Memorandum from the Lord Chancellor
As Chair of the Cabinet Committee I was deeply
involved in the detailed development of policy as reflected in
the Act; introduced and piloted it through the House of Lords,
where it was first introduced; and co-operated throughout with
the Home Secretary whose Department was in the lead on the Bill.
Since enactment, officials from my Department have worked closely
with the Home Office and the central departments to provide a
lead in the work towards implementation.
The scheme of the Act provides that human rights
issues can be raised not only in high-profile cases in the appellate
courts, but also in every day cases in magistrates' and county
courts and tribunals. Indeed, courts and tribunals are doubly
affected by the Act. First they have to adjudicate in human rights
cases and consider the compatibility of legislation. Second, as
public authorities under Section 6 of the Act, they have to act
compatibly with Convention rights and develop the common law in
a way that is compatible with Convention rights.
I was therefore particularly concerned to ensure
that the preparation of my Department covered not just the development
of policies, legislation, rules and procedures and staff training
that all Departments needed to address, but also, very importantly,
preparation to ensure that the court system would be ready for
the new tasks given to it by the Act. My Department's implementation
programme therefore included the following issues:
Delivering appropriate training for
the judges, magistrates, and tribunal members.
Ensuring speedy access for judges
and magistrates to ECHR case law.
Ensuring that there were sufficient
numbers of judges, magistrates and their professional advisers
and tribunal members to deal with any extra workload.
Putting in place appropriate rules,
practice directions and procedures for handling cases involving
Providing information for court users
on procedural requirements.
Putting in place systems for evaluating
and monitoring cases involving Convention rights.
My Department has put in place systems to monitor
the incidence of human rights issues in the courts and the tribunals
administered by my Department. In particular, the scope of that
work addresses the quantitative impact of the Act on the workload
of the courts and those tribunals. It does not address broader
issues such as the qualitative impact on legislation or trends
in case law. These are issues that are being addressed by the
Human Rights Act Research Unit at Kings College Law School, which
is undertaking some analysis of reported cases involving human
rights issues on behalf of the Home Office. As always with new
legislation, lawyers and academics can be expected to provide
qualitative assessments of the impact of the Act.
I attach a paper at Annex A, which sets
out the impact of the Act in the first three months since 2 October
at all levels of the court system. Overall, I am pleased to say
that the courts are matching up very well to the demands placed
on them so far by the Act. There has been some extra workload,
in particular in the higher courts, but there has been no significant
impact on the length or complexity of hearings and no significant
increase in outstanding cases at any level of the system. I believe
that this smooth transition has not been due to chance but the
result of the two years of careful preparation by both Government
and the courts.
In response to the Committee's specific questions,
when new legislation is introduced, there can be a time lag before
any significant impact as practitioners assess the early case
law and consider how best to use it. This may be the reason why
use of the Act has been limited so far, in particular in the courts
of first instance. In addition to this, the requirements of section
22(4) of the Act mean that it is only possible to challenge the
actions of public authorities in new proceedings where the action
that is being challenged took place on or after 2 October 2000.
Such claims will therefore inevitably take some time to feed into
the system. It may well be therefore that work will increase in
the future. What is clear, however, is that the court system is
managing the current workload extremely effectively and is well
placed to deal with any future increase, if that transpires.
In the county courts and High Court, 76 claims
for damages have been issued in the first quarter that have relied
alone on a Convention point. In comparison, some 467,000 civil
claims have been issued in the same period. The Administrative
Court reports that there have been less than a dozen issues in
judicial review that could be termed new.
I was extremely concerned to ensure that, before
implementing the Act, we learned lessons from New Zealand, where
the legislation was implemented very quickly after enactment.
I especially wanted to allow sufficient time to plan and prepare
for implementation and, in particular, to ensure that there was
effective training of all full and part time members of the judiciary.
The Judicial Studies Board and the Magistrates' Courts Committees
therefore undertook the largest ever programme of training for
all 3,500 judges and 30,000 lay magistrates. Overall, I believe
its success is borne out by the smooth implementation of the Act
so far at all levels of the judicial system. Details of the programme
are set out below.
The High Court and Above
Special single topic seminars were held each
term in the Royal Courts of Justice for Law Lords, Lords Justices
and High Court Judges. They were led jointly by a Lord Justice
and an academic lawyer and focused on particular Articles of the
Convention or sections of the Act. The seminars proved to be very
popular and successful and the series was expanded to include
issues of particular relevance to Judges hearing judicial review
cases in the Crown Office List (now the Administrative Court)
and the Divisional Court.
