WORLD LAW/United Kingdom

JURIST's UK Correspondent is Alisdair A. Gillespie, Barrister (Middle Temple), Senior Lecturer and Deputy Director, Centre for Police Research and Education, University of Teesside, Middlesbrough.
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[Middlesbrough; Special to JURIST] It gives me great pleasure to introduce this special Correspondent's Report - a series of short papers all examining the UK Human Rights Act 1998.

Readers of my UK Perspectives column will have seen me make mention of the Human Rights Act 1998 several times recently. The 1998 Act is a vitally important piece of constitutional legislation and a significant step-forward in the protection of human rights within the United Kingdom. In his exclusive essay for JURIST, the UK Home Secretary, Jack Straw, sets out the history of the Act and shows how it does not create new rights, but rather improves the access of these rights by citizens. In fact, the Human Rights Act 1998 complements the European Convention on Human Rights, which has been around for 50 years and which the United Kingdom has always taken seriously. Now the Convention has assumed a greater position with U.K. society, and this is to be welcomed.

This Report is split into four sections in addition to this brief introduction. I hope you enjoy it; any questions etc. can be directed to me in the usual way. If you wish to see the text of the Act please click here.

Alisdair A. Gillespie
JURIST UK Correspondent
University of Teesside
Middlesborough, UNITED KINGDOM

December 18, 2000

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The Human Rights Act 1998 and the European Convention on Human Rights (ECHR)
Rt. Hon. Jack Straw MP
Home Secretary

The Human Rights Act came fully into force on 2 October 2000, incorporating the European Convention on Human Rights into our own domestic law. The Government's main aim in introducing the Act is to allow cases raising Convention issues to be dealt with in United Kingdom courts. The 1998 Act achieves that, and it provides for further effect to be given to the ECHR, helping to build a culture of rights and responsibilities across the United Kingdom. The ECHR has been an obligation upon the United Kingdom in international law for half a century.

The Act does not confer new rights. Many of the rights were prefigured by English common law. Hardly surprising, given the involvement of British common lawyers in the drafting of the Convention.

But until 2 October 2000, when the Act came fully into force, the United Kingdom courts had very limited powers to take account of the Convention. Although the Courts would apply the presumption that Parliament intends to comply with the United Kingdom's obligations in international law, they could not normally accede to arguments based on Convention rights, or offer remedies for breaches of these rights. The Human Rights Act allows Convention points to be raised in any proceedings and for the courts to put matters right - or declare what is wrong, if the problem lies in an Act of Parliament. Nor will this block the avenue to the European Court of Human Rights in Strasbourg. Citizens will still be able to petition the Court in Strasbourg if they have not been successful in our 'supreme court' - the House of Lords - and have thus exhausted their domestic remedies.

The Council of Europe produced ECHR in 1950 - and we have just celebrated its 50th birthday in Rome. The Convention aimed to ensure that the atrocities which had so disfigured Europe during the Second World War could not be repeated, by making the observance of civilised standards a matter of international obligation. The Convention and its standards are now taking in new countries, including some which were satellites, or even part, of the former Soviet Union. But, like our own common law, the Convention was intended from the start to be 'living law' and thus it has been developed by the Strasbourg Court.

Since 1966, when the United Kingdom granted the right of individual petition, the Court in Strasbourg has found the United Kingdom in violation of the Convention in a number of cases. The Court may find that a Member State has violated the Convention either because a law or regulation is incompatible with the Convention, or because there is no sufficient law in place, or because compatible laws or regulations have been interpreted incompatibly with the Convention. The Member State is bound to cure the breach, though the Court does not specify how this is to be done.

The Convention and the two rights-conferring protocols (1 and 6) which the United Kingdom has ratified, together with existing UK derogations and reservations, are scheduled to the Human Rights Act. (The text of the Act can be found under 'Constitutional and Community Issues' on http://www.homeoffice.gov.uk, and the text of the Convention on http://www.coe.int) These are the 'Convention rights' for the purposes of the Human Rights Act. Under section 2 of the Act, United Kingdom courts and tribunals must take into account any judgements, decisions, opinions or declarations (as appropriate) of the European Court of Human Rights, the former European Commission of Human Rights, and the Committee of Ministers.

