(back to preceding text)
33. While it is common to confer an express power on a body such as the Commission to bring proceedings I would find it surprising if an express power to exercise this novel role of intervening should be conferred. However, I would find it extraordinary if a body having the express powers of the Commission did not have the ability to intervene.
34. The successful introduction of human rights into the domestic law of the United Kingdom is substantially dependent upon the courts giving proper effect to those rights. This is a challenging and difficult new undertaking for the courts. The Commission should be in a position to give substantial assistance to enable the courts to fully appreciate what is involved in properly applying human rights in the litigation which comes before them. I find it hard to believe that it could have been the intention of Parliament that the Commission should not be in a position to proffer assistance when the court wishes to have that assistance. The Commission?s express power to bring proceedings itself in section 69(5)(b) is as to issues "involving law or practice relating to the protection of human rights". The Commission also has been granted an extensive power to provide assistance to others in relation to legal proceedings in cases raising questions of a principle as to human rights (section 70 (2)).
35. Bearing in mind these greater powers I regard it inevitable that the more limited power to intervene should be regarded as implicit. While I agree with Lord Hobhouse that it is important to have fully in mind the sensitive background to the passing of the 1998 Act, the existence of this restricted power to intervene, the exercise of which will be carefully controlled by the courts, should not be of any "political" significance.
36. If a power to intervene exists then the nature of the tribunal does not affect the existence of the power. Nothing in my judgment turns on the fact that we are here concerned with a possible intervention in an inquest. The limits on the power are in the hands of the courts before whom the Commission wishes to appear. The courts will be well able to ensure that the implicit power, which I am satisfied exists, is not abused.
37. I agree with the views expressed by my noble and learned friend Lord Slynn of Hadley. In my judgment his reasoning is additionally supported by the terms of subsection (9) of section 69 of the 1998 Act, which is ancillary to subsection (8). The subsections provide as follows:
"(8) For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.
"(9) The Commission may decide to publish its advice and the outcome of its research and investigations."
38. The functions of the Commission to which subsection (8) refers include, of course, under subsection (1) the keeping under review of the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights, and, under subsection (6), the promotion of understanding and awareness of the importance of human rights in Northern Ireland as well as the functions more closely concerned with the courts to which Lord Slynn has referred. With great respect to the contrary opinion of the Lord Chief Justice and the majority of the Court of Appeal, I am unable to accept that Parliament would have authorised the Commission to publish the outcome of its investigations into such matters without intending that the Commission should have the capacity to present its conclusions directly to the courts if so requested. Conversely, I cannot accept that a court, wishing to know the views of the Commission about the human rights implications of the case before it, and to allow the parties to question those views, was intended by Parliament to be denied the power of inviting the Commission to be represented, and to be left to rely upon such help as it could get from the Commission's published reports. It may well be that the power would rarely be exercised, but its existence, and the corresponding capacity of the Commission to respond, seem to me to be established by reasonable implication from the express provisions of section 69(8) and (9), as well as being incidental to the other provisions of the section.
39. It follows that I too would allow the appeal. I concur in the order proposed.
40. The issue which arises on this appeal is whether the Northern Ireland Human Rights Commission ("the Commission"), which is a body corporate created by statute, has power to intervene in a coroner's inquest to make submissions on human rights issues which arise in the proceedings of the inquest.
41. Paragraph 5 of the Section headed "Rights, Safeguards and Equality of Opportunity" in Strand Three of the Belfast Agreement provides:
"A new Northern Ireland Human Rights Commission, with membership from Northern Ireland reflecting the community balance, ill be established by Westminster legislation, independent of Government, with an extended and enhanced role beyond that currently exercised by the Standing Advisory Commission on Human Rights, to include keeping under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so."
42. Pursuant to this paragraph of the Agreement the Commission was created by section 68 of the Northern Ireland Act 1968 which provides:
"(1) There shall be a body corporate to be known as the Northern Ireland Human Rights Commission.
(2) The Commission shall consist of a Chief Commissioner and other Commissioners appointed by the Secretary of State.
(3) In making appointments under this section, the Secretary of State shall as far as practicable secure that the Commissioners, as a group, are representative of the community in Northern Ireland."
