It
is self-evident that the new commission should be able to seek
to intervene in proceedings relating to human rights in the higher
courts, or with the permission of the court to act as a friend
of the court. Under section
3 of the Human Rights Act the courts are required to "so
far as it is possible", to give effect to legislation "in
a way which is compatible with the Convention rights", and
section 2 of the Act requires any court or tribunal to have regard
to the Strasbourg jurisprudence in doing so. The courts need to
know about the wider policy background to the cases before them.
One important reason for this is the sharper focus, following
the Human Rights Act, on questions of proportionality and the
balancing of rights. Addressing these fully might require:
· information
on the number of others likely to be affected and other relevant
statistical and factual material;
· information
on conflicting rights and interests which might need to be balanced
in the interests of justice;
· advice
on the general public significance of the case in terms of equality
and human rights issues.
78. These are all perspectives that parties to a
case might not have—or want to introduce—but which
could be highly relevant to the interests of justice and to the
public interest more generally. The courts may, at their discretion,
allow third parties to intervene. The decision whether to allow
such an intervention involves balancing the possible value of
the assistance against considerations of delay, expense and impact
on existing parties.[86]
The frequency of such interventions and the legal costs involved
are relatively low.[87]
79. The
existing commissions already operate in this way, under their
general and implied powers. They regard third party interventions
as an effective strategic tool in advancing their general aims.
They have also made some interventions in free-standing human
rights cases, and courts have expressed their appreciation for
the assistance they have given in such cases.[88]
The Northern Ireland Human Rights Commission and, it is proposed,
a Scottish Human Rights Commission, will be able to intervene
in free-standing human rights cases which have UK-wide implications.
The CEHR will
become an authoritative national resource of knowledge and expertise
on equality and human rights, and this resource needs to be made
available to assist the courts, where a case raises wider policy
interests engaging questions of human rights.
80. The ECHR makes explicit provision for third party
interventions in human rights cases heard in Strasbourg,[89]
and we would expect the commission might take this opportunity.
It would not normally be necessary to make express legislative
provision for third party interventions in the UK courts by a
statutory body. However, given the asymmetry which will exist
between the CEHR's powers in relation to its various functions,
it would seem sensible to clarify the position regarding third
party interventions. Expressly providing for the CEHR to intervene
in relation to "pure" human rights cases should not
create a significant burden for the new body: they would be likely
to form only a small part of the overall litigation strategy and
could in any case be made only on the relatively rare occasions
where the court considered that it would be in the interests of
justice. It should not be drawn into a large number of cases,
a situation which would only arise if it failed to maintain a
suitable strategic balance in its work. If express provision were
made in the legislation to allow the commission such functions,
it might, however, be desirable to make specific provision empowering
it only to intervene in cases which raised an important matter
of principle concerning human rights and public policy.
Taking cases in its own name and judicial review
81. In our report last year we declared ourselves
undecided on whether the proposed commission should be able to
initiate "representative" cases in its own name or seek
judicial review in its own name on questions relating to human
rights. In general, in order to gain the permission of the court
to apply for judicial review, the applicant is required to demonstrate
a "sufficient interest" in the cause of action. Like
the right to make third-party interventions, the right to seek
judicial review is not normally expressly conferred on statutory
bodies. This is because it is taken to be implicit, provided the
body can show "sufficient interest" and is acting in
pursuit of its functions in some way.
82. The existing commissions have sought judicial
review on a number of occasions.[90]
Although the anti-discrimination legislation in general specifies
that the remedies are available only to the individual victim
of an act of discrimination, the Acts specifically preserve the
right to seek judicial review of an allegedly unlawful act.[91]
In contrast, in section 7 of the Human Rights Act (which provides
for remedies in relation to an unlawful act by a public authority
under section 6 of the Act) subsection (3) states—
If the
proceedings [under section 7(1)] are brought on an application
for judicial review, the applicant is to be taken to have a sufficient
interest in relation to the unlawful act only if he is, or would
be, a victim of that act.[92]