Effect of the Human Rights Act on the Courts

The Act works in two main ways, on the courts and on public authorities. It says that that courts and tribunals must, so far as possible, interpret legislation compatibly with the Convention rights. If it is not possible to interpret primary legislation compatibly, then that legislation remains in force but the court may issue a declaration of incompatibility and it is for Parliament to decide whether to amend the legislation to make it compatible. A Minister introducing a new legislative bill must provide Parliament with a statement whether the provisions of the Bill are compatible with Convention rights, and if not, expressly confirm that although he or she is unable to make a statement of such compatibility, he or she still wishes Parliament to proceed with the Bill.

The United Kingdom has not, therefore, followed the model of some other countries which allow their courts to strike down principal legislation incompatible with entrenched or constitutional provisions. In any event, only two Convention rights (the rights not to be tortured and not to be enslaved) are absolute; the rest are limited or qualified.

Limited rights include Article 5 which specifies the circumstances in which people can be detained. Qualified rights are those in Article 8 - 11 which give the right to privacy and freedoms of thought, expression and assembly, but add that the State may restrict with these rights provided the interference:

• has a basis in law - which means in practice that it must be prescribed by law, clear, comprehensible, accessible and foreseeable, and
  
  
• is necessary in a democratic society - which means that the interference must pursue a legitimate policy aim, like the prevention of crime and disorder, or the protection of health; fulfil a pressing social need; be proportionate to that policy aim; and be the only way to achieve it.
  

This means that, for example, rules and regulations, even if they are necessary in a democratic society for the all reasons shown above, must be set down in publicly accessible form - preferably legislation. Equally, regulations set down in law must be proportionate, fulfil a pressing social need etc. Proportionality is a very important concept, central to deciding whether State intrusion upon a Convention right is acceptable or not.

Effect of the Human Rights Act on Public Authorities

The second way in which the Act works is by requiring public authorities to act compatibly with Convention rights, unless primary legislation makes that impossible. Public authorities are not exhaustively defined or listed, but include courts and tribunals and anyone 'certain of whose functions are of a public nature'. This could include private bodies, like the Press Complaints Commission, whose functions would probably be assumed by Government if they failed to deliver.

The Westminster Parliament is not a public authority for the purposes of the Act, because it is sovereign and its primary legislation must be upheld by the courts.

The ideas of lawfulness and democratic necessity apply to actions of public authorities. It will affect what they do and how far they should go in doing it. In practice, this is not nearly as daunting as it sounds, as authorities are already subject to rules and regulations (like the Codes under the Police and Criminal Evidence Act) which have been 'proofed' or tested against Convention standards.

Given the long history of the UK's compliance with the ECHR, the Act is merely giving fuller effect to existing rights and freedoms. I do not expect a great rush of litigation clogging up the courts. Equally, the Government has, in advance of implementation of the Act, devoted a great amount of time and effort to training public servants in human rights and increasing sensitivity to Convention issues. The aim is to raise awareness of these issues and, where appropriate, to resolve them without litigation. The Government is also keen to stress that there is a seamless web of mutual expectations between private citizens, and between citizens and the Government: your right is my responsibility, and my right is yours.

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Human Rights Act 1998: The 5 Minute Tour

Alisdair A. Gillespie
JURIST UK Correspondent
University of Teesside
Middlesbrough

The Human Rights Act 1998 is an important document, but as Acts of Parliament go, it is, at only 22 sections, very short. And yet this disguises the detail and its constitutional implications. In this piece I intend to give you a brief tour of the Act, hoping to highlight some its main features.

Probably the most significant section of the Human Rights Act 1998 is section 6(1) which states that "it is unlawful for a public authority to act in a way which is incompatible with a convention right." This section ensures that all public authorities are bound by the European Convention. There are two questions which arise at this point:

• What articles of the European Convention are public authorities bound by? and
  
  
• What is the definition of a public authority.

