-and-

Equally a special thanks to my younger son Matthew whose patience was beyond compare, as he allowed me time to complete my works at a cost of our extended time together.

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  Introduction and Overview The purpose of this dissertation will be to examine critically how the judiciary have, so far, approached their enforcement role under Sections 3(1) and 4(2) of the Human Rights Act 19981 and what problems and prospects lie ahead; in particular following the extremists who have created a dilemma upon the United Kingdom2, and America, which brought in swift laws in an effort to address detention of terrorist.3 In supporting this dissertation, a broad approach will be taken. This broad approach will draw not only on the case law but the constitutional relationship between judiciary and Parliament in settling human rights disputes.

The relationship between how the judiciary decides cases and how they perceive their role within a constitution cannot be underestimated. It cannot be ignored by the legal practioner, either, and has become a perennial field of study in many jurisdictions, and the implications on practice are immense.

1 Hereafter the HRA` 2 The Government, in realising that detaining suspected international terrorists while undertaking the process of arranging deportation, would be incompatible with Article 5(1)(f) have prepared the ground by making a derogation order 3 The policy changes were not limited to the United States, as a large number of countries responded to the threat of terrorism. With terrorist actions around the world, including in Madrid, Bali, Russia, Morocco, and Saudi Arabia. Terrorism politics is truly global.

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  The judiciary, it will be argued, do not reason to their decisions in a proverbial vacuum. It shall be argued that they are highly influenced by the surrounding constitutional context concerning contentious issues of Parliamentary democracy, equality, separation of powers and so on.

The approach of this dissertation, therefore, is to engage in case analysis and to consider surrounding constitutional issues that come to have a bearing upon judicial adjudication4. It will be the purpose of this dissertation to ascertain out of the case law the substantive commitments members of the judiciary make in deciding cases. This will enable a duly considered analysis of the judiciary`s enforcement role under Sections 3(1) and 4(2) and what factors are important in determining how they exercise this power.

Importantly the dilemma of terrorism has had a broad impact upon the decision maker and the Government and proportionally` have not always been the victor when looking to protect those of who saw the HRA as the corner stone to democracy.

4 For instance terrorism laws came under scrutiny both be the UK courts and the European Court of Human Rights, where detention without charge was a violation of the Convention on Human Rights.

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In particular in light of the Global threat through terrorism, it will be necessary to examine in great detail5 how the Convention on Human Rights;6 embraced or otherwise rejected any compromise. In particular the use of Torture has been at the forefront of the investigation in the way that the judiciary has failed in most cases to remedy the obvious violations of the HRA. We shall look at the newly formed Special Independent Appeals Tribunal,7 who it will be ventilated fail to adhere to the Convention in the procedure/s adopted8 It shall be argued that the use of closed` evidence before the SIAT is in its self a violation of the Convention/s as well as the HRA.

It shall be argued that the workings of the SIAC, in failing to adhere to the common law principles, let alone the HRA has caused concern to those who hold the HRA dearly, which even outraged a Senior Politician as degradable9. The secrecy deployed by the SIAC does to not lend itself to the spirit of the HRA, yet such deficiencies, almost go unchecked by the

5 Critically analysed in Chapter 8. 6 Hereafter the Convention 7 Hereafter SIAC 8 For instance the use of closed evidence and the restriction placed upon the Special Advocate in being unable to take proper and full instructions. 9 Mr. Jack Straw MP

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  judiciary. For completeness consideration will be given to a number of case studies, at the speed in which determinations are made by the SIAT10

Conversely, this dissertation selectively draws upon the case law of both the European Court of Human Rights11 and domestic courts, domestically, both post and pre HRA cases will be considered and analyzed to ascertain how the judiciary understands their role, precipitated by the statute itself.

On the pan-European level, European Court12 cases will be analyzed, with particular emphasis on how they have come to characterise rights in question, and the bearing this can have on domestic courts. Of course, the varying judicial approaches need to be put in context, and this dissertation will aim throughout to make this connection clear.

Detailed reference is required to the reasons behind the HRA, its legislative history and how Parliament settled on its key provisions, and again it should be borne in mind that the threats

10 Chapter 9 11 Hereafter the ECtHR` 12Discussed in Chapter 4

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  that society are now faced, were not within the contemplation of the Convention, nor was the global stage for terrorism.

This understanding plays an important part in locating the HRA in a constitutional context embracing many different (and in some cases, diametrically opposed) ideals. Particularly, it will be argued that there is an internal constitutional tension that itself brings to bear on how the judiciary operate under Sections 3(1) and 4(2); which leads to highly divergent and opposed views on determining what human rights is, when they are engaged, when they are breached, and how they are enforced, the latter being of immense importance to those suffering such violations.

However, this dissertation will go further than merely connecting the influence of constitutional context on the case law, and will make some claims as to how the judiciary should be approaching their role under Sections 3(1) and 4(2). This normative aspect of the dissertation, which calls for a new approach embracing greater Parliamentary scrutiny of human rights, is deemed entirely necessary to set new practical guidance on the judiciary`s enforcement role.

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It is because of the surrounding constitutional context, coupled with the HRA, which has distorted judicial decision making out of a definitive shape. A new approach is essential to provide practical guidance on the vexed enforcement mechanisms under Sections 3(1) and 4(2).

In support of this broad approach, this dissertation will be divided into eleven chapters. Chapter 1, provides an overview, whilst chapter 2, visits the background and takes a historically survey the passage of the HRA and why it was considered necessary, what it sets out to achieve, whom it protects and whom it is enforceable against; given that the statute effectively incorporates the Human Rights and Fundamental Freedoms13, time will be spent analysing how the Convention operates, the obligations it places on member states, and how aggrieved parties can seek redress to the European Court.

Moreover, the judicial method of the European Court, as resonant in the case law, will be given some consideration. Particularly, it will be examined; how human rights are characterised ¬ whether they confer a negative or positive14

13 Hereafter the Convention` 14 Discussed in Chapter 1

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obligation or both, whether they are absolute or subject to qualification as necessary in a democratic society`, whether they afford a wide or margin of appreciation. Thereafter, it will be stressed that the success of any human rights regime depends crucially on the strength of its enforcement mechanisms. Further consideration shall be given whether the HRA is a political compromise15 existing to protect both Parliamentary sovereignty and respect for human rights. The problem of trading this middle group is epitomized both in Section 3(1) and the subsequent case law. Particularly, it will be argued that there is some difficulty resonant in the case law in restricting what is constructively possible` in Section 3(1).

How this uncertainty is open for manipulation will be considered by examining a number of cases and judicial reasoning thereto. It is however noteworthy that despite the intentions and the approaches taken, that the problems now faced with world domination of terrorism and safety of others that despite the intention, a balance will have to [and is] be drawn in balancing the rights of all16 whilst ensuring that the place of travel is not so restricted by the threat of violence against those the HRA

15 Considered in Chapter 5 16 This would be in accordance with the HRA, whilst dealing with the safety of citizens when balanced with the constant threat of terrorism.

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was meant to protect. It follows that this was never a feature either in the early fifties and proceeding years. Judicial enforcement will be considered and the uncertainty in perspective ¬ to seek to explain the constitutional context in which the Human Rights Act operates, and why Section 3(1) could reasonably be open to quite intensive interpretation amounting to effective entrenchment of human rights. This point will be supported through the examination of judicial case law where judicial members have adopted broad and narrow perspectives on controversial social problems17.

Chapter four will then consider the important issue of how human rights are characterised, will aim to demonstrate judicial enforcement under Sections 3(1) and 4(2) is on uncertain ground, so too are the concepts expressed in the Convention. Given this human rights uncertainty, the courts are frequently adjudicating on open textured questions with them articulating what is necessary in a democratic society. Given the need for a certain enforcement mechanism, and taking into account the flimsy nature of human rights jurisprudence, four different models will then be presented. These models will present

17 For instance the recent case of YL ¬v- Birmingham City Council, where the dilemma remains in the meaning of Public Authority`.

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different ways in which the judiciary can approach their interpretative obligation, and the purpose here will be to outline a preferred model to guide future enforcements in accordance with Sections 3(1) and 4(2).

Having dealt with the problems faced by the judiciary as well as the dilemma caused in protecting the rights and obligations of the state, it is necessary to consider in chapter 8 whether there is any place for the HRA, and whether Terrorism has now diminished the hope of a codified set of rules which were meant to protect the foundation of a civilized society of which such protection could lead to the withdrawal from the Convention18, based upon the need to protect, detain and draw a balance in both protecting the rights of the populace whilst maintaining the powers to detain those who may be intent upon causing mass destruction upon those the HRA was meant to protect.

It is upon the checks and balance that should be incorporated in protecting society, upon those wishing to destroy the fabrication of society itself. In essence this raises the issue whether we can have a system that looks to protect the rights of all, whilst failing to allow periods of detention in order to establish

18 This is permitted on six months Notice to the Secretary-General of the Council of Europe.

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cogency of those held in detention? We shall look at the approach of the judiciary in attempting to address the imbalance whilst maintaining the spirit of the HRA.

Having made a case for greater use of Section 4(2) it will then be argued on the practical side in chapter 10 that the development of a Human Rights Commission19 would improve human rights law by enabling a finer textured debate and deliberation on what human rights actually consist of, thus bringing a greater understand to the conceptual problems that may have arisen.

The commission, it will be argued, could compliment greater Parliamentary debate on human rights, and how legislation should be drafted so as to be Convention compatible. Indeed this shall be the remit for the new Commission, and therefore close examination shall be focused upon in ascertaining its value and worth. Final deliberations will be left to Fairness and Freedom, from the final report of the equalities review20

19 Coming into force in October 2007 20 The Final Report of the Equalities Review

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CHAPTER 1 HUMAN RIGHTS BACKGROUND AND CONTEXT The European Convention on Human Rights (hereafter the Convention) treaties passed by the Council of Europe21 in an effort to stop any reoccurrence of the atrocities and acts of cruelty ever happening again following the Second World War. Of course the aftermath was immense and the need to protect ones rights had never been at the forefront as this period of time in history. The Convention was heavily influenced by British values. The debate over the Convention was British inspired. The drafting of the Convention was British led. The values entrenched in the Convention were British through and through. The Convention itself was ratified first by Britain. We exported our values and our rights to Europe. And in the HRA, for the first time brought them home to Britain, and therefore Human rights are British rights. The HRA sets out a framework of common standards by which we expect to be treated. It represents the freedoms, which a

21 Which was a group of Nations invited by Sir Winston Churchil , following the Second World War

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pluralist society accepts - freedom of speech, freedom of thought, freedom to have a private life, freedom from death, from unfair imprisonment, from degrading or inhuman treatment or torture. Many myths have developed about what the HRA does, and the nonsense decisions it causes. Myths which damage public confidence in the HRA and which can cause decision makers to forget their common sense22 Of course terrorism was not a focal point when the treaties were passed and as we shall see below, that the courts along with the Government have found great difficulty in balancing one person`s rights against another, when contrasted with the need to protect against the atrocities, such as 9/11, a period thereafter which experienced legislative changes in the shortness of time, and never experienced before only during times of hostilities. Such changes were never envisaged during the pre-ratification of the Convention, and yet the legislators in those early years, could have never envisaged the self-destruction of minority parties, prepared to cause maximum damage upon society,

22 Lord Faulkner; addressing the National Association of Head Teachers Annual Conference 2007

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which remains subject to political debate on an almost weekly basis. The fundamental responsibility of the state to protect its citizens against terrorism should not in itself pose a problem as the states should be able to take appropriate steps23 to take appropriate action to protect the safety of it citizens in the balancing exercise and therefore will not offend against some rights which of course are absolute what ever the circumstances24 As we shall see although the courts are ready to apply proportionality25, and this can only be applied to achieve a legitimate aim. A New Constitutional Era On 14th May 1997, the Labour Government announced in the Queen`s Speech that it intended to effectively incorporate into domestic law Convention Rights. It then set out its proposals for incorporation of the Convention in 1997 in a White Paper, Rights Brought Home. The Human Rights Bill, described as what was probably the greatest change in legislative history: The

23 Arising from Article 2 of the Convention itself. 24 For instance Article 3, prohibition of torture and see Z ¬v- United Kingdom (2001) failure to protect children from abuse and neglect over a 4 year period. 25 Although proportionality does not appear anywhere in the text of the Convention.

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language of the Articles, within the Convention is [was] so embracing that one MP commented... It is language which echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta26 The Human Rights Act came into force on 2nd October 2000 and effectively incorporated27 into the United Kingdom (hereafter the UK) law certain rights and freedoms set out within the body of the Convention. The HRA covers England, Wales, Scotland and Northern Ireland.

From the outset this Convention is a binding international agreement that the UK assisted to draft and has sought to comply with for over half a century28. The Convention enshrines fundamental civil and political rights; however until the HRA it did not form or was incorporated as part of the UK law29.

26 (Hansard, 6 February 1987, col.1224). Sir Edward Gardner MP QC, commented on the language of the Articles in the Convention

27 This has not been fully incorporated because Article 13 on the requirement of an effective remedy is not included in the statutory scheme. 28 Ratified in March 1951 and entered into force on 3 September of that year it has now been ratified by all forty-one States of the Council of Europe.

29 Rights Brought Home: The Human Rights Bill @ Para 1.10 CM 3782

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Human Rights Enshrined in Protocols The Convention30 outlines a broad range of rights available to state citizens that are enforceable against the government. For example, Article 2 provides for the right to life. Article 3 protects from torture and inhumane or degrading treatment or punishment. Article 4 protects from slavery and forced or compulsory Labour. Article 6 provides the right for a fair trial. Traditional ideas of civil liberties are also enshrined. Article 9 provides for freedom of thought, conscience and religion, Article 10 for freedom and expression and Article 11 for freedom of association and assembly.

There are also numerous protocols that member-states signed subsequently to the Convention. For completeness Section 1, of the Convention (Articles 1-18) sets out the rights and freedoms of individuals under the Convention, now supplemented by several Protocols31 providing further rights, with further Protocols dealing merely with procedural and organisational matters.

30 Convention rights" means the rights and fundamental freedoms set out in: (a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention

31 A protocol is a later addition to the Convention, so as to be more flexible and clear. For instance, Article 1 of Protocol 13; abolition of the death penalty.

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These cover, for example, matters such as right to property (article 1), the right to education (article 2), the right to free and fair elections, the abolition of the death penalty in peacetime (articles 1 and 2 of the sixth protocol), restrictions on political activity of aliens (article 16) and prohibition of abuse of rights (article 17).

These rights are known as Convention rights and have a domestic impact on areas of law such as crime, family, housing, employment and education. By Article 1 of the Convention, countries who have signed up to the Convention must secure the above rights for everyone in their jurisdiction and individuals must also have an effective remedy to protect those rights in the country's courts32 without the need to go to the ECtHR33.

Characterization of human rights Of great importance is how the human rights in question are characterised. The strength of particular human rights depends upon the extent to which member states must ensure compliance. Whether member states can depart from human

32 Unlike post HRA, when one need to make an application direct to the European Court 33 Hereafter referred to as the European Court

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rights depends on whether the right in question provides for a derogation or qualification. Under Article 15, member states can derogate from the Convention where this is necessary for national security34.

Further, many human rights are subject to qualifications. These rights are defined in two stages, the first provides the right and the second defines the permissible qualifications to that right.

This enables a member state to argue that the abridgment of a human right is necessary, for example, for quelling a riot or insurrection, public safety, economic-well being, and the protection of health or morals. Qualifications of this type are to be found, for example in Article 2 on the right to life, Articles 8 on privacy and 10 on freedom of expression. This list is by no means exhaustive, but illustrative of the manner in which rights can be subject to qualification to take into account wider social factors.

34 The exceptions to this are Article 3, 4(1) and 7.

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When looking to the qualifications, the European Court will take into account that the Convention is a living instrument`35. Further, there is a need for proportionality that requires the member state doing no more than is necessary in order to achieve a result, which is itself lawful and reasonable. In essence there must be a reasonable relationship between the means used and the end result.

However, Articles 3, 4, 6 and 7 have no such qualifications. They are absolute rights where the primary consideration for the European Court is establishing whether the right has been engaged or breached, rather than arguments for the Respondent government that the Article in question should not justifiably apply.

Another important way to characterize the scope of human rights is in terms of the duty they place upon member states. This duty can be either negative` or positive`, or even both36. Negative rights involve the classic examples of freedom from` torture37, or freedom to` express and form political associations.

35 A term employed in Salmouni v France [2000] 29 EHRR @ 403, and subsequently as the basis for an argument extending privacy rights to environmental rights in the lower chamber decision in Hatton v UK. 36 This distinction may be considered crude and characterised, and it is recognised that in many scenarios the distinction collapses, but for the purposes of this introduction into human rights law, it wil suffice. 37 This is a good example of an absolute` rights

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The member state is expected to refrain from activity that would run contrary to these rights. Positive rights, on the other hand, are a lot more problematic in that they require the member state to be proactive in not only protecting the rights, but also securing them. Osman v UK38 tested the limits of this positive obligation, where the European Court found that the UK government failed to provide adequate protection to murdered parents after receiving repeated information about the dangerousness of the murderer.

The European Court described this case as an extreme example of police failure, and therefore perhaps not applicable where the consequence of their inaction was not so obvious.

This distinction between positive` and negative` rights will be returned to in Chapter 4 when discussing how desirable it is for courts to be adjudicating on these matters. In the meanwhile suffice to say this is a judicial device to establish the extent of a member state`s duty under the Convention.

38 Osman-v-UK (1998) 29 EHRR 245

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Member State Obligation The role of the European Court will be to determine whether the member state has complied with the terms of the Convention, and the member state is constructed to include all branches of government39. The UK government, too, have created executive and judicial provisions with regarded to the Convention and human rights generally. By Section 2 of the Human Rights Act, all national courts and tribunals must take into account the case law of the European Court. Section 6 binds public authorities40 from government departments and courts to functional public bodies running nursing and residential homes. Section 641 therefore adds a new head of review ¬ human rights illegality - to the traditional approach of illegality, irrationality and procedural impropriety.42

39 For example, in Price v UK (2002) 34 EHRR @ 53; the European Court stated that both the sentencing judge and the prison service (both the executive and judicial branches) were at fault in incarcerating disabled women without taking her disability into consideration. 40 That is pure public authorities or bodies undertaking a function of a public nature. See Section 6. 41 The meaning of public authority has caused substantial problems and subjected to debates by the Lords see Seventh Report of Session 2003¬04- HL Paper 39 HC 382 42 See: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K.B. 223, 229, Lord Greene M.R. pointed out that different grounds of review "run into one another." A modern commentator has demonstrated the correctness of the proposition that grounds of judicial review have blurred edges and tend to overlap with comprehensive reference. See Fordham, Judicial Review Handbook, 2nd Ed, pp. 514-521.

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A point arises to the extent to which the HRA has horizontal effect that is, enabling individuals to bring claims against other individuals43. The courts have hesitantly developed limited horizontal effect by applying the HRA to the common law44. Locus Standi In 1966 the UK accepted that an individual person45, and not merely another State, could bring a case against the UK to the European Court. Successive administrations in the UK have maintained these arrangements46. From the outset it should be noted that a finding by the ECtHR of a violation of a Convention right does not have the effect of automatically changing UK law and it shall canvassed that any remedy is a matter for the UK government and Parliament alone to amend or otherwise deal with the offending legislation.

43 Douglas and Others v. Hello! Ltd. [2001] Q.B. 967; Campbell v MGN Ltd [2004] UKHL 22; Venables and Another v News Group Newspapers and Others 8 January 2001, [2001] 9 BHRC 587, (2001) -- Human Rights Act 1998, s 12, Sch 1, arts 2, 3, 8 10 44 As in Douglas v Hello Ltd, [2001] Q.B. @ 967. The argument goes as follows ¬ the HRA requires domestic law to be Convention compliant, so therefore in the context of privacy, the common law right of breach of confidence` was upgraded to encompass Article 8 rights. By introducing Article 8 tangential y through the common law, individuals can in limited circumstance bring a claim against other individuals. 45 Person includes Companies, under the HRA, as without this it would infringe Articles 6, & 14 respectively 46 White paper on The Human Rights Bil CM 3782

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However the UK has agreed to abide by the decisions of the Court47. It follows that, in cases where a violation has been found, the State concerned must ensure that any deficiency in its internal laws is rectified48 so as to bring them into line with the Convention49. In essence: - The incorporation of the Convention on Human Rights into domestic law is perhaps the most significant element in the government`s programme of constitutional reform. It will give birth to a major new jurisprudence, borne out of challenges brought by lawyers; and over time, a culture of respect for human rights will permeate the whole of our society50. Proportionality has throughout the decades placed a part in common law and therefore it is useful to visit the former decisions in light of the procedure now adopted in ensuring compatibility with the HRA. The cases below will demonstrate the courts in interpretation and or attempting to strike a balance between policy, decisions have maintained a balance of natural justice, involving the rights of prisoners, balanced with

47 Like al other States who are parties to the Convention. 48 Subject to certain caveat`s discussed below. 49Rights Brought Home: The Human Rights Bil @ Para 1.10 50 Lord Chancellor Lord Irvine of Lairg addressed the implication of the Human Rights Act In his Keynote Address, at the Annual Conference of the Bar 9th October 1999.

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proportionality, which gave way to the Convention on Human Rights, following a number of decisions from the ECtHR. A thread throughout is to protect prisoners from disapportionate policies affecting those rights, rather than to adhere to a blanket policy`, which on the face of it may violate ones human rights. The courts have focussed substantially in striking out offensive policies, which fall foul of the HRA, whilst attempting to strike a balance between security and the need to protect those at risk through abusive policies as touched upon below. Unsurprisingly the courts have been drawn to the rights of prisoners, who at one stage were thought to have very few given their incarceration within the prison system. It is upon this premises that we shall focus below upon proportionality, and striking a fair balance. Whilst throughout this dissertation we shall focus upon the rights under the HRA, it may be useful for elucidation to consider a number of propositions concerning rights, and these can be expressed as absolute` as will appear throughout along with limited` and qualified` rights.

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In summary not all rights are the same and some call upon adhering to some more than others, providing qualification is given for any departure from those rights51 In essence rights and any departure thereto is solely dependant upon the right/s in question, that the HRA looked to protect. Terrorism for instance has featured a great deal in recent times, and the various decisions surrounding incarceration of the suspects for substantial periods of time without charge or trial has arguably run foul of the HRA. Whilst we shall focus upon the problems encountered in great detail within the body of this dissertation, for now we shall visit three types of rights outlined above. In essence not all Convention rights operate in the same way. It is now useful to look at the ramifications of absolute`, limited` or qualified` in nature. In chapter 5 we shall demonstrate the problems of derogation. In the case of absolute rights; States cannot opt out of these rights under any` circumstances; not even during war or public emergency. There cannot be any justification for interference

51 For instance abolition of the death penalty is not subject to any qualification to depart from it, as it is absolute, however self defence of a police officer may be under Article 2.

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with these rights and they cannot be balanced against public` interest. Such rights are prohibition of torture and inhumane or degrading treatment52 and the prohibition of slavery53 Limited rights; are rights that are not balanced against the rights others, but which are limited under the explicit and finite circumstances. An example is the right to liberty and security54 Qualified rights; are rights that can be interfered with in order to protect the rights of other people or the public interest. An inference with qualified rights may be justified where the state can show that the restriction is lawful` in accordance with the law, which must be established, accessible and sufficiently clear.

With regard to a legitimate aim, the restriction must pursue a permissible aim as set out in the relevant Article. Public authorities may only rely on the expressly stated legitimate aim when restricting the right in question.

52 Article 3. 53 Article 4(1) 54 Article 5.

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Some of the protected interests are national security55 the protection of health and morals, the prevention of crime and the protection of the rights of others.

In essence this raises the issue whether the restriction is necessary in a democratic society. The answer is simply for a restriction to be necessary in a democratic society there must be a rational between the legitimate aim to be achieved and the policy/ decision, which restricts person`s rights.

Perhaps a good example of this is simply that if the restriction would make no difference in achieving the aim, then the restriction would be unlawful. In cases, which fall outside this ambit, then a policy/decision should be no more restrictive than it needs to be in order to achieve its objective, otherwise known as the proportionality`.

This means that the exercise of the rights guaranteed under the Convention and their protection by the courts has to be done in a way that is proportional to the needs of society. Limiting the rights may be permitted only if it is genuinely done to meet an

55 Of which we shal see has come under substantial pressure in attempts to deal with detainees under the Terrorism Act 2000.

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objective which is of general interest recognised by the European Union or the need to protect the rights and freedoms of others. What this does is offer a defence against the state overriding an individual's rights through disproportionate action.

In essence the use of proportionality raises the issues whether the restriction itself is necessary in a democratic society. To this end the restriction must fulfill a pressing social need and if so must be proportionate to that need.

The principle of proportionality is at the heart of the qualified rights are interpreted, although; the word itself does not appear anywhere, in the text of the Convention.

The principle can perhaps most easily be understood by saying don`t t use a sledgehammer to crack a nut`. When taking decisions that may affect any of the qualified rights, a public authority must interfere with the right as little as possible, only as far as is necessary to achieve the desired aim.

In essence one must look to inquire what is the restriction being applied and or sought to determine whether the restriction

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is proportionate or not. This for example can be carried out by applying the following test: -

(1) What is the problem that is being addressed by the restriction? (2) Will the restriction in fact lead to a reduction in that problem? (3) Does a less restrictive alternative exist, and has it been tried? (4) Does the restriction involve a blanket policy or does it allow for different cases to be treated differently? (5) Has sufficient regard been paid to the rights and interest of those affected? (6) Do safeguards exist against error or abuse? (7) Does the restriction in questions destroy the very essence of the Convention rights at issue?

It is the above are issues that the judiciary will take into account when considering whether ones rights have been violated.

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In the case of R ¬v- Secretary of State for the Home Department ex parte Daly;56 on 31 May 1995 the Home Secretary introduced a new policy ("the policy") governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. The policy was expressed in the Security Manual as an instruction to prison governors in these terms57: -

"17.69: - Staff must accompany all searches of living accommodation in closed Prisons with a strip search of the resident prisoner.

17.70:- Staff must not allow any prisoner to be present during a search of living accommodation (although this does not apply to accommodation fabric checks).

17.71:- Staff must inform the prisoner as soon as practicable whenever objects or containers are removed from living accommodation for searching, and will be missing from the accommodation on the prisoner's return.

56 2001 UKHL-26 57 HM Chief Inspector of Constabulary was at once set up, fol owing an escape from prison of a number of category A prisoners. . The report of the inquiry, presented to Parliament in December 1994 (Cm 2741)

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17.72:- Subject to paragraph 17.73, staff may normally read legal correspondence only if the Governor has reasonable cause to suspect that their contents endanger prison security, or the safety of others, or are otherwise of a criminal nature. In this case the prisoner involved shall be given the opportunity to be present and informed that their correspondence is to be read.

17.73:- But during a cell search staff must examine legal correspondence thoroughly in the absence of the prisoner. Staff must examine the correspondence only so far as necessary to ensure that it is bona fide correspondence between the prisoner and a legal adviser and does not conceal anything else.

17.74:- When entering cells at other times (e.g. when undertaking accommodation fabric checks) staff must take care not to read legal correspondence belonging to prisoners unless the Governor has decided that the reasonable cause test in 17.72 applies."

