The Case for the Human Rights Act (1)

8/12/2019 The Case for the Human Rights Act (1)

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The case for the

Human Rights Act

PART 1 OF 3 RESPONSES TO THE

COMMISSION ON A BI OF RI!HTS" HRA

P#S NOT MIN#S


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Contents

Contents 2

Foreword 3

Introduction 5

The role of the Commission and our response............................................................................................7

Chapter 1: Do we need a Bill of Rights? 11

1. The Commission's position.................................................................................................................... 11

2. Human rights in British history............................................................................................................... 13

3. The Human Rights Act a British model of human rights legislation......................................................1!

". The effecti#eness of the Human Rights Act...........................................................................................21

Chapter 2: Retaining the rights and mechanisms of the R! 2"

1. $ection 2 %nterpretation of Con#ention rights........................................................................................3&

2. $ection 3 %nterpretation of legislation...................................................................................................."1

3. $ection " eclarations of incompati(ility..............................................................................................")

" $ection* Acts of pu(lic authorities and meaning of 'pu(lic authority'.....................................................+*

+. $ection ! ,udicial remedies ................................................................................................................. *7

*. $ection 1& The po-er to tae remedial action......................................................................................*!

7. $ection. 12 /reedom of e0pression ......................................................................................................7&

!. $ection13 /reedom of thought conscience and religion......................................................................71

). $ection 1" and 1+ Reser#ations and erogations ...............................................................................72

1&. $ection 1) $tatements of Compati(ility .............................................................................................73

Chapter 3: Implications for the de#ol#ed nations $"

1. $cotland................................................................................................................................................ !&

2. ales.................................................................................................................................................... !3

3. orthern %reland..................................................................................................................................... !*

Chapter %: &he process for de#eloping an' Bill of Rights ((


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Fore$or%

The Equality and Human Rights Commission welcomes this opportunity to

respond to the consultation by the Commission on a Bill of Rights on whether

a U Bill of Rights should be de!eloped to replace the Human Rights "ct# "s

Britain$s %ational Human Rights &nstitution we belie!e that we ha!e a

!aluable role to play in pro!iding e!idence' ad!ice and support in these

discussions#

Britain has a proud and long tradition of de!eloping human rights from the

(agna Carta in 121)' the Bill of Rights in 1*+,' the in!ol!ement in draftingthe European Con!ention on Human Rights' and the enactment of the

Human Rights "ct in 1,,+# This proud tradition continues with the U

go!ernment ta-ing o!er the chairmanship of the Council of Europe for si.

months from %o!ember this year' and a British /udge %icolas Brat0a being

appointed the president of the European Court of Human Rights#

The Commission belie!es that the Human Rights "ct has pro!ided essential

human rights protection to e!eryone in Britain and that it meets the needs of

our British constitutional traditions# ur position is that if any Bill of Rights

were de!eloped it should only build on the rights and mechanisms contained

in the Human Rights "ct#

The Human Rights "ct has had a significant positi!e impact on bringing

rights home to e!eryone in Britain# 3hereas before people would ha!e to

endure the considerable delay and e.pense of bringing a human rights claim

in the European Court of Human Rights' the "ct has meant that they could

gain protection in our British courts# The Human Rights "ct has also been

designed to suit the particular British constitutional traditions of parliamentary

so!ereignty# Courts see- to interpret legislation compatibly with Con!ention

rights but if they cannot' they ha!e no power to stri-e down legislation# &n


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into the recent constitutional fabric of the de!olution settlements with

5cotland' 3ales and %orthern &reland# This ensures that human rights are

central to the decision ma-ing of the de!ol!ed legislatures#

Howe!er' despite the reality of the positi!e impact of the Human Rights "ct'

e!idence from re!iews of the "ct by the Commission and the go!ernment

demonstrate that there is a substantial lac- of understanding of the "ct# 3orst

still' there are significant misconceptions of whom it protects' where it deri!es

from and the limits of its application among the public' politicians' lawyers' the

media and public authorities#

(a/or wor- is required by the go!ernment' the Commission and other -ey

sta-eholders to impro!e the understanding and application of the "ct# But it

does not in our !iew /ustify amending or repealing the "ct itself' which if done

would ma-e Britain the first European country to possibly regress in the le!els

of its human rights protection# 3e loo- forward to discussing our response in

more detail with the Commission on a Bill of Rights o!er the coming months#

!era&%ine 'an Bueren

ea% Commissioner on Human Rights


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Intro%uction

78o we need a U Bill of Rights9: is the question posed by the Commission

on a Bill of Rights ;CBR


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uniquely British model for protecting human rights and gaining /ustice in

British courts#

The Commission considers that the primary focus should be on two inter@

related factors> impro!ing understanding and impro!ing public authorities:

application of the HR"# 5ubstantial wor- is still required to impro!e

understanding and reduce misconceptions of human rights by people wor-ing

in public authorities' the general public' politicians and the media# 3or- is

also needed to impro!e the application of the HR" by public authorities to

their policies and practices' including identifying where it is not rele!ant#

Together these measures will help impro!e the confidence of public ser!icepro!iders and help ensure that the HR" is applied sensibly and appropriately#

&n our !iew' change to the HR" mechanisms is not required but substantial

change is required in the understanding and application of the HR"#

The ro&e of the Commission an% our res*onse

The Equality and Human Rights Commission ;the Commission< has a

statutory duty to promote equality and di!ersity' wor- towards the elimination

of discrimination' promote human rights and build good relations between and

among groups# The Commission has responsibilities in nine areas of equality

;age' disability' gender' race' religion or belief' pregnancy and maternity'

marriage and ci!il partnership' se.ual orientation and gender reassignment

@ promote understanding of the importance of human rights'


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@ encourage good practice in relation to human rights'

@ promote awareness' understanding and protection of human rights' and

@ encourage public authorities to comply with Con!ention rights4#

&n addition' a -ey duty of the Commission under both the Equality "ct 2==*6

and the United %ations aris rinciples)is to monitor and ad!ise the

go!ernment on the effecti!eness of the Human Rights "ct# Responding to the

consultation by the Commission on a Bill of Rights ;CBR< is therefore central

to our duties#

ur response to the consultation is structured in order to respond to the four

questions as-ed>

;1< do you thin- we need a U Bill of Rights9

&f so'

;2< what do you thin- a U Bill of Rights should contain9

;4< how do you thin- it should apply to the U as a whole' including itsfour component countries of England' %orthern &reland' 5cotland and

3ales9

;6< ha!ing regard to our terms of reference' are there any other !iews

which you would li-e to put forward at this stage9

&n Chapter 1 we focus on whether we need a Bill of Rights by analysing>

our response to the last go!ernment$s consultation on a Bill of Rights

in (arch 2=1=

the historical de!elopments towards the Human Rights "ct

the uniquely British model of human rights protection that the HR"

pro!ides and


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the re!iews that ha!e been conducted by the go!ernment' the

arliamentary Doint Committee on Human Rights ;DCHR< and the

Commission on the effecti!eness of the HR"#

&n Chapter 2 we analyse how the HR" wor-s and why we belie!e that the

current rights and mechanisms under the HR" are effecti!e and should be

retained# 3here appropriate we ha!e also considered how the mechanisms

under the HR" could be impro!ed> in particular to pro!ide better clarity on the

scope of which bodies are sub/ect to the HR" ;section * of the HR"< and to

impro!e parliamentary in!ol!ement in discussions about the compliance of

draft legislation with human rights obligations ;section 1, of the HR"


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&n Chapter 6 we pro!ide our position on the appropriate process and

principles that should be followed by any go!ernment if any Bill of Rights is

de!eloped#

?inally we note that the Commission will be sending the CBR a separate

submission which will consider human rights that are not currently directly

protected by the HR" or the ECHR' but we belie!e merit further consideration

in any discussions on a Bill of Rights# This analysis will be based on e!idence

from a number of sources' including our pre!ious submission on a Bill of

Rights in (arch 2=1=' recent inquires we ha!e conducted and other ongoing

wor-# &t will also be based on the principle that additional rights should only beconsidered if they build on the current rights and mechanisms in the HR"#


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Cha*ter 1" o $e nee% a Bi&& of Rights2

The Human Rights "ct is a Bill of Rights that was the culmination of se!eral

decades of debate' across all political parties' on the need to incorporate theEuropean Con!ention on Human Rights# &t gi!es British people access to

/ustice at home and it pro!ides an ingenious model tailored to British

constitutional traditions# 3e do not belie!e that is necessary to replace the

HR" with a new Bill of Rights#

This chapter pro!ides the Commission$s -ey positions on the HR" and

possibility of any Bill of Rights an e.planation of British history of human

rights protection and cross party in!ol!ement in the calls for the incorporation

of the European Con!ention of Human Rights an outline of how the Human

Rights "ct pro!ides a British model for protecting human rights and an

analysis of the -ey findings of re!iews of the Human Rights "ct conducted by

the go!ernment' DCHR and the Commission#

1- The Commissions *osition

&n (arch 2=1=' the Commission published its detailed positions on the HR"

in response to the last go!ernment$s reen aper consultation on a Bill of

Rights ;7HR" lus:


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any Bill of Rights must comply with international human rights obligations'

there should be no additional limitations on the rights and mechanisms

currently pro!ided in the HR"' and

if any Bill of Rights is legislated for in the future' the HR" should not be

repealed unless and until the Bill of Rights comes into force#

The second and third principles are discussed in more detail in Chapter 6 on

the process for de!eloping any Bill of Rights# &n relation to the fourth principle'

we discuss below the findings from our Human Rights &nquiry in 2==, in

relation to the effecti!eness of the HR"#

4- Human rights in British histor.

