APPENDIX 14 (continued)
Memorandum submitted by Mr William Thompson,
MP
HUMAN RIGHTS
ACT 1998
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 . . .
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.
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.
STRASBOURG JURISPRUDENCE
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.
NORTHERN IRELAND
COURTS
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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