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The origin and background of the policy On 9 September 1994 six categories A` prisoners, classified as presenting an exceptional risk, escaped from the Special Security Unit at HMP Whitemoor. An inquiry led by Sir John Woodcock, formerly HM Chief Inspector of Constabulary, was at once set up. The report of the inquiry;58 revealed` extensive mismanagement; malpractice at Whitemoor. The escape had been possible only because prisoners had been able, undetected, to gather a mass of illicit property and equipment. This in turn had been possible because prisoners' cells and other areas had not been thoroughly searched at frequent but irregular intervals, partly because officers seeking to make such searches had been intimidated and obstructed by prisoners, and partly because relations between officers and prisoners had in some instances become unacceptably familiar so that staff had been manipulated or "conditioned" into being less vigilant than they should have been in security matters.

58 Ibid

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In its report59 the inquiry team made a number of recommendations. One of these was that cells and property should be searched at frequent but irregular intervals. In other words, there was to be no standard or pattern to be established which would put the prisoners on notice. Following a strip search each prisoner was to be excluded from his cell, during the search, this was to avoid intimidation. The inquiry team gave no consideration at any stage to legal professional privilege or confidentiality. The policy was introduced to give effect to the inquiry team's recommendation on searching of cells. The legal background of which this policy was made can best be summarized as follows: - Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both.

59 Ibid

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But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order, and it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As we shall see below, the UK has fallen short in certain circumstances in comply with the above. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends, which justify the curtailment. A number of decisions had been made on diverse occasions some at odds with each other. In R v Board of Visitors of Hull Prison, Ex p St Germain60 Shaw LJ stated "despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to

60 [1979] QB 42

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the nature and conduct of his incarceration . . . An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise." In a further case of Raymond v Honey61 a point arose from the action of a prison governor who blocked a prisoner's application to a court. The House of Lords affirmed, 62that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication . . ." It was held in the above case that Section 47 was held to be quite insufficient to authorise hindrance or interference with so basic a right as that of access to a court. To the extent that rules were made fettering a prisoner's right of access to the courts and in particular his right to institute proceedings in person they were ultra vires. Further consideration was given in R v Secretary of State for the Home Department, Ex p Anderson63 the prisoner's challenge

61 [1983] A.C.; 1, at p. 10H.

62 At page 10 63 1984] QB 778

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was directed to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally. Reiterating the principle that a prisoner remains invested with all civil rights, which are not taken away expressly or by necessary implication, Robert Goff LJ,64 held........."At the forefront of those civil rights is the right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice and assistance with regard to the initiation of civil proceedings is inseparable from the right of access to the courts themselves.65" His Lordship continued ........."As it seems to us, a requirement that an inmate should make . . . a complaint as a prerequisite of his having access to his solicitor, however desirable it may be in the interests of good administration, goes beyond the regulation of the circumstances in which such access may take place, and does indeed constitute an impediment to his right of access to the civil court."

64 Giving the judgment of the Queen's Bench Divisional Court, said, at p 790 65 The standing order in question was held to be ultra vires. At pp 793-794 the court observed:

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In Campbell v United Kingdom66 issues concerned the compatibility with the European Convention of rule 74(4) of the Prison (Scotland) Rules 1952 67which provided that "every letter to or from a prisoner shall be read by the Governor . . . and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable."68 The European Court held that the interference with the applicant's correspondence violated article 8 of the Convention69, the court said....."Admittedly, as the Government pointed out, the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters, which have little or nothing to do with litigation. Nevertheless, the Court saw no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concerned matters of a private and confidential character. In principle, such letters are privileged under Article 8. In essence prison authorities may open a letter from a lawyer to a prisoner when they have reasonable` cause to believe that it

66 (1992) 15 EHRR 137 67 (SI 1952/565) 68 The Court of Session had earlier upheld this rule as valid: Leech v Secretary of State for Scotland, 1991 SLT 910. 69 At p 161, Para 48 of its judgment

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contains an illicit enclosure which the normal means of detection have failed to disclose.

The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner.

The reading of a prisoner's mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature.

What may be regarded as 'reasonable cause' will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused." The above decision was later applied in R v Secretary of State for the Home Department, Ex p Leech;70 which concerned rule

70 [1994] QB 198.

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33(3) of the Prison Rules 196471, which were in terms similar, although not identical, to rule 74(4) of the Scottish Rules. The decision is important for several reasons. First, it re-stated the principles that every citizen has a right of unimpeded access to the court, that a prisoner's unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) of the 1952 Act which did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client who contemplated legal proceedings. Legal professional privilege was described as an important auxiliary principle serving to buttress the cardinal principles of unimpeded access to the court and to legal advice. Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and the court observed,72 that a fundamental right such as the common law right to legal professional privilege would very rarely be held to

71 (SI 1964/388) 72 at p 212,

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be abolished by necessary implication; however the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule73. "The question therefore is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability." The court concluded that there was nothing, which established objectively that there was a need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3).

73 As it was put, at p 212:

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While section 47(1) of the 1952 Act by necessary implication authorised some screening of correspondence between a prisoner and a solicitor, such intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence: since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to communicate in confidence with his solicitor the rule was drawn in terms which were needed. In the light of the decisions in Campbell and Leech, a new prison rule was made, now rule 39 of the Prison Rules 199974, which provides, so far as material: (1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such

74 (SI 1999/728).

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enclosures shall be dealt with in accordance with the other provision of these Rules.

(3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped." This rule, is now accepted, applies only to correspondence in transit from prisoner to solicitor or vice versa75. The references to opening and stopping make plain that it has no application to legal correspondence or copy correspondence received or made by a prisoner and kept by him in his cell. Moreover the Court of Appeal decision in Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Department, Ex p

75 Thus al eviating the excuse say through a cel search of which the prisoner should be present discussed below

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Simms,76 which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, save on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary's evidence showed a pressing need for a measure, which restricted prisoners' attempts to gain access to justice, and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Pierson 77

76 2000] 2 AC 115 77 [1998] AC 539, 575:

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The House in R ¬v- Secretary of State for the Home Department ex parte Daly78 Stated....."From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament The Lords then continued... It is then necessary to ask whether, to the extent that it infringes a prisoner's common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime.

Mr. Daly's challenge at this point was directed to the blanket nature of the policy, applicable as it was to all prisoners of whatever category in all closed prisons in England and Wales, irrespective of a prisoner's past or

78 Ibis Para 40

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present conduct and of any operational emergency or urgent intelligence. The Home Secretary's justification rests firmly on the points already mentioned: the risk of intimidation, the risk that staff may be conditioned by prisoners to relax security and the danger of disclosing searching methods.

The Lords did not agree with the proposition in which Lord Steyn...held [I] have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8.1 which gives Mr. Daly a right to respect for his correspondence.

While interference with that right by a public authority may be permitted only in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr. Daly's exercise of

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his right under article 8.1 to an extent much greater than necessity requires.

In this instance, therefore, the common law and the Convention yield the same result, this need not always be the case.

Conversely in Smith and Grady v United Kingdom79 the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the Convention because the threshold of review had been set too high.

Moreover following the incorporation of the Convention by the HRA and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (in conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the HRA, grant an effective remedy.

79 1999) 29 EHRR 493,

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Finally on this point it is interesting to note that the Prisons Ombudsman carried out a full inquiry which was reported in November 1996. In his report the Ombudsman commented: "I entirely support the main thrust of Woodcock's recommendations regarding cell searching. It is apparent that prisoner intimidation was precluding the effective searching of prisoner accommodation in many establishments, and that this searching, which is essential for the safety and security of both staff and prisoners, is carried out far more effectively when the prisoner is absent.

This procedure has also been assisted by the introduction of the volumetric control of prisoners' in-possession property.

However, the legal privilege which must protect the confidentiality of correspondence between a solicitor and his client is too important to be sacrificed for the sake of expediency; whilst it would undoubtedly be easier for staff to search a prisoner's legal documents in his

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absence; this allows legal privilege to be compromised to an unacceptable degree... "It is clear that, in complaining about the Prison Service's cell searching policy; [the prisoner] has raised a matter which has far-reaching consequences. I believe that his complaint is a valid one and that, in searching prisoners' legal papers in their absence, the Prison Service is compromising the legal privilege, which ensures that correspondence between a solicitor and his client will remain confidential. I therefore uphold [the prisoner's] complaint. Security Group has previously drafted a revised version of section 68.3 of the Security Manual.

This revised version allowed the prisoner to remain in the cell while his legal documents are being searched, after which the documents are sealed in a box or bag, thus avoiding any possible compromise of legal privilege. I consider that the Security Manual should be amended to incorporate this revised method of cell searching." The Ombudsman's investigations revealed that, following a complaint by a prisoner confined in HMP Full Sutton, a procedure had been developed in that prison to meet the

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wishes of prisoners who objected to the searching of their legal documents in their absence. The procedure was simply ... "If the prisoner objects to his legal documents being searched in his absence DST80 staff place the documents in a bag, seal the bag using a numbered reception seal and give the prisoner a copy of the seal number. The bag is left in the prisoner's cel while the search is being carried out. When the prisoner returns, he checks the seal on the bag to ensure that it has not been tampered with and the documents are searched in his presence." In essence the importance of proportionality` is the thread throughout the above illustrations within the body of the case law. The contours of the principle of proportionality are familiar, as in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing81 the Privy Council adopted a three-stage test. Lord Clyde observed;82 that in determining whether a limitation is

80 [Dedicated search team] 81 [1999] 1 AC 69 82 , at p 80

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arbitrary83 or excessive the court should ask itself... "Whether:- the legislative objective is sufficiently important to justify limiting a fundamental right; the measures designed to meet the legislative objective are rationally connected to it; -and- the means used to impair the right or freedom are no more than is necessary to accomplish the objective." Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see for instance Professor Jeffrey Jowell QC, "Beyond the Rule of Law: Towards Constitutional Judicial Review"84; Craig, Administrative Law85 Professor David Feldman, "Proportionality and the Human Rights Act 1998", essay in The Principle of Proportionality in the Laws of Europe86

83 (by an act, rule or decision) 84 [2000] PL 671 85 4th ed (1999), 561-563; 86 (1999), pp 117, 127 et seq.

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The starting point is therefore to address the issue whether there is an overlap between the traditional grounds of review and the approach of proportionality`. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights, which I do not propose to discuss, a few generalisation`s are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality87 may require the reviewing court to assess the balance, which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality` test may go further than the traditional grounds of review inasmuch as it may

87 Ibid

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require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence; Ex p Smith [1996]88 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms89 foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom90. The court concluded, 91..."the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the

88 QB 517, 554 89 (The right to respect for private and family life) 90 (1999) 29 EHRR 493 91 at p 543, Para 138:

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domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention." In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

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Chapter 3

Human rights and common law understandings of freedom and liberty An important consideration of how the judiciary receive the HRA is how they themselves perceive their common law role with regards to freedom and liberty. For instance over the years there has been a birth of a specialist administrative Court Office, of the High Court dealing with applications by way of judicial review which very often dealt with procedure irregularities along with a failure to carry out a statutory duty. Remedies such mandamus and certiorari92, are a main daily feature within the Administrative courts. A regular feature is immigration, housing, and such other matters that call for the courts to consider cases in finite detail including statutory interpretation, rights and remedies.

92 Now Mandatory Order and quashing Order

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In essence it is the role of the judiciary experienced in considering whether a government or local authority have carried out their obligation and or statutory duty within the terms of the statutory provisions being called in to question. Such rights, and obligation are a feature within the HRA, and the courts over the years have been creative when justice required.93 It is from this breed of judiciary that are now deliberating in the Court of Appeal and the House of Lords. It is noteworthy that the judiciary in these specialist courts would not substitute the decision, but merely grant or otherwise their deliberations upon the failure or otherwise of the decision reached based upon a procedural` irregularity94 It will however be seen that the judiciary very often apply the same test to the HRA as they did and do when hearing matters outlined above. Consideration of pre and post Act, will demonstrate that the approach is not necessarily compatible with the HRA95.

93 ;Ridge v Baldwin [1964] AC. @ 40, 94 For instance the procedure adopted may have offended against he notion of Natural Justice, or the fettering of discretion to name a few, as in the case of Ridge ¬v- Baldwin Ibid. 95 Discussed below.

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In contrast the HRA instils within the UK a new approach both to be taken in the procedure to be adopted in both civil and criminal cases96. Tribunals and committees and other decision and administrative bodies are called upon to adhere to principals of natural justice prevails both against procedure and bias97. A right to a fair trial is a feature within the HRA; some would say such a right is a landmark itself; however this has been built within the body of our Common Law, upon the premises of fair play` and justice98. Applicants faced with appealing decisions involving housing benefits, and going before the Housing Benefit Review Board, were often left in doubt as to fairness of the procedure and decision making body, as those presenting the authorities case was employees of the members sitting in judgment. Conversely the same system applied to many Tribunals and Committees who sat to hear complaints against

96 Article 6 HRA for instance 97 Bryan v UK 21 EHRR @ 342, Held a developer could chal enge an enforcement notice as a breach of Article 6. "In the context of planning appeals the very existence of this power available to the executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice and irrespective of whether its exercise was or could have been in issue in that case 98 Ridge ¬v- Baldwin. Ibis

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refusal of a school place for their child, only to find that the make up of the Committee included a council member, who may be best placed of fielding his council`s position, by finding that parents objecting to an allocated school99 upon the ground/s that the school so allocated fails to meet that academic excellence, is in itself underpinning the council`s position on education100 This not to say that the administration was tainted, however to those appealing such decisions would leave the Committee room pondering whether any decision may be tainted,101 as the councillor/s reminded the parents that like schools; were available within the catchment area,102 and effectively they should not be so judgemental. Of course it was unwise to decry the allocated school as this would often lead to refusal of the appeal and of course the parents appealing their preferred school would only want to feel that their case had been decided

99 Under the Education Act. 100 This was a constant complaint of many parents that the writer acted for, when appearing before the Committee of the LEA. 101 R ¬v- Lancashire County Council ex parte R, was a case in which the education authority had put in place a restriction on a popular school who could accommodate more children in the school but had put the policy` in place to fil under achieving schools within the area. 102 This is within the terms of the Education Act 1980 (as amended) when al ocating schools.

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upon its merits; rather than a policy` decision which was merely being upheld by the appeal committee. Fair play and adherence103 was the main requirement in such circumstances and therefore the judiciary are reminded of the above principal104 for all within the context of the rules that they have to administer. It follows therefore that the courts themselves will have to adopt a new approach [and many have] and aspire in considering the matters before them. Article 6 relates entirely to procedure and applies wherever there is a determination of person`s civil rights. In, Condron v The United Kingdom the Court of Appeal considered cases on appeal, the ECtHR held that the Court of Appeal; in merely considering the safety of the applicants` conviction was in breach of their fundamental rights within the HRA105.

103 To fair play and Natural Justice. 104 The civil procedure rules in part one tells judges that they have got to deal with cases justly and that goes on to say that not only must they try and get the right result they must also ensure that there is a level playing ground, that they are dealt with equal y. 105 Condon v. The United Kingdom. Application. No. 35718/97. Judgment given at Strasbourg, May 2, 2000

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The Court of Appeal was concerned with the safety of the applicants106` conviction, rather than had he received a fair trial.... The question whether or not the rights...guaranteed to an accused under Article 6 of the Convention was secured cannot be assimilated to a finding that his conviction was safe....107 The decision was later followed and endorsed by the Court of Appeal, Lord Woolf C.J: ... It would be unfortunate if the approach of the European Court of Human Rights and the approach of the Court of Appeal were to differ. Section 3 of the Human Rights Act now required all acts of the UK Parliament to be read in a way that was compatible with Convention rights108 Such a task is not easily defined because those seeking remedies may be faced with further ambiguities as those entrusted by Parliament to administer the terms within the body of the HRA, which may be as inconsistent as the issue being challenged.

106 Classified as victims` under the HRA 107 Condron v The United Kingdom. Application No. 35718/97 @ Paragraph 65 108 The Times (London), November 21, [2000]

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The creativity of the judiciary at times has interoperated a particular meaning in order to do justice; however justice to one is very often an injustice to another. It is upon this creativity that has caused inconsistencies within the HRA. This can be demonstrated when consideration is given to the core of the HRA.

In essence the in order to enforce a right` the only redress under section 6 of the HRA is against a public authority, it is upon this premises that the following chapter will focus upon. It will be seen however a greater dilemma is caused in trying to tackle this task, as many arguments are canvassed in order to catch other elements and bring them into the body of the HRA, to offer greater protection to those relying upon the rights. Whether such an ambit is necessary is a bone of contention as far as the writer is concerned, and therefore a great deal of analytical exploration is called for to explore other remedies prevalent within other Statutory provisions, available as safeguards.

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Chapter 4 Enforcement Uncertainty

Public Authority [the Dilemma] The meaning of Public Authority has caused untold difficulty in ascertaining who or what is a Public Authority in days of contracting out ones duty. It is somewhat surprising that as the HRA refers throughout to Public Authority` the government failed to include any definition within the HRA109. It may have been thought that given monumental change over the past thirty years in reorganising government that the HRA should not be narrowly defined110. It should be noted that Section 6(1) of the HRA states that [i] t is unlawful for a public authority to act in a way

109 However, @ Para. 2.2 of The Human Rights Bil [Rights Brought Home] Cm No. 3782 a host of definitions are set out therein. One suspects the omission was to allow the judiciary greater flexibility. 110 For example, Contracting Out Act 1994, or arrangements made under Sec 101 of the Local Government Act 1972.

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which is incompatible with a Convention right, therefore the concept of a public authority is crucial to the reach and effectiveness of the HRA. Public authority has never been adequately defined, but the HRA effectively recognises that there are two different types of public authority ¬ core` and hybrid` public authorities, although this terminology is not used in the HRA. A core public authority, such as a local authority or the police, must not act in a way, which is incompatible with a Convention right, unless one of the section 6(2) exemptions applies.111 A hybrid public authority is one, which carries out some functions of a public` nature (s.6 (3) (b)), but is exempted for particular acts if they are private.112 The meanings given to functions of a public nature, and to a lesser extent section 6(5)`s private acts, are the key, to determining the scope of the HRA.

111 This is essential y when other primary legislation conflicts with Convention right. 112 (s.6 (5)).

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Of course the purpose of the HRA, has so often been said, was to ensure that people whose rights under the Convention had been violated would have an effective domestic remedy in the courts of this Country, as required the Convention113, and would not have to seek redress in the European Court of Human Rights in Strasbourg. In the Labour party's consultation paper, Bringing Rights Home114: Labour's Plans to Incorporate the Convention into United Kingdom Law by Jack Straw, stated............ "We take the view that the central purpose of the ECHR is to protect the individual against the misuse of power by the state. The Convention imposes obligations on states, not individuals, and it cannot be relied upon to bring a case against private persons... For this reason we consider that it should apply only to public authorities - government departments, executive agencies, quangos, local authorities and other public services. An appropriate definition would be included in the new legislation and this might be framed in terms of

113 by article 13 of 114 December 1996.

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bodies performing a public function. We would welcome views on this." The Government's white paper115, Rights brought home: the Human Rights Bill explained............."The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and, to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as privatised utilities." 116 It should also be noted that Home Secretary117, Mr. Jack Straw, at the second reading of the Bill in the House of Commons118 stated...Under the Convention, the Government are answerable in Strasbourg for any acts or

115 The Government's white paper, Rights brought home: the Human Rights Bil (1997) (Cm 3782), explained the resulting clause in the Bil thus: 116 (Para 2.2) 117 As he was then 118 Hansard (HC Debates) 16 February 1998, col 773):

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omissions of the state about which an individual has a complaint under the Convention. The Government has a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge upon private individuals. The House of Lords noted in a recent case addressing the meaning of public authority`... The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.119 " Two points emerge clearly from these extracts.120 One is that it was envisaged that purely private bodies, which were providing services, which had previously been provided by the state, would be covered.

119 As per Baroness Hale in YL ¬v- Birmingham City Council UKHL 27 120 As per Baroness Hale, in YL Ibid.

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The second is that the Government was anxious that any acts for which the United Kingdom might later be held responsible in Strasbourg would be covered by the domestic remedies. Hence the definition would go 'at least as wide' as that. Strasbourg case law shows that there are several bases upon which a state may have to take responsibility for the HRA`s of a private body. The state may have delegated or relied upon the private body to fulfill its own obligations under the Convention: as in Van der Mussele v Belgium,121 in which the provision of legal aid was delegated to the Belgian bar which required young advocates to provide their services pro bono; or, perhaps, in Costello-Roberts v United Kingdom122 where the fact that education is itself a Convention right was influential in engaging the state's responsibility for corporal punishment in private schools. The State may have delegated some other function which is clearly a function of the state to a private body:

121 (1983) 6 EHRR 163 122 (1993) 19 EHRR 112

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as in Wós v Poland123, where the Polish Government delegated to a private body the task of allocating compensation received from the German Government after World War II. The State may itself have assisted in the violation of Convention rights by a private body: as in Storck v Germany,124 where the police had assisted in the illegal detention of a young woman in a private psychiatric hospital by taking her back when she ran away. Above all, the State has positive obligations under many articles of the Convention to take steps to prevent violations of an individual's human rights. The above include taking general steps, such as enacting laws to punish and deter such violations: as in X and Y v The Netherlands125, where Dutch law did not afford an effective remedy to a mentally disabled girl who had been raped by a relative of the directress of the care home where she lived.

123 (Application No 22860/02) (Unreported) 1 March 2005 124 (2005) 43 EHRR 96 125 8 EHRR 235 [1985]

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They also include making effective use of the steps which the law provides: as in Z v United Kingdom (2001);126 in which a local social services authority did not use its powers to protect children whom they knew to be at risk of serious abuse and neglect. Positive obligations arise under each of the articles most likely to be invoked by residents in care homes. Article 3 may afford them protection against inhuman and degrading treatment. Conversely Article 8 may afford protection against intrusions into their privacy, restrictions on their contacts with family and the outside world, and arbitrary removal from their home. Equally Article 5 may afford protection against deprivation of liberty. Regrettably, examples abound in the literature of care homes where acts, which might well amount to breaches of articles 3 or 8, are commonplace but might not amount to the criminal offence of ill treatment or neglect.127

126 34 EHRR 97 127 As per Baroness Hale in YL Ibid.

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The following example is taken from Jenny Watson, Something for Everyone128: The impact of the Human Rights Act and the need for a Human Rights Co; "An agency worker told us about going into a residential care home for older people at breakfast time. She was instructed to get the residents up and onto their commode. She was then told to feed them breakfast. When she started to get the residents off their commodes first she was stopped. The routine of the home was that residents ate their breakfast while sitting on the commode and the ordinary men and women who worked there had come to accept this as normal." The Human Rights Act - Changing Lives129 (British Institute of Human Rights)130: In an Article it was noted... "A learning disabled man in a care home became very anxious about bathing after slipping in the bath and injuring himself. Afterwards, in order to reassure him and build his confidence once again, a carer, usually female,

128 (2002) (British Institute of Human Rights 129 (2007) 130 From Sonya Sceats

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would sit in the room with him as he bathed. His female carer's felt uncomfortable with the arrangement. A discussion of the human rights principle of dignity had served as a 'trigger' for [one carer] and together with co- workers she was able to develop solutions that would both protect the man's dignity, whilst also providing him with the support he needed." It is interesting to note that knowledge of the HRA and the dignities of others were at the forefront of the carer`s mind in this particular case. However as the government has promised time and time again, it is the training that may bring about a change of attitudes, although arguably one would have hoped that ones dignity and privacy would have been a natural concept and seen as a negative to act outside this ambit within a particular calling. There is, of course, a difference between the negative obligation of the state to refrain from violating an individual's rights and the positive obligation of the state to protect an individual from the violations of others. The

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case of Storck v Germany131 is a good example of the willingness of the Strasbourg court to find several reasons for holding a state responsible for violations caused by private bodies. The most effective way for the United Kingdom to fulfill its positive obligation to protect individuals against violations of their rights is to give them a remedy against the violator132. The Act only requires public authorities to act compatibly with the rights and freedoms that the HRA protects. The HRA places no direct obligation on private bodies or individuals to comply with basic human rights standards. Public authorities are defined in the HRA as including core public authorities, like local councils.

These bodies are required to comply with human rights standards in everything they do. Private bodies that perform functions of a public nature should, in the performance of those functions, also be treated as public authorities for the purposes of the HRA. 133

131 (Ibid, 2005) 43 EHRR 96 132 As per Baroness Hale in YL, Ibid. 133 (Functional Public Authorities).

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It is common ground that it is the nature of the function being performed, rather than the nature of the body performing it, which matters under Section 6(3)(b). The case of Poplar Housing and Regeneration Community Association Ltd v Donohue134 relied too heavily upon the historical links between the local authority and the registered social landlord, rather than upon the nature of the function itself which was the provision of social housing. The question of which bodies fall within the definition of public authority` is however of great significance.

The answer to this question determines how effectively the basic rights and freedoms in the European the ECHR or Convention are secured in the United Kingdom and the extent to which UK law provides an effective remedy where an individual`s rights and freedoms are violated.

134 [2002] QB 48

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In 2004, the Joint Committee on Human Rights published an important report135 on the meaning of public authority under the HRA136.

It concluded that the development of case law on the definition of Functional Public Authority137 had led to real gaps and inadequacies in human rights protection in the UK, which ministerial statements during the passage of the Human Rights Bill indicate, were not intended by Parliament.

These gaps in human rights protection have arisen because some courts have sought to identify Functional Public Authorities by looking at the character of the institutional arrangements of the body, i.e. the extent to which the body is controlled or funded by a core public body, rather than the character` of the function that it is performing.

135 Seventh Report of Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL

136 (The 2004 Report). 137 Cal in and Others v. Leonard Cheshire Foundation, [2002] EWCA Civ 366

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This has, for example, meant that the rights of an elderly person are unlikely to be protected by the HRA when a local council pays for care to be provided in a private care home.

By contrast, the same person`s rights would be protected if the care were provided by the local authority in a care home it runs itself. This context is the area which has caused most difficulty and debate since the enactment of the HRA.

Lord Bingham138 in the House of Lords139 during the progress of the Human Rights Bill commented that It is the function that the person is performing that is determinative of the question whether it is, for the purposes of the case, a [functional] public authority.

Conversely Liberty considered that the elderly person`s rights should be protected by the HRA regardless of the nature of the body that delivers the care. At the outset

138 A view shared by Liberty as expressed in the 2004 Report 139 And by Ministers

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Liberty acknowledged that it would not always be easy to identify when a function is or was of a public nature.

It follows without any statutory guidance then this will need to be determined on a case-by-case basis by the courts. The appropriate question for the courts to ask is, however, whether the function in question is one for which the State has taken responsibility in the public interest. It is noteworthy however at this stage of discussion that there have been a number of debates in the House of Lords (and also later case law) whereupon the House concluded140... that the application of the functional public authority provision in section 6(3) (b) of the Human Rights Act leaves real gaps and inadequacies in human rights protection in the UK, including gaps that affect people who are particularly vulnerable, to ill- treatment. We consider that this deficit in protection may well leave the UK in breach of its international obligations to protect the Convention rights of all those in the

140 Minutes of Evidence taken before the Joint Committee on Human Rights, 8 December [2003], HL Paper 45,

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jurisdiction and to provide mechanisms for redress where those rights are breached141. Equally the joint committee concluded... We have taken the view, however, that it would be undesirable to amend section 6, for a number of reasons. As well as being too early in the experience of the Act's implementation, it would be likely to sacrifice the flexibility of the Act and to inhibit its capacity to adapt to changing social circumstances and thereby ensure comprehensive and consistent human rights protection. It would be difficult to devise a magic formula to provide a comprehensive and precise definition of public authority, and any attempt to do so would, in our view, be likely to create as many problems as it solves142. The Joint Committee concurred... We have considered whether the gap in protection could be closed by specifying the bodies whose activities fall within the ambit of the Act... We conclude that this is both impractical and undesirable. It would risk restricting the

141 Enquiries to Nick Walker (Sec to the HL) by the author (22 February 2005) revealed that despite the Government being chased for a response to the seventh Report, none had been received. He conformed that he was hopeful that a response would be received within the next few weeks. 142 Para 149 of Minutes of Evidence taken before the Joint Committee on Human Rights, 8 December 2003, HL Paper 45,

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category of bodies in ways that would exclude those which should be held responsible under the Act. It would also be based on a misconception of the Act's scheme - it is not particular bodies which fall within the ambit of section 6(3) (b), it is particular functions143. An attempt to define public functions in statute would be a more promising route to resolving the problem, but it would still be open to many of the objections which we identify to attempting to list public bodies. Nor have we been able to discover any convincing formulation of how to do so144. In short it would appear that the Committee whilst concerned with the lack of any decision nonetheless perceived the difficulties faced by the legislator in applying such a definition, this calls into question the enormity of the task, and the undesirability of trying to hold a particular provider to fall within such a definition. That said no doubt substantial costs would and are caused to the very members of society that the HRA was meant to assist, and arguably protect.

