The case for the Human Rights Act

PART 1 OF 3 RESPONSES TO THE COMMISSION ON A BI P #S NOT MIN#S OF RI!HTS" HRA

Contents
Contents Foreword Introduction 2 3 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 ta.e remedial action......................................................................................*! 7. $ection. 12 /reedom of e0pression ...................................................................................................... 7& !. $ection13 /reedom of thought1 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. 2ales.................................................................................................................................................... !3 3. 3orthern %reland..................................................................................................................................... !* Chapter %: &he process for de#eloping an' Bill of Rights ((

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 drafting the 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# 1ur 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 2bringing rights home2 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 addition' the Human Rights "ct and the Con!ention rights ha!e been wo!en
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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

Intro%uction 78o we need a U Bill of Rights9: is the question posed by the Commission on a Bill of Rights ;CBR<# The Equality and Human Rights Commission$s simple answer to that is we already ha!e one in the Human Rights "ct and we should -eep it# The longer answer requires an e.ploration of the de!elopment of human rights in Britain o!er +== years' the de!elopment of international human rights framewor-s in the aftermath of 3orld 3ar &&' the path to incorporation of the European Con!ention on Human Rights ;ECHR< in the U by the Human Rights "ct 1,,+ ;HR"<' and an analysis of the operation of the mechanisms in the HR"# This response pro!ides that analysis' and argues that the path forward should build on the current rights and mechanisms in the HR"' rather than dilute or repeal them' to be 7HR" plus:' not 7HR" minus:# &t was 3inston Churchill who inspired and wor-ed towards the creation of the European Con!ention on Human Rights to help pre!ent a repetition of the atrocities of 3orld 3ar &&# &n his opening speech to the Congress of Europe in (ay 1,6+' Churchill proclaimed that the new Europe> (must )e a *ositi+e force, %eri+ing its strength from our sense of common s*iritua& +a&ues- It is a %.namic e/*ression of %emocratic faith )ase% u*on mora& conce*tions an% ins*ire% ). a sense of mission- In the centre of our mo+ement stan%s the i%ea of a Charter of Human Rights, guar%e% ). free%om an% sustaine% ). &a$-01 &t was also a British lawyer and politician' 8a!id (a.well ?yfe who contributed significantly to the drafting of the ECHR' and the U was the first country in the Council of Europe to ratify the Con!ention in 1,)1#

?ast forward to the 1,,=s and after se!eral decades of calls' on both sides of politics' for the incorporation of the ECHR into our domestic law' the HR" was born in 1,,+# &t had three -ey aims# ?irstly' it intended to 7bring rights home: by ensuring that the human rights of e!eryone in the U could be protected in U courts# 5econdly' it sought to introduce -ey constitutional mechanisms to ensure that go!ernments' parliaments and the courts embed human rights in their wor- to enhance the democratic processes# Thirdly' the go!ernment intended that the HR" would create a culture of better awareness of human rights throughout society# 2 ?inally' in see-ing to achie!e all these aims the go!ernment created a human rights framewor- that would ensure parliamentary so!ereignty# The HR" is now ele!en years old' but its early years ha!e been turbulent# (isunderstood and misrepresented by politicians and the media' it has been !ariously portrayed as a threat to parliamentary so!ereignty' a European imposition' and a !illain$s charter# Equally' it has sometimes been misrepresented by lawyers and their clients in ma-ing human rights claims that had no foundation# The terms of reference of the CBR state that it will in!estigate the creation of a U Bill of Rights that> 7###incorporates and builds on all our obligations under the European Con!ention on Human Rights' ensures that these rights continue to be enshrined in U law' and protects and e.tends our liberties#: There is no commitment to retaining the HR" mechanisms for embedding the Con!ention rights in the three arms of the 5tate> the go!ernment' parliament and the /udiciary# The Equality and Human Rights Commission belie!es that the HR" has substantially impro!ed protection and en/oyment of human rights for e!eryone in Britain# The mechanisms under the HR" ha!e pro!ided a balanced and
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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!ice pro!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< as well as human rights# The Commission is an accredited 7": status %ational Human Rights &nstitution ;%HR&< with the United %ations which recognises our authoritati!e and independent role in promoting and protecting human rights in Britain# Under section , of the Equality "ct 2==* the Commission has duties to> @ 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 rights 4# &n addition' a -ey duty of the Commission under both the Equality "ct 2==* 6 and the United %ations Baris Brinciples) 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# 1ur 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 its four 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=C the historical de!elopments towards the Human Rights "ctC the uniquely British model of human rights protection that the HR" pro!idesC and

the re!iews that ha!e been conducted by the go!ernment' the Barliamentary 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"<# 3e are not at this point pro!iding our !iews on the role of European Court of Human Rights ;ECtHR<' its relationship with domestic courts under the HR" and the proposals to reform the ECtHR# This is for se!eral reasons# ?irstly' the CBR has indicated it is not as-ing the public detailed questions on the ECtHR at this stage# 5econdly' we are underta-ing a specific stream of wor- on the role of the ECtHR and ha!e recently commissioned a research pro/ect# 3e plan to send the CBR a detailed submission on the role of the ECtHR in due course' as well as the report of the research findings# &n Chapter 4 we consider issues relating to de!olution# &n particular we discuss how the HR" and Con!ention rights are embedded into the de!olution settlements' and what are the implications of any possible amendment or repeal of the HR" on the de!olution settlements in 5cotland' 3ales and %orthern &reland#

&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 be considered if they build on the current rights and mechanisms in the HR"#

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Cha*ter 1" 1o $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 the European 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 RightsC 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 RightsC an outline of how the Human Rights "ct pro!ides a British model for protecting human rightsC and an analysis of the -ey findings of re!iews of the Human Rights "ct conducted by the go!ernment' DCHR and the Commission#

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The Commission3s *osition

&n (arch 2=1=' the Commission published its detailed positions on the HR" in response to the last go!ernment$s Ereen Baper consultation on a Bill of Rights ;7HR" Blus:<#* "t the same time' the Commission also published research that it commissioned into the appropriate process for de!eloping any Bill of Rights based on comparati!e e.perience in the United ingdom and internationally#A The findings of this research are discussed further in Chapter 6# HR" Blus pro!ided the Commission$s positions on retaining the HR"' and ;on condition that those rights and mechanisms were retained< what further rights and mechanisms would or may be appropriate to better protect the human rights of e!eryone in Britain#
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The Commission de!eloped a set of principles for any Bill of Rights to ensure both comprehensi!e protection of the human rights of all and a greater understanding and ownership of human rights throughout society#These principles are> Brinciple 1> The Human Rights "ct is essential for the protection of human rights in the United ingdom and should be retained# "ny Bill of Rights should build on the Human Rights "ct# "ny Bill of Rights that replaces the Human Rights "ct should not be brought into force until and unless it contains at least the same le!els of protection of rights and mechanisms under the Human Rights "ct' and complies with obligations under international treaties# Brinciple 2> The go!ernment and any future go!ernment should ensure that the process of de!eloping any Bill of Rights in!ol!es and includes all sectors of society' ensures that the process and result creates a feeling of ownership in society as a whole' that the consultation is conducted by an independent body' and that it is adequately resourced# Brinciple 4> &n any Bill of Rights process' the go!ernment should acti!ely promote understanding of the Human Rights "ct and European Con!ention on Human Rights and the rights and mechanisms they protect' as well as countering any misconceptions# Brinciple 6> The Commission will use the results and recommendations from its Human Rights &nquiry to inform its response to any Bill of Rights and further de!elop the current human rights framewor-# + &n relation to the first principle we belie!e that> the le!el of protection and all the mechanisms pro!ided by the Human Rights "ct ;HR"< should be retained and not diluted in effect in any way'
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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"#

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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 Baine' Dohn Goc-e' (ary 3ollstonecraft and D5 (ill# Baine' 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 anotherC and it becomes my duty to guarantee' as well as to possess#:11 D5 (ill obser!ed in On i)ert.'12 democracy 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!e rights 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 the right 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 the political 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<' legislature ;the Barliament< and the Dudiciary ;the Courts<# 1!er the past fifty years those !iews on incorporation ha!e gradually changed as it was realised that the common law safeguards for human rights were inadequate#

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&n 1,*+ "nthony Gester ;now a Giberal 8emocrat peer Gord Gester HC< published a pamphlet 78emocracy and &ndi!idual Rights: which called for incorporation of the ECHR# &n 1,A6 5ir Geslie 5carman ;later the cross@bench peer Gord 5carman< wrote of the need for an instrument to challenge the so!ereignty of Barliament and to protect basic human rights which could not be adequately protected by the legislature alone# 5carman was in fa!our of entrenchment# He belie!ed that only by ma-ing a Bill of Rights superior to Barliament could such fundamental rights be protected# 1* The Gabour Barty %ational E.ecuti!e Committee un!eiled a Charter of Human Rights in 1,A)# This document ad!ocated an un@entrenched Human Rights "ct# This proposal was regarded as insufficient by many who considered that such an "ct would offer inadequate protection to indi!idual interests against the growing power of the state# &n particular' many Conser!ati!es ;including 5ir Eeoffrey Howe ;now Gord Howe<' 5ir Geon Brittan and Roy Den-ins ;the late Gord Den-ins<< preferred the concept of a Bill of Rights with entrenched clauses that would pre!ent e!en Barliament from granting the e.ecuti!e e.cessi!e power o!er the li!es of indi!iduals# &n 1,A*' the Giberal 8emocrat Gord 3ade mo!ed a Bill in the House of Gords which proposed to entrench the Con!ention as a part of all e.isting legislation and to ma-e it an entrenched part of all subsequent enactments unless Barliament specifically legislated otherwise# Gord 3ade and Gord Harris continued to be the chief ad!ocates for a Bill of Rights in the Gords# 3hen the House of Gords set up a select committee in 1,A+ to inquire whether to introduce a Bill of Rights' it was the three Conser!ati!e members' and only one Gabour' who supported its introduction# The committee unanimously agreed that 7if there were to be a Bill of Rights it should be a bill based on the European Con!ention:# ?ormer Conser!ati!e home secretary Geon Brittan proposed the introduction of a bill of rights for 5cotland' based on the ECHR' in the same year#1A
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Conser!ati!e (B Edward Eardner introduced a 7human rights bill to incorporate in British law the ECHR:# 1ther prominent Conser!ati!es who ha!e argued that the ECHR should be part of U law' in the conte.t of debates on introducing a Bill of Rights' include Richard 5hepherd' &!an Gawrence HC' 5ir (ichael Ha!ers and Huintin Hogg HC ;Gord Hailsham<# &t was Hogg' in his later incarnation as Gord Hailsham' /ust before his second stint as Conser!ati!e Gord Chancellor' who famously declared that 7in this armoury of weapons against electi!e dictatorship' a Bill of Rights' embodying and entrenching the European Con!ention' might well ha!e a !aluable' e!en if subordinate' part to play:# 1+ The Gabour Barty Conference in 1ctober 1,,4 adopted a two@stage policy supporting the incorporation of the European Con!ention of Human Rights to be followed by the enactment of a domestic Bill of Rights# The Gabour Barty planned to entrench Con!ention rights by the use of a 7notwithstanding clause: procedure# This was similar to the Canadian Charter of Rights and ?reedoms' and would ha!e led to the Con!ention o!erriding domestic law unless Barliament e.pressly pro!ided for it to apply notwithstanding that it would !iolate the instrument# Gord Gester of Herne Hill continued his human rights wor- in the Gords by introducing a bill in %o!ember 1,,6# The bill did not recei!e support from the Conser!ati!e Eo!ernment# Barticular aspects of the proposed bill were critici0ed by the Gaw Gords' but significantly they supported incorporation in so far as it allowed U /udges to interpret human rights domestically# &n 8ecember 1,,*' Dac- 5traw (B and Baul Boateng (B published a consultation paper' 7Bringing rights home:' setting out the Gabour Barty:s plans to incorporate the Con!ention if it won the election in 1,,A# 3hen the Gabour Barty won the election the go!ernment introduced the Human Rights Bill into parliament in %o!ember 1,,A' it recei!ed royal assent in %o!ember 1,,+ and it came into force in 1ctober 2===#
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The Human Rights Act" a British mo%e& of human rights &egis&ation

The Human Rights "ct is a no!el and uniquely British model for incorporating the ECHR into our domestic law# &n that sense it can be said that in the HR" we already ha!e a Bill of Rights that is adapted to our particular needs# This section analyses> why it was appropriate to incorporate the ECHR to pro!ide /ustice to people in British courtsC and how the HR" meets the British constitutional traditions of maintaining parliamentary so!ereignty# 5i6 7h. the HRA is nee%e%" Bringing rights home

Dac- 5traw' the then Home 5ecretary' at the second reading of the Human Rights Bill highlighted that the purpose of the HR" was a practical one of 7bringing rights home:# &t was to enable people in the U to bring a human rights claim without ha!ing to go to the unnecessary e.pense and delay of bringing proceedings in the European Court of Human Rights# "s he stated at that point it too- appro.imately fi!e years and cost I4='=== for a claim to reach the European Court of Human Rights after e.hausting all domestic remedies#1, The HR" was therefore a means by which people could secure access to /ustice in British courts# " good e.ample of the pre!ious practical problems associated with failure to incorporate the ECHR were the challenges mounted to a ban on gay men and lesbians ser!ing in the armed forces#2= The English courts applied the 3ednesbury /udicial re!iew test and did not find the ban irrational' but at the same time were unable to determine whether the ban breached their human rights# The European Court of Human Rights unanimously found that the ban breached the persons$ article + rights to pri!acy#

