Department for Constitutional Affairs -

Home > Publications > Speeches > Ministerial speeches

QMW SEMINAR ON THE IMPACT OF THE HUMAN RIGHTS ACT ON PUBLIC AUTHORITIES IN THE UK: 30 0CT0BER 1998

DRAFT SPEAKING NOTES FOR KEYNOTE ADDRESS BY LORD WILLIAMS

The subject of this seminar is the impact of the Human Rights Act on public authorities. At present the Human Rights Act is still the Human Rights Bill. It completed its passage through Parliament yesterday, but has not yet received Royal Assent. I will, however, talk in terms of the Act today, because we are looking at how it will affect public authorities in future.

The Act will give further effect in our domestic law to rights and freedoms guaranteed under the European Convention on Human Rights. I would like first to say a few words about the history of the Act. I will then talk about its main provisions. Finally I shall say something about the preparations we are making for the implementation of the Act.

Introduction to the Act

First, a brief history. The European Convention on Human Rights was drawn up after the Second World War. It was designed to provide a common standard for the protection of fundamental human rights across Europe. The Convention guarantees a number of basic civil and political rights such as the right to life, the right to a fair trial, the right to respect for private and family life, and the right to freedom of expression. It is binding on the United Kingdom under international law. If the European Court of Human Rights finds a violation of the Convention in proceedings against the United Kingdom then the United Kingdom must take action to rectify any deficiency in its internal laws or practices so as to bring them into line with the Convention.

But the Convention is not at present enforceable in domestic law. The courts may apply the Convention in limited circumstances: for example, where the courts have a statutory discretion to exercise, they seek to act in a way which does not violate the Convention. But the general position is that they are not able to take account of the Convention in determining cases before them, still less to hear cases based solely on the Convention rights.
The Labour Party committed itself in 1993 to incorporating the European Convention into British law. We published a consultation paper called "Bringing Rights Home" in December 1996 and made incorporation of the Convention one of our Manifesto commitments. Shortly after the General Election of May 1997, we decided to bring forward legislation for this purpose in the first Session of the new Parliament. The Bill was introduced into the House of Lords just over a year ago last October, and after an eventful passage through both Houses of Parliament the process is now almost complete.

Main provisions

I turn now to the content of the Act. It will work through two main provisions. A scheme for interpreting legislation in light of the Convention rights, and a requirement on public authorities not to act incompatibly with those rights. Together they provide a mechanism for giving force and meaning in our law to the Convention rights.

The Convention rights are, of course, concerned with subject matter already covered by domestic law. The Act has to provide a mechanism for handling potential conflicts between the Act and other domestic law.

In our view, granting the courts a power to strike down Acts of Parliament on the ground of inconsistency with the Convention would have been at odds with our present constitutional arrangements. It would also have been likely to draw the courts and Parliament into conflict. The Act does not follow this course. Instead it operates as a powerful interpretative tool.

Section 3 of the Act provides that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". The courts will therefore be required to interpret legislation so as to uphold the Convention rights unless the legislation is so clearly incompatible with the Convention that it is impossible to do so. This applies regardless of how the courts may have interpreted legislation before the Act comes into force. The provision applies to both primary and subordinate legislation, and to both past and future legislation.

We believe that instances where legislation cannot be interpreted in accordance with the Convention rights will be very rare. In this way, section 3 of the Act will confine the scope for conflict between domestic law and the Convention rights to a very small pool of cases.

Where subordinate legislation is held to be incompatible with the Convention rights, the courts will, subject to a limited exception, be able to set the inconsistent provisions aside to the extent necessary to allow full effect to be given to the Convention rights. Where primary legislation is held to be incompatible it must nevertheless be given effect by the courts. To do otherwise would undermine the supremacy of Acts of Parliament. However, the higher courts (essentially the High Court and above) will be able to make a "declaration of incompatibility" in respect of the incompatible provisions.

Following such a declaration it will fall to the Government and Parliament to decide how to respond. Although there is no requirement for the Government and Parliament to amend the legislation in question, they are likely to want to do so. If there are compelling reasons for doing so, a Minister will be able to make a "remedial order" under the Act to remove the incompatibility. A remedial order would be subject to the approval of both Houses of Parliament. But we envisage that the normal route for amending incompatible legislation would be by introducing fresh primary legislation.

