Tag Archives: Human Rights Act

Katie Boyle and Stephen Tierney: Human Rights in Transition: The Proposed Interim Constitution for Scotland

KatiestierneyThe site has recently seen posts addressing the UK’s relationship to the European Convention of Human Rightshere and here. In this post we will seek to extend the debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (see Boyle, Tierney and McHarg) is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

In substantive terms the rights to be protected in the interim constitution of an independent Scotland are those contained in the European Convention of Human Rights (ECHR), which thereby becomes part of the Bill’s foundational constitutional framework. In this sense the arrangements mirror those of the Human Rights Act regime. But the constitutional status of these rights is potentially radically different. If the Bill is viewed through a Westminster prism as a ‘constitutional statute’ (see page 62 of the consultation paper) then the rights it contains could be subject to amendment during the period of transition to a permanent constitution if the Scottish Parliament expressly chooses to repeal or amend the Bill. However, there is some ambiguity in the Bill and broader consultation paper, since at other times it seems to be the intention of the Scottish Government that rights contained in the Bill will not be subject to parliamentary authority, but will be, in effect, entrenched. And in any case rights entrenchment is likely to be solidified following the work of the proposed Constitutional Convention process and the adoption of a new permanent written constitution. The consequence of these two processes is that the constitutionalisation of human rights – both in transition and in an envisaged permanent constitution – will require a reconceptualisation of the legislative role in Scotland and the drawing of an ever more stark contrast between the relationship of courts v legislature in Scotland on the one hand, and that between courts and Parliament in London on the other. Such a radical realignment of institutional powers should be made clear to citizens, enabling an open and inclusive debate in Scotland concerning how or indeed whether human rights should be protected from legislative will in a new Scottish constitution.

Section 26(2) of the proposed Bill provides that Scots law is of no effect in so far as it is incompatible with Convention rights. Page 56 of the consultation proposes that the Human Rights Act 1998 and Scotland Act 1998 be amended to ensure that those matters currently reserved under the Scotland Act 1998 and legislation currently exempt from an ultra vires declaration (i.e. primary legislation emanating from Westminster) should, under the Bill, be subject to the same compatibility requirements under a revised Scotland Act. This would extend the protection of those rights contained in the European Convention of Human Rights from devolved to reserved matters and create a more robust human rights framework than is currently available under the Westminster system. The courts would be able to declare legislation ultra vires the interim constitution should a breach of Convention rights be established, rendering the contravening provision or act unlawful and of no effect. This is clearly a stronger remedy than the declaration of incompatibility option available under section 4 of the Human Rights Act which does not affect the operation of a non-compatible provision and therefore defers to the doctrine of parliamentary sovereignty. In this sense the proposed Bill appears to place limitations on the competence of the newly independent Scottish Parliament, creating a framework model of constitutionalism potentially very different from the Westminster process model (for a discussion on framework v process models of constitutionalism see Feldman). This would be complemented by the existing duty to read legislation as compatible in so far as it is possible to do so under section 101 of the Scotland Act.

However, this is where it gets slightly complicated. The Bill proposes affording ECHR rights constitutional status yet at the same time it also nods towards parliamentary supremacy, suggesting at least the theoretical possibility that the ECHR protection mechanisms could be repealed if the Scottish Parliament expressly chose to do so. Furthermore, perhaps by omission, the section dealing with ECHR protection mentions that the Scottish Government and public bodies are bound to comply but does not expressly provide that the Scottish Parliament’s legislative competence is limited. This omission would be overcome by the overarching provision in section 26(2) that declares Scots law to be of no effect so far as it is incompatible and, under the continuation of laws (section 34) an amended version of section 29 of the Scotland Act could continue to apply, limiting the competence of the Scottish Parliament in relation to ECHR rights and EU law. This is clarified in the explanatory notes to the Bill,

‘The Scotland Act’s human rights ‘bite’ is sharper than that of the Human Rights Act. The renewed Scotland Act will apply the higher threshold – that only applies to Scottish Parliament legislation at present – across all legislation, whether passed at Westminster or by the Scottish Parliament.’

So, whilst the wording of the Bill is unclear on this, it can be implied that the Bill proposes to retain the current, limited, legislative competence framework of the Scotland Act and extend it to reserved matters. By way of example, this would mean that on independence day all reserved matters that are currently in ‘ECHR limbo’ (such as the blanket ban on prisoner voting rights and the Strasbourg judgment in the Hirst case) would need to be remedied, otherwise an application to a Scottish court could result in an ultra vires declaration, rendering the offending provision unconstitutional and of ‘no effect’ in Scots law. In this sense we can see a ‘rights affirmative’ approach at play in relation to those rights recognised under the ECHR.

With the ECHR as the substantive benchmark the Bill does not extend legal coverage to the broad spectrum of rights recognised in international law, such as the right to adequate housing, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to work, the right to an adequate standard of living, the right to take part in cultural life and so on (see for example the scope of rights covered in the International Convention on Economic, Social and Cultural Rights which the UK is party to but which it has not incorporated into domestic law). There is reference in the Bill to some additional rights, such as equality, children’s wellbeing, the interests of the island communities, entitlement to a healthy environment and protection of natural resources (sections 28-32). Although the Bill would codify these references under a single statute, it would appear for the most part that there is nothing in the substance of the provisions that goes any further than protections currently available under existing legislation which would continue to operate under the continuation of laws in section 34 of the Bill. For example, the provisions relating to equality do not go any further than the procedural protections available under the Equality Act 2010. The reference to children’s wellbeing confers a duty on public authorities to ‘seek to safeguard, support and promote the wellbeing of children in Scotland.’ Again, this arguably does not go any further than existing legislation such as the duties conferred on public authorities under the Children (Scotland) Act 1995. The right to a healthy environment potentially extends the scope of justiciable environmental rights in the Bill. On the other hand, the intention could be merely to codify already existing case law under Article 8 of the ECHR. The references to additional rights are therefore better considered as overarching principles rather than substantive provisions that confer additional rights. In the explanatory notes the Scottish Government explains that the intention of this approach is to assist in mainstreaming existing mechanisms. Many human rights advocates may well argue that this does not go far enough.

So, although the interim constitution Bill provides a more robust human rights protection framework than is currently available under the Westminster model, it is also quite restrictive in the wider recognition of additional rights beyond those contained in the ECHR – the ECHR predominantly focussing on civil and political, and not economic, social and cultural rights. Having said that, the proposals leave the future of human rights protection mechanisms in Scotland open for deliberation under the Constitutional Convention process. It is proposed that the interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33). And, whilst the interim constitution is a robust (wide reaching with effective remedies) but restricted (only protecting a limited number of rights) model, it does not mean that the same would apply under the terms of a permanent written constitution. The permanent constitution could well embed more wide-reaching human rights protections. In the same vein, the Constitutional Convention might recommend that existing protection mechanisms be reduced or their justiciability qualified (although this might cause significant difficulties if these were deemed to be at odds with Scotland’s obligations under the Council of Europe and European Union). This brings us back to the idea of the interim constitution as a ‘constitutional statute’. This term as understood within a ‘Westminster’ constitutional mentality would make it exempt from implied repeal but not express repeal: in this sense the Scottish Parliament could legislate expressly to amend initial rights protection mechanisms contained in the interim constitution should it so choose. But given the ambiguity in the Bill and supporting documentation to which we have alluded, such an eventuality would raise an interesting issue of legality for the legislation in question. A case might well come before the courts which would test the limits of the Scottish Parliament’s competence in relation to the interim constitution’s authority to bind this Parliament into the future, offering the prospect of a clean break with the very notion of legislative supremacy.

The Scottish Government points out that enhancing rights protection is something that it would suggest be included in the permanent written constitution. Under this proposal, it would be for the Constitutional Convention to decide whether additional protections be afforded to economic, social and cultural rights as well as civil and political rights, such as has recently been recommended by Constitutional Conventions in Ireland and New Zealand. The Bill’s proposed approach differs from the path taken in the interim constitution of South Africa which set out ‘constitutional principles’ to be embedded in the permanent constitution – including equality measures and extensive human rights protection – meaning the road map for human rights was much clearer and more prescriptive in the South African interim arrangements than that set out in the Scottish Government’s proposals. The much broader (and less prescriptive) road map is arguably no bad thing – leaving the decisions on what ought to be included in the final written constitution to the participative Constitutional Convention process.

On the other hand, much of the Scottish Government’s rhetoric around the referendum debate has been about securing a fairer and more inclusive society in an independent Scotland. There ought to be a debate about whether this could, or should, be reflected in any proposed interim or permanent constitution. There also needs to be a debate about how this commitment could be, or whether it ought to be, protected from change by successive political administrations. It is crucial that the people of Scotland should have the opportunity to consider and contribute to the potential models of constitutionalisation of such aspirations – whether they be through channels of political representation in Parliament, through general mission statements or overarching principles, or through the entrenchment of fundamental values in a framework constitution that binds the legislature, executive and the judiciary in the exercise of state power. The consultation process on the proposed Bill offers an opportunity to begin this discussion even before the referendum is held. Interested parties can now begin to contribute to the debate on the future of human rights protection in Scotland should the referendum result in a yes vote. Regardless of differing views as to whether or how human rights should be entrenched, and if so which are suitable for such constitutional protection, what is surely critical is that in the exercise of these debates the process of decision-making about constitution framing be genuinely deliberative, informed and inclusive. In this sense we would reassert that, should there be a yes vote, the Constitutional Conventionbe designed very carefully if it is to be genuinely deliberative and representative’.

In the event of a no vote the future of human rights is perhaps even less certain – the recent UK Cabinet reshuffle suggests that a move towards human rights reform is very much on the Conservative agenda with Prime Minister David Cameron promising to alter, potentially radically, the UK’s relationship to the ECHR. The Shadow Justice Secretary Sadiq Khan has also set out Labour’s plans for a less intrusive Human Rights Act, offering to limit the extent to which Strasbourg jurisprudence is treated as binding and thereby seeking to shift the balance of judicial power back towards the British courts (for a discussion on this see Elliot and Mead). In light of these proposals, the regime offered in the Scottish Government’s proposed Bill strikes a very different tone, seeking to legally enshrine European human rights provisions ever further in Scotland by transferring ECHR devolved protection mechanisms to reserved matters. If indeed the legal guarantees offered to human rights are further restricted by Westminster in the next few years then it would appear that, in the area of human rights law, an independent Scotland may well look remarkably different from the rest of the UK.

 

The research for this blog was funded by Stephen Tierney’s ESRC Senior Research Fellowship under the ESRC Future of the UK and Scotland programme.

Professor Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the The Scottish Independence Referendum: A Democratic Audit’ research project.

Dr Katie Boyle is a constitutional lawyer and Economic and Social Research Council Fellow at the University of Edinburgh working on the ESRC funded research project ‘The Scottish Independence Referendum: A Democratic Audit’.

(Suggested citation: S. Tierney and K. Boyle, ‘Human Rights in Transition: The Proposed Interim Constitution for Scotland’ U.K. Const. L. Blog (1st August 2014) (available at http://ukconstitutionallaw.org/)).

 

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Mark Elliott: Human rights reform and the role of the Strasbourg Court

MarkI wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.

Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals

are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.

Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.

On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.

On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).

The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:

[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.

One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.

International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.

Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.

Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.

A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.

It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.

 

Mark Elliott is Reader in Public Law at the University of Cambridge (Twitter: @DrMarkElliott). This post was first published on Mark’s blog, Public Law for Everyone.

 

 

 

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David Mead: The Future of the HRA Under Labour

davidmeadI might have misheard but perception does seem to be nine-tenths of the law when it comes to the Human Rights Act at least. In a piece in today’s Daily Telegraph, Shadow Justice Minister Sadiq Khan outlines Labour’s plans for reforming the Human Rights Act, or one aspect of it anyway. There is a need to revisit the wording – and thus the power – in s.2 to “take account” of Strasbourg case law and decisions.

 our courts haven’t always interpreted section 2 in the way we’d intended. Too often, rather than “taking into account” Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.

