1. Memorandum submitted by the Home
Office and the Department for Constitutional Affairs
1. Introduction
1.1 The Committee asked for written evidence
in connection with human rights legislation and government policy
focusing in particular on the following issues:
— An introductory review of the history
of human rights legislation in this country.
— Would we be better off without the
HRA or with a replacement bill of rights?
— Practical examples: what difference
the Act has made (positive and negative)/what the problems are?
— What needs to be done to implement
the HRA more effectively within the Home Office and criminal justice
agencies?
— What judges and other CJS practitioners
are taught about the HRA.
1.2 This document provides an overview on
each of the five areas above.
2. Introductory Review of the History of
Human Rights Legislation in England and Wales
2.1 The rights set out in the European Convention
on Human Rights derive most directly from the aspirational terms
of the Universal Declaration of Human Rights issued by the United
Nations in 1948. Both the Universal Declaration and the European
Convention were the product of the period immediately following
the Second World War, and the atrocities committed by totalitarian
regimes such as Nazi Germany, during which it had become clear
that the national machinery for the protection of the rights of
individuals had proved completely inadequate. The notion of internationally
recognised freedoms had been enunciated in 1941 by Churchill and
Roosevelt in the Atlantic Charter. Building upon that base, the
International Committee of the Movements of European Unity organised
a Congress of Europe in The Hague in 1949 and the European Convention
on Human Rights (drafted substantially by Sir David Maxwell-Fyfe)
was opened for signature in 1950 and came into force in 1953.
The UK was among the first to sign and to ratify the Convention,
and allowed individual rights of access to the European Court
of Human Rights in 1965. In 1951 the Refugee Convention was also
created to address the need for protection of refugees following
the Second World War.
2.2 Although individual access to the European
Court of Human Rights had made it possible for human rights cases
to be pursued by those alleging breaches of their Convention rights,
the time taken and the expense involved meant that only the most
serious allegations could be dealt with at Strasbourg. With that
in mind the Government undertook, whilst in Opposition, a consultation
exercise as a result of which a Manifesto Commitment was made
to introduce the Human Rights Act. On taking Office in 1997, the
Government published the White Paper Bringing Rights Home leading
to the Human Rights Act. The Act has made rights from the European
Convention on Human Rights enforceable in our own courts, an arrangement
which is much quicker and simpler than that which existed before
the Act.
2.3 The Government has recently reasserted
its commitment to the Human Rights Act in the Review of the
Implementation of the Human Rights Act[2],
and the UK's continued membership of, and participation in, the
Council of Europe is accepted by all the main UK political parties.
3. Would we be better off without the HRA
or with a Bill of Rights?
Repeal of the Human Rights Act
3.1 On the basis we repeal the Human Rights
Act, but without withdrawing our membership of the European Convention,
this would restore the basic legal framework that existed before
the Act was enacted. So individuals would no longer be able to
rely directly on their Convention rights before the UK courts.
Ministers would no longer have to certify the compatibility of
Bills, and courts would no longer formally be able to declare
statutes incompatible. Individuals could still petition the European
Court of Human Rights in Strasbourg. The Government would also
retain its obligation to execute decisions of the European Court,
and to provide effective remedies for breaches of the Convention
rights.
3.2 The precise effect on UK law of repealing
the Act is a matter for speculation. On the one hand, repeal could
be expected to reduce and to some extent reverse the immediacy
of the Convention's impact in UK law. But on the other hand, it
is unlikely to restore fully the position immediately before the
Act came into force, or to remove European Convention on Human
Rights principles from UK law. There are several reasons for this.
First, the courts were able to rely on the European Convention
on Human Rights even before the Human Rights Act came into force.
The European Convention on Human Rights was used as an aid to
the interpretation of ambiguous legislation, but also informed
the development of the common law. That common law reliance on
the European Convention on Human Rights (and of other international
rights instruments, such as the various UN treaties) can be expected
to continue and possibly intensify on repeal of the Act. Convention
rights, partly because many of them are derived from common law
principles, may now be so firmly embedded into the legal culture
that repeal of the Act has minimal impact. And in so far as repeal
did have an impact in closing off the remedies that are now available
in the UK courts, it would only serve to re-introduce the cost
and delay of seeking a remedy in Strasbourg.
