Human Rights Acts: The Mechanisms Compared 9781782258056, 9781849460965

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Foreword In this remarkable book, Kris Gledhill addresses for the first time, and in some considerable detail, the dynamics operating within different common law systems that seek to integrate international fundamental rights obligations into domestic law. There could be no better time for a book of this kind, and of this quality, to appear. Judges in the United Kingdom Supreme Court are, in the cases and in a series of recent speeches delivered extra-judicially, starting to reassert the traditional values of the common law over human rights obligations enshrined in international Treaty provisions. The impetus for this is unclear. But it is a leitmotif that resonates with the Conservative Party element in the present coalition government which sees the supra-national courts of both Luxembourg and Strasbourg as interfering with Parliamentary sovereignty and with the powers of democratically elected government to make and to enforce its laws. Whether, to take one topical example, a blanket ban on convicted prisoners being allowed to vote is an affront to central government (as the Conservatives believe) or is (as the Strasbourg Court has held) contrary to the European Convention on Human Rights depends upon the focus being adopted. As a matter of international obligation a blanket ban has authoritatively been held to be unlawful. However, as a matter of domestic law (and even with the fuel injection of the Human Rights Act 1998) the European Convention is but an international instrument. The concomitant judgments that it engenders from Strasbourg do not have binding force and are trumped by the sovereignty of Parliament in enacted statutes. The strength of this book is to explore apparent antitheses of this kind with intellectual depth so that the relationship between human rights law on the international level and human rights law on the domestic level becomes clearer and comes to be seen not so much as a sharp legal dichotomy but, rather, as the fashioning of mechanisms (often requiring compromise and differing as between the respective common law systems of several jurisdictions) to integrate international and domestic fundamental rights regimes so that they work harmoniously. As so often, the devil is in the detail. Kris Gledhill provides an enormous amount of comparative material taking the reader on a journey that ranges well beyond the somewhat parochial human rights concerns that currently engulf the UK. He is well qualified to do this, possessing a wealth of knowledge, having conducted a successful human rights practice in the UK and then taken up residence in New Zealand, becoming an academic specialising in constitutional and human rights law. He analyses fundamental rights mechanisms

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in the common law jurisdictions of Canada, the UK, New Zealand (which itself provided the model for the Human Rights Act in the UK), Ireland, and Australia (in the States which have them—Victoria and the Australian Capital Territory). The voyage is one leading not merely to discovery (in the sense of learning new things) but also one leading to a better understanding of how different common law jurisdictions have adopted different solutions to the problems of conflict with international norms and obligations. The UK could have adopted a Canadian model of overriding constitutional rights. It chose not to do this but opted for the ‘softer’ New Zealand model which allows Parliament to legislate in a way that is contrary to international Treaty obligations. Given that all the jurisdictions examined in this book are common law jurisdictions with a dualist system (treating international law as distinct from domestic law and required to be incorporated to be legally binding) Kris Gledhill’s work demonstrates the implicit respect that must be paid to those jurisdictions that have made a deliberate choice to prioritise the sovereignty of Parliament over international rights obligations. Such a choice was not made in the context of EU law and some regret the failure to preserve a residual judicial power of override such as that vesting in the German Constitutional Court. Yet it may not be as straightforward as this. If Parliament has deliberately preserved its sovereignty it may, on one level, be contended that it cannot be accused of illegitimacy if it chooses to legislate consistently with that sovereignty even if the result is a breach of an international fundamental rights Treaty. This book shows, though, that the arguments may be more nuanced. The avowed purpose underpinning the formation of the United Nations in 1945 and the drafting of the European Convention was to protect fundamental rights that had been eviscerated in the Holocaust. Achieving a comprehensive set of international protections lay at the heart of the various domestic laws enacted to give effect to these obligations. Given that context, their success can only be measured in terms of the effective fundamental rights protection they actually confer. In these terms, beating the drum of Parliamentary sovereignty is a barren exercise. The great virtue of Kris Gledhill’s excellent book is that the reader may judge for himself or herself how successful the different jurisdictions he describes so well have managed to accomplish effective fundamental rights protections ‘at home.’ RICHARD GORDON QC Brick Court Chambers 5th October 2014