83. This is known as the "victim test".
It reflects Article 34 of the Convention, governing the admissibility
of applications to the Strasbourg Court, which states—
The Court
may receive applications from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation
…
The victim test is designed to avoid abstract, theoretical
"victimless" human rights cases and those brought by
unrelated third parties. It has the effect of preventing
the existing commissions from asserting directly the Convention
rights through the courts, even where these are relevant to their
proper purposes.[93]
84. The decision definitely to proceed with an integrated
commission throws into starker relief the oddities and inconsistencies
of the powers it will have in relation to the different "strands"
of its responsibilities. In judicial review relating to the Convention
rights, the court is able to focus directly upon the issue of
concern and provide a remedy which addresses it directly. Typically,
judicial review proceedings would consider the legality, fairness
or proportionality of a statutory rule or an administrative practice
or decision. Though there is no power to overturn an Act of Parliament,
the court can quash regulations, order practices to cease, or
order the public authority to act in some way, unless the authority
is required by statute to act in the way it has. If the victim
test remains unaltered, the consequence would be that the new
body would be able to seek judicial review of the actions or omissions
of a public authority on all grounds of illegality except incompatibility
with human rights.[94]
85. The CEHR would therefore be prevented from seeking
a definitive ruling from the court in circumstances where its
findings about the incompatibility with human rights of particular
rules or practices or omissions in the delivery of public services
are rejected or ignored by the public authority or authorities
concerned. For example, if the commission were to find, following
a general investigation, that the policies or practices of all
or some NHS Trusts trammelled the ability of doctors to decide
about the treatment of terminally-ill patients according to their
clinical judgement, in a way which threatened a violation of the
right to life under Article 2, it would have no route of recourse
to the courts to determine whether its judgment was upheld and
to obtain a declaratory judgement or other public law remedy.
86. In relation to allegations of acts which are
unlawful under the anti-discrimination legislation, it might be
possible to overcome that difficulty by finding an individual
victim to take a case and then seek to intervene as a third party.[95]
We do not think it would be satisfactory, however, to have the
statutory body whose remit includes the promotion and protection
of human rights reduced to seeking to protect those rights by
cumbersome, indirect and opaque legal manoeuvres.
87. The counter-argument is that giving the CEHR
the power to rely on the Convention rights in proceedings where
it is unable to identify (or, more likely, persuade to participate
in the action) any victims or potential victims would involve
a more extensive approach to the Convention rights than either
the Human Rights Act envisages or the Strasbourg Court has entertained.[96]
Nor do the UK courts entertain academic or theoretical argument,
divorced from consideration of the facts. But against this it
could be argued that the right of individual application to the
European Court of Human Rights is designed principally for the
provision of individual redress, as a court of last resort, whereas
the national system is the first line of defence which should
properly be concerned not only with individual redress but also
with matters of principle and systemic violations. In particular,
the bringing of rights home through incorporation of the Convention
rights in domestic law should be able to prevent violations before
victims emerge.
88. This question is not of significance only to
the "pure" human rights dimension of the commission's
work. For example, the Human Rights Act, as the Disability Rights
Commission has pointed out, has particular significance for disabled
people. That disabled people have the same human rights as other
people is not a proposition that they have been able to assume
is taken for granted by society as a whole. The withdrawal or
restriction of medical services, the abuse and degrading treatment
of disabled people in institutional care, and prejudiced judgements
about the parenting ability of disabled people are just some of
the areas where the Human Rights Act could help disabled people
assert their right to live fully and freely, on equal terms with
non-disabled people.
89. We consider that the main role of the commission
(in line with its general duty relating to human rights) will
be to forestall future potential breaches of people's rights rather
than seek redress for past individual breaches. For this reason
we do not consider that the case is yet made for the new body
to be able to initiate in its own name "test cases"
or representative cases for example seeking exemplary damages
or other remedies for past breaches.[97]
We conclude
therefore that there is no currently identifiable pressing need
that would be met by allowing the commission power to initiate
proceedings in its own name alleging a breach of the rights of
an individual. However,
we consider that it would be a glaring omission if the independent
statutory body charged with the special duty to protect and promote
human rights were prevented from seeking judicial review of actions,
failures to act or policies or rules which it believed to be in
continuing breach, or to threaten a breach, of the Convention
rights.
90. From the commission's perspective, judicial review
would differ from third party interventions not least because
the case would be initiated by the commission itself and not be
under the control of others. In our report last year we commented[98]
that it was "strongly arguable" that the position of
the new commission as a statutory and publicly accountable body,
responsible for promoting human rights in the public interest,
placed it in a special category, distinct from all other third
parties in human rights cases. We believe that the CEHR could
reasonably be expected to exercise any such power sparingly. We
do not believe this one exception to the general application of
the victim test could be expected to "clog up the courts"[99]
with test cases. It is also worth bearing in mind that the court
must give permission for a judicial review application to proceed,
and it will be well placed to ensure that the courts are not burdened
with hypothetical cases, or cases where there are alternative
effective remedies. Furthermore, the commission will be accountable
to government and Parliament, as well as to the courts, for the
way in which its exercises its powers.
