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. We think this is preferable to allowing cases to run their ordinary course but then referring them to some kind of separate constitutional court which, like the European Court of Human Rights, would simply review cases which had already passed through the regular legal machinery. In considering Convention points, our courts will be required to take account of relevant decisions of the European Commission and Court of Human Rights (although these will not be binding).

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. The Bill provides that, in considering an award of damages on Convention grounds, the courts are to take into account the principles applied by the European Court of Human Rights in awarding compensation, so that people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg.

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.

Entrenchment

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.

Amending legislation

2.17  Although the Bill does not allow the courts to set aside Acts of Parliament, it will nevertheless have a profound impact on the way that legislation is interpreted and applied, and it will have the effect of putting the issues squarely to the Government and Parliament for further consideration. It is important to ensure that the Government and Parliament, for their part, can respond quickly. In the normal way, primary legislation can be amended only by further primary legislation, and this can take a long time. Given the volume of Government business, an early opportunity to legislate may not arise; and the process of legislating is itself protracted. Emergency legislation can be enacted very quickly indeed, but it is introduced only in the most exceptional circumstances.

2.18  The Bill provides for a fast-track procedure for changing legislation in response either to a declaration of incompatibility by our own higher courts or to a finding of a violation of the Convention in Strasbourg. The appropriate Government Minister will be able to amend the legislation by Order so as to make it compatible with the Convention. The Order will be subject to approval by both Houses of Parliament before taking effect, except where the need to amend the legislation is particularly urgent, when the Order will take effect immediately but will expire after a short period if not approved by Parliament.

2.19  There are already precedents for using secondary legislation to amend primary legislation in some circumstances, and we think the use of such a procedure is acceptable in this context and would be welcome as a means of improving the observance of human rights. Plainly the Minister would have to exercise this power only in relation to the provisions which contravene the Convention, together with any necessary consequential amendments. In other words, Ministers would not have carte blanche to amend unrelated parts of the Act in which the breach is discovered.

Scotland

2.20  In Scotland, the position with regard to Acts of the Westminster Parliament will be the same as in England and Wales. All courts will be required to interpret the legislation in a way which is compatible with the Convention so far as possible. If a provision is found to be incompatible with the Convention, the Court of Session or the High Court will be able to make a declarator to that effect, but this will not affect the validity or continuing operation of the provision.

2.21  The position will be different, however, in relation to Acts of the Scottish Parliament when it is established. The Government has decided that the Scottish Parliament will have no power to legislate in a way which is incompatible with the Convention; and similarly that the Scottish Executive will have no power to make subordinate legislation or to take executive action which is incompatible with the Convention. It will accordingly be possible to challenge such legislation and actions in the Scottish courts on the ground that the Scottish Parliament or Executive has incorrectly applied its powers. If the challenge is successful then the legislation or action would be held to be unlawful. As with other issues concerning the powers of the Scottish Parliament, there will be a procedure for inferior courts to refer such issues to the superior Scottish courts; and those courts in turn will be able to refer the matter to the Judicial Committee of the Privy Council. If such issues are decided by the superior Scottish courts, an appeal from their decision will be to the Judicial Committee. These arrangements are in line with the Government's general approach to devolution.

Wales

2.22  Similarly, the Welsh Assembly will not have power to make subordinate legislation or take executive action which is incompatible with the Convention. It will be possible to challenge such legislation and action in the courts, and for them to be quashed, on the ground that the Assembly has exceeded its powers.

Northern Ireland

2.23  Acts of the Westminster Parliament will be treated in the same way in Northern Ireland as in the rest of the United Kingdom. But Orders in Council and other related legislation will be treated as subordinate legislation. In other words, they will be struck down by the courts if they are incompatible with the Convention. Most such legislation is a temporary means of enacting legislation which would otherwise be done by measures of a devolved Northern Ireland legislature.