Preface As a London-based barrister in the years before the Human Rights Act 1998 came into effect and for several years afterwards, part of my practice involved human rights standards. Prior to the 1998 Act, occasional reliance on case law decided by the New Zealand courts under the New Zealand Bill of Rights Act 1990 invariably led to judicial comment that it was all very interesting but they did things differently over there. By the time I relocated to New Zealand and to academia, UK judges had gone through a period of active use of the Human Rights Act that seemed to mirror the early years of experience under the New Zealand statute and in some important respects to go further. Other places, Ireland and two Australian jurisdictions, had also decided to follow a similar model of rights protection. Instances began to appear of disagreements between apex courts as to the proper outcome under the bills of rights statutes, particularly in relation to the key technique of the interpretive obligation. This led to a thought that it would be useful to compile materials and cases relating to the various statutes and their mechanisms. As time passed, the temptation to supplement this with more commentary proved too great: I apologise if that was an error, but trust that the range of materials and case extracts will still be sufficient to meet the original aim. My thanks go to Kenneth Chan and Gabriel Haydn, who long ago provided useful research assistance at the outset of the project; to my colleague at the University of Auckland, Paul Rishworth, who provided some useful guidance on initial drafts of some chapters; to Rachel Turner and Richard Hart, of Hart Publishing, for tolerance and encouragement during the extended process, and the many others at Hart who make it a pleasant publishing house with which to work. Most particularly, my thanks go to Matesha Ababa, who allowed a laptop and draft chapters to intrude on what should have been a holiday break, so that the manuscript could be finished. This book is dedicated to those advocates for human rights standards who have made good use of the possibilities provided by the bills of rights statutes to secure the obligations owed under the international human rights regime. Kris Gledhill Pune, India, 14 July 2014

Table of Cases Australia Al-Kateb v Godwin [2004] HCA 37, (2004) 219 CLR 562 ...............................94, 136 Australian Communist Party v Commonwealth (1951) 83 CLR 1 ............................85 Electrolux Home Products Pty v Australian Workers’ Union [2004] HCA 40, 221 CLR 309, 209 ALR 116 ........................................................................................94 Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 ............................137 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, (1995) 128 ALR 353........................................................................................................ 133–36 Momcilovic v R [2011] HCA 34 .................................... 91, 94–95, 136, 148, 189–90, 227, 246–49, 259–60, 261–63, 422–24, 432, 435–38, 530–32 Nulyarimma v Thompson [1999] FCA 1192..................................................... 112–13 Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476 .........136, 146–47 Polites v Commonwealth [1945] HCA 3, (1945) 70 CLR 60 ..................................110 Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514 ...................................91, 94 Canada Eldridge v Attorney-General of British Colombia [1997] 3 SCR 624 ................ 345–46 Mackin v New Brunswick (Minister of Finance) 2002 SCC 13, [2002] 1 SCR 405................................................................................................517 R v Big M Drug Mart Ltd [1985] 1 SCR 295 .................................................... 228–32 R v Chaulk [1990] 3 SCR 1303 ..............................................................................232 R v Morin [1992] 1 SCR 771 ..................................................................................490 R v Oakes [1986] 1 SCR 103 ..................................................................185, 228, 427 Rahey v R [1987] 1 SCR 588 ............................................................................ 488–89 Re Winnipeg School Division (No 1) [1985] 2 SCR 150, (1985) 21 DLR (4th) 1 .................................................................................. 106–07 Vancouver (City) v Alan Cameron Ward 2010 SCC 27, [2010] 2 SCR 28................................................................ 493–94, 495–96, 513–14 European Court of Human Rights A v United Kingdom (2009) 49 EHRR 625....................................................... 280–81 Airey v Ireland (1979) 2 EHRR 305........................................................................210 Al-Adsani v UK (2002) 34 EHRR 273 ...................................................... 215, 328–29 Al-Jedda v UK App no 27021/08, (2011) 53 EHRR 23.............................80, 103, 380 Al-Skeini v UK App no 55721/07, (2011) 53 EHRR 18 ............................................29 Clift v UK App no 7205/07, 13 July 2010 .......................................................268, 290 Dodov v Bulgaria App no 59548/00, [2009] MHLR 11 ..........................................330 Ðordevic v Croatia App no 41526/10, [2013] MHLR 89 .......................................330 Dudgeon v UK (1981) 4 EHRR 149........................................................................212