&n considering whether there is any need to replace the Human Rights "ct

with a Bill of Rights it is necessary to understand the e!olution of human

rights in Britain# ?irstly' human rights are not a foreign concept that de!eloped

in other countries but are at the !ery heart of British traditions# 5econdly'

human rights do not belong to particular political parties# "ll the main political

parties ha!e played a crucial role in securing human rights protections' from

the inspiration for the creation of the European Con!ention of Human Rights

in 1,)= to the enactment of the Human Rights "ct fifty years later#

5i6 From the Magna Carta to ratification of the ECHR

Britain has a long and proud history of de!eloping human rights# &t is

incorrect' as some suggest' that human rights are a recent European

imposition which somehow conflict with British traditions#

&n 121) the (agna Carta introduced the human rights concepts of habeas

corpus and trial by /ury#,The Bill of Rights of 1*+, contained se!eral


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pro!isions relating to human rights including a requirement that no 7cruel and

unusual punishments: could be imposed#1=

&n the eighteenth and early nineteenth centuries' many ideas that we regard

as central to human rights and the rule of lawFsuch as a philosophy of

liberty' the notion of the freedom of the press and equality between women

and men Fwere de!eloped by English thin-ers such as Thomas aine' Dohn

Goc-e' (ary 3ollstonecraft and D5 (ill# aine' who strongly influenced the

"merican and ?rench re!olutions' spo-e of the relationship between rights

and the responsibilities we owe each other>

7" 8eclaration of Rights is' by reciprocity' a 8eclaration of 8uties' also#

3hate!er is my right as a man' is also a right of another and it becomes

my duty to guarantee' as well as to possess#:11

D5 (ill obser!ed in On i)ert.'12democracy is not in itself a guarantee

against the tyranny of the ma/ority o!er unpopular minorities' to highlight the

need to pro!ide a chec- on parliament to pre!ent it from legislating to remo!erights of particular groups#

"head of her time' (ary 3ollstonecraft argued that instead of !iewing women

as ornaments to society or property to be traded in marriage' they should be

!iewed as human beings deser!ing of the same fundamental rights as men#14

The British common law as de!eloped by the courts also recognised

concepts relating to human rights long before the European Con!ention of

Human Rights> for e.ample the rights to personal security and liberty' pri!ate

property' freedom of discussion' and assembly#16

The importance of human rights for all was etched into the minds of people

across the world with the horrors of 3orld 3ar && and its atrocities# &n the

war$s aftermath and in an attempt to pre!ent those atrocities from being

repeated' leaders from 3estern countries called for the creation of a


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European organisation that would promote and ensure democratic !alues

such as the rule of law and human rights# 3inston Churchill was one of the

main proponents of the European organisation' in 1,6* proposing a 7-ind of

United 5tates of Europe: and a Charter of Human Rights#1)

The outcome of those international discussions was the creation of the

Council of Europe in 1,6,' the European Con!ention on Human Rights

;ECHR< in 1,)= and the European Court of Human Rights in 1,),# The

British Conser!ati!e lawyer and politician 8a!id (a.well ?yfe was greatly

in!ol!ed in the drafting of the ECHR# The U go!ernment signed the ECHR

in 1,)=' was the first country to ratify the ECHR in 1,)1 and recognised theright to bring claims in the European Court of Human Rights in 1,**# Today

the ECHR continues to pro!ide human rights protection to about +== million

people in 6A countries#

5ii6 From ratification to incor*oration of the ECHR

The debates on the incorporation of the ECHR demonstrate that all thepolitical parties were in!ol!ed in deliberations o!er se!eral decades which

e!entually led to the Human Rights "ct#

8espite the U go!ernment ha!ing been the first country to ha!e ratified the

ECHR' it was one of the last of the (ember 5tates to ha!e incorporated it into

their domestic law#

?or decades it was feared that incorporation of the ECHR would irreparably

harm the constitutional doctrines of parliamentary so!ereignty and separation

of powers between the E.ecuti!e ;the go!ernment


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&n 1,*+ "nthony Gester ;now a Giberal 8emocrat peer Gord Gester C

three research pro/ects ;the impact of a human rights culture on public

sector organisations the role and e.perience of inspectorates and

regulators in promoting human rights the e!aluation of the impact of

selected cases under the Human Rights "ct on public ser!ice pro!ision)A

The problem is that if our /udges only ta-e account of the

/urisprudence of the European Court of Human Rights' we cast them

adrift from their international moorings# The bill' crewed by the

/udges' will ha!e no accurate charts by which to sail because the

/udges are obliged only to ta-e into account the pro!isions of the

Con!ention# That means that the bill is effecti!ely a domestic Bill of

Rights and not a proper incorporation of international rights# &t

means that the /udges M are not obliged to act on it and can go in


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whate!er direction they wish- & ha!e great confidence in Her

(a/esty:s /udges' but & belie!e that they need greater guidance than

they recei!e from the e.pression 7ta-e into account:#

1)# 8uring the debates it was e.plained that the Con!ention only obliges

states to comply with those /udgments of the 5trasbourg Court 7to

which they are parties:#)+&t was argued that it would be 7strange:' for

U courts to be bound by 5trasbourg decisions to which the U had

not been a party' and 7quite inappropriate: to do so $since those

cases were concerned first and foremost with the laws of other

countries#),

"lthough cases before the ECtHR in!ol!ing othercountries might be persuasi!e authority' it would be a mista-e to

treat them as 7binding precedents which we necessarily should

follow or e!en necessarily desire to follow:#*=This approach is in

-eeping with the general principles of international law which applied

before the Human Rights "ct and which continue to apply#

1*# &mportantly' it was also e.plained that ma-ing 5trasbourg /udgments

binding on U courts would put 7the courts in some -ind of

strait/ac-et where fle.ibility is what is required:#*1"lthough it was

generally e.pected that U courts would apply Con!ention

/urisprudence' the language of section 2 was nonetheless intended

to allow U courts the freedom>

to depart from e.isting 5trasbourg decisions and upon occasion

it might well be appropriate to do so an% it is *ossi)&e the.

might gi+e a successfu& &ea% to Stras)ourg#*2

1A# This should happen for e.ample where 7there has been no precise

ruling Nby the 5trasbourg institutionsO on the matter and a

Commission decision which does so has not ta-en into account


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ma%e ). the %omestic courts an% nota)&. ). the House of

or%s-Nemphasis addedO

26# The reference to the House of Gords is to the decision in Barrett +

Enfie&% Borough Counci& where the House of Gords refused to

stri-e out a claim against a local authority where the claimant' who

had been in care for 1A years' alleged that the local authority had

failed to ta-e reasonable care in protecting him from physical abuse#

The House of Gords held that cases should only be struc- out for

policy reasons when the action was certain to fail and the policy

should not be used where the law was uncertain and de!eloping#Here the boy was actually in care as opposed to being ta-en into

care and there were no sound policy reasons for e.empting claims

in such circumstances#

7h. concerns are mis*&ace%2

2)# 5ince the HR" came into force' the general approach of the Ucourts has been to follow the case law of the European Court of

Human Rights unless there is some 7good reason: not to#*,"s Gord

Bingham said in the 2==6 case of #&&ah + S*ecia& A%u%icator>A=

NTOhe Con!ention is an international instrument## NitsO correct

interpretation can be authoritati!ely e.pounded only by the

5trasbourg court# N&Ot follows that a national court### should not

$ithout strong reasondilute or wea-en the effect of the

5trasbourg case law# ##The duty of national courts is to -eep

pace with the 5trasbourg /urisprudence as it e!ol!es o!er time>

no more' but certainly no less#

2*# This has since become -nown as the 7mirror principle: J the idea

that' absent good reasons to the contrary' a person in a British court


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can e.pect to obtain the same result as he or she would in