143 Para 149 of Minutes of Evidence taken before the Joint Committee on Human Rights, 8 December [2003], HL Paper 45 144 Ibid @ 151

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Conversely the judiciary have found it difficult in finding a public law function` in what can be described a private law matter`, whilst they have been extremely inventive in finding such an existence of public law function in would appear that in exercise of such a task, the decisions that will be outlined below are more confined in cases of embodying certain breaches of natural justice` which have arisen, although with certain caveats being applied145 On one hand it is desirable not to attempt to define public authority`, on the other; no definition can lead to uncertainty that as now arisen. It is worthy considering a number of cases where the judiciary have made attempts to balance the rights of citizens which accord to the rules of natural justice,` and not necessarily the HRA, however in so doing have attempted to underpin the legislation in reaching their deliberations.

145 See for instance R (H) v Mental Health Review Tribunal 2001] EWCA Civ @ 415, 99

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For example in R v Servite146 Moses J expressed regret that a precedent` prevented him from holding a charitable housing association a public authority147 Grosz, Beatson and Duffy148, wrote: "This class of public authority will include professional bodies such as the Law Society, the Bar Council and the General Medical Council which exercise regulatory and disciplinary functions; private commercial organizations exercising public functions such as security companies operating privatised prisons, private schools, a railway company in the exercise of its regulatory functions, industry based ombudsmen, university visitors, regulatory bodies such as the City Panel on Takeovers and Mergers, those recognised under the Financial Services Act 1986, the Stock Exchange, the Association of the British Pharmaceutical Industry, the Press Complaints Commission, the Advertising Standards Authority and other media or commercial regulators"

146 R v Servite House ex parte Goldsmith [2002] LGR @ 55 147 Housing Associations are now provided for specifically within the HRA. 148 Grosz, Beatson and Duffy, Human Rights (2000).

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The above examples are not so limited, as it is the function of the body that can bring it within the scope of the HRA. In Poplar Housing149 the Court of Appeal gave consideration, whether a registered Housing Association was a public authority under The Housing Act in relation to one of its tenants. The court held: that because a body performed an activity which otherwise the government or a public body` would be under a duty to perform, it did not mean that such performance was necessarily a public function.`150 It is a feature or a combination of features, which impose a public character` or stamp` on the HRA. Statutory authority for what is done can at least help to mark the act as being public; so can the extent of control over the function exercised by another body which is a public authority`. In essence the argument evolves around the premises that the more closely the acts that could be of a private

149 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ @ 595 150 Lord Woolf @ Para. 58.

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nature` are enmeshed in the activities of a public body`; the more likely they are to be public.151 Lord Woolf held, that the facts of each particular case would be crucial and that on the situation before him in this borderline` case that it was capable of being a public authority`. In R (A)152 it was held that a decision by the managers of a private psychiatric hospital to alter care and treatment of a patient was an act of a public nature`, and therefore susceptible to judicial review,153 as they were a public authority for the purpose of the HRA. The borderline cases discussed in Poplar would depend on the function it was carrying out. In Ashton Cantlow Parochial Church Council154 the House of Lords held, that Parochial Church Council could be a hybrid` public authority under Section. 6 (3) (b) because it performed certain functions of a public nature`.

151 Ibid @ Para. 65. 152 R (A) v Partnerships in Care Ltd [2002] 1 WLR @ 2610. 153 This can be explained by the statutory control under the regulations to be found within the Registered Homes Act 1984 and the Mental Health Act 1983. 154 Ashton Cantlow Parochial Church Council v Wal bank [2003] UKHL @ 37.

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It follows therefore upon the above premises that the courts will look at the provisions of some statutory control being prevalent as above, however consideration has to be given whether they are of a contractual nature. In R v Disciplinary Committee ex parte Aga Khan155 the courts were not prepared to find a public law` function, because they were derived purely from contractual relationships between a club and those who agreed to be bound by the rules of racing. Sir Thomas Bingham MR156 suggested the government would have created a public body to exercise the Jockey Clubs functions if the Jockey Club were not to do so; nevertheless, its functions were not governmental because its powers derive only from an agreement between the parties157 Hoffman LJ158 remarked in Datafin159 shows that the absence of a formal public source of power such as statute or prerogative is not conclusive. Governmental power may be exercised de facto as well as de

155 R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 2 ALL ER 853 156 As he was then. 157 Ibid @ 923(g) 158 As he was then. 159 R ¬v- Panel on Take-over and Mergers Ex Parte Datafin Plc [1987] QB @ 815

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jure...what one has here is a privatisation of the business of government itself. In light of the above whilst the Jockey Club has powers that may be described in many ways public`, they are in sense governmental160 In contrast it was the nature of its function in Datafin;161 that lent its self-open to judicial review, as it was performing a public duty`162. In R v Governors of Haberdashers163 it was held that a college that was set up pursuant to the exercise of the Secretary of States power164 and the manner in which they provided education was subject to detailed regulations made by a statutory instrument. A distinction was however drawn between the above case and private schools, whilst a private school would be providing education and subject to a complaint to the Secretary of State who held the power to strike such schools of the register, that in itself did not make the

160 As per Hoffman LJ @ 931 (H) ¬ 932 (A) 161 R ¬v- Panel on Take-overs and Mergers Ex Parte Datafin Plc [1987] QB @ 815P. 931 (d) & (h) 162 Ibid court prepared to intervene because of the nature of the function`, as per Sir John Donaldson MR ibid @ 825[c] 163 R V Governors Haberdashers Askes Hatcham College Trust ex parte T [1995] ELR @ 350 164 Under s 105 (1) of the education & Reform Act 1988

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school susceptible to judicial review, as the power of existence is consensual and not by statute, as such decisions were not made in the exercise of any public law` duty or function165 Equally, a school that offers assisted places may be subject to the jurisdiction of the court. In R v Cobham Hall School ex parte S166 a school was held to be exercising a public` law function. Dyson J said... The school is exercising a public law function and is ........ In selecting pupils for assisted places and purporting to reallocate an assisted place, the school is exercising a public function, with a statutory underpinning of the Act and the regulation167 Dyson J drew the distinction between the functions of private bodies and their activities; he said, ... [N]ot all activities of private bodies (such as private companies) are subject to only to private law.168 He drew the

165 Ibid R v Governors of Haberdashers at page 357 (f) 166 1998] ELR 389. R v Cobham Hall School ex parte S 167 Ibid @P. 397-398 (a)-(c) 168 Ibid

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distinction between the companies that may be subject to the courts jurisdiction in circumstances when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing, or possibly its dominant position in the market, it is under an implied duty to act in the public interest169 In Servite Moses J reviewed an abundance of authorities and was unconvinced that despite Servite being required to register under the Registered Homes Act 1984170, Servite had entered into a commercial contract for the provisions of community care, that in itself did not place upon them a public law duty. There was no statutory underpinning, save for a statute that allowed a local authority to enter into private` arrangements. Accordingly his Lordship did not feel bound by the precedents that had been before the courts on similar points. In considering the statutory underpinning that the courts have attempted to introduce in such cases [above] largely depends upon the function and how they acquire`

169 Ibid @ 398 170 As it was then.

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a duty` to act in such a way, which has lead to the courts intervention. It should however be remembered that the width of such a concept of public authority under the HRA is of immense importance in determining the ambit of those bodies, which must not be incompatible with the rights under Convention. In short cases decided before the HRA were focused upon reviewing the lawfulness of the decision under judicial review171, of a decision, action or failure to act, however cases seeking to challenge such a decision were challenging the exercise of that public function, and not performing a function of a public nature`. Conversely Servite was a decision that did not fall within the terms of a public function, unlike Datafin. In Ashton Cantlow Parochial Church Council172 whist the House of Lords considered the Parochial Church Council could be a hybrid` public authority under Section 6 (3) (b) because it performs certain functions of a public

171 Ibid 172 Ibid Ashton Cantlow Parochial Church Council v Wal bank [2003] UKHL.

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nature`, they were carrying out a private` rather than public function` when enforcing a lay rector`s liability for chancel repairs, and therefore unlike the Court of Appeal, Parochial Church Council, were not under an obligation to act in a manner compatible with the Convention. Section 6(3) (b) applies to bodies performing functions of a public nature`, and not the nature of the body, of the legal dispute in question. In R (Heather) v Leonard Cheshire Foundation173 the question arose whether the Leonard Cheshire Foundation were a public authority` for the purpose of the HRA, it was held that they were not; despite receiving public funding, regulated by the state and provided services that would have been otherwise provided by the state. The decision was based upon public` being used in the sense of governmental. The anomies are brought about by the narrow interpretation of the HRA as it is drafted widely in that it

173 R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366.

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refers to public functions.` This is more generous; than the judiciary, are applying in some cases. That decision caused unrest and the Parliamentary Joint Commission on Human Rights launched an inquiry into the meaning of public authority` under the HRA174 In written evidence ...The absence from the HRA 1998 of a systematic definition of "public authority", and the variety of judicial tests which have emerged to determine what constitutes a public authority, would seem to combine to represent real uncertainty as to the applicability of human rights to those bodies and offices within the churches studied175 The approach taken so far is as diverse as the wording in question. Conversely the Government has taken a somewhat commercial approach to the difficulties faced in attempting to find a public law function to satisfy the terms of the HRA.

174 Joint Committee on Human Rights ¬Written Evidence printed 23 February 2004. 175 Ibid. Liberty have made submissions upon the absence from the HRA 1998 of a systematic definition of "public authority

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The Joint Committee on Human Rights176 in their thirty- second report commented We are extremely disappointed by the Government`s new concern about driving private providers out of the market by widening the definition of public authority.177 In our view it represents a serious dilution of the Government`s consistent position since the enactment of the Human Rights Act, that private providers, of services which a public authority would otherwise provide are performing a public function and should therefore be bound by the obligation to act compatibly with Convention rights in s.6 of the HRA. In essence whilst the courts tussle with making bodies carrying out duties that would otherwise be carried our by public authorities comply with the spirit of the HRA, the Government appear to be less committed. The Committee178 was of the opinion that; the more the trend to outsourcing the provision of public services increases, the greater the importance of private providers

176 The Human Rights Act: the DCA and Home Office Reviews (Sessions 2005-06) 177 Page 10; Para 28. 178 Ibid; Government Response to the Joint Committee on Human Rights.

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of such services being bound by the obligation to act compatibly with Convention rights.179 In essence the more public services are outsourced, the less will people be able to enforce their human rights directly against those providing care or other services for them, such an approach would not be in keeping with the HRA. Therefore the judiciary rather than the Government180 are best placed with the task in hand. It follows that he judiciary are inventive in their approach and this can be seen by the following cases. In Smart181 Laws LJ suggested an approach which was perhaps more in keeping with the spirit of the HRA which was to give section 6 a generous interpretation and any limitation upon liabilities of public authorities for interfering in Convention rights should take place through striking a fair balance between the relevant interests, at least where prima facie interferences with rights are capable of being justified by reference to necessity and

179 Para 28 (page 11) 180 Who is constantly bombarded with pressure groups from the private sector, which very often is self- serving. 181 Smart v Sheffield City Council [2002] EWCA Civ 4.

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proportionality, rather than liability being excluded by defining such bodies out of the scope of the s.6 duty. A different approach was suggested by Lord Woolf in Poplar Housing 182 who suggested the provision of requiring private bodies to enter into contractual obligations to respect the Convention rights of those they deal with, when they enter into arrangements to provide services for governmental bodies. The service users could then use the Contracts (Rights of Third parties) Act 1999 to enforce contractual clauses to respect their Convention rights183 Above, it will be noted that speed and costs were one of the objectives that the HRA was meant to assist in those pursuing a remedy for the alleged violation of their Human Rights. A point taken; in, the Consultation document Equality and Diversity184. As above Judicial Review applications185 were no strangers in defining a public duty; of which some

182 Ibid 183 See also Carss-Frisk, Public Authorities: The developing Definition [2002] EHRLR 319. 184 consultation paper entitled Towards Equality and Diversity Discussed in detail in the concluding chapter 185 Under the old Rule 53 RSC, now provision contained in the Civil procedure Rules

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statutory power exist depending upon the function, and placing such a function upon the private sector. The Committee concluded upon the desirability in defining or providing a comprehensive list upon the meaning of public authority, when they stated We do not think it would be advisable to try to prescribe a comprehensive list of persons or bodies who are public authorities for the purposes of the Human Rights Act, and we recognise that seeking to define public authority generally would not be desirable because of the knock-on effect on other areas of law186 The Governments response concurred with the view expressed by the earlier Committee187 in that formulating a comprehensive test of public authority status, of general and wide application, would be a very difficult task, and such a test would remain subject to judicial interpretation.

186 At Para 29 Ibid 187 Seventh Report of Session 2003-04

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In the review188 the Government announced that they would be arguing the point further in a case due to be heard before the Court of Appeal189 The meaning of Public Authority` came before the Court of Appeal in the case of Johnson ¬v- Havering190 whereupon a private care home, when accommodating residents under arrangements made with a local authority for the implementation of the authority`s obligations under s 21 of the National Assistance Act 1948, was not exercising a public function for the purposes of s 6(3)(b) of the HRA. The change in the residents` legal position occurred when homes were Convention for the Protection of Human Rights and Fundamental Freedoms. The Committee191 upon realizing the difficulties encompassed by the meaning within the terms of Section 6(3)(b) of the HRA dismissed any attempts of placing its own meaning to local authority, e.g. function but thought

188 Para. 31. (Page 11) 189 Johnson ¬v- Havering. 190 R (Johnson and others) v Havering London Borough Council; YL v Birmingham City Council and others [2007] EWCA Civ 26

191 Ibid @ Para 29.

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that it may not be insuperable obstacles to drafting a simple statutory formula which makes clear that any person or body providing goods, services or facilities to the public, pursuant to a contract with a public authority, is itself a public authority for the specific purposes of the HRA. Such a suggestion would not be without difficulties, as surely this would raise issues that fell outside the necessary domain, that may not necessarily be a direct service but an indirect provider which would normally fall outside such a scope, however with such a definition be drawn into the arena by the very nature of the wording, rather than the type` of service provided. This dilemma was recently addressed in the House of Commons192, whereupon a number of difficulties were recognised in the courts approach in attempting to define Public Authority` once again. The Lord Chancellor made it clear that privatised or contracted-out public services were intended to be brought within the scope of the HRA. The public

192 9th January 2007

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function definition, we were told, emphasised the function rather than the institutional status of the body performing it. It was considered that a private security company would be performing a public function if it were running a prison under contract with the Government. It would be within the terms of the HRA. But when a private security company is providing a service to another private company, it does not come within the provisions of the HRA. It was recognised that since the HRA came into force, a series of court cases have turned on whether a particular private company or organisation providing services was within the ambit of the HRA. The result has been to undermine, or even to overrule, the comprehensive and wide interpretation of public authority which was originally intended. It is common ground that it is the nature of the function being performed, rather than the nature of the body performing it, which matters under section 6(3)(b).

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The case of Poplar Housing and Regeneration Community Association Ltd v Donoghue193 relied too heavily upon the historical links between the local authority and the registered social landlord, rather than upon the nature of the function itself which was the provision of social housing. The committee194 identified that one particular case has left utter confusion over that question commonly known as the Leonard Cheshire case. It will be recalled that the local authority-funded residents of a care home run by the Leonard Cheshire Foundation, a private charity, wanted to challenge the decision to close down the home and disperse the residents, who claimed that that broke their right to respect of their home under article 8 of the Convention. However, the Court of Appeal found that managers of the care home did not constitute a public authority within the definition of section 6(3) (b) of the HRA, so residents could not enforce their human rights against the care home even though the council still held its

193 [2002] QB 48 Ibid 194 Ibid

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obligations to them under article 8, regardless of its contract with Cheshire Homes. In 2004, after reviewing that judgment and other cases that had turned on the definition of public authority195, the Joint Committee on Human Rights concluded that the test that was being applied by the courts was highly problematic. That has resulted in many instances of an organisation standing in the shoes of the state but without responsibility under the HRA, leading to a serious gap in the protection that the law was intended to offer. It is argued that this gap is not just a theoretical legal problem, but also a problem with significant and immediate practical implications. As many services previously delivered by public authorities become privatised or contracted out to private suppliers, so the law has failed to adapt to that reality. The implications of that failure extend across the range of especially vulnerable people in society, including elderly people in private residential care or nursing

195 9 Jan 2007: Column 151

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homes, tenants in housing association properties, children outside the maintained education sector, or looked-after children in receipt of children`s services. In its 2004 report, the Joint Commission on Human Rights examined several possible solutions, including: amending the HRA, to clarify the responsibility of organisations to protect human rights in carrying out public functions; protecting human rights through the terms of the contracts between public authorities and private providers of public services, backed by authoritative guidance on when an organisation was likely to be a public authority for the purpose of the HRA; and the development of case law on the meaning of public authority. The Committee`s views were that amendment of the HRA would be likely to create as many problems as it solved and would be too soon after the HRA`s implementation, and that guidance on the formulation of contracts and best practice would be helpful but could not provide a complete or enduring solution, so the Government should

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intervene in the public interest as a third party in cases where they could argue for a broad interpretation. Three years on from the Joint Commissions on Human Right`s report, there have been a number of significant developments. In November 2005, the Government published guidance to local authorities on contracting for services in the light of the HRA. The Government intervened in the case of the Crown on the application of Johnson and others v. London Borough of Havering196 to argue that the meaning of public authority covers elderly and vulnerable people who are receiving care from a private provider on behalf of a public authority. In this case as others private care homes are provided funds from the local authority, which are often topped up be the resident. In some cases residents are self-funding` and therefore not reliant upon the local authority for funding of their costs. The above case considered whether local authority care homes that were transferred to the private sector

196 Which was heard together with the case of YL ¬v- Birmingham City Council & Others

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remained public authorities in respect of local authority placed residents. The Government was unsuccessful in their/its deliberation and the matter came before the Court of Appeal197. The Court of Appeal, headed by the Master of the Rolls198 considered two appeals the gist of which is summarized below. The court was concerned with two appeals. Mr.199 Johnson and others, all of whom are resident in a care home maintained by the London Borough of Havering200under the provisions of section 21 of the National Assistance Act 1948 201 who sought to prevent the transfer by Havering of the residents' and other care homes to private sector control, as a local authority is in principle empowered to do under section 26 of the 1948 Act.

197 : [2007] EWCA Civ 26 198 The Master of the Rolls, Lord Justice Buxton, Lord Justice Dyson 199 In C1/2006/1693 (Johnson) 200 Havering. 201 [The 1948 Act]

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The Official solicitor represented a resident placed in a private sector care home by the responsible local authority Birmingham City Council [Birmingham]202 in respect of whom the care home sought, or originally did seek, to terminate the contract for her care and to remove her from the home. In Johnson it was contended that the transfer of control of the homes would in itself amount to a breach of the residents' rights under the Convention, principally under article 8. In YL it was contended that to remove Mr. YL from the care home would be a breach of her rights under article 8. The claim in Havering was rejected by Forbes J, and the claim in YL by Bennett J. The two appeals were heard together; because they were thought to raise the same point, as to the susceptibility to control under the Convention of private care homes that are used by local authorities under section 26 powers: the question turned on whether; and in what circumstances, the homes are persons certain of whose functions are functions of a

202 C1/2006/2226 (YL)

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public nature` under section 6(3) (b) of the Human Rights Act 1998. In YL the issue arose directly from the proposed action of the care home, and the proceedings took the form of a preliminary point to determine whether the care home, the second defendant in the action brought by the Official Solicitor, asked to address the question that in providing care and accommodation for [Mrs. YL] was it exercising a public function for the purposes of section 6(3) (b) of the HRA. The way in which the central issue arose in Havering was rather more elusive. J's claim was based upon the contention that whilst she at present enjoyed Convention rights, conspicuously but not exclusively Article 8 rights, against Havering as a public authority, those rights will be lost, or at least substantially diminished in content, if her home was transferred to a private body. Havering, supported by the Secretary of State [intervening], denied that the change would involve a breach of the Convention, and that is the first issue that had to be addressed in the Johnson appeal.

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Both those parties however further responded by contending that in any event nothing would be lost by the residents, because the new private owners of the homes will themselves be subject to Convention obligations by reason of Section 6(3)(b); and that point is, perhaps confusingly, was also urged by the Claimants as an alternative to the above point. That latter issue accordingly raise`s in principle the same question, as the preliminary point in YL, of which will be discussed later, following an appeal to the House of Lords203. The point in question then, is simply; by transferring the Appellants out of their care into the hands of private carer`s, [Havering] would it/they be removing or diminishing the rights that they formerly guaranteed to the Appellants. It was argued that the Appellants would no longer be able to rely on direct breaches of their substantive rights as against either [Havering] or the private carer, for

203 UKHL 27

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example breaches of their rights under Articles 2, 3, 8, 9, 10 and 14. The only enforceable rights they would have would be in relation to breaches of [Havering's] 'positive obligations' towards them. It was further argued that they would have no effective rights as against their carer`s. That constitutes a fundamental and material diminution (and indeed in certain cases, negation) of their existing rights. Accordingly, in discharging its statutory obligations to the Appellants under sections 21 and 26 of [the 1948 Act], [Havering] would be failing to ensure real and effective protection of their rights and so be acting incompatibly with the Convention and unlawfully under section 6 of the HRA. The above was based upon following the transfer, which the residents might retain some rights against Havering, but those would be different, and less valuable, rights compared with the rights that they enjoyed against Havering when Havering was directly their carer.

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The Court said taking Article 3 as an example; Ms Simor said204 that at present the residents had a right not to be subjected to degrading treatment by Havering. After transfer, they had no such right against the care homes under Article 3, and only a right against Havering that the council would take appropriate steps, which it was far from certain would be effective, to safeguard the residents against immediate risks of degrading treatment. Pausing upon this argument for a moment, the suggestion is some what couched that only a public authority` can provide a standard of care, which does not fall short of Article 3. With respect to this contention, this could not or should not be the case; by virtue that the private sector` is called upon to be registered205 and strict standards are imposed under the Care Standards Act 2000206, which calls for frequent inspections and reports, in essence they are policed by those whose task it is to ensure that

204 In §§ 26-28 of her Grounds of Appeal 205 Registered Homes Act 1984, Part repealed by the Care Standards Act 2000 [24] 206 Ibid

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standards are met within the framework of the above Act. Indeed the reason why a number of local authority`s are opting out of providing care homes is simply because they cannot keep pace with the continued changes in standards imposed by the agencies whilst the private sector struggle to maintain the ever increasing demands upon them, leading to a loss of 745 care homes in 15 months207, both public and private sector.208 Nonetheless the standards have to be maintained and therefore such a transfer cannot arguably lead to the risk of degrading treatment209 Mr. Justice Buxton stated on the above point210.... Article 3 addresses not lack of consideration or inadequate care standards, but the much more serious territory of degrading treatment that is akin to inhumanity. If a resident in a care home, public or private, were to be treated in that way, then first almost certainly breaches of the criminal law would be involved; and secondly such breaches, and the inhumane treatment generally, would

207 Leading to 15,100 lost places 208 Report by Age Concern: Care Home Closures Ref/IS/10 209 Article 3. 210 Para. 11.

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engage the responsibilities of the local authority for the welfare of the residents, under section 21(2) of the 1948 Act, and its responsibility to enter and inspect the private care home under section 26(5) of the 1948 Act. In these extreme and hopefully hypothetical circumstances the potential problems for the residents would not lie in the absence of legal protection, but in the difficulty of the abused resident in accessing that protection: whether by taking proceedings herself against the home, or by informing the responsible local authority so that it could take action. Thus, to the extent that article 3 has any more than a theoretical role to play in such a case, the resident does not suffer any significant loss of that protection by the transfer of immediate control of her residence from the public to the private sector. His Lordship continued... Article 8 raises different issues. Havering submitted, to my mind entirely convincingly, that care homes, public or private, were subject to rigorous standards of services, quality of staff, extent of facilities, and record-keeping and other procedures for

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the protection of the residents, which are required by the CSA, and supervised by the Commission for Social Care Inspection. Indeed, and ironically enough, it had been concern expressed by the Commission about the present standards in some of Havering's own facilities that had contributed to the decision now complained of to seek the assistance of the private sector. These rules, it was suggested, again convincingly, well exceeded in terms of day-to-day protection for residents anything that they could gain through the application of article 8. In this respect, therefore, the residents lost nothing in article 8 terms by the transfer. The issue with regard to article 8 is not the importance of the right to respect for the home, which is not in dispute, but the significance for respect of that value of the difference between the public` and the private` regimes. Lord Walker211 in his speech in M v Secretary of State for Work and Pensions212; concluded in general terms that because the touchstone of article 8 is respect for the

211 Article 8 jurisprudence undertaken by Lord Walker of Gestingthorpe. 212 [2006] 2 AC 91 [62]-[83

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relevant rights, the interference with the citizen has to be of some seriousness before article 8 will be engaged. Caution must be exercised before applying that insight as if it were a statutory rule. Nonetheless, that approach reinforces the conclusion in this case that the change in the residents' legal position that occurs when the homes are transferred from public to private control is insufficient to amount to a breach of the Convention. It was further canvassed in the Johnson case213 that the argument that a change from public` to private` provision necessarily entails a breach of Article 8 must further entail that any privatisation of services in respect of which the National Government has or arguably the Convention responsibilities will in itself result in a breach of those responsibilities. The root objection, loss of direct action under the HRA against the actual provider, must be the same in every case. As Havering pointed out, that at a stroke puts every local authority with social services responsibilities

213 Para. 21.

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in breach of the HRA, since all of them use private sector provision to a greater or lesser extent. His Lordship continued........... It is notorious that privatisation, not just in the present field but over a very wide area of governmental activity, is a subject that attracts strong views. But those are views, to be adjudicated upon by the national democratic process, and a very good example of an area that the Convention will enter only with considerable diffidence. While section 6 of HRA requires a generous interpretation of who is a public authority, it is clearly inspired by the approach developed by the courts in identifying the bodies and activities subject to judicial review. The emphasis on public functions reflects the approach adopted in judicial review by the courts and textbooks since the decision of the Court of Appeal in Datafin214. In the Tower Hamlets, in transferring its housing stock to Poplar does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties.

214 [1987] QB 815

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The act of providing accommodation to rent is not, without more, a public function for the purposes of section 6. What can make an act, which would otherwise be private; public is a feature or combination of features, which impose a public character or stamp on the act. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public215 The argument can be explained in the following way. The HRA is not an ordinary English statute. Rather, it is the vehicle through which the jurisprudence of the Convention, as understood by the ECtHR, is made available in the English domestic legal order. Section 6(3)(b) was thus included in the HRA in an attempt to replicate in the domestic jurisdiction the range of bodies in respect of whose activities within the UK; liability would attach under the jurisprudence of the ECtHR.