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Edwards v UK App no 46477/99, (2002) 35 EHRR 487, [2002] MHLR 220 ...........55 Golder v UK (1975) 1 EHRR 524 ...................................................................212, 214 Goodwin v UK (2002) 35 EHRR 447 .............................................................417, 534 Handyside v UK (1976) 1 EHRR 737 ............................................... 209, 210, 211–12 Hirst v UK [2006] 1 Prison LR 220, (2006) 42 EHRR 41 .......................................535 HL v UK (2004) 40 EHRR 761, [2004] MHLR 236 ...............................................277 Ilascu and Others v Moldova and Russia App no 48787/99, (2005) 40 EHRR 46, [2007] Prison LR 42 ............................................................29 Iovchev v Bulgaria App no 41211/98, 2 February 2006 ..........................................215 James, Wells and Lee v UK (2013) 56 EHRR 12 .....................................................290 Jones v UK App nos 34356/06 and 40528/06 ...................................................58, 328 Keenan v UK App no 27229/95, (2001) 33 EHRR 913, [2001] Inquest LR 8, [2001] Prison LR 180 ..........................................................55 Kiss v Hungary App no 38832/06, [2010] MHLR 245 ...................................215, 467 Kjeldsen and others v Denmark (1976) 1 EHRR 711 ..............................................211 Klass v Germany (1978) 2 EHRR 214 .............................................................. 212–13 Loizidou v Turkey (1996) 23 EHRR 513 ................................................................214 Marckx v Belgium (1980) 2 EHRR 330 ..................................................................210 Moldovan v Romania App nos 41138/98 and 64320/01, 13 March 2001 ..............211 Norris v Ireland (1988) 13 EHRR 186 ..............................................................77, 463 Osman v UK (1998) 29 EHRR 245.........................................................................280 Phillips v UK (2001) 11 BHRC 280 ........................................................................199 Rantsev v Cyprus and Russia App no 25965/04, (2010) 51 EHRR 1 ......................330 RENFE v Spain App no 35216/97, 8 September 1997 ............................................332 Salabiaku v France (1988) 13 EHRR 379 ...............................................................199 Šilih v Slovenia App no 71463/01, [2009] Inquest LR 117, (2009) 49 EHRR 996 ..........................................................................................211 Smith and O’Grady v UK App nos 33985/96 and 33986/96, (1999) 29 EHRR 493 ..........................................................................................149 Storck v Germany App no 61603/00, (2006) 43 EHRR 96, [2005] MHLR 211 ........................................................................ 330–31, 359, 371 Sunday Times v UK (1979) 2 EHRR 245 ................................................................213 Tomasic v Croatia App no 46598/06, [2012] MHLR 167 ................................. 329–30 Transpetrol v Slovakia App no 28502/08, 15 November 2011.......................... 331–32 Tyrer v UK (1978) 2 EHRR 1 .................................................................................210 Varnava v Turkey App nos 16064/90 and others, (2010) 50 EHRR 467, App no 16064/90 and others, 18 September 2009 ........................................... 78–79 Winterwerp v Netherlands (1979) 2 EHRR 387 .....................................................213 X v UK (1981) 4 EHRR 188 ...........................................................................119, 383 Z and Others v UK App no 29393/95, (2002) 34 EHRR 97 .............................55, 280 European Court of Justice Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 .......................................................................................130, 408 Hong Kong HKSAR v Lam Kwong Wai FACC No 4 of 2005, [2006] 3 HKLRD 808, (2006) 9 HKCFAR 574 ................ 238–39, 430–31, 433–34

Table of Cases xvii Human Rights Committee Bleier v Uruguay Communication no, 30/1978 .........................................................55 de Geurrero v Colombia Communication no, 45/1979 .............................................55 Joslin v New Zealand Communication no 902/1999...............................................202 Judge v Canada Communication 829/98 .................................................................210 Kavanagh v Ireland Communication No 819/1998 ........................................... 