5trasbourg#A1

2A# This principle is important for two reasons# ?irst' as Gord Bingham

pointed out' the Con!ention is an international instrument and it

would be unhelpful for each country to de!elop its own' wildly

di!ergent approach# 5econd' the !ery purpose of the HR" is to

enable Con!ention rights to be applied in British courts that

ob/ecti!e would be defeated if the U courts were to rule in a

manner that they -new would ine!itably be re!ersed by the

5trasbourg Court#A2?or these reasons' the U courts will be !ery

slow to depart from a clearly reasoned ruling of the rand Chamber

of the ECtHR#A4

2+# "t the same time' howe!er' the U courts ha!e always made clear

that the so@called 7mirror principle: is a general rule' and one that will

not be in!ariably followed# "s Gord %euberger said in the case ofManchester Cit. Counci& + Pinnocbefore the U 5upreme Court

last year>A6

This Court is not bound to follow e!ery decision of the ECtHR#

%ot only would it be impractical to do so> it would sometimes be

inappropriate' as it would destroy the ability of the Court to

engage in the constructi!e dialogue with the ECtHR which is of

!alue to the de!elopment of Con!ention law M#

2,# "s Gord (ance pointed out in ohert. + BirminghamM' section 2

of the HR" requires our courts to 7ta-e into account: ECtHR

decisions' not necessarily to follow them# 3here' howe!er' there is a

clear and constant line of decisions whose effect is not inconsistent

with some fundamental substanti!e or procedural aspect of our law'


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and whose reasoning does not appear to o!erloo- or misunderstand

some argument or point of principle' we consider that it would be

wrong for this Court not to follow that line#

4=# &ndeed' since the HR" came into force in 2===' there ha!e been no

less than four cases in which the House of Gords and' more recently'

the U 5upreme Court ha!e declined to follow /udgments of the

5trasbourg Court>A)

41# &n a series of cases on the fairness of the courts martial system' the

House of Gords in R + S*ear'A*

unanimously declined to follow thechamber /udgment of the European Court of Human Rights in

Morris + #nite% Ding%om,AAon the basis that the Court had failed

to appreciate the e.istence of sufficient safeguards in the courts

martial system#A+&n the subsequent case of Coo*er + #nite%

Ding%om, the rand Chamber of the European Court of Human

Rights accepted that the House of Gords was correct#

A,

42# &n the 2==+ case of ohert. + Birmingham Cit. Counci&,+=the

House of Gords declined to follow the chamber /udgment of the

European Court of Human Rights in McCann + #nite% Ding%om,

largely on the basis that they thought it was impossible to deri!e

clear guidance from the /udgment#+1&n the subsequent case of

Manchester Cit. Counci& + Pinnoc in 2=1=' a nine member panel

of the U 5upreme Court unanimously accepted that the 5trasbourg

case law was 7now M unambiguous and consistent: and that it was

right for English law to fall in line with the case law of the ECtHR#+2

44# &n the 2==, case of R + Horncast&e'+4the U 5upreme Court

unanimously declined to follow the chamber /udgment of the

European Court of Human Rights in A& Dha$aa + #nite%


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Ding%om' concerning the use of hearsay material in criminal cases'

on the basis that it was concerned that the European Court may

ha!e failed to appreciate certain aspects of English criminal

procedure#+6&n (ay 2=1=' the U go!ernment:s appeal against the

chamber decision in A& Dha$aawas heard by the rand Chamber

of the European Court and a ruling is e.pected before the end of

2=11#

46# &n the ctober 2=11 case of R 5ui&a6 + Secretar. of State for the

Home e*artment'+)a ma/ority of the U 5upreme Court declined

to follow the plenary /udgment of the European Court of Human

Rights in A)%u&ai + #nite% Ding%om'+*on the grounds that it was

7an old decision: and apparently inconsistent with subsequent

/udgments of the 5trasbourg Court#+A

4)# "s cases such as ohert.and Horncastle show' the ability of the

U courts under section 2 of the HR" to decline to follow rulings ofthe ECtHR is essential to the process of /udicial dialogue between

the U courts and 5trasbourg#++This in turn ma-es it less li-ely that

the European Courts will disagree with the conclusions of the U

courts# "s the rand Chamber of the ECtHR itself noted in the 2==*

case of Roche + #nite% Ding%om>+,

3here M the superior national courts ha!e analysed in a

comprehensi!e and con!incing manner the precise nature of

the impugned restriction' on the basis of the rele!ant

Con!ention case@law and principles drawn therefrom' this Court

would nee% strong reasons to %iffer from the conc&usion

reache% ). those courts ). su)stituting its o$n +ie$s for

those of the nationa& courts on a @uestion of inter*retation

of %omestic &a$


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4*# &n most cases the /udicial dialogue between U courts and the

ECtHR is one where the 5trasbourg Court simply accepts the

conclusions of the U court' for e.ample in N + #nite% Ding%om,='

the /udgment of the rand Chamber which effecti!ely endorsed the

unanimous reasoning of the House of Gords in N + Secretar. of

State for the Home e*artment,1#

4A# n occasions' howe!er' the ECtHR has refered to /udgments of the

U courts in cases notin!ol!ing the U# &n Neu&inger an% Shuru

+ S$iter&an%,2the rand Chamber referred to the approach ta-en

by the House of Gords towards the definition of a 7child:s best

interests: under the Hague Con!ention and cited the /udgment of

Gord Hope in In re 5a chi&%6 N2==*O UHG )1 and in emir an%

Ba.ara + Ture. ;app no 46)=4Q,A' 12 %o!ember 2==+< the

rand Chamber cited the approach of the House of Gords in

Pinochet-

4+# Thus U courts can and do gi!e a successful lead to 5trasbourg#

4,# &n %o!ember 2==,' the then 5hadow Gord Chancellor (ichael

Howard ( claimed that the Human Rights "ct' 7requires our courts

to apply the European Con!ention on Human Rights in e!ery

decision they ma-e:#,45imilarly' when he was shadow Dustice

5ecretary' 8ominic rie!e ( suggested that the 7mar-ed

deference: shown by British /udges towards 5trasbourg decisions

under the HR" was problematic' and indicated that a Conser!ati!e

go!ernment would' among other things>>,6reword it to emphasise

the leeway of our national courts to ha!e regard to our own national

/urisprudence and traditions and to other common law precedents

while still ac-nowledging the rele!ance of 5trasbourg Court

decisions


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6=# The U courts are not bound by rulings of the 5trasbourg Court and

they are perfectly entitled to in!ite 5trasbourg to clarify its reasoning

and to thin- again' if they belie!e there is good reason to do so#

&ndeed they ha!e already done so on a number of occasions#

61# ?or these reasons' we conclude that section 2 of the HR" has

wor-ed well' enabling the U courts to stri-e an appropriate balance

between consistency and fle.ibility# (oreo!er' any amendment

would only reduce this fle.ibility' something that in our !iew would

be deeply undesirable#

4- Section 3" Inter*retation of &egis&ation

62# "n undisputed role of the U courts and tribunals is that of statutory

interpretation# The meaning of statutes is not always clear and

e.plicit and may lead to litigation before the courts# The courts ha!e

de!eloped a number of rules to assist with the interpretation of

statutes# This is not contro!ersial#

64# 5ince Con!ention rights are binding' the HR" requires that' so far

as it is *ossi)&e to %o so' primary and subordinate legislation must

be read and gi!en effect in a way which is compatible with

7Con!ention rights:# 5ection 4;2< pro!ides' howe!er' that this power

does not apply to legislation that is incom*ati)&ewith Con!entionrights# 3here it is not possible to interpret legislation compatibly with

Con!ention rights' then it is open to the courts to ma-e a declaration

of incompatibility under section 6 ;see below


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Ho$ section 3 $ors

BO8

Case stu%." !hai%an + !o%inMen%oaG

Section 3" inter*reting &egis&ation consistent&. $ith Con+ention rights

&n this case section 4 of the HR" was effecti!ely used to interpret legislation

to pre!ent a breach of same se. couples: right to family life and non@

discrimination in their li!ing arrangements#

(r 3allwyn@Dames was li!ing in a flat in Gondon as a tenant from 1,+4 until

he died in 2==1# He was li!ing with (r odin@(endo0a at the flat in a longterm same@se. couple relationship at the time of (r 3allwyn@Dames death#

