Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence

APPENDIX 14 (continued)

Memorandum submitted by Mr William Thompson, MP


  129.  Here I extract relevant aspects of the HRA 1998:

    [Long title] An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights . . .

    The Convention Rights

    1(1)  In this Act "the Convention rights" means the rights and fundamental freedoms

set out in—

    Articles 2 to 12 and 14 of the Convention.

    . . .

    as read with Articles 16 to 18 of the Convention.

    1(2)  Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation . . .

    . . .

    Interpretation of Convention Rights

    2(1)  A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—

    judgment, decision, declaration or advisory opinion of the European Court of Human Rights . . .

    . . .

    Interpretation of Legislation

    3(1)  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 . . .

    Declaration of incompatibility

    . . .

    4(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

    . . .

    Acts of public authorities

    6(1)  It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

    . . .

    6(3)  In this section "public authority" includes—

    a court or tribunal, and any person certain of whose functions are functions of a public nature,

    but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

    6(4)  In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.


    7(1)  A person who claims that a public authority has acted (or proposed to act) in a way which is unlawful by section 6(1) may—

    bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

    . . .

    7(7)  For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

    . . .

    Judicial remedies

    8(1)  In relation to any act (or proposed act) of a public authority which the court finds is (or would be ) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

    . . .

    Safeguards for existing rights

    11(1)  A person's reliance on a Convention right does not restrict—

    any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.

    . . .

    Freedom of thought, conscience and religion

    12(1)  If a court's determinations of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

    . . .

    Statements of compatibility

    19(1)  A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights . . .; or make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

    . . .

    Short title, commencement, application and extent

    . . .

    22(6)  This Act extends to Northern Ireland.

    . . .

  130.  The following points need to be made about the HRA 1998 from 2 October 2000:

    —  the rights remain those in the ECHR in international law. They are not incorporated in domestic law. Thus, it is possible to designate derogations and reservations, processes of international law (long title, s 1 (1)-(2));

    —  domestic courts have to take account of Strasbourg jurisprudence. Rules of precedent do not apply. And domestic jurisprudence is a particular national interpretation of the ECHR (s 2(1));

    —  all legislation must be read and given effect, so far as it is possible to do so, so it is compatible with the ECHR. This applies to the PPNIA 1998. It also means the Parades Commission's Code of Conduct, procedural rules and guidelines (s 3(1) & 21(1));

    —  a court cannot strike down incompatible legislation. Parliamentary sovereignty is maintained. However, it can make a declaration, of which parliament may then take account (indeed a minister of the crown may amend primary legislation with a remedial order) (ss 4(2) & 10 & sch 2);

    —  section 6(1) binds the Parades Commission to act in a way which is compatible with Convention rights. There is no doubt that the Parades Commission is a public authority under subsection (3). Subsection (2) is unlikely to provide a defence, that the PPNIA 1998 limits the discretion of the Parades Commission. (It also means the courts—because of paragraph (3)(a)—have to act in a way which is compatible with a Convention right, in reviewing a Parades Commission decision, or, arguably, more generally. Query: whether this is limited to Convention rights in the judicial process? And whether there is a relationship with section 7(1)(b) & (6)?).

    —  section 7(1) & (6) allows for victim versus public authority actions, mainly by judicial review, but also, arguably, for victim versus abuser actions in which human rights points are included (it being unclear whether a public authority has to be first defendant). This point is reinforced by section 6(1) & (3)(a), imposing seemingly a duty on the courts to protect all individuals against breaches of their rights. There may well be a distinction as regards relief or remedies: declaratory if a private defendant; damages if a public authority. (See Lord Woolf MR's preface to Lord Lester of Herne Hill & David Pannick, eds, Human Rights Law and Practice, London 1999, p vii);[120]

    —  the definition of a victim in domestic law is the same as that under article 34 of the ECHR before Strasbourg ( 7(7));

    —  courts have powers to grant relief or remedy, including damages where they are necessary to afford just satisfaction (s 8(1) & (3));

    —  section 11 is a saving for all other rights, in common law or statute (not essentially international law—though see above), including rights of civil redress;

    —  section 13 relates in particular to article 9 (freedom of thought, conscience and religion). It was added at the insistence of religious bodies, to ensure that a court appreciates the importance of the right in determining a question;

    —  section 19 refers to statements of compatibility (or incompatibility) by ministers in both Houses before the bill is debated. These give an insight into the government's legal advice, but only before any amendments to the bill in that House of Parliament.