In relation to the first question, the 1998 Act does not implement all Articles of the Convention. The Convention has 13 principal Convention articles (Articles 2 to 14) but it also encompasses a number of Protocols which have been added on. At a basic level the distinction between Articles and Protocols is that countries who sign up to the European Convention (which is a prerequisite for joining the Council of Europe, but note this is not the same as the European Union) must accept all the Articles (subject to special rules on derogations) whereas the protocols are optional.

The Human Rights Act implements 12 of the 13 principal Convention articles. The one article it does not implement is Article 13 which provides for the right to an effective remedy for breaches of the Convention. That is not to say that UK citizens do not have this right, because they do - nothing in the 1998 Act prevents anyone going to the European Court of Human Rights. The government’s argument for not including Article 13 in the Act is that the Human Rights Act 1998 is Article 13, in other words, that the Act simply puts in place measures whereby a person can gain a remedy for breaches. This is true, or at least it is partly true. Many commentators, including myself, believe that whilst the Act does provide this mechanism, there is more to Article 13 than that. However this is something that the courts and government will have to keep under review. The Act also includes two of the protocols, Protocol 1 and Protocol 6.

In relation to the second question (the definition of a public authority), this is defined in section 6 as any person or body certain which exercises a public function and expressly includes the courts but expressly excludes Parliament, except when the House of Lords sits as the final court of appeal. The reason why it applies only to public authorities is that the Human Rights Act 1998 does not incorporate the Convention into domestic law, although many says it does. If the Convention was to be incorporated into law then it would become part of UK law and anyone could use it. What the Act is supposed to do is to make it easier for citizens to claim under the Act. The government talked about "bringing rights home" because the idea was that actions could be taken in the domestic courts instead of the European Court of Human Rights. The Convention itself is a treaty and so it provides for a remedy between the citizens and the state and has never been considered to apply between citizens.

That said, one interesting question that could arise as a result of the definition of a public authority is that we could get so-called horizontal effect (an action between the state and an individual is known as vertical effect and an action between an individual and another individual is horizontal effect). The reason why such an effect may arise is because the court is a public body. Thus a court is bound to uphold the convention. Whenever a citizen sues another citizen then the matter would come before the court, and therefore the court would have to apply the Convention. Others argue, however, that this is a simplistic way of applying the Convention and would be contrary to the intention of Parliament.

As to who are public bodies, the Act purposely does not give a list. If, however, we look at the definition then some bodies are clearly public. These would include ministers, government departments, local government departments, judges, the courts, the police and related criminal justice agencies. Others are less clear. In the United Kingdom some transfers of prisoners has been privatised: that is to say private companies undertake the transfer. A prime example of these is Group 4 Security. Group 4 also undertakes private security work (e.g. building security etc.) Are they a public body? The answer is "yes" and "no"! When they are undertaking work on behalf of the state - ie transferring the prisoners - then they are exercising a public function so they are bound by the Act, but when they are undertaking a purely private venture they are not. It is easy to see why the government opted for a definition rather than a list, and arguably they were correct to do so, but it is bound to cause confusion and difficulties as some organisations are bound to argue that they are private whereas others would argue they were public. A prime example of this are the press who would claim to be private and yet at the same time justify their actions when they impinge a person’s privacy by saying they acted "in the public interest." If this is so, why are they not exercising a public function?

The other main sections of the Act are sections 2 and 3. Section 2 states that the domestic courts should "have regard" to the institutions of the Council of Europe in relation to the Convention, in particular the European Court of Human Rights. It is important to note that they are not bound in precedent by the Court, so they could take a different approach if they so wished, although if this was a narrower line it would be subject to correction by the European Court.

The Act itself is very controversial as some suggest it interferes with the supremacy of Parliament. In the United Kingdom, contrary to many assertions from various commentators, Parliament is supreme. The idea of this is that Parliament can enact any laws it wishes and that the courts cannot challenge the validity of the laws. The Human Rights Act 1998 interferes with this doctrine, and one of the arguments surrounding the Act is how far, if at all, this doctrine is challenged.