91. Moreover, we are now more persuaded that account
should also be taken of the preventative benefits of permitting
judicial review of this kind—before individuals are
victimised. In the long run it could help forestall more demand
on court resources which would be required to deal with less well-informed
and more partial challenges. The bringing of one focused claim
by a body such as the commission might actually prevent the courts
from being unduly burdened.[100]
And, as we have said above, an inquiry power without the long-stop
of any enforcement mechanism (or route to test the findings in
the courts) would, we believe, be very damaging to the credibility
of the commission. Finally, and perhaps most importantly, we have
now concluded that there is a wider public interest in ensuring
that public authorities comply with the law. It would be an indefensible
situation in which a commission set up for the express purpose
of promoting and protecting human rights was able to identify
what it believed were threats to those rights, and no steps were
available to it to remove those threats.
92. We recommend that the commission
should have a power, notwithstanding the provisions of section
7(3) and (4) of the Human Rights Act, to seek judicial review
of the policies or actions or omissions of a public authority
where it has reason to believe that such policies or actions or
omissions have resulted, or are likely to result, in a violation
of the Convention rights.
93. We consider that it would be desirable to achieve
this aim by amending section 7 of the Human Rights Act itself
(to allow only the new commission to bring cases in which there
is no individual victim), rather than conferring an express power
on the CEHR in its parent statute. The latter approach requires
the Human Rights Act to be read alongside later legislation impliedly
amending it, which may be thought to be inconsistent with its
status as a constitutional statute setting out in one place the
legal regime for the vindication of fundamental rights. However,
it would also be possible to achieve this objective through a
provision in the new commission's founding legislation. [101]
45 Sixth Report, Session 2002-03, op cit., para. 203. Back
46
Minutes of Evidence taken before the Joint Committee on Human
Rights, 8 December 2003, HL Paper 45, HC 106-I, Q 61. Back
47
Ibid., Q 65. Back
48
Ibid., QQ 96 and 98. Back
49
See Appendices. Back
50
"Every body or other person specified in Schedule 1A or of
a description falling within that Schedule shall, in carrying
out its functions, have due regard to the need-(a) to eliminate
unlawful racial discrimination; and (b) to promote equality of
opportunity and good relations between persons of different racial
groups." (section 71(1) of the Race Relations Act 1976, inserted
by section 2 of the Race Relations (Amendment) Act 2000). Back
51
"Every public authority shall in carrying out its functions
have due regard to-(a) the need to eliminate discrimination that
is unlawful under this Act; (b) the need to eliminate harassment
that is unlawful under this Act; and (c) the need, where opportunities
for disabled persons are not as good as those for other persons,
to promote equality of opportunity between disabled persons and
other persons by improving opportunities for disabled persons."
(section 8 of the Draft Disability Discrimination Bill, Cm 6058-I,
December 2003). Back
52
Sixth Report, Session 2003-03, op cit., Annex A, paras. 3(a)(ii),
(iii) and (iv). Back
53
Into the death of Victoria Climbié. Back
54
Into the circumstances surrounding the death of Dr David Kelly. Back
55
Into the circumstances surrounding the appointment of Ian Huntley
to work in a school in Soham, Cambridgeshire. Back
56
The EOC and the CRE have the power to conduct two main types of
formal investigation. There is the power to conduct general investigations
into issues within their mandate. These do not result in findings
of unlawful discrimination or non-discrimination notices, and
the power to obtain information by compulsion requires the Secretary
of State's consent. There is also the power to conduct a so-called
"belief investigation", where the EOC or CRE reasonably
suspects that named persons have committed acts of unlawful discrimination.
Here they have the power to obtain evidence by compulsion (subject
to control by the courts), and may make findings of unlawful discrimination.
They may also issue non-discrimination notices which are legally
binding unless they are successfully appealed against in the courts.
The Commissions are able to bring proceedings for persistent discrimination
if, during the period of five years from the issuing of a non-discrimination
notice, a named person has committed further unlawful discriminatory
acts. Back
57
See for example the Second Report from the Health Committee, Session
2003-04, Elder Abuse, HC 111-I, which comments at paragraph
13, " … there is no single definition of elder abuse
which would satisfy every test. Nevertheless, we consider that
the reference to the violation of an individual's human and civil
rights by another person or persons provides a useful foundation.