The solution is for guidance, in the first instance, but Khan does not rule out legislation. The aim is to

make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.

This very short post will consider some of the issues this proposal might throw up. First, and perhaps most obviously, it is hard to think what effect extra-legal guidance will have on the approach judges take. It is markedly different, say, to s.19 of the Immigration Act 2014 which lists clearly the factors that should and should not be taken into account in determining where the public interest sits when deciding whether or not for example to deport someone. This sets up a battle between that section and s.3 of the HRA – which requires courts to give convention-compatible meanings wherever possible. If there is a divergence on where the public interest rests between what s.19 dictates and Strasbourg case-law (which is beyond my ken, and certainly beyond the scope of this blog), then the question will be whether Parliament has signalled in a sufficiently strong fashion what its intention is as to make not following the s.19 formula a departure from a fundamental tenet of the statutory scheme.

Such questions do not arise with proposed guidance – in whatever form it may take. It is hard to think of a comparable situation – government signalling (either by means of parliament in the form of an SI or departmental circular or Code of Practice) to the judiciary what a section in an Act means. The only matter that sprang to mind were the Sentencing Guidelines but those are not a political construction but are created by the judges themselves, a form of intra-judicial dialogue. It is hard to imagine any judge actually giving airtime to the guidelines, if for no other reason – as Mark Elliott points out in his blog on the developments – of the sanctity of the separation of powers. In trying to come out victorious in what is perceived as an institutional battle between the UK and “foreign” Europe (not Khan’s words or even his sentiment I should add) Labour’s plan, if it eventuates, risks kickstarting an even more seismic inter-instituional battle, of the sort we thought we’d long left behind, centuries ago. It is something of an irony then that Labour’s proposal is steeped in history.

 We’ll use the 800th anniversary of the Magna Carta – the world’s first bill of rights – to assert the role of British courts vis-à-vis Strasbourg.

To paraphrase Lord Justice Diplock in BBC v Johns in 1965, it’s now 400 years and a civil war too late for the government to be trying this sort of thing.

The second point follows on. The battle is being conceived as battle of the nation state against the supranational body – the Daily Telegraph piece has more than one mention of sovereignty. My point here is not the same as Mark Elliott – that this elides the national and the international sphere of influence, assuming they are as one (and that the UK is losing out) – but perhaps a more fundamental one. As I see it, the “real” battle of the HRA is between our domestic courts and our domestic Parliament – something this proposal simply ignores, constructing the battlefield and combatants elsewhere. I have written elsewhere (some might say extensively and mistakenly) over the past few years about what I consider to be the excessive (albeit occasional) use of s.3 to alter a clearly designed statutory scheme – and the lack of transparency that this brings, in contrast to a declaration of incompatibility under s.4. My most recent foray has been with Fergal Davis in the Common Law World Review, in the context of criminal law. Most egregious in my list is always Hammond, where the counsel for a prisoner and for the Secretary of State colluded such that very clear wording in the Criminal Justice Act 2003 – that prisoners were not entitled to an oral hearing when a judge was determining the mandatory tariff post-Anderson – was read as entitling a prisoner to one if not to allow it would be unfair. Why is this any less an attack on sovereignty? There are real discussions to be had about the future of the HRA – and its place in our legal framework and culture, but I am not at all convinced that s.2 is the best or right target. As many others have claimed today, guidance may well redundant in that judges have started to shift from the rigidity of the Ullah mirror principle, such that guidance may do little except enshrine current judicial practice. In turn, and what never seems to get much of a look in in the discourse of ministers and shadow ministers, is the noticeable placatory shift at Strasbourg: far more conciliatory and accommodating in several recent notable judgments, dating back to Austin, through von Hannover (No 2), to Animal Defenders and most recently RMT v UK. In each, we can – if not clearly and explicitly – see the Court playing a political role, seeking to staunch national discontent with judgments would appear to be more politically welcome. In the RMT case, in which the UK’s ban on secondary industrial action was held not to violate article 11, the Court said this (at [99]):

In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

There has been no discussion or mention of the RMT case in any mainstream British newspaper. This is important, and leads us into the third and last point to be made in this blog. It links back to the opening line – that it is the seeming need to be “doing something” that might here be at play. There has been a clear and constant (to use the phrase in Ullah by Lord Bingham) media narrative that must inevitably skew the public’s perception of the HRA. I am currently working on an empirical study of newspaper reporting of key ECHR and HRA judgments. Aspects of this were to have been presented at Leicester two weeks ago but I was unable at the last minute to attend. Through various techniques of misreporting – prominence, partiality, phrasing and precipitation (for example where cases are reported unfavourably at very early stages but with silence on the eventual outcome) – readers (perhaps of only certain newspapers such as The Sun and The Daily Mail) have a very misinformed understanding of the reach and scope of human rights protection and the operation of the ECHR and the HRA. In brief, readers would think the government tends to lose cases at Strasbourg. There was not a single mention in any newspaper of the UK’s success in the three most recent cases: RMT, Church of the Latter-Day Saints or Jones(though this did make it to the pages of The Guardian and The Evening Standard). A search against The Daily Mail on-line with the term “European Court of Human Rights” produced a skew towards prisoners – either voting or sentencing – towards immigration decisions, and towards criminals and terrorists, what are known colloquially as FPTs (foreigners, paedophiles and terrorists), a framing of security not equality. We certainly see nothing approaching the full panoply of human rights cases or issues. Last, readers would think that the human rights project is not about protecting victims but is a criminal’s charter. There was on 20 April a full page in The Daily Mail dedicated to the Strasbourg case arising from the civil action brought by the victims of the Omagh bomb against the alleged perpetrators who were, in turn, claiming a breach of Article 6 in the civil proceedings. The small problem was that this was simply at the stage of a communication to the government; it has not yet been declared admissible – and of course may never be, but it would be a very well-informed reader to realise the rather precipitate nature of this report. Yet, the editor chose not to mention even in passing the RMT judgments of the Court of only 10 days earlier, but instead highlighted this one at almost its earliest possible stage.

In short, while in Sadiq Khan’s words Labour’s “unswerving support for the Human Rights Act and our membership of the European Convention on Human Rights” are very much to be welcomed, as his determination to take the Tories on, perhaps a better choice of foe, as he seeks to build a new consensus, would be Michael Gove. The most recent Citizenship curriculum for 2014 onwards for KS3, 11-14 year olds, downgrades any mention of rights and instead refers to “our precious liberties”. What hope, and what price, rights in the future?

 

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead, ‘The Future of the HRA Under Labour’ UK Const. L. Blog (4th June 2014) (available at http://ukconstitutionallaw.org)

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Cormac Mac Amhlaigh: Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis

cormacTwo interesting recent blog posts dealt with the meaning of public and private under  s. 6 of the Human Rights Act 1998.  They were motivated by injunction proceedings in the High court whereby the Olympic Delivery Authority, (ODA) the body charged with the logistics and infrastructure of the London Olympic Games, had sought injunctions to restrain protestors from entering and occupying land which was to be developed as part of the Olympic site.  The main issues emerging from this case discussed in the two posts was whether the ODA constituted a ‘core’ or ‘hybrid’ public authority under s. 6 HRA; whether it could itself enjoy human rights to defeat or counter any human rights obligations it may hold in its capacity as a ‘hybrid’ body exercising public functions; and where the ‘centre of gravity’ for determining the human rights obligations of hybrid bodies lay under the Act; under the  s. 6(3)(b) ‘public function’ test or the definition of ‘private act’ under s. 6(5).

In this post, I wish to contribute to the discussion on the third point by highlighting a common essentialist fallacy in approaches to the meaning of ‘public’ under the HRA which leads to circular, question-begging conclusions.  This essentialist fallacy is problematic on its own terms but also has a bearing on the relationship between s. 6(3)(b) HRA and s. 6(5) HRA.  Avoiding the essentialist fallacy requires reading the term ‘private acts’ under s. 6(5) within the context of public functions under s. 6(3)(b) and as such, the post concludes that s. 6(5) cannot stand alone as a ground for determining the human rights obligations, or immunities, of hybrid bodies.

The Severability Thesis

Perhaps the main point of disagreement between the two previous posters on this topic was the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.  As is well known, s. 6 creates a legal obligation on public authorities to act compatibly with the rights contained in the ECHR, and s. 6(3)(b) extends the meaning of public authority to ‘any person  certain of whose functions are functions of a public nature’.  s. 6(5) furthermore states that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.  This has resulted in a classification of two types of body which are subject to human rights obligations under the act:  ‘core’ and ‘hybrid’ bodies. (See Lord Nichols, para.11 in Aston Cantlow PCC v. Wallbank [2003] UKHL 37).  Defining the human rights liabilities of hybrid bodies, moreover, raises the question of what can be called a ‘severability thesis’; that is, whether s. 6(5) is severable from s. 6(3)(b) such that it constitutes a separate head of analysis for determining the human rights liabilities of particular hybrid bodies.   If it is not severable, s. 6(5) simply serves to compliment an analysis of the functions of hybrid bodies by simply reinforcing the ‘hybridity’ of the body in order to distinguish it for ‘core public authorities’.  As such, the notion of ‘private acts’ under s. 6(5) is assimilated into a broader analysis of the ‘publicness’ of the functions of a hybrid body under s. 6(3)(b).    If the two provisions are severable, then a two-stage test to assess the human rights liabilities of hybrid bodies is necessarily; firstly to determine whether the hybrid body undertakes ‘functions of a public nature’ and then a further analysis to determine the ‘privateness’ of the act which was taken pursuant to the public function.    Moreover, as well as adding another limb to the test of the human rights liabilities of hybrid bodies, the severability thesis also, significantly, shifts the ‘centre of gravity’ on the human rights liabilities of hybrid bodies from s. 6(3)(b) and the definition of ‘public functions’, to s. 6(5) and the definition of private ‘acts’, where s. 6(5) and not s. 6(3)(b) provides the ultimate litmus test to determine the human rights liabilities of these bodies.  On this analysis, even if a hybrid body is not deemed to be discharging a public function under s. 6(3)(b), it can still be caught if it is found that the nature of the act which caused the alleged human rights violation was public and vice versa.

The severability thesis was a significant point of disagreement between the two previous posters.   David Mead seemed persuaded by the severability thesis, claiming that s. 6(5) can be read narrowly to warrant an independent analysis on the question of the ‘privateness’ of the act which is separate from ,and can defeat, the analysis for ‘public function’ under s. 6(3)(b) relying on statements from the Court of Appeal in Weaver in support.    Alexander Williams, on the other hand, explicitly refuted the severability thesis, arguing that the centre of gravity of the human rights liabilities of hybrid bodies lies with s. 6(3)(b) and not s. 6(5).  Evidence of this, he argues, can be found both in the failed attempt by Elias LJ in Weaver to apply the two-stage test implicit in the severability thesis, as well as Parliament’s intention in drafting the provision.

Beyond the blogosphere, the severability thesis has gained some traction from the bench, not least from one of the leading cases on s. 6; YL v. Birmingham City Council.  In this case, Lord Scott, for example, argued that:

“[t]he effect of [s. 6 HRA] is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act … unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.” (para. 23, Emphasis Added).

  In the same case, Lord Neuberger found that :

“In my view, both as a matter of ordinary language and on a fair reading of [s. 6], there is a difference between “functions”, the word used in s. 6(3)(b) and “act[s]”, the word used in section 6(2) and (5) […].  The former has a more conceptual, and perhaps less specific, meaning than the latter.  A number of different acts can be involved in the performance of a single function.  So, if this appeal succeeds, a proprietor … would be performing a “function”, which, while “of a public nature”, would involve a multitude of acts, many of which would be private … a hybrid public authority is only bound by section 6(1) in relation to an act which is (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature.” (para.  129, Emphasis Added)

The two-stage test to determine the liabilities of ‘hybrid bodies’ is clear from this latter judicial endorsement of the severability thesis; firstly it must be ascertained whether the function being discharged was a ‘public’ one within the meaning of s. 6(3)(b), and secondly, it must be determined that the impugned act which gave rise to the alleged human rights violation was not private.  Furthermore, this two-stage test, as Lord Neuberger noted, requires a distinction between functions and acts.  This means, as Elias LJ noted in Weaver, that:

“ …  Not all acts concerned with carrying out a public function will be public acts.  Conversely, it is also logically possible for an act not to be private act notwithstanding that the function with which it is most closely connected is a private function, although it is difficult to envisage such as case.  Such situations are likely to be extremely rare.” (para. 28).