The claimant (r haidan who was the owner of the flat applied to a court for

the possession of the flat after (r 3allwyn@Dames died#

The -ey issue in the case was whether (r odin@(endo0a$s human rights to

family life ;article +< and non@discrimination in the en/oyment of that right

;article 16< would be breached if he was not entitled to a 7statutory: tenancy to

li!e in the flat#

There are a number of benefits of a statutory tenancy as opposed to an

7assured: tenancy# the rent payable under an assured tenancy is the

contractual or mar-et rent' which may be more than the fair rent payable

under a statutory tenancy' and an assured tenant may be e!icted for non@

payment of rent without the court needing to be satisfied' as is essential in the

case of a statutory tenancy' that it is reasonable to ma-e a possession order#

The Rent "ct 1,AA pro!ided only that a 7person who was li!ing with the

original tenant as his or her husband or wife: would be eligible to succeed to

the tenancy#

The House of Gords used section 4 of the HR" to interpret the pro!ision 7as


43/110

or husband:# "s a result the court decided (r odin@(endo0a should ha!e

the right to a statutory tenancy in the same way as the sur!i!or of a married

couple# This also a!oids the court ha!ing to ma-e any declaration of

incompatibility under section 6 of the HR" which should only be used by the

courts as a last resort#

The reasons for the %ut.2

66# This power to 7read down: legislation in a manner consistent with

Con!ention rights is' in many ways' simply a statutory e.tension of

the long@standing principle of our common law constitution that

fundamental rights can only be o!erridden by e.press statutory

language#,*"s Gord Hoffmann said in E/ Parte Simmsin 1,,,>,A

?undamental rights cannot be o!erridden by general or ambiguous

words# This is because there is too great a ris- that the full

implications of their unqualified meaning may ha!e passed

unnoticed in the democratic process# &n the absence of e.press

language or necessary implication to the contrary' the courts

therefore presume that e!en the most general words were intended

to be sub/ect to the basic rights of the indi!idual# &n this way the

courts of the United ingdom' though ac-nowledging the

so!ereignty of arliament' apply principles of constitutionality little

different from those which e.ist in countries where the power of thelegislature is e.pressly limited by a constitutional document#

6)# The power in section 4 is' moreo!er' consistent with the approach

ta-en by other common law countries' for e.ample' the approach of

the Canadian 5upreme Court under the Canadian Charter of Rights

and ?reedoms 1,+2,+or section * of the %ew Pealand Bill of Rights

"ct 1,,=>


44/110

3here!er an enactment can be gi!en a meaning that is consistent

with the rights and freedoms contained in this Bill of Rights' that

meaning shall be preferred to any other meaning#

6*# &t is clear from the parliamentary debates that this power to 7read

down: legislation consistently with Con!ention rights was intended to

be the primary remedy of the courts under the HR"# &t was predicted

in the Third Reading debate in the House of Gords' that 7in ,, per

cent of the cases that will arise' there will be no need for /udicial

declarations of incompatibility:#,,5imilarly' the Home 5ecretary told

the House of Commons during the 5econd Reading debate that thego!ernment e.pected that 7in almost all cases' the courts will be

able to interpret the legislation compatibly with the Con!ention:#1==

5ince the "ct came into force' the U courts ha!e used section 4 to

gi!e effect to the Con!ention rights of indi!iduals in a wide !ariety of

cases#

7h. concerns are mis*&ace%

6A# &t is also worth remembering that by ratifying the Con!ention the U

go!ernment signalled its clear intent to honour its obligations the

interpretation of legislation in a way which is compatible with the

Con!ention is part of that commitment#

6+# &n !hai%an the Gaw Gords made it clear that 7a /udicial reading

down' or reading in' under section 4 did not flout the will of

arliament as e.pressed in the statute under e.amination:#1=1"s

Gord %icholls said in that case' the obligation on the courts to

interpret legislation consistently with Con!ention rights was one that

entrusted to them by arliament>1=2


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5ection 4 is a -ey section in the Human Rights "ct 1,,+# &t is

one of the primary means by which Con!ention rights are

brought into the law of this country# arliament has decreed that

all legislation' e.isting and future' shall be interpreted in a

particular way# "ll legislation must be read and gi!en effect to in

a way which is compatible with the Con!ention rights $so far as

it is possible to do so$# This is the intention of Par&iament,

e/*resse% in section 3, an% the courts must gi+e effect to

this intention#

6,# (oreo!er' as Gord 5teyn made clear' if arliament disagreed withan interpretation by the courts under section 4' 7it is free to o!erride

it by amending the legislation and e.pressly reinstating the

incompatibility:#1=4

)=# Gord 5teyn also stressed that the use of the interpretati!e power

under section 4 was intended to be 7the principal remedial measure:

under the HR"' and that the ma-ing of a declaration of

incompatibility under section 6 was 7a measure of last resort:#1=6

)1# There are nonetheless limits to the interpretati!e obligation under

section 4# "n e.ample of these limits was the 2==2 case of

An%erson'1=)which concerned the power of the Home 5ecretary

under section 2, of the Crime ;5entences< "ct 1,,A to release a

prisoner ser!ing a mandatory life sentence on licence# An%ersonis

a !ery good e.ample of the court respecting the will of arliament#

)2# The House of Gords re/ected the argument that it could 7read down:

section 2, to e.clude the role of the Home 5ecretary> as Gord

Bingham put it>1=*


46/110

To read section 2, as precluding participation by the

Home 5ecretary' if it were possible to do so' would not

be /udicial interpretation but /udicial !andalism> it would

gi!e the section an effect quite different from that which

arliament intended and would go well beyond any

interpretati!e process sanctioned by section 4 of the

1,,+ "ct

)4# (ore recently' the U 5upreme Court considered its duty under

section 4 in the case of R5!C6 + Commissioner of Po&ice for the

Metro*o&is,1=Aconcerning the retention of 8%" samples by police

under section *6;1"< of the olice and Criminal E!idence "ct 1,+6

in the wa-e of the ruling of the rand Chamber of the European

Court of Human Rights in S an% Mar*er + #nite% Ding%omin 2==,

that it was a breach of article + to retain indefinitely the 8%"

samples of people who had not been con!icted of a criminal offence#

)6# "lthough replacement legislation had been enacted ;the Crime and

5ecurity "ct 2=1=


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Pro+i%e% that the main thrust of their &egis&ation is not

im*aire% the. ha+e )een ha**. that the courts shou&%

re+ise it to mae it Con+ention com*&iant, rather than

%ec&are it incom*ati)&e# &n my e.perience' counsel for the

5ecretary of 5tate usually in!ites the court to read down'

howe!er difficult it may be to do so###

)*# &n "pril 2=11' the thin- tan- Ci!itas published a pamphlet which

among other things called for the amendment of section 4 in order

to>1=,

pre!ent the courts from re@writing the e.press terms of

legislation in order to pre@empti!ely a!oid any inconsistency

with the ECHR' where doing so would undermine the $ob/ect

and purpose$ of the legislation according to the intentions of

arliament at the time of enactment#

)A# The courts ha!e repeatedly made clear in cases such as !hai%an'

that the obligation to interpret legislation consistently with

Con!ention rights is one that has been placed upon them by

arliament itself in enacting the HR"# &n other words' when

interpreting legislation under section 4' the courts are not only gi!ing

effect to arliament:s intention behind that particular statute )ut

a&soarliament:s intention when it passed the Human Rights "ct#

"s Gord 5teyn pointed out' if arliament considers that the courts

ha!e misunderstood or frustrated their intention' 7it is free to o!erride

it by amending the legislation and e.pressly reinstating the

incompatibility:#11=

)+# (ore generally' there is nothing particularly unusual about

arliament legislating in this manner' nor are the effects of /udicial


48/110

interpretation limited to cases under the Human Rights "ct# &nHM

Treasur. + Ahme%' for instance' the U 5upreme Court held that

the Treasury had e.ceeded its power to establish a scheme for

free0ing the assets of suspected terrorists under the United %ations

"ct 1,6*' and used its inherent power to quash the orders as u&tra

+ires# &n a case that was nothing to do with the Human Rights "ct'

arliament acted quic-ly to enact emergency legislation> the

Terrorist "sset ?ree0ing ;Temporary ro!isions< "ct 2=1=#

),# 5imilarly in another case that did not in!ol!e the Human Rights "ct J

R 5Chief Consta)&e of !reater Manchester Po&ice6 + Sa&for%s

Magistrates0 Court an% Pau& Hoo$a.111Jin which a High Court

/udge interpreted the time limits under section 61 of the olice and

Criminal E!idence "ct 1,+6 in a restricti!e manner' arliament

again was able to act swiftly to introduce emergency legislation to

correct it> the olice ;8etention and Bail< "ct 2=11#112

*=# The possibility of the courts misapprehending arliament:s

legislati!e intent is' therefore' not something which arises only in

relation to the HR"# n the contrary' it is a general feature of our

legal system# This is why it always remains open to arliament to

legislate in order to correct what it sees as mista-es by the courts or

anomalies unco!ered by /udicial scrutiny#

*1# 5ection 4 of the "ct gi!es the courts the responsibility to interpret

legislation in order to gi!e effect to Con!ention rights# "lthough this

interpretati!e obligation is stronger than the traditional common law

principle of legality' the use of section 4 by the courts has been

proportionate and effecti!e in protecting Con!ention rights in a

manner consistent with arliament:s intent#


49/110

*2# "s the parliamentary record ma-es clear' it was always arliament:s

intention that most issues under the HR" should be resol!ed by

reference to section 4 rather than section 6# "s Gord hillips points

out' this is the solution that has generally found fa!our with

go!ernment ministers as well# "s with any court decision concerning

the interpretation of legislation' it is always open to arliament to

legislate to correct any mista-es that may arise# 5ection 4 wor-s

well to protect Con!ention rights and consider criticisms of it to be

misplaced#

3- Section =" ec&arations of incom*ati)i&it.