43. On 15 August 1998 a car bomb placed by terrorists exploded in the centre of the town of Omagh in County Tyrone on a busy afternoon and twenty-nine people were killed. In the summer of 2000 the Coroner for the District of Fermanagh and Tyrone began to make preparations to hold an inquest into the deaths of the victims of the explosion, and on 16 August 2000 he wrote to the Chief Commissioner of the Commission with reference to the inquest and stated:
"An issue has been raised by solicitors acting for two of the families that there should be pre-inquest disclosure of depositions, maps and photographs
As there may be a human rights dimension I am writing to ask if the Human Rights Commission would wish to make a formal submission as to the position I should adopt. If the Commission was so minded I would find it most helpful to receive prior to 30 August a skeleton argument incorporating references to any relevant authorities. My intention would be to send copies of this to all the legal representatives."
44. The Commission instructed counsel to appear at a preliminary hearing at which representatives of the families of the victims submitted that disclosure should take place, and after hearing their submissions the Coroner decided to permit disclosure so that he did not call upon counsel for the Commission to address him on the issue.
45. At an early stage in the inquest counsel for the family of one of the victims sought to put questions to the police about the effectiveness of their response to a bomb warning given shortly before the explosion took place. Counsel for the Chief Constable of the Royal Ulster Constabulary took objection to this line of questioning and the Coroner decided to hear submissions on the issue and arranged to hear them on a specific day, inviting the legal representatives to furnish him with skeleton arguments in advance.
46. On 12 September the Commission wrote to the Coroner stating that it noted that an issue touching the scope of the inquest had been raised and that it considered that "there may be human rights principles arising in respect of these matters on which it would be appropriate for the Commission to make submissions to the inquest".
47. The Commission submitted a skeleton argument to the Coroner on the scope of the inquest. The Coroner then decided that a question arose as to whether the Commission had power to intervene in the proceedings. Counsel for the Commission appeared before him and made representations that the Commission should be permitted to make submissions at the inquest but the Coroner ruled that the Commission had no statutory power to intervene and that accordingly he would not permit it to do so.
48. The Commission then applied to the High Court for a judicial review of the Coroner's decision. In the High Court the Lord Chief Justice ruled that the Commission had no statutory power to intervene in the inquest and on appeal by the Commission the Court of Appeal (McCollum LJ and Sir John MacDermott, Kerr J dissenting) upheld that ruling.
49. Section 69 of the 1998 Act provides:
"(1) The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.
(2) The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving
(b) the adequacy and effectiveness of the functions conferred on it by this Part; and
(c) the adequacy and effectiveness of the provisions of this Part relating to it.
(3) The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights
(a) as soon as reasonably practicable after receipt of a general or specific request for advice; and
(b) on such other occasions as the Commission thinks appropriate.
(4) The Commission shall advise the Assembly whether a Bill is compatible with human rights
(a) as soon as reasonably practicable after receipt of a request for advice; and
(b) on such other occasions as the Commission thinks appropriate.
(a) give assistance to individuals in accordance with section 70; and
(b) bring proceedings involving law or practice relating to the protection of human rights.
(6) The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for
(b) educational activities.
(7) The Secretary of State shall request the Commission to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement.
(8) For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.
(9) The Commission may decide to publish its advice and the outcome of its research and investigations."
Section 70 provides:
"(1) This section applies to
(a) proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or
(b) proceedings in the course of which such a person relies, or wishes to rely, on such law or practice.
(2) Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to 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 would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the person's position in relation to another person involved, or for some other reason;
(c) that there are other special circumstances which make it appropriate for the Commission to provide assistance.
(3) Where the commission grants an application under subsection (2) it may
(a) provide, or arrange for the provision of, legal advice;
(b) arrange for the provision of legal representation;
(c) provide any other assistance which it thinks appropriate.
(4) Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from the person in certain circumstances."
Section 71 provides:
"(1) Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person
(a) to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or
(b) to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights."
50. In his judgment at p 10 the Lord Chief Justice stated:
"I have given careful consideration to the powers set out in each subsection of section 69. I have sought to give them as broad and sympathetic a construction as they will reasonably bear, recognising the value of the contribution which the Commission is capable of making to the work of the courts. I have still been unable to find anything in the section which confers power on the Commission to make submissions to courts and tribunals about the content of the law relating to human rights or its application to a particular case."
And at p 12:
"The Human Rights Commission has not been given any overall function such as advancing the observance of human rights. On the contrary, its functions set out in section 69 are specific and fairly precise and do not seem to me capable by reasonable implication of extending to making submissions to the coroner at an inquest."