215 As per; Mr. Justice Buxton

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It is not just a quibble to say that it is very difficult to find within that jurisprudence any direct parallel to a private body becoming a public authority`, therefore a body for which the state is directly responsible in the ECtHR, because it performs some public functions; and therefore that is not least because, if, for instance, a private care home is in respect of some of its activities a public authority in Convention terms, the whole of the Convention jurisprudence, and the whole of those articles of the Convention set out in Schedule 1 to the 1998 Act, apply to that part of its activities. Arguably the monocular concentration on the assertion of the rights of the individual against the state that inspired section 6 causes no, or at least not much, difficulty when applying section 6(3)(b) in relation to what have been called the absolute obligations, such as that arising under article 3. Further Article 8(2) provides that a "public authority" may interfere with the exercise of the article 8 right when that is in accordance with the law and which is necessary in a democratic society in the interests of national security,

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public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or the protection of the rights and freedoms of others. The public authority's actions that interfere with a citizen's private or family life have therefore to be judged by that standard. But the language and assumptions of article 8(2) are all redolent of the powers and discretions of public authorities in the full sense of the expression; that is, bodies that actually have power and responsibility to do something about national security or the protection of morals. This essentially public nature` of the Article 8 balance; was indeed one of the reasons motivating those who, at the time of the passing of the HRA, warned against facile assumptions that the language of the Convention could simply be applied to transactions between private individuals. In YL ¬v- Birmingham City Council216 the House of Lords considered once again the meaning of Section 6(3)(b) of

216 UKHL 27

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the HRA, and the Appellants argument that the terms of public authority should be given a wide and generous construction. It was interesting to note that Lord Bingham217 and Baroness Hale218 came to the conclusion that the company, in providing accommodation, health and social care for the appellant, was performing a function of a public nature. This was a function performed for the appellant pursuant to statutory arrangements, at public expense and in the public interest. Baroness Hale commented219...I have no doubt that Parliament intended that it be covered by section 6(3) (b). The Court of Appeal was wrong to reach a different conclusion on indistinguishable facts in R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936. Furthermore, an act in relation to the person for whom the public function is being put forward cannot be a "private" act for the purpose of section 6(5) (although other acts, such as ordering supplies, may be). The company is therefore potentially liable to the appellant

217 Of Corrnhil , dissenting. 218 Of Richmond. Both of whom gave dissenting judgments 219 Paras. 73-74

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(as well as to the council) for any breaches of her Convention rights. Baroness Hale concluded.......... We have not been concerned with whether her rights have been or might be breached in this case. It is common ground that the company may seek to justify any invasions of her qualified rights. Whether 'the rights of others' for this purpose includes the rights of the company itself is a question for another day... But it is also common ground that the company, being a 'non-governmental organisation' for the purpose of article 34 of the Convention, may complain of violations of its own Convention rights, as pointed out by Lord Nicholls in Aston Cantlow220,..Any court would have to strike a fair balance between competing rights.221 Whether this is correct can be examined from two perspectives, both of which are contentious, but one of which is probably clearer than the other.

220 [2004] 1 AC 546 221 Para 11.

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Firstly, is this right as a matter of public policy? In other words, regardless of the legal correctness of the decision, is this the way things should be?

The better view, as a matter of principle, is surely that Southern Cross is carrying out functions of a public nature and section 6(3)(b) therefore applies, although the section 6(5) exemption may still be relevant in certain circumstances.

This conclusion is the only one that gives full effect to the HRA and is based on the simple premise that the provision of care and accommodation to the elderly, whether fully or partly funded by a local authority, is a public function.

This is the view laid out in the opinions of Lord Bingham222 and Baroness Hale223. Therefore, even though Southern Cross is operating as a profit making enterprise, residents placed in one of its homes by a local authority are entitled to the protection of the HRA.

222 Para 19 223 at 61-72

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It has been suggested that protection for residents like Ms YL is best entrusted to a contractual approach, but this does not give an adequate level of protection for some of the most vulnerable members of society224

As a matter of policy this expansionist approach to public functions is that preferred by the Joint Committee on Human Rights and seemingly the DCA. It also surely reflects Parliaments intentions in passing the HRA.

Even if we accept that in a perfect world the public good and public policy are best served by Southern Cross being viewed as carrying out functions of a public nature, the second question to be asked of the YL judgment is whether it is correct as a matter of law.

As the HRA did not define functions of a public nature the courts are effectively being asked to decide what can be considered to be public` on a function by function

224 (See Paul Craig, Contracting Out, the Human Rights Act and the Scope of Judicial Review`, Law Quarterly Review, 2002 and Catherine M Donnelly, Leonard Cheshire Again and Beyond: Private Contractors, Contract and S.6 (3) (B) of the Human Rights Act`, Public Law, 2005).

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basis, as recognised by Lord Nicholls;225 and Lord Bingham.226

It is interesting to note that Lord Neuberger acknowledges in YL 227 that the test applied in any individual case will be constructed to justify a policy based decision. The majority has clearly reached a view on the policy and they don't agree with me. Be that as it may, have they reached the legal decision within the loose framework that the legislation and previous decisions have defined.

On the face of it; the judgments appear to acknowledge the criticisms of earlier decisions, which concentrated too much on the nature of the institution, in question.

Instead they appear to analyze the function concerned. However, on closer inspection the majority appears to have been too influenced by the nature of Southern Cross as an institution, reflecting their opinions on the policy forces behind this issue.

225 At Para 12 of Aston Cantlow 226 At Para 5 of YL. 227 At Para 128

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So in all three opinions of the majority it is possible to detect a thread running through them, which is concerned with Southern Cross as an institution, and a profit-making institution. This is most noticeable in Lord Scott's speech228 and Lord Mance's,229 but it runs deeper in the majority's thinking than simply those two paragraphs. That is why Lord Neuberger can list seven factors that suggest Southern Cross was performing a public function230 (and still discount them all); are, in summary form: a. The existence and detailed nature of statutory regulation and control over care homes; b. The provision of care and accommodation for the elderly and infirm is a beneficial public service; c. The elderly and infirm are particularly vulnerable members of society;

228 At Para 26 229 At Para 117 230 (Para 154)

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d. The care and accommodation was provided pursuant to the local authority's statutory duty to arrange its provision; e. The cost of the care and accommodation is funded by the local authority pursuant to its statutory duty; f. The local authority has power to run its own care homes to provide care and accommodation for the elderly and infirm; g. The contention that section 6(3) (b) should apply to a contracting-out case.

While he rightly states that none of these factors are on their own sufficient231 he is, therefore, not giving them sufficient weight when considered together, this is hardly surprising.

Moreover this judgment has effectively raised the bar for other functions; however despite this it is difficult to say, when no prior definition exists, that they have got this completely wrong.

231 At least with the HRA as it currently is

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As a matter of law it seems that this function could have quite easily been public` or private` and it all comes down to the circularities inherent in a policy-driven definition, which is supposed to prove that policy!

It is tempting to draw the conclusion that the majority are basically saying that both interpretations may be valid, but because they don't like one of them the legislation should have been more explicit, again it is interesting to note that Lord Bingham praises the draftsman's wisdom at232, while Lord Neuberger criticizes the drafting.233

It should be remembered that prior to the HRA Ms YL would clearly have had no domestic action against either Southern Cross or Birmingham in defence of her Convention rights. Whether such an action was necessary in light of the arguments canvassed is doubtful. Of course there were always rights available to Mrs. YL, which have been sufficiently canvassed above.

232 Para 5 233 At Para 130.

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The HRA would clearly give her rights against Birmingham if they were accommodating her, but as the position is not clear with regards to Southern Cross then perhaps pre-HRA the position can be viewed as unaltered.

Of course, this only works if you don't see care and accommodation for the elderly as a public function. The problem still remains though; how can this be phrased in the HRA or what else can be changed? This of course is only relevant if you accept the proposition that YL runs counter to the prevailing policy. The minimum requirement on Birmingham CC under the 1948 Act is simply to arrange her accommodation and they haven't contracted out the arrangement, so unless there is to be an incredibly semantic debate about whether "provision" necessarily includes "arrangement" we probably haven't advanced very far, at least in terms of care homes.

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So how is Article 8(2) to be applied in the case of, for instance, a private care home that needs a resident to leave because the home is going into liquidation?234 The terms of Article 8(2) really make no sense so if the care home is to be treated as a public authority, article 8 will have been translated into the domestic jurisdiction as conferring no conditional but absolute rights. To try and reconcile the leverage behind the actual` argument regarding both Articles 3 & 8,235 is somewhat difficult, when considered with the safeguards now in place236 it is submitted that private homes are more susceptible to closure due to inadequate funds being paid by the local authority for the care being provided; it is upon these premises that local authorities wish to transfer such a responsibility to the private sector. Such action would be less of a burden upon the public` purse, however in taking such an approach, this lessens the impact of the HRA on those that arguable need the

234 Or wishes a resident to leave for the kind of reasons that apply in the case of Mrs. YL? 235 This is based upon the argument, which has been targeted at care homes in order to bring home the need to define the terms of Sec 6(3) (b) HRA. 236 Care Standards Act, which allows for monthly inspection (unanounced0 and the provisions to speak with the residents in private to listen to any concerns. (Regulation 26)

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protection, which of course was at the forefront of the Government given the intervention of her case [Mrs. YL] Equally national standards are increased almost monthly, whilst the fees remain the same. Yet local authorities themselves cannot keep pace and closures are the end product of the updated standards, which is meant to protect the residents of these homes. There is nothing to suggest that standards in private residential homes are any less than those run by local authorities, although concern has been raised by the British Institute of Human Rights237 who reported on treatment of residents of residential care homes that clearly amounts to a breach of their human rights. Cases include the circumstances of home closures or notice to individuals to leave homes, and inhuman and degrading treatment such as elderly residents being fed breakfast while on the commode. When such poor treatment occurs in privately run residential care homes, it is not satisfactory for residents to have to rely on interpreting a contract between a local

237 9 Jan 2007: Column 152

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authority and a home`s managers: they should be able to enforce their human rights directly; it is of course how this is done in light of the case law thus far. Of course such breaches in any event lend themselves to Notices being served238 as well as the possible closures239. Local Authorities have faced similar criticism regarding the standard of care over the years and the safe guards put in place are arguably sufficient once the abuse is detected. Moreover any home whether private; or otherwise still have to adhere to the strict criteria laid down by the relevant statutory provisions, which will be touched upon again below. This is not to say that the checks and balances are without fault, however local authority closures are just as traumatic to the residents what ever the label placed upon the establishment. In essence the writer has argued that the checks and balances should and to some extent are the same for either private or local authority run residential care homes.

238 For breaches under the Registration 239 For failing to be a fit` and proper person.

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Even the stages of public hearings prior to the closure of local authority run homes, often leaves those involved that the decision as already been ratified, and whatever representations have been canvassed. The writer discussed such a proposition with a family member who attended a meeting of the local authority, of which his mother resided240 At that meeting which was described a preliminary` he [the son] was advised that the manager [of the home] had been placed at another council run home. When he questioned further those representing the local authority why the home could not remain in ful operation. The response was simply that the local authority could not continue to comply with the new standards` now being imposed under the Care standards Act 2000. 241 Amongst the reasons were room sizes; the need to update the fire alarm; and the possibility of major repairs to the roof and the possibility of having to replace the windows at some later stage.

240 Blackpool Borough Council. 241 A statement of national minimum standards published by the Secretary of State for Health under section 23(1) of the Care Standards Act 2000.

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The council was reminded that the windows were new, and the roof had been replaced recently. The son considered that the hearing was a sham`, which appeared to be later confirmed when he received a telephone call to inquire whether he had found alternative accommodation for his ninety-nine year old mother. This was met with a complaint to his MP;242 who has now questioned the procedure adopted thus far. Of course financial inadequacy to maintain the building appeared to be behind the thrust of the local authority`s argument, despite the obvious decision to close the home with or without consultation. Of course judicial review was possibly open to him, although this has it limitations, both on the remedy and the costs involved. Although judicial review is very often an available remedy, the latter is only with respect the procedure adopted, rather than the decision itself. In essence the failure on the part of the authority could be challenged, however this would only allow for a fresh consultation whose outcome would probably still be achieved to the

242 Mr. Gordon Mardsen.

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local authorities satisfaction, and not those of the residents, most of who are in their late eighties. It has been touched upon above that private homes face the same difficulties and as the service providers of private homes they do not wish to fall under the umbrella of local authority. The Lord Chancellor243 upon addressing the issues now more prevalent sine the case of YL;244 put forward the proposition that widening the definition of public authority could have the effect of driving private providers out of the market. This was somewhat was extraordinary because the proposal would not widen the definition, but be exactly on all fours with what the then Lord Chancellor told Parliament was intended when the Bill was introduced. It was canvassed that the appalling implication is that those in private sector care homes, who are probably more vulnerable to abuse than those in-house facilities,

243 Department`s July 2006 review of the Human Rights Act 244 discussed below

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are not to have a right to challenge that abuse in our courts, thus making them second-class citizens. Their numbers are growing as local authorities continue to contract out. The contractors` commercial interests are put before the decent treatment of the elderly and vulnerable. Of course the statement fails to take into account the criminal ramifications associated with ill treatment, such as assault, theft etc, these are adequately dealt with under long standing statutory provisions, and of course fall within the terms of the Care Standards Act 2000. However if degrading treatment is less than the latter, then this in itself lends itself to embrace all those providing care to be accountable. The Registration criteria discussed above, would lend it self to the cancellation of the Registration within the terms of the HRA245. Whilst the situation may not be ideal the Regulations within the Care Standards Act 2000 246; does make an

245 Care Standards Act 2000 246 Hereafter the CSA

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inroad to providing the checks and balances and puts in place a minimum` standard to those providing residential care. That said the HRA does not embrace certain types of accommodation being provided247 Whatever the label one wishes to place upon the type of occupation the courts will look to the terms of any agreement to ensure that it has not been created to circumvent the CSA. Of course the HRA248 would be a useful clarification to support the underlying policy, but it wouldn't actually have helped Ms YL249. Some situations were hinted at in passing in YL. Beyond that, the Joint Committee on Human Rights has looked into this twice before250. They considered four possible ways forward; mending legislation: 1) Amending legislation; 2) A contractual approach; 3) Guidance; 4) Judicial interpretation

247 A Tenancy may not be included, which depends on exclusive possession 248 Meaning of Public Authority Bil 249 Ibid 250 In the 7th report of 2003/04 and the 9th report of 2006/07

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Their preferred solution in 2004 was to allow the interpretation of section 6 to develop in the courts, but that has failed to provided the remedy that it was probably hoped to achieve. This possibility was recognised at Para 116251 and the more recent report concluded that new legislation would be necessary. If there is a strong feeling that this particular case is wrong then a simple amendment to the National Assistance Act stating something like "acts carried out in accordance with these sections shall be considered to be functions of a public nature for the purposes of the HRA, however this would not be without problems. The knock on effect is that similar acts which don't have any such statement about them may well be considered not to be public functions precisely because they will be seen to have been excluded and then the dilemma continues of having to list every single public function` or authority`, which is awkward for a concept which Lord Mance rightly regards as not being immutable.

251 of the 2007 report

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This approach has been ruled out by the Joint Committee in terms of listing all public authorities, but they have given some limited support to the possibility of amending specific Acts to state that a particular function is or was public. Equally if it was the intention of Parliament to embrace protection for people like Mrs. YL, then this could [as above] be achieved, without necessarily closing the ambit for similar cases involving other providers of a different nature. It could be argued that such a definition could pave the way for elucidation of such a meaning, thus adding clarity, rather than uncertainty. This may then provide appropriate guidance and framework for the courts to re-examine the concepts and ensure that the original intention of Parliament in 1998 is not frustrated. Of course great play has been made between the private and public sector, in order to protect the rights of those most vulnerable to abuse; however it is noteworthy in conclusion to analyze the rights and responsibilities now that NL252 has for the time being put paid to the notion that those within the private sector do not fall within the remit of the HRA.

252 Ibid

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Whilst one cannot argue that those most vulnerable members of society should not be protected from any form of abuse;253 then it would be more amenable to amend the Care Standards Act 2000, to embrace Article 3, in the sense that similar wording regarding degrading and other treatment could be including in a loose sense. With regard to Article 8; there are no guarantees whether public` or private` sector providers can keep a non functional home open in any event. In essence this in itself raises the issue whether the public authority should have the task in caring for our aging society. Of course what ever ones means in a resident requires 24hr care, then they shall be excused from meeting any costs as this is classed a nursing care, which under the scheme of things would be met in the public sector in any event. The above is upon the promise that without the HRA then the checks and balances are lost. This however does not necessary stack up when considered fully with the private sector in any event. To this end it is worthy to visit a case decided upon under the terms of the CSA254

253 Ibid, when residents sat in commodes whilst eating their breakfast. 254 Ibid.

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For instance any misdemeanors may result in the de-registration of the rest home, with the loss of places for all the residents. This of course would be damaging as well as traumatic to all those that the legislation was meant to protect. Of course society must have in place all the checks and balances to protect those most at risk, and of course one cannot compromise the dignity or safety of the above when dealing with matters of complaint.

To this end whilst Article 3 may be brought in to question by reason of the status of the particular body providing care, the end product may be just as damaging in any event. Further the viability of a rest home255 is as important and CSA addresses this issue square on. In the case of Cornwall County Council,256 this concerned the de-registration of the owners of Penhellis Care Home by the Care Standards Tribunal257

In a case following complaints against a private sector residential home; Cornwall County Council, welcomed the

255 This point is raised again, given the nature of chal enges under Sec 6(3) of the HRA have recently involved Rest Homes. 256 See web-site posting in 2007. http://www.cornwall.gov.uk/index.cfm?articleid=38894 257 Formed within the terms of the Care Standards Act 2000 [Ibid]

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decision to cancel the registration of the company which was responsible for running the Penhellis Care Home in Helston258

The Council stated259 "We continued, at public expense, to keep the home open for as long as possible, but the owners were unable to agree a sale. At that point we clearly could not continue allowing people to live in a home where their safety and quality of care could not be guaranteed."

Of course the quality of care could not be guaranteed, by reason of CSA260, although the CSA was the inbuilt safeguard to protect those most vulnerable. In this case there was a number of concerns expressed one which was effectively the credibility of a director261 The report of the Tribunal hearing identified a catalogue of persistent failures by the registered proprietor, Mr. Saf Awan, to respond to requests from CSCI for evidence that he was a fit person to be the responsible individual for the home. It stated

258 As per Nigel Walker (Lib Dem) who stated the County Council's Executive Member for Adults, is glad that clarity has been brought to the situation by the organization responsible for regulating care homes. "At the beginning many people natural y but incorrectly assumed that the County Council was responsible for the decision to move residents. We were aware of the Premium Care Home's situation and we worked hard to try and assist the transfer of the business to someone else. This would have been the ideal solution, and we are saddened that this was not achieved." 259 Nigel Walker Ibid. 260 Which sets out the minimum requirements expected within both public and private` sector providers??? 261 Mr. Awan had been struck off the Roll of Solicitors in 2001 or that, at the time, he was An undischarged bankrupt. Mr. Awan was made bankrupt on 21/05/03.

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that letters were repeatedly ignored and promises were made to provide information that was never kept. Regulations,262 requires that the Company should be satisfied as to the fitness of an employee. In this case the CSCI wrote to Premium Care Homes Ltd on several occasions between 30/07/04 and 11/11/05 to establish that the required checks had been carried out with regard to Mr. Awan's263 fitness. The Tribunal report showed that not all the directors of Premium Care Homes Ltd were in possession of all the information; which would have enabled them to make an informed decision. The Company was unaware, for example, that Mr. Awan had been struck off the Roll of Solicitors in 2001 or that, at the time, and he was an undischarged bankrupt264. The Tribunal also found that the Company had failed to comply with a number of other regulations. The above included Regulation 25, which states... "The registered provider shall carry on the care home in such a manner as is likely to ensure that the care home will be financially viable for the purpose of achieving the aims and

262 In particular Regulation 19 263 A Director of the Company. 264 Ibid

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objectives set out in the statement of purpose." It also requires the registered person to: "Provide such information and documents as it may require for the purpose of considering the financial viability of the home if the Commission requests." The Tribunal was given evidence showing that not only did the Company fail to comply with requests for financial information; it also failed to respond to a Statutory Requirement Notice. For completeness Regulation 13 states that: "If it appears to the registered person that the establishment or agency is likely to cease to be financially viable at any time within the next following six months the registered person shall give a report to the Commission of the relevant circumstances." Evidence from Mr. Awan was that the Home encountered financial difficulties shortly after registration. PAYE and National Insurance contributions on behalf of the company's employees had not been forwarded to the Inland Revenue, resulting in a winding- up petition being presented in February 2007 by Customs and Excise. The Tribunal also ruled that the Company had failed to comply with Regulation 10 which states that: "The registered provider and the registered manager shall, having regard to the size of

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the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home with sufficient care competence and skill." 265 The decision to close a care home is never taken lightly and is usually the last resort after every effort has been made to get the owners to improve standards and comply with legal requirements266. Penhellis Care Home is now empty of all residents, as they have been transferred to alternative accommodation.267 It follows that in such circumstances that the HRA would not have assisted in any event, unless of course statute imposed a duty upon a local authority to take over the running of a rest home whose management skills had fallen short of the CSA.

Of course the viability of the Rest Home was of immense importance and therefore this raises the further issue as to what would be the position if say the bank who had underpinned the

265 The report concludes that the Company failed to demonstrate that the Home had been managed with sufficient, competence and skill to meet the regulation. 266 As per the Committee. 267 It was noted that the intentions of Mr. Saf Awan with regard to the future of the home were unclear at that time.

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business decided to call in the loan, or appoint receivers to dispose of the property.

It cannot be doubted that the same traumatic effect would nonetheless play a great deal in the upset of the residents, in being placed in other homes. In essence the HRA would not have been of any assistance, unless checks and balances were put in place to bind other outside influences, which of course would and could not be the case.

It follows that that despite the desirability of incorporating the HRA in contracts as suggested by the Joint Committee on Human Rights268 such a proposition would arguably be short lived and would have very little effect in cases such as the above example269

Further Nia Griffith; putting a question to Lord Goldsmith270... Could I move on to the meaning of public authority? In the Law Lord's decision last week in the YL case on the meaning of public authority in relation to the Human Rights Act, and obviously with the increasing involvement of voluntary and

268 Ibid 269 Cornwall County Council [Ibid] 270 Evidence before the Joint Committee on Human Rights, HL 394 Q251

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private organisations in the delivery of public services, we obviously now have a situation where two individuals could be in very similar institutions and yet the law would be interpreted differently according to whether it was a private or local authority run home. What now is the Government's attitude to our Chairman's private Member's bill on the meaning of public authority?

Lord Goldsmith: The Ministry of Justice, the responsible department for this, did, as you well know, argue consistently with the undertaking it had given to this Committee that the decision of the Court of Appeal in the YL was wrong, and narrowly, by a 3:2 majority, that was rejected. The department is not considering carefully the implications of the judgment. If I may deal directly with the point about the Chairman's private Member's bill, I think there is a real, very important issue about the definition, which would then be applied. What is a public authority requires very careful consideration....

On the one hand - and the Government did take the view - those bodies that were caught by the YL judgment ought to be treated as public authorities. That is what it argued. On the

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other hand, there are bodies, which would be brought in by the definition in Mr. Dismore's bill, like bed and breakfast accommodation, which would be treated as public authorities.

I must say I would have real reservations about that because there is a real risk that it would frighten off a lot of people who are providing simply bed and breakfast accommodation to homeless people, which is very important if decent and humanitarian standards are to be applied to them. I think it does need careful consideration but I am not responsible for reaching the final decision as to what it should say Unsurprisingly there is no real formula to set the issue to rest. Of course if you removed the criteria completely and embraced those providing a specific form of care such as rest homes, then of course they would automatically assume the responsibility within the terms of the HRA. However this in itself may be a hollow` victory, as in the case Premium Care Homes Ltd, in which it will be recalled271 the rest home encountered financial difficulties shortly after registration. PAYE and National Insurance contributions on behalf of the company's employees had not been forwarded to the Inland

271 Ibid

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Revenue, resulting in a winding-up petition being presented in February 2007 by Customs and Excise. Financial constraints in private and public sector are more of a dilemma than the HRA itself. In the above case one doubts that the HRA would have assisted no one, unless of course a recovery fund had been available, in the form of specific pool of funds being available to rescue a failing business.

One suspect that the answer would be swift from the Government in that they are not in the position to prop up the private sector, as in reality the private sector is not in a position to embrace the HRA.

Of course it has been canvassed throughout that in real terms would any distinction really matter, given the statutory controls; and the lack of investment within the private sector, which would be available to keep open non profit homes, unlike the local authorities who of course have sufficient funding to meet the needs of residents by under pinning state rest homes if the need arose, in order to satisfy the terms of the HRA.

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One sad reflection is simply that more local authority homes close due to non investment, and also being unable to meet the ever changing environment of the new standards being applied upon a regular piecemeal basis.

It follows therefore that the dilemma in real times will remain, even if the HRA was amended and section 6(3) was al embracing, as this would long term only protect those residents in well established and trusted establishments.

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Time Limits In the case of proceedings taken against a public authority there is a limitation period of one year from the date of the act complained of272, unless there are shorter time limits that apply to the action - for example three months for judicial review273 - in which case the shorter time limit will apply. Convention rights can be waived, but only if the waiver is unequivocal and does not conflict with an important public interest. In short the HRA instils within the UK a new approach that can be best demonstrated in the procedure adopted in both civil and criminal cases274. Tribunals and committees along with other such bodies will be left in no doubt that the rules of natural justice prevails both against procedure and bias275.

272 Applies only to claims which directly al ege breach of Convention by a public authority see 7(1) & (3) 49 Application must be made promptly, within a 3 month , and unlike the old RSC R> 53, time may not be extended see r. 54.5 92)(4) 274 Article 6 HRA for instance 275 Bryan v UK 21 EHRR [1995] @ 342, Held that a developer could challenge an enforcement notice as a breach of Article 6. "In the context of planning appeals the very existence of this power available to the executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice and irrespective of whether its exercise was or could have been in issue in the present case."

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The Importance of Enforcement The purpose thus far has been to provide a flavour of human rights protections as enshrined in the Convention, and a brief outline of the statutory framework of the HRA. Having set out the basic framework, to make this dissertation more understandable, is to the ensuing arguments in context. It is now pertinent to consider the issue of enforcement. One of the main reasons why the newly elected government in 1997 pledged to enact a human rights statute was to provide an easier and more readily available method by which aggrieved individuals could bring Convention claims.276 The case of Brind 277 exposes the frailties of the judicial assumption that Parliament always intends legislation to

276 Rights Brought Home [CM 3782]. 277 Brind v Home Secretary 1991 1 AC 696

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respect their Convention obligations. Accordingly, arguments for human rights would be minimal and hypothetical. Moreover, given high profile embarrassment on the pan- European-level278 meant that many policy makers considered a change was necessary to ensure domestic courts could, metaphorically, nip violations in the bud whilst preventing future regional embarrassment279. Before moving onto the statutory scheme of the HRA, which makes this possible, it is important to say a note on the importance of enforcement. To use an example, the Universal Declaration of Human Rights, signed in 1948, applicable in international law, makes very lofty guarantees. In addition to guaranteeing basic civil liberties, it guarantees work, free choice of employment to a decent social and cultural life. Crucially, however, the guarantee is not to enforce these universal` rights against all who

278 for example, the Article 3 violation in Ireland v UK ¬ (1979-80) 2 EHRR 25 279 See Towards a Constitutional Bil of Rights for the United Kingdom, by Robert Blackburn (A Cassell Imprint) BLC ISBN 1 85567 529 3

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choose to violate them, but calls for teaching and education` by states280. This goes to the nub of the argument. It is all very well making grand moral statements, but if these statements cannot be effectively enforced these statements become illusory, rhetorical folly. There must be practical bite` of enforceability to transfer these statements into reality.281 The idea of enforcement comes in many forms, and so it is necessary here to define the term for the purpose of further discussion. Enforcement can involve citizens gaining access to the courts, an inherent right in Article 6(1). In Golder v UK (1960)282 it was considered that Convention guarantees would be useless` if it was impossible to commence court proceedings in the first place. Further, there is a right to effective remedy`, and if a national court fails to provide this where there is a breach, aggrieved citizens may commence proceedings in the ECtHR.

