Judgments - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

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    206. These are the operative sections of the Act for present purposes and they all came into force on 2 October 2000. Subject to the specific régime in section 22(4), there is nothing to suggest that Parliament intended that there should be any difference in the way that they were to be applied on commencement. And, indeed, it would be surprising if there had been a difference, precisely because the two groups of sections constitute different, but complementary, mechanisms for giving effect to the same underlying Convention rights. It is a matter of chance whether the relevant act of a public authority occurs in an area covered by the common law or by statute, or by a mixture of both. In that sense, it is equally a matter of chance whether sections 6 and 7 only, or sections 3 to 5 also, are in play. For instance, a party enjoying a right to equality of arms under article 6(1) can rely on that right, if appropriate, to challenge the way court proceedings are conducted: section 7(1)(b). If the relevant aspect of the proceedings is regulated, in whole or in part, by a statutory provision, he must be equally able to deal with it by invoking the court's obligation under section 3 to read and give effect to the statutory provision compatibly with article 6(1). If appropriate, section 4 also comes into play. So far as any given Convention right is concerned, it would make no sense for some of these sections to apply retroactively or to apply generally to the situation on commencement and for others not to apply in these ways. They must all apply in the same way or else the 1998 Act would not work smoothly.

    207. The Court of Appeal rightly saw that the various operative provisions of the 1998 Act are interlinked and based part of their argument for applying sections 3 and 4 on section 6(1) which makes it unlawful for a public authority, including a court, to act incompatibly with Convention rights: [2002] QB 74, 86, paras 10 - 12. Since the issue was not raised before the Court of Appeal, that passage in their judgment naturally proceeds on the assumption that section 6(1) itself applies in all cases from the date of commencement of the Act. That is not, however, something that can simply be assumed.

    208. The issue which the House has to decide transcends sections 3 and 4. It relates to the intention of Parliament when incorporating the Convention rights and enacting the operative provisions to give effect to them. Were those rights and provisions to apply retroactively? Or generally from the date of commencement? Or only so as not to affect vested rights or pending proceedings? In terms of the test as formulated in L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co [1994] 1 AC 486, 525H, the answer is to be found by considering whether the consequences of applying the operative provisions retroactively or so as to affect vested rights or pending proceedings would be "so unfair" that Parliament could not have intended them to be applied in these ways. In fact, the question does not admit of a single answer.

Application of the 1998 Act in relation to different articles of the Convention

    209. The operative provisions of the 1998 Act must all apply in the same way when used to give effect to the same Convention right. But they may apply differently when used to give effect to different Convention rights. Article 6 embodies rights in relation to matters of procedure. When the 1998 Act is used to give effect to those article 6 rights in our domestic law, it provides remedies for defects in procedure. There is no presumption against purely procedural statutory provisions applying generally on commencement since no-one has a vested right to any particular form of procedure. It follows that, given its unqualified language, the 1998 Act applies generally from the date of commencement in so far as it gives effect to article 6 rights. That is only what one would expect. Suppose, for instance, that during the hearing of the appeal in this case the Court of Appeal had done something - such as refusing to listen to submissions on behalf of First County - which was incompatible with their rights under article 6(1). There can be no doubt that section 6(1) would have applied and that the Court of Appeal would have acted unlawfully in terms of it. Similarly, section 7(1)(b) would have applied and under it First County could have relied on their article 6(1) rights. Sections 3 to 5 would also have applied to the appeal for this purpose. So, if the alleged infringement of First County's article 6(1) rights had arisen out of a statutory provision regulating the procedure in the appeal, section 3 would have bound the Court of Appeal. Depending on how the statutory provision could be read under section 3, the Court of Appeal could also have used the mechanism in sections 4 and 5 to make a declaration of the incompatibility of the provision with article 6(1) rights.

    210. In so far as articles of the Convention contain substantive rather than procedural rights, the presumption would be that Parliament did not intend that, when used to give effect to them, the operative provisions should interfere with vested rights or pending actions. It is, however, unnecessary, and would be unwise, to go through the various articles with a view to identifying those Convention rights in respect of which Parliament would or would not have intended the 1998 Act to apply generally on commencement. For example, I reserve my opinion on whether, because of the overwhelming importance and the absolute nature of articles 2, 3 and 4, Parliament would have intended that on commencement the Act would apply generally for the purpose of giving effect to them.

