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Comment :
Human Rights "An abuse of common sense"

(July 2006)

Nicholas Holden, a chairman of the Adjudication Panel for England, and lecturer at the University of the West of England offers some thoughts and friendly guidance on how tribunals should address human rights issues.

"It's not an abuse of justice for us to order their deportation, it's an abuse of common sense frankly to be in a position where we can't do this." These are the words of Tony Blair in response to Sullivan J's decision in May that the Afghans who hijacked an airplane in 2000 should be allowed to stay in Britain. Sullivan J cannot have been unaware of the furor that would follow his decision and got his retaliation in first. Sullivan J said: "It is difficult to conceive of a clearer case of 'conspicuous unfairness amounting to an abuse of power'. Lest there be any misunderstanding, the issue in this case is not whether the executive should take action to discourage hijacking, but whether the executive should be required to take such action within the law as laid down by Parliament and the courts."

The government's response is as much about politics as law and inevitably the government has appealed. Thus we shall have to wait for the Court of Appeal's, or more likely the House of Lords', decision to know if Sullivan J will have the last laugh (not that judges laugh – lest any of you have such inclination in your role as tribunal member).

Well at least this case smacks of what human rights is about - the right to life -but much of the time the subject matter is far removed from such basic considerations, for example, whether Ken Livingston's human rights are relevant to a terse exchange with an Evening Standard journalist. We will have to wait and see how Ken fares as a decision of the Adjudication Panel for England that he had breached the local government code of conduct is now with the High Court.

"Is this what the Act was meant for?" This question must have occurred to courts and tribunals on many occasions since the coming into force of the Human Rights Act 1998. A Westlaw search against the Act in March 2006 produced a list of 4,459 cases citing the Act. Compare that to research carried out in 1996 which found that the European Convention on Human Rights had been referred to in 316 cases between 1975 and 1996 but had influenced the outcome in only 16. Most of us probably had not realised that human rights abuse was now so rampant in the United Kingdom! However, it does make clear that human rights is a growth area.

Against this background the words of Swinton Thomas LJ in R v Perry (Stephen Arthur) Times, April 28, 2000, spoken shortly before the Human Rights Act 1998 came into force, appear to have been a naive plea for lawyers to keep a sense of proportion. He said:

"The purpose underlying the Act is to protect citizens from a true abuse of human rights. If, ... it is utilised by lawyers to jump on a bandwagon and to attempt to suggest that there has been a breach of the Act or of the Convention when either it is quite plain that there has not or alternatively the matter is amply covered by domestic law, then not only will the lawyers, but the Act itself (which is capable of doing a great deal of good to the citizens of this country) will be brought into disrepute."

A Trump Card

The attraction of human rights challenges is that they are a trump card that can allow those in the grip of the law to escape in a single bound. From the Chair of a tribunal's point of view it is clear that human rights challenges can appear in the most humdrum cases and with little warning. As Lord Denning observed in relation to an earlier invasion of European law "the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute." (HP Bulmer Ltd v Bollinger SA [1974] Ch 401, at 418.) The difference this time is that even statute law is not safe from the incoming tide of human rights.

The Context

There is an inherent complexity to human rights challenges as they involve concepts and courts literally foreign to our own jurisdiction and our legal education. It is a chameleon in that the Convention is a "living instrument" (Societe Colas Est v France (37971/97) (2004) 39 E.H.R.R. 17) and thus to be interpreted in the light of present day conditions. Judgments of the type required by several of the articles as to what "is necessary in a democratic society" are policy questions which the common law would consider more the business of Parliament, than the courts.

It is the flexibility of human rights that makes it so potent as it does not respect legal boundaries or ultimately the sanctity of statute. Thus it can be adapted and argued to be relevant to most situations. So it may be a question of whether a prohibition on wearing trousers was an undue interference with a worker's freedom of expression under Article 10 (it was according to the Employment Tribunal in Moran v RBR International Ltd ((2000) 2302546/00 London South ET), whether the right of a school girl to manifest her religion under Article 9 was interfered with by refusing to allow her to wear a jilbab (on the facts it was not - R (Begum) v Denbigh High School [2006] UKHL 15) or whether Ken being sanctioned for giving a journalist a piece of his mind interfered with his human rights (we will have to wait and see what the High Court decides) in all these cases human rights are in play.

Let's get our feet wet

What follows is intended to help tribunal chairs to structure their thoughts, decisions and statements when faced with human rights challenges.

A tribunal is defined by s.21(1) of the Human Rights Act 1998 as 'any tribunal in which legal proceedings may be brought.' The word has been given a wide meaning by the European Court of Human Rights and it appears that a body which carries out largely administrative functions is capable of being a tribunal. Thus the disciplinary function of a prison Board of Visitors was a tribunal (Campbell v United Kingdom (A/80) (1985) 7 E.H.R.R. 165).