    —  the HRA 1998 is one of the few statutes to apply throughout the United Kingdom, in accord with the presumption about Westminster legislation.

  In short, Convention rights remain in the ECHR. It is not the Convention which is incorporated. Rather, the remedies which were available from Strasbourg may now be obtained in domestic courts; arguably, the indirect horizontal effect developed by the ECtHR will continue in domestic, especially (where it is needed badly) Northern Ireland, law.


  131.  As noted, domestic courts will have to take account of Strasbourg jurisprudence, under section 2 of the HRA 1998. Case law in the EcomHR and ECtHR does not follow strict rules of precedent. Article 46(1) of the ECHR states that high contracting parties "undertake to abide [in international law] by the final judgment of the Court in any case to which they are parties". However, previous cases are cited, and the ECtHR (now on its own) seeks to produce consistent judgments.

  132.  It is true—when it comes to parading—that there is nowhere quite like Northern Ireland in the other 42 member states of the Council of Europe. However, the enjoyment of freedom of peaceful assembly should not be underestimated; very many movements in continental Europe—secular and religious—parade regularly. States do not ban them; and other citizens tolerate a plurality of expressions. Perhaps the best analogy, thinking of the historical cause of Drumcree 1 to 6, is with ethnic intolerance in the Balkans, recently the most pathological part of Europe.

  133.  Here, I note several Strasbourg cases on article 11, in order to give a flavour of the ECtHR's jurisprudence. Fully adjudicated cases are, of course, more important than (usually unsuccessful) admissibility decisions made by the EcomHR before its demise in 1998:

    —  application 8191/78 Rassemblement Jurassien v Switzerland (1980) 17 DR 93 EcomHR (inadmissible): case brought by two Francophile organisations in predominantly German Jura (following a dispute about a new canton), Canton Berne having banned all political meetings in Moutier on two occasions in 1977 (with a pro-Berne anti-separatist group threatening counter demonstrations); the applicants argued that Canton Berne should have dealt only with the counter-demonstrators; the EcomHR held: "the right of peaceful assembly . . . is a fundamental right in a democratic society and . . . is one of the foundations of such a society . . . As such this right covers both private meetings and meetings in public thoroughfares. Where the latter are concerned, their subjection to an authorisation procedure does not normally encroach upon the essence of the right". (119); the Commission, however, resorted to a broad margin of appreciation argument, given a foreseeable danger affecting public safety and order in Moutier;

    —  application 8440/78 Christians against Racism and Fascism v United Kingdom (1981) 21 DR 138 EcomHR (inadmissible): applicant organisation wished to process from St Paul's to Westminster Cathedral on 22 April 1978, but the police—under the Public Order Act 1936—imposed a rare two-months ban on 22 February 1978 on all processions (excluding "those of a religious, educational, festive or ceremonial character customarily held"), the purpose being to stop an imminent National Front demonstration in Ilford (but also seemingly others), the Commission held: "the freedom of peaceful assembly covers not only static meetings, but also public processions . . . [It] is secured to everyone who has the intention of organising a peaceful demonstration. [Counter demonstrations] cannot as such take away that right."; the general temporary ban was justified by the protection of order; the disadvantages of a ban were outweighed by security reasons (the United Kingdom having argued margin of appreciation); finally, the different treatment of customary processions was justified, given it was based on objective risk of public disorder.

    —  Platform "Arzle fur das Leben" v Austria (1988) 13 EHRR 204 ECtHR (no violation of article 13, EcomHR having rejected articles 9, 10 and 11 complaints): applicant organisation of anti-abortion catholic doctors holding demonstrations in 1980 and 1982 alleged insufficient police protection against counter-demonstrators; the ECtHR rejected an Austrian submission on article 11: "A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere; a purely negative conception would not be compatible with the object and purpose of Article 11".

