 82, for possession of articles useful to terrorists. The prosecution required the consent of the Director of Public Prosecutions, which had been given. The defendants applied to the Divisional Court for a ruling that, since ss 16A and 16B cast the onus of proving innocent possession on the accused, they contravened the Convention right relating to the presumption of innocence conferred by article 6.2, and that in the light of section 22(4) of the Human Rights Act 1998 the Director should review his decision to consent to the prosecution.

The application to the Divisional Court was successful. Lord Bingham of Cornhill CJ said that although section 22(4) did not give rise to a "legitimate expectation" that article 6.2 would be implemented before such time as the 1998 Act was brought generally into force in 2000 or 2001, it should cause the Director to think again about his consent to the prosecution. He could reasonably suppose that the 1998 Act would be brought into force in time for section 22(4) to operate on the appeals of the applicants, assuming they were convicted. He added: "If at the time of the appeal hearing the central provisions [of the 1998 Act] were in force, the applicants would be entitled to rely on sections 7(1)(b) and 22(4), and the convictions, on the basis of inconsistency [with article 6.2], would probably be quashed, at some not inconsiderable cost to the public purse . . ."

Lord Bingham went on to add as an additional reason for second thoughts by the DPP, that even if the 1998 Act had not been brought into force by then (and there was no guarantee that it would) "the applicants would show a violation of the Convention by the United Kingdom and so obtain a decision in their favour in the European Court of Human Rights and perhaps recover compensation and achieve their release". Leave to appeal was given. If the decision is right it answers the two questions raised above: (a) section 22(4) applies even though the act or omission was not contrary to s 6(1), and (b) notice cannot be taken of section 22(4) until the general commencement date has arrived.

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 under section 22(4) that their acts or omissions occurring before the Act was passed, or during the period between royal assent and general commencement in 2000 or 2001, 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.

1999(7) 7 CLW 16/99.