*4# "nother important mechanism is the declaration of incompatibility

which clearly mar-s the separation of powers between the courts

and arliament#

*6# 5ection 6 of the HR" pro!ides that' in any proceedings in which a

court considers that a pro!ision of legislation is incompatible with a

Con!ention right' 7it may ma-e a declaration of that incompatibility:#

5ection 6;*< ma-es clear' howe!er' that a declaration of

incompatibility 7does not affect the !alidity' continuing operation or

enforcement of the pro!ision in respect of which it is gi!en:#

Ho$ %oes it $or2

*)# "s stated abo!e' the primary obligation of the court is' so far as it is

possible to do so' to read and gi!e effect to primary legislation and

subordinate legislation in a way which is compatible with the

Con!ention rights# 3here legislation is inconsistent with the

Con!ention rights then the court may issue a declaration of

incompatibility#


50/110

BO8

CASE ST#9

R 57right an% others6 + Secretar. of State for Heath

**# The case of R 57right an% others6 + Secretar. of State forHea&th113is an e.ample of how declarations of incompatibility wor-#

This case concerned care wor-ers who did not ha!e an opportunity

to challenge their pro!isional classification as unsuitable to wor- with

!ulnerable adults# They claimed a breach of their rights to a fair trial

;article *< and to pri!acy ;article +


51/110


52/110

models for protecting human rights> the 7strong: form of /udicial

re!iew' under which the courts ha!e the power to stri-e down any

legislation that is incompatible with human rights' such as e.ists

under the U5 Bill of Rights' the Canadian Charter of Rights and

?reedoms' and the 5outh "frican Bill of Rights and a wea-er' more

7parliamentary: model of protecting rights as e.emplified by the %ew

Pealand Bill of Rights "ct' in which the courts ha!e no such stri-e@

down power but only the ability to interpret legislation consistently

with basic rights along the lines of the power under section 4 of the

HR"#

A2# The former model is sometimes seen as a more effecti!e way of

protecting rights' but it in!ol!es real limitations on the power of

democratic go!ernments to decide certain areas of policy# The latter

model is much more respectful of parliamentary so!ereignty but has

been criticised for offering too few safeguards against arbitrary

interference with fundamental rights# "s the Gord Chancellor

e.plained to arliament>11)

A4# The design of the bill is to gi!e the courts as much space as

possible to protect human rights' short of a power to set aside or

ignore "cts of arliament# &n the !ery rare cases where the higher

courts will find it impossible to read and gi!e effect to any statute in

a way which is compatible with con!ention rights' they will be able to

ma-e a declaration of incompatibility# Then it is for arliament to

decide whether there should be remedial legislation# arliament

may' not must,and generally will' legislate#

7h. concerns are mis*&ace%

A6# 8eclarations of incompatibility by the courts ha!e no direct effect on


53/110

stri-ing down legislation> the law does not automatically change as a

result of a declaration of incompatibility# &nstead' arliament must

decide whether it wishes to amend the law#

A)# The only formal effect is to enable the go!ernment to e.ercise a

fast@trac- power to ma-e a remedial order ;see below


54/110

NUOnder the 1,,+ "ct the courts: role is to try and interpret e!ery

statute so as to comply with the Con!ention' and' if that is

impossible' to warn arliament that the statute does not comply

J reflecting the alarm bell /ust mentioned# &t is then for

arliament to decide whether to amend the legislation#If it

chooses not to %o so, that is an en% to the matter from a

&ega& *oint of +ie$-

AA# The court:s limited pri!ilege to re!iew' not stri-e down' legislation

cannot therefore impinge on parliamentary so!ereignty# ?irst' the

court:s power only arises because it has been bestowed byarliament through the 1,,+ "ct' and what arliament gi!es it can

ta-e away# That is well demonstrated by the fact that the English

courts had no power to apply the Con!ention for the first fifty years

of its life J i#e# until the 1,,+# 5econdly' where legislation does not

comply with the Con!ention' the ultimate decision as to what to do

about it is in the hands of arliament' not the courts#

A+# &n fact' despite the continuing contro!ersy o!er declarations of

incompatibility under section 6' the power is used infrequently>

between ctober 2=== and 5eptember 2=11' only 2A declarations

had been made' of which + were subsequently o!erturned on

appeal#12=f the 1, final declarations>121

12 were or will be remedied by subsequent primary legislation

2 were remedied by a remedial order under section 1= of the

HR"

6 related to pro!isions that had already been remedied by

primary legislation by the time the declaration had been made

and


55/110

1 is under consideration by the go!ernment as to how to

remedy the incompatibility#

A,# The best@-nown and undoubtedly the most contro!ersial declaration

was that in the Belmarsh case'122in which the House of Gords

declared the indefinite detention of foreign nationals under art 6 of

the "nti@Terrorism Crime and 5ecurity "ct 2==1 to be incompatible

with the rights to liberty ;article )< and non@discrimination ;article 16 what roup 6' for e.ample' does as a plc contractingwith other bodies is nothing whate!er to do with the state' but'

plainly' where it runs a prison' it may be acting in the shoes of

the state#:14=

+,# &n the House of Gords debates' the Gord Chancellor confirmed that

persons or organisations deli!ering pri!atised or contracted@out

public ser!ices were intended to be brought within the scope of the

"ct by the 7public function: pro!ision#

7The pro!ision is there to include bodies which are not

manifestly public authorities' but some of whose functions only

are of a public nature# &t is rele!ant to cases where the courts

are not sure whether they are loo-ing at a public authority in thefull@blooded Clause *;1< sense with regard to those bodies that

fall into the grey area between public and pri!ate# The bill

reflects the decision to include as 7public authorities: bodies

which ha!e some public functions and some pri!ate functions:#

141


59/110

Ho$ section > HRA has $ore% in *ractice

,=# "pplying the definition of a 7pure: public authority has pro!ed

relati!ely straightforward and the courts appear to ha!e had little

difficulty identifying which bodies fall within the scope of section *;1

7ur e!idence to date does demonstrate that a human rights based

approach to health and social care can' and will increasingly in the

future' ha!e a tangible impact on the treatment and care of ser!ice

users#:

5e*artment of Hea&th E+a&uation, 4;;J613

The Human Rights in Healthcare initiati!e demonstrated how the HR" can

tangibly impro!e the deli!ery of public ser!ices#

The sco*e of the (*u)&ic function0 test

,1# 8efining the e.tent to which section ;*


61/110

under section *;1

The e.tent to which' in carrying out the rele!ant function' the

body is publicly funded howe!er' if a body recei!es public

money in payment for commercial ser!ices under a contract' this

would not suggest that the body is performing a public function#


62/110

3hether the body is e.ercising statutory powers howe!er' this

depends on why the powers ha!e been conferred# &f for pri!ate'

religious or purely commercial purposes' it does not support the

conclusion that the functions are of a public nature#

3hether the body is ta-ing the place of central go!ernment or

local authorities this principle may be easy to apply where

powers are formally delegated to the body concerned#

3hether the body is pro!iding a public ser!ice' normally one of a

go!ernmental nature# This should not be confused with functions

which are in the public interest or for the public benefit' as many

pri!ate bodies ;pri!ate schools' pri!ate hospitals' pri!ate

landlords etc< pro!ide goods or ser!ices that are in the public

interest#

The fact that the function is sub/ect to statutory regulation' or isone normally carried out by a public body' does not necessarily