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BO8 CASE ST#19" BRIN!IN! RI!HTS HOME OOO 5an% others6 + Commissioner of Po&ice for the Metro*o&is :4;11< E7HC 14=> &n a recent landmar- /udgment the High Court found that the (etropolitan Bolice 5er!ice had !iolated the human rights of four female !ictims of traffic-ing and child sla!ery by failing to in!estigate the alleged perpetrators# The !ictims were traffic-ed to the U from %igeria when they were 11 to 1) years old# They were forced to wor- as unpaid ser!ants for families in Gondon and sub/ected to serious physical and emotional abuse# The court found that the police had a duty to in!estigate credible allegations of ongoing or past sla!ery and that the failure to conduct an in!estigation was a breach of the claimants: human rights to be free from torture' inhumane and degrading treatment ;article 4 of the Con!ention< as well as a breach of their human rights to be free from sla!ery ;article 6 of the Con!ention<# The police e!entually agreed to underta-e an in!estigation into the claimants$ abuse in 2==,# This led to the con!iction of Gucy "deni/i in ?ebruary 2=11 on charges of traffic-ing and sla!ery' and she was sentenced to 11 and a half years imprisonment# &f the Human Rights "ct was not in place' the !ictims would not ha!e been able to bring a claim in this country that their human rights had been breached# &nstead' they would ha!e had to wait until they had e.hausted any other domestic claims' and then brought a claim in the European Court of Human Rights# This would ha!e not only ha!e been at considerable e.pense and delay' but also ha!e caused further stress and an.iety# &n addition' it is also probable that the police in!estigation would ne!er ha!e occurred and the con!ictions secured if the claim under the HR" had not been brought#
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The HR" was !ital for the !ictims to secure access to /ustice in British courts and to secure the prosecution of the perpetrator of the crimes# 5ii6 Ho$ the HRA satisfies British constitutiona& tra%itions The British constitutional model is a largely unwritten one in which the concept of parliamentary so!ereignty is paramount# This means that parliament can alter any law' there is no legal distinction between constitutional and other laws' and that no /udicial authority has the right to nullify an "ct of Barliament or to treat it as !oid or unconstitutional# 21 The HR" adheres to the concept of parliamentary so!ereigntyC therefore it is not possible for U courts to declare !oid any legislation where it breaches Con!ention rights# This can be contrasted with many other /urisdictions around the world which often ha!e written constitutions ;including Bills of Rights< with a higher status than other laws# Those constitutions also often permit other laws to be declared !oid if they breach any rights in the Bills of Rights#22 Under the British model of the HR"' there are two mechanisms which relate to the concept of parliamentary so!ereignty# Courts are firstly required to interpret legislation compatibly with Con!ention rights 7so far as is possible to do so:#24 5econdly' where the courts cannot interpret legislation compatibly with Con!ention rights they can ma-e a declaration of incompatibility# 26 &t therefore remains for Barliament to decide what action to ta-e regarding any declaration of incompatibility# The model is often described as a parliamentary model of Bill of Rights and said to create a model of 7dialogue: between the courts and parliament#2) The Doint Committee on Human Rights has recommended that the current parliamentary model is the most effecti!e to maintain parliamentary so!ereignty# 2*

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The effecti+eness of the Human Rights Act

This section pro!ides a summary of the main findings of ma/or re!iews that ha!e been conducted of the effecti!eness of the Human Rights "ct by the go!ernment' the Doint Committee on Human Rights and the Commission# The re!iews indicated that the HR" had largely had a positi!e impact on public ser!ice deli!ery and the en/oyment of human rights# Howe!er there are a number of barriers to the HR"$s effecti!eness> significant misconceptions about the HR" are held by sections of the media' general public and at times public authorities ;including by frontline staff in public authorities on when the HR" is not rele!ant<' a need to impro!e understanding and application of the HR" by public authorities' and a need for better leadership on human rights issues by the go!ernment and the Commission# These issues are also lin-ed to the discussion of the process for de!eloping any Bill of Rights in Chapter 6# Re+ie$s ). the go+ernment an% the ?oint Committee on Human Rights There ha!e been two re!iews conducted by the go!ernment on the effecti!eness of the HR"# &n Duly 2==* the 8epartment for Constitutional "ffairs ;8C"< published a re!iew in response to the Brime (inister:s request to the Gord Chancellor to consider any problems with the implementation of the HR"#2A &n addition' the Home 1ffice conducted a re!iew of the effect of the HR" in the conte.t of a wider re!iew of the criminal /ustice system to impro!e protection for !ictims of crime#2+ The Doint Committee on Human Rights e.amined the findings of the re!iews and too- further e!idence from the go!ernment#2, &n relation to the re!iew conducted by the 8C"' it e.amined three aspects relating to the effect of the HR"> its impact on the de!elopment of the lawC its impact on policy formulation' and myths and misconceptions about the HR"# &ts -ey findings were>
21

Im*act on the &a$ 8ecisions of the U courts under the HR" ha!e had no significant impact on criminal law' or on the go!ernment:s ability to fight crime# The HR" has had an impact upon the go!ernment:s counter@terrorism legislation# &n other areas the impact of the HR" upon U law has been beneficial' and has led to a positi!e dialogue between U /udges and those at the European Court of Human Rights# The HR" has not significantly altered the constitutional balance between Barliament' the E.ecuti!e and the Dudiciary# Im*act on *o&ic. formu&ation The HR" has had a significant' but beneficial' effect upon the de!elopment of policy by central go!ernment# ?ormal procedures for ensuring compatibility4=' together with outside scrutiny by the Barliamentary Doint Committee on Human Rights' had impro!ed transparency and Barliamentary accountability# The HR" leads to better policy outcomes by ensuring that the needs of all members of the U :s increasingly di!erse population are appropriately considered# &t promotes greater personalisation and therefore better public ser!ices# M.ths an% mis*erce*tions The HR" has been widely misunderstood by the public' and has sometimes been misapplied in a number of settings# 8eficiencies in training and guidance ha!e led to an imbalance whereby too much attention has been paid to indi!idual rights at the e.pense of the interests of the wider community# This process has been fuelled by a number of damaging myths about human rights which ha!e ta-en root in the popular imagination#
22

The second re!iew was conducted by the Home 1ffice and considered whether the HR" pre!ented balancing between the rights of indi!iduals and the rights of !ictims and communities# The full findings of the re!iew were not published but a summary of its -ey findings is contained in the DCHR$s report on the 8C" and Home 1ffice Re!iews#41 The Home 1ffice re!iew found that in general human rights legislation is percei!ed by the ma/ority of agencies in the criminal /ustice system as being helpful by pro!iding a useful framewor- in which to operate and balance the rights of different groups#42 They concluded that> 7### the "ct itself represents a powerful framewor- to deli!er this' and repealing or amending the "ct will not assist in rebalancing the system#:44 The Home 1ffice Re!iew did howe!er identify percei!ed misconceptions about the e.tent of the effect of the HR" which had sometimes impacted on the decisions regarding criminal /ustice and balancing rights> (There is some e+i%ence from the agencies of an occasiona&&. cautious inter*retation of the Human Rights Act an% *articu&ar&. those artic&es of the Con+ention that re@uire the rights of the in%i+i%ua& to )e )a&ance% $ith *u)&ic safet.- A cu&ture nee%s to )e %e+e&o*e% that is &ess risA a+erse to ensure that misconce*tions aroun% human rights are not in an. $a. *re+enting the effecti+e %e&i+er. of *o&ic.- To an e/tent this ma. arise from a &acA of centra& coBor%ination an% consistenc. on messages )eing circu&ate% to agencies on the a**roach to a%o*t $hen )a&ancing rights- Ho$e+er, there ma. a&so )e a fear of &itigation that ma. encourage those $ho %e+e&o* gui%ance to )e cautious in their inter*retation-03=

24

The re!iew proposals included the establishment of a 75crutiny panel: to scrutinise legislation' practice and training in frontline agencies and front line staff in how to correctly apply the HR" to decision ma-ing# Re+ie$ ). the E@ua&it. an% Human Rights Commission The Commission:s Human Rights &nquiry had terms of reference to> assess progress towards the effecti!eness and en/oyment of a culture of respect for human rights in England and 3ales' and consider how the current human rights framewor- might best be de!eloped and used to realise the !ision of a society built on fairness and respect' confident in all aspects of its di!ersity# 4) The &nquiry was the most detailed e!idence@based research pro/ect to date to assess the effecti!eness of the current human rights framewor- of the HR" in England and 3ales#4* The Commission gathered e!idence using the following methods> three research pro/ects ;the impact of a human rights culture on public sector organisationsC the role and e.perience of inspectorates and regulators in promoting human rightsC the e!aluation of the impact of selected cases under the Human Rights "ct on public ser!ice pro!ision< a call for e!idence from -ey organisations' ser!ice pro!iders and indi!iduals a national sur!ey on public perceptions of human rights and a series of focus groups with members of the public' and &nquiry Banel hearings to hear oral e!idence from -ey organisations' ser!ice pro!iders and indi!iduals#

26

The Commission published its final report in Dune 2==, and some of the -ey findings and recommendations of the inquiry ha!e important ramifications for the CBR# These are detailed below> !enera& fin%ings The fundamental principles set out in the HR" closely reflect our traditional !alues of fairness and /ustice' and the uni!ersal standards to which e!ery democratic go!ernment is committed# Bolling e!idence shows that +6 per cent of people want human rights enshrined in the law for themsel!es and their families#4A Human rights are not merely abstract concepts J they are also an effecti!e tool for deli!ering organisational success and better ser!ices to the public#4+ " true understanding of human rights as a tool to impro!ing people:s li!es is not widespread> there is a general consensus that impro!ed -nowledge and understanding is essential# Effecti+eness of the Human Rights Act There are significant misunderstandings and misconceptions about human rights' and which remain largely unchallenged' leading to both ser!ice users and ser!ice pro!iders being uninformed about their rights and responsibilities#4, The HR" ma-es a positi!e difference to people:s li!es' and to the effecti!e deli!ery of public ser!ices which focus on indi!idual needs# 6= Human rights' by focusing on the needs of the indi!idual' can help restore the power balance between the 5tate and indi!iduals' between ser!ice pro!iders and ser!ice users' and can contribute to a fairer' equal and more inclusi!e society#61 " human rights approach encourages participation by ser!ice users in ser!ice planning and deli!ery' increasing their autonomy' enhancing self@ respect and building better relationships# 62
2)

ea%ershi* There is a !ery strong demand from those who ga!e e!idence' across all sectors' for positi!e leadership and !isible support for human rights from the go!ernment' politicians' the Commission' and others whose responsibility is to formulate national and local public policy# 5uch positi!e leadership is necessary in many cases for public officials to ha!e the confidence to gi!e appropriate priority to human rights# 64 &naccurate statements about human rights by leaders inhibit both people:s understanding of human rights and the de!elopment of a culture of mutual respect for rights and responsibilities#66 The Commission will ta-e action on leadership by encouraging the go!ernment and other political leaders to pro!ide positi!e and consistent leadership on human rights and the HR" and raising public awareness of the importance of human rights and the HR"# 6) Information an% a%+ice There is a !ery widespread concern that there is insufficient -nowledge about human rights# There was a strongly e.pressed desire for accessible and rele!ant guidance as well as information and ad!ice about human rights#6* 3itnesses regretted the fact that the Commission has no power to assist members of the public who need to ta-e legal actions which are based solely on human rights#6A The Commission recommended that the go!ernment should re!iew its decision not to gi!e the Commission the power to assist members of the public in strategic cases in!ol!ing only human rights legislation and that the Commission should be empowered to pro!ide conciliation or mediation ser!ices on human rights#6+

2*

5ome clear conclusions can be drawn from the findings from all the re!iews which ha!e direct implications for the discussion about whether the HR" should be retained# Broadly spea-ing the re!iews found that the HR" had a positi!e impact on impro!ing ser!ice deli!ery while better protecting people:s human rights# The HR" has not been a ma/or impediment to protecting the public from crime and there was therefore no /ustification to repeal the HR"# Howe!er' there is a great lac- of understanding of what human right are' as well as misconceptions and myths which e.tend throughout society among public ser!ice pro!iders' the general public' politicians and the media# The Commission is addressing these perceptions in a number of ways# &t is currently underta-ing an action research pro/ect with the public sector' which aims to identify which misconceptions about human rights are the most pre!alent' and which are pre!enting public sector wor-ers from applying the Human Rights "ct accurately in their wor-# &t will further identify how to best tac-le these erroneous interpretations# The findings will be reflected in a specific report as well as be used to influence the type and nature of human rights guidance that the Commission produces# The production of guidance is another way that the Commission wor-s to impro!e the understanding of the HR" among di!erse audiences' including pro!iders of public ser!ices# This both impro!es their confidence in applying the HR" to appropriate situations' but also allows them to identify when the HR" will ha!e no application# " good e.ample is our guidance on human rights for social housing pro!iders#6, The Commission clearly has a large role in the promotion and protection of human rights' including through outreach and education initiati!es such as these# Howe!er' leadership from all le!els of go!ernment is required to

2A

address challenges to the accurate and supporti!e implementation of human rights norms#

2+

Cha*ter 4" Retaining the rights an% mechanisms of the HRA

1# This chapter e.amines the -ey mechanisms in the Human Rights "ct> 2# the duty on courts to ta-e into account the 5trasbourg /udgments ;s#2< the interpretation of legislation ;s#4< declarations of incompatibility ;s#6< the acts of public authorities and the meaning of public authority ;s#*< /udicial remedies ;s#+< the power to ta-e remedial action ;s#1=K freedom of e.pression ;s#12< freedom of thought' conscience and religion ;s#14< reser!ations and derogations ;s#16 L s#1)< statements of compatibility ;s#1,<