Section 3 of the Act states that the courts have a duty, so far as it is possible to do so, to interpret legislation in a way which gives accord to the European Convention. This section is supposed to operate whenever there is an ambiguity. The theory behind this is that Parliament would not have intended to act in a way which is incompatible with the Convention. Thus, where there is an ambiguity as to whether a matter is compatible with the Convention, the courts should conclude that Parliament would have intended to act in a compatible way and the legislation should be read in that way even if the words do not necessarily lead to that conclusion.

Proponents of Parliamentary Sovereignty nonetheless believe that that doctrine remains intact, because if Parliament wishes to act in a way which is incompatible with the Convention then it can do so, although it has to announce this fact. (s.19(1)(b)) The other point proponents of Parliamentary Sovereignty make is that the Human Rights Act 1998 does not give to the courts the power to strike down primary legislation, although they can strike down secondary legislation (this can be contrasted with the position in the United States of America, for example, where the US Supreme Court can strike down legislation). All that the courts can do is make a "declaration of incompatibility" (s.4) which triggers a fast-track process by which the government can, if it so wishes, amend the legislation quickly. (s.10)

Opponents of the doctrine of Parliamentary Sovereignty argue that the courts can quite easily strike down legislation and the Act permits this. Their argument is that the courts would never make a declaration of incompatibility, but just keep interpreting legislation. Section 3 states that legislation should be interpreted so far as possible. Who decides this though? the courts. Thus, the argument goes, if the courts wished to amend legislation they can decide that it is possible and do so and that there would nothing that Parliament could do. Of course this would cause a constitutional crisis so it is to be hoped we never reach this position.

For more information about the Human Rights Act 1998 I can recommend two Websites: the first is the Home Office site (http://www.homeoffice.gov.uk), and the second is one called Beagle which provides the text of the Act, some resources and, most valuably, a case index. This latter site, which I find invaluable, can be found at : http://www.beagle.org.uk/hra.

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Public Authorities and the Human Rights Act 1998

Roy Davis
University of Durham.

According to the current Government’s White Paper, Rights Brought Home: The Human Rights Bill, a public authority, for the purposes of s.6(3)(b) of the Human Rights Act 1998 (HRA), should include legal persons ‘exercising functions which would otherwise be exercised by government’. The Government’s definition of ‘functions of a public nature’ would therefore seem to be straightforward: s.6(3)(b) would seem to refer to those functions which are already carried out by government, and to those functions which would be carried out by government if no independent authority existed to carry them out. S.6(5) also refers to the nature of the act carried out: it is clear that s.6(3)(b) will not, by itself, enable proceedings to be brought against a given legal person if the nature of the act complained of is private.

However, all public lawyers will surely agree that the public-private law divide is anything but straightforward. The guidance afforded by the White Paper may be as dubious as it is limited. On the one hand, we can draw up a list of obviously public authorities, such as local councils and the police, which will invariably be subjected to the provisions of s.6(1) HRA. On the other, we can compile a list of far less obviously public authorities, such as a university senate (R v Aston University Senate, ex p. Roffey (1969)) or the British Boxing Board of Control (McInnes v Onslow-Fane (1978)), to which the courts have been known to apply public law principles if equity so demands. It might seem that s.6(3)(b) should simply be taken to include all legal persons not covered by the exceptions therein, whenever these are exercising functions of a public nature: i.e. whenever they are doing something that the Government would otherwise be obliged to do. The courts could apply the species of ‘but for’ test implicit in the White Paper, and ask whether, but for the existence of the authority in question, the Government would have been required to take action instead. If it would, then the authority in question would surely have been exercising a public function, therefore s.6(3)(b) would apply. If it would not, then s.6(5) would apply.

Having decided that the authority in question had not been exercising a public function and that s.6(5) applied, however, one would need to determine whether the authority in question was obviously a public authority to begin with, in order for s.6(1) to apply. Nevertheless, if the authority in question were obviously public, one would not have been required to ask whether it had been exercising a public function in the first place. In purely practical terms, therefore, s.6(5) would appear to be somewhat redundant. It might have been simpler, and more in accord with the approach of the White Paper, to have specified in s.6(1) that it is unlawful for any legal person to carry out any function of a public law nature in a manner which is incompatible with a Convention right.