284–85 Toonen v Australia Communication no 488/1992 .............................................77, 212 Ireland A v Governor of Arbour Hill Prison [2006] 4 IR 88................................................477 Byrne v Ireland [1972] IR 241.................................................................................455 Donegan v Dublin City Council & anor and Dublin City Council v Gallagher [2012] IESC 18....................................................................424 DPP v Kenny [1990] 2 IR 110 .................................................................................455 Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 .........................476 Edward Horgan v An Taoiseach and Others [2003] IEHC 64, [2003] 2 IR 468, [2003] 2 ILRM 357 ..................................................................114 Grant v Roche Products [2008] 4 IR 679, [2008] IESC 35 ................................ 455–56 Kavanagh v The Governor of Mountjoy Prison & anor [2002] IESC 13.............................................................................. 116, 117–18 Mahon Tribunal v Keena and another [2009] IESC 64 ...........................................282 McD v L and Another [2009] IESC 81 ................................. 29, 116–17, 128–29, 147, 148, 283–84, 325, 425, 493 Meadows v Minister for Justice Equality and Law Reform [2010] IESC 3 ..............108 Meskell v Coras Iompair Eireann [1973] IR 121 .....................................................455 Re O Laighleis [1960] IR 93 ...................................................................................116 Sinnott v Minister for Education [2001] IESC 63, [2001] 2 IR 505.........................173 New Zealand Ashby v Minister of Immigration [1981] 1 NZLR 222 ..................................... 138–40 Attorney-General v Udompun [2005] 3 NZLR 204 ...................460, 500-501, 514–15 Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 .......................................................... 457–58 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 ...................................................................................... 528–29 Boscawen, McVicar and Hide v Attorney-General [2009] NZCA 12 ....................................................... 304, 306–07, 310–11, 529–30 Chapman v AG [2011] NZSC 110, [2012] 1 NZLR 462 ................................376, 488 Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263 ...................................506 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56..........216, 394, 503, 506 Controller and Auditor General v Davison and linked cases [1996] 2 NZLR 278 ...................................................................................111 Drew v Attorney-General [2002] 1 NZLR 58 ................................................... 321–22 Dunlea v Attorney-General [2000] 3 NZLR 136....................................... 501–02, 518 Easton v Governor-General [2012] NZHC 206 ......................................................305

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Electoral Commission v Cameron [1997] 2 NZLR 421 ..........................................109 Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 .............................216 Gross v Boda [1995] 1 NZLR 569 ..........................................................................140 Hosking v Runting [2003] 3 NZLR 385 .................................................................378 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 ............................................................................................143 Innes v Wong (1994) 4 HRNZ 247 ................................................................... 343–44 Lange v Atkinson [1998] 3 NZLR 424 ...........................................................209, 375 Manga v Attorney-General [2000] 2 NZLR 65 .......................................................501 Marsh v Attorney-General [2010] 2 NZLR 683......................................................458 Martin v Tauranga District Court [1995] 2 NZLR 419............................. 460, 489–90 McDonnell v Department of Corrections [2009] NZCA 352 ..................................529 Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260 .......................................... 186–87, 216, 240–42, 401–03, 457 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 .......................................................................... 242, 403, 526–27 Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754 ............................................................................................242 New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 ................................................................142 New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 ....................................................................379 Quilter v Attorney-General [1998] 1 NZLR 523.....................................................403 R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19 ......................................................................................................... 509–10 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 ....................................... 242–46, 249, 419–20, 431, 435, 529 R v Mist [2006] 3 NZLR 145 .................................................................................259 R v Phillips [1991] 3 NZLR 175 .............................................................................427 R v Pora [2001] 2 NZLR 37 ....................................................... 