3hate!er domestic legislation is used to incorporate the Con!ention rights' there will need to be a supporting machinery for regulating the relationship between the E.ecuti!e' Barliament and the courts' particularly in matters of public policy' and between the U courts and the European Court of Human Rights# Ultimately' the machinery needs to maintain the so!ereignty of parliament#

4#

These were the ob/ecti!es behind the mechanisms in the Human Rights "ct# ?ar from undermining parliamentary so!ereignty' the e!idence demonstrates that these mechanisms wor- effecti!ely and are instrumental to an open and transparent democracy#
2,

1-

Section 4" Inter*retation of Con+ention rights 6# Those familiar with the wor-ings of the British legal system will be familiar with the doctrine of binding precedent' which is' that a decision by a superior court will be binding on inferior courts# &t is a fundamental doctrine of common law /urisdictions# 5teeped in this legal tradition' it is easy to understand why there is a mista-en belief that the /udgments of the ECtHR ;$5trasbourg /udgments< @ a supranational court @ are binding on British courts# )# Howe!er' as stated' this belief is a mista-en one' not least because it does not fit with the legal traditions of our European neighbours whose ci!il law systems do not usually follow the doctrine of binding precedent# Howe!er' the Human Rights "ct also ma-es it clear that the 5trasbourg /udgments are not binding on British courts#

7hat is the %ut. 3to taAe into account32 *# 5ection 2 of the HR" requires a court or tribunal' when determining an issue in connection with a Con!ention right' to 7ta-e into account: any rele!ant /udgment' decision' declaration or ad!isory opinion of the European Court of Human Rights as well as rele!ant opinions or decisions of the European Commission of Human Rights )= and the Committee of (inisters)1# Ho$ %oes it $orA2 A# The Con!ention rights are binding on the U Eo!ernment but their content ine!itably needs to be interpreted by courts so that public authorities' including go!ernments' and the public can understand them# The /udgment of the European Court of Human Rights see-s to assist that understanding by interpreting the phrases used in the Con!ention# ?or e.ample' that the right to respect for a pri!ate life
4=

conferred by article + means that homose.uality between consenting adults cannot be a crime# +# The duty $to ta-e into account$ the 5trasbourg /udgments means that when a court or tribunal in the U is interpreting domestic law which affects a Con!ention right' then the court or tribunal must loo- at how the ECtHR has interpreted that right# 7h. is there a %ut.2 ,# "dmittedly' section 2 places a duty on the courts and tribunals to ta-e into account the 5trasbourg /udgments @ there is no discretion and they are not free completely to ignore them @ but it does not ma-e binding precedents of the /udgments# &t is also true that courts ha!e usually followed 5trasbourg /udgments' although the U courts ha!e consistently made it clear that they are free to depart from them and ha!e done so on se!eral occasions since the Human Rights "ct came into force# 1=# &t is important to remember that before the enactment of the Human Rights "ct' the other dominant model of incorporation of international law was the European Communities "ct 1,A2# 5ection 2 of the 1,A2 "ct ma-es the pro!isions of the !arious EU treaties directly effecti!e and enforceable in U law)2 and all U law shall ha!e effect $sub/ect to$ directly applicable EU law# )4 11# The effect of the 1,A2 "ct is to ma-e EU law binding on U law to the e.tent that it pre!ails o!er domestic law where there is any inconsistency in the latter' lea!ing the courts without any discretion but to follow EU treaties and caselaw# &n the case of Factortame')6 section 2;6< of the 1,A2 "ct was described as inserting an implied

41

clause into all U law statutes that they shall not apply where they conflict with EU law# 12# The HR" section 2 represents a deliberate re/ection of the model created by the 1,A2 "ctC instead' the HR" lea!es it to the U courts J and' in the case of any incompatibility' to Barliament J to determine how ECtHR rulings will be applied in U law# Thus' the intention to maintain parliamentary so!ereignty and /udicial control by British /udges was clearly a priority for the legislators# 14# Ei!en that a pro!ision was needed to distinguish the Human Rights "ct from the European Communities "ct' a duty was preferred o!er discretion in order to promote consistency in decision ma-ing and to a!oid different results from the same set of facts# )) 16# 8uring the parliamentary debates' an amendment was tabled to replace the words 7must ta-e into account any: with 7shall be bound by:' something which would ha!e forced U /udges to follow the decisions of the European Court in e!ery case#)* &ts purpose was to tease out the circumstances when a U court could depart from the 5trasbourg /udgments# The shadow Gord Chancellor Gord ingsland e.plained the purpose of the amendment as follows> )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
42

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 other countries 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 subsequent 5trasbourg case law:# &n other words' where the e.isting
44

5trasbourg authority is unclear ;or clear but e!idently unsatisfactory< it would be better to lea!e the matter to the U courts to suggest a way forward than to tie their hands# &t was stated that 7our courts must be free to try to gi!e a lead to Europe as well as to be led:# *4 1+# The importance of a fle.ible approach towards 5trasbourg /udgments was also consistent with the Gabour go!ernment:s pre!ious manifesto commitment to incorporate the European Con!ention as 7a floor' not a ceiling' for human rights:'*6 as well as the arguments put forth in its 1,,A 3hite Baper' Rights Brought Home> The effect of non@incorporation on the British people is a !ery practical one# The rights' originally de!eloped with ma/or help from the United ingdom Eo!ernment' are no longer actually seen as British rights M# Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts @ without this inordinate delay and cost# It $i&& a&so mean that the rights $i&& )e )rought much more fu&&. into the Curis*ru%ence of the courts throughout the #nite% Ding%om, and their interpretation will thus be far more subtly and powerfully wo!en into our law# "nd there will be another distinct benefit# British /udges will be enabled to ma-e a %istincti+e&. British contri)ution to the de!elopment of the /urisprudence of human rights in Europe# *) 1,# "ccordingly' the white paper promised that' when considering Con!ention points' 7our courts will be required to ta-e account of rele!ant decisions of the European Commission and Court of
46

Human Rights:' although it also made clear that 7these will not be binding:#** 2=# Thus section 2 of the HR" has gi!en the U courts the fle.ibility to decide whether or not to follow /udgments of the European Court of Human Rights# "t the same time' it has also enabled our courts to ma-e a distincti!e contribution to the rulings of the European Court of Human Rights' a part already being played by the U courts# 21# 5o for e.ample' in Osman + #nite% Ding%om*A it was held that if an authority is immune from action in the law of negligence this may deny the !ictim the right of access to the courts and to a legal remedy' and thus breach article *# 22# Howe!er' in P ! United ingdom'*+ the European Court rowed bacfrom its own /udgment in Osman and declared that the limits to suing public authorities allowed by su)stanti+e domestic law are not in breach of article *# The Court held that Osman had been based on a misunderstanding of the law of negligence that cases were not automatically e.cluded but were struc- out on their merits after applying policy factors which were part of the substanti!e law of negligence# "rticle * thus did not gi!e protection from the su)stanti+e law but pro!ided a *roce%ura& right to bring actions# The decision in Osman had also been hea!ily criticised by lawyers and academics# 24# "t para 1==' the ECtHR said> The Court considers that its reasoning in 1sman was based on an understanding of the law of negligence ### $hich has to )e re+ie$e% in the &ight of the c&arifications su)se@uent&.
4)

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 U courts 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%Cu%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 reason dilute 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
4*

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 courtsC 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 Erand 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 of Manchester Cit. Counci& + PinnocA before 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 1ohert. + Birmingham M' 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'
4A

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 the chamber /udgment of the European Court of Human Rights in Morris + #nite% Ding%om,AA on 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 Erand Chamber of the European Court of Human Rights accepted that the House of Gords was correct# A, 42# &n the 2==+ case of 1ohert. + 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& + PinnocA 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'+4 the U 5upreme Court unanimously declined to follow the chamber /udgment of the European Court of Human Rights in A& Dha$aCa + #nite%
4+

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$aCa was heard by the Erand Chamber of the European Court and a ruling is e.pected before the end of 2=11# 46# &n the 1ctober 2=11 case of R 5Eui&a6 + Secretar. of State for the Home 1e*artment'+) a ma/ority of the U 5upreme Court declined to follow the plenary /udgment of the European Court of Human Rights in A)%u&aFiF + #nite% Ding%om'+* on the grounds that it was 7an old decision: and apparently inconsistent with subsequent /udgments of the 5trasbourg Court#+A 4)# "s cases such as 1ohert. and Horncastle show' the ability of the U courts under section 2 of the HR" to decline to follow rulings of the ECtHR is essential to the process of /udicial dialogue between the U courts and 5trasbourg#++ This in turn ma-es it less li-ely that the European Courts will disagree with the conclusions of the U courts# "s the Erand Chamber of the ECtHR itself noted in the 2==* case of Roche + #nite% Ding%om>+, 3here M the superior national courts ha!e analysed in a comprehensi!e and con!incing manner the precise nature of the impugned restriction' on the basis of the rele!ant Con!ention case@law and principles drawn therefrom' this Court would nee% strong reasons to %iffer from the conc&usion reache% ). those courts ). su)stituting its o$n +ie$s for those of the nationa& courts on a @uestion of inter*retation of %omestic &a$4,

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 Erand Chamber which effecti!ely endorsed the unanimous reasoning of the House of Gords in N + Secretar. of State for the Home 1e*artment,1# 4A# 1n occasions' howe!er' the ECtHR has refered to /udgments of the U courts in cases not in!ol!ing the U # &n Neu&inger an% ShuruA + S$itFer&an%,2 the Erand 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 1 5a chi&%6 N2==*O U HG )1C and in 1emir an% Ba.Aara + TurAe. ;app no 46)=4Q,A' 12 %o!ember 2==+< the Erand Chamber cited the approach of the House of Gords in Pinochet4+# 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 (B 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:#,4 5imilarly' when he was shadow Dustice 5ecretary' 8ominic Erie!e (B 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>>,6 reword 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#
6=

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)&e with Con!ention rights# 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<#

61

Ho$ section 3 $orAs BO8 Case stu%." !hai%an + !o%inBMen%oFaGH Section 3" inter*reting &egis&ation consistent&. $ith Con+ention rights &n this case section 4 of the HR" was effecti!ely used to interpret legislation to pre!ent a breach of same se. couples: right to family life and non@ discrimination in their li!ing arrangements# (r 3allwyn@Dames was li!ing in a flat in Gondon as a tenant from 1,+4 until he died in 2==1# He was li!ing with (r Eodin@(endo0a at the flat in a long term same@se. couple relationship at the time of (r 3allwyn@Dames death# The claimant (r Ehaidan who was the owner of the flat applied to a court for the possession of the flat after (r 3allwyn@Dames died# The -ey issue in the case was whether (r Eodin@(endo0a$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 his or her wife or husband: in the Rent "ct to mean 7 as if the. $ere his wife
62

or husband:# "s a result the court decided (r Eodin@(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 Simms in 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 Barliament' apply principles of constitutionality little different from those which e.ist in countries where the power of the legislature 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,,=>

64

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 the go!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 obligationsC 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 Barliament 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 Barliament> 1=2

66

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# Barliament 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 Barliament disagreed with an 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%erson is a !ery good e.ample of the court respecting the will of Barliament# )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=*

6)

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 Barliament 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=A concerning the retention of 8%" samples by police under section *6;1"< of the Bolice and Criminal E!idence "ct 1,+6 in the wa-e of the ruling of the Erand Chamber of the European Court of Human Rights in S an% Mar*er + #nite% Ding%om in 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=<' it had not yet been brought into effect# The "ssociation of Chief Bolice 1fficers had for practical reasons -ept operational its pre@2==, guidelines to local police forces directing continued indefinite retention# Ruling that the guidelines were unlawful' the 5upreme Court did not compel the police ser!ice to obey the 5trasbourg /urisprudence' in the absence of a change made by Barliament# ))# &n con/unction with the reciprocal power to ma-e a declaration of incompatibility under section 6' the interpretati!e obligation under section 4 has been widely acclaimed as a sensiti!e and proportionate means of gi!ing effect to Con!ention rights in a way that is compatible with Barliamentary so!ereignty# "s the Bresident of the U 5upreme Court Gord Bhillips noted in a recent lecture> 1=+
6*

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 maAe 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 Barliament 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 Barliament itself in enacting the HR"# &n other words' when interpreting legislation under section 4' the courts are not only gi!ing effect to Barliament:s intention behind that particular statute )ut a&so Barliament:s intention when it passed the Human Rights "ct# "s Gord 5teyn pointed out' if Barliament 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 Barliament legislating in this manner' nor are the effects of /udicial
6A

interpretation limited to cases under the Human Rights "ct# &n HM 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' Barliament acted quic-ly to enact emergency legislation> the Terrorist "sset ?ree0ing ;Temporary Bro!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& HooA$a.111 Jin which a High Court /udge interpreted the time limits under section 61 of the Bolice and Criminal E!idence "ct 1,+6 in a restricti!e manner' Barliament again was able to act swiftly to introduce emergency legislation to correct it> the Bolice ;8etention and Bail< "ct 2=11# 112 *=# The possibility of the courts misapprehending Barliament:s legislati!e intent is' therefore' not something which arises only in relation to the HR"# 1n the contrary' it is a general feature of our legal system# This is why it always remains open to Barliament 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 Barliament:s intent#

6+

*2# "s the parliamentary record ma-es clear' it was always Barliament:s intention that most issues under the HR" should be resol!ed by reference to section 4 rather than section 6# "s Gord Bhillips 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 Barliament 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 =" 1ec&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 Barliament# *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 $orA2 *)# "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#