In the Court of Appeal McCollum LJ stated at p 281:
"Mr Macdonald suggested that by looking at each subsection individually the Lord Chief Justice was in error and that he should simply have taken the functions set out in s 69 as typical of those to be exercised by the Commission and made the finding that any broadly similar powers would also be exercisable by the Commission.
I cannot agree with this approach. The provisions of the Act investing powers in the Commission must be looked at in the light of the stated objectives of the Act and in sympathy with its general import, but that does not enable a court to read something into the provisions which has not been enacted or to add to them at will."
And at p 285:
"Draftsmen of agreements and treaties and parliamentary draftsmen can be expected to say what is meant and when specific functions are created there is no reason to suppose that it was intended to give general functions which would encompass other functions along with those actually granted. On the other hand when general functions are provided it is reasonable to conclude that particular functions falling within their general scope are meant to be included.
Having accepted Mr Macdonald's invitation to read not only the 1998 Act itself but also the materials provided by the Belfast Agreement and the published commentary thereon and details of the Parliamentary debate, I am firmly in agreement with the view expressed by the Lord Chief Justice that Parliament did not intend to and did not invest powers in the Commission either to intervene as an interested party or to act as amicus curiae.
It appears to me that the powers granted by the 1998 Act either to bring proceedings in its own name or to give assistance to individuals engaged in proceedings are quite adequate to ensure that the Commission is able to make a substantial contribution to the observance of human rights in Northern Ireland and to the involvement of the courts in that process."
Sir John MacDermott referred to the provisions of section 69 and stated at p 298:
"I cannot find in those provisions or elsewhere in the 1998 Act any express power authorising the Commission to participate in court proceedings. Mr Macdonald disputed that conclusion when expressed by the Lord Chief Justice on the ground that it flew in the face of the very purpose for which the Commission was created namely to promote human rights issues. The Commission may, perhaps, feel somewhat inhibited or frustrated by the absence of such a power but it must recognise that its powers are such as Parliament from time to time grants to it."
And at p 299:
"Can a power to participate in court proceedings be derived from the Act by 'reasonable implication'? Mr Macdonald's argument was, in essence, a claim that as the Commission should have such a power it must have it and the statutory provisions must be read accordingly. Such an approach has undertones of the belief that 'words mean what I want them to mean'. But that approach is not an acceptable approach to statutory interpretation. The Parliamentary draftsman's duty is, in so far as is possible, to express the will of Parliament in clear terms and the final version, after all amendments are absorbed, expresses the intention of Parliament. Just as I am satisfied that the Commission has been granted no express power to participate in court proceedings I am equally satisfied that no such power can be gleaned by 'reasonable implication'."
In his dissenting judgment Kerr J stated at p 294:
"At the kernel of this debate, in my opinion, is whether any 'overall function' was conferred on the Commission by s 69. The Lord Chief Justice concluded that no explicit statutory expression of such a general function is to be found in the section. It appears to me, however, that the import of s 69 is to provide the Commission with an overarching role in the promotion and safeguarding of human rights. That is achieved by giving a number of functions to the Commission, some specific and some general.
In my opinion, by providing general powers to the Commission and allowing it a wide discretion as to how some of those powers should be exercised, Parliament must be taken to have intended that the Commission should perform an overall role in relation to the observance of human rights. This may not have been spelled out in express statutory language as in the Sex Discrimination Act  but the general nature of the Commission's role in the promotion of human rights is unmistakable, in my view."
And at p 296:
"If, contrary to my view, the commission is not expressly authorised to apply to intervene in proceedings, I consider that the power to do so should be recognised as incidental to or consequential upon its general duty to promote the observance of human rights A-G v Great Eastern Railway Co (1880) 5 App Cas 473.
51. In Baroness Wenlock v River Dee Company (1885) 10 App Cas 354, 362-3 Lord Watson, stating the principle earlier recognised by this House in Attorney-General v Great Eastern Railway Company (1880) 5 App Cas 473, said:
"Whenever a corporation is created by Act of Parliament, with reference to the purposes of the Act, and solely with a view to carrying these purposes into execution, I am of opinion not only that the objects which the corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions."
52. In their judgments the Lord Chief Justice and the majority of the Court of Appeal carefully analysed the sub-sections contained in section 69 and concluded that neither expressly nor by implication did they give power to the Commission to intervene in the inquest. I agree that the section does not give an express power to intervene, and therefore the issue to be determined is whether the power can be derived by reasonable implication. On this point I think that the arguments are finely balanced and I recognise the force of the reasoning in the judgments of the Lord Chief Justice and the majority of the Court of Appeal. In my opinion the outcome depends upon the approach which should be adopted by a court in applying the principle recognised in Attorney-General v Great Eastern Railway: should the court apply the principle with a degree of strictness or should it adopt a liberal approach?