mean that it is a public function when carried out by a potentially

hybrid body# ?or e.ample' applying these tests' the courts ha!e

confirmed that public functions were performed by hospital

managers of a pri!ate psychiatric hospital where patients were

detained under the (ental Health "ct 1,+4#14,

Areas $here c&arification of (*u)&ic function0 has )een nee%e%

,6# &t has not always pro!ed easy to determine whether certain types of

function are 7public: within the meaning of section * HR"# There are

two areas of public ser!ice pro!ision where it has fallen to the courts

to clarify whether pri!ate or third sector organisations are performing


63/110

public functions under the HR" and a third important area where

the scope of the HR" has yet to be clarified#

Socia& care

,)# &n the9 case cited abo!e' the House of Gords held by a 4@2

ma/ority that the HR" does not apply to pri!ate and !oluntary sector

care homes pro!iding residential social care ser!ices under contract

to local authorities# This lacuna in the scope of the HR" was

subsequently closed by arliament' through section 16) Health and

5ocial Care "ct 2==+# This section pro!ides that the meaning of

7public function: under 5 *;4


64/110

performing a function of a public nature when allocating and

managing social housing# &n drawing this conclusion' the court too-

into account the following factors>

The wor- of the housing association was subsidised by the 5tate

The housing association was granted special intrusi!e powers by

law' such as the power to apply for an anti@social beha!iour order

&t was wor-ing closely with the local authority to help achie!e the

latter:s duties under the law

&t was pro!iding a public ser!ice of a type which would normally

be pro!ided by the go!ernment J ie' pro!iding housing below

mar-et rents

,,# &n this case' the Court of "ppeal made it clear that its decision only

related to Gondon and uadrant Housing Trust# Howe!er' in the

wa-e of the 3ea!er decision it seems li-ely that other' similar

registered social landlords are also within the scope of the HR"162#

O*tions consi%ere% ). the ?CHR for e/*an%ing an% c&arif.ing the

meaning of (*u)&ic function0

114#The Doint Committee on Human Rights ;DCHR< most recently

considered the meaning of 7public authority: and 7public function: in

an inquiry report published in (arch 2==A#164The DCHR concluded

that the inquiry e!idence reinforced the conclusion of its

predecessor Committee 7that the disparities in human rights

protection that arise from the case law on the meaning of public

authority are un/ust and without basis in human rights principles:#

They also considered that these disparities frustrated the intentions

of arliament#


65/110

116#The DCHR loo-ed at se!eral options for o!ercoming this problem

further go!ernment guidance further litigation and a legislati!e

solution#

11)#Further go+ernment gui%ance> the DCHR recommended that' as a

stop@gap solution' current guidance on building the HR" into

contracts be impro!ed and gi!en wide circulation# Howe!er' they

emphasised that this would not be an effecti!e substitute for the

direct application of the HR" as arliament intended#

11*#Further &itigation> Referring to the ?ohnsoncase ;this case waslater consolidated with SG in the House of Gords< the DCHR doubted

that litigation would lead to an enduring and effecti!e legal solution>

73aiting for a solution to arise from the e!olution of the law in this

area through /udicial interpretation may mean that uncertainty

surrounding the application of the HR" will continue for many years#

&t could lead to a serious ris- of discrepancies across public ser!icedeli!ery#:

11A#Further &egis&ation> the DCHR concluded that that legislation was

the only effecti!e solution to ensure that 7public authority: was

interpreted in the way that arliament intended# &t strongly resisted

the idea of listing indi!idual types or categories of 7public authority: in

a schedule to the HR"' as this would be too infle.ible# E.tending the

scope of the HR" sector by sector was also re/ected' on the basis

that this would reduce the impetus to find a general solution and

would compound legal uncertainty in other sectors# "lthough the

DCHR did not fa!our a direct amendment to the HR" itself' it

supported the idea of a separate' interpretati!e statute# This could

be worded as follows>


66/110


67/110

need for action to ensure that the HR" is applied as in our !iew

it was intended by arliament#16)

12=#The Commission shares the DCHR:s conclusions# 3e therefore

recommend that if any British Bill of Rights were de!eloped' it

should be used as a !ehicle for clarifying the definition of 7public

function: under HR"# "s a starting point' the wording proposed by in

the 2==A DCHR report to achie!e this clarification could be adopted#

- Section J" ?u%icia& reme%ies

121#5ection + HR" pro!ides that compensation ;damages< for a breach

may be awarded where it is necessary to do so to pro!ide the !ictim

with 7/ust satisfaction:# Therefore if another remedy @ for e.ample an

in/unction to pre!ent a breach continuing J will gi!e the !ictim an

effecti!e remedy' compensation will not be awarded in addition# This

is consistent with the requirements of the Con!ention and was

designed to incorporate article 14' which does not otherwise appear

in the "ct16*' into U law# "ny bill which failed to pro!ide for a full

range of remedies being a!ailable for a !iolation of a Con!ention

right would not comply with article 14#

122#&n practice' damages awards in the domestic courts are rare' and

where they are awarded' low# The principles for determining the

quantum of any award ha!e been set out by the House of Gords in R

;reenfield< ! 5ecretary of 5tate for the Home 8epartment16A# They

are based on the premise that a finding of a !iolation is in itself an

important remedy' and that compensation should not be greatly

higher or lower than a !ictim would e.pect to be awarded in

5trasbourg# Howe!er' Gord Bingham also held that the English

courts could depart from ECtHR scales where appropriate#


68/110

124#The application of reenfield has in fact led to !ery few awards of

damages at all' and those that ha!e been made are much lower

than comparable claims for race or se. discrimination16+# &t has been

argued that the courts ha!e been so reluctant to award damages

that it might amount to frustrating the intention of the HR"' if in fact

an effecti!e remedy is not a!ailable to indi!idual claimants#

126#ne of the principal reasons behind the a!ailability of compensation

for breaches of Con!ention rights is the deterrent principle J it is

thought that a public body will more readily comply with its human

rights obligations if not to do so would lay it open to damages

claims# There is little e!idence that the a!ailability of damages in

such cases does' at present' in fact dri!e greater compliance# &t is in

any e!ent li-ely that it would only do so if the prospect of it

happening in practice was greater than currently and if the li-ely

amount of any damages award were higher#

12)#%onetheless the principle that damages should be a!ailable and

accessible is an important pro!ision that should be retained so that

!ictims can obtain redress for a !iolation of their Con!ention

rights#16,

>- Section 1;" The *o$er to tae reme%ia& action12*#" declaration of incompatibility will trigger the possibility of 7remedial

action: being ta-en by the go!ernment to correct the incompatibility#

12A#5ection 1= pro!ides that in the e!ent that either>

a U court ma-es a declaration of incompatibility against a

pro!ision of legislation under section 6 and there is no prospect

f f th l i t th li


69/110

it appears to the go!ernment that a pro!ision of legislation has

become incompatible following a /udgment of the ECtHR

then go!ernment ministers may ma-e a remedial order to correct

the incompatibility' but only if they belie!e there are 7compelling

reasons: for doing so#1)=

Ho$ this $ors in *ractice

12+#The correction usually ta-es the form of secondary legislation#

12,#5chedule 2 of the HR" sets out the rele!ant procedure for ma-ing

the order' including the requirement for any draft order to be laid

before arliament and appro!ed by a resolution of both Houses

unless it is necessary to proceed as a matter of urgency' in which

case it must be appro!ed subsequently by both Houses#1)1

14=#&n %o!ember 2=1=' the then@shadow Dustice 5ecretary 8ominic

rie!e ( wrote an article criticising the interpretation of the HR"

by the courts# "mong his criticisms of the HR" was the following>

3e should M loo- at restoring a better balance between

arliament and the courts# &t is wrong that primary legislation

can be altered by 5tatutory &nstrument if found incompatible

with the Human Rights "ct# %or should our courts ha!e power

to stand a statute on its head#

141#&n o!er a decade since the HR" came into force' howe!er' the

power under section 1= has only been used four times> once by the

Gabour go!ernment to remedy the incompatibility of sections A2 and

A4 of the (ental Health "ct 1,+4'1)2and three times by the Coalition

go!ernment in relation to stop and search'1)4the rights of foreign


70/110

nationals to marry'1)6and introducing a right of appeal in relation to

the se. offenders register#1))

142#"lthough we agree that it is generally undesirable that primary

legislation may be amended by statutory instruments' section 1=

does require that all such remedial orders are laid before arliament

and are thereby pre!ented from ha!ing any lasting effect unless and

until they are appro!ed by both Houses# &n our !iew' this is appears

to be a sufficient safeguard against unnecessary resort to fast@trac-

remedial orders# &n addition' section 1=;2< requires that a

go!ernment minister must belie!e that there are 7compelling

reasons: for doing so# Gastly' it is apparent that the power has in fact

only been e.ercised in a handful of cases#

144#The lac- of any e!idence to show that the remedial power in section

1= has been in any way problematic only reinforces our !iew of it as

an entirely sensible and practical measure#

K- Section- 14 Free%om of e/*ression

144#5ection 12 applies if a court is considering whether to grant any

relief which' if granted' might affect the e.ercise of the Con!ention

right to freedom of e.pression#

146#&t pro!ides that no in/unction is to be granted unless the court is

satisfied that the claimant is li-ely to establish that publication should

not be allowed and by section 12;6< the court must ha!e particular

regard to the importance of the Con!ention right to freedom of

e.pression and in the case of /ournalistic' literary or artistic material

the e.tent to which>


71/110

the material has' or is about to' become a!ailable to the public

or

it is' or would be in the public interest for the material to be

published' and any rele!ant pri!acy code' for e.ample the ressComplaints Commission Code#