6,

BO8 CASE ST#19 R 57right an% others6 + Secretar. of State for Heath **# The case of R 57right an% others6 + Secretar. of State for Hea&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 +<# *A# The Brotection of Rulnerable "dults ;B1R"< scheme in England and 3ales was a system set out in the Care 5tandards "ct 2===' which was de!eloped' promoted and controlled by the 8epartment of Health for the purpose of acting as a wor-force ban on those people who had been pro!en to ha!e harmed !ulnerable people in their care# " care wor-er could be pro!isionally placed on a Brotection of Rulnerable "dults Gist ;B1R"< pending the determination of an in!estigation# *+# &n practice' care wor-ers on the B1R" Gist waited many months for a decision to be made# &n the four cases re!iewed by the House of Gords the care wor-ers were -ept on the list for between eight and nine months but at the end of this period only one of the four remained on the Gist# Three of the care wor-ers had therefore been left without the opportunity to wor- for nine months# Gisting pre!ented a care wor-er from being employed in any /ob that in!ol!ed !ulnerable people' including children# *,# The House of Gords unanimously found the pro!isional listing without the opportunity to defend the allegations a breach of the rights to a fair trial and pri!acy# &t also made a declaration of
)=

incompatibility' declaring that the rele!ant pro!isions of the Care 5tandards "ct 2=== which set out the procedure for being placed on the B1R" were incompatible with the those rights# &mportantly' the court did not decide how the pro!isions could be made compatible with Con!ention rights as it was held that was a matter for Barliament to decide# A=# The go!ernment responded by replacing B1R" with the Retting and Barring 5cheme ;RB5< with referrals to the &ndependent 5afeguarding "uthority ;&5"<# The new system was pro!ided for in the 5afeguarding Rulnerable Eroups "ct 2==* ;5RE"<# Under the new system' all new referrals of care wor-ers to the &5" are not pro!isionally listed# Gisting only occurs after an indi!idual has had the opportunity to put forward their own representations and a full in!estigation has been completed# 7h. %o the courts ha+e this *o$er2 A1# The declaration of incompatibility is one of the most inno!ati!e features of the HR"# &t is also important to note that the power may be e.ercised only by the higher courts and as a measure of last resort' where the legislation cannot be read or gi!en effect in a way which is compatible with the Con!ention# "s 8ominic Erie!e' the then 5hadow "ttorney Eeneral stated during the parliamentary debates' 7Nthe requirement for the courtsO to set out the nature and the and e.tent of the incompatibility###is an indispensable prerequisite to Barliament being able to ma-e an ob/ecti!e and correct /udgment on compatibility and on how it wishes to proceed###$116 A1# The power of the courts to ma-e a declaration of incompatibility under the HR" was a deliberate compromise between two different
)1

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 RightsC 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 Barliament>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 Barliament# &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 Barliament to decide whether there should be remedial legislation# Barliament 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 the continuing !alidity of an "ct of Barliament# &t is not tantamount to
)2

stri-ing down legislation> the law does not automatically change as a result of a declaration of incompatibility# &nstead' Barliament 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<# &n particular' it allows Barliament to ta-e the appropriate steps to correct the matter rather than wait for the ine!itable' ad!erse /udgment of the European Court of Rights# "s Gord Hoffmann e.plained in E/ Parte Simms in 1,,,> 7Barliamentary so!ereignty means that Barliament can' if it chooses' legislate contrary to fundamental principles of human rights# The Human Rights "ct 1,,+ will not detract from this power# The constraints upon its e.ercise by Barliament are ultimately political' not legal#: 11* A*# &t is' of course' correct that the U go!ernment is bound as a matter of international law to gi!e effect to final /udgments of the ECtHR to which it is a party#11A But this is because the U as a so!ereign power agreed to be bound by this when it signed and later ratified the European Con!ention on Human Rights# "s Brofessor Deremy 3aldron e.plained to the parliamentary Doint Committee on Human Rights in (arch 2=11' 7Bart of the point of being a so!ereign is that you ta-e on obligations:#11+ The tas- of li!ing up to one:s responsibilities may sometimes cause difficulties' but it is a mista-e to thin- of this as any -ind of !iolation of so!ereignty# (ore importantly' it remains always for Barliament to decide what action to ta-e in response to a declaration of incompatibility or an ad!erse /udgment of the 5trasbourg Court# "s the (aster of the Rolls' Gord %euberger' noted in a recent lecture>11,
)4

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 Barliament that the statute does not comply J reflecting the alarm bell /ust mentioned# &t is then for Barliament 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 by Barliament through the 1,,+ "ct' and what Barliament 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 Barliament' 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 1ctober 2=== and 5eptember 2=11' only 2A declarations had been made' of which + were subsequently o!erturned on appeal#12= 1f the 1, final declarations>121 12 were or will be remedied by subsequent primary legislationC 2 were remedied by a remedial order under section 1= of the HR"C 6 related to pro!isions that had already been remedied by primary legislation by the time the declaration had been madeC and

)6

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'122 in which the House of Gords declared the indefinite detention of foreign nationals under Bart 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< of the Con!ention# +=# 1ther declarations ha!e included the incompatibility of the (atrimonial Causes "ct 1,A4 with the right of transse.ual persons to marry ;Be&&inger + Be&&inger<124 the incompatibility of the "sylum and &mmigration ;Treatment of Claimants' etc< "ct 2==6 with the right of foreign nationals to marry ;R 5Baiai an% others6 + Secretar. of State for the Home 1e*artment<C126 and the incompatibility of the Care 5tandards "ct 2=== with the right to a fair hearing in respect of persons who had been pro!isionally listed by the 5ecretary of 5tate as unsuitable to wor- with !ulnerable adults ;mentioned abo!e<#12) Had a declaration of incompatibility not been made by a U court in each of these cases' then it is li-ely that the complainant would ha!e been successful before the ECtHR# To this e.tent' each declaration of incompatibility has enabled the U go!ernment to forego the unnecessary additional burden of ha!ing to defend incompatible legislation in 5trasbourg# +1# The misconception that the courts are engaged in 7o!erruling: Barliament cannot be squared with the practical reality of how declarations of incompatibility operate under section 6# &n our !iew' section 6 is an essential safeguard for the protection of Con!ention rights in the U ' and one that wor-s by respecting the principle of
))

parliamentary so!ereignty# 3e see absolutely no case for either its amendment or repeal#

Section>" Acts of *u)&ic authorities an% meaning of 3*u)&ic authorit.3 +2# "rticle 1 of the European Con!ention requires the 5tate to secure ECHR rights to e!eryone within its /urisdiction> the Human Rights "ct ;HR"< 7####gi!es effect to article 1 by securing to people in the United ingdom the rights and freedoms of the con!ention#: 12* +4# Under the Human Rights "ct it is unlawful for a public authority to act in a way which is incompatible with a Con!ention right# This obligation does not apply if under the law the public authority could not ha!e acted differently# +6# 5ection * HR" is designed to identify those bodies that are carrying out functions which will engage the responsibility of the United ingdom before the European Court of Human Rights# 12A These bodies are termed 7public authorities#: Howe!er' section * contains no definition of 7public authority: apart from e.pressly including courts and tribunals' and other so@called 7hybrid: bodies when they are performing 7functions of a public nature:#

Ho$ has 3*u)&ic authorit.3 )een %efine%2 +)# 5ection * pro!ides that> &t is unlawful for a public authority to act in a way which is incompatible with a Con!ention right# ############################################# ;4< &n this section 7public authority: includesF a court or tribunal' and
)*

any person certain of whose functions are functions of a public nature' but does not include either House of Barliament or a person e.ercising functions in connection with proceedings in Barliament# ################################################# ;)< &n relation to a particular act' a person is not a public authority by !irtue only of subsection ;4<;b< if the nature of the act is pri!ate# +*# &n parliamentary debates during the passage of the HR"' the Gord Chancellor ga!e an e.planation of 7pure: public authorities> 7Clause *;1< refers to a 7public authority: without defining the term# &n many cases it will be ob!ious to the courts that they are dealing with a public authority# &n respect of Eo!ernment departments' for e.ample' or police officers' or prison officers' or immigration officers' or local authorities' there can be no doubt that the body in question is a public authority#: 12+ +A# 5ection *;4< and *;)< HR" e.tends obligations to 7hybrid: bodies by refining the definition of 7public authority:# The policy intention behind this drafting was e.plained as follows> 7####we wanted a realistic and modern definition of the state so as to pro!ide correspondingly wide protection against an abuse of human rights# "ccordingly' liability under the bill would go beyond the narrow category of central and local go!ernment and the police J the organisations that represent a minimalist !iew of what constitutes the state#:12,

)A

++# &t was further e.plained that this mechanism was designed to ensure that responsibility under the HR" would generally follow the outsourcing of state functions# 7The second category contains organisations with a mi. of public and pri!ate functions# 1ne of the things with which we had to wrestle was the fact that many bodies' especially o!er the past 2= years' ha!e performed public functions which are pri!ate' partly as a result of pri!atisation and partly as a result of contracting out# N########O Bri!ate security firms contract to run prisons> what Eroup 6' for e.ample' does as a plc contracting with 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 the full@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

)+

Ho$ section > HRA has $orAe% in *ractice ,=# "pplying the definition of a 7pure: public authority has pro!ed relati!ely straightforward and the courts appear to ha!e had little difficulty identifying which bodies fall within the scope of section *;1< HR"# &n the case of Aston Cant&o$, Gord %icholls obser!ed> 7#####the phrase $a public authority$ in section *;1< is essentially a reference to a body whose nature is go!ernmental in a broad sense of that e.pression# &t is in respect of organisations of this nature that the go!ernment is answerable under the European Con!ention on Human Rights# Hence' under the Human Rights "ct a body of this nature is required to act compatibly with Con!ention rights in e!erything it does#:142 BO8 CASE ST#19" Human Rights in Hea&thcare The Commission$s Human Rights &nquiry found that the Human Rights "ct has generally had a positi!e impact on the deli!ery of public ser!ices# 3here the HR" has been used effecti!ely by public authorities it has impro!ed the design and deli!ery of their ser!ices in a manner that respects people:s human rights and impro!es staff satisfaction and confidence in their decision ma-ing#144 The Human Rights &nquiry loo-ed at a range of e.amples of how the HR" and impro!ed public ser!ice deli!ery in sectors' including health and social care' policing and criminal /ustice' local authority ser!ices' and ser!ices for children and young people# 1ne important heathcare pro/ect was the Human Rights in Healthcare initiati!e# This in!ol!ed fi!e primary care and %ational Health 5er!ice trusts in England in a pilot scheme to adopt a human rights approach' sponsored by
),

the 8epartment of Health with the participation of the British &nstitute of Human Rights#146 &n e!idence to the Commission$s &nquiry the Bermanent 5ecretary described its effects> 73hat Nthe pilot pro/ectO does is help to focus attention of the organisation on things which are absolutely crucial to quality ser!ices which is about fair' effecti!e and personal ser!ices to people# &t goes right to the core !alues and ser!ice ambitions of both health and social care ### 3hat it has pro!ed is an energising way of using the human rights ambitions and features to get an organisation thin-ing about how it does its /ob better' which seems to me to be absolutely what it should be about#: Mr Hugh Ta.&or, Permanent Secretar., 1e*artment of Hea&th I transcri*t 3;-1;-;J 8uring the period of the &nquiry' the 8epartment of Health also published an independent e!aluation of the Human Rights in Healthcare initiati!e' conducted by &psos (1R&' which drew the following conclusion> 71ur 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#: 51e*artment of Hea&th E+a&uation, 4;;J613H 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 ;*<;4<;b< HR" encompasses the functions of pri!ate and third sector organisations has in practice pro!ed more problematic than identifying 7core: public authorities
*=

under section *;1<# The courts ha!e generally ta-en a conser!ati!e approach to functions performed by pri!ate or third sector bodies' showing reluctance to treat these as public functions under the HR"# "s we obser!e below' the Doint Committee on Human Rights toothe !iew that this is a more restricti!e interpretation than Barliament intended' potentially depri!ing numerous people from the human rights protection offered by the HR"# ,2# Case law from the European Court of Human Rights ;ECtHR< gi!es little clear guidance on applying the public function test' apart from recognising that in some circumstances the 5tate has positi!e obligations to regulate or control the acti!ities of pri!ate persons' where the human rights of an indi!idual would otherwise be at ris-C and that the 5tate may in some circumstances retain responsibility for the conduct of pri!ate law institutions to which it has delegated state powers#14* ,4# There ha!e been two -ey decisions by the House of Gords on this issue> the Aston Cant&o$ case' cited abo!eC and 9 5). her &itigation frien% the Officia& So&icitor6 +- Birmingham Cit. Counci& an% Others N2==AO U HG 2A# The House of Gords held that there is 7no single test of uni!ersal application: in determining whether a body is a public authority14A and that the courts should adopt a factor@based approach to this question# 14+ The SG decision confirmed that the factors to be ta-en into account include> The e.tent to which' in carrying out the rele!ant function' the body is publicly fundedC 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#

*1

3hether the body is e.ercising statutory powersC 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 authoritiesC 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 is one 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