3.3 Straight repeal could be accompanied
by legislation that tried to restrict common law reliance on the
European Convention on Human Rights and other international rights
instruments. But the attempt is likely at best to be fruitless
and at worst to introduce a damaging conflict with a judiciary
unwilling to see the common law divorced from the protection of
fundamental rights. It would also, probably, increase further
the scrutiny received by the UK at Strasbourg.
A "UK Bill of Rights"
3.4 An option that has been subject to recent
comment is that of repealing the Human Rights Act and enacting
a separate set of fundamental rights which would not, in law,
be connected to the European Convention on Human Rights. The suggestion
is that these rights could be given some sort of entrenched or
superior status in our constitution.
3.5 An advantage perceived by the proponents
of this option is that it would provide a charter of rights designed
and drafted with reference to British values, traditions and priorities.
But there are two major difficulties.
3.6 The first is the effect on Parliamentary
sovereignty. If the rights were entrenched, so that Parliament
cannot amend or depart from them, that would remove a central
pillar in our constitution. We would lose Parliamentary sovereignty.
On questions of rights and morality, the ultimate arbiter would
be the judiciary. Future Parliaments might be unable to act to
protect national security. The Human Rights Act avoids that. It
allows Acts of Parliament to become law even if they are not compatible
with the European Convention on Human Rights.
3.7 The second difficulty is the uncertainty
and confusion that would result from having two sets of fundamental
rights. On the one hand, the Government would remain obliged to
comply with all the rights in the European Convention on Human
Rights. And the citizen would remain able to take a case to Strasbourg.
On the other hand, Government, citizens and courts would be confronted
by a separate (but presumably overlapping) set of rights for the
purposes of domestic law.
3.8 The precise effects of this option must
be a matter of speculation. Our courts would certainly be urged
to have regard to Strasbourg decisions, even where the domestic
rights do not precisely correspond with those in the European
Convention on Human Rights. And they would, unless the UK Bill
of Rights showed a contrary intention, seek to construe the UK
Bill of Rights as consistent with the Convention. That would be
the correct inference to draw from repealing the HRA but staying
in the convention. The scope for confusion is clear. A field day
for the lawyer is inevitable. Decision makers throughout the public
sector would have to bear in mind two sets of rights, which might
make them more cautious and risk-averse, rather than less. The
European Court of Human Rights would probably pay less regard
to our case law, because it would be dealing with a different
set of rights. This might result in a greater scrutiny of UK cases,
and more adverse findings. And our citizens would no longer have
a single clear catalogue of their rights and freedoms, which the
Human Rights Act provides and which is shared by 800 million people
across Europe.
4. What difference has the Act made (positive
and negative)/what are the problems?
The Human Rights Act's impact on UK law
4.1 The impact of the Human Rights Act upon
the development of UK law has been significantly less, and significantly
less negative, than some predictions made for it from 1997 onwards.
Arguments based on the Human Rights Act have been raised across
a whole range of civil and criminal litigation, and have been
explicitly considered in about one third of the cases considered
by the House of Lords since the Act came into force. But in many
instances the courts would either have reached the same conclusion
under common law, or found that the decision being challenged
had been properly taken. And, in very many cases, human rights
arguments have been rejected by the courts as being either misconceived
or irrelevant to the case.