In the remainder of this post I will join the side of those arguing against the severability thesis by showing how it relies on a problematic essentialist fallacy which is best avoided.

The essentialist fallacy

            The essentialist fallacy relates to the notion that concepts such as ‘public functions’ or ‘private acts’  have some natural referent in the real world betraying certain essential properties which automatically determines their public or private character.  That is that whether something  (e.g. a relationship, an act, function etc.) is to be deemed public or private relates to the ‘essential nature’ of the thing itself which is in some sense self-evident.  The fallacy was alluded to, albeit obliquely, by Lord Neuberger in YL when he noted that:

            “Any reasoned decision as to the meaning of s. 6(3)(b) risks falling foul of circularity, preconception, and arbitrariness. The centrally relevant words, “functions of a public nature”, are so imprecise in their meaning that one searches for a policy as an aid to interpretation.  The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what that policy should be, and the policy so identified is then used to justify one’s conclusion.” (para. 128).

 As I have argued elsewhere, it affects other areas of the HRA, however for current purposes I will focus on its expression with respect to the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.   In Aston Cantlow, in determining the potential human rights liabilities of a Parochial Church Council suing landowners for the cost of repairs of the chancel of a local parish church, several of the bench fell foul of the essentialist fallacy with respect to question of the nature of the acts which constituted the alleged human rights violation.  Having considered the functions of the Parochial Church Council, for example, Lord Hope argued that the nature of the act was that of ‘seeking to enforce a civil debt’ (para 64) which was a ‘matter of private law’ (para. 71).  In the same decision, Lord Hobhouse found that the act in question was  ‘the enforcement of a civil liability’  (para. 89).  Such liability, moreover, was one which ‘arises under private law and which is enforceable by the PCC as a civil debt’. (para. 89).  These considerations were part of the basis of the finding that the act in question was a private one which contributed to the finding that the PCC did not hold human rights obligations under s. 6.   Similarly in YL, Lord Scott, looking at the nature of the act which gave rise to the litigation against a privately owned and run care home by a resident who was being evicted, argued that:

 “the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement.  It affected no one but the parties to the agreement.  I do not see how its nature could be thought to be anything other than private.”  (para. 34).

  In the same case, Lord Neuberger found that:

“[t]he liability of Southern Cross to provide Mrs. YL with care and accommodation in the present case similarly “arises as a matter of private law“.  That is illustrated by the fact that Mrs. YL (or her relatives were) free to choose which care home she went into, and took advantage of that right by selecting a care home more expensive than Birmingham was prepared to pay for … the services provided in this case are very much of a personal nature, as well as arising pursuant to a private law contract between Southern Cross and Mrs. YL”  (para. 168).

In these examples, we can see essentialist fallacy at work.  For each of their Lordships,  the nature of the acts in question, namely the enforcement of a civil debt and a notice to terminate a contractual agreement, were governed by private law and therefore were, by implication, private acts within the meaning s .6(5).  There is therefore a loose and fluid equation of meanings of ‘privateness’ between different contexts. However no explanation or justification of what private law constitutes, nor how this matters for the determination of ‘private acts’ under s. 6(5) HRA is proffered.  It is presented as intuitive or somehow ‘self-evident’.  This is problematic as, it leads, as Lord Neuberger himself acknowledged, to circularity.  To claim, as their Lordships have done, that the enforcement of a civil debt or the enforcement of a contractual provision is inherently private and therefore a ‘private act’ under s. 6(5) is simply to beg the question.  This circularity, moreover, runs the risk of subjectivity in determining ‘privateness’ under the Act as well as, perhaps more problematically, as Neuberger noted, arbitrariness.

It could, of course, be argued that it is relatively common knowledge that contracts between private parties involving the purchase of land or a tenancy agreement are examples of private acts par excellence given that they form the core of what most people would consider private law as a field of law.  Therefore we can reason by analogy that they would fall under the definition of ‘private acts’ under s. 6(5).   However, this reasoning by analogy is not unproblematic.  Firstly, resistance to the classification of   the enforcement of a civil debt for chancel repairs as a naturally and inherently private act came from within the court itself in  Aston Cantlow.   Lord Scott, for example, argued that ‘chancel repair obligations’ in the case had an ‘unmistakable public law flavor to them’. (para. 131)  Secondly, privateness, including privateness in the law, is neither natural nor self-evident but is necessarily context dependent.  Sometimes even prima facie naturally or intuitively private branches of law such as property law can be public.  A good example of this is the US Supreme Court Case of Shelly v. Kramer (334 U.S. 1 (1948)) where the Court found that the enforcement of a racially discriminatory restrictive covenant over land – surely the most intuitively private branch of law; property law – was considered to be a public act in the form of a ‘state action’ given the fact that, in the final analysis, it was ultimately enforced by a Court, which can (and indeed in the HRA is) considered a public authority.  On this logic, then, all private law can conceptually enjoy a public character given that it will ultimately be enforced by a public body, a court.  Thus the essentialist fallacy erroneously assumes an ‘essence’ of publicness or privateness in the law which is imminently contestable.

The essentialist fallacy also conflicts with the ‘sui generis’ nature of publicness and privateness under s. 6.   Academic commentary and the Courts themselves have warned against the importation of conceptions of publicness or privateness from other areas of law into the HRA in order to determine the human rights liabilities of core and hybrid  bodies under the act.  For example,  Lord Nicholls in Aston Cantlow noted  that:

“The word “public” is a term of uncertain import, used with many different shades of meaning:  public policy, public rights of way, public property, public authority (in the Public Authorities Protection Act 1893), public nuisance, public house, public school, public company.  So in the present case the statutory context is all important.  As to that, the broad purpose sought to be achieved by section 6(1) is not in doubt.  The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatible with Convention rights.”  (para. 6, Emphasis Added).

There are numerous other admonitions, both judicial and academic, against importing conceptions of the ‘public’ from, for example, bodies subject to judicial review, ‘emanations of the state’ under EU law, The Race Relations Act 1976 or the Freedom of Information Act 2000, in order to determine the concept under s. 6 HRA.  (See generally, D. Oliver, ‘The Frontiers of the State:  Public Authorities and Public Functions Under the Human Rights Act’ (2004) Public Law, 476.) This has to do with specific purposes of the HRA itself; to ensure the enforcement of human rights ‘at home’ rather than at Strasbourg.  If this is the case, then, importing ‘naturalistic’ understandings of ‘privateness’ from personal intuition or political preference, or from designations of publicness or privateness with different taxonomic or pedagogical purposes, is particularly problematic.

So what has all of this to do with the severability thesis and the relationship between s. 6(3)(b) and s. 6(5) HRA which was the subject of the dispute between the two previous posters?  Well, if it is the case that the essentialist fallacy is to be avoided, and it is argued that there are many good reasons why it should be, we should be sensitive to the contextual nature of ‘publicness’ and ‘privateness’ under s. 6 HRA.  Avoiding the essentialist fallacy, therefore, requires recognizing that the meaning of ‘publicness’ and ‘privateness’, as Lord Nicholls above suggested, is context-dependent. These terms have no independent meaning outside of the specific legal context within which they appear. Against this backdrop, the relevant context which can give meaning to the term ‘private acts’ under s. 6(5) is that of the public function under s. 6(3)(b) pursuant to which the particular (putatively private) act was taken.  The nature of the act itself under s. 6(5), given that it is not inherently public or private, will always be conditioned by the function which governed the act.  Thus, as Elias LJ himself discovered in Weaver when attempting to apply the severability thesis, s. 6(3)(b) and s. 6(5) are relational such that the finding of a public function under the former will have a bearing on ‘privateness’ of the act under the latter. In this sense, they are two sides of the same coin.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh and a visiting Fellow at the Faculty of Law, University of Copenhagen.

   

Suggested citation: C. Mac Amhlaigh,  ‘Once More Unto the (Public/Private) Breach …:  s. 6 of the Human Rights Act 1998 and the Severability Thesis’   UK Const. L. Blog (13th December 2013) (available at http://ukconstitutionallaw.org)

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Chintan Chandrachud: Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation

 ChintanGhaidan v Godin-Mendoza remains the leading case on rights-compliant interpretation under section 3 of the UK Human Rights Act 1998. In Ghaidan, the majority on the House of Lords held that even when the meaning of a statute seems clear, courts can depart from parliamentary intention to read legislation in a European Convention-compliant manner. Lord Nicholls emphasised that ‘the particular form of words’ used would not be determinative in ascertaining whether or not section 3 could be invoked.

The Supreme Court of India, on the other hand, has been careful over the years in ascribing to itself an interpretive power which is narrower than the Ghaidan variety. The Court consistently held that it would not distort or depart from statutory language where its plain meaning was clear. Then came Namit Sharma v Union of India (which I will, for reasons that will be self evident later, refer to as Sharma I). This was a case involving a challenge to some of the provisions of the Right to Information Act 2005 – a revolutionary law that seeks to increase transparency in the functioning of public authorities. The Act provides for the appointment of central and state information commissioners to monitor compliance. It requires commissioners to be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’. The petitioner in Sharma I contended that these eligibility criteria were arbitrary and vague, and violated the right to equality under article 14 of the Constitution. In his argument, since the commissioners performed functions of a judicial nature, Parliament transgressed constitutional boundaries by failing to specify that they should possess judicial experience.

The Supreme Court’s judgment in Sharma I was remarkable. The Court considered that the provisions of the Act, as they stood, were unconstitutional. But rather than striking down the relevant provisions, it sought to interpret them so as to fall within constitutional parameters. The Court stipulated that since the commissioners performed quasi-judicial functions, they should predominantly be persons who have a judicial background and experience in adjudication. If some experts from other fields were appointed as commissioners, they should only make decisions as part of a two-member bench, along with a commissioner having judicial experience. The Act established a ‘High Powered Committee’, consisting of political leaders from the government and the opposition, for the appointment of commissioners. The Court went on to radically modify the process of appointment of commissioners, holding that since they perform quasi-judicial functions, the judiciary (more specifically, the Chief Justice of India/Chief Justice of the relevant state) should also be consulted in the appointment of commissioners with judicial experience.

This judgment clearly transgressed the dividing line between interpretation and amendment and went far beyond what even British courts, armed with the section 3 mandate, would do following the Ghaidan dictum. In Ghaidan itself, the House of Lords recognised that it would refrain from interpreting a statutory provision in a manner inconsistent with a ‘fundamental feature’ of the statute. By insisting that commissioners should consist of (and perhaps more remarkably, be appointed by) judges, the Court undermined Parliament’s intention of ensuring that a diversity of viewpoints are represented in the quest for increasing transparency and access to information. If the Court arrived at the conclusion that the absence of a robust judicial role in the composition and appointment of commissioners rendered the provisions of the Act unconstitutional, the appropriate response would have been to strike them down.

Understandably, Sharma I was received with disfavor both within the government and outside it. The government filed a petition asking the Supreme Court to reconsider its judgment, claiming that it was based on an ‘error apparent on the face of the record’. In Union of India v Namit Sharma (Sharma II), the Supreme Court agreed with the government, holding that its previous decision was an ‘encroachment’ of Parliament’s domain and ‘contrary to the principles of statutory interpretation’ recognised by the Court. So presumably, the Court hastily retreated back to its original position on interpretation.