The 1998 Act, including section 3, not retroactive

    211. It is convenient first to consider whether the 1998 Act, including section 3, is retroactive.

    212. Subject to one exception, there is nothing in the language of any of the sections in the Act to suggest that they are meant to be retroactive. The exception is section 22(4) which, expressly, gives retroactive effect to section (7)(1)(b) in one particular situation. The proper inference is that none of the other provisions is intended to apply retroactively. This inference is corroborated by the obvious, and potentially far-reaching, unfairness of unsettling the law relating to past events and transactions in different areas of the law. In these circumstances, applying the powerful presumption against retroactivity, I readily conclude that, subject to section 22(4), none of the operative provisions of the Act, including section 3, is retroactive.

    213. In the particular context of criminal proceedings this conclusion is fortified by the observations of Lord Clyde on section 3 in R v Lambert [2002] 2 AC 545, 604, at para 142:

    "The usual understanding of the appeal process is that the correctness of the decision appealed against should be determined in accordance with the law as it stood when the case was decided by the lower court. But on the appellant's approach it would seem that any case either of a civil or a criminal nature, decided according to the law as construed in the ordinary way prior to 2 October 2000, if an appeal was brought so as to be heard on or after 2 October 2000, would require to be decided by the application of a rule of construction, namely section 3 of the 1998 Act, which was not obligatory on the lower court. But that involves giving an undue extension to the effect of section 3. In my view section 3 only became obligatory on courts on 2 October 2000. The rule of construction which it expresses applies to all legislation whenever enacted. But there is nothing to show that it was intended by section 3 that the meaning given to a statutory provision by a court prior to 2 October 2000 should be changed in the event of an appeal against that decision being heard on or after that date."

The same thinking is to be found in the comment of Lord Hope of Craighead in R v Kansal (No 2) [2002] 2 AC 69, 112, at para 83

    "the interpretative obligation in section 3(1) cannot be applied so as to change retrospectively the meaning which was previously given to a provision in primary legislation. It does not make unlawful acts of courts or tribunals or other public authorities, which, as a result of provisions in primary legislation, could not at the time when the acts were done have been done differently: see section 6(2)(a)."

In a very different civil context Lord Wright MR had said much the same in In re a Debtor [1936] Ch 237, 243:

    "Thus while an appellate court is able, and bound, to give effect to new remedies which have been introduced by enactments passed after the order appealed from was made by the court of first instance, yet with regard to substantive rights it is well established that the appellate court must give effect to the same law as that which was in force at the date of the earlier proceeding…. A matter of substantive right which has become res judicata cannot be upset by a subsequent general change of the law, in the absence of precise intention to make the change so retrospective being evidenced in the Act."

    214. Although counsel referred to the passages from R v Lambert and R v Kansal (No 2) during argument, in the present case that particular kind of problem does not arise. Because of his decision on the prior point of interpretation, the county court judge did not consider or apply section 127(3). The first court to consider and apply it was the Court of Appeal. Accordingly, the danger of an appeal court using section 3 to make a retroactive change in the law applied by a lower court, which was identified in R v Lambert and R v Kansal (No 2), simply did not present itself in this case. None the less, the remarks of the Master of the Rolls in In re a Debtor suggest that this is merely one aspect of a wider question about the application of new statutory provisions to pending proceedings.

The application of the operative provisions of the 1998 Act when used to give effect to article 1

    215. For the reasons given by Lord Nicholls of Birkenhead, article 6(1) is not engaged in this case. The only live question relates to the application of the operative provisions when used to give effect to the right in article 1. It is crucially important to bear in mind that this is not a question about the application of section 127(3) of the 1974 Act, as potentially modified by section 3 of the 1998 Act, so as to affect vested rights or pending actions. Rather, it is a general question about the application of the operative provisions of the 1998 Act, when used to give effect to the article 1 right, so as to affect vested rights or pending proceedings. That question admits of only a single answer in regard to vested rights and pending proceedings respectively. And that answer cannot be found by examining the circumstances of particular cases and then applying a more or less flexible test in the light of those circumstances. This is just an aspect of the point emphasised by Lord Mustill in L'Office Cherifien v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 528C, when he said that a court which sets out to apply the test of fairness is concerned

    "not with the merits of the particular case but with the generality of rights which Parliament must have contemplated would suffer if the section took effect retrospectively."