4.2 Two cases highlight the impact which
human rights have had upon UK law. First, in A and Others v
The Home Secretary the House of Lords decided that the detention
without trial of foreign nationals under the Anti-Terrorism, Crime
and Security Act 2001 was incompatible with Article 14 of the
European Convention on Human Rights because it discriminated on
the grounds of nationality or immigration status. However, all
but one of the nine members of the court decided that the Government
had been entitled to conclude that there was (in the words of
the Convention) a "public emergency threatening the life
of the nation" and—since UK courts do not have the
power under the Human Rights Act to strike down primary legislation—the
applicants remained in detention. The Government therefore had
time to identify alternative ways of ensuring that the public
continued to be protected, by introducing the regime of Control
Orders passed by Parliament in the Prevention of Terrorism Act
2005. That system is currently being considered by the courts.
4.3 The other case concerns the UK's ability,
in law, to deport or remove those who threaten us or who have
entered illegally or whose claim for asylum has failed. A proportion
of those eligible for deportation or removal are not removed because
there is a real risk that they would be tortured or otherwise
ill-treated in the country to which they would be returned, and
because we are not currently able to balance the threat posed
by an individual to national security against the risk of mistreatment
if the individual concerned is returned to their own country.
We are not prevented from making this balance by the Human Rights
Act itself but by decisions of the Strasbourg Court in cases such
as the 1996 case of Chahal v United Kingdom. The combined
view of the security agencies also recognises that the structures
set up to deal with dangerous terrorist suspects result not from
the Human Rights Act but from decisions of the European Court
of Human Rights. We want to be able to take account of the threat
to national security posed by an individual against the risk of
mistreatment if the individual concerned is returned to their
own country and also to be able to rely on assurances given by
the returnee country. We are therefore seeking to change the current
position through our intervention in a case before the European
Court of Human Rights. However, the Human Rights Act makes no
difference in this instance, not only because the Chahal decision
predates it, but also because it is an example of the Strasbourg
Court interpreting the scope of Article 3 of the European Convention
on Human Rights.
4.4 In general, therefore, the Human Rights
Act has not seriously impeded the achievement of the Government's
objectives on crime, terrorism or immigration, and has not led
to the public being exposed to additional or unnecessary risks.
In addition, the UK courts have recognised that there is an area
of judgment within which the judiciary will defer, on democratic
grounds, to the considered opinion of the legislature or the executive.
Whether and to what extent the courts will recognise a "discretionary
area of judgment" depends upon the subject matter of the
decision being challenged. But policy decisions made by Parliament
on matters of national security, criminal justice and economic
policy are accorded particular respect.
4.5 There is no doubt that the Human Rights
Act has also established a "dialogue" between English
judges and the European Court of Human Rights. The close analytical
attention paid by the English courts to the European Convention
on Human Rights case law is respected in Strasbourg, and has become
influential on the way it approaches English cases. This in part
accounts for the significant reduction in a number of adverse
decisions against the UK Government by the European Court of Human
Rights since the Human Rights Act came into effect.
4.6 Moreover, there have been only 13 occasions
upon which the superior courts have upheld Declarations that Acts
of Parliament were incompatible with the Convention rights. One
further occasion of a Declaration of incompatibility is still
subject to appeal. Similarly, the courts have used Section 3 of
the Act (which requires the courts, if possible, to interpret
legislation in a way compatible with the Convention), on only
12 occasions. Arguments that the Human Rights Act has significantly
altered the constitutional balance between Parliament, the Executive
and the Judiciary have therefore been considerably exaggerated.
The Human Rights Act's impact upon policy formulation
4.7 The Human Rights Act has exerted a more
powerful influence upon policy formulation by Government, in three
ways:
— through formalisation of the process
for ensuring compatibility with Convention rights, including the
requirement for a positive statement of compatibility for all
Bills, a memorandum required for Bills to be approved for introduction
and the scrutiny of the Joint Parliamentary Committee on Human
Rights;
— in response to litigation which may
force a change in policy or a change in the method by which a
particular policy is delivered; and
— through changes in behaviour driven
by the greater immediacy of the Act, which makes it unlawful for
a public authority to act in a way incompatible with the Convention
rights.
4.8 Overall, the Human Rights Act can be
shown to have had a positive and beneficial impact upon the relationship
between the citizen and the State, by providing a framework for
policy formulation which leads to better outcomes, and ensuring
that the needs of all members of the UK's increasingly diverse
population are appropriately considered both by those formulating
the policy and by those putting it into effect. In particular,
evidence provided to the DCA by other Government Departments shows
how the Act has led to a shift away from inflexible or blanket
policies towards those which are capable of adjustment to recognise
the circumstances and characteristics of individuals.