280 Preamble, Universal Declaration on Human Rights 1948 281 GEARTY (2004) ,,Is the idea of human rights now doing more harm than good? Centre for the study of human rights, lecture at London School of Economics and Political Science, 12 October 2004. 282 (1994) 18 EHHR

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The ECtHR can, and then issue a declaration as to whether the member state is in conformance with its Convention obligation. However, this declaration is of no binding effect. If a statute is in violation, the ECtHR cannot strike down this piece of legislation. In the context of this dissertation, this is the parameter of the enforcement debate. To put it in its crudest and characterised form, the enforcement hinges on the extent to which the judiciary can deem a statute unconstitutional` or unlawful`. It is clear from the above paragraph that the ECtHR does not possess these powers, but the purpose of the dissertation from here is to consider whether the enforcement provisions of Sections 3 and 4 could warrant this extreme consequence. These provisions themselves are of great constitutional importance and go to the heart of the debate on the judiciary`s boundary of intervention in a constitutional democracy. The scope of this enforcement mechanism affects profoundly the relationship between the

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legislature and judiciary, and hence the supremacy of Parliament. Indeed, the fact these issues are under consideration itself raises issues of fundamental constitutional principle and possible challenges to these orthodoxies. Before engaging these two central enforcement provisions in the HRA, it is important to point out that by no means is there one settled method of human rights enforcement by the judiciary. National constitutions within the European continent can and do go over and above the guarantees made by the ECtHR for effective remedies. They can, and do, also go further than the Convention in how rights are characterized283.

This is not to accept that the Convention is a lowest common denominator, but to maturely recognize that national systems can develop their own constitutional approaches and characterize human rights in a way peculiar to their national identity and culture.

283 For example, this contains in the main civil and political rights, but this does not preclude member states from developing social and economic rights.

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Chapter 5 ENFORCEMENT UNDER THE HUMAN RIGHTS ACT As set out in the previous chapter the most robust enforcement mechanism charges the judiciary with ruling on the legality of a statute and its compatibility with constitutional norms. In considering this role it is useful to consider approaches taken by the USA, Canada and South Africa284. The judiciary in these cases measure legislation against a constitutional document, with an ultimate power of legislation invalidation. This formation can handily be described as entrenched bills of rights in that the validity of legislation hinges on the judicial determination of its compatibility this constitutional text. An alternative approach that does not accept the ramifications of increased judicial powers is prevalent in New Zealand, which determines human rights as

284 For an introductory text on the Canadian Charter see Schabas, [1991)] International Human Rights Law and the Canadian Charter, Toronto, Carswell.

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essentially a shared enterprise between both the judiciary and Parliament. This approach can aptly be described as an interpretative bill of rights insofar as the enforcement mechanism available to the courts is to find human rights compatible with the linguistic or implied intention of legislation. Enforcement as a political compromise It is from this pedigree that the HRA emerges as a political compromise between the desirability of Parliamentary sovereignty and international respect for human rights. How this compromise is maintained depends crucially on how the judiciary perceive their constructive obligations under Section 3(1), which provides So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

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The term that draws most attention in the passage possible, and the vast majority of this dissertation will concern itself with ascertaining its scope and the way that the judiciary have applied the perceived meaning within the body of their judgments.

As stated, the reach of a human rights regime depends crucially on the enforcement mechanisms at the court`s disposal, and there are still many open questions about how the judiciary exercises their obligation under these, provisions.

Despite this, cabinet ministers have looked upon Section 3 of the HRA with a good deal of optimism, viewing it as a provision enabling the judiciary to make quiet corrections of most offending legislation. The government expressly opted for the word possible over reasonable in section 3(1) to create a more onerous duty on the courts to find a Convention compliant interpretation. As the then Secretary of State for the

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Home Department, Jack Straw, said: We expect that, in almost all cases, the courts will be able to interpret legislation compatibly with the Convention285

Arguably, the government has therefore given the courts a green light to carve out an extensive jurisdiction in human rights enforcement, but this comes with conditions.

These conditions are supplied by other provisions in the HRA286. Section 3(2) provides Section 3(1): ......applies to primary legislation and subordinate legislation whenever enacted and does not affect the validity, continuing operation or enforcement of any incompatible primary legislation`.

This can best be described as the non-invalidation clause, which ensures that whilst the court can adopt an extensive role under Section 3(1), this does not permit invalidating, or making an interpretation that fundamentally departs from the operation of a statute.

285 Hansard HC, 16 February 1998, col 780 286 Gearty (2002) Reconciling Parliamentary Democracy and Human Rights` 118 Law Quarterly Review.

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Moreover, as Lord Irvine argues: This ensures that the courts are not empowered to strike down Acts of Parliament which they find to be incompatible with Convention rights`287.

In cases when the judiciary find that a Convention compliant is not possible, they will apply Section 4(2), which provides: If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility 288

Again, the rationale for this Section is that it introduces: ...a new mechanism through which the courts can signal to the Government that a provision of legislation is, in their view, incompatible. It is then for government and Parliament to consider what action should be taken Also adds, I believe that this will prove to be an effective procedure and it

287 Hansard HL, 3 November 1997, col 1230 288 Ibid

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is also one which accords with our traditions of Parliamentary sovereignty. 289

A major issue is the frequency at which this provision is used. Lord Irvine said that Section 4(2) provides for the rare cases where a declaration must be made290. These declarations are serious and are likely to prompt the government and Parliament to respond,291 although the failure to respond has led to criticism by the judiciary292

It is worth noting and touching upon the procedure of remedies at this juncture whereupon the government can respond to such a declaration by using the fast track procedure293 to this end such a procedure can be commenced either as above following a declaration of incompatibility however amendments by the executive are limited under remedial orders294 and only where there are compelling reasons to do so, and normally by a positive resolution procedure295

289 Ibid 290 Hansard HL, 3 November 1997, col 1231 291 Ibid 292 Goodwin v United Kingdom [2002] 35 EHRR 18. @ 52,53,102-4 & 120 293 See Sec 10 and Schedule. 2 294 Statutory instruments. 20 (1); which amends, and removes its incompatibility with the Convention. 295 Schedule 2 of the HRA

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The effect of the order will allow retrospective effect, although a limitation is applied in that the retrospections cannot create for instance a criminal offence if none existed prior to its implementation.296

The statutory mechanisms by which human rights can be enforced; the interaction between Sections 3 and 4 is an important feature of the HRA297.

Both sections are crucially dependent upon the way, in which the judiciary perceive their scope. It follows that a broad reading of Section 3, permitting the vast majority of cases being read Convention compliant, will inevitably lead to a reduced role for Section 4.

The same is, of course, true if the judiciary deemed Section 3 to carry a weak interpretative obligation coupled with a deferential approach to Parliament. There is a fundamental tension between Sections 3 and 4 with

296 Schedule 2, Para. 1 (3) 297 Klug [2003] Judicial Deference Under the Human Rights Act 1998` European Human Rights Law Review 125.

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a broad approach to one necessarily reducing the scope of the other298.

Arguably the power to change a law retrospectively is to accommodate a violation once a declaration has been made under Section 4. Parliamentary supremacy is preserved in that the Minister is required to lay before Parliament a document containing a draft of the proposed order together with the required information299

Such information can be summarised as explanation of the incompatibility, which would include findings or order together with the required information and rreasons for proceeding, under Sec. 10, and for making an order, in the proposed terms.

Once compliance has been met then there is a period of at least 60 days, which allows for information to be gleamed from the Minister concerned.

298 Irvine [2003], the Impact of the Human Rights Act: Parliament, the Courts and the Executive`, Public Law 308. 299 See Schedule: 2, Para 3; & 5

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The Minister may amend the draft in light of representations. Once amended or approved in draft form, this is again laid before Parliament accompanied by a summary including any representations that have been made. The order does not come into effect until approved by a resolution of each House within 60 days, after it is laid for the second time.

For completeness an order made under the fast track, only remains in force for 120 days, unless approved in the above terms. Following R (H) v Mental Health Review Tribunal300 the Sec. of State introduced The Mental Health Act 1983 (Remedial) Order 2001301 using the urgent procedure above, this can be explained because of the fundamental rights to personal liberty and if not rectified quickly, would have created confusion as the tribunals considering such matters would have been unsure as to who bore the; burden of proof`.

The power given under Sec. 10 to amend legislation applies both to primary and secondary legislation. This is

300 [2001] EWCA Civ @ 415, 301 Statutory Instrument. 2001/3712

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useful as it allows speedy amendments following an adverse decision by the ECtHR, thus saving potential embarrassment to Parliament.

Problem of constraining possible` Section 3(1), therefore, plays a large part in guiding the extent to which the judiciary may consider any complaint alleging that legislation is Convention incompatible.

As stated, the term possible` draws close attention, as it is inevitably the scope of this term that will determine the effectiveness of judicially enforced human rights.

Therefore, it is of the utmost importance to ascertain the scope of the term, and how this can guide the judiciary`s constructive obligations.

The problem with Section 3, however, is there is no matter of fact way of restricting what is possible. Whilst semantically the word possible necessarily implies the existence of external constraining factors, this does not help in defining what these constraining factors are. It

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will be argued in the next few parts that the HRA occupies a shaky constitutional ground between Parliamentary supremacy and fundamental rights.

How the courts plough this middle ground has been left silent by Parliament, and there is a risk that Section 3 is sanctioning the invalidation of legislation through interpretation.

Before adopting this extreme consequence, it is instructive to examine the following synthesis of judicial statements as to what is deemed a Convention compliant construction within the realms of the possible`.

Judicial approaches to Sections 3(1)

To this end a number of judicial statements have been made on both Sections 3 and 4, and the following represents a synthesis of these speeches... The interpretative obligation...is a strong one302, quite unlike any previous rule of statutory interpretation303, and to

302 A [2002] 1 AC 45, 67 per Lord Steyn. 303 A [2002] 1 AC 45, 87 per Lord Hope.

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be applied even if there is no ambiguity in the language304. Subject to the Section not requiring the court to go beyond that which is possible, it is mandatory in its terms305 and places a duty on the court to strive to find a possible interpretation compatible with Convention rights306.

It is therefore legitimate to adopt an interpretation which linguistically may appear strained307 as Compatibility with Convention rights is the sole guiding principle308.

However the court`s task is to read and give effect to the legislation which it is asked to construe309. The Section 3 obligation ...applies to the interpretation of legislation. This function belongs, as it has always done, to the judges.

304 A [2002] 1 AC 45, 67 per Lord Steyn. 305 Poplar [2001] 4 Al ER 604, 624 per Lord Woolf. 306 A [2002] 1 AC 45, 67 per Lord Steyn. 307 A [2002] 1 AC 45, 68 per Lord Steyn. 308 A [2002] 1 AC 45, 87 per Lord Hope. 309 A [2002] 1 AC 45, 87 per Lord Hope.

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In R v Lambert310 Lord Hope stated the obligation powerful though it is not to be performed without regard to its limitations. The obligation applies to the interpretation of legislation, which is the judge`s function. It does not give them power to legislate

Further Section 3 does not give power to the judges to overrule decisions which the language of the statute has been taken on the very point at issue by the legislator311.

In essence once a construction of a particular piece of legislation is found to be incompatible under the terms of the HRA then under section 4 a declaration is made.

There are of course a number of practical problems involved in applying Section 3 it may be enough simply to say what the effect of the provision is without altering the ordinary meaning of the words used312. In some cases, ...a strained or non-literal construction may be adopted, words may be read in by way of addition to

310 R v Lambert [2002] 2 AC, 545, 585 B-D, Para 79 311 Lambert [2001] 3 Al ER 577, 604 per Lord Hope. 312 Lambert [2001] 3 Al ER 577, 604 per Lord Hope.

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those used by the legislator and ...words may be read down to give them a narrower construction that their ordinary meaning would bear313.

In other cases the words used will require to be expressed in different language in order to explain how they are to be read in a way that is compatible with the HRA. The exercise in these cases is one of translation into compatible language from language that is incompatible314.

In dealing with these problems, it is necessary to identify precisely:- (a) The words used by the Legislature which would otherwise be incompatible with the Convention right; and

(b) How these words were to be construed, according to the terms of Sec. 3, in order to make them compatible315. So far as possible judges should seek to achieve the same attention to detail in their use of language to express the effect of applying Section 3(1)

313 Lambert [2001] 3 Al ER 577, 604 per Lord Hope. 314 Lambert [2001] 3 Al ER 577, 604 per Lord Hope. 315 A [2002] 1 AC 45, 87 per Lord Hope.

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as the Parliamentary draftsman would have done if he had been amending the statute. It ought to be possible for any words that need to be substituted to be fitted in to the statute as if they had been inserted there by amendment.

Therefore, in applying Section 3 courts must be ever mindful of this outer limit316. In Lambert, Lord Hope said It is therefore clear that the court can only extend a meaning provided it can be done without doing such violence to the statute as to make it unintelligible or unworkable, otherwise the use of this technique will not be possible317.

In Poplar Lord Woolf said the most difficult task which the courts face is distinguishing between legislation and interpretation...if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved318

316 S&W [2002] 2 AC 291, 313 per Lord Nichol s. 317 Lambert [2001] 3 Al ER 577, 604 per Lord Hope. 318 Poplar [2001] 4 Al ER 604, 624 per Lord Woolf.

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However interpretation depends on how far the courts are prepared to read in to the statute a specific meaning, or put in a different way, how they [the courts] are prepared to strain the meaning in order to uphold an alleged wrong doing of the court below.

In, Condron v The United Kingdom the Court of Appeal considered cases on appeal, the ECtHR held that Court of Appeal in merely considering the safety of the applicants` conviction was in breach of their fundamental rights within the HRA.319

The Court of Appeal was concerned with the safety of the applicants` conviction, rather than had he received a fair trial.... The question whether or not the rights...guaranteed to an accused under Article 6 of the Convention was secured cannot be assimilated to a finding that his conviction was safe....320

That decision was later followed by the Court of Appeal, Lord Woolf C.J...it would be unfortunate if the approach

319 Condon v. The United Kingdom. Appli. No. 35718/97. Judgment given at Strasbourg, May 2, 2000

320 Condron v. The United Kingdom. Appli. No. 35718/97 @ Paragraph 65

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of the European Court of Human Rights and the approach of the Court of Appeal were to differ. Section 3 of the HRA now required all acts of the UK Parliament to be read in a way that was compatible with Convention rights321 In essence all UK legislation should be given a meaning that adopts and embraces the rights, if that's possible,322 as above such a meaning is purely dependant upon how far the courts are prepared to go in the exercise of that function. Lord Woolf in the Privy Council said, That issues involving the Bill of Rights should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public323. Granted the Convention is not an entrenched bill of rights but no less important to the society, whose human rights are embodied within the HRA. It should be minded that

321 The Times (London), November 21, [2000] 322 For example If a court makes a declaration of incompatibility then it is for Parliament to amend (see below) 323 Attorney-General of Hong Kong v. Lee Kwong-Kut [1993] AC 951 @ page 975

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the principal aim of society in England was [and remains] to protect individuals in the enjoyment of the absolute rights of life, liberty, and property324. Simor and Emmerson's recent publication, Human Rights Practice325..."(a) that the rights should be 'practical and effective' - the effectiveness principle (b) that an autonomous or independent interpretation of certain Convention terms is necessary to ensure uniformity and to prevent the Convention's purpose being frustrated; and (c) that certain of its terms must be interpreted in a dynamic or evaluative way in order to ensure that rights are effectively protected in the light of social and scientific changes". Judicial approaches to Sections 4(2) A Convention compatible interpretation will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible [and] the same result must follow if they do so by necessary

324 Sir William Blackstone, in his Commentaries, on the Law of England, vol. 1, 124.

325 J Simor and B Emmerson QC, Human Rights Practice, (June 2000), Sweet & Maxwell

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implication, as this too is a means of identifying the plain intention of Parliament326.

Indeed, Lord Bingham in Anderson [2003] noted, In these cases using s3 would not be judicial interpretation but judicial vandalism... [as] it would give the section an effect quite different from that which Parliament intended327. But the interpretation of a statute by reading words in to give effect to the presumed intention must always be distinguished carefully from the amendment.

The first declaration of incompatibility was issued in March 2001. In this case, the Court of Appeal held that Sections 72 and 73 of the Mental Health Act 1983 were incompatible with Articles 5(1) and 5(4) of the Convention in that they reversed the normal burden of proof in requiring a detained person to show that they should not be so detained, in essence he who asserts must prove328.

326 A [2002] 1 AC 45, 87 per Lord Hope. 327 Anderson [2003] 1 AC 837, 883 per Lord Bingham. 328 R v (1) Mental Health Review Tribunal, North & East London Region (2) Secretary Of State For Health ex p H (2001)

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Subsequently, there have been a further number of cases. In R v Commissioners of Inland Revenue Section 262 of the Income and Corporation Taxes Act 1988, held incompatible and repealed. In R v Mental Health Tribunal North and East London Region sec 73 of the Mental Health Act 1983 was declared incompatible and amended329. In International Transport Roth GmbH v Secretary of State for the Home Department, the penalty scheme contained in Part II of the Immigration and Asylum Act 1999 declared incompatible and amended330. In R v McR Section 62 of the Offences Against the Person Act 1861, Criminal Justice (Northern Ireland) order 2002 (2003 No 1247 (N.I. 13), Article 19 and Schedule 1. Made, 8 May, 2003.

329 amended by Mental Health Act (Remedial) Order 2001 (made 18/11/01, in force 26/11/01) 330 Amended by Nationality, Immigration and Asylum Act 2002, section 125, and Schedule 8(Amendments to the Bill tabled on Report in the House of Commons, 12 June 2002. In force 14 November 2002/ 8 December [2002]

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No prosecutions have been brought under section 62 since the declaration of incompatibility331. In the case of Bellinger v Bellinger332 the rights of transsexuals came under consideration, by the House of Lords who found itself unable, or at least unwilling, to interpret 11(c) of the Matrimonial Causes Act 1973 in such a way as to allow a male to female transsexual to be treated in law as a female333.

The House, whilst sympathetic to the case, admitted it lacked institutional competence as regards deciding issues relating to the rights of transsexuals.

The House did not feel it appropriate to use its powers under Section 3 to reinterpret the statute in terms that to do so would necessitate giving the expressions male` and female` in the HRA334 a novel, extended meaning that a person may be born with one sex but later became, or became regarded as, a person of the opposite sex.335

331 Amended by Nationality, Immigration and Asylum Act 2002, section 125, and Schedule 8(Amendments to the Bil tabled on Report in the House of Commons, 12 June 2002. In force 14 November 2002/ 8 December 2002 332 Bellinger v Bellinger UKHL 21 (2003) 333 56 per Lord Hope 334 Sec 11© Matrimonial Causes Act 1973 335 Per Lord Nichol s @ Para 36.

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The House of Lords, without hesitation, issued a declaration of incompatibility under sec 4. The effect of the declaration was that the Matrimonial Causes Act was contrary to Article 8336 and 12337 of the Convention.

On the practical side, it seems that Section 4 has been used most often where the courts feel ill equipped to make sweeping changes to a legislative scheme.

In both Bellinger v Bellinger [2003]338 and Re S; Re W [2002]339 Lord Nicholls recognised that Parliament is best suited to develop a coherent and comprehensive framework.

In Re S this was because the child care starring system had far reaching ramifications for local authorities and could only be redesigned by Parliament once aware of the surrounding circumstances340: This is especially so where the departure has important practical

336 Article 8 right to respect for private life. 337 Right to Marry. 338 [2003] UKHL 21 339 [2002] UKHL 10 340 Ibid

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repercussions which the court is not equipped to evaluate341

In Bellinger this was in recognition that gender reassignment laws require the drawing of eligibility regulations, and thus ill suited for judicial determination342. As Lord Hope said in Lambert amendment is a legislative act. It is an exercise which must be reserved to Parliament343. Were ... [judges] to create a fresh scheme purportedly under sec. 3, then... [they would] be failing to show the judicial deference owed to Parliament as legislators

In these cases It will ...be necessary to leave it to Parliament to amend the statute and to resort instead to the making of a declaration of incompatibility344 but courts should remember that a declaration of incompatibility is a measure of last resort345, as per Lord Steyn in A [2002].

341 S&W [2002] 2 AC 291, 313 per Lord Nichol s. 342 Ibid 343 Lambert [2001] 3 All ER 577, 605 per Lord Hope. 344 Lambert [2001] 3 Al ER 577, 604 per Lord Hope. 345 A [2002] 1 AC 45, 68 per Lord Steyn.

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Preserving the fundamental feature of a statute there are a number of basic principles that arise out of this synthesized judicial material. They are all contingent, however, on retaining an existing constitutional boundary which was demarcated by Section 3(2) to preserve the supremacy of Parliament and their uninhibited power to make and unmake any law346.

The judiciary have laid great emphasis on the importance of not violating this constitutional norm. This involves finding a ground that does not violate the relevant statute`s fundamental feature whilst enabling the court to carry out their interpretative role. After all, and as Lord Millet notes in Mendoza, the courts must find a Convention compliant construction where possible347.

The judiciary cannot radically` alter the meaning of the statute, they must preserve the fundamental` features of the statute, and failure to do so would amount to judicial vandalism`, involving legislation not interpretation`.

346 Irvine (1999) ,,Activism and Restraint: HR and the Interpretative Process, European Human Rights Law Review 350. 347 Mendoza v Ghant [2004] UKHL.

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The crucial question, therefore, is the method they adopt both to carry out this judicial obligation whilst preserving the fundamental social policy of a statute. A view mooted and rejected at an early stage was that Section 3(1) would be confined to resolving linguistic ambiguities in statutory language348. Where the words under consideration fairly admit of more than one meaning the Convention-compliant meaning is to prevail. The statutory language would then be given a meaning that best accords with the Convention. The House of Lords in R v A rejected this restrictive approach, considering that this would create a semantic lottery, not true to the extensive interpretative obligation bestowed upon them by Section 3(1) 349. More optimistically, the courts can look behind language; they can read in and read down words all of which can change the meaning of the enacted legislation. This does not mean that the courts avoid looking to the statutory language, used by which Parliament expresses its intention. The critical question is the degree to which

348 For a history, see Clayton and Tomlinson (2000), The Law of Human Rights`, Oxford University Press, Oxford. 349 1 AC 45, 68 per Lord Steyn

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it is permissible to change the statute`s meaning. They must preserve the fundamental social policy behind the HRA, but aside from this they can do considerable violence to the statute. The following discussion has led to two basic propositions resonant in the case law.

(1) An interpretation is possible provided that the intrinsic and fundamental social policy behind a statute is retained. (2) However, if this fundamental aspect of the statute is clearly in contrary to the Convention, then the courts must issue a declaration of incompatibility.

Manipulating the fundamental aspect of a statute ¬ a case study

The question then turns to how the courts determine what a fundamental feature of a statute is and therefore logical restrictions on possible. The problem is that in many cases this touchstone remains elusive and ill defined. As Butler said of the claim that an interpretation must not be contrary to fundamental Parliamentary intent is trite...simplistic...and misses the point because no rule of interpretation seeks to violate Parliamentary

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intent, the claim assumes that the intention of Parliament is easy to ascertain350.

In a recent decision the House of Lords351 were called upon to consider Schedule 1 of the Rent Act 1977 (hereafter the Rent Act), which provides: -

2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.

2(2) for the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.

The issue was whether the appellant Juan Godin-Menoza (hereafter Menoza), who had lived long term with his

350 Butler (2000) The Interface Between the Human Rights Act and Other Enactments: Pointers from New Zealand` European Human Rights Law Review 249. 351 Mendoza v Ghant [2004] UKHL

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homosexual partner, was able to succeed as a statutory tenant under the Rent Act following his partner`s death.

The Lords responded in the affirmative. Arguably the social policy was to give a spouse security of tenure. The Lords read this to a person of the same sex, despite the wording of Section 2(2) of the Rent Act such security was extended to a homosexual partner. In essence the words living with the original tenant as his or her wife or husband, was glossed over to include a person of the same gender.

Both the Court of Appeal and House of Lords never gave a rigorous assessment of the statute`s fundamental purpose when ruling that Mr. Mendoza had a right to succeed his homosexual partner as his husband or wife. Neither judgment gives more than a cursory paragraph on the reason why the legislation could be read to include homosexual cohabiters without doing violence to its underlying purpose.

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Lord Nicholls merely asserted that the social policy underlying the legislation of security of tenure is equally applicable to the survivor of homosexual couples living together in a close and stable relationship`352. Similarly in the Court of Appeal, Buxton LJ, supported by the other members, deliberated that as Parliament allowed non- marriage couples succession, this does not therefore preclude same sex partners.

Whilst this case may be a breakthrough in social equality terms, it is constitutionally problematic. It is submitted that both members of the judiciary were avoiding the main issue, cherry-picking the criteria for succession in order to arrive at their` desired outcome.

Whilst homosexual couples may live in close, stable and longevial relationships, they cannot be husband or wife, because the law says that homosexuals cannot marry. Homosexual cohabitation is not marriage-like`353 because it lacks the defining features of a legal marriage, as a relationship between persons of the opposite sex.

352 Mendoza v Ghant [2004] UKHL. 353 A phrase used by Baroness Hale in Mendoza v Ghant [2004] UKHL

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Lord Millett354 picked up on these anomalies in his fellow lord`s judgments. Particularly, his lordship recognised that the forum for social change of this nature is Parliament, and if Parliament so chooses they can incorporate succession provisions into their civil partnerships legislation355. Enlarging the category of potential beneficiaries to include those almost certainly deliberately excluded must verge on a substantial departure from a fundamental feature of the Rent Act356.

In short, despite the perceived importance of retaining the fundamental feature of a statute, and thus supplying the restriction on what is constructively possible`, the courts put this aside to ensure an outcome that best accords with ideals of social equality. This was a departure from an earlier decision considered by the Lords in the case of Fitzpatrick ¬v- Sterling357. In this case the Lords did not accept that Schedule 1 (2) (1) applied relying instead upon Sec. 3(1) of the Rent Act,

354 dissenting upon the ground that it was not possible to read spouse in paragraph 2 as including the same sex partners 355 Ibid 356 Mead (2003) ,,Swal owing the Camel, Straining at the Gnat: Some Implications of Mendoza European Human Rights Law Review 501. 357 (1999) 3 WLR @1113

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thus treating Mr. Fitzpatrick as a member of his former partner`s family. Whilst this case was decided before the HRA, nonetheless this could be seen as a move forward for the same sex partners. However under the terms of Sec 3(1) Mr. Fitzpatrick became an assured tenant unlike a statutory tenant in Mendoza. Essentially Mr. Fitzpatrick was treated less favourable than in the case of Mendoza, upon the premises that upon the death of a statutory tenant a person who was a member of that original tenant's family and was residing with him or her in the dwelling house at the time of and for the period of two years immediately before the death, becomes entitled to an assured tenancy by succession, by virtue of the provisions of section 2(1)(b) of the Rent Act 1977 and paragraph 3 in part 1 of Schedule 1 to that Act358. The effect of this is that Mr. Fitzpatrick was not offered the same protection by virtue of the nature of his tenancy. The same protection against rent increases is not afforded to an assured tenant unlike a statutory tenant as the rent payable under an assured tenancy is

358 ,358 as amended by section 39 of and schedule 4.2 to the Housing Act 1988

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the contractual or market rent, which may be more than the fair rent payable under a statutory tenancy, other differences also apply to possession proceedings that are distinct from a statutory tenancy359

Further whilst the nature of the tenancy as an assured tenant, this precluded to right to buy, which is available to all secured tenants360.