*2

public functions under the HR"C and a third important area where the scope of the HR" has yet to be clarified# Socia& care ,)# &n the 9 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 Barliament' through section 16) Health and 5ocial Care "ct 2==+# This section pro!ides that the meaning of 7public function: under 5 *;4<;b< HR" includes pro!iding care home accommodation with nursing or personal care for an indi!idual' where this care is publicly arranged# ,*# The legal impact of the SG decision almost certainly e.tends to the ma/ority of home care ser!ices' as these are arranged by local authorities under similar statutory pro!isions ;section 2, %ational "ssistance "ct 1,6+<# Howe!er' section 16) of the Health and 5ocial Care "ct 2==+ only brings resi%entia& social care within the scope of the HR"# ,A# This anomaly for home care' combined with significant changes in the pro!ision of home care o!er the past two decades' has led to the ma/ority of home care ser!ices falling outside the scope of the HR"# &n 1,,4' the proportion of publicly funded home care pro!ided by the pri!ate and !oluntary sectors was less than )T' but by 2==,Q2=1= this had increased to +6T#16= Pro+ision of accommo%ation ). registere% socia& &an%&or%s ,+# &n the case of R ;3ea!er< ! Gondon L Huadrant Housing Trust' 161 the Court of "ppeal decided that a housing association was
*4

performing a function of a public nature when allocating and managing social housing# &n drawing this conclusion' the court toointo 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 Huadrant 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# 164 The 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 Barliament#

*6

116#The DCHR loo-ed at se!eral options for o!ercoming this problemC further go!ernment guidanceC further litigationC 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 Barliament intended# 11*# Further &itigation> Referring to the ?ohnson case ;this case was later 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!ice deli!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 Barliament 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>

*)

7?or the purposes of s# *;4<;b< of the Human Rights "ct 1,,+' a function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform the function#: 166 Our conc&usions an% recommen%ations 11+#The fle.ibility in the meaning of 7public authority: has been a defining feature of the HR"' and one of its most inno!ati!e legal mechanisms# 3e conclude that section *;1< has been successful in defining 7pure: public authorities carrying out functions which engage the 5tate:s responsibilities under the Con!ention# Howe!er' the application of sections *;2< and *;4< has been more problematic# 11,#"s noted abo!e' article 1 of the European Con!ention requires the 5tate to secure ECHR rights to e!eryone within its /urisdiction# &t can be argued that the interpretation by the courts of 5*;4<;b< HR"' combined with the increasing role of the pri!ate sector J and to a lesser e.tent the third sectorJ in deli!ering public ser!ices' has undermined the U :s compliance with article 1# 5imilar concerns were e.pressed by the DCHR in its 2==A report on this issue> 7 3e consider that the practical implications of the current case law on the meaning of public authority are such that some ser!ice users are depri!ed of a right to an effecti!e remedy for any !iolation of their Con!ention rights' with a significant ris- of incompatibility with the United ingdom:s responsibilities under article 1 and article 14 ECHR# 3e consider that the practical implications of the current case law for !ulnerable ser!ice users are particularly star-# &n the absence of any compelling e!idence that the public ser!ices mar-et would be undermined by the application of the HR"' we consider there is an urgent
**

need for action to ensure that the HR" is applied as in our !iew it was intended by Barliament#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#

H-

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 ;Ereenfield< ! 5ecretary of 5tate for the Home 8epartment 16A# 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#
*A

124#The application of Ereenfield 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. discrimination 16+# &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#1ne 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 taAe reme%ia& action 12*#" 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 of any further appeal against the rulingC or
*+

it appears to the go!ernment that a pro!ision of legislation has become incompatible following a /udgment of the ECtHRC 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 $orAs 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 Barliament 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 Erie!e (B 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 Barliament 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)2 and three times by the Coalition go!ernment in relation to stop and search'1)4 the rights of foreign
*,

nationals to marry'1)6 and 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 Barliament 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@tracremedial 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>

A=

the material has' or is about to' become a!ailable to the publicC 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 Bress Complaints 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 BCC' 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)* 1ther 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<# &t has been used mainly in cases concerning breaches of confidentiality#

J-

Section13" Free%om of thought, conscience an% re&igion 14A#5ection 14 requires the court to ha!e 7particular regard to the importance of the article , right in any case where the court$s determination of an issue under the Con!ention might affect the e.ercise by a religious organisation of the right to freedom of thought' conscience and religion#
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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% 1H" Reser+ations an% 1erogations 14,#These sections pro!ide the mechanism for derogations from and reser!ations to the Con!ention# They were passed by Barliament 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 Brotocol %o# 1 ;right to education<# The impact of the reser!ation is to qualify the duty on the 5tate to ensure that education and teaching conforms to the religious and philosophical con!ictions of parents by ma-ing it compatible with the pro!ision of efficient instruction and training and the a!oidance of unreasonable e.penditure# 161#The reser!ation was e.tended in 1,++ and 2==1 to different o!erseas territories where education legislation allows for further e.ceptions to article 2# 162#Currently there are no derogations from the Con!ention' although the U go!ernment has registered some in the past# &t registered a derogation to article );4< in 1,++ in response to terrorism connected with affairs in %orthern &reland which was withdrawn in 2==1#
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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 1e*artment :4;;=< #DH , H><#

1;- Section 1G" Statements of Com*ati)i&it. 166#The importance to democracy of statements of compatibility is greatly underestimated if not o!erloo-ed# 5tatements of compatibility promote open and transparent go!ernment and allow Barliament to hold the E.ecuti!e to account through scrutiny and discussion of the statement# &t is -ey feature of the HR" and would need to be part of the machinery supporting a Bill of Rights# 16)#5ince the commencement of the Human Rights "ct' all proposed legislation being considered in the 3estminster Barliament has had to be accompanied by a statement from the (inister in charge of the bill' before its second reading' that in his or her !iew the pro!isions of the bill are compatible with the Con!ention rights' or that despite being unable to ma-e such a statement the bill should proceed# 1)+ 16*#&n the 5cottish Barliament' the rele!ant (inster and the Bresiding 1fficer must ma-e a statement of compatibility in relation to each bill being considered#1), They cannot ma-e a statement of incompatibility as legislation passed by the 5cottish Barliament must

A4

be human rights compatible to be within the competence of the Barliament 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' Barliament 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 Bresiding 1fficer' 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 Barliament 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 $orAs 16+#The usual practice' and all that is required by the HR" and the 5cotland "ct' is for the (inister ;and Bresiding 1fficer< 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 detailed analysis was presented#1*1 &t identified the most significant
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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 Brotection 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 1ffice published a detailed Human Rights memorandum setting out the Eo!ernment:s !iews on the principal human rights implications of the bill# 1*2 This was based on the (emorandum prepared for the Barliamentary 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 Eo!ernment amendments to the bill which 7clearly ha!e human rights implications#1*4 1)1#" detailed Human Rights (emorandum also accompanied the Eo!ernment:s Terrorism Bre!ention and &n!estigation (easures ;TB&(< bill' which again pro!ided in!aluable analysis of the bill:s human rights implications alongside the (inisterial statement of compatibility#1*6

A)

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 obligations under 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' Barliament 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 Barliaments for a (inister ;or the Bresiding 1fficer< 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 Eo!ernment to pro!ide a dedicated human rights memorandum with e!ery bill it publishes' but this request has to date been re/ected#

A*

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' Barliament and the courts# The human rights implications of any proposed law would be clearly identified and openly debated# (embers of both Barliaments' 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 Barliaments 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 what they 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 informationC 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 themC

AA

iii#

The adequacy of /udicial and procedural safeguards to protect libertyC

i!#

The danger of discrimination in the operation of certain pro!isions

!# !i#

The right of access to a fair hearing before a courtC The adequacy of safeguards against powers to search a person or propertyC

!ii#

The adequacy of procedural safeguards on pre!entati!e ordersC

!iii#

The adequacy of the powers and independence of human rights institutionsC and

i.#

The adequacy of protection for children and young persons#

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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 component countries 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 statutes 1A= 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 Barliament and %orthern &reland "ssembly ha!e no power to amend the HR"C1A2
A,

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# 1A6 This in turn raises issues about whether the 3estminster Barliament 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 ;Eood ?riday< Beace "greement ;the 7Eood ?riday "greement:<# 5econdly' the Eood ?riday "greement committed to consultation on the de!elopment of a Bill of Rights for %orthern &reland which would reflect the 7particular circumstances of %orthern &reland:# The nature of the different considerations in each of the /urisdictions is discussed below#

1-

Scot&an%

The relationship between the Human Rights "ct 1,,+ and the statute establishing the de!ol!ed institutions in 5cotland is comple.> unli-e the 3estminster Barliament' in 5cotland any act incompatible with Con!ention rights would for that reason alone place it beyond the competency of the 5cottish Barliament# The Human Rights "ct is wo!en through the 5cotland "ct 1,,+ and any change to the HR" may entail significant re!ision and amendment# 3hile the challenges of drafting a Bill of Rights rele!ant to all the constituent nations of the U ha!e been described as 7not insuperable: 1A)'
+=

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-C 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 Barliament and 5cottish (inisters are unable to legislate or do any act which is incompatible with Con!ention rights#1A* "s confirmed by the House of Gords' this means that it is unlawful for the 5cottish Barliament or 5cottish (inisters to pass legislation or act in a way which would !iolate the Con!ention rights#1AA This 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 BarliamentC and that the constitution is one of the policy areas reser!ed in its entirety to the U Barliament ;5chedule )<#

+1

&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 Hueen in Barliament1A,' which remains absolute' as is made e.plicit at 52+;A<> 7This section does not affect the power of the Barliament of the United ingdom to ma-e laws for 5cotland:# &t would therefore appear that the U Barliament 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 of de!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 Barliament to legislate on any matter' reser!ed or de!ol!ed' places a de facto requirement to see- the consent of the 5cottish Barliament before ;i< legislating on any de!ol!ed matter' ;ii< !arying the powers of the 5cottish Barliament' or ;iii< conferring new powers on 5cottish (inisters# The 5cottish Barliament signals consent by passing a legislati!e consent motion' often -nown as a 75ewell motion:# 5o' for e.ample' before 5cottish (inisters could bring forward draft regulations setting out the specific steps to be ta-en by de!ol!ed authorities to meet the requirements of the Bublic 5ector Equality 8uty in the Equality "ct 2=1=' (5Bs first had to pass a 5ewell motion consenting to these new powers being conferred on 5cottish (inisters# &t is not difficult to see how the repeal' substantial amendment or replacement of the Human Rights "ct with a British Bill of Rights could either !ary the powers of the 5cottish Barliament ;by altering one of the -ey tests for determining legislati!e competence< or confer new powers on
+2

5cottish (inisters ;through' for e.ample' the introduction of additional rights<# The 5ewell Con!ention' while not legally binding' could then come into play and the consent of the de!ol!ed institutions be required# These considerations stray howe!er from solely legal and constitutional areas into political areas which' while clearly beyond the Commission:s mandate' must also be recognised# The *o&itica& conte/t "ny consideration of a proposed Bill of Rights cannot be separated from the political realities of a de!ol!ed Britain in 2=11# ?our different parties are in power in Edinburgh' Cardiff and Gondon' and in 5cotland:s case' the 5%B administration has made clear that it is opposed to the idea of a Bill of Rights' for cultural and political' as much as constitutional' reasons# 1+1 Howe!er' these are arguments not /ust about identity and history# "s pre!iously mentioned' the constitution is a reser!ed matter under the 5cotland "ctC ne!ertheless' the 5cottish Eo!ernment is committed to introducing a multi@option referendum on 5cotland:s future within or outside the U by 2=1)# 5cottish (inisters ha!e also been particularly !ocal on constitutional matters such as the locus of the U 5upreme Court in 5cots criminal law#1+2 &t is not the Commission:s place to consider the merit of these proposals and disagreements' but they help illustrate the political comple.ities of an issue which cannot be seen in purely legal or constitutional terms#

4-

7a&es

5ince the ad!ent of de!olution in 3ales' and the establishment of the 3elsh "ssembly in 1,,,' clear constitutional con!entions ha!e emerged# ?or instance the use of legislati!e consent motions passed by the %ational "ssembly to appro!e clauses in bills before the 3estminster Barliament
+4

that ma-e pro!ision in respect of an area de!ol!ed to the 3elsh Eo!ernment# "s is the case in 5cotland consideration is required of the e.tent to which any changes to the Human Rights "ct will require consent from the %ational "ssembly as the 3elsh legislature# ega& an% constitutiona& consi%erations 5imilarly to 5cotland' the power of the 3elsh Eo!ernment is constrained by the need to carry out its business in a manner that is compatible with the European Con!ention on Human Rights1+4# 5ection +1;1< of the Eo!ernment of 3ales "ct states thatC 7;1< The 3elsh (inisters ha!e no powerF ;a< to ma-e' confirm or appro!e any subordinate legislation' or ;b< to do any other act' so far as the subordinate legislation or act is incompatible with any of the Con!ention rights#: This section pre!ents the 3elsh (inisters acting in breach of the European Con!ention of Human Rights# "s is the case in 5cotland' consideration as to the effect of any repeal or change to the Human Rights "ct will need to ta-e account of the use of the European Con!ention of Human Rights as a corner stone of constitutional law in the de!ol!ed nations# 1+6 The 5upreme Court has recently stated in the conte.t of a challenge to the legitimacy of a piece of 5cottish legislation that 7#####"cts of the 5cottish Barliament are not sub/ect to /udicial re!iew at common law on the grounds of irrationality' unreasonableness or arbitrariness# This is not needed' as there is already a statutory limit on the Barliament:s legislati!e competence if a pro!ision is incompatible with any of the Con!ention rights> section 2,;2<;d< of the 5cotland "ct 1,,+:# 1+)