But what was most interesting about Sharma II is the remedial path taken by the Court. Despite having similar misgivings about the eligibility requirements for commissioners as the Sharma I bench, the Court declared the relevant provisions constitutionally valid, only choosing to mention that it hoped that ‘persons with wide knowledge and experience in law will be appointed’. So why did the court refuse to invoke the power to strike down the Act? The explanation might be rooted in the nature of the strike down power. The invalidation of the relevant provisions of the Act would probably have led to the unenforceability of the entire statutory regime. How comfortable would the Court have been striking down a statute which formed part of the United Progressive Alliance government’s ‘common minimum programme’ and which was considered a hallmark of parliamentary democracy? In contrast, a British Court in the same situation would probably have made a declaration of incompatibility knowing that the statutory scheme would not be disturbed until Parliament responded. If the Supreme Court of India could issue a declaration of incompatibility, would it have done so instead of reluctantly upholding the constitutionality of the statute? Sadly, this question will remain in the realm of speculation.

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge

Suggested citation: C. Chandrachud, ‘Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org)

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Alexander Williams: The Scope of Section 6 HRA Revisited

AlexwilliamssmallAs David Mead remarks his recent UKCLG blog post on the scope of the Human Rights Act, there is ‘much more than meets the eye’ to the HRA’s hybrid public authority scheme. It is not just about the meaning of the term ‘functions of a public nature’ under s 6(3)(b). Hugely important though this issue is, its well-documented intractability may have obscured deeper issues relating to the inherent mechanics of the scheme itself. Two such issues are the meaning and scope of the notion of a private act under s 6(5) and the rights-status of hybrid public authorities when performing public as opposed to private functions. They are important not just in their own right but also as potential clues to the proper interpretation of s 6(3)(b). As I have argued elsewhere (at [2011] PL 139), it is difficult to see how judges could ever determine the scope of that provision correctly without first being clear as to how the scheme of liability it triggers actually works, and what it does to the defendants to which it applies.

Using the recent ruling of Arnold J in Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 (Ch) as a springboard, Mead offers some thoughts on each of the s 6(5) and rights-status issues. In this post I offer my own. My end point is agreement with his basic contention that Arnold J was mistaken to believe that the Olympic Delivery Authority (the ODA) enjoyed Convention rights of its own in that case. But our thinking on each point differs somewhat, as will be seen.

In ODA, in which the ODA successfully sought an injunction to prevent trespassers from unlawfully obstructing agents and contractors from entering land earmarked for Olympic development, Arnold J believed himself bound (at [24]) to balance the protesters’ rights under Arts 10 and 11 ECHR with ODA’s right to respect for property under Art 1 FP. Evidently, his Lordship therefore assumed that the ODA could not have been a ‘core’ public authority under s 6 HRA. These, of course, are obviously public bodies such as government departments, the NHS and the armed forces, all of whose activities are caught by the Convention. To be a rights-holder one must be a ‘victim’ under s 7(1) HRA, which in turn requires one to be a ‘person, non-governmental organisation or group of individuals’ under Art 34 ECHR (see s 7(7)). It is clear beyond doubt from the ruling of the House of Lords in Aston Cantlow PCC v Wallbank [2003] UKHL 37 that core public authorities, being inherently governmental, can never satisfy the victim test. This is rooted in Strasbourg’s idea that Art 34 envisages a binary, institutional distinction between the individual and the state, with the result that governmental organisations are permanently precluded from filing their own Convention claims, even if they happen to be doing so in relation to activities that would straightforwardly be regarded as private (see e.g. Ayuntamiento de Mula v Spain App no 55346/00 (ECtHR, 1 February 2001)). The idea has been criticised (by Howard Davis, at [2005] CLJ 315), but it remains the law.

Mead’s criticism of ODA is not based on the argument, easy enough to make, that the ODA is indeed a core public authority. Core public authorities are ‘selfless’ bodies created and controlled to serve the public interest over their own: see my earlier work at [2011] PL 139, 148-150. They differ fundamentally from ‘selfish’ institutionally non-state bodies, who are constitutionally allowed their own interests and motivations, whether as human beings, charities, or profit-making organisations, and who can therefore do as they wish – as Laws J emphasised in R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524 – within the confines of the law. This is evident from what has been said about core public authorities academically (by Dawn Oliver, at [2000] PL 476), and judicially (in Aston Cantlow, which drew from Oliver’s work), and also from the scope of the governmental organisation concept in Strasbourg to which the core public authority concept equates. It is clear that core public authority status would apply to the ODA, which was established under s 3 of the Olympic and Paralympic Games Act 2006 and invested with the power ‘to take any action it thinks necessary or expedient’ in order to prepare, or to make or ensure that arrangements are made for the preparation of, the London Olympics (see s 4). In exercising its functions the ODA must obey any directions given by the Secretary of State (Sch 1, para 18(1)(b)), who appoints its members and chairman following consultation with the Mayor of London (Sch 1, para 1(1)). Despite its formal status under s 3(1) as a body corporate, the ODA is evidently not a constitutionally selfish private organisation. That it must exercise its functions with regard to ‘the desirability of maximising the benefits to be derived after the London Olympics from things done in preparation for them’ (s 4(3)(a)), for instance, is a further indicator of the public-interest purpose for which it was created and is so closely central government-controlled. The ODA’s status as a core public authority is the real reason it lacks Convention rights of its own.

Mead’s criticism of ODA rests on a different argument. Seemingly troubled by the idea that the ODA might absolutely lack Convention rights as a core public authority, he appears to favour the view that it is a hybrid public authority instead: that is, a private body performing a public function under s 6(3)(b). He argues that the flaw in the judgment was Arnold J’s approach to s 6(5), however, which he claims was misconceived or at least inadequately reasoned. Section 6(5) provides that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.’ The effect, Mead reasons, is to necessitate a clear analysis of the nature of the ODA’s act when filing for an injunction: if private, then the ODA falls to be treated in that capacity like any other private individual, i.e. as enjoying its own Convention rights. Indeed, he says, this would mean that there could be no obligation on it to respect the protesters’ Convention rights either, because it would not be a hybrid public authority at all. But if the act is public, so the argument goes, then the ODA’s public-authority status remains, with the result that it loses its own Convention rights. Mead therefore envisages an all-or-nothing distinction between being a hybrid public authority and enjoying Convention rights oneself: ‘Arnold J must be wrong to assert that the rights of both [claimant and defendant] are in play – it can only be one or the other, surely?’

I begin with the rights-status issue, giving my views on the s 6(5) point below. I have argued before (at [2011] PL 139) that hybrid public authorities do not lose Convention protection when acting in their public capacities. It is possible in a given case for a hybrid both to be attacked under the Convention and to defend itself using its own Convention rights. The issue has never been judicially resolved, as Mead observes, and a handful of commentators – notably Buxton LJ, in YL v Birmingham City Council [2007] EWCA Civ 26, at [75] – have previously assumed that hybrid public authorities do indeed lack Convention protection when engaging in public activity. But under the HRA as presently drafted there is nevertheless a right answer. Whether a person can assert Convention rights under the HRA turns, as seen above, on whether Strasbourg would regard that person as a victim under Art 34 ECHR were a claim to be brought before the ECtHR in respect of the same act. What the issue therefore boils down to is the interpretation of the Strasbourg case-law on the meaning of Art 34. If a hybrid public authority is a governmental organisation under Art 34 and therefore not a victim in Strasbourg’s eyes when behaving publically, then it loses Convention protection under s 7 HRA. But if it is a victim under Art 34, then it follows that it must enjoy its own Convention rights domestically. This is apparent not just from Parliament’s clear intention to tie the standing questions under s 7 and Art 34 together, but also from the potentially very serious discrimination issue that would arise if we denied rights protection against Strasbourg’s wishes to hybrid public authorities acting in their public capacities. In Art 14 ECHR terms, it represents a classic example of denying Convention rights according to a person’s status in the domestic system. It is not a million miles, to borrow from some familiar examples, from denying Convention protection to those with red hair – or to fishing companies without the requisite number of British directors. Parliament could of course defy Strasbourg by legislating expressly for rights-stripping if it wished. But in the absence of any such move, the conclusion is irresistible: hybrid public authorities will enjoy Convention rights in their public capacities under the HRA if this is what would occur in Strasbourg under Art 34. Although I spare readers a lengthy re-rehearsal of my reasons for thinking that this would indeed occur (these can be found at [2011] PL 139, 145-154), it is certainly worth reiterating the point made above, that Strasbourg has constructed a rigid and binary institutional divide between governmental and non-governmental bodies under Art 34. A body is either governmental in nature – constitutionally ‘selfless’ – or it is not. Under no circumstances will its Art 34 status change according to the nature of the activity it performs. Governmental organisations are governmental through and through; private organisations are private through and through, and therefore enjoy Convention protection at all times. So the point I am making on the rights-status issue is this: s 6(5) is irrelevant to the capacity of a hybrid public authority to enforce its own Convention rights. If the ODA were a hybrid public authority, which I have argued anyway is not the case, then it would be entitled to its rights in whichever capacity it acted. Whether it performed public functions or was otherwise engaged in public activity when seeking to enforce those rights is not the issue.

This leads neatly, then, to the s 6(5) question – more specifically, of how the concept of a private act relates to that of a public function under s 6(3)(b). This question is by far the thornier, not helped by the absence of any ministerial comment at all on the concept of a private act as the HRA passed through Parliament. Earlier cases such as Poplar Housing v Donoghue [2001] EWCA Civ 595 tended to ignore the functions-acts distinction altogether. Ruling that a government-created registered social landlord was a hybrid public authority when providing accommodation to a tenant whom the landlord later sought to evict, the Court of Appeal (at [65]) listed a number of factors relevant to its conclusion – but made no effort whatsoever to explain whether these bore on the nature of the landlord’s function under s 6(3)(b) or its act under s 6(5). Later cases saw something of a judicial awakening in this respect, with a growing appreciation that the hybrid public authority question actually involves a two-stage test of both the function and the act (see Lord Hobhouse in Aston Cantlow and Lords Scott and Neuberger in YL v Birmingham City Council [2007] UKHL 27), but this only brought the perplexing conceptual question of how ‘functions’ and ‘acts’ differ to the fore. The Court of Appeal’s ruling in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, which concerned the status under s 6 of a registered social landlord that in contrast to Poplar had not been created by government, is an interesting case in point. It is a glorious illustration of how easy it is in this context to become engulfed by a trap with a black hole-like capacity to swallow up virtually all trace of rationality and common sense. The trap’s unsuspecting victim was Elias LJ, who seized on the functions-acts distinction and reasoned that s 6(5), not s 6(3)(b), is effectively the operative provision when it comes to determining whether a particular hybrid public authority is bound in a given instance to respect Convention rights (at [28]). Since s 6(5) has the last word on the body’s liability, and since s 6(3)(b) says nothing of which of a hybrid’s functions must be public, his Lordship took the view that Parliament really only intended to cast s 6(3)(b) in a cameo role: as long as one of a body’s functions is public, then all that matters is the nature of the act complained of under s 6(5). If this act is public, then Convention challenge against the body can lie, regardless of whether the function pursuant to which the act is performed is public or private in nature. What we have under this approach, then, is an apparent broadening of s 6(3)(b): a hybrid body with a single public function on its books could theoretically perform a private function towards the complainant but nevertheless face Convention liability because under the all-important s 6(5) it performed a public act. The effort to open up s 6(3)(b) in this way, if that was indeed the intention, is laudable enough. I am not the only author to have argued (at [2008] EHRLR 524) that the courts’ treatment of s 6(3)(b) is probably too narrow, after all. The approach has moreover been suggested before (by Jonny Landau, at [2007] PL 630). But with the greatest respect to those who are tempted by it, the approach is seriously flawed. The idea that a public act could be performed pursuant to a private function is highly dubious in any event, as Lord Collins MR observed (at [101]). Elias LJ admitted himself (at [28]) that ‘Such situations are likely to be extremely rare.’ One might argue that with a clearer impression in mind of the functions-acts distinction the approach does become tenable, but this is where Weaver becomes even more puzzling. Joined by Lord Collins (at [102]), Elias LJ took the view (at [76]) that the nature of the act under s 6(5) strongly depends upon that of the function pursuant to which it is performed anyway. Acts that are ‘so bound up with’ a public function, he believed, would be public acts. So having showered s 6(5) in roses as the real star of the s 6 show, and having admonished (at [53]) the Divisional Court for failing at first instance to spot its Hollywood potential, his Lordship was in any event forced down the very same road trodden by judges in previous cases – of having to determine the nature of the function in question, around which everything else hinges. Having concluded that the function of allocating and managing housing stock was public, Elias LJ then ruled that the act of evicting the tenant was public as well. Even if the approach is theoretically viable, therefore, it gets the courts nowhere in practice. There is no escaping the need to determine the nature of the particular function performed towards the claimant in the case at hand. Indeed, it was disagreement over the nature of the function that split the court two to one, with Rix LJ dissenting.