A further example of this is the rape-shield` case, R v A [2002]. A majority of the House of Lords, led by Lord Steyn, held that an evidentiary statutory restriction on a rape victim`s previous sexual conduct with the accused had to be read subject to Article 6 which meant that the evidentiary rule ought not to be automatically inadmissible361. Accordingly, the House of Lords held that a possible interpretation could be made without the requirement of issuing a declaration of incompatibility.

Again the case must be put in context, as the purpose of s41 (3) (c) was to protect rape victims, and prevent the

359 see the Housing Act (ibid) and Civil Procedure Rules 360 See Housing Act 1996. 361 s41(3)(c), Youth and Criminal Evidence Act 1999

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jury forming adverse views of the rape victim`s sexual history with the accused. It was considered many of the gendered stereotypes could implicitly have an impact on the jury`s verdict. This is the reasoning behind the section, but the main purpose of its enactment was to prevent judicial involvement given the court`s traditional common law stance in enabling this history as material evidence362.

The courts once again sidestepped the essential feature of the legislation and did so to reassert traditional common law values. These essential features were of secondary importance to judiciary intent on reasserting these judicial values into evidentiary requirements.

362 Fenwick and Phil ipson (2003), ,,Public Law and Human Rights, Cavendish, London pgs186

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CHAPTER 6

ENFORCEMENT UNCERTAINTY -AND- CHANGING CONSTITUTIONAL MORES

Whilst the House of Lords` decisions in Mendoza and Bellinger contradict one another, they do have one thing in common, and in that they indicate much confusion about how the judiciary are to enforce human rights in the UK constitution.

This confusion stems, because the UK constitution is a political settlement. It has no single written constitutional text to indicate the rights of powers of state organs363. However, it is a constitution in recognising the implicit and delicate relationship between Parliament who makes the law, and the judiciary who apply it. The constitution is marked by a boundary where judicial intervention is

363 Although the UK does have a partial y written constitution, this is to be found in many different places, like historic texts (Magna Carta), and statutes like the European Communities Act 1972, Scotland Act 1998, Wales Act 1998, Representation of the People Acts, and indeed the Human Rights Act.

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warranted in circumstances to apply and uphold a statute364.

This constitutional Convention of judicial deference to the legislature is central to how the UK constitution is perceived by the judiciary in upholding Parliamentary sovereignty and its uninhibited power to make or unmake any law365.

Multi-layered constitution This confusion stems, it is submitted, because of an increasingly multi-layered and fluid UK constitution that invites the judiciary to articulate their, own ideas about what the UK constitution is.

The Convention of judicial deference central to the UK constitution is becoming increasingly ambiguous. The HRA adds a further burden to this constitutional unrest. It is deeply political, fraught with difficulties because of its uncertain constitutional ground between

364 DICEY AV (1959) Introduction to the Study of the Law of the Constitution` 10th ed., Macmil an 365 Of course, parliamentary sovereignty, in many ways is il usory.

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Parliamentary supremacy and human rights entrenchment.

In many respects, this uncertain ground has been ceased by the judiciary to carve out an increasingly active role. The judiciary have become increasingly vocal on their role within a reinvigorated separation of powers.

Lord Woolf in the context of government`s proposals to remove asylum-seekers` appeal rights said that this would be fundamentally in conflict with the rule of law366. He also said that if this proposal were to become law it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution.

Indeed, existing members of the judicial hierarchy, Laws LJ and Sedley 367 have both written extra judicially about

366 Squire Centary Lecture delivered at Cambridge University, 29th January 2004 367 As he was then know.

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the source of the court`s power deriving independently from Parliamentary sovereignty368.

In a judicial capacity, Laws LJ has made some telling statements in Thoburn v Sunderland369 about the changing nature of constitutional authority. His lordship asserted that there are two types of statutes: (1) constitutional statutes, and (2) ordinary statutes. Unlike ordinary statutes, Laws LJ reasoned that constitutional statutes require a special approach to repeal and a demanding level of scrutiny when engaged.

This approach is tantamount to creating a constitution, effectively entrenching fundamental rights into the common law.

Need for a constitutional foundation The crux of the matter ¬ is how the court responds to statutes and any limitations thereto; depends crucially on the constitutional foundation of the court`s power. The Common Law School argues that the courts derive their

368 Laws (1995) ,,Law and Democracy Public Law 72 369 [2002] 2 WLR 247

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power from the old common law remedies of mandamus and prerogative writs, and therefore they operate independently of Parliament370. Therefore, if the courts fail to apply an Act of Parliament, or more moderately imply rigorously into statutes to alter fundamentally the statute`s meaning, there is an argument that this is constitutionally legal371.

In many respects, these moves are not extreme or unexpected because of the moral emptiness and inflexibility of Parliamentary sovereignty, the most commonly assumed constitutional orthodoxy. This gains much of its legitimacy from Professor Dicey`s seminal 19th century work, The Law of the English Constitution372. It is not so much his substantive points that are at issue here but rather the theoretical pedigree that informs his work.

Dicey was a classical positivist, believing that all law can be scientifically and empirically established from their

370 For a good exposition of this view see, Craig (2003), Administrative Law`, Sweet and Maxwell, London, see Chapter 1 The nature and purpose of administrative law`. 371 For a detailed discussion on the ambit of judicial intervention in public law, see Craig [1998] Ultra Vires and the Foundations of Judicial Review` Constitutional Law Journal 63. 372 Dicey [1959] Introduction to the Study of the Law of the Constitution` 10th ed, MacMillan, London

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passing by an authorised legal source. In his work, of course, Parliament was this body. However to some legal positivism is morally impoverished, a crude and descriptively flawed way of understanding the nature of law and the constitution373.

It omits constitutional values that do just as much to define constitutional boundaries and the relationship between the judiciary and Parliament, as does those who pass the laws374.

Whilst as a matter of form the UK may operate under Parliamentary democracy, it must be considered whether as a matter of substance this is, to use one of Professor Anthony Giddens` phrases, a shell institution`, failing to adapt to monumental social, and in this case, constitutional change.

373 For an excellent critique, see Dworkin [1991] Laws Empire`, Fontana, USA. 374 Dicey, did, however, recognise the importance of values in the political operation of the constitution by way of Conventions. Nevertheless, this applies to the way in which political actors perceive their role, and ignores the values that may guide judicial principles.

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It was Lord Bingham who said that institutions must change with a world movement towards judicialisation of fundamental rights and the emergence of continental/international tiers of government375.

The dangers of entrenchment through interpretation Indeed, there has been monumental constitutional change in past decades that Dicey`s Parliamentary supremacy model has failed to adapt to. Legislative power has moved both up (to the EU) and down (to Wales, Scotland, Northern Ireland, London etc). Accession to the European Community in 1972, direct effect and supremacy of EC law have considerably strained Parliamentary sovereignty.

It was with considerable embarrassment; the way in which the courts sought to make the striking down of a statute in contravention with EC law also compatible with the supremacy of Parliament in Factortame376.

375 Bingham, [2002], A new supreme court for the United Kingdom`, The Constitution Unit, University College London 376 R v Secretary of State for Transport, ex parte Factortame [1991] I-3905

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Similarly, the growth of judicial review has been relentless. Public law has become increasingly constitutionalised`, that is restricted the operation of government by means of judicial values. The growth of executive discretion due to wide legislative drafting has seen the development of judicial values that inform greatly the way statutes operate377.

This development has, admittedly, been belated, but the key 1960s decisions indicated a judiciary more willing to intervene in matters previously the reserve of government378. Indeed, the previously high standard of Wednesbury379, which allowed the substance of governmental decisions to be challenged where wholly unreasonable, has been relaxed in a number of categories, in human rights cases where the standard of review is now proportionality380.

Even before the enactment of the HRA, the courts were developing common law fundamental rights that

377 Craig (2003), Administrative Law` , Sweet and Maxwell, London, see Part 2 378 Examples of increased judicial activism include Ridge v Baldwin [1964], Padfield v Minister of Agriculture [1968], Anisminic v Foreign Compensation Commission [1969], Conway v Rimer [1968]. 379 Associated Provincial Picture House Ltd v Wednesbury Corp [1949] 1 KB @ 223

380 R v Secretary of State for the Home Department, ex parte Daly [2001] 2 WLR 1622, per Lord Steyn

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demanded a more intensive level of scrutiny (anxious scrutiny) than that of Wednesbury381.

The constitution on this reading, then, is not fixed and constant, but fluid and evolving, changing as society changes. Judicial values have grown and with this an entirely new perspective to approach Acts of Parliament.

As the constitution has the capacity to change according to societal need, this has led many commentators to suggest that the UK constitution is a normative settlement, seeking renewal with the best possible reasons for reform.

To illustrate, and to draw upon a pre-eminent advocate of human rights, Laws LJ said extra-judicially that the constitution is: a dynamic settlement, acceptable to the people, between the different arms of government...dynamic because it can change...without

381 For example, fundamental rights were being carved out for: access to courts R v Lord Chancellor, ex parte Witham [1998] QB 575, free speech R v Secretary of State for the Home Department, ex parte Simms [1999] 2 AC 115, basic subsistence R v Secretary of State for Social Security, ex parte Joint Council of Welfare of Immigrants [1996] 4 Al ER 385.

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revolution. In the end, it is not a matter of what is, but of what ought to be382.

It is not surprising; therefore, that judicial politics has taken centre-stage when considering the complex, multi- faceted constitution that embraces many contradictory ideals at its core.

As Bamforth and Leyland argue, there is power now to the courts to articulate these constitutional complexities, and for him this turns upon whether the individual judge is a minimalist (favouring judicial restrain) or a maximalist (more hard edged review)383.

Formal structures, therefore, are of secondary importance. What really matters is how judges make sense of the constitutional issues around them. It is, after all, the judiciary who has to articulate a theory of democracy when deciding whether a restriction on the Convention rights is proportionate and necessary in a

382 Laws (1995) ,,Law and Democracy Public Law 72.This argument is intertwined with Wade`s assertion that the constitutional principle of the supremacy of parliament over the judiciary cannot be established by an Act of Parliament, and is in reality a question of political fact determined by the judiciary. 383 Bamforth and Leyland (2003), Public Law in a Multi-Layered Constitution`, pgs. 1-25, in Bamforth and Leyland, (2003) ,,Public Law in a Multi-Layered Constitution, Hart Publishing, Oxford

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democratic society`384. To do this, they must consider what a democratic society actually is, and the extent to which they play a part in shaping this385.

It is at this point that the argument of Parliamentary sovereignty as a shell` institution becomes more apparent. The judiciary are not engaged in some literal and mechanical process, applying statutes and simply following the will of Parliament, but are engaged in a real normative political debate about the nature and freedom of democracy.

Where does this leave the practical dimension of the judicial practice? Quite simply, any consideration of legal practice is impoverished without a fully consideration of the underlying values presupposing those views. It is only by practioners appreciating the deeply normative issues involved in both judicial enforcement and human rights jurisprudence that a comprehensive claim can be made.

384 As is a legitimate restriction in Convention jurisprudence. 385 Ewing and Gearty, (1991) Democracy or a Bil of Rights, Society of Labour Lawyers, London

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This point can be illustrated by examining the National Health Service. The NHS has been consistently part of national political debate in the post-war period. Issues of resources have played centre stage in the major political parties manifesto pledges. Nevertheless, given the political importance of adequate NHS resourcing, the courts have considered many cases before being invited to rule in favor of applicants seeking treatment.

In R v Cambridgeshire Health Authority, ex parte B386, a ten-year-old girl with an acute form of leukemia, had been treated by chemotherapthy and had a bone marrow transplant. However, doctors considered that further chemotherapy and a second bone marrow transplant was not in the patient`s best interest. The girl`s father, having sought further medical advice, was advised the chance of success with further treatment was 10-20%.

The problem, however, was that the treatment in total would cost £75,000. The father judicial reviewed the health authority`s decision.

386 [1995] 1WLR 898

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At first instance, Laws J387 held that the health authority acted unlawfully in withholding treatment because, amongst other reasons, they did not take into account the wishes of B or her father. The interesting point is that Laws J stated B as having a fundamental right` to life, and that this inalienable` right can place legitimate restrictions on the way funds are allocated.

On appeal, Lord Bingham recognised that, despite the quite agonising facts surrounding this case, this reasoning is riddled with problems. Human rights whilst too many optimists are viewed as a public good, on this reading, are a very dubious public good.

They can have a real destabilising and debilitating effect on society, and how democratic institutions allocate its resources. His lordship overturning the High Court`s decision said... Our society is one in which a very high value is placed on human life. No decision affecting human life is one that can be regarded with other than the greatest seriousness.... [However]...the courts are not...arbiters as

387 As he was then.

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to the merits of this kind...We have one function only, which is to rule upon the lawfulness of the decisions

Maximalism ¬ v ¬ Minimalism It is therefore submitted that judges have different normative commitments, which influence their view of what the law is, and indeed what they want the law to be. Laws J believes in fundamental rights as a basis of civilised society, whereas Lord Bingham`s views closely approximate to those of Benthamite utilitarianism388. In this case, his lordship recognised the need to maximise the health service`s resources, and judicial intervention could considerably frustrate this.

The issue, then, is how the judiciary comprehends their role under Section 3(1). This will, above all else, determine the practical dimensions of judicial enforcement of Sections 3 and 4. The synthesis of judicial practical statements above provided a glimpse of the present law, but

388 see Bentham, Utilitarianism`

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These statements are given meaning and effect only once the practitioner is aware of the normative foundations of these views. Theories of the constitution are silent prologues behind all the practical statements enumerated. It may even be said, verging on the extreme, that these practical statements are mere rhetorical devices employed when necessary to support a pre-judged normative conclusion.

In essence, the British constitution is multi-faceted, and at times contradictory, and arguably the judiciary can cherry pick to support their preferred judicial philosophy, whilst knowing that the expansion of judicial values mandates novel constitutional approaches389.

The point to be taken from this chapter, in addition to the initial descriptions of human rights instruments, is that the HRA is no ordinary statute set for mechanical application by the judiciary. It invites, and demands, something more. It invites the judiciary to articulate theories of democracy. It invites the judiciary to engage

389 For a bril iant exposition of judicial ideology influencing caselaw, see Griffith (1997), ,,The politics of the judiciary, 5th edition, Fontana, London.

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in open-ended inquiries into the scope of privacy rights, or expression or torture.

To do these things involves no ordinary practical application of legal precedent. It involves some delving into ideas of constitutional theory in order to enrich practical understanding about how cases like Mendoza, R v A, and Bellinger are really decided and what is really going on when the Judiciary makes such enforcements. In Mendoza weight was given to social equality, in Bellinger Parliamentary sovereignty, in R v A common law values.

Human right law and enforcement, then, far from being set prescriptions, involves a good deal of introspection and moral deliberation. The next Chapter will deal directly with this central issue. It is only by ascertaining the most normatively justifiable enforcement model can a justifiable approach be laid out for the interpretative obligation under Section 3(1).

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CHAPTER 7 HUMAN RIGHTS UNCERTAINTY The scope of human rights law In addition to the judicial enforcement being uncertain, a further problem is presented by the difficulties in properly ascertaining the scope of human rights law. Put simply, it must be asked what the practical ramifications are for open-ended human right texts on how the judiciary perceive and perform their role. For example, Article 2 of the Convention, protects the right to life`, and lists a number of guarantees390. Article 2 can easily be regarded as one of the most fundamental provisions in the Convention`391. It prevents the state from intention killing. It places a duty on the state to investigate suspicious deaths, and in certain circumstances, it places a positive obligation to take steps to prevent the avoidable loss of life.

390 Article 2 is used here because of its perceived importance as a fundamental provision. However, the ensuing discussion can easily be extended to any of the purported guarantees under the Convention. 391 McCann and Others v United Kingdom (1995)

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However, there has been, and continues to be, strong disagreement about how the right is to be characterised. The first question involves asking how a life` is to be characterized so as to enter Article 2. Is a foetus a life?392 This is far from controversial. Indeed the US Supreme Court decision in Roe v Wade393 shows the perils of deliberating on questions of this nature, where the nation split on this issue. How about quality of life? Does the right to life necessarily imply the choice to end life? The case of Diane Pretty The House of Lords decision in Pretty v United Kingdom394 exposed the inherent tension in the Article 2 right395. In this case, the applicant suffered from a degenerative and incurable illness affecting the muscles, and sought to commit suicide; due to her illness she was unable to do this without assistance. As it is a crime to

392 Bruggerman and Scheuten v Federal Republic of Germany (1978)

393 ROE v. WADE, 410 U.S. 113 (1973) 394 Pretty v United Kingdom [2001] UKHL 61: [2002] 35 EHRR 1 395 Other rights were considered, but for the purpose of this discussion Article 2 wil only be considered.

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assist another to commit suicide396, the applicant argued that the refusal of the Director of Public Prosecutions to grant immunity to her husband to assist her amounted to a violation under Article 2. Relying upon Article 2, the applicant argued that the right to life at its essence is a right to self-determination over life - a right whether to live or not. The right to life included its natural corollary, the right to die, and the state had an obligation to protect both. The House of Lords ultimately decided that Article 2 could not be interpreted as conferring the diametrically opposite right. Nor could it create a right to self- determination in the sense of conferring on an individual the entitlement to choose death rather than life. This case is indicative of the uncertainty surrounding the precise content of human rights. The open textured and normative dimension of human rights prescriptions invites increasing introspection and moral judicial deliberation.

396 Section 1, Suicide Act 1961

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Human rights increasingly involve hard questions about the nature of liberal society itself, and it is highly dubious to suggest that the judiciary are best placed to articulate answers to these hard questions. Of course, the House of Lords in Pretty managed to avoid adopting the extreme interpretation of Article 2 that the applicant argued for. However, perhaps at some future date this extreme interpretation of Article 2 will not be so unreasonable. The Convention is, after all, a living instrument`. It is this prospective and chamelon-like characteristic of the Convention that perhaps brings human rights as controversial political issues to the fore. Prohibition on torture and inhuman and degrading treatment This is no more so than on Article 3 prohibition on torture and inhuman and degrading treatment. The scope of Article 3 was first tested in cases involving the government mistreating terrorists/criminals by way of beatings and devices397. As intentional extreme acts, the court was asked to consider whether political prisoners

397 The varying intensity of this mistreatment determining whether the violation was torture or inhumane and degrading treatment

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subsequently raped, amounted to an Article 3 violation398. The Courts replied in an affirmative that such action was a violation. These can perhaps be considered paradigm cases on the scope of Article 3 as protecting political prisoners given events surrounding World War II. However, in invoking the chamelon living instrument` doctrine, Article 3 has expanded and reformulated itself to a whole host of problematic areas. Does the sexual abuse of a criminal prisoner amount to torture on this basis? On the basis of Aydin v Turkey, an incremental development could be made so as to include sexual abuse to prisoners. In Selmouni v France399 the ECtHR where invited to find that sexual assault on someone in custody fell within the scope of Article 3. Interestingly, the Court found this to be torture; once again asserting the Convention is a living instrument.

398 Aydin v Turkey [1998] 25 European Human Rights Review 399 (2000) 29 European Human Rights Review

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The problem is that torture in this sense is a far cry to the very narrow categories envisaged in the 1940s. As the idea of torture expands to include an increasing number of categories, as an idea and a constraining force becomes subsequently diminished. The ECtHR has been asked to consider, for example, whether birching400, parental chastisement401, or even prison conditions402 amount to torture. Indeed, in Price v UK403 the issue was whether a disabled woman with recurring kidney problems, who was committed to prison for contempt of court, was subject to inhuman and degrading treatment as the facilities were not adopted to accommodate someone with such a disability and the staff not trained for the needs of a disabled person. The ECtHR held that the UK government was in breach of Article 3. So, now that unintentional acts are considered within the scope of Article 3, does this mean substandard prison conditions amount to torture or degrading treatment?

400 Tyrer v UK [1978] 2 European Human Rights Review 401 Costello-Roberts v UK [1993] 19 European Human Rights Review 402 Price v UK [2002] App.33394/96 403 2002 96 European Human Rights Review

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Does the failure of social service to protect children from abuse amount also to a breach?404 The relentless pace of Article 3 in expanding into more and more governmental affairs itself begins to raise important issues of democracy and how it chooses to distribute scarce public resources. Uncertain enforcement role and uncertain human rights The problem is that Articles 2 and 3, and human rights generally, suffer incurable epistemological defects405. Whilst people may agree at the level of abstraction what human rights contain, this consensus disappears at the level of specificity, where real life, value conflicting scenarios invokes pluralistic and divergent understandings of what is required. Nobody, for example, save an extreme minority, would disagree that Article 3 emboldens a commitment to a civilized society.

404 Z v United Kingdom (2002) 34 European Human Rights Review 405 Campbell, ,,Incorporation by interpretation in Campbell, Ewing and Tompkins (eds) (2001) ,,Sceptical Essays on Human Rights, Oxford University Press.

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However, there would be strong disagreement as to whether Article 3 should apply to, for instance, substandard prison conditions and thus diverting scarce public resources from perhaps worthier initiatives. The question of distributing scarce public resources, as Lord Bingham opined above in ex parte B, is a democratic function involving Parliament and or government. Both an uncertain enforcement role and uncertain human rights must be understood as a coupling when determining the proper ambit of the judiciary`s role under Section 3(1) and 4(2). It is necessary now to consider these two factors together in designing a practical model by which the judiciary can discharge their statutory enforcement obligations. Traditional interpretation The first way to resolve the problems inherent in Section 3(1) is to retain the traditional interpretative approach of the courts in making the presumption that Parliament legislated in conformance with its international law

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obligations. Accordingly, legislation, no matter how out of sync with established human rights case law, is read so as to be compatible406. Indeed, this traditional rule of construction is a restriction on Section 3 in that it prevents the courts from challenging the intention of Parliament`s interpretation of how it is to act compatible to its international treaty obligations. There is some academic support with this approach. Butler argues that Section 3 is a similarly drafted statute to that of the perceived weaker enforcement mechanism in Section 6 of the New Zealand Bill of Rights407. By way of background, the New Zealand Bill of Rights allows a reasonable interpretation of the Bill of Rights, but where this is not possible, the legislation still stands. The New Zealand approach is considered much weaker than that in the UK, as the court is not necessarily always searching for a possible compatible meaning, but is rather using Parliamentary intention to find a consistent

406R v Secretary of State, ex parte Brind [1991] 1 AC 696 407 Butler (2000) The Interface Between the Human Rights Act and Other Enactments: Pointers from New Zealand` European Human Rights Law Review 249.

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reading. Nevertheless, Butler argues that New Zealand and the UK are textually identical: Wherever an enactment can be given a meaning that`s consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning. This is to be compared with, (to refresh): s3(1), so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a ay which is compatible with the Convention rights. The crux of Butler`s argument is that both sections create a duty (shall/must) to adopt a consistent/compatible interpretation where this can be done/is possible408. However different approaches to reverse burdens of proof have emerged from these two jurisdictions409. This difference is best stated as New Zealand using Parliamentary intention as the limiting factor. In the UK context, by contrast, both politicians and the judiciary have expressed their view on Section 3 as one allowing strained

408 See p.251, Butler (2000) The Interface between the Human Rights Act and Other Enactments: Pointers from New Zealand` European Human Rights Law Review 249. 409 Compare R v Phil ips [1991] 3 NZLR 175 with R v Lambert [2001] 3 Al ER 577.

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interpretations and to do what is possible, short of legislating, in order to prevent a declaration of incompatibility410. There is also an express reference in the government`s white paper that the Section 3 interpretative obligation marks a break from previous rules of construction411. More generally, the whole purpose of a strained interpretation is to alter significantly what Parliament intended412. It is therefore paradoxical to argue that Section 3 permits a strained interpretation whilst proclaiming that the limits of this are supplied by Parliamentary intention413. In essence, the problem with this conservative approach is that it seems to make out as if the HRA never happened, or if it did, that Parliamentary intention is fixed to the point of conforming with all treaty obligations, which is an odd and self-serving presumption. Moreover, the HRA gives effect to a continental treaty of open textured language, drafted in broad and general terms.

410 See chapter 1 411 Rights Brought Home Cm 3782, 1997, Para 2.7. Jack Straw, Hansard HC, 3 June 1998, col. 423. 412 Marshal (2003) The Lynchpin of Parliamentary Intention: Lost, Stolen or Strained` PL 236. 413 Ibid

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Therefore, traditional rules of construction are inadequate when interpreting the Convention. Despite the epistemological inadequacies for human rights jurisprudence, the value of the HRA is the important place of dialogue where different branches of the state are engaged in a substantive discourse. Utilisation of the traditional interpretative method would shrink Section 4(2) to vanishing point. Modified interpretation A more hopeful line on ascertaining the restriction of what is possible` is a novel approach to Parliamentary intention that looks to see whether Parliament, all things considered, clearly intended to breach human rights. This would involve an expanded utilisation of the Pepper v Hart`414 method of examining Hansard to determine Parliament`s intention. Given the purpose of legislation is to codify a political judgment in a public and authoritative form, it is arguable therefore that the judiciary`s role is to build interpretative theories about what Parliament intended to communicate.

414 Pepper v Hart [1993] AC 593

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Admittedly, any interpretative theory by the judiciary would involve a good deal of speculation and second-guessing, but this is an evolutionary legal method to ascertain what Parliament intended. The judiciary would have to consider, for example the following questions. First, if Parliament unknowingly breached human rights would their knowledge of the breach lead to the legislation being redrafted? Second, if Parliament enacted a piece of legislation now would they intend to breach human rights? Third, is a consequence of a breach down to the ends or the means used? Dealing with the first question, there is some evidence from the case law that this informed intention approach has some bearing on judicial reasoning. As Lord Steyn said...it is realistic to proceed on the basis that the Legislature would not, if alerted to the problem, have wished to deny the right...415 Section 19(1) of the HRA adds further support to this informed intention proposition, as this statute obliges the minister in charge of a relevant bill to make a statement

415 R v A [2002] 1 AC 45, 68.

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indicating that the bill is Convention compatible. It is a reasonable to impute to Parliament an intention to be Convention compatible in these scenarios. Therefore, the absence of such a declaration will suggest that any breach was intended, rendering a section 3 interpretation impossible; whilst where a s19 statement was made use of Section 3 will be legitimate416. This informed intention approach appears reasonable in that it introduces a tidying up doctrine similar to implied repeal. It also challenges the legal fiction that all legislation derives its authority from a single Parliamentary body that stands the test of time417. Parliament, which enacted the Offences Against the Persons Act in 1861, is very different both socially and politically from the one that enacted the Criminal Justice Act in 2003. The above approach is a robust exercise in constructing Parliament as a more socially relevant body than the artificial legal construct that defines the validity of law. However, it

416 Differentiating Parliament`s intention to breach human rights in passing an Act, and its opinion on whether an Act does in fact breach human rights, is vital: for the former Section 19 is relevant, but for the latter, as Lord Hope states (A [2002] 1 AC 45, 75), Section 19 is irrelevant. As it is only Parliament and not the Executive that is sovereign, it seems reasonable to reserve the benefits of Parliamentary sovereignty to those enactments which have received fully informed Parliamentary consent for the proposed breach of human rights. 417 An issue recognised by Hart, Postscript, 1994, Oxford University Press 58-66.