The second main way in which the Act brings rights home is through the requirement it places on public authorities to comply with the Convention rights, and the means by which victims of unlawful acts of such authorities can seek redress. The scheme in outline is that section 6 of the Act makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights; section 7 enables people to rely on the Convention rights in proceedings involving a public authority; and section 8 enables a court or tribunal to provide a remedy where a public authority is found to have acted unlawfully.

The first question to arise is, what is a public authority for the purposes of the Act? This is an important question and the answer is not straightforward. The Act does not provide a convenient list of public authorities. Before trying to explain what the Act does, it may help if I say something about the Government's intentions.

In determining our approach to what is a public authority, we took a number of factors into account. First, the Convention had its origins in a desire to protect the individual against the abuse of power by the State, rather than to protect one individual against the actions of another. The Convention rights are therefore available in proceedings involving what might be very broadly described as "the State", and are not directly justiciable in actions between private individuals.

Second, we wanted a wide-ranging definition of the State so as to provide a correspondingly wide protection against an abuse of human rights. Accordingly, liability under the Act goes beyond the narrow category of central and local government and the police - those organisations representing a minimalist view of what constitutes the State.

Third, the principle of bringing rights home suggested that liability in domestic proceedings should, so far as possible, lie with bodies in respect of whose actions the United Kingdom was answerable in Strasbourg.

Taking these considerations into account, the Act approaches the issue by reference to the concept of a public function. After stating that it is unlawful for a public authority to act incompatibly with a Convention right, section 6 provides that a public authority includes a court or tribunal, and "any person certain of whose functions are functions of a public nature". The effect of this is to create three categories of organisation.

The first contains organisations which might be termed "obvious" public authorities, all of whose functions are public. Examples of bodies likely to fall within this category are Government departments and the police. All the acts of such bodies must comply with the Convention rights.

The second contains organisations with a mix of public and private functions. A possible example is Railtrack, which exercises the public function of safety regulator for the railways but acts privately in its function as a commercial property developer. The liability of these bodies, unlike those of "obvious" public authorities, is limited to their public acts. Their private acts are excluded from the scope of section 6.

The third contains bodies (such as most private businesses) which have no public functions and which fall outside the scope of section 6 of the Act.

It will be for the courts to determine whether or not an organisation is a public authority. In some cases it will be obvious. In others the courts will need to consider whether an organisation has any public functions. The concept of what is a public function is familiar to the courts, notably in the context of judicial review, and we expect that they will take as a starting point the kind of tests applicable in determining susceptibility to review in that context.

I should mention one further point about section 6. Parliament is exempted from it. If this were not so, the way might be open to challenge in the courts the action of Parliament in enacting legislation which was thought to be incompatible with the Convention rights. For similar reasons, section 6(2) provides that public authorities do not act unlawfully if they are acting so as to give effect to incompatible primary legislation. This is particularly important for prosecuting authorities, who may find themselves in the position of prosecuting statutory offences or applying statutory procedures which the higher courts have declared incompatible with the Convention rights. Without the protection of section 6(2), they would be acting unlawfully in carrying out functions which Parliament intended they should carry out in passing the relevant legislation.

If people believe that a public authority has violated their Convention rights, section 7 of the Act offers them two avenues of redress. They may rely on the Convention rights in the course of any other proceedings which involve a public authority and to which they are a party, adding arguments based on those rights to the other arguments being adduced. Alternatively, they may bring proceedings against a public authority on the sole ground that it has acted unlawfully, that is, in a way which is incompatible with the Convention rights.

The Act does not specify which of these two routes is to be taken in preference to the other in any particular case, but the expectation is that people will initiate court proceedings against a public authority on Convention grounds alone only where no existing means of legal challenge is open to them. If they do initiate proceedings on Convention grounds alone, under section 7(1)(a) of the Act, they must do so within one year of the act which is complained of, unless the court decides that a longer period would be equitable in the circumstances, and they will only be able to bring proceedings for acts committed on or after the Human Rights Act comes into force.

