1. At the first meeting of the NGO Forum on 27 June 2002, the NGOs suggested that the government's "litigation strategy" is inconsistent with the government's stated aim of building a "human rights culture". The criticism stimulated a lively debate within and between departments, and the views of lawyers in all central government departments and the devolved administrations have been canvassed. This paper reflects the comments received, together with our own thoughts.
2. The way in which government lawyers conduct litigation is bound to be dictated to a large extent by the policy in issue in a particular case. In this, human rights cases are no different from any other government litigation. However, as the comments below tend to show, lawyers in central government are expected to be sensitive to human rights issues and to have (and continue to receive) training in human rights law.
3. To some extent, human rights training for government lawyers is traditional in form - litigation updates and so on. But our experience is that all human rights training, whatever the forum, inevitably reinforces the values contained in the Convention. Government lawyers, because of their exposure to human rights law, are often in a position to pass to their policy colleagues suggestions for proportionality and good practice in both policy formulation and decision-making. In this respect, the government lawyer's job is to help departments avoid litigation, not just to handle it.
4. When litigation does occur, the consensus from the government lawyers we spoke to is that advocates appearing on behalf of the government often assist the court with human rights issues, particularly where the other side has less expertise in the area. We hope there is no evidence that government lawyers take advantage of this inequality in order to run bad, or unduly negative, arguments.
5. Another general theme is the dual need to reconcile, in litigation, both the litigating department's narrow interest and the government's wider concerns. This theme occurs throughout government litigation, but it has particular implications in the human rights field. On several issues, the government has a collective view of how the Human Rights Act should be interpreted or operated. This may be inconsistent with a department's narrow interest in a particular case. Deciding what line to argue in those circumstances will be a matter of balancing the two interests. For example:
6. We also have a series of human rights "lines to take", prepared by Treasury counsel on our instructions. These are litigation tools, designed to ensure that a department does not, in the course of litigation, concede a point in a way that would prejudice our more general understanding of how that point should be treated. The existence of these lines may suggest a defensive attitude. But note:
7. We have also considered the observation that the government could do more to explain, in litigation, how it sees human rights law operating in a particular field. Our initial thoughts are that the courts are generally reluctant to hear arguments that are not necessary for the disposal of a case. For example, in the Society for the Protection of the Unborn Child case, the case was argued and disposed of on a traditional point of statutory interpretation, not human rights. But we are willing to consider further this and other concerns, in the light of discussion on 24 October.
(i) The criticisms do not to take sufficient account of the preparation which Departments undertook before the Human Rights Act came into force. Pre-emptive action has been taken to reduce the chance of successful legal challenges against central government etc.
Examples:
Re-issue of the Attorney-General's guidelines on disclosure
Enactment of the Regulation of Investigatory Powers Act
CPS national training programme
Increased legal support for IND
Enactment of changes to summary discipline procedures in the armed forces
(ii) Concessions are made where this is considered to be justified by the merits of the case
Examples:
Ezekiel Reid (exclusion from a Pupil Referral Unit - no right of appeal
- case settled and legislative change made)
R (H) v MHRT and Secretary (retrospectivity point available but not litigated)
R (SG) v Liverpool City Council and Secretary of State for Health (same
sex partners and nearest relative provisions of MHA - case settled
on basis of expanded interpretation of relevant legal provisions)
R (Reiner) v Legal Service Commission (civil legal aid means test and large
families - case precipitated proposals for reform)
(iii) Changes have been made as a result of human rights litigation
Examples:
Revision or review of prisoners' right of access to photocopying facilities
to increase access to justice, availability of artificial insemination facilities
for partners of long term prisoners, rights of same-sex prisoners to visit
each other on "family visits".
(iv) There is little evidence that the government or the Crown is being overzealous in defending human rights points
The outcome of most cases suggests that the manner in which litigation is approached and conducted is appropriate, e.g. football banning orders, anti-social behaviour orders, the retention of DNA samples.
In Scotland, over 1500 Convention-based "devolution issue" notices have been issued; but there have been only 10 appeals to date to the Judicial Committee of the Privy Council, and only one at the behest of the Crown.
(v) Issues are defended in order to clarify the legal position and sometimes there can be two respectable views on the same issue
It is not in the public interest to leave novel human rights issues unresolved; it is important that Convention issues in a particular area (e.g. retrospectivity) are clarified by the courts so that domestic jurisprudence is rapidly developed and can then be applied consistently across government.
In the end, legal proceedings are an adversarial process and it is only right that each side should deploy the arguments it wishes; it is then for the court to decide.
(vi) Often claimants put forward obviously bad human rights arguments which must be resisted
Example: The Ezekiel Reid case could not be immediately settled because the applicant's representatives put forward inappropriate HRA arguments which could not be left unchallenged.
(vii) A flourishing human rights jurisprudence is the hallmark of a well-rooted human rights culture
In enacting the Human Rights Act, the government was not guaranteeing that it would never take legal points under the Act which might prove unsuccessful, but rather was providing the citizen with an effective safeguard, in the form of a tool with which to test the validity of the government's own actions.
In practice, the discipline of Court decisions informs the government's practice as much as anything else.
(viii) We (lawyers) act on instructions from our clients: sometimes the government wishes to retain a policy and will be keen to defend it to the highest court.
(ix) Or there may be an issue where the government is more neutral, but where in practice change will require impetus from outside (e.g. a court decision).
Richard Heaton
Catherine Davidson
Constitutional Law Division, Lord Chancellor's Department