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could be seen as an open invitation for the judiciary to rule on the validity of statutes, to view old law with the benefit of hindsight. It would be more appropriate for Parliament itself to update statutes, and bringing to bear a host of relevant social and political issues, rather than narrow legalistic doctrine. This approach indirectly introduces an analogous doctrine to implied repeal, and Section 3(2), which states that the continuing validity and operation remain in effect, would be challenged. On the third point, is whether the judiciary can distinguish between ends and means, there is evidence to suggest that this approach influences judicial decision-making. The issue of whether the true intention of Parliament can be derived from the means, or the ends, it enacts was central in Anderson, S&W, and International Transport Roth v Secretary of State for the Home Department418. In this case, Jonathon Parker LJ declined to use Section 3 stating: The exclusive role of the Secretary of State in determining liability...and the correspondingly subordinate role of the

418 [2003] QB 728

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courts... [are] central and essential features of the scheme. To reverse those roles would involve much more than linguistic changes to the statutory provisions: to my mind, it would produce a fundamental change in the nature and character of the scheme, such that the rewritten scheme would not be recognisable as the scheme which Parliament intended419. This distinction between means and ends may also explain the divergent rulings in R v Secretary of State for the Home Department, ex parte Anderson420 and R v A421. In R v A Section 41 of the statutory provisions did not exclude the judiciary`s evidential requirements. By stating that the underlying purpose of the statute was for a fair trial, the judiciary sidestepped the evidentiary restrictions that were a means to this end. The means could be legitimately altered provided that the ends are not undermined. Similarly, in Anderson s29 of the Crime (Sentences) Act 1997 was constructed as a device to enable the Home Secretary on his discretion to adopt or reject judicial

419 [2003] QB 728, 785. Similar comments made by Lord Nichol s in S&W [2002] 2 AC 291, 314. 420 [2003] 1 AC 837 421 [2002] 1 AC 45, 68.

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advice on sentencing, not as a mere means, but an end in itself422. Therefore, the judiciary could not legitimately interfere with. The problem with this distinction is that it invites disingenuous and artificial constructions of the statute`s ends. Also, this practice masks the fact that the means to arrive at this end can be highly controversial. If the end in A was to ensure a fair trial it does not make it any less controversial that the judiciary say that admitting evidence of the accused`s previous sexual conduct with the victim is a means to this end. The means may actually undermine the end. And why cannot this evidentiary restriction be an end in itself? Indeed, the end to be achieved is subject to variant interpretation, and the most elaborate and artificial rationalisations can be stated for why a certain means can achieve the statute`s desired objective. Nevertheless, this modified approach has some qualitative aspects in that it focuses on what Parliament intended to restrict as a possible interpretation.

422 Anderson [2003] 1 AC 837, 894 per Lord Steyn.

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Furthermore, this approach would advance the dialogue model of the HRA. It goes further than the traditional approach, in that it has a place for Section 4, where Parliament`s intention to breach human rights is made sufficiently clear. The broader problem, however, is that this approach does not solve the problems inherent in the current judicial approach that enables a strained interpretation restricted by fundamental statutory intention. This approach, then, goes too far in that it leaves many question unanswered. It goes too far in inviting a good deal of judicial speculation on what Parliament, socially enlightened in the twenty-first century, would make of a statute from Queen Victoria`s reign. It goes too far in sanctioning the judicial creation of artificial distinctions between means and ends. It goes too far, then, in intruding on many controversial issues ordinarily the reserve of Parliament. Constitutional legitimacy Undeterred, there are some would argue that the modified intention approach does not go far enough. On

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this viewpoint, law is essentially an interpretative exercise by the judiciary, who are charged to make interpretations so as to fit in with the underlying political morality of a state and in a way that best justifies state coercion on citizens423. The constitutional legitimacy model approaches Section 3(1) as but one more means for the judiciary to interpret in accordance with the underlying political morality. This involves considering what is constitutionally legitimate, the best interpretation of the HRA in question, and the most appropriate interpretation that fits and advances the constitutional tradition. To do this, the judiciary examine the constitutional history in order to determine what is deemed possible`. This approach involves consideration of the normative justifications for Parliamentary sovereignty in notions of representative democracy, the rule of law, the culture of human rights, and the extent to which the judiciary consider special protection essential to uphold this constitutional tradition.

423 Dworkin (1991), Laws Empire (Fontana), pgs176-276

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The broad approach, therefore, favours the interpretation of constitutional values of Parliamentary sovereignty against those of competing principles of human rights to keep best in with the constitutional tradition. Therefore, it is arguable in the current state of affairs when the executive dominate both Houses of Parliament, where effective scrutiny is increasingly ineffective, where broader and vaguer laws challenge the classic libertarian approach propagated by Dicey, which the judiciary needs to return to this culture of liberty, this constitutional tradition, by way of a broad interpretative approach424. The implicit assumption here is that the judiciary perceive their role includes a duty to protect human rights, and doing this by way of ensuring citizens are not subject to undue erosions of liberty by the executive. Indeed, as stated in previous chapters, the judge`s perception of their role has changed considerably over the past four decades, with inflated roles in administrative law, common law fundamental rights and EC law.

424 Dworkin (1990) ,,A Bil of Rights for Britain, Chatto and Windus, London

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The door is open, then, for the judiciary to use the interpretative obligation under Section 3 broadly, to uphold shared constitutional traditions and values as an evolving normative exercise of which they are the guardians. Practically, this will mean that if Parliament does not expressly exclude the judiciary` interpretation, then the courts can find a Convention compliant interpretation425. This approach, on a practical level, is similar in effect to the attempt in R v A by Lord Steyn to entrench human rights where Parliament has not expressly prohibited their application426. If Parliament states that human rights are excluded from consideration, then the courts will not consider them. However, if Parliament is silent, then the courts are free to come to any interpretation they wish. It would also be comparable to the Canadian Charter style notwithstanding clause. Indeed, Professor Gearty recognised that this radical interpretation of Section 3(1)

425 Reminiscent of that in the Canadian Charter, and the approach taken by the Judiciary when applying EU law. 426 [2002] 1 AC 45 at 68

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is theoretically possible427. Further, under the constitutional legitimacy approach, the role of Section 4 is to be used where Parliament has expressly intended to breach the intended human right. The benefit of this approach for the mechanics of the HRA is that it avoids inherent difficulties with ascertaining Parliamentary intention, especially when this intention is continuous, and does away with the semantic debate over legislating and interpreting. Whilst it may not fit in with the statutory language, it is nevertheless accepted that Section 3(1) and the word possible invites a normative exercise as to how far Parliament should be held to account for their treatment of human rights issues. Whilst this approach, to some commentators, does considerable damage to the HRA, on another reading it fits well with the statutory provisions in that it upholds Parliament`s will that the vast majority of cases can be Convention compatible. This approach, therefore,

427 Gearty (2002) Reconciling Parliamentary Democracy and Human Rights` 118 LQR pg256.

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enables the Judiciary to prevent the greatest number of potential statutory incompatibilities428. There is a whole host of problems with this approach, which draw upon the discussion in the previous Chapters. For the sake of completeness, it is worth repeating these arguments here. First, human rights suffer incurable defects of conceptual uncertainty. There is no apparent way to transfer broad agreement at the level of abstraction to the level of specificity, to the level of judicial application429. A broad interpretative approach under Section 3(1) invites the courts to make determinations on the content of human rights. However, the problem is that these rights are not uncontroversial ¬ they are at the heart of how civilised society operates, how the government distributes its scarce resources, how society values lifestyle choices. These are not uncontroversial, and so the constitutional legitimacy approach is an oxymoron: there is nothing legitimate about a democratically illegitimate body

428 Phil ipson (2003) Mis (reading) Section 3 of the Human Rights Act` 119 LQR 183 @ page 187. 429 The epistemology argument above.

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deciding deeply moral issues usually the reserve of legislative chambers. There are also problems with accommodating this approach into the statutory scheme designed. Sections 3(2) states that the judiciary`s obligation, does not, affect the validity, continuing operation or enforcement. The purpose of this addition to the HRA, as stated above, was to protect statutes from being repealed or otherwise being radically altered by the judiciary. In this context, a radical interpretation of a statute may do considerable violence to the statute, so as to alter the statute`s operation fundamentally. The statute`s original voice and mode of operation may be fundamentally changed to amount to invalidation. This may over dramatise the point, but the purpose for the addition of Section 3(2) was to put the blockers on a robust interpretative approach, as this would approve. Further, judicial activism is also profoundly undemocratic as they are not representative, accountable or open to general participation. They are also restricted in their

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reasoning capacities due to their limited knowledge and capacity on governmental issues. A further problem that Section 4, which requires a declaration of incompatibility where a Convention compliant construction is not possible, would be redundant because it is highly unlikely that Parliament would pass a statute expressly ousting human rights deliberation. This is likely to be so because of political embarrassment, or because there is a good deal of moral force in using human rights to attack human rights. Even the draconian Anti-Terrorism, Crime and Security Act 2001 was stated as Convention compatible by the Home Secretary430. Even assuming that Parliament did express that the measures are contrary to human rights, it would be a superfluous constitutional exercise on the part of the court to inform Parliament of a breach they expressly endorsed. The very point of Section 4 and Act in general, was to create a dialogue between the judiciary and Parliament.

430 Under the Section 19 procedure

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Greater use of Section 4(2): a true dialogue model This spirit of dialogue seems to be missing in the way the judiciary perceives their changing constitutional role. The implication of the judiciary`s current approach is tantamount to reducing the Section 4 scope to cases involving, in the main, the need for detailed statutory schemes that is beyond the capability of the courts. In both Bellinger v Bellinger [2003]431 and Re S; Re W [2002]432 Lord Nicholls recognised that Parliament is best suited to develop a coherent and comprehensive framework. In Re S this was because the childcare starring system had far reaching ramifications for local authorities, and could only be redesigned by Parliament once aware of the surrounding circumstances433. In Bellinger this was in recognition that gender reassignment laws require the drawing of eligibility regulations, and thus ill suited for judicial determination434. Whilst these cases represent a correct application of Section 4, they are nonetheless indicative of an unduly restrictive

431 [2003] UKHL 21 432 [2002] UKHL 10 433 Ibid 434 Ibid

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approach undermining a dialogue [model] the HRA exists to promote. It will be submitted that, if applied properly, Section 4 has the potential to resolve the many issues of Political power, human rights uncertainty; and judicial legitimacy that have emerged since the enactment of the HRA435. The marvel of the ensuing approach is that it does not require the judiciary to show restraint. On the contrary, the approach demands that the judiciary be robust and seek to articulate their own judicial vision on the nature and application of moral values in liberal society. Unfortunately, a great many judges avoid using Section 4 and its underlying philosophy of promoting dialogue, and prefer to adopt a narrow interpretation of rights at the breach stage, through the concept of legislative deference436, to avoid entering the mechanism of the HRA. Currently, the judiciary apply a legislative deference test to establish whether there was a breach of a human right437.

435 Gearty, The Human Rights Act and representative democracy` (2002). 436.Craig (2001) The Courts, The Human Rights Act and Judicial Review` Law Quarterly Review cites Brown v Scott [2001] 2 WLR 817 and R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] 2 WLR 1389 as examples. 437 Laws J outlined four general principles in International Transport Roth Gmbh v Secretary of State for the Home Department [2002] 3 WLR at 376-78.

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What may be a material consideration, for example, is the special expertise of the court over that of the executive, and vice versa. Classically, the judiciary feel more competent in cases involving natural justice and civil liberties, by contrast to the executive whose expertise is in national economic policy and issues of political importance. For example, in Brown v Stott (2003) the House of Lords had to consider whether a statutory requirement to provide a breath specimen, with an adverse inference made for non- compliance was compatible with the principle against self- incrimination as enshrined in Article 6(2). The House of Lords held that the principle against self- incrimination was not absolute, and could be subject to a balancing act between the needs of the offender and those of road safety. Accordingly the court found the statutory requirement in compliance with Article 6(2). The problem with the above decision is that Article 6 is absolute, inviting no qualifications, and so the court read down this particular human right,438 instead of issuing a declaration of incompatibility, which seemed, quite a natural

438 Fenwick and Phil ipson (2003) ,,Public Law and Human Rights, Cavendish, London

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conclusion. The House of Lords chose to distinguish established Convention case law,439 whilst diminishing the impact of Article 6 by narrowing its scope. Accordingly the desire to avoid the HRA mechanism narrows human rights. The reason for this unduly restrictive approach is that many members of the judiciary seemingly equate the Section 4 declaration of incompatibility with judicial dis-application of the offending legislation440. This is because of the widely held view that Parliament cannot ignore a declaration because of the politically adverse impact both to Parliament and to the ECtHR441. Indeed, the executive themselves have done little to dispel the uncertainty between Section 3 and 4. The government has been eager to down Section 4 declarations as of rare applicability442, and that it is not the judiciary`s role to dis- apply primary legislation. It would be better if Section 4 declarations were considered more custom and unproblematic than is currently the case.

439 Sauders v UK [1997] 23 European Human Rights Review 440 Klug (2003) Judicial Deference Under the Human Rights Act 1998 European Human Rights Law Review 125. 441 Nichol (2002), Public Law 441-2 However, this view ignores the potential for settling chal enges in the ECrtHR to avoid a binding precedent, or more importantly the possibility that the Judiciary might develop a more stringent conception of the Convention Rights than the ECrtHR. 442 Jack Straw, Hansard HC, 16 February 1998, col. 771, and Lord Chancellor, Hansard HL, 5 February 1998, col. 840.

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The judiciary should be more willing to utilise Section 4. The issue is how more frequent should they be used, and what defines its applicability. It is submitted that a broad approach to Section 4(2) should be utilized, and with this a corresponding narrow use of Section 3(1). This is on the basis that human rights are conceptually uncertain ideas inviting too much introspective and moral deliberation by the judiciary. This draws upon both the arguments made above on human rights uncertainty and also those in chapter 3 on enforcement uncertainty. Rather, the answer to appreciating the relationship between Sections 3(1) and 4(2) as enforcement mechanisms is the centrality of dialogue` to the HRA. As Klugg states, this is crucial aspect of the rational for the statute in preserving constitutional orthodoxies443. Dialogue comes in many forms, but in this context the principle of audi alteram partens444seems central to ensure that a problem can be subject to a host of different perspectives

443 Klugg (2003) Judicial Deference Under the Human Rights Act 1998 European Human Rights Law Review 125. 444 to hear the other side

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and viewpoints. Different viewpoints are essential to the construction of legal rules as this ensures that the law is socially relevant and coloured by those whose behaviour it is supposed to guide. By exposing the same moral issue to variant interpretation and different perspectives ensures an intelligent and wholesome resolution. The law, then, becomes attuned to different perspectives and finds it`s meaning from the connections, the contrasts and the compromises inherent in a participatory procedure. This is the basis of a dialogue model ¬ people come with their own self-interested views but seek to construct an argument that the other party find compelling445. This idea of dialogue, one fostering an inclusive agenda, could well answer many of the inherent problems the judiciary have encountered since the HRA came into force. The statutory scheme of the HRA can be interoperated to support dialogue by locating the resolution of human rights uncertainty by different branches of the state. Rather than viewing human rights as the excusive province of the judicial

445 Habermas (1996) Between Facts and Norms, Oxford, Polity Press

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branch, it must be appreciated that to ensure effective resolution of human rights uncertainty, and to ensure effective executive compliance thereto, requires all branches of the state to engage in the difficult questions posed by human rights law. Therefore, the HRA should be viewed as a mechanism to debate the controversial moral and political issues inherent in human rights jurisprudence. This will fit best if the judiciary use Section 3(1) to make a provisional interpretation that is to rule on the Convention compatibility of a statute, but to leave the final resolution of this matter with Parliament by issuing a Section 4(2) declaration of incompatibility446. Therefore, the courts would simultaneously use their power under Section 3(1) and Section 4(2) to express their view on the best interpretation and to issue of declaration of incompatibility, deferring the final view to Parliament. This approach paradoxically relies on the legislative deference approach that has dogged the successful

446 Campbell, Ewing and Tompkins (eds) (2001) Incorporation through interpretation` in Sceptical Essays on Human Rights, Oxford University Press.

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application of human rights. However, in this case the doctrine is used to define the judiciary`s enforcement options in human rights cases, rather than whether human rights are engaged or breached. In fact, the courts are invited to remove the Gordian knot of deference in human rights cases and adopt a robust approach, constructing a view favouring judicial values and compel Parliament to agree. Therefore, in a case such as Brown v Stott447, the courts can be audacious as they like, expressing the fundamental importance of fair trial rights and the right to silence, whilst reserving the final decision to the outcome of Parliamentary debate. Criticisms of this dialogue approach The major objection to this approach would be on its ability to fit in with the statutory scheme of the HRA. It could be said that this approach defies the will of Parliament and the statutory scheme because the judiciary would not be carrying out their obligation. The terms used in Section 3(1) appear mandatory: the court

447 Brown v Stott (Procurator Fiscal) [2001] RTR 121 @ 65

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must read and give effect to legislation in a way Convention compatible. The given effect term is not mere superfluous the court must give this remedy if they can make a possible interpretation. Again, the term possible must come under scrutiny and all those comments made in Chapter I about the judiciary understanding and comprehending their role in the UK constitution as a normative exercise. The constructively possible is heavily determined by the normative approach adopted. The argument here is that the most normatively sound theory favours the judiciary to exercise legislative deference in its obligation to what is possible under Section 3(1). Put simply, a binding Convention compliant construction is not possible because of the need to defer to Parliament`s final decision. There are an embarrassing number of reasons why the judiciary should defer in this manner. Human rights are conceptually uncertain, as their precise content cannot be determined without recourse to controversial moral judgement. Given this controversy, it is more appropriate

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for these issues to be the subject of deliberation in a legislative body that fosters participation of different perspectives. The judiciary both lack this participatory element, and also a democratic basis as deliberators of moral controversy. Also there is the benefit of the outcome of this moral disagreement being presented in codified rules that guide and co-ordinate behaviour448. Whilst the judiciary are institutionally and democratically ill suited to determine human rights issues, this does not diminish their role as a key participant in the dialogue model central to the HRA. No judicial decision is morally infallible, but this is not to undermine the unique judicial voice that speaks of many important constitutional and social values, like free speech, habeas corpus and civil liberties. The echo of human rights discourse is a value reaffirmation in a consensual liberal society. As such, recognising the importance of these broad values to

448 Raz (1995) Authority and the Law, Oxford

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society`s constitutive identity, the judiciary can make a unique contribution to the political dialogue of the UK. A prime example of this was where Lord Wolf publicly denounced the government`s plans to oust appeal in asylum cases, a measure that was subsequently dropped449. By bringing the judicial perspective to the forum in human rights cases, in a way that is accessible to all to debate, the public dialogue can only be improved. There are many cases ripe for public deliberation, and the judiciary can have a unique input to this. A good example of this is the House of Lords recent decision in A and others v. Secretary of State for the Home Department [2004] concerning the legality of the executive`s power to intern indefinitely without trial immigrants on terrorist suspicion450. Their lordships held that these measures were incompatible and disproportionate to the legitimate aims as enshrined in the Convention. Accordingly, a declaration of incompatibility was issued and now it is

449 Woolf, Squire Centary Lecture delivered at Cambridge University, 29th January 2004 450 Section 21, Anti-Terrorism, Crime and Security Act 2001

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imperative that Parliament duly considers some of the judicial statements made about the fundamental nature of freedom and habeas corpus. A related objection is the fantasy of the court sending all human rights cases to Parliament for debate. There have been hundreds of human rights cases since the enactment of the HRA and so it seems extravagant and fanciful for the courts to send all cases for legislative deliberation. This is surely disproportionate overkill, consuming Parliament`s time with incremental human rights issues at the cost of more substantive legislation. This fact is recognised in the Order that government ministers can fast track amendments without the requirement of Parliamentary debate. However, it is not suggested that all human rights matters go forth for debate in the legislative chamber. There may be some issues that are considered of fundamental importance that they require discourse between the widest possible interests. This may involve

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both the House of Lords and Commons joining in the debate about the proper scope of human rights. A case in point is A and others v. Secretary of State for the Home Department [2004]451 where given the importance of the terrorist issue, how governmental measures can balance the value of Article 5 and 6 rights and national security should be exposed to the widest possible interests, and this means the utmost attention by Parliamentarians. There are other routine matters, however, which could be dealt with by a specially constituted human rights committee. Further, to ensure the success of the dialogue model as suggested, the remedial order provision should be used sparingly, or possibly amended to recognise a multi-track means to amend statutes, which may on the one side permit a minister to fast-track an amendment, whilst matters that require more anxious scrutiny would require Parliamentary debate452. These matters will be discussed in the final chapter.

451 A and others v. Secretary of State for the Home Department [2004] EWCA Civ@104

452 Section 10 of the HRA empowers a Minister of the Crown to take remedial action as deemed necessary to remove the incompatibility.

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This would then recognise a commitment to stronger and more engaging debates about the content of human rights. Overall then, the response of the legislature is a matter of degree depending on the gravity of the interests at stake. In any event, increased use of Section 4 as stated here will encourage the judiciary to think more rigorously about when human rights are engaged. The essentials of any successful dialogue are for different parties to put across compelling arguments that persuade the other to change their viewpoint wholly or partially. The judiciary would bear this in mind when deciding whether a human right is engaged and so how they seek to persuade Parliament to amend existing legislation. The importance of human rights standards then, rather than being diminished by way of wide and spurious applications, by calling the Convention a living instrument` inviting wider and wider use under the guise of social change, will instead be focused on matters of real importance in a liberal society. A further problem envisaged is how this approach impacts on the UK`s relationship with the Convention.

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Wintemute argues generally that Section 4 declarations do not provide an effective remedy to applicants in accordance with Article 13453. This is because whilst the courts recognise a breach of the Convention, they do not provide a remedy to the parties as required. Section 4, then, has been called the booby prize, in that the parties to the action expend a good deal of effort to ultimately end up with nothing. Despite this argument, it is a necessary consequence of locating the resolution of these matters with Parliament and not with the courts. Parliament does of course have the power to apply legislation and amendments retrospectively and in some cases this may be deemed appropriate. Moreover, the Convention does recognise that different member states have different constitutional arrangements for the protection of human rights, and their rule promulgation by a legislative body should not be seen as the opposite of this.

453 Wintermute (2003) Same Sex Partners, Living as Husband and Wife" and Section 3 Human Rights Act" Public Law 621.

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Chapter 8 Anti-Terrorism Policies and the Open Society

In the previous chapter we considered the controversy that surrounded Article 3 of the HRA. It may take some years to fully evaluate the effects of the terrorist attacks since [become known as] 9/11. In the wake of each attack, previous proposals were re-introduced, in an effort to police the new form of aggression which has a Global impact upon society, and therefore new policies with similar objectives were drafted to extend police surveillance authority. Years on the political landscape have shifted significantly in many, if not most, countries454. The UK has on occasions compromised its position in attempting to introduce new policies, whilst almost showing a scant disregard for the rules of natural justice endemic within a democratic society. Such disregard is upon the premises that not to do so; would lead to further attacks upon those that the HRA were meant to protect.

454 Privacy International

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Policy changes were not limited to the United States455, as a large number of countries responded to the threat of terrorism. Terrorist atrocities around the world, including London; Madrid, Bali, Russia, Morocco, and Saudi Arabia, were at the forefront, the new regime on acquiring body counts, were exercising terror` and bringing it to a new dimension. The days of casually waiting in a relatively small queues at most events is now long past. In essence as a civilized society we all, to some extent, have to endorse the new security measures now being deployed world wide, and all in the name of anti terrorism. The question arises as to what extent are we prepared to sacrifice our fundamental freedoms to secure our safety. Governments have seized upon these issues and events as opportunities to create and enhance their powers. Such shifts have been global, each country launched it own war against terrorism. Privacy International, wrote;456 the changes in anti-terrorism laws are not the only policy transformations in response to terrorism. The mere threat of terrorism has changed political discourse. In some cases, the war on terrorism has given new

455 For instance with the introduction of the Patriot Act. 456 About Anti-Terrorism Policies and the Open Society by Privacy International

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life to previously failed proposals such as ID cards in the United Kingdom; in 2003 the UK government returned to the rhetoric`s of terrorism to shore up support for the cards in place of the usual rhetoric that followed such a notion the preceding years.457 The reality is simply that very few people are prepared to sacrifice their safety in the name of police state` or what other rhetoric comes to mind. We all strive to live our lives unhindered by trauma, and yet the threat remains in our daily lives whether we travel by public transport or take to the airways, whatever the congestion one will hear very few people complain of the delays whilst checks are made to secure our safety. Moreover the question arises as to what sacrifices are we prepared to make, and how far are we prepared to tolerate the erosion of our civil liberties`. Of course those in power and responsible for our safety are called in to question on the methods adopted to protect society from the ever increasing acts of terrorism, although less so when acts of atrocities and when considering the nature of terrorism face today with groups such as AQ who is very different from many other

457 while previously fraud and asylum seekers were use

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terrorist groups, in that it appears to be a loose connection of associated associates albeit with shared purposes, rather than a paramilitary structure.

This difference makes it more difficult to pin down exactly what AQ is likely to at any given time458, and who is or may be involved in it or under its penumbra459 Of course above we touched upon ID cards however despite more recent statements by the Home Office Minister, quietly admitting that ID cards will have no effect on combating terrorism, the policy is seen as inseparable in the minds of the people, despite mounting evidence stating otherwise. In some cases, policies have been copied from or harmonized with other countries with little consideration to the variances in political dynamics. Hong Kong for instance attempted to harmonize its laws on sedition with Mainland China, requiring a standardization of criminalised groups. Malaysia decided against repealing its Internal Security Act 1960 involving detention in the wake of the new Global threat

458 Plot to cause maximum damage at Frankfurt airport and the American base in Germany (Ramstein) were uncovered where it was apparent that plans to cause mass destruction on the eve of 9/11 in 2007; with a cocktail of Hydrogen Provide and other substances. 459 Draft volume of written evidence HC 323-II: House of Commons Constitutional Affairs Committee [The operation]

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and yet with such a threat there is very little resistance for change which may lessen the security of others. South Africa and Jamaica's; draft anti-terrorism laws mirror those of Canada`s proposed definition of 'terrorist activity', even though Canada later changed its definition due to concerns of confusing protesters and terrorists. Increased State power is immediately associated with the war on terrorism; whether requiring the removal of veils for drivers license photos, secret seizure of packages from the media, clamping down on train-spotters and -photographers, chasing down opposition parties, and the equation of terrorism to separatism and its implications, or suppressing dissent, amongst others. Again such measures find very little resistance of those seeking security as they go about their daily business. The question of course is simply to what measures will we allow those Governments legislate these policy dynamics which touch against our freedom, in the premises of offering comfort, as if we are at risk without such sanctions, when we live in an Open Society.

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It follows that while the legal landscape is shifting and affecting many components of human rights, and not only privacy, in many cases these policies are founded upon its curtailment. These policy dynamics; challenge the defense of civil liberties and the promotion of the Open Society as we shall see has diminished since the Prevention of Terrorism Acts of the 1970s terrorism laws have done little to ensure that we are safe from terrorist attack, but much to infringe the human rights and civil liberties of those living in the UK.

It is how the Government applies the opposing interests460 that calls into question whether we have to sacrifice say our free movement in the name of fighting oppression of others, whose task is to curtail the sense of well-being whilst exercising that task.

