Lord Chancellor's Department (1997) Rights brought home - excerpts
Chapter 1 - The Case for Change
The European Convention on Human Rights
1.1 The European Convention for the Protection of Human Rights and Fundamental Freedoms is a treaty of the Council of Europe. This institution was established at the end of the Second World War, as part of the Allies' programme to reconstruct durable civilisation on the mainland of Europe. The Council was established before the European Union and, although many nations are members of both, the two bodies are quite separate.
1.2 The United Kingdom played a major part in drafting the Convention, and there was a broad agreement between the major political parties about the need for it (one of its draftsmen later became, as Lord Kilmuir, Lord Chancellor in the Conservative Administration from 1954 to 1962). The United Kingdom was among the first group of countries to sign the Convention. It was the very first country to ratify it, in March 1951. In 1966 the United Kingdom accepted that an individual person, and not merely another State, could bring a case against the United Kingdom in Strasbourg (the home of the European Commission of Human Rights and Court of Human Rights, which were established by the Convention). Successive administrations in the United Kingdom have maintained these arrangements....
1.4 The constitutional arrangements in most continental European countries have meant that their acceptance of the Convention went hand in hand with its incorporation into their domestic law. In this country it was long believed that the rights and freedoms guaranteed by the Convention could be delivered under our common law. In the last two decades, however, there has been a growing awareness that it is not sufficient to rely on the common law and that incorporation is necessary....
The Convention rights
1.6 The Convention contains Articles which guarantee a number of basic human rights. They deal with the right to life (Article 2); torture or inhuman or degrading treatment or punishment (Article 3); slavery and forced labour (Article 4); liberty and security of person (Article 5); fair trial (Article 6); retrospective criminal laws (Article 7); respect for private and family life, home and correspondence (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of peaceful assembly and freedom of association, including the right to join a trade union (Article 11); the right to marry and to found a family (Article 12); and discrimination in the enjoyment of these rights and freedoms (Article 14)....
11.8 The rights in the Convention are set out in general terms, and they are subject in the Convention to a number of qualifications which are also of a general character. Some of these qualifications are set out in the substantive Articles themselves (see, for example, Article 10, concerning freedom of expression); others are set out in Articles 16 to 18 of the Convention. Sometimes too the rights guaranteed under the Convention need to be balanced against each other (for example, those guaranteed by Article 8 and Article 10).
Applications under the Convention1.9 Anyone within the United Kingdom jurisdiction who is aggrieved by an action of the executive or by the effect of the existing law and who believes it is contrary to the European Convention can submit a petition to the European Commission of Human Rights. The Commission will first consider whether the petition is admissible. One of the conditions of admissibility is that the applicant must have gone through all the steps available to him or her at home for challenging the decision which he or she is complaining about. If the Commission decides that a complaint is admissible, and if a friendly settlement cannot be secured, it will send a confidential report to the Committee of Ministers of the Council of Europe, stating its opinion on whether there has been a violation. The matter may end there, with a decision by the Committee (which in practice always adopts the opinion of the Commission), or the case may be referred on to the European Court of Human Rights for consideration. If the Court finds that there has been a violation it may itself "afford just satisfaction" to the injured party by an award of damages or an award of costs and expenses. The court may also find that a formal finding of a violation is sufficient. There is no appeal from the Court.
Effect of a Court judgment
1.10 A finding by the European Court of Human Rights of a violation of a Convention right does not have the effect of automatically changing United Kingdom law and practice: that is a matter for the United Kingdom Government and Parliament. But the United Kingdom, like all other States who are parties to the Convention, has agreed to abide by the decisions of the Court or (where the case has not been referred to the Court) the Committee of Ministers. It follows that, in cases where a violation has been found, the State concerned must ensure that any deficiency in its internal laws is rectified so as to bring them into line with the Convention. The State is responsible for deciding what changes are needed, but it must satisfy the Committee of Ministers that the steps taken are sufficient. Successive United Kingdom administrations have accepted these obligations in full.
Relationship to current law in the United Kingdom
1.11 When the United Kingdom ratified the Convention the view was taken that the rights and freedoms which the Convention guarantees were already, in substance, fully protected in British law. It was not considered necessary to write the Convention itself into British law, or to introduce any new laws in the United Kingdom in order to be sure of being able to comply with the Convention.
1.12 From the point of view of the international obligation which the United Kingdom was undertaking when it signed and ratified the Convention, this was understandable. Moreover, the European Court of Human Rights explicitly confirmed that it was not a necessary part of proper observance of the Convention that it should be incorporated into the laws of the States concerned.