Applying primary legislation

  1. So far as possible, primary legislation must be read and given effect in a way which is compatible with Convention rights (s 3(1)).
  2. The requirement applies to all primary legislation whenever passed.
  3. The word 'possible' is a stronger requirement than 'reasonable'.
    • "If we had used the word 'reasonable' we would have created a subjective test. 'Possible' is different. It means, 'What is the possible interpretation? Let us look at this set of words and possible interpretations'. (Home Sec, HC Debs, vol 313 col 421-422, 3 June 1998 – resisting an amendment to replace 'possible' with 'reasonable'.)
    • AND
    • "We want the courts to strive to find an interpretation of the legislation which is consistent with Convention rights as far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them." (Lord Chancellor, HL debs, col 535, 18 November 1997.)
  4. The obligation applies to all courts and tribunals in all proceedings at every level. However only the higher courts may make a 'declaration of incompatibility' (s4(2) & (5)). Such a declaration does not affect the validity of the provision concerned but does act as a prompt to Parliament to take corrective action (s4(6)(a)).
  5. The validity of primary legislation which is incompatible with Convention rights is unaffected (s3(2)(b)).

Applying subordinate legislation

  1. As with primary legislation the obligation is that so far as possible subordinate legislation must be read and given effect in a way which is compatible with convention rights (s 3(1)).
  2. Unlike primary legislation, where subordinate legislation cannot be read and given effect in a way which is compatible with Convention rights it can be quashed or declared invalid by reason of incompatibility.
  3. However, this does not affect its validity, continuing operation and enforcement if primary legislation prevents removal of the incompatibility (s 3(2)(c)). In these circumstances the higher courts may make a declaration of incompatibility.

What's your job?

  1. Decide if a Convention right is in play.
  2. Decide if the primary or subordinate legislation appears to be in conflict with the Convention right. This will often be the difficult step of deciding whether a proviso to the article under consideration applies and whether the legislation is proportionate.
  3. So far as possible read and give effect to the legislation in a way which is compatible with Convention rights (s 3(1)).
  4. If it is not possible to so read primary legislation, apply it anyway.
  5. If it is not possible to so read subordinate legislation, quash it or declare it invalid by reason of incompatibility, unless primary legislation prevents the removal of any incompatibility in the subordinate legislation.

Check List and Outline Decision Structure

(Print off and keep)

  1. Which right has been engaged?
  2. What type of right – absolute, restricted or qualified?
  3. Absolute Rights:
    1. Right to Life (Art 2)
    2. Prohibition of Torture (Art 3)
    3. Prohibition of Slavery and Forced Labour (Art 4(1))
    4. No Punishment without Law (Art 7).
  4. Restricted Rights:
    1. Right to Liberty and Security (Art 5)
    2. Right to Fair Trial (Art 6)
  5. Set out and analyse the words of restriction and then apply them to the individual circumstances of the case.
  6. Qualified Rights:
    1. Right to Private and Family Life (Art 8)
    2. Freedom of Thought, Conscience and Religion (Art 9)
    3. Freedom of Expression (Art 10)
    4. Freedom of Assembly and Association (Art 11)
    5. Prohibition of Discrimination (Art 14).
  7. Set out and analyse the words which qualify the right.
    1. Is it in accordance with or prescribed by law?
    2. Identify the legitimate aim as set out in the article.
    3. Consider whether it is necessary in a democratic society.
    4. Apply to the individual's circumstances.
    5. Explain whether proportionate on the facts.
    6. Consider whether discriminatory.
  8. State your reasons for concluding whether or not the legislation is compliant.
  9. If there is a breach is it of:
    1. Primary legislation?
    2. Subordinate legislation (Note and apply the definition of subordinate legislation (s 21(1) – in particular sub-para (f))?
    3. Case law?
  10. 10. Ensure that you:
    1. Set out the statutory test of "possible".
    2. Explain and apply the test.
    3. Conclude what is or is not possible.
  11. If you conclude that the law is incompatible and it is not possible to interpret the law so as to be compatible with the Convention:
    1. Primary legislation – apply it anyway.
    2. Subordinate legislation – consider whether any primary legislation prevents the removal of any incompatibility in the subordinate legislation – if it does, apply the subordinate legislation.
    3. If not saved by primary legislation, ignore the incompatible law and give full effect to the individual's rights.

Tips

  1. Keep in mind that prohibition of discrimination (Art 14) is a parasitic right i.e. you must identify a substantive right that is in play and in respect of which the individual is being discriminated against.
  2. The "possible" interpretation test gives you considerable scope. For an example of how far a court can go even against the decision of the House of Lords in a pre-Act case see Beaulane Properties Ltd v Palmer [2005] EWHC 817; [2006] Ch. 79.
  3. Take a purposive approach to interpretation in two respects:
    • what is the objective of the article's protection?
    • and
    • what is the objective of the law you are interpreting?
  4. Identify precisely any social changes that affect your interpretation when considering that the Convention is a living instrument. Passage of time in itself is unlikely to be sufficient.
  5. In relation to proportionality do no more than is necessary to secure compatibility. Make sure that you address this question and come to a clear conclusion.
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