+6

The *o&itica& conte/t "n important political factor in 3ales is that the 3elsh Eo!ernment has been recently enacting further protection of human rights which go beyond the Con!ention rights# The 3elsh Eo!ernment has gi!en effect to rights within the United %ations Con!ention on the Rights of the Child !ia the Rights of Children and Soung Bersons ;3ales< (easure 2=11# This (easure of the %ational "ssembly that pre dates the referendum on greater law@ma-ing powers in 3ales pro!ides for an e!entual1+* due regard duty to be placed on the 3elsh (inisters when 7e.ercising any of their functions:1+A# 3hilst not /usticiable as a pri!ate law action this (easure demonstrates the introduction of a non@ /usticiable rights framewor- within e.ecuti!e decision ma-ing# 5imilarly the 3elsh Ganguage (easure ;3ales< 2=11 recognises the official status of 3elsh in 3ales as well as an indi!idual freedom to spea3elsh#1++ &t confirms the right pre!iously enacted in the 3elsh Ganguage "ct ;1,,4< to be able to use 3elsh in Court proceedings in 3ales# 1+, Ensuring the promotion of the 3elsh language has been recognised internationally in the conte.t of the U go!ernment$s obligations under the Council of Europe ?ramewor- Con!ention on the Brotection of %ational (inorities#1,= "s these e.amples demonstrate' de!ol!ed legislation in 3ales has begun to incorporate into the domestic legal framewor- new rights for people in 3ales# The e.tent to which any proposals in a Bill of Rights build on' alter or possibly diminish these rights will require careful consideration# "n awareness is required of the increased di!ergence and political attitudes now present in the de!ol!ed nations that were not so on the passing of the Human Rights "ct#

+)

3-

Northern Ire&an%

"s in relation to the other /urisdictions' there are legal' constitutional and political considerations concerning %orthern &reland that must be ta-en into account in any discussions on amending or repealing the HR"# ega& an% constitutiona& consi%erations 5imilarly to 5cotland and 3ales' the %orthern &reland "ssembly and %orthern &rish (inisters cannot legislate or do any act which is incompatible with Con!ention rights#1,1 The %orthern &reland "ssembly also has no powers to amend the HR"#1,2 5imilarly to 5cotland though' in practice it is li-ely that any amendment or repeal of the HR" would require the consent of %orthern &reland "ssembly with a 5ewell motion for the same reasons# Consi%erations *articu&ar to Northern Ire&an% &n relation to %orthern &reland' further legal implications arise beyond those for 5cotland and 3ales# The Eood ?riday "greement states that> 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 Eood ?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

+*

" second important consideration in %orthern &reland is that the Eood ?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,A and 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#

+A

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: Bart 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 rightsC to engage with groups that are normally unli-ely to participate in such democratic processesC to ensure that there is independence and transparency in the body ma-ing decisionsC and to ensure that the scope of the possible outcomes in clear# &n 1ctober 2==,' the Equality and Human Rights Commission commissioned Elobal Bartners 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!olution settlements# The research was published by the Commission at the same

++

time it published its response to the last go!ernment$s consultation on a Bill of Rights#1,+ The research aimed to analyse e!idence drawn from related domestic and international e.periences' identify -ey principles that should underpin the de!elopment of a Bill of Rights' and identify policy implications in relation to any future process' regardless of which political party is in power# The research comprised> " re!iew of literature on Bills of Rights processes' focusing on Canada' %ew Pealand' 5outh "frica' "ustralia and %orthern &reland# ?orty@three semi@structured inter!iews with people who ha!e studied andQor been in!ol!ed in Bills of Rights or analogous processes# " seminar on 1 8ecember 2==,' held under Chatham House rules' which in!ol!ed colleagues from human rights commissions in the U ' legal practitioners' academics and non@go!ernmental organisations# The detailed findings of the research are contained in the final report# Below we only summarise the -ey principles deri!ed from the research# De. *rinci*&es The research report set out -ey principles based on the e!idence from the processes of creating Bills of Rights in other /urisdictions# They were suggested as both ;i< requirements for the conduct of any future process and ;ii< a set of criteria to inform the decision about whether that process is worthy of engagement and against which it might be held up to scrutiny# " process of creating a Bill of Rights should be>

+,

NonBregressi+e "ny future U Bill of Rights should not dilute e.isting protection pro!ided by the HR"' either in relation to the specific rights protected' or by wea-ening the e.isting machinery for the protection of Con!ention rights# "ny process that starts from a premise of going bac-wards would set a damaging precedent internationally# "ny future go!ernment must commit unequi!ocally to retaining the HR" unless and until a new Bill of Rights' protecting human rights to at least the same e.tent as the HR"' is enacted# Trans*arent Boliticians should be transparent about the purpose of a Bill of Rights and the terms of reference and methods of the process by which they propose to create it# This entails a clear procedural commitment to act on the results of public consultation and deliberation within clearly articulated parameters# In%e*en%ent The body running the process should be demonstrably non@partisan' independent of go!ernment and ha!e no !ested interest in the outcome# 1emocratic ?or the outcome to be seen as ha!ing democratic legitimacy' the process must also be democratic# This principle recognises that Bills of Rights are not only a constraint on the e.ercise of arbitrary powerC they are also a positi!e instrument to enable relati!ely powerless groups to ha!e an effecti!e say in the democratic process# Inc&usi+e The process should place the highest premium on eliciting the !iews and e.periences of groups whose human rights are most !ulnerable to being breached' and should gi!e those !oices an ele!ated status in the assessment of responses and in the final outcome#
,=

1e&i)erati+e an% *artici*ati+e The process should be an e.ercise in building citi0enship' not merely 7mar-et research:# &t should pro!ide multiple opportunities for participation and' ideally' properly constructed forum;s< for deliberation which should be used to educate and in!igorate the wider consultation# E%ucati+e The public should be informed to the greatest e.tent possible about e.isting human rights protections and options for building on them' and about their duty to respect the rights of others# " minimum requirement is the pro!ision of accessible and impartial information and the correction of myths and misperceptions about human rights and the HR"# Reci*roca& The process should be a two@way dialogue in which the go!ernment' too' is educated# The imprint of the process must be !isible and ac-nowledged in the final outcome# Roote% in human rights The process of creating a Bill of Rights must be consistent with human rights principles# These include respect for the dignity and autonomy of indi!iduals and the right to participation# These principles are internationally recognised and not sub/ect to political whim or contingencyC nor can they be trumped by considerations such as public safety or security or requirements to e.ercise indi!idual responsibility# Time% "ny process should ha!e a clear timeframe including a period to build momentum# &t should not be indeterminate#

,1

S.m)o&ic The process should be suitably ambitious for the underta-ing of a constitutional enterprise# " Bill of Rights that aspires to last for generations requires a process that is compelling to the public# 1esigne% to %o no harm The process should be adequately resourced and there should be a political commitment to act on the outcome of consultation# Res*ectfu& of the %e+o&ution sett&ements Choice should reside with the de!ol!ed assemblies and the process should respect their competency and self@determination# Po&ic. im*&ications PreBcon%itions for engagement The principles stated abo!e are' to a degree' interdependent# Howe!er' the principle of non@regression is of a higher order# 3ithout an unequi!ocal guarantee that the purpose of a Bill of Rights process is to augment international standards and to maintain their incorporation in domestic law' the other principles are li-ely to appear immaterial# 3e suggest that any actor concerned with the protection and promotion of human rights would be bound to re/ect a process predicated on regression in terms of formal endorsement or engagement# The corollary of this is that any future go!ernment must pro!ide ;and non@ go!ernmental actors should demand< an unambiguous @ and public @ statement of intent and terms of reference for the consultation process' along with clear procedural commitments to act on the outcome of consultation within the stated parameters#

,2

Certif.ing nonBregression 5ub/ect to these assurances' any future go!ernment should establish ;and actors concerned with the protection and promotion of human rights should ad!ocate for< an independent committee of e.perts' who might be appointed on a cross@party basis' to pro!ide a 7-itemar-: throughout the process that the principle of non@regression is being upheld# 1esigning *rocess to *ro%uce an outcome $ith %emocratic &egitimac. "ny future go!ernment should' drawing from precedents in other /urisdictions' establish an independent body to run the consultation process# Contingent upon the assurances sought abo!e' actors concerned with the protection and promotion of human rights should ad!ocate for a consultati!e process that is run independently of go!ernment and designed to engender public trust# The process must also be transparent> actors concerned with the protection and promotion of human rights should influence and monitor the process to ensure that any future go!ernment does not 7pic- and mi.: from a!ailable methodologies in order to manufacture apparent consensus behind measures which would not' in fact' ha!e democratic legitimacy# Inf&uencing the terms of %e)ate" a concor%at "ctors concerned with the protection and promotion of human rights should ad!ocate for a concordat that would bind all parties that signed it to certain rules of engagementC principally' an agreement not to use language or bring stories into the public domain that -nowingly distort the purported impact of human rights and the HR"# This would help to ensure that all parties commit themsel!es to a process which is a!owedly educati!e and non@partisan and does not trade in myths or see- to use the Bill of Rights as a pro.y for unrelated issues#

,4

1e+o&ution "ctors concerned with the protection and promotion of human rights should champion the principle that choice should reside with the de!ol!ed assemblies and that the process of creating a U Bill of Rights should respect their competency and self@determination# &t is imperati!e that those actors with appropriate e.pertise and authority highlight the legal' constitutional and political implications of de!olution for any decision to amend or repeal the HR" andQor to enact a U or 7British: Bill of Rights# The Commission belie!es that the same principles and policy implications apply today in relation to this consultation process on a Bill of Rights# The Commission therefore calls on CBR to ta-e them into account in conducting its consultation and in its final report#

,6

,)

3inston 5 Churchill' Complete 5peeches' 1+,A@1,*4' R#R#Dames ;ed<' 1,A6' ppA*4)@,# House of Gords' 5econd Reading' The Gord Chancellor ;Gord &r!ine<' 1fficial Report' House

of Gords' 4 %o!ember 1,,A' !ol )+2 col 122A#

4

The rights under the European Con!ention on Human Rights# 5ection 11 of the Equality "ct 2==* These pro!ide the requirements for effecti!e %HR&s> HR" Blus> Human Rights for 21st century Britain' (arch 2=1='

http>QQwww#equalityhumanrights#comQlegal@and@policyQbill@of@rightsQour@response@to@the@green@ paperQ
A

8e!eloping a Bill of Rights for the U ' "lice 8onald with the assistance of Bhilip Geach and

"ndrew Buddephatt' Elobal Bartners and "ssociates' Gondon (etropolitan Uni!ersity' (arch 2=1=' http>QQwww#equalityhumanrights#comQuploadedKfilesQresearchQde!elopingKaKbillKofKrightsKfor KtheKu-KreportK)1#pdf
+

HR" Blus> Human Rights for 21st century Britain' (arch 2=1=' page )# Habeas corpus lin-s to the article ) right to liberty as it is a legal action which enables a

prisoner to be released where they ha!e been unlawfully detained#

1=

This was a predecessor to similar future pro!isions on torture' inhumane and degrading

treatment in Bills of Rights such as article 4 of the European Con!ention on Human Rights#
11

Thomas Baine' 1n the Rights of (an 1A,2# 1.ford> 1.ford Uni!ersity Bress' 1+*,# (ary 3ollstonecraft' " Rindication of the Rights of 3oman' 1A,2# Her earlier wor-' "

12

14

Rindication of the Rights of (en ;1A,=<' argued against the sla!e trade#
16

Blac-stone' Commentaries on the Gaws of England' 1A*)@1A*,# Purich 1, 5eptember 1,6*' http>QQassembly#coe#intQ(ain#asp9lin-UQ"boutUsQ0urichKe#htm Gord 5carman' English GawFThe %ew 8imension' Hamlyn Gectures' 2*th 5eries ;Gondon>

1)

1*

5te!ens' 1,A6<#

1A

?rancesca lug' Human Rights don$t belong to political parties' Euardian' 2 ?ebruary 2=1=# &bid' The 8ilemma of 8emocracy' 1,A+ House of Commons 5econd reading# 1fficial report' 1* ?ebruary 1,,+' !ol 4=A col A*,# 5mith and Erady ! U ;1,,,< 2, EHRR 6,4 Brofessor "R 8icey> &ntroduction to the Gaw of the Constitution' 1++)# 5ee for e.ample the models for entrenchment of human rights in the United 5tates'

1+

1,

2=

21

22

Eermany and ?rance#

24

5ection 4 Human Rights "ct 5ection 6 Human Rights "ct 7" Bill of Rights for the U 9:' Doint Committee on Human Rights' 2,th report' session 2==A@

26

2)

=+
2*

&bid paragraph 211@21+# Re!iew of the &mplementation of the Human Rights "ct' Duly 2==*' 8epartment for

2A

Constitutional "ffairs#
2+

Rebalancing the criminal /ustice system in fa!our of the law@abiding ma/ority# Cutting crime'

reducing reoffending and protecting the public' Home 1ffice Duly 2==*#
2,

The Human Rights "ct> the 8C" and the Home 1ffice Re!iews Doint Committee on Human

Rights' 42nd report of session 2==)@=*

4=

5uch as statements of compatibility under section 1, of the Human Rights "ct# The Human Rights "ct> the 8C" and the Home 1ffice Re!iews Doint Committee on Human

41

Rights' 42nd report of session 2==)@=*

42

&bid paragraph 1==# Rebalancing the criminal /ustice system in fa!our of the law@abiding ma/ority# Cutting crime'

44

reducing reoffending and protecting the public' Home 1ffice Duly 2==*# page 6#
46

The Human Rights "ct> the 8C" and the Home 1ffice Re!iews Doint Committee on Human

Rights' 42nd report of session 2==)@=*' paragraph 1=1#

4)

Human Rights &nquiry' Report of the Equality and Human Rights Commission' Dune 2==,'

page 14#
4*

&n total 2'+)) people pro!ided e!idence to the &nquiry between "pril and 8ecember 2==+#

&bid page 1)# The &nquiry comprised two phases> firstly an analytical literature re!iew on the implementation of the Human Rights "ct o!er the last decadeC and secondly by gathering e!idence directly from the public#
4A