Section 8 of the Act provides that if a court or tribunal finds that a public authority has acted unlawfully, it will be able to award whatever remedy within its normal powers seems to it just and appropriate. Depending on the circumstances, this might include ordering a person's release from detention or ordering the payment of compensation.

In deciding whether to award compensation and the amount of any award, courts and tribunals will be required to take into account the principles applied by the European Court of Human Rights. The intention is that a person should receive compensation from the domestic courts equivalent to what he or she would have received from the European Court of Human Rights in Strasbourg. The European Court does not automatically award compensation, and when it does, the awards tend to be modest.

It may help to illustrate the impact of the Act on public authorities if I give you a couple of case studies. These show what might have happened under the Act in two cases which the United Kingdom lost at Strasbourg.

First, Saunders v UK. As part of a DTI investigation into the take-over battle between Guinness and the Argyll Group, Ernest Saunders was interviewed by inspectors appointed under section 432 of the Companies Act 1985. His answers were given under compulsion, and without the benefit of any right against self-incrimination, because the Companies Act confers a power which enables inspectors to certify the lack of co-operation shown by a witness to the court, and such behaviour can then be punished as contempt of court. Section 434(5) of the Act explicitly permits the use of such answers in subsequent criminal proceedings. Saunders was prosecuted, and during his trial the prosecution sought to prove the case against him using transcripts of the answers he had given to the DTI inspectors at the earlier interviews. His answers were read out to the jury, were used by the prosecution in cross-examination to demonstrate inconsistency, and were used by another defendant's Counsel to cast doubt on Saunders' version of events. Saunders was convicted on twelve counts including false accounting, theft and conspiracy, and sentenced to five years' imprisonment, reduced to two and a half years on appeal.

Saunders took his case to Strasbourg, arguing that the use in criminal proceedings of statements made under compulsion violated his right under Article 6(1) of the Convention not to incriminate himself. In giving judgment in December 1996, the European Court of Human Rights found a violation of Article 6(1). The Court awarded him costs of £75,000 but did not award any compensation. It refused to speculate on whether the outcome of his trial would have been different if the transcripts had not been used.

If the Human Rights Act had been in force, Saunders would have been able to rely on his Article 6 rights as part of his defence. The trial court would have tried first to interpret the relevant provisions of the Companies Act in a way which was compatible with the Convention rights. The attempt might have failed, and the availability of the Convention rights might not have affected the outcome of the trial. And it might not have affected the outcome of the appeal, but the Court of Appeal, having failed to find a compatible interpretation, would have been able to make a declaration that section 434(5) of the Companies Act was incompatible with the Convention rights. It would then have been open to the Government to consider whether there were compelling reasons for using the remedial order procedure to amend the Companies Act so as to remove the incompatibility, possibly by providing that answers obtained under compulsion as part of an investigative or regulatory regime could not be used in subsequent criminal proceedings as part of the prosecution case.

It would not have been possible for Saunders to bring proceedings under section 7 of the Human Rights Act challenging the decision to prosecute him, because the prosecution would have been acting so as to give effect to the provisions of incompatible primary legislation and would have benefited from the protection of section 6(2) of the Act.

Second, Halford v UK. Alison Halford was an Assistant Chief Constable in the Merseyside Police. After an unsuccessful application for a more senior position, she began proceedings in an industrial tribunal on the ground that she had been discriminated against because of her sex. These proceedings were settled, but Halford had begun to suspect that as a result of her complaint of sex discrimination, calls from her home and office telephone were being intercepted. She complained to the Tribunal established under the Interception of Communications Act 1985 but the complaint was dismissed.

Halford took her case to Strasbourg, alleging a breach of Articles 8, 10, 13 and 14. In line with established practice, the Government would not confirm or deny that any interception had taken place, but it accepted that Halford had established a "reasonable likelihood" that calls made on her office telephone were intercepted. In giving judgment in June 1997, the European Court of Human Rights held that there had been a violation of Article 8 - the right to respect for private and family life, home and correspondence - in relation to telephone calls made on her office telephone. As part of its reasoning the Court noted that the Interception of Communications Act did not apply to a private telecommunications system such as the one operated by the Merseyside Police, and accordingly any interference with the Article 8 right could not be justified on the ground that it was in accordance with the law. Since there was no domestic remedy, the Court also found a violation of Article 13. The Court awarded compensation of £10,000 and costs of £25,000.