The foregoing, I think, exposes three things about the meaning of s 6(5). First, it attests to the sheer difficulty of attempting to pin down the abstract distinction between functions and acts. The only real judicial guidance to have been given on the functions-acts distinction is by Lord Neuberger in YL (at [130]), that ‘functions’ are less specific than ‘acts’ and that various acts may be done in the performance of a particular function, but this is probably as precise, realistically, as it could get. Second, it emphasises that s 6(3)(b) retains the lead role – even if, as I mentioned at the start of this post, it is not the only issue worth worrying about in the hybrid public authority context. This follows not just from the difficulties seen in Weaver of trying to depart from this idea, but also from the very idea of a test that assigns public status to a body according to the function that it performs. A functional categorisation like this is alien to the institutionally-focussed governmental organisation jurisprudence in Strasbourg, as I argued above, so there will be no useful steer on the acts-functions distinction from here. The same is true of the meaning of a public function for the purposes of amenability to judicial review, which constitutes the only domestic body of case-law to provide any potential guidance to the courts on which functions are public and therefore attract legal duties, like Convention obligations, that apply primarily to the state. This is a tricky area in its own right and its link to s 6(3)(b) is equally unclear. I have my own views on both issues, but here is not the place to detail them. The point is that the amenability test itself may be functionally focussed, but there is no similar functions-acts distinction here either, so the courts are unassisted by this body of law as well. Clearly s 6(5) is designed to cut down the scope of hybrid public authority liability by reference to the nature of the particular act complained of, but quite how Parliament intended this to happen is manifestly unclear. All of this militates against reading s 6 in a way that renders s 6(5) the protagonist. There is no substitute for a more precise definition of a public function, difficult though it is to define, which should be able to do the vast majority of the work of determining when a private organisation should be a hybrid liable to Convention challenge and when it should not. Third, and finally, I think the foregoing suggests that in terms of the meaning of a private act under s 6(5), Elias LJ and Lord Collins were probably correct. Although Elias LJ’s specific idea that a public act could flow from a private function is difficult to swallow, the basic idea that an act should ordinarily take the same nature as its parent function is sensible. It strikes a fair balance between giving s 6(5) some sort of role by recognising a basic functions-acts distinction, on the one hand, and bogging the courts down in an artificial, complex and technical assessment of the precise distinction between public functions and public acts, on the other. On this approach, s 6(5) would only come into play if the defendant hybrid could cast real doubt over the idea that the act complained of did in fact result from – was ‘so bound up with’ – the particular public function in question. This might be because the act was more naturally seen as resulting from a private function, or perhaps because in reality it was simply a one-off act with no parent function at all. Not all acts, of course, will have parent functions: what is the function pursuant to which a fight in the street takes place, for example? To-double lock this more minor role for s 6(5), too, the courts would obviously have to treat defendants’ attempts to make use of that provision cautiously. It should not be open to a hybrid public authority care home, for instance, to wriggle too easily out of Convention liability by claiming that the abuse by nursing staff of residents fell outside of the public function of providing care and accommodation and was therefore a private act under s 6(5). The need to avoid simply emptying out the content of s 6(3)(b) is an important reason to ensure that it plays a proper role relative to that played by s 6(5).

Dr Alexander Williams is a Lecturer in Law and Co-Director of the Human Rights Centre at the University of Durham.

Suggested citation: A. Williams, ‘The Scope of Section 6 HRA Revisited’  UK Const. L. Blog (28th October 2013) (available at http://ukconstitutionallaw.org)

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David Mead: The Continuing Mystery of “Publicness” Within Section 6 of the HRA

davidmeadGuessing that it was not on my usual diet of journals, a colleague recently suggested an article in The Conveyancer that might be of interest. Emma Lees had written an interesting piece ((2013) 77 Conv. 211) on protest occupations and actions for possession but one aspect unrelated to the main topic intrigued me more than any other. In Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 Ch, the ODA, established under s.3 of the London Olympic Games and Paralympic Games Act 2006, sought injunctions to restrain protesters from entering and/or occupying land that was being developed as part of the Olympic site. Mr Justice Arnold had held that he was required to balance the rights of the putative protesters under Articles 10 and 11 with the ODA’s rights to peaceful enjoyment of possessions under the 1st Protocol (at [24]). I’d skimmed the case last year when judgment was delivered but hadn’t really noticed the point that Emma Lees was making: that it was “somewhat surprising that [the ODA] is deemed capable also of possessing human rights” (Lees, p.215) as it is acknowledged elsewhere in the judgment as a public authority (though Lees uses the term ‘public body’).

This short post will consider this aspect of the ODA case points. It will assert that in fact that whatever type of public authority the ODA is (on which see below) on current authority Arnold J was mistaken in holding that it had any Convention rights at all to be balanced. It will branch out into a short, brief discussion of the troubling public/private narrative using the case to identify some wider conceptual or operational problems.

“PUBLIC AUTHORITIES” UNDER SECTION 6 IN OUTLINE

First, a brief outline of section 6. The proper scope of s.6 has been subject to more voluminous literature, and case-law, than any other. The state of play is fairly well settled, judicially speaking.

  1. There are two types of public authority, to which different names attach, but these are broadly speaking core and hybrid (or functional). The reason for this it seems, is that the word “includes” in s.6(3)(b) – “includes persons certain of whose functions are functions of a public nature” – must mean there are authorities not “certain” of whose functions are public but all of whose functions are public.
  2. There is no list of either – but attempts were made by Lord Nicholls in Aston Cantlow both to describe criteria by which we might identify the former and indeed to identify a small cohort of specific authorities, so we “know” it encompasses the police, the army, government departments and local authorities.
  3. Core public authorities have no “private” side – whatever they do, they are capable only of performing public functions even when, to the outside world, they are engaged in an otherwise private activity such as, for example, buying land.
  4. Core public authorities do not possess any Convention rights.
  5. Hybrid authorities on the other hand have both public and private sides, leading to the as-yet unresolved matter of what Alex Williams calls “chameleonic effect” ([2011] PL 139) – can a hybrid authority, when discharging its public functions (howsoever we might determine these) lay claim to the rights-guarantees in the HRA?
  6. Resolving the putative exposure to the s.6 duty of an alleged hybrid authority is a two-stage test, based on a close reading of s.6(3) and s.6(5). First, is this entity performing any public functions and secondly, is the act complained of one that is private (or public)?
  7. Private entities that undertake (or even assist in?) the discharge of a public authority’s public functions – such as its statutory duty to provide care and accommodation – pursuant to a contractual/commercial arrangement are not thereby and themselves transformed into public authorities, against whom victims can make direct Convention claims using s.7(1)(a).
  8. That Article 34 of the ECHR – and its definition of want counts as a victim for the purposes of lodging an application – underpins all these approaches and outcomes.

THE OLYMPIC DEVELOPMENT AUTHORITY CASE

The ODA is a statutory corporation and executive non-departmental public body (NDPB) (see The Cabinet Office Public Bodies 2012) responsible to the Department of Culture Media and Sport. Its original budget, announced in March 2007, was £9.325bn. According to the Cabinet Office, classification as an NDPB is administrative rather than legal, “a body which has a role in the process of national government but is not a government department, or part of one and therefore operates to a greater or lesser extent at arm’s length from ministers” and an executive NDPB is “typically established in statute and carrying out executive, administrative, regulatory and/or commercial functions.” It is, in the Cabinet Office scheme, at one greater remove than an executive agency. According to the ODA’s own website, its responsibilities were the “construction of venues and infrastructure for London 2012, including the Olympic Park, planning and funding transport for the Games, and regulating advertising and trading”. Its role now (until it is wound-up in 2014) is planning for, overseeing and working towards the transformation of the Olympic Village into 2,800 residential homes (East Village) an area that will include social housing, medical and educational facilities. The remaining development and regeneration of the Park and various sites is being undertaken by the London Legacy Development Corporation.

It must be beyond doubt that the ODA must be categorised as one or other of the two types of public authority. Whichever and why is not my immediate concern, though this post will address some of the matter thrown up by that distinction, for the simple reason, that on current doctrine, Arnold J took a wrong turn.

As to whether the ODA is a core authority, it is clearly not any of the four bodies named by Lord Nicholls in Aston Cantlow (see 2. above). It is clearly possible to argue that the ODA could be a body for which the UK would be directly answerable at Strasbourg, the touchstone of a body being governmental in nature and thus core. Beyond his “instinctive classification” of government departments, local authorities, police and the army, Lord Nicholls lists the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest and a statutory constitution. Yet, if it were a core authority, on current doctrine (see 4. above), the ODA would have no Convention rights to offset against those of the protesters. Either current doctrine is not as strong as we assume – but Arnold J would be bound to uphold it – or the ODA is not a core authority. Either way, and this goes for the aspect immediately below, greater explanation of his holding was needed.

The ODA may well be considered a hybrid authority, by virtue of performing some or “certain public functions” in relating to planning, development, construction of publicly-funded buildings and sites, transport coordination, security and safety (see s.6 of the 2006 Act) and its regulatory role in relation to trading, it meets the first hurdle in point 6 above – albeit that not all its functions are public. Construction and development might well be seen as private – on which see the discussion below – despite the source of capital being public: the Public Sector Funding Package for the Games as a whole was about £9bn. That being so, two further questions arise. First, does it have any rights of its own it can assert in the instant scenario as is assumed by Arnold J? Secondly, is it liable under the HRA to the protesters for any possible violations of their rights – i.e. does it owe them a duty under s.6 to act in a Convention compatible manner? This will be so if it is not acting privately”, as dictated by s.6(5). The answer to both turns on one single point: in what capacity was the ODA acting at the time? Taking the first point, if the ODA were conceived as being a private body at the time it sought the injunction – then, like any other private person, it could lay claim to its own Convention rights yet – and this seems to create an irresolvable tension – if it is so conceived, then it is not acting publicly within s.6(5) and so is under no rights-respecting duties towards the protesters or at least not directly (and Arnold J does not seem to be alluding to horizontality in his judgment). That being so, Arnold J must be wrong to assert that the rights of both are in play – it can only be on or the other, surely? The only caveat, and which in fact complicates yet more, is whether in considering whether a hybrid authority can exercise its rights, the question is whether it was performing a public function but if deciding if it is under a duty to third parties, it is the public (or private) nature of the act that is the key. This a matter that has not been before the courts for positive resolution.