One problem with this approach is that although it has indeed been argued that s.6(3)(b) will apply whenever a given act would be amenable to judicial review, the courts have recently tended to look more at the nature of the authority in question than at the nature of its acts/functions, when deciding whether or not it is appropriate to proceed with judicial review of a given act. Should the HRA, therefore, be regarded as imposing a statutory reversal of this trend?

In R v Panel on Takeovers and Mergers, ex p. Datafin (1987), it was held that the courts might intervene, in principle, if a given decision had public consequences, notwithstanding the fact that the body in question was a non-statutory, self-regulating association. The Panel on Takeovers and Mergers had governmental support, and was deemed to be acting in the public interest.

The subsequent retreat from this approach began with R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan (1993). The Jockey Club was deemed to be a private body on much-criticised grounds. It played no part in any governmental control of horse-racing. It was not, historically, constitutionally or in its membership, a public body, notwithstanding its complete monopoly over the not- inconsequential national horse-racing industry. Finally, and significantly, there was a contract between it and the complainant. In R v Insurance Ombudsman Bureau, ex p. Aegon Life Assurance Ltd (1994), the Insurance Ombudsman Bureau could certainly have been viewed as part of the governmental system of insurance regulation, being recognised by LAUTRO: both the Insurance Ombudsman and LAUTRO are recognised in the Financial Services Act 1986. Yet because there was a contract between Aegon and the Ombudsman Bureau, it was held that judicial review was not available. Aegon therefore represents a retreat not only from Datafin but also from Aga Khan, since the Ombudsman Bureau evidently does play a part in the governmental control of insurance.

The HRA simply emphasises the need to consider the nature of a legal person’s functions, but the pre-HRA case law on amenability to judicial review also emphasises the need to ensure that there is no contractual relationship between the complainant and the body complained of, and that the general public will be significantly affected by the decision complained of. S.6(5) therefore raises this question: if there is a contract between the complainant and the body complained of, will the latter not be regarded as a public authority for the purposes of the HRA, even if it satisfies the aforementioned ‘but for’ test? Or will the nature of the act complained of become paramount, so that the courts will be obliged to reinstate Datafin, and hold that any legal person is a public authority whenever it does, albeit on the basis of its contractual power, that which the Government would otherwise be obliged to do by means of its statutory power?

In order to extend the ambit of Convention rights as far as possible, surely the latter approach would be preferable. But perhaps the HRA was not intended to represent such a radical change to the pre-existing status quo: if s.6(5) is intended to preserve the idea that the existence of a contract strongly implies that the act in question is private, it would seem that the invitation to simply undertake a ‘but for’ test of a legal person’s actual role in society, which invitation is implicit in both Datafin and the White Paper, will not be taken up by the courts.

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Family Law and the Human Rights Act 1998

Penny Booth
University of Sunderland

Arguably one of the legal areas most in the public mind and known from cases to the European Court of Human rights is that of UK Family Law. Why is this? The answer probably lies in the fact that of any of the areas concerning the European Convention on Human Rights and Fundamental Freedoms that of the protection and privacy of matters relating to our personal lives is that of those we include among our 'family'. This is odd, because in English law we actually find it very difficult to define what we mean by 'family'. Those with experience of reading anything about English Law will know that the legal meaning of 'family' really depends upon the context in which the word is being used and the definition accorded to it by the legal provision (legislation or the decided case) being argued at the time. This slight digression is essential if we are to understand the impact of the implementation of the Convention into English Law through the Human Rights Act 1998. At this point you might like to remember to refer to Introduction: the Human Rights Act 1998 and the European Convention on Human Rights (ECHR) available elsewhere on the Jurist website.

Although there are a number of Convention Articles which concern the area of Family Law there exist three items which are very much the preserve of this field. Before looking at these three items in particular, mention must be made of those Other items which do impact on Family Law

• a consideration of Article 2 The Right to Life
• Article 14 The Prohibition of Discrimination (which relies upon the relationship with the application of other Articles)
• Article 9 Freedom of Thought, Conscience and Religion
• and many would say that Article 3 Freedom from torture or inhuman or degrading treatment or punishment should also be included.