1.13 However, since its drafting nearly 50 years ago, almost all the States which are party to the European Convention on Human Rights have gradually incorporated it into their domestic law in one way or another. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those guaranteed by the Convention and Norway is also in the process of incorporating the Convention. Several other countries with which we have close links and which share the common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their own legal systems.
The case for incorporation
1.14 The effect of non-incorporation on the British people is a very practical one. The rights, originally developed with major help from the United Kingdom Government, are no longer actually seen as British rights. And enforcing them takes too long and costs too much. It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. 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 will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.
1.15 Moreover, in the Government's view, the approach which the United Kingdom has so far adopted towards the Convention does not sufficiently reflect its importance and has not stood the test of time.
1.16 The most obvious proof of this lies in the number of cases in which the European Commission and Court have found that there have been violations of the Convention rights in the United Kingdom. The causes vary. The Government recognises that interpretations of the rights guaranteed under the Convention have developed over the years, reflecting changes in society and attitudes. Sometimes United Kingdom laws have proved to be inherently at odds with the Convention rights. On other occasions, although the law has been satisfactory, something has been done which our courts have held to be lawful by United Kingdom standards but which breaches the Convention. In other cases again, there has simply been no framework within which the compatibility with the Convention rights of an executive act or decision can be tested in the British courts: these courts can of course review the exercise of executive discretion, but they can do so only on the basis of what is lawful or unlawful according to the law in the United Kingdom as it stands. It is plainly unsatisfactory that someone should be the victim of a breach of the Convention standards by the State yet cannot bring any case at all in the British courts, simply because British law does not recognise the right in the same terms as one contained in the Convention.
1.17 For individuals, and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays. This might be convenient for a government which was half-hearted about the Convention and the right of individuals to apply under it, since it postpones the moment at which changes in domestic law or practice must be made. But it is not in keeping with the importance which this Government attaches to the observance of basic human rights.
Bringing Rights Home
1.18 We therefore believe that the time has come to enable people to enforce their Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling courts in the United Kingdom to rule on the application of the Convention will also help to influence the development of case law on the Convention by the European Court of Human Rights on the basis of familiarity with our laws and customs and of sensitivity to practices and procedures in the United Kingdom. Our courts' decisions will provide the European Court with a useful source of information and reasoning for its own decisions. United Kingdom judges have a very high reputation internationally, but the fact that they do not deal in the same concepts as the European Court of Human Rights limits the extent to which their judgments can be drawn upon and followed. Enabling the Convention rights to be judged by British courts will also lead to closer scrutiny of the human rights implications of new legislation and new policies. If legislation is enacted which is incompatible with the Convention, a ruling by the domestic courts to that effect will be much more direct and immediate than a ruling from the European Court of Human Rights. The Government of the day, and Parliament, will want to minimise the risk of that happening.
1.19 Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home.
Chapter 2 - The Government's Proposals for Enforcing the Convention Rights
A new requirement on public authorities
2.2 Although the United Kingdom has an international obligation to comply with the Convention, there at present is no requirement in our domestic law on central and local government, or others exercising similar executive powers, to exercise those powers in a way which is compatible with the Convention. This Bill will change that by making it unlawful for public authorities to act in a way which is incompatible with the Convention rights. The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities. The actions of Parliament, however, are excluded.
2.3 A person who is aggrieved by an act or omission on the part of a public authority which is incompatible with the Convention rights will be able to challenge the act or omission in the courts. The effects will be wide-ranging. They will extend both to legal actions which a public authority pursues against individuals (for example, where a criminal prosecution is brought or where an administrative decision is being enforced through legal proceedings) and to cases which individuals pursue against a public authority (for example, for judicial review of an executive decision). Convention points will normally be taken in the context of proceedings instituted against individuals or already open to them, but, if none is available, it will be possible for people to bring cases on Convention grounds alone. Individuals or organisations seeking judicial review of decisions by public authorities on Convention grounds will need to show that they have been directly affected, as they must if they take a case to Strasbourg.
2.4 It is our intention that people or organisations should be able to argue that their Convention rights have been infringed by a public authority in our courts at any level. This will enable the Convention rights to be applied from the outset against the facts and background of a particular case, and the people concerned to obtain their remedy at the earliest possible moment.....
2.5 The Convention is often described as a "living instrument" because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention. In particular, our courts will be required to balance the protection of individuals' fundamental rights against the demands of the general interest of the community, particularly in relation to Articles 8-11 where a State may restrict the protected right to the extent that this is "necessary in a democratic society".