Let us dissect a little more the possible nature of the act in question. Following Weaver the real question, and one that required again greater explication than a simple assertion of doctrinal truth, was to consider the nature of the act. On this, various views could have been reached. The majority in Aston Cantlow (Lord Scott dissenting on this point) conceived the case, enforcing liability for chancel repairs, as akin to enforcing liability for debt, a quintessentially private law relationship. The question in the ODA case should have been: is seeking injunctive relief in relation to the land it owns a private act? Here, Arnold J should have had to confront two linked issues arising from Weaver. First, must the act – which is alleged to be public – be one that is being done in pursuit of obviously or decidedly public functions? This is the paper clip point raised by Jonny Landau ([2007] PL 630). Here the Court of Appeal in Weaver divided but not along the lines by which it was disposed. Elias LJ holds that ([54]) “section 6 is not structured so as to ask whether the particular function in the context of which the disputed act takes place is a public function”. Lord Collins on the other hand – but also in the majority in terms of disposing of the case in favour of the applicant – held that ([95]) “it seems to me plain that the act in question must be an act in pursuance of the entity’s relevant functions of public nature.” Rix LJ dissented in the outcome but can be seen as aligned with Lord Collins, though not with such clarity. His judgment is largely aimed at demonstrating the non-public nature of the Trust, in terms both of function and the act of termination. He does confusingly conflate the two (see e.g. [147]) but at the very end of his judgment says this: “ While it is conceded by the Trust that in certain limited but irrelevant respects the Trust is a hybrid authority for the purpose of s.6(3)(b), I am sceptical how far the management of social housing can be brought within the meaning of that subsection” (my underlining). Clearly, in his mind – and more obviously in that of Lord Collins – the act at the heart of the dispute must be on done in performance of the body’s public functions. It thus might be relevant that the act at issue related to development of the land for the Games – not clearly a public function, certainly not so much as planning or transport coordination – despite being publicly funded. How we conceive the nature of acts performed by public authorities is what we turn to now.

Secondly, though this short post is not the place to seek to determine the “publicness” of either the ODA or the specific act of seeking an order enjoining trespass, Arnold J should have engaged in what we might call the conceptualisation issue. Is seeking that form of relief, since it is one we each can do should we worry about a possible trespass by a neighbour, be seen as “private” or, because it is being undertaken by a public authority (as we are assuming of the ODA) and (again let us assume) is being sought in pursuance of its public function to create an Olympic park, therefore a public act? This is really what divided the Court in Weaver, with the majority holding – after several pages of analysis of funding, the framework, public policy – that the act of terminating an assured tenancy for rent arrears was so bound up with the public function of providing social housing. To paraphrase Lord Scott’s approach in Aston Cantlow, is this simply enforcing a debt (private) or is it really enforcing a debt to ensure funds to maintain the parish church, a building of the established church and which itself serves certain public functions, such as burial and marriage? Clearly, in the ODA case, providing the Olympics and providing a venue for that event is not of the same quality as providing social housing (as in Weaver), so as to meet an identified public need. Arnold J could have reasoned this was “simply” seeking or maintaining possession so as to develop land, land that – once used – would be sold off. It would then likely have been seen as private. Alternatively, he could have decided the act of seeking an injunction to be public, inextricably linked as it was to developing the venue for the Olympics, and is thus the exercise of a statutory power in relation to land (s.3(2) of the 2006 Act) in order to achieve one of its statutory purpose, preparing or making arrangements for the preparation of the London Olympics. None of this is evident in the short judgment of Arnold J in the ODA case.

This short post has, I hope, illustrated some wider issues at the heart of s.6. I’ll conclude this post with two points. First is the difficulty of drawing precedent from an application for an interim injunction, at short notice, at which the protesting defendants were not represented. All that said, His Lordship reached a view on the status of the ODA and the applicability of the HRA to it that is, I have argued, misconceived (at best) or at least not fully reasoned and explained yet which stands as an authoritative ruling – or implicit aspect of the ratio – by the High Court. It thus shows the problems when public law or HRA issues arise in or before the common law courts or courts of chancery. It is the same, but in reverse, when issues of licences and trespass come before the magistrates or crown court when the police seek to enter property by consent, about which I have been writing over the past few years. The second is linked to that – that much is often assumed of the term “public authority”, in argument and reasoning, and it is only as we start to unpack it all a little that we can see there is, in many cases and in general, much more than meets the eye. Some of this is being resolved by the growing case law on s.6 but much is still up in the air.

One of those is, and this is the third point, the still elusive nature of “publicness” at the heart of s.6 analysis. While the two-stage approach to the question, following Weaver, is now both clearer and more in line with the statutory framework, by disgorging the function question from the act question, we are still no nearer knowing the criteria by which we might gauge the difference between “public acts” and “private acts”. It cannot simply be resolved by looking at the actor as that misses the point of the earlier disjoining of the two, conceptually. Neither can it be assessed by looking at the factors which tells us that the actor is public – who funds the activity – as these (without more) are institutionally constitutive, or of the agency, not the act. It further begs the question, as alluded to above. Do we assess it simply by considering whether this is an act that Joe Bloggs on the street could perform, along lines proposed by Dawn Oliver and, if so, then it is essentially a private act? This would leave very few acts – of hybrids at least (acts of core authorities are always public no matter how we view them) – as being public in nature. Alternatively, we could construe the act more contextually: would authority A be doing act X at all were it not for the fact that A is empowered, perhaps obliged, to perform public function Y or achieve public policy goal Z? If so, doing X might then be seen as performing a public act, if it is so intertwined, so integral to A’s “publicness” even if, if performed by you or me, we’d say it was obviously private. There are some indications in the judgment so the majority in Weaver here to assist: Elias LJ talks ([76]-[77]) of an act being “so bound up” and “acts which are necessarily involved in the regulation of the function” and, in reverse, excludes acts that are “purely incidental or supplementary to the principal function”. Lord Collins (paraphrasing [95] and [100])) put it thus: that the act must be in pursuance of, or purportedly in pursuance, or at least connected with, performance of functions of a public nature” but not all acts would be so construed: “many acts which are in pursuance of performance of functions of a public nature will be private acts.” While terminating a contract (Lord Collins) with a builder to repair one of the houses in the housing stock or (Elias LJ) with a window cleaner for the Trust’s properties would not be seen as anything other than a private act, what about the employees of hybrid authority A? Dismissing an employee for a Convention-protected reason, simply because it is the exercise of a contractual right is not per se a private act as that would “significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities” (Elias LJ in Weaver at [77]). Clearly employing staff to perform the authority’s duties or role is not as wrapped up in its public functions as the termination of a tenancy in Weaver – it is one stage removed at least. We could say though that employee X would not have been employed had authority A not had to perform public function task Y – the regulatory duties say of the Environment Agency but does this not risk differential protection for those employees who perform its non-public functions, conducting research into climate change? This is problematic and we await more detailed clarification rather than, as in the ODA case, simple assumption.

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead ‘The Continuing Mystery of “Publicness” Within Section 6 of the HRA’ UK Const. L. Blog (17th October 2013) (available at http://ukconstitutionallaw.org)

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Anthony Bradley: A Review of Jack Straw’s Hamlyn Lectures: Aspects of Law Reform: An Insider’s Perspective

abradleyAs the lecturer disarmingly tells us at the outset of the Hamlyn Lectures for 2012 Hamlyn Lectures for 2012, the illustrious procession of Hamlyn lecturers since 1949 (Lord Denning) through to 2011 (Jeremy Waldron) has ‘without exception’ comprised ‘lawyers distinguished by their practice, their academic study or both’.  Jack Straw is an exception.  Since an LLB at Leeds and two years at the criminal bar, he has made his career in politics – holding glittering ministerial office, throughout the Blair-Brown years, as Home Secretary, Foreign Secretary, leader of the Commons, and Lord Chancellor.

Straw has always been interested in ‘the interaction of the work of our courts with the processes of government and the body politic’ and the lectures concern three areas in which Straw could draw on his own experiences.  Despite the responsibility that he had while a minister for ‘an extensive legislative programme’, Straw does not deal with the process of law reform or the machinery of legislation, but with three aspects of the legal system.

The first lecture, ‘The future of the criminal courts’, highlights changes in criminal justice since 1964.  These include greater legalization of policing, thanks in part to PACE and the creation of the Crown Prosecution Service, improved confidence in police integrity (Straw appointed the Stephen Lawrence inquiry), the impact of new technologies, and an improved relationship between senior judges, government and Parliament. (Straw does not claim credit, as he could have done, for his role as Lord Chancellor in the task of bridge-building between government and judiciary that was needed after this relationship reached its nadir during Lord Falconer’s tenure of the post.)  Straw asserts that the criminal justice system is now ‘more effective, more professional, more replete with integrity and more focused on the needs of victims’ than at any other point in his lifetime – but the programme of reform is ‘far from at an end’.

Those who are sceptical about these conclusions will find the third lecture (on appointing the judges) less controversial.  Straw develops two topics: the need to modify the system for appointments established in 2005 (by, among other things, sharpening up the roles of the Lord Chancellor and the Lord Chief Justice), and the need for a more diverse judiciary.  But it is the second lecture, ‘The Human Rights Act and Europe’, that many readers of this blog will read most closely.

As in his memoirs,  Straw describes the happy ‘conception, birth and childhood’ of the Human Rights Act 1998 (Lord Irvine was the bill’s midwife in the Lords; Straw its midwife in the Commons).  He emphasizes the value of the preparation done before the election in 1997, by the joint Labour/ Lib Dem working party among others, especially on the issue of how to incorporate the ECHR alongside the ‘elephant in the room’ of parliamentary sovereignty.   “The result was an Act which was elegantly drafted, and which has met the test of time.  The Act has been a success.” (p 29)

Straw insists that the Act is here to stay.  But, while praising the quality of the senior British judges, he strongly endorses Lord Irvine’s criticism  of the judges for failing to understand the clear words of section 2, HRA: those words (‘must take into account’) were  ‘chosen with care’ and support neither the ‘mirror principle’ nor any suggestion that British judges are duty bound to follow Strasbourg jurisprudence.

Straw puts the blame for current political hostility to European human rights on the ‘ever-expanding remit of the Strasbourg Court for which it has no mandate’.   He argues that, while British courts have for centuries ‘sought to defend the individual against the arbitrary or oppressive power of the state’, and may make decisions that are inconvenient to the executive, Parliament retains the authority to legislate in breach of fundamental rights.  “If Parliament holds its ground, it wins, always.” (p 38)  But such an extreme position is seldom reached because British courts ‘have an intimate understanding of the cultural and political norms within which they operate’.  And the political class is sometimes ‘willing, praying, that the courts will act where they fear to tread’ (the example given is development of the law of privacy).

By contrast, the Strasbourg court ‘has set itself up as Supreme Court for Europe, and one with an ever-expanding remit’.  Straw attacks the principle that the ECHR is a ‘living instrument’, claiming that this lacks any valid basis. He accepts that there is authority in the Convention for the Court to have ‘the role of protecting basic human rights’ (emphasis supplied), but agrees with Lord Hoffmann that basic human rights cannot be stretched to include ‘detailed interpretation of the right to silence, the hearsay rule and – most preposterous of all – night flights at Heathrow airport’.  And he highlights the issue of prisoners’ voting, on which there is ‘absolutely no doubt’ that it is the will of the British people that convicted prisoners should not be able to vote.

Straw develops two further arguments.  The first (linked with an attack on the court for attempting to impose uniformity in human rights across Europe) records disappointment that the HRA has not had the hoped-for effect of expanding the ‘margin of appreciation’ that Strasbourg should allow for national practice in dealing with ‘wider human rights beyond those basic ones whose protection was the purpose of the treaties’ (emphasis supplied).

The second argument is that, unlike most national constitutions, where decisions of a supreme court are subject to a democratic override (whether by special legislative process or constitutional amendment), there is no procedure in the Convention for enabling decisions of the Strasbourg court to be subject to international legislative process.  The view that there is a ‘democratic deficit’ in the Convention system is indeed held by others in Europe.[1]   One answer to this, as Straw points out, lies in the Convention machinery for implementing decisions of the court, which is primarily a matter for political action within the Council of Europe.  But Straw does not accept that this redresses the imbalance in the Convention system and warns that the pride of the court may go before a fall.