Myths and misperceptions
4.9 But the purpose and effect of the Human
Rights Act has been widely misrepresented and misunderstood. So
far as the wider public are concerned, there are three different
types of myth in play. First, there are those which derive from
the reporting (and often partial reporting) of the launch of cases
but not their ultimate outcomes. This leaves the impression in
the public mind that a wide range of claims are successful when
in fact they are not—and have often been effectively laughed
out of court. The most notable example in this category is the
application made by Denis Nilsen in 2001 to challenge a decision
of the Prison Governor to deny him access to pornographic material.
The case is now often cited as a leading example of a bad decision
made as a result of the Human Rights Act. In fact it failed at
the very first hurdle.
4.11 Secondly, there are pure urban myths:
instances of situations in which someone (often it may not even
be clear who) is reported to have said that human rights require
some outcome or other, and this is subsequently trotted out as
established fact. A recent example is the case in which food,
drink and cigarettes were supplied to Barry Chambers who, in the
course of evading arrest, had taken refuge on a roof of a domestic
dwelling. The suspect had, of course, no "human right"
to receive food in these circumstances, but instead, as part of
a police operational decision aimed at resolving a stand-off quickly
and peaceably, his demands for food and other refreshments were
met as part of a negotiating strategy aimed (successfully in the
event) at coaxing him down from the roof without injury to himself
or others.
4.12 Finally, there are rumours and impressions
which take root through a particular case or decision, and which
then provide a backdrop against which all subsequent issues of
the type in question are played out. Examples here are false suggestions
that the Human Rights Act would prevent the filming of school
nativity plays, or prevent teachers from putting plasters on children
who have cut themselves. Such stories have undoubtedly had an
accumulative and corrosive effect upon public confidence both
in the Human Rights Act and in the European Convention on Human
Rights itself.
Analysis of overall effect
4.13 The key and overriding question is
whether the Human Rights Act has impeded the achievement of the
Government's objectives on crime and terrorism and led to the
public being exposed to additional and unnecessary risk. The effect
of the Act upon domestic UK law has been far from marginal, and
has involved the courts in a much more active and intense scrutiny
of the Executive than they had been required to do prior to October
2000. The courts have also applied this scrutiny to primary legislation
and, in some high profile cases, have declared Acts of Parliament
to be incompatible with the Convention rights under section 4
of the Act.
4.14 But—and as the Declarations of
Incompatibility themselves illustrate—the public policy
issues which arise here derive not from the effect of the Human
Rights Act in UK law, but from the UK's obligations under the
European Convention on Human Rights itself—to which the
Government and all the major political parties remain committed.
Indeed, the evidence is that, if anything, the UK Government tends
to get better outcomes than previously in Strasbourg through having
the Act, because these issues are adjudicated by UK judges here
in a manner which has gained the approval and respect of the European
Court of Human Rights.
4.15 The combined view of the security agencies
is that, although there are significant resource implications
in servicing the structures set up to deal with dangerous terrorist
suspects, these result not from the Human Rights Act, but from
decisions of the Strasbourg Court in cases such as Chahal.
4.16 The Human Rights Act can be shown to
provide a framework for policy formulation which leads to better
outcomes, and ensuring that the needs of all members of the UK's
increasingly diverse population are appropriately considered.
The Act therefore directly contributes to greater personalisation
and better public services.
4.17 Such difficulties which have arisen
lie in the way the Act has been implemented. There is a need to
address the way in which the effect and requirements of the European
Convention on Human Rights have been misunderstood and misapplied—evidence
from the CJS Review "Rebalancing the criminal justice system
in favour of the law-abiding majority: Cutting crime, reducing
reoffending and protecting the public"[3]
suggests that practitioners can feel constrained by the requirements
and may on occasion take an overly cautious approach to balancing
rights. There is a need to ensure key decision takers are consistently
provided with the right training, guidance and legal advice, particularly
upon the overarching importance of the State's duty (which can
be found in the European Convention on Human Rights itself) to
take appropriate measures to protect public safety. There is an
urgent need for action, both by lead policy Departments and by
the DCA, in redressing the balance here, and in providing clearer
and more timely public communications to undo the damage caused
by the myths which have grown up around human rights. The Home
Office approach to redressing the balance for CJS practitioners
is detailed at section 5.