104–06, 259, 432–33 R v Poumako [2000] 2 NZLR 695.................................................... 104, 259, 527–28 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 ..............................................492 Rajan v Minister of Immigration [1996] 3 NZLR 543 ............................................142 Re S [1992] 1 NZLR 363 ........................................................................................186 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 ...........................................142 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 .......... 187, 457–60, 497–98, 514 Takamore v Clark [2011] NZCA 587, [2012] 1 NZLR 573 ............................. 378–79 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 .......................................................... 460–61, 502–05, 515–16 Tavita v Minister of Immigration [1994] 2 NZLR 257.............................. 141–42, 263 Temese v Police (1992) 9 CRNZ 425 ......................................................................241 TVNZ v Rogers [2007] NZSC 91, [2008] 2 NZLR 277 .........................................506 Vogel v Attorney-General [2013] NZCA 545 .................................................... 505–06 Waitakere City Council v Lovelock [1997] 2 NZLR 385 ........................................109 Wilding v Attorney-General [2003] 3 NZLR 787 ................................... 499–500, 515 Ye v Minister of Immigration [2009] NZSC 76, [2009] 2 NZLR 596 (CA) and [2010] 1 NZLR 104 (SC) ....................................143 Zaoui v Attorney-General [2004] 2 NZLR 339 ......................................................527 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289...............143

Table of Cases xix Privy Council (non-UK cases) Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 .......................................................................................118 Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] AC 328 .......................................... 497, 502, 516, 517–18 Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 ................................................................................... 494–95 Merson v Cartwright [2005] UKPC 38 ...........................................................497, 518 Minister of Home Affairs v Fisher [1980] AC 319 ..........107, 187, 216, 228, 233, 237 R v Lee Kwong-cut [1993] AC 951 ........................................................... 237–38, 428 South Africa Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13, 1996 (1) SA 984, 1996 (1) BCLR 1 .....................................................................466 Fose v The Minister of Safety and Security 1997 (3) SA 786 ..................................................................................233, 494, 517 Giant Concerts CC v Rinaldo Investments (PTY) Ltd and Others [2012] ZACC 28, 2013 (3) BCLR 251 ........................................ 465–66 Kruger v President of Republic of South Africa and Others [2008] ZACC 17, 2009 (1) SA 417, 2009 (3) BCLR 268 .......................................... 466–67 Minister of Health v Treatment Action Centre (No 2) [2002] ZACC 15, 2002 (5) SA 721, 2002 (10) BCLR 1033 ............................................467 Minister of Home Affairs v Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs and Others [2003] ZACC 10, 2003 (5) SA 281, 2003 (8) BCLR 838 .........................466 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others [2004] ZACC 10, 2005 (3) SA 280, 2004 (5) BCLR 445 ............ 236–37 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6, 1998 (12) BCLR 1517 .........................................................................................235 Road Accident Fund and Another v Mdeyide [2010] ZACC 18; 2011 (1) BCLR 1, 2011 (2) SA 26 .......................................................................235 State v Makwanyane and Another 1995 (3) SA 391; 1995 (6) BCLR 665......... 233–34 The Children’s Institute v The Presiding Officer of the Children’s Court and Others [2012] ZACC 25, 2013 (1) BCLR 1, 2013 (2) SA 620 .....................................................................467 Zuma v The State [1995] ZACC 1, 1995 (2) SA 642 ........................................ 232–33 United Kingdom A v BBC [2014] UKSC 25, [2014] 2 WLR 1243 ....................................... 389–90, 463 A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221 ................... 58–59, 97–98, 111–12, 217 AH v West London MHT and Secretary of State for Justice [2011] UKUT 74 (AAC), [2011] MHLR 85 ....................................................................217 Ahmed and Others v HM Treasury [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534 ................................. 98–103, 148, 274, 380, 433