Chapter 2' section 1#=' Human Rights &nquiry Report# Chapter 4' section 2#=' &bid# Chapter 6' section )#=' &bid# Chapter 4' section 4#= &bid# Chapter 4' section 2#=C Chapter 4' section 4#1 &bid# Chapter 4' section 4#) &bid# Chapter )' section 2#1@2#4 &bid# Chapter )' section 2#1 &bid# Chapter *' section 6#4 &bid# Chapter 6' section 11 &bid# &rish Tra!eller (o!ement' Call for e!idence responseC 5heffield Gaw Centre' Call for

4+

4,

6=

61

62

64

66

6)

6*

6A

E!idence responseC East (idlands Eroup e!idence session#

6+

Chapter *' section ,#4# Human Rights at Home> guidance for social housing pro!iders' Equality and Human Rights

6,

Commission' 2=11' http>QQwww#equalityhumanrights#comQuploadedKfilesQhumanrightsQhumanKrightsKatKhome#pdf

)=

The European Commission of Human Rights was formerly the filtering body responsible for

hearing all indi!idual complaints under the European Con!ention on Human Rights ;7ECHR:<# &n %o!ember 1,,+' following the adoption of Brotocol 11 to the Con!ention' the Court was restructured and the Commission:s functions were folded into those of the Court#
)1

The Committee of (inisters of the Council of Europe is made up of the foreign ministers of

all the Council of Europe member states' and is responsible under the Con!ention for the

enforcement of the Court:s /udgments> see article 6*;2< ECHR#

)2

5ee e#g# section 2;1< of the 1,A4 "ct> 7;1< "ll such rights' powers' liabilities' obligations and

restrictions from time to time created or arising by or under the Treaties' and all such remedies and procedures from time to time pro!ided for by or under the Treaties' as in accordance with the Treaties are without further enactment to be gi!en legal effect or used in the United ingdom shall be recognised and a!ailable in law' and be enforced' allowed and followed accordingly:#
)4

section 2;6< European Communities "ct 1,A2 N1,,1O 1 "ll ER A= ECD Case C@214Q+, The Barliamentary 5ecretary ;GC8< House of Commons Committee 5tage 1fficial Report 4

)6

))

Dune 1,,+ !ol# 414 col# 6=6

)*

Hansard House of Gord 8ebates' 1+ %o!ember 1,,A' col )11' amendment ,# Hansard' House of Gords G 8ebates' 1+ %o!ember 1,,A' col )12# 5ee "rticle 6* ECHR> 7The High Contracting Barties underta-e to abide by the final

)A

)+

/udgment of the Court in any case to which they are parties:#

),

Hansards House of Gords 8ebates' 1+ %o!ember 1,,A' col )16# &bid# &bid' col )1)# &bid# &bid# 1,,A Gabour Barty (anifesto' emphasis added# 7Rights Brought Home> The Human Rights Bill: ;Cm 4A+2' 1ctober 1,,A<' para 1#16'

*=

*1

*2

*4

*6

*)

emphasis added#
**

&bid' para 2#6# This led some to predict that section 2 of the HR" would enable courts in the

U to de!elop the Con!ention rights in 5chedule 1 of the "ct as free@standing rights> 7N&t wouldO be open to national courts to de!elop a /urisprudence under the Con!ention which may be more generous to applicants than that dispensed in 5trasbourg' while remaining broadly consistent with it: ;Beatson and 8uffy' Human Rights> The 1,,+ "ct and the European

Con!ention ;5weet L (a.well> 2===< at p 2=<# &t is worth noting' howe!er' that the 1,,A manifesto spea-s only of Barliament enhancing rights' rather than the courts themsel!es#
*A

[2000] 29 EHRR 245. N(2002] 34 EHRR 3 R ;"nderson< ! 5ecretary of 5tate for the Home 8epartment N2==2O U HG 6* at para 1+ per

*+

*,

Gord Bingham#
A=

N2==6O U HG 2* at para 2=# Emphasis added# The term 7mirror principle: originates in D Gewis' 7The European Ceiling on Human Rights:

A1

;2==A< Bublic Gaw' pA2=# 5ee also (asterman' 75ection 2;1< of the Human Rights "ct> binding domestic courts to 5trasbourg: N2==6O BG A2)#
A2

5ee also e#g# the speech of Gord 5lynn in R ;"lconbury 8e!elopments Gtd< ! 5ecretary of

5tate for the En!ironment' Transport and the Regions N2==1O U HG 24 at para 2*> 7&n the absence of some special circumstances it seems to me that the court should follow any clear and constant /urisprudence of the European Court of Human Rights# &f it does not do so there is at least a possibility that the case will go to that court which is li-ely in the ordinary case to follow its own constant /urisprudence:C see also e#g# Gord 5lynn:s statement in R ! 5ecretary of 5tate for the Home 8epartment e. parte "min N2==4O U HG )1 at para 66#
A4

5ee e#g# 5ecretary of 5tate for the Home 8epartment ! "? N2==,O U HG 4+' in particular

the statements of Gord Hoffmann at para A=' Gord Rodger at para ,+' Gord Carswell at para 1=+' and Gord Brown at 121#
A6

N2=1=O U 5C 6) per Gord %euberger at para 6+# 5ee also e#g# Gord Hoffmann in the case

of R ! Gyons N2==2O U HG 66 at para 6*#

A)

5imilarly' there ha!e been a handful of cases in which the U

courts ha!e gone further

than the ECtHR' usually in circumstances where our courts ha!e felt sufficiently certain of the li-ely result in 5trasbourg to be able to anticipate it> see Gimbuela ! 5ecretary of 5tate for the Home 8epartment N2==)O U HG )*C &n re B ;%orthern &reland< N2==+O U HG 4+C and E( ;Gebanon< ! 5ecretary of 5tate for the Home 8epartment N2==+O U HG *6#
A*

N2==2O U HG 41 N2==2O 46 EHRR 12)4#

AA

A+

5ee e#g# Gord Bingham' R ! 5pear at para 12> 7&t goes without saying that any /udgment of

the European Court commands great respect' and section 2;1< of the Human Rights "ct 1,,+ requires the House to ta-e any such /udgment into account' as it routinely does# There were' howe!er' a large number of points in issue in (orris' and it seems clear that on this particular aspect the European Court did not recei!e all the help which was needed to form a conclusion M# &n my opinion the rules go!erning the role of /unior officers as members of courts@martial are in practice such as effecti!ely to protect the accused against the ris- that they might be sub/ect to 7e.ternal army influence:' as & feel sure the European Court would ha!e appreciated had the position been more fully e.plained:#
A,

N2==6O 4, EHRR +' paras 11A@146# N2==+O U HG )A# 5ee e#g# Gord Hope at para 2=> 7& am not con!inced that the 5trasbourg court J which did

+=

+1

not hear oral argument in (cCann J has fully appreciated the !ery real problems that are li-ely to be caused if we were to Nre!erse ayO# NThe /udgment in (cCannO suffers from a fundamental defect which renders it almost useless in the domestic conte.t# &t lac-s any firm ob/ecti!e criterion by which a /udgment can be made as to which cases will achie!e this standard and which will not #M Until the 5trasbourg court has de!eloped principles on which we can rely on for general application the only safe course is to ta-e the decision in each case as it arises:C see also e#g# Gord 5cott at para +2 and Gord 3al-er at para 11)#
+2

N2=1=O U 5C 6) per Gord %euberger at para 6*# N2==,O U 5C 16# 5ee e#g# Gord Bhillips at para 11> 7The requirement to 7ta-e into account: the 5trasbourg

+4

+6

/urisprudence will normally result in this Court applying principles that are clearly established by the 5trasbourg Court# There will' howe!er' be rare occasions where this court has concerns as to whether a decision of the 5trasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process# &n such circumstances it is open to this court to decline to follow the 5trasbourg decision' gi!ing reasons for adopting this course# This is li-ely to gi!e the 5trasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue' so that there ta-es place what may pro!e to be a !aluable dialogue between this court and the 5trasbourg Court# This is such a case:#

+)

N2=11O U 5C 6)# "bdula0i0' Cabales and Bal-andali ! U N1,+)O A EHRR 6A1# 5ee Gord 3ilson at para 64> 7Ha!ing duly ta-en account of the decision in "bdula0i0

+*

+A

pursuant to section 2 of the Human Rights "ct 1,,+' we should in my !iew decline to follow it# &t is an old decision# There was dissent from it e!en at the time# (ore recent decisions of the ECtHR' in particular Boultif and Tuquabo@Te-le' are inconsistent with it# There is no 7clear and consistent /urisprudence: of the ECtHR which our courts ought to follow:C see also e#g# Baroness Hale at para A2#
++

5ee e#g# R ! Gyons N2==2O U HG 66A per Gord Hoffmann at para 6*> 7&t is ob!iously highly

desirable that there should be no di!ergence between domestic and ECtHR /urisprudence but section 2;1< says only that the courts must 7ta-e into account: the decisions of the ECtHR# &f' for e.ample' an English court considers that the ECtHR has misunderstood or been misinformed about some aspect of English law' it may wish to gi!e a /udgment which in!ites the ECtHR to reconsider the question> compare P ! United ingdom ;2==1< 1= BHRC 4+6# There is room for dialogue on such matters: Nemphasis addedO#5ee also 5edley GD' 7Bersonal reflections on the reception and application of the Court:s case@law:' Dudicial 8ialogue ;Council of Europe' 2==*<C Gord %euberger (R' 7The current legal challenges facing social landlords> " /udge:s perspecti!e:' 5ocial Housing Gaw "ssociation "nnual Conference' 2A %o!ember 2==,<C and Gord Dudge GCD' Dudicial 5tudies Board lecture' &nner Temple' 1A (arch 2=1=' pA#
+,

N2==*O 62 EHRR 4=' para 12=' emphasis added# app no 2*)*)Q=)' 2A (ay 2==+ N2==)O U HG 41 app no 61*1)Q=A' * Duly 2=1= paras *= and *6 73e must replace the Human Rights "ct with a British Bill of Rights:' Conser!ati!e Barty

,=

,1

,2

,4

blog' 22 %o!ember 2==,# 5imilar inaccuracies appear in the 8enning Gecture gi!en by 5ir (alcolm Rif-ind HC (B ;7Eo!erned by Gaw or by Gawyers9 &nternational Treaties and Human Rights:' 2+ 1ctober 2==,<' see esp pp1*@1A where he refers to the U courts: 7lac- of fle.ibility: under the HR"#

,6

7Can the Bill of Rights do better than the Human Rights "ct9:' (iddle Temple Hall' 4= N2==6O U HG 4= 5ee also e#g# Gord Browne@3il-inson in R ! 5ecretary of 5tate for the Home 8epartment e.

%o!ember 2==,' p,#

,)

,*

parte BiersonN1,,+O "C )4, at )A)> 7basic rights are not to be o!erridden by the general words of a statute since the presumption is against the impairment of such basic rights:#
,A

R ! 5ecretary of 5tate for the Home 8epartment' e. parte 5imms N1,,,O U HG 44'

emphasis added# 5ee also e#g# Bhilip 5ales' 7" Comparison of the Brinciple of Gegality and 5ection 4 of the Human Rights "ct 1,,+: N2==,O 12) Gaw Huarterly Re!iew ),+#
,+

5ee e#g# the reading@down of inconsistent legislation by the Canadian 5upreme Court in

cases such as R ! Butler N1,,2O 1 5CR 6)2 or Ruby !# Canada ;5olicitor Eeneral< N2==2O 6 5CR 4#
,,

Hansard' HG 8ebates' ) ?ebruary 1,,+' col +6=# Hansard' HC 8ebates 1* ?ebruary 1,,+' col AA+# &bid' para 6= per Gord 5teyn# &bid' para 2*# Emphasis added# &bid' para 64# &bid' para 4,#

1==

1=1

1=2

1=4

1=6

1=)

R ! 5ecretary of 5tate for the Home 8epartment e. parte "nderson N2==2O U HG 6*# &bid' para 4=# N2=11O U 5C 21# ?irst Gord "le.ander of 3eedon lecture' &nner Temple Hall' 22 "pril 2=1=' p66# Emphasis

1=*

1=A

1=+

added#
1=,

8ominic Raab (B' 5trasbourg in the 8oc- ;Ci!itas' "pril 2=11<# &bid' para 64# N2=11O E3HC 1)A+ ;"dmin<#

11=

111

112

Hoo-way was an unpopular decision' with one chief constable quoted as saying that he

and his colleagues were 7running around li-e headless chic-ens: and on the 7!erge of a disaster:# The outrage had nothing to do with the Human Rights "ct and whilst criticisms were temporarily directed at the court' the real ob/ect of the frustration was the legislation which Barliament subsequently corrected#
114

N2==,O U HG 4 Hansard House of Commons Committee 5tage 4 Dune 1,,+ !ol 414 col 6)A Hansard' House of Gords debates' 4 %o!ember 1,,A' cols 122+@122,# Emphasis added# R ! 5ecretary of 5tate for the Home 8epartment' e. parte 5imms N1,,,O U HG 44'

116

11)

11*

emphasis added# 5ee also e#g# the speech of Gord eith in 8erbyshire County Council ! Times %ewspaper Gtd and others N1,,4O "C )46 at ))1> 7(y Gords' & ha!e reached my conclusion upon the common law of England without finding any need to rely upon the European Con!ention# (y noble and learned friend' Gord Eoff of Chie!eley' in "ttorney@ Eeneral !# Euardian %ewspapers Gtd# ;%o# 2< N1,,=O 1 "#C# 1=,' at p# 2+4@2+6' e.pressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the sub/ect and "rticle 1= of the Con!ention# & agree' and can only add that & find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the treaty in this particular field:#
11A