Furthermore, in the words of Isaacs J in George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413, 434, the whole circumstances must be considered:

    "that is to say, the whole of the circumstances which the legislature may be assumed to have had before it. What may seem unjust when regarded from the standpoint of one person affected may be absolutely just when a broad view is taken of all who are affected. There is no remedial Act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side."

So in this case the single answer to the broadly conceived question is to be found by considering how Parliament intended the operative provisions of the 1998 Act to apply in relation to the generality of vested rights or pending proceedings - not in relation to vested rights or pending proceedings under the 1974 Act, far less in relation to the individual plight of Mrs Wilson and First County. To descend to those levels of particularity would not only result in a myriad of single decisions but would be to attribute to Parliament the implausible intention that the meticulously drawn 1998 Act, embodying a landmark reform, was to apply in a piecemeal and haphazard fashion.

    216. Indeed, it is only by taking that broad general view of the application of the 1998 Act that a puzzle at the heart of this case can be solved. Depending on the particular legislative provision to be read through its prism, section 3 either results in the provision being modified and vested rights being affected, or else it leaves the provision unmodified and any vested rights intact. So, if the application of section 3 depended on the terms of the individual statutory provision to be read and given effect, it would be impossible to tell whether vested rights were affected, and so whether section 3 applied, without first applying it. That vicious circle is avoided if section 3 is regarded as part of a package of operative provisions whose application falls to be determined by judging the consequences of applying the provisions so as to affect the generality of vested rights and pending proceedings.

    217. In considering how the package of provisions in the 1998 Act is to be applied, it would be pointless to scour them in the hope of finding clues in the minutiae of the language. Section 3(2)(a), which says that the section applies to primary and subordinate legislation whenever enacted, is one of the two express indications which the Act contains as to its application. The other is in subsection (4) of section 22, the minimalist application section, which makes section 7(1)(b) apply retroactively in certain defined circumstances. It is unnecessary to decide in this case whether section 22(4) applies to pending proceedings or so as to affect vested rights. For the rest, there is nothing in the operative provisions of the Act to show whether, in the case of substantive Convention rights, they are to apply generally or only so as not to affect vested rights or pending proceedings. In that sense, they are ambiguous and so the presumption against them applying to pending proceedings, in particular, comes into play. But it is necessary to consider whether that presumption is displaced by other relevant considerations.

The application of the operative provisions of the 1998 Act in the present case

    218. In deciding how the operative sections of the 1998 Act should be applied when used to give effect to the substantive right in article 1, I would attach significance to the importance, in general terms, of the rights which the 1998 Act incorporates into our domestic law. It could be argued that, because of their importance, Parliament would have intended all of them to take immediate effect for all purposes. Since article 6 rights, for instance, would clearly take immediate effect for all purposes, in the interests of uniformity the other rights - including the right under article 1 - should do so too. That argument could be reinforced by noticing the peculiar potency of the Convention rights by comparison with other rights under domestic law, which could therefore be expected to give way to them. Moreover, it might be said that, since a court applying article 1 must always balance competing interests, there would be no risk of the rights of parties to pending proceedings being crushed willy-nilly by the new Convention right. Parliament could therefore have been satisfied that, when giving effect to the article 1 right, the Act could apply generally on commencement without there being any unacceptable risk of injustice. Finally, and less importantly, it could be argued that the long interval between Royal Assent and commencement was an indication that, once the delay was over, the 1998 Act when used to give effect to article 1 was to have general effect: Craies on Statute Law,7th ed (1971), pp 393 - 395.

    219. The last line of argument has rarely been accepted and I would not accept it in this case. The other arguments carry more weight, but against them it can be said that the very importance and potency of the article 1 right make it all the less likely that Parliament would have intended that it should suddenly descend as a deus ex machina into pending proceedings. Moreover, not only is the unfairness of interfering with the rights of parties to pending proceedings very considerable but it is distinct and different in kind from the unfairness which may have to be balanced as one of the competing interests whenever article 1 is given effect. For these reasons I would conclude that there is no sufficient reason to hold that the presumption is displaced. Applying the relevant rule of construction, since the language of the operative provisions admits another conclusion, they must be taken not to affect pending proceedings. To put the matter another way, in the case of article 1, the consequences of applying the operative provisions of the 1998 Act to pending proceedings would be so unfair that Parliament could not have intended it to apply to them.


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