14)#The inclusion of s#12 in the Human Rights "ct was the result of

press lobbying# 5ome quarters of the press were concerned that

article + ;pri!acy and family life< would infringe freedom of

e.pression# Gord 3a-eham' chairman of the CC' welcomed its

inclusion# He was confident it would mean no pri!acy law snea-ed in

through the bac- door as a result of the incorporation of the

European Con!ention of Human Rights into British law#

14*#The practical outcome of s#12 has been to set the standard of proof

for claimants see-ing in/unctions# 5ection 12 ma-es the li-elihood of

success at trial an essential element in the court$s consideration of

whether to ma-e an interim order# $(ore li-ely than not$' the words

used in the "ct' is a higher threshold to meet than $a real prospect of

success#$1)*ther than to set the standard of proof' s#12 adds !ery

little to article 1= and to the qualifications pro!ided in article 1=;2


72/110

14+#5ection 14 was added to the Human Rights Bill following concerns

by the churches that Con!ention rights are en/oyed by indi!iduals

and not organisations such as the churches# 5ection 14 was

designed therefore to ma-e it clearer that the Con!ention rights

would attach to religious organisations as well as to indi!iduals# The

then Home 5ecretary' Dac- 5traw' stated that the pro!ision reflected

Con!ention /urisprudence that a church body or other association

with religious ob/ecti!es is capable of possessing and e.ercising the

rights in article , as a representati!e of its members#1)A

G- Section 1= an% 1" Reser+ations an% erogations

14,#These sections pro!ide the mechanism for derogations from and

reser!ations to the Con!ention# They were passed by arliament

with few comments and without contro!ersy#

16=#The only reser!ation lodged by the U to date is with respect to

article 2 of rotocol %o# 1 ;right to education


73/110

164#Howe!er' following the attac-s of 11 5eptember 2==1' the U

go!ernment passed anti@terrorism legislation which necessitated the

registration of another derogation to article );1< ;f< ECHR# The

derogation permitted the indefinite detention without charge of

foreign nationals suspected of being 7international terrorists:' if the

ris- of torture prohibited their deportation or e.tradition# The

derogation was withdrawn in 2==) following a House of Gords

decision ;A L Others + Secretar. of State for the Home

e*artment :4;;=< #DH, >


74/110

be human rights compatible to be within the competence of the

arliament and can be in!alidated by the Courts if not#1*=

16A#These pro!isions are generally ac-nowledged to be an important

feature of the parliamentary model of human rights protection# They

require go!ernment to assess whether proposed legislation is

compliant with human rights legislation and state its intentions in that

regard# They also facilitate parliamentary scrutiny and informed

dialogue between the e.ecuti!e' arliament and the courts# The

effect is that instead of human rights being the property of /udges

and lawyers' it has been made part of the other two branches of

go!ernment' the E.ecuti!e and the legislature# To this end' they

guarantee transparency' accountability and open democracy#

"lthough a useful and effecti!e pro!ision' this mechanism could be

strengthened by requiring that the (inister' and in 5cotland the

residing fficer' gi!e reasons for ma-ing the compatibility

statement' pro!iding a fuller e.planation of the human rights issues

in!ol!ed# 3e belie!e that this would consolidate and build on the

emerging trend for arliament and go!ernment departments to

engage more acti!ely with human rights considerations in the

de!elopment of policy and legislati!e proposals#

Ho$ the current mechanism $ors

16+#The usual practice' and all that is required by the HR" and the

5cotland "ct' is for the (inister ;and residing fficer< to ma-e a

brief statement of compatibility' rather than to pro!ide a detailed

e.planation of how the conclusion has been reached#

16,#There ha!e been some notable e.ceptions# 3hen the Equality Bill

was brought before the House of Commons on 4 8ecember 2==, a


75/110

issues arising under the Con!ention as those 7where e.ceptions to

the prohibition on discrimination are pro!ided or the rights to non@

discrimination conflict with each other and there is a need to balance

them:# &t has pro!ed an e.tremely useful ad/unct to the legislation

itself and the e.planatory notes in understanding of the purpose and

meaning of the law#

1)=#(ore recently' when the rotection of ?reedoms Bill was introduced

into the House of Commons on 11 ?ebruary 2=11' it was certified as

compatible by the 5ecretary of 5tate for the Home 8epartment' and

at the same time the Home ffice published a detailed Human

Rights memorandum setting out the o!ernment:s !iews on the

principal human rights implications of the bill#1*2This was based on

the (emorandum prepared for the arliamentary Business and

Gegislation Committee# &t pro!ided a careful and thorough human

rights analysis of the bill:s pro!isions' including consideration of the

U% Con!ention on the Rights of the Child# The Doint Committee on

Human Rights commented fa!ourably on this new initiati!e and

commended the approach to other departments as an e.ample of

best practice# The Committee noted howe!er that it would ha!e

been helpful to recei!e a further (emorandum on o!ernment

amendments to the bill which 7clearly ha!e human rights

implications#1*4

1)1#" detailed Human Rights (emorandum also accompanied the

o!ernment:s Terrorism re!ention and &n!estigation (easures

;T&(< bill' which again pro!ided in!aluable analysis of the bill:s

human rights implications alongside the (inisterial statement of

compatibility#1*6


76/110

The reasons for statements of com*ati)i&it.

1)2#5tatements of compatibility were included as a demonstration of the

go!ernment$s commitment to human rights# They ha!e the

ad!antage of drawing the mind of the (inister to the obligationsunder the Con!ention to which the go!ernment must adhere and

ensure that these are gi!en effect in legislation# Howe!er' the hidden

!alue to such statements is that by highlighting the human rights

implications' arliament is also made aware of its role to gi!e effect

to the Con!ention when it considers proposals for legislation# This is

of particular importance where a (inister cannot ma-e such a

statement and wishes to proceed with the bill in which case the

statement acts a trigger for intense parliamentary scrutiny and

debate#

Nee% to strengthen the mechanism

1)4#"s stated abo!e' it remains the e.ception rather than the rule in both

the 3estminster and 5cottish arliaments for a (inister ;or the

residing fficer< to pro!ide reasons for stating that a bill is

compatible with the HR"# 3e note that the DCHR' which plays a -ey

role in legislati!e scrutiny' belie!es that the quality of the analysis of

human rights compatibility issues in the e.planatory notes to bills

has impro!ed#1*)Howe!er' it also draws attention to the practice of

asserting in e.planatory notes accompanying bills that a pro!ision

complies with the ECHR' without gi!ing any reasons for the

assertion#1**

1)6#The DCHR has consistently as-ed the 3estminster o!ernment to

pro!ide a dedicated human rights memorandum with e!ery bill it

publishes' but this request has to date been re/ected#


77/110

1))#(a-ing it a requirement to pro!ide reasons e.plaining and

supporting the statement of compatibility would increase

transparency and impro!e the quality of 7dialogue: between the

e.ecuti!e' arliament and the courts# The human rights implications

of any proposed law would be clearly identified and openly debated#

(embers of both arliaments' including ministers' would become

more familiar with the potential impact of new laws and policies on

human rights# &t would help increase awareness of' and a culture of

respect for' human rights within the arliaments and across the

go!ernments: departments# This would also ensure that courts are

better informed of legislati!e intent and better able to construe

statutes: compatibility with the Con!ention when called upon to do

so#

1)*#&n summary' the benefits of requiring a statement of reasons would

be to increase the effecti!eness of parliamentary scrutiny' and to

impro!e understanding and awareness of human rights and whatthey mean in practice in the courts and legal system as well as in

the wider community#

1)A#&n its legislati!e scrutiny wor- the DCHR has identified nine human

rights compatibility issues which recur in its scrutiny of 3estminster

legislation1*A>

i# The adequacy of the safeguards contained on the face of bills

conferring powers to disclose' share or match personal

information

ii# Gac- of clarity about whether pri!ate bodies are 7public

authorities: for the purposes of the Human Rights "ct where

bills confer powers and functions on them


78/110

iii# The adequacy of /udicial and procedural safeguards to

protect liberty

i!# The danger of discrimination in the operation of certain

pro!isions

!# The right of access to a fair hearing before a court

!i# The adequacy of safeguards against powers to search a

person or property

!ii# The adequacy of procedural safeguards on pre!entati!e

orders

!iii# The adequacy of the powers and independence of human

rights institutions and

i.# The adequacy of protection for children and young persons#


79/110

Cha*ter 3" Im*&ications for the %e+o&+e% nations

The third consultation question as-s 7###how do you thin- Na U Bill of

RightsO should apply to the U as a whole' including its four componentcountries of England' %orthern &reland' 5cotland and 3ales#:

The de!olution settlements' the Human Rights "ct and the European

Con!ention on Human Rights are interwo!en elements of the U$s

constitutional framewor-# The de!olution settlements and the HR" were

part of a pac-age of constitutional reform introduced in 1,,+# &n relation to

%orthern &reland' it was also an integral part of the peace process# "s a

result' any consideration of amendments or repeal of the HR" must

carefully consider the legal' constitutional and political implications

concerning de!olution#

The Commission has pre!iously analysed the de!olution issues in two

documents> our response to the last go!ernment$s consultation on a Bill of

Rights'1*+and the research report on the process for de!eloping any Bill of

Rights#1*,Both of these were published in (arch 2=1=#

&n 5cotland' 3ales and %orthern &reland' the protection of human rights is

embedded into the de!olution statutes in a number of ways# &n summary

these are>

the rights under the European Con!ention on Human Rights as

contained in the HR" form part of the de!olution statutes1A=

the de!ol!ed institutions ha!e no competence to act in a manner that is

contrary to the Con!ention rights1A1

in relation to 5cotland and %orthern &reland' the de!ol!ed 5cottish

arliament and %orthern &reland "ssembly ha!e no power to amend the

HR"1A2


80/110

the de!olution statutes contain a number of mechanisms similar to the

HR"' for e.ample the requirement under section 4 of the HR" to

interpret legislation consistently with Con!ention rights#1A4

"s a result' if the HR" was amended or repealed andQor a Bill of Rights

was enacted co!ering the de!ol!ed /urisdictions' there would almost

certainly be a need for amendments to the de!olution statutes#1A6This in

turn raises issues about whether the 3estminster arliament would in

practice need consent from the de!ol!ed administrations for any such

amendments or repeal of the HR"#

?urther factors specific to %orthern &reland also need to be ta-en into

account# ?irstly the incorporation of the Con!ention rights was part of the

Belfast ;ood ?riday< eace "greement ;the 7ood ?riday "greement:


81/110

these challenges go beyond the technical> in see-ing to answer whether a

British Bill of Rights should e.tend to 5cotland' it is necessary to ta-e

account of the di!ergent political narrati!es in Gondon and Edinburgh#

These essentially political considerations lie beyond the Commission:s

remit' but will ha!e to be addressed by U ministers in dialogue with the

de!ol!ed institutions in 5cotland#

ega& an% constitutiona& consi%erations

The 5cotland "ct 1,,+ contains a number of pro!isions indicating the

relationship between the HR" and the de!olution settlements# The most

important of these are the pro!isions indicating the place of Con!ention

rights in the de!olution framewor- and the pro!isions concerning

amending or repealing the HR"#

&n relation to the place of the Con!ention rights' the 5cotland "ct ensures

that arliament and 5cottish (inisters are unable to legislate or do any act

which is incompatible with Con!ention rights#

1A*

"s confirmed by the Houseof Gords' this means that it is unlawful for the 5cottish arliament or

5cottish (inisters to pass legislation or act in a way which would !iolate the

Con!ention rights#1AAThis is a more robust model than that pro!ided by the

HR" which contains no such pro!isions#

&n relation to amending or repealing the HR"' two pro!isions are central'1A+

namely that>

the Human Rights "ct 1,,+ is one of a number of 7protected

enactments: ;5chedule 6< whose pro!isions cannot be modified by

the 5cottish arliament and that

the constitution is one of the policy areas reser!ed in its entirety to

the U arliament ;5chedule )


82/110

&n addition' the 5cotland "ct confers no powers on the de!ol!ed institutions

which would o!erride the so!ereign legislati!e authority of the ueen in

arliament1A,' which remains absolute' as is made e.plicit at 52+;A 7This

section does not affect the power of the arliament of the United ingdom

to ma-e laws for 5cotland:#

&t would therefore appear that the U arliament and it alone has the

power to amend' repeal or replace the Human Rights "ct' and that there is

no basis in law for the proposition that any of these options would require

the consent of the de!ol!ed institutions# Howe!er' this does not ta-e

account of the con!ention which has grown out of the first decade ofde!olution' often -nown as the 75ewell Con!ention: which' while it carries

no legal weight' is set out in the (emorandum of Understanding between

the U and de!ol!ed go!ernments#1+=

The 5ewell Con!ention' while recognising the legal authority of the U

arliament to legislate on any matter' reser!ed or de!ol!ed' places a de

facto requirement to see- the consent of the 5cottish arliament before ;i

7The British go!ernment will complete incorporation into %orthern

&reland law of the European Con!ention on Human Rights' with

direct access to the courts' and remedies for breach of the

Con!ention' including power for the courts to o!errule "ssembly

legislation on grounds of inconsistency#:1,4

"s a result' any decision to repeal the HR"' or to amend the HR" andQor

enact a U Bill of Rights co!ering %orthern &reland in a way which

diminished e.isting human rights protections' would be li-ely to breach the

ood ?riday "greement# ?urther it may put the U in breach of its

international treaty obligations owed to the Republic of &reland as one of the

guarantors of the agreement#1,6


87/110

" second important consideration in %orthern &reland is that the ood

?riday "greement included a requirement to consult on the de!elopment of

a Bill of Rights for %orthern &reland which would build on the Con!ention

rights and reflect the 7particular circumstances of %orthern &reland#1,)

The %orthern &reland Human Rights Commission ;%&HRC< was pro!ided

with responsibility to consult on a Bill of Rights Commission and produced

its detailed recommendations in 8ecember 2==+#1,*The go!ernment

largely re/ected the %&HRC$s ad!ice in 2==,1,Aand it is unli-ely that a Bill of

Rights for %orthern &reland will be proposed by the go!ernment in the

current climate#

3hile the intention in %orthern &reland was to build on the current

framewor- of the HR" and the Con!ention rights' the current discussions

on a Bill of Rights could in!ol!e the repeal of the HR" and replacement

with a Bill of Rights which does not contain the same le!el of protection#

These sensiti!ities must be ta-en into account' particularly as to whether

the %orthern &reland "ssembly is li-ely to consent to proposals to possibly

wea-en the protection currently pro!ided by the HR"#

The de!olution implications for the any possible repeal of the Human

Rights "ct and replacement by a British Bill of Rights are comple. gi!en the

degree to which the HR" is embedded in the de!olution legislation# E!en if

the de!olution settlements in 5cotland' 3ales and %orthern &reland do not

represent formal legal impediments to any such proposals' it is li-ely that

the agreed con!entions which ha!e emerged since 1,,+ would require the

consent of the de!ol!ed institutions to any ma/or change# These

constitutional considerations cannot be separated from the wider political

conte.t' and the di!ergent political narrati!es in the de!ol!ed nations' which

suggest such consent may be unli-ely to be forthcoming#


88/110

Cha*ter =" The *rocess for %e+e&o*ing an. Bi&& of Rights

The fourth question as-ed by the consultation is>

7;6< ha!ing regard to our terms of reference' are there any other

!iews which you would li-e to put forward at this stage9:

art of the terms of reference are to>

7###e.amine the operation and implementation of these obligations'

and consider ways to promote a better understanding of the true

scope of these obligations and liberties#:

The Commission belie!es that a fundamentally important aspect of

de!eloping any Bill of Rights is the process by which it is achie!ed# The

process is crucial for a number of reasons including it being a means> to

impro!e understanding of human rights to engage with groups that are

normally unli-ely to participate in such democratic processes to ensure

that there is independence and transparency in the body ma-ing decisions

and to ensure that the scope of the possible outcomes in clear#

&n ctober 2==,' the Equality and Human Rights Commission

commissioned lobal artners L "ssociates and the Human Rights and

5ocial Dustice Research &nstitute at Gondon (etropolitan Uni!ersity to

underta-e research to identify and e.plore best practice processes for

de!eloping a new Bill of Rights for the U# This considered not only

aspects relating to impro!ing understanding of human rights' but also other

rele!ant considerations such as non@regression' transparency'

independence of the process' inclusi!ity and respect for the de!olutio

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The Case for the Human Rights Act (1)

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