Under section 7 of the Human Rights Act, Halford could have instituted proceedings against the Police Authority on the ground that it had acted unlawfully. She could have argued that the alleged interception of her office telephone was not compatible with the Convention rights because it was in breach of Article 8. If the domestic court had adopted the reasoning of the European Court of Human Rights, it would have found in her favour and could have awarded a remedy in the form of compensation, as the European Court of Human Rights did.

In this case, since the 1985 Act does not deal with private telecommunications systems, there would have been no primary legislation for the court to try to interpret compatibly with the Convention rights, and no primary legislation to render the conduct lawful. There would have been no basis for the higher courts to make a declaration of incompatibility. Nor would there have been any need to do so, because Halford would have obtained a remedy by relying on the public authority provisions of the Act.

The power to make a remedial order in respect of a finding of the European Court of Human Rights would not have been available, because the issue in this case was not the presence of incompatible primary legislation, but the absence of any legislation to regulate the interception of telephone calls on a private system. We took the view in designing the Bill that conferring a power not only to amend incompatible primary legislation, but to create entirely new primary legislation by statutory instrument to fill a gap in the law, would have gone too far.

Implementation

Let me now turn to the implementation of these provisions. The effect of the Act will be profound and wide-ranging. It follows that preparations for its introduction must be thorough and comprehensive.

I should explain that we do not yet have a date for the implementation of the Act. We want to bring it into force as soon as is feasible, but there is a great deal of work to do and it will take some time.

The courts and tribunals are clearly a key element in the successful implementation of the Act. They will have to interpret legislation in light of the Convention rights, where necessary finding constructions which differ from those given in the past. And they will have to decide whether public authorities have acted unlawfully, taking account of factors that go beyond the relatively narrow considerations which currently apply to judicial review.

To perform these tasks, courts and tribunals will need to familiarise themselves with the Convention and with the Strasbourg jurisprudence. They will also need to acquire an understanding of the concepts which Strasbourg uses to interpret the Convention. This will be a significant change in the way they operate. A comprehensive training programme will be provided under the auspices of the Judicial Studies Board.

Government departments and other "obvious" public authorities will have to comply with the Convention rights in everything they do. This will affect not only the preparation of legislation but the operation of administrative procedures. It will be important to put the time between now and the implementation of the Act to good use in reviewing legislation and procedures for compatibility with the Convention. And it will be important to train staff in an awareness of the Convention, and its associated jurisprudence. The same will apply to other public authorities, to the extent that they are exercising public functions.

To assist in this task, we shall be issuing a guidance booklet on the Human Rights Act. As well as providing an overview of the Act and the Convention rights, it will provide advice to help Government departments and other public authorities comply with their obligations under the Act. Drafting is currently at an early stage but we hope to be able to issue the guidance early in the New Year.

The task of preparing for implementation is not for the Government alone. We recognise that many outside the Government have a keen interest in how the Act is implemented and want to contribute to its success. We want to draw on their expertise and take account of their concerns. For that reason the Home Secretary announced on 21 October that he would be establishing a Task Force, which he has invited me to chair, to assist the Government in the preparations for implementation.

Its tasks will include maintaining a dialogue between the Government and non-governmental organisations on the readiness of departments, other public authorities and the legal profession for implementation and on its timing; working together to heighten public awareness of the Act, and to provide training opportunities for public authorities outside Government; and co-operating with other organisations in disseminating awareness, particularly among young people, of the rights responsibilities inherent in the Convention rights. And I expect the Task Force to take a keen interest in the guidance on the Act which we are currently preparing. We hope that it will have its first meeting in the near future and will continue to meet on a regular basis at least until the Act is implemented.

I hope that this has given you some idea of what the Act will mean for public authorities. We do believe that it is a very important Act, and the onus is on all of us to make it work.