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Al-Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 ...............................380 Ambrose v Harris [2011] UKSC 43 ................................................... 268, 269–70, 273 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] UKHL 37, [2004] 1 AC 546 .............................. 346–49, 361–63, 364, 369, 375–76 Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72.......................................................................491 AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, [2012] 1 AC 868 ............................... 147–48, 179–83, 249–51, 463–64, 471 B (A Child) v DPP [2000] 2 AC 428.................................................................... 96–97 Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2013] UKSC 39, [2013] 3 WLR 179 ............................................................ 390–91 Barrett v Enfield LBC [2001] 2 AC 550...................................................................280 Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 .................... 416–18, 533–34 Brown v Stott 2001 SC (PC) 43, [2003] 1 AC 681 ............................................ 265–66 Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601 ............... 477, 524–25 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 467.....................................375 Chief Constable of Hertfordshire v Van Colle; Smith v Chief Constable of Sussex [2008] UKHL 50, [2009] 1 AC 225.....................................375 DS v Her Majesty’s Advocate [2007] UKPC D1, [2007] 24 BHRC 412 .............................................................. 178–79, 381, 413–14 Fitzpatrick v Sterling Housing Association Ltd [1999] UKHL 42, [1999] 3 WLR 1113 ......................................................... 406–07 Garland v British Rail [1983] 2 AC 751 ..................................................................123 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 ........................................................................... 406–12, 416, 433 HM Advocate v R [2002] UKPC D3, [2004] 1 AC 462 ..........................186, 461, 491 In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35 ............................................................................ 287, 325–26 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291............................................................... 414–15 Jain and another v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853.......................................................................375 JH Rayner (Mincing Lane) Ltd v Department of Trade and Others [1990] 2 AC 418 ......................................................................... 118–20 Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270 .........................................58 Kay v Lambeth LBC [2006] 2 AC 465 ...................................... 267, 279, 288, 289–90 Kennedy v Charities Commission [2014] UKSC 20, [2014] 2 WLR 808 ................................................................................ 383, 384–85 Local Government Byelaws (Wales) Bill 2012 [2012] UKSC 53, [2012] 3 WLR 1294........................................................ 183–84, 307–08 M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91 ..................................................................................267 Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 ................................................................................... 282, 287–88 Morgan & Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 .............128 Morris v Beardmore [1981] AC 446 ...............................................................102, 125 P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19....................................... 276–78 Pepper v Hart [1993] AC 593 .................................................................................396

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R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 ..................252, 266 R (Al-Hasan and Carroll) v Secretary of State [2005] UKHL 13, [2005] 1 WLR 688, [2005] 2 Prison LR 120 ................................ 379–80 R (Al-Jedda) v Secretary of State for Defence [2008] AC 332....................................98 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 .......................................................... 267–68, 287, 381 R (Anderson) v Secretary of State [2001] EWCA Civ 1698, [2002] UKHL 46, [2003] 1 AC 837 ...................................... 272–73, 415 R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604 .................................................190 R (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233 ...........................................................353 R (Cart, U and XC) v Upper Tribunal and Special Immigration Appeals Commission [2009] EWHC 3052, [2011] QB 120, [2010] MHLR 35, [2010] EWCA Civ 859, [2010] MHLR 353, [2011] UKSC 28, [2012] 1 AC 663, [2011] MHLR 196.................................. 87–88 R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439, [2010] 2 Prison LR 40, 536; [2013] UKSC 63, [2014] AC 271 ............. 281, 536–37 R (Clift) v Home Secretary [2006] UKHL 54, [2007] 1 AC 484......................268, 290 R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600........................441 R (Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] 1 AC 719 ................................................................................274 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532................................................. 149–50, 386–87 R (Evans) v Lord Chancellor and Secretary of State [2011] EWHC 1146 (Admin)..........................................................................................128 R (Faulkner and Sturnham) v Secretary of State for Justice [2013] UKSC 47, [2013] 2 AC 254 ............................................ 