First consideration in looking at the selected area should be given to the following three items. The first two of these items have been included in the Human Rights Act 1998 and are therefore part of English Law, the third (Article 5 of the Seventh Protocol) has not been included for reasons which will be suggested shortly.

• Article 8 The right to respect for family and private life
• Article 12 The right to marry and found a family
• Article 5 of the Seventh Protocol: equality of rights of spouses

Article 8 The right to respect for family and private life

This Article provides that everyone has the right to respect for private and family life, home and correspondence. Private life has been very widely interpreted by the European Court in the application of this Article. The state can only interfere with the enjoyment of this right if it is in accordance with the law. English Law itself, according to the Human Rights Act 1998, can only now be interpreted so as to comply with the Act. The Act states that English Law must be interpreted as if the intention of the legislators was to pass law in compliance with the Human Rights Act. Any interference by the state must be necessary in a democratic society, in the interests of national security, public safety or economic well-being of society, for the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. Article 8 has been interpreted so as to give the state a virtual duty to avoid interference (except under the exceptions noted) AND an obligation to adopt procedures and practices to secure the protection of family life. This was outlined in Y v The Netherlands. Clearly, there is some difficulty in defining the boundaries between the state's duty not to interfere and the obligation to secure measures to promote the respect for family life. There are, as in all the Articles, problems in 'balancing' the competing interests between individual interests and the needs of society as a whole. The implications for Family Law in the UK of the implementation of the European Convention are potentially extremely wide.

Article 12 the Right to marry and found a Family

This Article is also crucial to the conception of Family Law under UK jurisdiction. It is easy to see how a deeper consideration of the application of Article 8 is linked to the application of the formalities of marriage and the right to found a family. The right to marry is well documented (see cases referred to above, for example) but the European Court itself has stated (in Rees v UK) that Article 12 is ''mainly concerned to protect marriage as the basis of the family''. The court has also found that the stability of marriage is a legitimate aim, which was found to be in the public interest. The right to found a family is absolute and the state must not interfere with it. This does not, however, mean that a person must be afforded every opportunity and possibility to procreate. The state, in other words, is not obliged to go to extreme lengths to enable a person to actually found a family. This clearly has implications in medical treatment for fertility problems. Under Article 12 the unmarried and the single person have no remedy where the right to found a family is dependent upon adoption (covered by the Adoption Act 1976) or artificial reproduction. The huge costs involved in fertility treatment and the variety of treatments, care programmes and timing of giving birth are factors which indicate that this 'absolute' right must be subject to the needs of the wider community.

Article 5 of the Seventh Protocol: equality of rights of spouses

This Article has NOT been included in the Human Rights Act 1998. It is included here to indicate that not all Articles of the Convention are automatically included in the Act (refer to the website address given at the end of this piece), and to emphasise that there are political as well as legal considerations in the implementation of fundamental rights. Under this Article spouses enjoy equality of rights and responsibilities in private law matters between them, in relations with their children, to their marriage and in the event of its dissolution. This particular provision, if implemented, could mean that English law relating to financial provision after divorce, and the rights and responsibilities of parents towards their children would have to be examined in detail. There would undoubtedly be claims that existing provisions and guidelines under the Children Act 1989 and the Matrimonial Causes Act 1973 (as amended) were incompatible with the protocol. There is an indication from the UK Government that it intends to implement the Protocol in the future and refers to doing so in the White Paper Rights Brought Home: The Human Rights Bill (Cm 3782) paras 4.15 and 4.16. The White Paper can be accessed via the website noted.

Conclusion

It would be virtually impossible to cover all the provisions of the Human Rights Act 1998 and discuss the effect upon English Family Law in such a short space. I have indicated those Articles most concerned with Family Law and focussed upon two pertinent Articles, both of which have been incorporated, and one Protocol provision which has not been incorporated. The effect upon English Law is an unknown quantity. Lawyers differ in their views about the effect of the Human Rights Act.

What is certain, though, is that whatever the eventual effect upon English Law, Family Law will reflect one of the greatest of impacts. The actual impact will be upon the conception of what concerns the family, the perceptions and attitudes towards what governs our closest and most intimate relationships.

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Discussion

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