For example following 9/11 the Government introduced indefinite detention without charge of foreign nationals. Of course this has opposing views. The Populace would almost agree with such measures; with very few dissenting, however

460 Safe movement balanced along side the need to protect society in such a task.

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academics and by in large those involved in human rights461 may well take a different stand, as the larger picture is the erosion of the rights that we as a Society hold so dearly.

For instance the former frailties with the legislation was replaced by the control order regime, which allows government ministers to impose sweeping restrictions on individual freedoms upon the basis of secret intelligence and suspicion.462

Pre-charge detention has been increased from 14 days to 28 days, with further extensions threatened. Broad new speech offences impact on free speech rights and non-violent groups have been outlawed.463 Our right to protest has been seriously curtailed, including by the possibility of, misuse of police powers.

In response to the Home Secretary`s announcement that he will seek to extend pre-charge detention for terror suspects beyond 28 days, Liberty Director Shami Chakrabarti464 said... Holding suspects for months without charge is an attack on British justice and could be catastrophic for British security as well.

461 As we may see; the bigger picture, of the curtailment of the HRA. 462 See below the new SIAC, whose procedures have been cal ed in to question on diverse occasions. 463 Liberty 464 01 Feb 2007

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If young people see friends and family interned without trial, they are far less likely to help the police, let alone join up. We've had years of rough and ready anti-terror laws and we are not any safer.... It`s time for a major re-think in Government; for additional resources, intercept evidence and a look at the interviewing process. These measures won't attract sexy headlines but this is about saving lives, not political careers."

Liberty suggests that police and prosecutors be given additional powers to enable them to bring successful prosecutions rather than extend detention periods.

These powers include allowing phone tap evidence in criminal court and criminalizing an individual`s failure to turn over passwords and encryption codes for seized computers.

We should be minded that following the Second World War, it was felt necessary to build safeguards into the rights and responsibilities to protect the citizen against the state. The exceptions to this were in times of conflict, although certain absolute rights existed.465 As above we have touched upon the philosophy and yet this chapter calls for greater scrutiny of the

465 See now Article 3 of the Convention on Human Rights

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measures now adopted within the UK, in the name of Anti- Terrorism curtailment.

The main issues surround the detention of certain classes of society, and the way that the UK have compromised the HRA, which will be examined in contrast to our allies America.

As we shall see with the passage of time a number of blows have been struck against the government in its plight to detain suspected terrorists and in so doing have breached the HRA and the Convention.

In order to carry fully analysis the impact upon the HRA, and thus the freedoms that it [the Act] was to embrace, including the fundamental freedoms,466 it will be necessary to visit the recent workings of the new Tribunal set up following a decision of ECtHR, canvassed below. It is upon this background that the erosion of civil liberties be seen to have eroded in the name of terrorism. The question arises as to how far a civilized society is prepared to condone the action of those whose task is to protect society from the atrocities outlined within the body of this dissertation.

466 Although limitation on wordage wil only al ow a summary of the areas of concern.

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The Swinging Pendulum and the Dilemma It will be recalled that Article 3 of the HRA places an absolute bar on subjecting someone to torture or inhuman or degrading treatment. In the case of Soering v United Kingdom (1989)467 the ECtHR; held: Article 3 would be infringed if a person was extradited to a country where there are substantial grounds for believing that he/she will suffer such treatment. In that case, however, the Court stressed that inherent within the Convention was the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of an individual`s fundamental rights`. The United Kingdom has always contended that this balance was not observed in the sequel to Soering, namely the case of Chahal v United Kingdom468. In the above case the UK sought to deport to India a Mr. Chahal,469 who had been refused asylum, upon the ground that his presence was not conducive to the public good for reasons of national security.

467 11 EHRR 439 468 (1996) 23 EHRR 413 Chahal v United Kingdom Case No. 70\1999\576\662 European Court of Human Rights 469 a Sikh separatist

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Mr. Chahal resisted deportation upon the ground that he feared that he would be tortured if he were returned to India. The United Kingdom Government argued before the Strasbourg that the Secretary of State was entitled to balance Chahal`s interest as a refugee against the risk he posed to national security if he was not deported. Conversely this argument was, rejected by the Court;470 which held... that whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State` it was unlawful to remove him. The activities of that individual, however undesirable or dangerous, could not be a material consideration. It follows that the above decision has far-reaching implications; in that Article 5 of the Convention provides that no one shall be deprived of his liberty, save in certain specified circumstances, the most material being lawful detention after conviction by a competent court. Another is lawful detention of a person against whom action is being taken with a view to extradition or deportation.

470 Strasbourg Court of Human Rights

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The government`s dilemma arises, simply in what you do with a person of whom you do not wish to stay in your country; however deportation is not possible because of the impact of Article 3, as there is no right to detain a terrorist suspect without trial. Conversely as there is no right to detain by reason of the above then it follows that Executive detention is not an option. The Court in Chahal471 struck a further blow to the UK`s ability to take executive action in the interests of national security, in that the Secretary of State had ordered that Mr. Chahal should be deported on the ground that his continued presence in the United Kingdom was not conducive to the public good for reasons of national security. Mr. Chahal challenged that order472, and the Court held that issues of national security were for the Security of State and could not be the subjected to review by the court. Of course this view was not shared by Strasbourg, in which it was held Article 5(4) provides that anyone deprived of his

471 Ibid Chahal v United Kingdom (1996) Case No. 70\1999\576\662 European Court of Human Rights 472 by judicial review

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liberty is entitled to challenge the lawfulness of his detention before a court. Moreover Mr. Chahal had not been able to make an effective challenge because he was not aware of the reasons why the Secretary of State had concluded that he posed a risk to national security and therefore Article 5(4) had been infringed. It should be remembered that at the time of the decision in Chahal the HRA did not form part of our domestic law. The Chahal case raised two problems, which can be summarized as follows: - What could the UK do with aliens who were a security risk but who could not be deported because they risked being subjected to torture or to inhuman or degrading treatment in their own countries473; and When the government wanted to deport an alien on grounds of national security it would often not be willing to disclose to the alien the information that gave rise to the security risk. How could it cater for the alien`s right under Article 5(4) to challenge his detention according to a fair procedure?

473 Within the terms of Article 3 HRA.

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The government`s response was to adopt a procedure that Strasbourg had itself commended in Chahal474; which was a procedure that the Court believed, perhaps not wholly accurately, existed in Canada; in 1997 when it passed a Statute creating a Special Immigration Appeals Commission, (hereafter SIAC). This was established pursuant to the Special Immigration Appeals Commission Act 1997. At this juncture it may be useful to visit the procedures adopted by SIAC, which will lend itself to the criticism that has been applied by the shortcomings of the procedures adopted. Such critiscm, have been aimed at the special advocates` and closed evidence` procedures adopted in the prosecution of cases, which will be discussed in great detail below.

Special Immigration Appeals Commission The remit of SIAC is to hear appeals against immigration and asylum decisions where, because of national security or other public interest considerations`, some or all of the evidence on which the decision is based cannot or could not be disclosed to the appellant.

474 Ibid Chahal v United Kingdom (1996) Case No. 70\1999\576\662 European Court of Human Rights

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In such cases, the decision will often rely heavily on assessments prepared by the security and intelligence services. In these instances, arguably there is a substantial risk that if the person concerned becomes aware of the detail of the evidence against him, the source of the evidence will be compromised.

However the unfairness of not knowing the case to answer by reason of non-disclosure,475 and [as we shall see], such a procedure arguably falls fowl of the HRA, and has been subject to much critiscm both by the advocates476 long with other professionals477 and human rights organisations such as Amnesty International,478regarding the non-disclosure of evidence to the appellant.

Balanced against this critiscm is that disclosure on the other hand could mean that surveillance techniques are revealed and lives potentially put at risk! The Government believed it must be able to take account of such evidence in the interests of safeguarding national security.

475 Which is a main pre-requisite in criminal trials? 476 Two having resigned due to the inability to act in their client`s best interest. 477 The Law Society, who made representations of their concerns to House of Commons Constitutional Affairs Committee [HC-323-II] 478 Who made representations to the House of Commons Constitutional Affairs Committee [HC 323-II]

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At the same time, it recognised that deportation from the United Kingdom may have significant consequences for the individual concerned and in the interests of fairness; he or she should be allowed to challenge that decision.

The procedures under SIAC are designed to provide the person concerned with an avenue of appeal and the reasons for that decision to be scrutinised judicially whilst also avoiding the risk of the source being compromised.

A right of appeal to SIAC against an immigration or asylum decision arises where the Secretary of State for the Home Department has certified under section 97, 479 that the decision has been taken in the interests of national security, in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest.

Since the 1997 Act, SIAC`s; jurisdiction has subsequently been extended by the Anti-Terrorism Crime and Security Act 2001480

479 Of the 2002 Act 480 (The 2001 Act)

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and further by the Nationality, Immigration and Asylum Act 2002 481

By reason of Section 21 [2001 Act] the Home Secretary may certify a person as a suspected international terrorist, if he reasonably believes that the person`s presence in the United Kingdom is a threat to national security and suspects that the person is a terrorist.

This allows the individual to be detained, even when there is no imminent prospect of his being removed from the United Kingdom. There is a right of appeal to SIAC against the certificate under section 25 of the 2001 Act.

SIAC also has responsibility under section 26 of the 2001 Act for reviewing on a regular basis each certificate that is in force.

It follows therefore that Section 30 of the 2001 Act also designates SIAC as the appropriate tribunal for any legal proceedings to question a derogation by the United Kingdom from Article 5(1) of the Convention, which relates to the detention of a person where there is an intention to remove or

481 (The 2002 Act).

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deport him from the United Kingdom. Proceedings challenging the Derogation Order brought into force other changes.482 The following cases illustrate the dynamics of a decision from the SIAC, which involved the possible torture of detainees family member, whereupon the Court consider whether the family as a whole could rely upon Article, as the likely attempt to persecute a family member.

In the case of (A (FC) and others (FC) v. Secretary of State for the Home Department483) which was heard first instance by SIAC under section. 8; [2002 Act] which further extended the jurisdiction of SIAC to include appeals against a decision of the Secretary of State to make an order depriving a person of a British citizenship status, where the Secretary of State for the Home Department certified that the decision to deprive was based wholly or partly in reliance on information which he believes should not be made public.

482 Force on 13 November 2001 483 [2006] UKHL 46 on appeal from [2004] EWCA Civ 986 and [2004] EWCA Civ 680

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Further section 40 of the British Nationality Act 1981 484 as amended by the 2002 Act, provides that a person may be deprived of his citizenship status if he has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory.

The gist of the case485 was set out by Lord Bingham486... The question in each of these appeals, arising on very different facts, is whether the appellant falls within the familiar definition of "refugee" in article 1A(2) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. It is common ground in each case that the appellant has a well-founded fear of being persecuted if she were to be returned to her home country, Iran (in the first case) and Sierra Leone (in the second).

In each case the appellant is outside the country of her nationality and is unable or, owing to her fear of persecution unwilling, to avail herself of the protection of that country. The only issue in each case is whether the appellant's well-founded

484 the 1981 Act 485 Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant) Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) [2006] UKHL 46

486 Para 1.

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fear is of being persecuted "for reasons of ... membership of a particular social group". The practical importance of this issue to the appellants is somewhat mitigated by the Secretary of State's acceptance that article 3 of the European Convention on Human Rights precludes the return of the appellants to their home countries, because of the treatment they would be liable to suffer if returned. But the Secretary of State contends, and the Court of Appeal has in each case held, that such treatment, although persecutory, would not be "for reasons of ... membership of a particular social group" and therefore the appellants fall outside the definition of refugee.

The correct understanding of this expression is a question of theoretical but also practical importance since the appellants enjoy stronger protection if recognised as refugees.

The Lordships in allowing the Appeal noted: I accept487, of course, that usually persecution is carried out by those who are not members of the persecuted group. But that is not always so. For various reasons - compulsion or a desire to curry favour with the persecuting group, or an attempt to conceal

487 Lord Bingham, (at Para. 81.) Of which the other Lord Lords agreed.

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membership of the persecuted group - members of the persecuted group may be involved in carrying out the persecution. Here, for whatever misguided reasons, women inflict the mutilation on other women. The persecution is just as real and the need for protection in this country is just as compelling, irrespective of the sex of the person carrying out the mutilation. For these reasons I am satisfied that Ms Fornah is to be regarded as a refugee in terms of the Geneva Convention. I would accordingly allow the appeal in her case also.

As the above case illustrates, the issues are or can be extremely complex, and therefore the need to take detailed instructions is at the forefront (or should be) to any adherence under the terms of the Convention. In essence any misuse of powers or procedural unfairness does not serve justice within the Convention or so it is argued, especially when the powers of the SIAC are immense, for instance, SIAC additionally has powers to hear applications for bail by persons detained under the Immigration Acts, including those detained under those Acts by

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virtue of the 2001 Act, in those cases where the appeal lies to SIAC.

Where SIAC makes a final determination of an appeal, any party to the appeal may bring a further appeal on any question of law material to that determination. An appeal may be brought only with the permission of SIAC or, if such leave is refused, with the permission of the appropriate appellate court as the above case illustrates.

Procedures and funding This further right of appeal; with leave was extended to bail decisions by SIAC in respect of persons certified as suspected international terrorists under the 2001 Act;488 under the provisions of the Asylum and Immigration (Treatment of Claimants, Etc.) Act 2004.

Proceedings before SIAC are within the normal scope of the civil funding scheme, the Community Legal Service.

Cases will therefore be supported if they satisfy the appropriate means and merits criteria for funding. The merits criteria for

488 With effect from 22 September 2004

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civil funding are set out in the Funding Code, which is made under the Access to Justice Act 1999 and approved by Parliament.

The Code covers matters such as minimum prospects of success and cost benefit of the case489. Proceedings before SIAC were brought within the scope of the by the Lord Chancellor`s Direction490. The Direction was superseded by the Community Legal Service Scheme by Para`s. 2(1) (ha) to Schedule 2 to the Access to Justice Act 1999.491

Before SIAC came into scope such cases could only be funded through the exceptional funding procedure under section 6(8) (b) of the Access to Justice Act 1999.

Proceedings before SIAC Proceedings before SIAC; are heard by a panel of three members; the composition of the SIAC panel is specified in the 1997 Act.492

489 Hardly a test given the ramifications of the consequences. 490 Direction dated 10 December 2002 491 Inserted by the Immigration and Asylum Act 2002) with effect from April 2003 492 as amended by the NIA Act 2002:

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One member must hold or have held high judicial office and one must be, or have been, the Chief Adjudicator or a legally qualified member of the IAT493, subsequently altered to require one member to be or have been a legally qualified member of the AIT. The Lord Chancellor has the power to appoint one of the members of SIAC to be its Chairman494.

The procedures to be followed in proceedings before SIAC are prescribed by the Special Immigration Appeals Commission.495 Those procedures as far as possible mirror those followed in ordinary immigration and asylum appeals, but with special provisions to allow the Secretary of State to rely on evidence without disclosing it to the appellant or his representative, where to do so would be contrary to the public interest496.

In order to protect sensitive intelligence information, the members of SIAC have been subject of developed security vetting (DV), as has the person acting on behalf of the Secretary of State for the Home Department.

493 Later requirement that the second requirement wil , from 4th April, be amended to require that one member must be or have been a legal y qualified member of the AIT 494 Membership of SIAC currently comprises 22 judicial members, 13 legal members and 13 lay members. 495 (Procedure) Rules 2003 496 This has been a bone of contention between many Special Advocates

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A general duty is placed under Rule 4 of the 2003 Rules on SIAC, when exercising its functions, to secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. The Commission is also required497 to exclude the appellant and his representative from a hearing or party of a hearing if it considers it necessary in order to ensure that information is not disclosed contrary to the public interest.

Special Advocates Under section 6 of the 1997 Act the relevant law officer498 may appoint a special advocate to represent the interests of the appellant in any proceedings from which he and his legal representative are excluded. The law officer has discretion rather than a duty to appoint a special advocate, but the Secretary of State may not rely on closed material (i.e. evidence which has not been disclosed to the appellant or his representative) unless a special advocate has been appointed.

497 (By rule 44) 498 (The Attorney-General, the Advocate General or the Attorney-General for Northern Ireland)

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The appointment of special advocates involve a two-stage process; selection and appointment. The Attorney General maintains three civil panels of junior counsel to the crown that are approved to undertake Government work, according to their experience and seniority. Competition to become junior counsel to the crown is strong and appointment to the panel is by way of an open, fair and transparent process.

From these panels, Treasury Solicitor`s Department recommends to the Attorney General a potential list of lawyers with appropriate experience. Following approval by the Attorney General, lawyers are subject to full-developed security vetting (DV), before they are selected to join the pool` of DV counsel.

Lawyers in the pool` may be appointed to act for either, the Secretary of State, or as Special Advocates, in any given case, subject to there being no conflict of interest between cases.

Within the terms of the Special Immigration Appeals Commission Act 1997499 the Attorney General may appoint a person, to represent the interests, of an appellant in any proceedings before the Special Immigration Appeals

499 S6 (1)

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Commission from which the appellant and any legal representative of his are excluded.

Further under the Special Immigration Appeals Commission (Procedure) Rules 2003 which provides that the Attorney General shall be notified by the Secretary of State of a pending appeal if the Secretary of State intends to oppose the appeal and intends to object to the disclosure of material to the appellant. Provisions 500provisions provide that the relevant law officer may appoint a Special Advocate to represent the interests of the appellant in proceedings before the Commission.

The fact that detainees` special advocates are appointed by the Attorney General, who himself has personally represented the Secretary of State before SIAC has naturally generated concerns about the appearance of fairness of the process by which the detainee`s interests are represented in closed hearings. In order to address these concerns; the Law Officers have agreed that the Solicitor General appoints the Special Advocate501.

500 Rule 34(3) 501 (Acting pursuant to section 1 of the Law Officers Act 1997)

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The procedure is that upon receiving notification from the Home Secretary, the Solicitor General considers whether or not to appoint a Special Advocate.

From the pool` of DV lawyers, recommendations are put forward by Treasury Solicitor`s Department on the basis of an assessment of the level of experience that is necessary for a particular case and availability of counsel.

The Solicitor General then considers the recommendations and decides whether to appoint a Special Advocate to a case.502 The appellant503 is notified of the proposed appointment and is given the opportunity to make representations as to whether no special advocate should be appointed or there is any good reason why the named advocate should not act504

The limitations under which the Special Advocates perform their function and the ways in which they could be enabled to do so more effectively505 and other salient features of the appeal

502 Those appointed to be Special Advocates understand the nature of their role before they are appointed]. 503 (Or his representative) 504 (For e.g. a conflict of interest). 505 (section C)

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regime under Part 4 of ATCSA which may fall to be reconsidered in debate on the new proposals.506

Special Advocates are appointed by the Law Officers under section. 6 of the SIAC Act 1997; which provides that Special Advocates may represent the interests of the appellant; in any proceedings before [SIAC] from which the appellant and any representative of his are excluded.

Their functions are further defined by r. 35 of the SIAC 507 as to represent the interests of the appellant by (a) making submissions to the Commission at any hearing from which the appellant and any representative of his are excluded; (b) cross- examining witnesses at any such hearings; and (c) making written representations to the Commission.

The Court of Appeal considered the function of the Special Advocates in M v Secretary of State for the Home Department508, the first and only case in which SIAC allowed an appeal against certification. Lord Woolf509CJ said... The involvement of a special advocate is intended to reduce (it

506 (section D) 507 (Procedure) Rules 2003 508 [2004] EWCA Civ. 324, [2004] 2 Al ER 863 509 of Barnes

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cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him.510

After giving its reasons for dismissing the Home Secretary`s application for permission to appeal against SIAC`s decision, the court said... We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process511

Of course one critiscm is the inability to take instructions on the closed case, which is undoubtedly the most serious limitation on what Special Advocates can do. This limitation has not been universally understood. For example, in his evidence to the Select Committee on Home Affairs512, Lord Carlile of Berriew QC513 was under the misapprehension that Special Advocates are free to talk to the Defendant`s lawyers:

510 At [13] 511 At [34] 512 On 8 March 2004 513 Appointed under s. 28 of ATCSA to review the operation of the detention provisions

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Lord Carlile of Berriew: They [Special Advocates] do not communicate with their clients very much at all. Indeed, I am not aware of any significant level of communication with the "client". Certainly, there are communications with the private lawyers for the detainee, the detainees always have their own lawyers, their own solicitors, their own barristers; of course, their own barristers do not see the closed material. So there is plenty of room for an iterative process between the Special Advocate and the Conventional lawyers, but I would like to see the Special Advocate able to bypass the Conventional lawyers in certain circumstances. 514

The Dilemma of the Special Advocates There is in fact no contact between the Special Advocates and the appellant`s chosen representatives in relation to the closed case and, therefore, no iterative process of the kind described. Under the SIAC (Procedure) Rules 2003, Special Advocates are permitted to communicate with the appellant and his representatives only before they are shown the closed material.

514 Rule 4 of the 2003 Rules places a general duty on SIAC, when exercising its functions, to secure that Information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is Likely to harm the public interest.

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In practice, the appellants have not generally chosen to take advantage of this opportunity515. Such communication is in any event, unlikely to be of much use to the Special Advocates, since they do not at this stage know the extent of the case to answer or the evidence thereto516.

There are also circumstances in which individual Special Advocates have taken the view that, on the facts of a particular case, it would not be in the appellant`s interests to participate in a particular hearing. This course was deprecated in strong terms by one tribunal517 but regarded as entirely appropriate by another.518

There may be situations in which it is not in the interests of the appellant for his Special Advocates to participate in a particular hearing.

The question whether Special Advocates should participate or not is one which they must answer in the exercise of their own

515 Perhaps, in part a reflection of the lack of confidence in the unilateral y appointed security cleared lawyer. 516 The procedures to be followed in proceedings before SIAC are prescribed in the Special Immigration Appeals Commission (Procedure) Rules 2003. Those procedures as far as possible mirror those followed in Ordinary immigration and asylum appeals, but with special provisions to allow the Secretary of State to rely on evidence without disclosing it to the appellant or his representative, where to do so would be contrary to the public interest. 517 (Collins J in Abu Qatada) 518 (Sullivan J in S).

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independent judgment, taking into account all the circumstances of the case. Special Advocates have to consider the extent to which, given the limitations inherent in their role, they can advance the appellant`s interests in any closed hearing nature of the closed case the appellant has to meet.

Once the Special Advocates have seen the closed material, they are precluded by r. 36(2) 519from discussing the case with any other person. Although SIAC itself has power under r. 36(4) to give directions authorising communication in a particular case, this power is in practice almost never used, not least because any request for a direction authorising communication must be notified to the Secretary of State. So, the Special Advocate can communicate with the appellant`s lawyers only if his opponent in the proceedings has approved the precise form of the communication.

Such a requirement precludes communication even on matters of pure legal strategy. Special Advocates can identify; 520 any aspects in which the allegations made by the Home Secretary

519 Ibid: Rule 4 of the 2003 Rules places a general duty on SIAC, when exercising its functions, to secure that Information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is Likely to harm the public interest 520 (By way of cross-examination and submissions)

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are unsupported by the evidence relied upon; and check the Home Secretary`s evidence for inconsistencies.

However Special Advocates have no means of knowing whether the appellant has an answer to any particular closed allegation, except insofar as the appellant has been given the gist of the allegation and has chosen to answer it. Yet the system does not require the Secretary of State necessarily to provide even a gist of the important parts of the case against the appellants in the open case, which is provided to the appellants.

In the above situations, the Special Advocates have no means of pursuing or deploying evidence in reply. If they put forward a positive case in response to the closed allegations, that positive case is inevitably based on conjecture. They have no way of knowing whether it is the case that the appellant himself would wish to advance. The inability to take instructions on the closed material fundamentally limits the extent to which the Special Advocates can play a meaningful part in any appeal521.

521 Amnesty International continues to express concern that proceedings under the ATCSA fal far short of international fair trial standards, including the right to the presumption of innocence, the right to present a full defence and the right to counsel.; See evidence given The Department for Constitutional Affairs February 2005

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Counsel generally acts on instructions from a solicitor, whose firm is involved in the preparation of the case. A Law Officer through an instructing lawyer employed by the Treasury instructs special Advocates. As above SIAC consists of three judges522 and in cases of the refusal of applicants for admission to the UK permission to enter or ordered to be deported on the grounds that this is conducive to the public good and in particular, in the interests of national security`, a right of appeal is granted to SIAC. Pursuant to the HRA, procedural rules have been made designed to ensure that proceedings before SIAC do not lead to disclosure of material where this would be damaging to the national interest. For completeness closed hearings take place in the absence of the applicant at which SIAC considers closed material523. A special advocate represents the applicant but, once he/she has seen the closed material, he/she is no longer permitted to communicate with the applicant. Of course this raises the issues of Natural Justice` in the sense that524t the cogency of the

522 Of whom the President is a member of the High Court 523 Undisclosed to the Applicant 524 Ibid.

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evidence may well go unchallenged, and of course the further issue of the presumption of proof, may be heeded. The applicant has no way of being placed in a position to challenge the cogency of that evidence, in the sense that he /she may be able to rebut the possible damming evidence which is often the case when such evidence may be equally compelling in say criminal trials, but less so when challenged with the assistance of the defendant, as to the cogency of the evidence being relied upon. It is upon this basis that it would remain unclear as to how much weight would or is be placed upon that evidence placed before the SIAC. Upon this point the chair of any given SIAC hearing as outlined above is a member of the judiciary, either from the High Court or Court of Appeal. The other members are either security driven or from the Diplomatic service and therefore the proceedings are arguable entrenched in legal process. Of course all of the material being dealt with is referred to as closed material and as above such material is not for disclosure to the Applicant. For completeness many transcripts are either open or closed as are the judgments.

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The Procedures The SIAC (Procedure) Rules 2003 set out the time limits for appeals to SIAC exercising its powers under the 1997 Act. These include immigration decisions taken under the 1981 Act, the 2001 Act or the 2002 Act. An appellant in detention: not later than 5 days after the date on which he is served with the decision. An appellant in the UK: not later than 10 days after the date on which he is served with the decision.

An appellant outside the UK: not later than 28 days after either the date on which he is served with the decision, or, where he is in the UK at the time of the decision, and may not appeal while in the UK, not later than 28 days after the date of which he left the UK.

The Commission may extend the time limits if satisfied that there are justifiable special circumstances. The 2001 Act sets out the time limit for appeals to SIAC against certification as a suspected international terrorist by the Secretary of State for Home Department.

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An appeal against certification must be given within a period of 3 months beginning with the date on which the certificate is issued or with the leave of SIAC after the end of this period but before commencement of the first review by SIAC.

Under the 2001 Act, SIAC must hold a first review of each certificate issued by the Secretary of State for Home Department as soon as is reasonably practical after the expiry of 6 months beginning with the date on which the certificate was issued. Parties may also make an application for permission to appeal on a question of law to the Court of Appeal, the Court of Session or the Court of Appeal in Northern Ireland, from a final determination by the Commission of an appeal or a review.

The prescribed time limits stipulate that an application for leave must be filed with the Commission not later than 5 days after the applicant has been served with a copy of the determination where the applicant is in detention; otherwise, the application must be filed not later than 10 days after service of the relevant determination.

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Challenging decisions while ensuring that sensitive information is protected from disclosure, and that the composition of SIAC provides it with the expertise necessary both to assess intelligence material, and to consider and decide appeals within its jurisdiction.

Immigration and nationality matters do not fall under the head of civil rights and obligations, and the provisions of Article 6 of the Convention therefore do not apply.

The above was stated as a correct position of law in that it was held that SIAC's present procedures525 fully meet the requirements of that Article as they relate to civil procedures as endorsed by the Court of Appeal in a the case of Secretary of State fo