The proposed Commission on Equality and Human Rights, … could
be an important step in offering further protection to older people
whose human rights are infringed by abuse … However, we are
concerned that … in respect of human rights it will only
have promotion, but no enforcement, powers … we urge the
Government to enable the Commission … to promote and enforce
both equality and human rights on an equal basis.". Back
58
Minutes of Evidence taken before the Joint Committee on Human
Rights, 8 December 2003, HL Paper 45, HC 106-I, Q 61. Back
59
Ibid., Q 67. Back
60
Ibid., QQ 61 and 67. Back
61
Were it to make its reports on these matters through Parliament,
as we suggest below it should, the protection of privilege should
go some way to avoiding questions of defamation. Back
62
Sixth Report, Session 2002-03, op cit., Annex A, para. 3(b). Back
63
Fourteenth Report, Session 2002-03, op cit., para. 64. Back
64
For example under paragraphs 4 and 5 of Schedule 3 to the Disability
Rights Commission Act 1999:
"4.-(1) For the purposes of a formal
investigation the Commission may serve a notice on any person
requiring him-(a) to give such written information as may be described
in the notice; or (b) to attend and give oral information about
any matter specified in the notice, and to produce all documents
in his possession or control relating to any such matter.
(2) A notice under this paragraph may
only be served on the written authority of the Secretary of State
unless the terms of reference confine the investigation to the
activities of one or more named persons and the person being served
is one of those persons.
(3) A person may not be required by
a notice under this paragraph-(a) to give information, or produce
a document, which he could not be compelled to give in evidence,
or produce, in civil proceedings before the High Court or the
Court of Session; or (b) to attend at any place unless the necessary
expenses of his journey to and from that place are paid or tendered
to him.
5.-(1) The Commission may apply to a
county court or by summary application to the sheriff for an order
under this paragraph if-a) a person has been served with a notice
under paragraph 4; and(b) he fails to comply with it or the Commission
has reasonable cause to believe that he intends not to comply
with it.
(2) An order under this paragraph is
an order requiring the person concerned to comply with the notice
or with such directions for the same purpose as may be contained
in the order." Back
65
See Appendix 19, Ev 63. Back
66
Seventh Report, Session 2003-04, The Meaning of Public Authority
under the Human Rights Act, HL Paper 39, HC 382. Back
67
In Re Northern Ireland Human Rights Commission (Northern
Ireland) [2002] UKHL 25. Back
68
See Fourteenth Report, Session 2002-03, op cit., paras 60-62. Back
69
See Appendix 4. Back
70
See Appendix 19. Back
71
See Appendix 16. Back
72
See Appendix 20, paras. 1 and 5. Back
73
i.e. sexual orientation, religion or belief and age. Back
74
See Appendix 20, para 6. Back
75
For example, section 7(2) of the Disability Rights Commission
Act 1999 states, so far as is relevant: "Where the individual
concerned applies to the Commission for assistance in relation
to any proceedings to which this section applies, the Commission
may grant the application on any of the following grounds: (a)
that the case raises a question of principle; (b) that it is unreasonable
to expect the applicant to deal with the case unaided (because
of its complexity, because of the applicant's position in relation
to another party or for some other reason); (c) that there is
some other special consideration which makes it appropriate for
the Commission to provide assistance.". Back
76
Fourteenth Report, Session 2003-04, op cit., paras. 53-59. Back
77
Ibid, para. 58. Back
78
Ibid, para. 57. Back
79
Woolf LJ in Frank Cowl & ORS v Plymouth City Council (2001)
[2001] EWCA Civ 1935. Back
80
Section 10 of the Disability Rights Commission Act 1999 (inserting
a new section 28 in the Disability Discrimination Act 1995) provides
for the Disability Rights Commission to support conciliation services
in relation to disputes under Part III of the 1995 Act, but explicitly
bars it from providing such services itself. Back
81
See Human Rights Act, s 3. Back
82
See Human Rights Act, s 7(1)(b). Back
83
We note that, even before the Human Rights Act was enacted, the
Northern Ireland Fair Employment Commission supported a test case
before the European Court of Human Rights, successfully relying
upon the ECHR to secure a right of access to court in the determination
of allegations of religious discrimination, Tinnelly &
Son Ltd and McElduff v UK (1998) 27 EHRR 249. Back
84
See for example Pearce v Mayfield School [2001] EWCA Civ
1347 [2002] ICR 198 in which Hale LJ held that abuse of a teacher
on grounds of sexual orientation though not sex discrimination
might have been a breach of Articles 8 and 14 of the ECHR (see
also the judgments of the House of Lords in [2003] UKHL 34 at