5. What needs to be done to implement the
HRA more effectively within the Home Office and criminal justice
agencies?
5.1 As highlighted above, evidence from
the CJS Review and the Review of the Implementation of the Human
Rights Act[4]
suggests that the interpretation and administration of the Human
Rights Act and the Convention rights it enshrines are the key
areas where improvements can be made to ensure that rights are
being balanced effectively by the Criminal Justice Agencies. The
two reviews demonstrated that CJS practitioners are on occasion
over cautious in their interpretation of competing rights which
impacts on the way in which policies with human rights implications
are administered. For example, police officers have been found
to take a cautious approach to releasing photographs of individuals
who have failed to attend court as they believe that this may
infringe their human rights. However, if the publication of the
photograph and accompanying details is proportionate to the offence
and it is in the public interest to locate the defendant for the
prevention of disorder and crime, then the interference with that
right should be generally justified if certain procedures that
are set out in guidance are followed.
5.2 The CJS Rebalancing Review sets out
the Government's approach to ensuring that the interpretation
and administration of the Human Rights Act across the CJS agencies
is effective. There are a number of workstreams that are currently
being implemented and these are outlined below.
National oversight of the interpretation and administration
of human rights
5.3 The Home Office is establishing a Scrutiny
Panel consisting of practitioners and legal advisers from across
the CJS agencies to monitor the interpretation and administration
of rights. The panel will provide a strategic oversight of the
CJS response to adverse judgements and also monitor practice of
frontline agencies to ensure that a co-ordinated, consistent and
robust approach is taken to balancing rights. On the basis of
this routine monitoring the scrutiny panel will make recommendations
on any changes necessary to CJS process, guidance and training;
and any new legislative requirements required to improve the balancing
of rights in practice.
Advice service for front-line practitioners
5.4 In addition to the strategic oversight
of the administration of the Human Rights Act, more immediate
and practical support will be provided to front-line practitioners
through an online advice service accessible by all CJS. The online
service will provide "myth busting' advice to address any
misreported cases that have gained credence and have become urban
myths; guidance and advice specific to the CJS; a review of legal
case-law relating to the application of the Human Rights Act and
links to e-learning modules on the application of human rights
and other relevant documents produced by other departments and
agencies. This resource will ensure that front-line practitioners
across the CJS have access to reliable and accurate guidance and
advice on how to balance public protection and individual rights.
5.5 The online site is currently under development
and will also include a contact number for frontline practitioners
through which advice can be obtained. It is not however to be
treated as a substitute for legal advice already available to
practitioners.
Duty to protect
5.6 To ensure that the Human Rights Act
is not misinterpreted by practitioners in a way that prevents
action to protect the public, the Government will emphasise and
clarify that all relevant criminal justice agencies have a duty
to take appropriate steps to protect the public and may legislate
to underline this.
5.7 Alongside these workstreams the Home
Office will continue to be robust in challenging any judgments
which stop us from properly balancing individual rights against
the need to protect the public. For example, the UK is working
with partners in Europe to find better ways of better meeting
the problem faced in balancing the needs of the public for security
and the preservation of individual rights and responsibilities.
6. What CJS practitioners are taught about
the HRA?
6.1 Guidance and training on human rights
for CJS practitioners has in the past often focussed on embracing
the message of the Act rather than "striking a robust balance".
A key function of the Home Office Scrutiny Panel will be to review
training and guidance to ensure that the approach taken to implementing
the Human Rights Act ensures that a proper balance is struck between
the rights of the individuals and the rights of the general public
to be protected. The training that is currently being administered
across the CJS agencies is detailed below.