53. In my opinion the authorities show that a liberal approach should be adopted. In Attorney-General v Great Eastern Railway Company Lord Selborne LC stated at p 478:
"It appears to me to be important that the doctrine of ultrà vires, as it was explained in that case [Ashbury Raiway Carriage and Iron Co v Riche (1875) LR 7 HL 653], should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultrà vires."
It is also relevant to note that Lord Selborne then recognised that acts may be intra vires "on the ground that they are such acts, on the borderline between authority and no authority, as may reasonably be thought incidental to the exercise of powers expressly given".
Lord Blackburn stated at p 481:
"My Lords, I quite agree with what Lord Justice James has said on this first point as to prohibition, that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited."
54. It is possible to discern a degree of difference between the speech of Lord Selborne in Attorney-General v Great Eastern Railway Company and the speech of Lord Macnaghten in Amalgamated Society of Railway Servants v Osborne  AC 87, where he said at p 97:
"The learned counsel for the appellants did not, as I understood their argument, venture to contend that the power which they claimed could be derived by reasonable implication from the language of the Legislature. They said it was a power 'incidental,' 'ancillary,' or 'conducive' to the purposes of trade unions. If these rather loose expressions are meant to cover something beyond what may be found in the language which the Legislature has used, all I can say is that, so far as I know, there is no foundation in principle or authority for the proposition involved in their use. Lord Selborne no doubt did use the term 'incidental' in a well-known passage in his judgment in Attorney-General v Great Eastern Railway Company. But Lord Watson certainly understood him to use it as equivalent to what might be derived by reasonable implication from the language of the Act to which the company owed its constitution; and Lord Selborne himself, to judge from his language in Murray v Scott (1884) 9 App Case 519, could have meant nothing more."
But to the extent that there may be a difference, I consider that later authorities have followed the approach of Lord Selborne. In Trustees of Dundee Harbour v D & J Nicol  AC 550, 570 Lord Parmoor stated:
"It is settled law that a body such as the appellants, constituted by statute, have no authority except such as Parliament has conferred upon them, and that they must find a sanction for any powers which they claim to possess in their incorporating statute or statutes. These powers may be expressly authorized or implied as fairly incidental to what is expressly authorized."
55. In Attorney-General v Smethwick Corporation  Ch 562 Lord Hanworth MR, after referring to the authorities, stated at page 577:
"We have, therefore, the direction of the House of Lords that if the enterprise we are considering is incidental to or consequential upon those things which the Legislature has authorized, it ought not to be held to be ultra vires."
And at page 579 Romer LJ stated:
"The first thing to be determined is whether the matter in connection with which expenses are about to be incurred is within the power of the corporation, or whether it is ultra vires the corporation. For the purposes of determining that question we must apply the principles enunciated by James LJ and Lord Selborne in Attorney-General v Great Eastern Ry Co."
56. In Attorney-General v Lower Hutt City  NZLR 438 at p 440 McGregor J stated:
"I agree with the submissions of counsel for the defendant that the object in entrusting authority to a public body such as the defendant is to enable it to provide services to the public, and the statute should receive a fair, large and liberal construction in accordance with its objects. In the case of powers conferred by the Act the Court should be liberal in deciding what matters are fairly incidental to or consequential upon the express authority conferred."
And at p 461 McCarthy J stated:
. in determining what powers actually are conferred by legislation, the Courts will consider the corporation as having, not only the powers expressly stated, but also "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised": Lord Selborne in Attorney-General v Great Eastern Railway Company  5 App Cas 473, 478; Dundee Harbour Trustees v D & J Nicol  AC 550, 570. Further, in deciding what can fairly be regarded as incidental to express powers, the Courts do not think narrowly. They bear in mind the public nature of the obligations of a local body and the requirements of its community, and they take a liberal view of the power under consideration: Attorney-General v Crayford Urban District Council  Ch 575;  2 All ER 247. Finally if the act done is within a discretionary power of the corporation, the Courts will not interfere if the discretion has been exercised reasonably and bona fide: Westminster Corporation v London and North Western Railway  AC 426.
It is important to bear these directions in mind, for the conclusion one reaches in this case depends largely, it seems to me, on the spirit in which one approaches the interpretation of the statutory provisions on which the respondent relies