[2003] ICR 937); and see also the intervention of the Disability
Rights Commission in R. ( on the application of A and B) v
East Sussex County Council [2003] EWHC 167 (Admin) in which
the Administrative Court held that free-standing human rights
issues arose under Articles 3 and 8 of the ECHR in the application
of the Manual Handling Regulations to the treatment of disabled
persons. Back
85
See for example Mendoza v Ghaidan (discrimination on grounds
of sexual orientation in housing); R (SG) v Liverpool CC (discrimination
on grounds of sexual orientation under the Mental Health Act);Av
Chief Constable W Yorks (discrimination against transgender
person in employment context); Bernard v LB Enfield (ill
treatment of disabled person by local authority) Back
86
See Lord Woolf in Re Northern Ireland Human Rights Commission
[2002] UKHL 25 at para. 32. Back
87
Trends in allowing such interventions appear to show some increase
in recent years (in 2002 there were 14 such applications in HoL
and 8 granted; in 1997, 4 applications and 4 granted). Back
88
See for example DRC intervention in R v East Sussex County
Council ex parte A, B (which used Arts 3 and 8 on the back
of s2(1)(c) of the DRCA 1999. It is understood that the DRC has
also intervened using HRA arguments in challenges to the law on
late abortions and as regards policy to withdraw medical treatment. Back
89
Art 36(2): "The President of the Court may, in the interests
of the proper administration of justice, invite any High Contracting
Party which is not a party to the proceedings or any person concerned
who is not the applicant to submit written comments or take part
in hearings." Back
90
See for example R. v SofS for Employment, ex p. EOC [1995]
1AC 1, "It would be a very retrograde step now to hold that
the EOC [should not be allowed to] agitate in JR proceedings questions
related to sex discrimination which are of public importance and
affect a large section of the population". Back
91
Sex Discrimination Act 1975, s 62(2) and Race Relations Act 1976,
s 53(2). Back
92
Section 7(4) reproduces this provision for Scotland. Back
93
In exceptional cases, the courts will permit a non-victim with
a sufficient interest to seek a declaration that a proposed course
of action by the State, based on statute, is unlawful as being
incompatible with the Convention rights. In such exceptional cases
the court can make use of the interpretative power under s.3 Human
Rights Act, and can make a declaration of incompatibility under
s.4: Rusbridger and Toynbee v AG [2003] UKHL 38.However
in that case the House of Lords stressed such an action will only
be permitted in exceptional cases: Lord Hutton para. 36, Lord
Rodger para. 58; Lord Walker para.61. Back
94
Section 3 of the Human Rights Act, which requires legislation
always to be read compatibly, and not only in cases brought under
section 7, is one way of bringing human rights points into ordinary
judicial reviews. But it will not be useful in all cases. Back
95
See for example the DRC might apply to intervene in proceedings
to argue that a particular practice was contrary to the human
rights of disabled persons (e.g. a particular medical practice
in relation to "do not resuscitate" policies or abortion,
or contrary to a private and family life under Article 8). Back
96
Although it could be argued that giving the new Commission power
to rely on Convention rights in a representative capacity is not
wholly inconsistent with the Strasbourg approach to the victim
requirement. The Court does frequently assert that challenges
to the state of the law in the abstract are impermissible as a
reason for not entertaining a challenge, but it is also well established
that it will entertain such challenges: for example in Dudgeon
and other cases involving the criminalization of homosexuality,
individuals have been allowed to challenge the state of the law,
even though they have never been prosecuted, on the basis that
it might be applied to them in future (see also Sutherland
v UK: age of consent). Back
97
This conclusion should not be taken as responding to the TUC's
argument for the CEHR to have "representative action powers
for employment cases in line with those in the current Civil Procedure
Rules." (Appendix 30, para. 5.1). We have not considered
this argument in this report. Back
98
Sixth Report, 2002-03, op cit., para. 53. Back
99
Ibid., para. 159. Back
100
See for example the section 55 cases. See also the judgment of
Ottton J in R v Her Majesty's Inspectorate of Pollution and
Anor., ex parte Greenpeace Ltd (No. 2) (1994) 4 AllER 329,
citing similar reasons for holding that Greenpeace had sufficient
interest to bring a judicial review about a nuclear reprocessing
plant. Back
101
For example: "Nothing in sections 7(3) and 7(4) of the Human
Rights Act 1998 shall prevent the Commission from bringing a claim
for judicial review in respect of an act, or potential act, made
unlawful by section 6 of that Act where to do so would further
its objects of protection and promotion of human rights." Back