All Full and Part-Time Judges
The Judicial Studies Board (JSB) series of 58
training seminars for all 3,500 full and part-time judges ran
from January to September 2000. The seminars included opening
lectures by leading practitioners and academics on the methodology
and structure of the Act and Convention, followed by syndicate
exercises to enable judges to work on criminal, civil and family
(public and private) law. The syndicates were led by judges who
volunteered to act as syndicate leaders and who had been trained
by the JSB on the Act and Convention, on how to use the JSB training
materials, and in training delivery. Most of the syndicate leaders
undertook a study visit to the European Court of Human Rights
in Strasbourg. The training was carefully structured to engage
the participants and develop understanding of the Act in a short
timeframe. It was piloted in Wales and further developed to improve
its effectiveness. The attendance and contribution of the senior
judiciary and a number of judges from the European Court of Human
Rights in Strasbourg at the training seminars for the mainstream
judiciary was greatly appreciated.
Training included pre-course reading and self-development,
including a specially tailored audiotape and textbook. All lay
magistrates received one day's training, delivered locally by
a core group of trained legal advisors with a further half-day
for those who sat in the Family Court. Overall, the feed back
from the magistrates' courts has been generally positive and the
training programme was completed with minimal disruption to the
work of the courts. Many magistrates asked for more training and
in many areas further training is being provided in response to
Chairmen and Members of Tribunals
Responsibility for the provision of training
for chairmen and members of tribunals rests with the sponsoring
Government Department for the individual tribunals. The JSB, however,
is responsible for providing advice to Departments and therefore
produced a training pack on generic issues for the benefit of
all tribunals and held subsequent seminars on the use of this
pack. In additional, it invited tribunal chairmen to attend the
mainstream judicial seminars with nearly 50 chairmen taking advantage
of this opportunity. An estimated further 120 judges who hold
additional tribunal appointments also attended the judicial seminars.
The Council on Tribunals reported in its 1999-2000
Annual Report that the general picture in tribunals was encouraging
and that much had been done to ensure that tribunals were equipped
to meet the challenge of the Act. All the major tribunal systems,
and many of the smaller ones, arranged for training to be provided
to their members. The extent of training depended on the size
and frequency of hearings of the particular tribunal system and
the impact the Act was likely to have on it. The Council drew
attention to the crucial role played by the JSB and said that
where evaluation had been carried out, "the general feeling
seems to be that training has been informative and helpful".
The Council did draw attention to some concerns about locally
based training systems. This is a general issue and one that,
I know, Sir Andrew Leggatt is considering in his current Review
I do not think it would be appropriate for me
to comment on individual cases or emerging areas of case law.
The Court of Appeal and Administrative Court are alive, however,
to the need to resolve important ECHR points quickly. Procedures
therefore exist in all jurisdictions to fast track cases to the
higher courts where judges at the lower levels consider that early
precedent should be established.
The New Zealand experience also demonstrated
the importance of not only ensuring that the higher courts resolved
important points quickly but also that judges at all levels were
informed promptly of these judgements and of emerging case law
in general. In an unprecedented public/private partnership with
Butterworths, my Department therefore developed, in consultation
with judicial users, an electronic information system that allows
judges access to developing domestic and Strasbourg jurisprudence
I was also particularly concerned to ensure
that the higher courts were as prepared as possible for implementation
of the Act so that they were able to hear important cases as quickly
as possible without undue impact on other workload. For example,
Sir Jeffrey Bowman conducted Reviews of the Court of Appeal (Civil
Division) and Crown Office List (now the Administrative Court).
Recommendations from these Reviews were implemented prior to implementation
of the Act to simplify procedures and to enable the Courts to
deploy their resources more flexibly. Administrative Court sittings
were doubled in the run up to the Summer vacation and as a result
the number of outstanding judicial review cases has been considerably
reduced. You will note from the attached paper that the higher
courts in general are matching up very well so far to the demands
of the Act.
The New Zealand experience also demonstrated
the need to consider how the Act was likely to be used in practice
once it came into force. My department therefore organised a series
of "walkthoughs" to alert all the players in the justice
system to the potential impact of the Act. Experienced human rights
practitioners prepared and presented case studies, which were
then explored by judges, magistrates, defence and prosecution
lawyers and policy makers and others with an interest. As a result,
refinements were made to training programmes not just for the
judiciary and magistracy but also, for example, for the criminal
In conclusion, therefore, I have taken my duty
extremely seriously to ensure that the court system was prepared
for implementation of the Human Rights Act. The wisdom of that
thorough preparation has been borne out by the manner in which
the court system has matched up with remarkable efficiency so
far to the demands placed on it by the Act.