Home Office
6.2 Training on Human Rights for Home Office
staff has, since July 2005, been provided by the Home Office Legal
Adviser's Branch as part of their Legal Awareness Programme. This
Programme is aimed at raising legal awareness throughout the Office
so that staff can operate more effectively, and confidently, enabling
them to take decisions and develop policies which are demonstrably
compliance with ECHR and public scrutiny or can be more effectively
defended in the courts and are thus less prone to misunderstanding.
6.3 The Programme consists of:
— an internal website containing legal
links, contacts and advice;
— a document "Legal Services in
the Home Office" which sets out the sources of legal services
available to the Home Office and the main legal areas of which
staff should be aware, including human rights;
— interactive workshops with a different
legal subject held each month throughout the year. The Human Rights
workshop, as with the other workshops, is rooted in real life
or realistic examples and is specially constructed to be relevant
and familiar to all non-legal Home Office staff. The workshops
contain hypothetical scenarios which test staff's understanding
of human rights and their application. The aim of this workshop
is to raise awareness of how the Human Rights Act works and how
it impacts on Home Office business; and
— E-learning legal awareness modules
available from the desktop were rolled out this summer starting
with a module on human rights. The module lasts up to 90 minutes
with an interactive desktop exercise at the end to test each staff
member's understanding.
6.4 In addition, a Home Office Deputy Legal
Adviser chairs a Legal Awareness Network for the government legal
service (GLS), which is disseminating best practice in legal awareness
across Central Government.
6.5 Where there is a more specific operational
need, the central training is supplemented by training that is
developed by the individual agencies themselves.
CJS agencies
6.6 Occupational Standards for the whole
of the CJS have been developed through Skills for Justice which
is the dedicated Sector Skills Council and Standards Setting Body
for the Justice sector.
6.7 Skills for Justice have developed a
National Occupational Standard on promoting equality and valuing
diversity that is common across all of the Criminal Justice Sectors.
Part of this unit relates to understanding and applying human
rights in the workplace and is designed to underpin all other
units as these skills are an essential component of all actions
in the sector.
Police
6.8 Training for the Police on human rights
is focussed on the application of Human Rights in the context
of the operational tasks they undertake. Issues relating to Human
Rights therefore are taught to the police in the context of the
situation/operational skill they are being trained about.
6.9 Following the introduction of the Human
Rights Act, training material was produced to support a two day
workshop to be delivered by all forces. This material included
presentations, exercises, scenarios, facilitated discussions and
supporting work books.
6.10 The Initial Police Learning and Development
Programme (IPLDP) was officially launched on 1 April 2006 and
is now live nationally with all 43 forces having received their
first intake of IPLDP students. IPLDP has replaced centrally delivered
training with locally delivered, community based training which
is assessed in the workplace against National Occupational Standards
(NOS). Training on the Human Rights Act appears throughout the
IPDLP in the context of case studies for the operational skills
being taught. There are also specific modules in the programme
that deal with the Human Rights Act. These modules include:
— underpinning Ethics and Values of
the Police Service;
— use Police Actions in a Fair and
Justified Way; and
— the Legislation, Policy and Guidelines
Module.
At the end of the Programme, Officers will be
accredited and need to demonstrate, amongst other things, knowledge
of and an ability to apply human rights.
6.11 Individual police forces have the flexibility
of being able to develop or customise their IPLDP training materials,
however, given that the IPLDP syllabus is based upon NOS, the
content of any locally developed training packages should be comparable
to the centrally produced and maintained syllabus.
6.12 More generally current training packages
that incorporate training on the Human Rights Act include management
of police information and Police Race and Diversity Learning and
Development Programme. Further packages are being developed in
respect of Safer Detention and Handling, Vice and Prostitution,
and Trafficking.
Crown Prosecution Service
6.13 Prior to the introduction of the Human
Rights Act the CPS trained all its prosecutors and caseworkers
through a three day intensive training programme.
6.14 Since then, all new prosecutor recruits
receive a two day training session on the European Convention
on Human Rights as a compulsory component of their induction.
There is a national programme to deliver this training but it
can be and has been adapted by local areas.