There is of course scope for challenging the legitimacy of the court (and indeed of any court that has to hold the ring between legislative decisions and minority rights), but our national sensitivities need to be seen in the light of the case for an understanding of Europe based on a shared value of human rights.  As the Hungarian judge at Strasbourg, András Sajó, has said, the historic belief in shared rights ‘is a self-imposed vision of the member States and not an elitist view from the Court at Strasbourg’.[2]  I welcome the continuing support that Straw gives to the HRA, but I would insist, with Sajó, that the features of the Strasbourg court that Straw now blames for the current discontents were all present and clearly visible in 1997.   

Anthony Bradley is Research Fellow at the Institute of European and Comparative Law. University of Oxford, and is formerly a vice-president of the International Association of Constitutional Law.

 This is a review of Jack Straw, Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press: 2013).

 Suggested citation: A. Bradley, ‘A Review of J. Straw, Aspects of Law Reform: An Insiders Perspective’ UK Const. L. Blog (7th October 2013) (available at http://ukconstitutionallaw.org)

[1]           For a recent collection of papers that inter alia discuss this view, see S Flogaitis, T Zwart and J Fraser (eds) The European Court of Human Rights and its Discontents : Turning Criticism into Strength  (Edward Elgar, 2013).

[2]           A Sajó, in Flogaitis, Zwart and Fraser (above), page 186.

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David Mead: Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education

davidmeadFloundering for an angle as a member of a panel looking at the way forward after the Bill of Rights Commission report (organised by the Human Rights Centre at Durham), I latched onto issues relating to effective protection and promoting a positive human rights culture. This post is on one aspect of that, something that must surely be at the heart of any sensible state strategy for delivering and promoting human rights: civic education and engagement. More specifically, I was interested in finding out about “Citizenship” lessons within secondary schools – with a personal interest as well. My son is in his first year at secondary school (Year 7) and my daughter will join him in September. Like many, I imagine, I knew of “Citizenship” classes  – that it was, or felt sure it was, part of the curriculum for 11-16 year olds… yet one year in, I was also fairly sure I had never seen any “Citizenship” homework nor even seen it feature on my son’s delightfully multi-coloured fortnightly planner. So, I set to work. This post is the result of some of those investigations.

Chapter 10 of the Commission’s report  “Promoting a better understanding of the UK’s obligations” is, at just over two pages, its shortest chapter. This is slightly strange given one key factor behind the majority’s call for a British Bill of Rights is the perceived lack of ownership. Of about 3000 or so responses to both consultations (of which about 1800 were postcard replies from two human rights NGOs), fewer than 20 made submissions specifically about that aspect of the Commission’s terms of reference, though about 100 more made similar calls for better public education to correct misperceptions about the HRA and the ECHR. More than half of these advocated more educational programmes, both for UK society generally and schoolchildren, and in a number of cases argued the need for access to sources of accurate, unbiased information to balance what they believed to be the myths surrounding the HRA. In that light, the Commission’s conclusion here represents a wholesale failure to address the issue at all – even if one raised only by a minority of respondents.

 We consider that the major contribution which we can make to this aspect of our terms of reference is our report itself, together with its annexes and the detailed responses to our consultations, which are available on the Commission’s website. In drafting the report we have been conscious of the need to make it as accessible as possible. We hope that anyone reading the report, who is not already expert in the subject matter which it covers, will at the very least gain a better understanding of the historical background and of the issues and arguments that give rise to a wide range of different views today.

The notion that the state has some sort of ongoing positive obligation to educate its citizens about the rights they are entitled to, to inculcate a sense of ownership and to instil the values of that state’s bill of rights is the Commission’s dog that didn’t bark. On the basis that there will be no change in this area at least, what can we expect our fellow citizens to know about how their rights are protected in the UK as a result of their formal education?

Citizenship was introduced into the secondary school curriculum in 1990. It became a formal statutory foundation subject in England in 2002, following the report of the Citizenship Advisory Group (the Crick report) in 1998, driven forward by David Blunkett when he was Secretary of State. In the remainder of the UK, “citizenship” remains a non-statutory subject (in Scotland, this applies to the whole curriculum, not just citizenship) and is generally not taught as a separate topic. The UK was one of the last western democracies to include “citizenship”, or something similar, in the formal curriculum (Spain was later, in 2006). By way of contrast, there have been elements of citizenship in the Lebanese curriculum since 1946 – albeit on differently constructed notions of “citizenship”.

In England, at key stage 3 (11-14) it is a foundation subject, along with all the others; for key stage 4 (14-16 or GCSE) it is foundation, alongside only ICT and PE – with maths, English and science as core – meaning there is a statutory programme of study up to school-leaving age at 16. To that extent it seems better positioned than say modern foreign languages (MFL) or humanities where schools need only offer one of e.g. history or geography. It is said to be the fastest growing GCSE subject, with some 100,000 estimated annually to have take it in the last couple of years. The secondary curriculum in England (i.e. both KS3 and KS4), revised after five years of operation in 2007 and with a planned revision – alongside all GCSE and secondary subjects from 2014 onwards – identifies three key substantive concepts: democracy & justice; identity & diversity; and rights & responsibilities. There is an interesting longitudinal study 2001-2010 on the effects of citizenship education conducted by the National Foundation for Educational Research available here indicating inter alia that political participation and likely future participation increase with age for those who have taken or studied citizenship.

In the remainder of this post, I will explore some concerns with how citizenship is taught – largely in England – focusing on the extent to which it provides pupils with a framework for understanding how rights are protected in the UK. Knowing that it has been a compulsory topic in secondary schools all the time I have been teaching Public Law to 1st years, it has always been a source of bewilderment why so few students had any idea of the Human Rights Act. What follows might explain to other puzzled Public Law lecturers why that is the case. Of course, one immediate problem is that Citizenship is a required subject only at maintained, state schools. Academies are not bound by the national curriculum – that is one of their USPs to potential parents and possible teachers – and so as they proliferate, we will likely see fewer pupils leaving school at 16 with any understanding of their human rights.

First, although conferring on it foundation subject status at KS3 had all-party support, the difference between citizenship and say geography, history, music or art – on which it is on ostensibly even terms – is that only citizenship was introduced with a “light touch”. The curriculum provides, at best, a framework; there is no minimum weekly contact requirement, as there is for PE. Evidence is that very few have a dedicated hour per week; most schools seem either to “drip” it into other subjects such as Personal, Social and Health Education (PSHE), as at my son’s school (or in RE where this week he has been looking at the UDHR), or to provide concentrated “enrichment days” once or twice per term. In Scotland, by contrast, (with its eight curriculum areas), citizenship – or more accurately global citizenship – is avowedly cross-curricular, so there is a clear and concerted objective, led from the top, that elements of it infiltrate the whole curriculum. That does not seem to be the case in England. There is little or no sense in which pupils understand they are being taught “citizenship”; it does not feature as a named topic on my son’s timetable and nor is there anyone on the staff who is named as the contact, and his most recent school report made no mention of anything even approaching it, and this at a state secondary school rated “outstanding” by OFSTED in its last two inspections. My very small sample of friends’ children at different state schools and friends who are state schoolteachers told a very similar tale. One – just about to embark on GCSEs – said “no, never heard of it”, despite the fact (see above) it is one of very few foundation requirements, and another thought they’d done something about voting in PSHE. As with all subjects, provision is patchy but at least those taking geography know they’re studying geography – and, broadly, most of us know what that involves:  ox bow lakes and Cornish tin mining unless matters have moved on progressively since 1981! “Citizenship” is not only a fairly indeterminate title but when mixed with sex education and basic financial literacy, it seems fairly likely the immediacy and relevance of a domestic bill of rights – to the life of an ordinary 14 year old – is a little lost, or relegated.

Resources are limited, scarce even. Those I have spoken to at the Association for Teaching Citizenship report that only somewhere between 200-250 teachers undertake PCGE or similar training in Citizenship in any one year (and on specialist provision of courses, see OFSTED “Professional Development for Citizenship Teachers and Leaders”, 2009). That’s out of about 26,000 in total on PGCE courses, though admittedly that figure is for both secondary and primary school. In most, certainly many schools, teaching is likely to fall on those perceived to have the closest connection to the subject (at best) – those with politics degrees or who teach politics at GCSE – and (at worst) on those who take other subjects with low take-up, and who need hours to be filled. For those teachers keen to devise lessons – perhaps just to find out what the topic embraces, it having been landed on them in June for the next September – and looking for external support, there is remarkably little on the discrete area of British human rights. “Right here, right now” is a 2009 collaboration between Amnesty and the BIHR and the DCFS and MoJ – and for KS3 only, i.e. 11-14 year olds – but that is basically the limit. The materials at The Citizenship Foundation, partly funded by the Law Society and partly by the Cabinet Office’s Office for Civil Society (part of the Big Society idea), has little of relevance to the study of human rights under the HRA. There is, for example, on its website a useful short guide entitled “HUMAN RIGHTS ImpACT” but it dates from 1998, as the HRA was making its way through Parliament. There has been very little direct government support, financial or otherwise, since the financial crash of 2008 when – I was told – the Ministry of Justice School’s team was dismantled. A search (on 17th June) for any publications using the term “citizenship” on www.gov.uk against the MoJ produced no hits whatever. Neither do any of the various organisations within the Ministry of Justice indicate anything even vaguely connected with education or schools, let alone citizenship – despite its responsibility at a political level for almost the whole of what the curriculum covers.

This contributes to a third problem: the skew of materials, and teaching, is towards international human rights. The gap in resources has been filled by groups such as Amnesty; the evidence I have seen is that sessions on child soldiers, child labour, international humanitarian law or on terrorism – as examples of human rights “in action” tend to proliferate. The first two of course are understandable, given the likely sympathies and empathies that secondary school pupils would have. The last really does amplify the risk of normalising exceptionalism at the cost of the commonplace. What it means is that a 14 year old in Hackney is more likely to know about international norms and standards during wartime – even if not in those terms – and UN-inspired provisions than they are about civil and political rights generated closer to home and of more obvious everyday resonance. This gap is even more evident outside England. In Wales, there is no separate subject of Citizenship – many of its elements are subsumed within Personal and Social Education, not part of the national curriculum but within the school curriculum. The framework or guidance on PSE for 7 – 19 year olds makes not one mention of the HRA for KS 3 and KS4. The scope of rights is limited to the UN Convention on the Rights of the Child and on the Universal Declaration. In Scotland, the curriculum is organised around four “capacities” – including responsible citizenship – and citizenship is cross-curricular but, again, there is nothing on domestic or European human rights, or the HRA, bar a single page on the wider topic of political literacy.

The last concern is in many ways the most worrying of all, that of the content – and the misunderstandings it positively engenders and reinforces. The explanatory notes accompanying the current KS4 curriculum, when referring to human rights, assert that “students should explore the roles of the United Nations and the European Union in securing human rights”. There seems little hope of avoiding the “all European together” assemblage, whether deliberately constructed or not by The Daily Mail, if teachers – and then their students – are not taught the difference between the different types of Europe. It became clear, during the consultation just ended, that Citizenship was not going to be downgraded within the curriculum – it will retain its compulsory status. This was met with relief by teachers’ groups. However, for those interested in citizenship as a means of embedding a rights-respecting culture and of laying the bedrock for promoting a better understanding of the issues stand to be disappointed. After its implementation in 2014, if the consultation portends anything (see National Curriculum Framework pp.149 available here), there will be a clear shift away from the concept of “rights”. The draft curriculum upholds the “democracy & justice” strand but seems to eliminate entirely the idea of (human) rights. The draft sets out the purpose of a high quality citizenship education as being

to provide pupils with knowledge, skills and understanding to prepare them to play a full and active part in society. In particular, citizenship education should foster pupils’ keen awareness of how the United Kingdom is governed and how its laws are made and upheld. It should also prepare pupils to take their place in society as responsible citizens by providing them with the skills and knowledge to manage their money well and make sound financial decisions.