5ee ?ootnote )+ abo!e# E!idence to the Doint Committee on Human Rights' 1) (arch 2=11' H)A# 5econd Gord "le.ander of 3eedon Gecture' * "pril 2=11' paras )+@),# Emphasis added# (inistry of Dustice' Responding to human rights /udgments> Report to the Doint Committee

11+

11,

12=

on Human Rights on the Eo!ernment:s response to human rights /udgments 2=1=@2=11 ;5eptember 2=11<' p )> 75ince the Human Rights "ct came into force on 2 1ctober 2===' 2A declarations of incompatibility ha!e been made' of which 1, ha!e become final ;in whole or in part< and none of which are sub/ect to further appeal:#
121

&bid' "nne. "' p2,# " and others ! 5ecretary of 5tate for the Home 8epartment N2==6O U HG )*# N2==4O U HG 21#

122

124

126

N2==+O U HG )4# N2==*O E3HC 2++* ;"dmin<' subsequently confirmed by the U 5upreme Court# Gord &r!ine' formerly Gord Chancellor' Hansard House of Gords 8ebates ;Committee 5tage<

12)

12*

col 6A)' 1+ %o!ember 1,,A

12A

5ee "ston Cantlow ;per Gord %icholls at paragraph *' per Gord Rodger at paragraph 1*='

per Gord Hope at paragraph )2' per Gord Hobhouse at paragraph +A and per Gord 5cott at paragraph 12,<#
12+

Hansard House of Gords 8ebates Committee 5tage' 26 %o!ember 1,,A' col +11 The former Home 5ecretary Dac- 5traw (B Hansard House of Commons 8ebates

12,

Committee 5tage col 416'1A Dune 1,,+

14=

Hansard House of Commons 8ebates' 1A Dune 1,,+' cols 6=,@61= # Hansard House of Gords Committee 5tage< 26 %o!ember 1,,A' col +11# 5ee also> House

141

of Commons 8ebates' 1* ?ebruary 1,,+' col AA4 ;Home 5ecretary<C House of Commons 8ebates' 1A Dune 1,,+' cols 6=,@61=' 644 ;Home 5ecretary<'
142

Barochial Church Council of the Barish of "ston Cantlow and 3ilmcote with Billesley !#

3allban- and "nother N2==4O U HG 4A' paragraph A

144

Human Rights &nquiry' Chapter 4' page 4A@4+' Equality and Human Rights Commission'

2==,' http>QQwww#equalityhumanrights#comQuploadedKfilesQhriKreport#pdf 5urrey and Borders Bartnership Trust' 5outhwar- Health and 5ocial Care' Heart of Birmingham Teaching BCT' (ersey Care %H5 Trust' Tees' Es- and 3ear Ralleys %H5 Trust# 5ee 7Human Rights in Healthcare J " ?ramewor- for Gocal "ction:' 8epartment of Health Q British &nstitute of Human Rights' (arch 2==A#
146
14)

7Human Rights in Healthcare E!aluation:' 8epartment of Health' 41 Duly 2==+' p#1# 5ee for e.ample Gord (ance:s commentary in SG ;paragraph ,2<#

14*

14A

"ston Cantlow' paragraph 12 SG per Gord (ance at paragraph ,1# R;"< ! Bartnerships in Care Gtd N2==2O E3HC )2, ;"dmin< %H5 &nformation Centre ;2=11< Community Care 5tatistics 2==,@2=1=

14+

14,

16=

161

R ;3ea!er< ! Gondon L Huadrant Housing Trust N2==,O HGR 6=' C" 5ee Eastlands Home Bartnership Gtd ! 3hite N2=1=O E3HC *,) ;HB< where the registered

162

social landlord accepted for the purposes of the hearing that it was within the scope of the HR"
164

Doint Committee on Human Rights> The meaning of public authority under the Human

Rights "ct 1,,+' %inth Report of session 2==*@=A

166

Baragraph 1)= Doint Committee on Human Rights> The meaning of public authority under the Human

16)

Rights "ctC %inth report of session2==* J 2==A' paragraph +4

16*

The go!ernment argued at the time that "rticle 14 was not needed in 5chedule 1 as the

whole scheme of the "ct was designed to pro!ide an effecti!e remedy#

16A

N2==)O U HG 16 "wards are commonly in the range of I)== @ I1)==' whereas claims for discrimination

16+

might attract awards for in/ury to feelings of around I4=== @ I1)===' or more#
16,

"ccessibility is in a particular problem in relation to claimants who would need legal aidQ

public funding to bring a claim# Because awards are so low they do not usually meet the costs@benefit test for legal aid eligibility and claimants can only bring a claim if their claim also meets the 7public interest: test# "ny damages awarded in those circumstances could be paid o!er to the Gegal 5er!ices Commission as a contribution to the costs of bringing the case' so in fact a claimant could recei!e nothing#
1)=

5ection 1=;2<#

1)1

5chedule 2' para 2;b<# 5ee R;H< ! (ental Health Re!iew Tribunal for the %orth and East Gondon Region N2==1O

1)2

E3C" Ci! 61) and the (ental Health "ct 1,+4 ;Remedial< 1rder 2==1 ;5& 2==1Q4A12<#
1)4

5ee Eillan and Huinton ! United ingdom ;2==,< )= EHRR 6) and the Terrorism "ct 2===

;Remedial< 1rder 2=11 ;5& 2=11Q*41<#

1)6

5ee R ;Baiai and others< ! 5ecretary of 5tate for the Home 8epartment' nError> Reference

source not found abo!e' and the "sylum and &mmigration ;Treatment of Claimants' etc< "ct 2==6 ;Remedial< 1rder 2=11

1))

5ee R;? and another< ! 5ecretary of 5tate for the Home 8epartmentN2=1=O U 5C 1A and

the 5e.ual 1ffences "ct 2==4 ;Remedial< 1rder 2=11#

1)*

Cream Holdings Ltd v Banerjee and the Liverpool Post Echo Ltd. [2004] U HL 44 Hansard House of Commons Committee 5tage 2= (ay 1,,+ col 1=2= 5ee also &n the

1)A

case of Eallagher ;Raluation 1fficer< ! Church of Desus Christ Gatter 8ay 5aints there Church relied on its religious beliefs as part of its argument that it should be e.empt from liability to non domestic rates The House of Gords found that article , was engaged but that ta.ation would not interfere with the Church$s right to manifest its faith#
1)+

s#1, HR" 1,,+ 5#41 ;1< and 41 ;2< 5cotland "ct 1,,+ 5ee for e.ample "V" Eeneral &nsurance ! The Gord "d!ocate L others N2=11O U 5C 6* 5tatement of compatibility by the Rt Hon Baroness Royall of Blaisdon under s#1,;1<;a<

1),

1*=

1*1

HR"
1*2

www#homeoffice#go!#u-QpublicationsQ###Qhuman@rights@memoran%um Human Rights Doint Committee scrutiny of the Brotection of ?reedoms Bill' A 1ctober 2=11 http>QQwww#homeoffice#go!#u-QpublicationsQabout@usQlegislationQtpim@bill@docsQechr@

1*4

1*6

memorandum
1*)

3or- of the Doint Committee on Human Rights in 2==+@=,

http>QQwww#publications#parliament#u-QpaQ/t2==,1=Q/tselectQ/trightsQ2=Q2==*#htm
1**

"n e.ample gi!en was the Borders' Citi0enship and &mmigration Bill' HG *2' HC 4A)' ibid 3or- of the Committee in 2==+@=, @ Human Rights Doint Committee ;para 4)<

1*A

http>QQwww#publications#parliament#u-QpaQ/t2==,1=Q/tselectQ/trightsQ2=Q2==*#htm
1*+

HR" Blus> Human Rights for 21st century Britain' (arch 2=1='

http>QQwww#equalityhumanrights#comQlegal@and@policyQbill@of@rightsQour@response@to@the@green@ paperQ
1*,

8e!eloping a Bill of Rights for the U ' "lice 8onald with the assistance of Bhilip Geach and

"ndrew Buddephatt' Elobal Bartners and "ssociates' Gondon (etropolitan Uni!ersity' (arch 2=1='

http>QQwww#equalityhumanrights#comQuploadedKfilesQresearchQde!elopingKaKbillKofKrightsKfor KtheKu-KreportK)1#pdf
1A=

5ection 12* 5cotland "ct 1,,+ ;5"<' section ,+ %orthern &reland "ct 1,,+ ;%&"<' section

1)+ Eo!ernment of 3ales "ct 2==* ;E13"<#

1A1

5ection 2, and )6 5"' section * and 26 %&"' and section +1;*< and ,6 E13" 5ection 2, and 5chedule 6 5"' sections *;2f< and A;1< %&"# The E13" specifies which

1A2

powers or matters are de!ol!ed and the HR" is not one of them ;5chedule )<#
1A4

5ections +4 %&"' section 1=1 5" and section 1)6 and 5chedule ) Bart 2 E13"# 8e!olution and Human Rights' Dustice ?ebruary 2=1=' page 4# (ichael Clancy L Christine 1:%eill' e!idence to the DCHR' 1= (arch 2==+ 5ee section 2,;2< and )A;2< of the 5cotland "ct 1,,+# 5omer!ille 5cottish (inisters N2==AO U HG 66# This draws on legal opinion commissioned in 2=1= by the EHRC in 5cotland> Colm

1A6

1A)

1A*

1AA

1A+

1:Cinneide' 7The Botential Repeal of the Human Rights "ct 1,,+ and its Consequences for the 8e!ol!ed Entities:' 2=1=
1A,

5ee Tom Bingham' The Rule of Gaw' Gondon> "llen Gane' 2=1=' pp#1*=@1A= (emorandum of Understanding between the U Eo!ernment' the 5cottish (inisters' the

1+=

Cabinet of the %ational "ssembly for 3ales and the %orthern &reland E.ecuti!e Committee' 2==1' www#dca#go!#u-QconstitutionQde!olutionQpubsQodpmKde!K*==*2,#pdf
181

3hat is meant by Britishness9 &s there a concept of Britishness9 Ses' /ust as there is a

concept of being 5candina!ian ### ### "re we British9 %o' we are not# 3e consider oursel!es 5cottish### ### &ndeed' we wish to preser!e our own integrity' certainly in legal matters' which' as & say' were specifically protected in the "ct of Union ### ### ?rom a 5cottish perspecti!e' ultimately in an independent 5cotland a Bill of Rights seems to us to be sensible but' gi!en that our founding principles in the 5cotland "ct incorporate ECHR' we ha!e some scepticism about what could be added by a British Bill of Rights to what we already ha!e' incorporated through ECHR' apart from our pronouncement of the principles that e.ist there#
1+2

Dohn 5cott' 7"le. 5almond$s attac- on the U supreme court smells political:' The Euardian'

2 Dune 2=11' www#guardian#co#u-QlawQ2=11Q/unQ=2Qale.@salmond@attac-@supreme@court

1+4

Eo!ernment of 3ales "ct 2==* section +1 5ee in particular recent consideration by the 5upreme Court ;Gords Hope and Reed< in

1+6

"V" Eeneral &nsurance Gimited and others ;"ppellants< ! The Gord "d!ocate and others ;Respondents< ;5cotland<
1+)

Gord Hope supra paragraph )2

This is from 2=16' from 2=12 until 2=16 the duty co!ers a pro!ision proposed to be included in an enactment' formulation of a new policy' a re!iew of or change to an e.isting policy
186

1+A

5ection 1 ;1< Rights of Children and Soung Bersons ;3ales< (easure 2=11 3elsh Ganguage (easure ;3ales< 2=11' section 1;1< and ;2<;e<' also Bart * section 111 5ection 24 3elsh Ganguage "ct ;1,,4< ?or e.ample see article , of the ?ramewor- Con!ention on the Brotection of %ational

1++

1+,

1,=

(inorities' http>QQcon!entions#coe#intQTreatyQCommunQHueRoule0Rous#asp9 %TU1)ALCGUE%E

1,1

5ection *;2<;c< and 26;1< of the %orthern &reland "ct 1,,+# 5ection A;1<;b< of the %orthern &reland "ct 1,,+# Baragraph 2' Rights' 5afeguards and Equality of 1pportunity> Human Rights in the (ulti@

1,2

1,4

Barty "greement' Eood ?riday "greement#

1,6

Bage A)' 8e!eloping a Bill of Rights for the U ' "lice 8onald with the assistance of Bhilip

Geach and "ndrew Buddephatt' Elobal Bartners and "ssociates' Gondon (etropolitan Uni!ersity' (arch 2=1=' http>QQwww#equalityhumanrights#comQuploadedKfilesQresearchQde!elopingKaKbillKofKrightsKfor KtheKu-KreportK)1#pdf
1,)

Baragraph 6' Rights' 5afeguards and Equality of 1pportunity> Human Rights in the (ulti@

Barty "greement' Eood ?riday "greement#

1,*

http>QQwww#nihrc#orgQdmsQdataQ%&HRCQattachmentsQddQfilesQ)1Q"KBillKofKRightsKforK%orthern K&relandKT2+8ecemberK2==+T2,#pdf
1,A

http>QQwww#nio#go!#u-QconsultationKpaperK@

KaKbillKofKrightsKforKnorthernKirelandKKne.tKsteps#pdf

1,+

8e!elopment a Bill of Rights for the U ' "lice 8onald with the assistance of Bhilip Geach

and "ndrew Buddephatt' Elobal Bartners and "ssociates' Gondon (etropolitan Uni!ersity' (arch 2=1=' http>QQwww#equalityhumanrights#comQuploadedKfilesQresearchQde!elopingKaKbillKofKrightsKfor KtheKu-KreportK)1#pdf