Remedies for a failure to comply with the Convention
2.6 A public authority which is found to have acted unlawfully by failing to comply with the Convention will not be exposed to criminal penalties. But the court or tribunal will be able to grant the injured person any remedy which is within its normal powers to grant and which it considers appropriate and just in the circumstances. What remedy is appropriate will of course depend both on the facts of the case and on a proper balance between the rights of the individual and the public interest. In some cases, the right course may be for the decision of the public authority in the particular case to be quashed. In other cases, the only appropriate remedy may be an award of damages....
Interpretation of legislation
2.7 The Bill provides for legislation - both Acts of Parliament and secondary legislation - to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.
2.8 This "rule of construction" is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case law, taking into account the Convention rights.
A declaration of incompatibility with the Convention rights
2.9 If the courts decide in any case that it is impossible to interpret an Act of Parliament in a way which is compatible with the Convention, the Bill enables a formal declaration to be made that its provisions are incompatible with the Convention. A declaration of incompatibility will be an important statement to make, and the power to make it will be reserved to the higher courts. They will be able to make a declaration in any proceedings before them, whether the case originated with them (as, in the High Court, on judicial review of an executive act) or in considering an appeal from a lower court or tribunal. The Government will have the right to intervene in any proceedings where such a declaration is a possible outcome. A decision by the High Court or Court of Appeal, determining whether or not such a declaration should be made, will itself be appealable.
Effect of court decisions on legislation
2.10 A declaration that legislation is incompatible with the Convention rights will not of itself have the effect of changing the law, which will continue to apply. But it will almost certainly prompt the Government and Parliament to change the law.
2.11 The Government has considered very carefully whether it would be right for the Bill to go further, and give to courts in the United Kingdom the power to set aside an Act of Parliament which they believe is incompatible with the Convention rights. In considering this question, we have looked at a number of models. The Canadian Charter of Rights and Freedoms 1982 enables the courts to strike down any legislation which is inconsistent with the Charter, unless the legislation contains an explicit statement that it is to apply "notwithstanding" the provisions of the Charter. But legislation which has been struck down may be re-enacted with a "notwithstanding" clause. In New Zealand, on the other hand, although there was an earlier proposal for legislation on lines similar to the Canadian Charter, the human rights legislation which was eventually enacted after wide consultation took a different form. The New Zealand Bill of Rights Act 1990 is an "interpretative" statute which requires past and future legislation to be interpreted consistently with the rights contained in the Act as far as possible but provides that legislation stands if that is impossible. In Hong Kong, a middle course was adopted. The Hong Kong Bill of Rights Ordinance 1991 distinguishes between legislation enacted before and after the Ordinance took effect: previous legislation is subordinated to the provisions of the Ordinance, but subsequent legislation takes precedence over it.
2.12 The Government has also considered the European Communities Act 1972 which provides for European law, in cases where that law has "direct effect", to take precedence over domestic law. There is, however, an essential difference between European Community law and the European Convention on Human Rights, because it is a requirement of membership of the European Union that member States give priority to directly effective EC law in their own legal systems. There is no such requirement in the Convention.
2.13 The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the Convention. This conclusion arises from the importance which the Government attaches to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of Parliament in the House of Commons possess such a mandate because they are elected, accountable and representative. To make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it. Certainly, this Government has no mandate for any such change.
2.14 It has been suggested that the courts should be able to uphold the rights in the Human Rights Bill in preference to any provisions of earlier legislation which are incompatible with those rights. This is on the basis that a later Act of Parliament takes precedence over an earlier Act if there is a conflict. But the Human Rights Bill is intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it.
2.15 The courts will, however, be able to strike down or set aside secondary legislation which is incompatible with the Convention, unless the terms of the parent statute make this impossible. The courts can already strike down or set aside secondary legislation when they consider it to be outside the powers conferred by the statute under which it is made, and it is right that they should be able to do so when it is incompatible with the Convention rights and could have been framed differently.
2.16 On one view, human rights legislation is so important that it should be given added protection from subsequent amendment or repeal. The Constitution of the United States of America, for example, guarantees rights which can be amended or repealed only by securing qualified majorities in both the House of Representatives and the Senate, and among the States themselves. But an arrangement of this kind could not be reconciled with our own constitutional traditions, which allow any Act of Parliament to be amended or repealed by a subsequent Act of Parliament. We do not believe that it is necessary or would be desirable to attempt to devise such a special arrangement for this Bill.