National Offender Management Service
6.15 Operational guidance to practitioners
in the National Offender Management Service (NOMS) takes account
of human rights legislation and relevant case law and it is updated
to take account of any new judgements that might have an impact
on practice.
6.16 Trainee Probation Officers have to
complete a Diploma in Probation Studies which comprises an NVQ
and a degree. Issues relating to human rights are covered by a
number of the modules in these courses. The Diploma in Probation
Studies contains a module on Values, Ethics and Diversity. This
module covers justice, rights and responsibilities; respect for
others; victims and offenders, as well as professional integrity,
responsibility and accountability. The NVQ covers human rights
in the Community Justice Diversity Standard.
6.17 Probation Services Officers are a practitioner
grade below Probation Officers and work with offenders who are
assessed to be at the low to medium risk of causing harm. The
Induction and Development Programme for Probation Service Officers
aims to ensure that the student has sufficient knowledge and skills
to work effectively with this group of offenders. The programme
consists of a core set of training modules and although there
is not a specific module on human rights there are references
to these issues under a number of modules. In particular the module
relating to Orientation to the CJS has a learning outcome to "Demonstrate
an understanding of how principles of promoting equality, valuing
diversity and anti discriminatory practice apply within the CJ
system".
6.18 Prison officers are trained in professional
competencies which cover issues relating to human rights particularly
in the areas of professional working relationships and diversity/equality.
This training is directly relevant to how prison officers conduct
searches, deal with religious artefacts and cultural differences,
for example.
7. What judges are taught about the Human
Rights Act?
7.1 Every judge attended an intensive one
day seminar on the Human Rights Act and the Convention in 2000.
In the Magistrate's courts, all justices and their legal advisers
received compulsory training prior to the implementation of the
Act, using nationally produced materials. The Judicial Studies
Board also issued common materials and advice which was sent to
all tribunals and it is known that many tribunals ran training
events.
7.2 Since then the Act and the Convention
rights contained within it have become an integral part of UK
law, reflected in very many decisions of the House of Lords and
the Court of Appeal. Assisted by those decisions judges apply
the Act as an ordinary part of domestic law. No further specialised
training has therefore been considered necessary. Bench Books
issued by the Judicial Studies Board have references to the Human
Rights Act.
7.3 Judicial Studies Board induction courses
aim to teach substantive law concentrating on how to manage a
trial and sentencing and reference may be made inter alia to the
Convention. Now that the Act is embedded in UK law, issues relating
to them inevitably arise in the course of the case studies with
which judges have to deal at Judicial Studies Board continuation
training seminars. For example, in such a study the question might
arise whether hearsay evidence is admissible where it constitutes
the sole or decisive evidence against a defendant. That issue
cannot be decided without reference to both the hearsay provisions
of the Criminal Justice Act 2003 and article 6(3)(d) of the Convention
(the right to confront prosecution witnesses). There are many
other similar examples. Training in the Act and the Convention
has therefore not ceased but instead continues to form part of
a judge's ordinary training.
7.4 This is also true for Magistrates' training
where under the Magistrates' National Training Initiative (MNTI
2) the syllabus for new justices stipulates that the Human Rights
Act must be covered as a "key theme". The Judicial Studies
Board provides specific exercises and case studies that raise
human rights issues. In addition, where there is domestic or international
jurisprudence relating to the Human Rights issues, magistrate
training material covers that. For example, the induction, consolidation
and chairmanship family materials deal in detail with the applications.
The Adult Court Bench Books and the Family Court Bench Book both
contain a specific section on the Human Rights Act, as well as
including references to it at appropriate stages in the structured
decision making checklists and forms. The magistrate competence
framework has reference to a knowledge of human rights, so that
it is part of the personal continual development programme of
all magistrates and of periodic assessment in the appraisal process.
Department for Constitutional Affairs
Home Office
October 2006
2 Department for Constitutional Affairs (July 2006). Back
3
Home Office (July 2006). Back
4
Department for Constitutional Affairs (July 2006). Back
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