Furthermore, they should be taught about “the precious liberties enjoyed by the citizens of the United Kingdom”. The very rejection of any notion of positive rights, obligations owed by the state – and needing justification for any intrusion – might be seen as laying the ground for a reversion to common law Diceyan residualism That would dovetail with where we came in, the future of a British Bill of Rights. If Citizenship teaching is anything to go by, we should be very wary about what might happen when, in Mark Elliott’s words, the Commission’s report does, eventually, leave the political long grass.

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead ‘Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education’  UK Const. L. Blog (18th June 2013) (available at http://ukconstitutionallaw.org)

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Helen Fenwick: Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights

helen1There has been a lot of commentary on the Report of the Bill of Rights’ Commission, and the ‘damp squib’ analysis of the Report (see Mark Elliott) as a whole is one most commentators appear to assent to (see eg Joshua Rozenberg for the Guardian here). My view in general is that the squib could reignite post-2015 if a Conservative government is elected, not in relation to the very hesitant ideas as to the possible future content of a Bill of Rights that the Report put forward, but in relation to its majority recommendation that there should be one (see further my previous post on the Commission Report here). If a BoR was to emerge under a Conservative government post-2015 I suggest that it would reflect the ideas of the Conservative nominees on the Commission which assumed a far more concrete form in the Report than the majority recommendations did (eg see here at p 192). This blog post due to its length is not intended to examine the probable nature of such a BoR based on those ideas in general, but to focus only on two aspects: the idea of curtailing the effects of an equivalent to Article 8 ECHR (right to respect for private and family life), and of requiring domestic courts to disapply Strasbourg jurisprudence under a BoR in a wider range of situations than at present under s2HRA (see Roger Masterman’s post on s2 on this blog here). In respect of the latter issue the potential impact of so doing will only be linked to selected aspects of Article 8 jurisprudence of especial actual and potential benefit to women.

Why concentrate on women as opposed to persons in general attempting to assert private or family rights against the state or non-state actors? That choice is partly due to the implications of EM (Lebanon) v SSHD in which the effect of deportation on the family life of a woman was found to be capable of creating a “flagrant breach” of Article 8. EM argued that such a breach would be created on the basis that shari’a law as applied to her in Lebanon would automatically grant custody of her child to the father, regardless of the child’s best interests, destroying the family life she enjoyed with her child. The basis for that finding is discussed further below. The successful claim in EM demonstrates that Article 8 can be deployed to prevent deportation to face specific instances of state-sponsored gender-based discrimination despite its apparently gender-neutral nature. The decision also led to an increased reliance on Article 8 in cases involving the deportation of parents; in that sense it lies behind the ‘attack’ on Article 8 by Martin Howe in the BoR Commission Report, in the Immigration Bill currently before Parliament, and by Dominic Grieve in 2010 (see my article, 2012 Public Law). Article 8 is concentrated on also because due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women (see further below), and unlike Article 14, which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights (Cam: CUP, 2006) Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Limiting the effects of a right to respect for private and family life in a BoR

In his separate paper in the Commission Report (A UK Bill of Rights) Martin Howe proposed limiting the effect of an equivalent of Article 8 in a new BoR by means of an accompanying clause. The clause would be to the effect that if legislation was passed determining the balance between respect for private life and various public interests, then the courts would not be able to give greater protection to privacy via the Article 8 equivalent than the legislation gave it. Such a clause would obviously be controversial since it would appear to oppose the principle generally underlying Bills of Rights – to protect persons against legislative power, thus countering majoritarianism. It would also attack the notion of universalism underlying Bills of Rights if the clause was aimed in part, which seems to be the intention, at limiting the privacy rights of non-nationals. It would disturb the carefully crafted compromise between Parliamentary sovereignty and protection for rights enshrined in the Human Rights Act, since in relation to this particular guarantee, Parliament would set out its limits in particular pieces of legislation, which would therefore be protected from the effects of mechanisms in a BoR equivalent to those of ss3, and 4 HRA – or at least such would be the intention. Thus, action by public authorities via an equivalent to s6 HRA infringing internationally recognised standards of respect for private life could be enabled by the clause, avoiding the possibility that once the legislation in question had been reinterpreted under an equivalent to s3 HRA, that would be found not to be required. Obviously this possibility raises many questions which cannot be addressed here regarding the appropriate separation of powers between judiciary and legislature and of the possible relationship between various parts of a BoR and the clause itself.

Such a clause as proposed by Howe could be deployed to limit the current impact of Article 8 in deportation decisions. Dominic Grieve has seen the decision in EM (Lebanon) as one that has resulted from a judicial desire to shadow Strasbourg under the HRA and go beyond Strasbourg (‘Proposals for a British Bill of Rights’ 8th March 2010 British Academy AHRC Forum). He had already indicated that this is a problem that he sees as one that could be remedied under a BoR (on conservativehome blog). Howe appeared to have in mind the case of SSHD v Respondent which concerned an Iraqi asylum-seeker, Aso Mohammed Ibrahim, who had brought about the death of a child, Amy Houston, in a driving accident, and fled the scene. He should have been deported previously, in November 2002, once his asylum application had failed but there were delays, meaning that he obtained a chance to establish family life in the UK (see comment here). An immigration tribunal later refused the application to deport him on the basis of his right to respect for his family life under Article 8 ECHR, a decision upheld on appeal (SSHD v Respondent). In a letter to the father of the girl in January 2010, Cameron promised that a future Conservative government would repeal the HRA, which he held responsible for the decision (reported in the Guardian). When the Court of Appeal refused leave to appeal the decision, the Immigration Minister Damian Green said “I will be raising the wider issues highlighted by this tragic case with the Justice Secretary for consideration by the commission on UK human rights law which the Government will be establishing later this year” (see BBC report). In October 2011 Grieve said: We think that the domestic courts have placed too much weight on the family rights of foreign criminals and we intend to redress the balance in the Immigration Rules (speech at Lincoln’s Inn, see transcript).

Theresa May recently said in the Mail on Sunday that new guidance approved by Parliament for judges had made it clear that a foreign criminal’s Article 8 right to a family life had limits, but she accused the judges of ignoring them. She said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported so that Article 8 could apply to block deportation only exceptionally. The amended Immigration Rules set out an extensive, framework providing a definition of the Article 8 balancing factors, but in Izuazu (Article 8 – new rules) Nigeria the Upper Tribunal found that the new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8. In the recent Queen’s Speech the government promised to “give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases”. In other words, the government intends to use primary legislation based on the Rules to change the weight given to the public interest under Article 8(2) when balanced against the rights of the individual in immigration cases under Article 8(1), “to limit the use of Article 8” (Adam Wagner in the New Statesman, and Mark Elliott on the UK Human Rights blog). A clause in a BoR expressly limiting the effect of a right of respect to private and family life would clearly appear to bolster such a change, as could the changes to the s2HRA equivalent put forward by Conservative nominees on the Bill of Rights Commission, considered below.

If a clause on the lines proposed by Howe was introduced in a new BoR it would protect provisions of the Immigration Bill intended to prevent judges from relying on Article 8 in relation to the deportation of non-nationals who have committed offences in the UK, but who may claim that respect for their family life under Article 8 will be breached if they are deported. But Howe’s clause would also apply to any future legislation that sought to make itself ‘Article 8-proof’. In other words, any legislation passed in order to limit the effect of an Article 8 equivalent in a BoR would, under a clause similar to the one proposed by Howe, prevent courts taking a more expansive view of the application of the Article 8 equivalent than the legislation itself allowed. The attempt to re-balance rights, downgrading Article 8 in relation to Article 10, in the HRA s12(4), signally failed (see for example Lord Justice Sedley in Douglas v Hello; Campbell v MGN). However, s12(4) did not direct judges to pay attention to the scope of Article 8 or 10 as delimited by specific pieces of legislation; further, had s12(4) been taken literally it would have conflicted with a well-established strand of Strasbourg jurisprudence which does not give Article 10 presumptive priority over Article 8 (see eg Von Hannover).

Further limiting clauses might be needed. The equivalent of Article 3 would also support recognition of positive obligations, including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands). But a statute finding that an Article 8 equivalent could not be engaged in relation to a particular set of facts could also be interpreted to mean that the pathway to Article 14 was blocked. Further, even if a Conservative BoR was introduced limiting the impact of Article 8, challenges could still be brought at Strasbourg unless the UK withdrew from the Convention (recently raised as a possibility by Theresa May (BBC News), but domestically the possibilities discussed below of reliance on Article 8 could potentially be stifled, depending of course on the nature of the legislation that was introduced.

Evading Strasbourg jurisprudence under a BoR

While the government is bound under Article 46 ECHR to comply with the final decisions of the Court, as a matter of international law, the executive might well prefer to delay and procrastinate in response, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might. Or a decision might be viewed as non-dispositive in a UK setting due to its fact-sensitivity. That tendency is evident in the Conservative predilection for proposing changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, possibly partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty.

There are signs that senior Conservatives prior to the 2010 election intended to use the BoR to seek to sever or weaken the connection with Strasbourg created by the HRA, s.2.  Dominic Grieve has argued that the HRA has been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended” (Telegraph). Instead, he said, a new BoR would make it clear that British courts could allow for UK common law to take precedence over decisions by the European Court of Human Rights in Strasbourg (Equality and Human Rights Commission).  Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. In his separate paper in the Commission Report (here at p 257), Mechanisms of a UK Bill of Rights, A Speaight recommended change to the formula of s2, echoing Grieve. He did not consider that s2 should be retained in its current form since he wanted to ensure that Strasbourg jurisprudence could not be treated as binding. Therefore he did not consider that the words ‘take into account’ in s2 should be retained – since so doing might still lead judges to come close at times to following Strasbourg. Martin Howe in his paper stated that he agreed with Speaight’s proposals as regards the s2 mechanism.

Introducing a BoR with a clause directing judges to limit the impact of an Article 8 equivalent as determined by any particular piece of legislation might place them in a dilemma if they did not find themselves within a recognised current exception to the Ullah principle as regards applicable, determinative Strasbourg Article 8 jurisprudence. Thus also directing the judges to disregard such jurisprudence might appear to be necessary to safeguard such a clause.

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking it might be argued that the ECHR in general has little to offer women (see for discussion Grabham and Hunter ‘Encountering Human Rights’) due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer Documenting women’s rights violations by non-state actors), human rights principles can be used as a campaign tool in influencing and mobilizing public and community opinion, and the use of campaigning methods by feminist advocacy groups as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk, by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

The possibility of using a BoR to limit the effect of a guarantee of respect for private and family life, combined with a degree of decoupling from the Strasbourg jurisprudence, could have various adverse effects which have been considered elsewhere; this blog’s concern is with the possibility that developing opportunities to safeguard and advance women’s interests using Article 8 ECHR might be stifled. So it proceeds to ask – in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list; also each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law, so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). As the Lords found, under shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and AF’s (her son’s) right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

Domestic violence – requirement of effective investigations and prevention

Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a “private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and therefore in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that while the authorities took some steps to protect the first applicant from her violent husband, A, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

Recently in the UK the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend Marc Chivers (see main findings here). Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence (see eg this recent report in the Guardian). Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8,2,3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Conclusions

This blog has suggested that limiting the effects of a guarantee of respect for private and family life in a BoR, combined with seeking to create departure from relevant Strasbourg jurisprudence, could in future stifle the impact of nascent developments in human rights principles under Article 8 ECHR that reduce gender-based harm to women. So doing could also potentially derail the effect of Article 8 in domestic Constitutional terms, given that the UK has a good record on procedural propriety but traditionally a poor one on privacy. Clearly, such an attempt might fail: the fact that judges were operating under an instrument termed a BoR might encourage an activist approach that sought to circumvent attempts at giving the ‘public interest’ the opportunity to negate a right in certain circumstances – the converse of the Strasbourg approach. Nevertheless, it is worth drawing attention to Howe’s proposed clause, and to the general interest shown by senior Conservatives in minimising the guarantee of respect for private life.

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights ‘  UK Const. L. Blog (5th June 2013) (available at http://ukconstitutionallaw.org)

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