    —  application 13079/87 G v Federal Republic of Germany (1989) 60 DR 256 EcomHR (inadmissible): demonstrator against United States military in Stuttgart dispersed by police and convicted for coercion in 1983; the EcomHR stated: a sit-in on a public road was not a violent demonstration, and a conviction for obstructing traffic was an interference with the right (article 11(1) should not be interpreted restrictively); "however, balancing the public interest in the prevention of disorder and the interest of the applicant and the other demonstrators in choosing the particular form of a sit-in, the applicant's conviction for the criminal offence of unlawful coercion does not appear disproportionate to the aims pursued." (263)

  134.  Care must be taken in literally adopting text from such judgments and decisions (as is also the case with the common law). Time and space are important restraints in judicial interpretation. The ECHR requires a dynamic, evolving interpretation as "a living instrument which . . . must be interpreted in the light of present-day conditions": Tyrer v United Kingdom (1978) 2 EHRR 1, 10 ECtHR. As noted above on the concept of margin of appreciation, the relationship between Strasbourg and member states, is not necessarily that between national courts and the other branches of government.

  135.  However, existing general principles on article 11, derived from the above cases on freedom of peaceful assembly, may be listed:

    —  one, a fundamental right in a democratic society, and one of the foundations of such a society;

    —  two, it is secured to everyone who has the intention of organizing a peaceful demonstration;

    —  three, state regulation need not be inimical to the right;

    —  four, processions may annoy or give offence;

    —  five, the right to counter demonstrate cannot extend to inhibiting the exercise of the right to demonstrate;

    —  six, the state may be required to intervene, to protect the right to demonstrate (giving rise to a so-called indirect horizontal effect, allowing for possible legal actions between private parties);

    —  seven, covers private meetings, and meetings in public places;

    —  eight, covers not only static meetings, but also public processions;

    —  nine, limitation on the basis of public order frequently accepted, where Strasbourg is allowing a margin of appreciation; also considered proportionate;

    —  ten, different treatment of customary processions may be objectively justified.


  136.  Parades Commission's determinations have already been subjected to judicial review (see above) in 1998, 1999 and 2000 (plus the challenge to the 2000 Parades Commission). No applicant has succeeded yet in securing a legal victory under Order 53 of the Rules of the Supreme Court (Northern Ireland) 1980.

  137.  The significance of the HRA 1998 is twofold. One, the need to take account of Strasbourg jurisprudence under section 3, which assumes, of course, a Convention right to freedom of peaceful assembly. Two, the effect of section 7(1)(b) and (6) in opening up the possibility of litigation between private parties, with or without a public authority being involved.

31 January 2001

120   A simple "no private defendants" position-construing section 6- has been taken by: Parosha Chandran, A Guide to the Human Rights Act 1998, London 1999 p. 45. John Wadham & Helen Mountfield, Blackstone's Guide to the Human Rights Act 1998, London 1999, refer to all litigation involving public and private parties (presumably construing section 7(1) & (6)). They take a broad view of section 6(1) read with subsection (3), but doubt that, while there is vertical direct effect, it is horizontally effective. They favour an indirect horizontal effect, because of "the subtleties and difficulties in using the Convention against a private body." (26) A more cautious position is taken by Stephen Grosz, Jack Beatson & Peter Duffy, Human Rights: the 1998 Act and the European Convention, London 2000: section 6(3), reinforced by sections 12 and 13, does not invoke a full 6(1) duty (contrary to HWR Wade in Constitutional Reform in the United Kingdom: practice and principles, Cambridge 1998, p 63), this being clear from the structure of the act, including section 6, and Hansard; however, note 29 on page 89 makes the point that section 6 does not make the point that it does not apply to acts by private parties; they conclude in favour of substantial indirect horizontal effect in four circumstances: interpretation of legislation, judicial discretion; positive duties on public authorities (including article 11); and tool for development of common law (90-8). Back

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