391, 511–13 R (Greenfield) v Home Secretary [2005] UKHL 14, [2005] 1 WLR 673, [2005] 2 Prison LR 129 ................................................. 507–11 R (Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWCA Civ 1036 .................................................128 R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) ............................................................ 127–28 R (Hammond) v Secretary of State [2004] EWHC 2753 (Admin), [2005] 2 Prison LR 281 ........................................................................409 R (IH) v Home Secretary and Secretary of State for Health [2003] UKHL 59, [2004] 2 AC 253 .........................................................288 R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553 ................................................................................290 R (Kaiyam) v Secretary of State for Justice [2013] EWCA Civ 1587 .......................290 R (KB and Others) v Mental Health Review Tribunal [2003] EWHC Admin 193, [2003] MHLR 28 ................................................................517 R (M) v Secretary of State for Health [2003] EWHC 1094 Admin, [2003] MHLR 348.........................................................................536

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R (Mahmood) v Secretary of State [2000] EWCA Civ 315, [2001] 1 WLR 840 ..............................................................................................150 R (Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 .................................................................................... 286–87, 537 R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020..................................................................................30, 375, 384, 385 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529 ...............................507 R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738 .............................381 R (Rusbridger) v Attorney-General [2003] UKHL 38, [2004] 1 AC 357 .................................................................................446, 463, 535 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1 ............................................................... 268, 271–72, 273 R (Stellato) v Secretary of State for the Home Department [2007] UKHL 5, [2007] 2 AC 70...........................................................................99 R (T and Another) v Secretary of State for the Home Department [2014] UKSC 35 ..............................................................................535 R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 ............................................................................. 260–61, 266–67 R (von Brandenburg) v East London and the City Mental Health NHS Trust & Anor [2000] MHLR 131 (High Ct), 382 [2003] UKHL 58, [2004] 2 AC 280 (HL) .............................. 381–83 R (West and Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350 ..............................................................................278, 385, 388 R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30, [2005] 1 WLR 1718 ............................................................. 415–16, 433 R v A (No 2) [2002] 1 AC 45.................................................... 404–06, 407, 415, 533 R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326 ...............404, 428 R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19 ...............509–10 R v Horncastle [2009] UKSC 14, [2010] 2 AC 373........................................... 278–79 R v K [2001] UKHL 41, [2002] 1 AC 462 ........................................................97, 411 R v Lambert [2002] 2 AC 545 .................................................................. 200, 428–29 R v Managers of South Western Hospital ex p M [1993] QB 683 ...........................382 R v McLoughlin [2014] EWCA Crim 188......................................................... 279–80 R v Ministry of Defence ex p Smith [1996] QB 517 .....................108-09, 149, 387–88 R v Secretary of State ex p K [1990] 3 WLR 755 ....................................................119 R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 ............................................................ 120–25, 373–74 R v Secretary of State for the Home Department ex p Bugdaycay [1987] AC 514 ...........................................................................108 R v Secretary of State for the Home Department ex p Pierson [1998] AC 539 ..........96 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 .......84, 95–96, 433 R v Secretary of State for Transport ex p Factortame Ltd [1990] 2 AC 85 ......131, 188 R v Secretary of State for Transport ex p Factortame Ltd (No 2) [1991] 1 AC 603........................................................................131, 188 R v Secretary of State for Transport ex p Factortame Ltd (No 3) [1992] QB 680 .................................................................................131, 188 R v Secretary of State for Transport ex p Factortame Ltd (No 4) [1996] QB 404 .........................................................................................131

Table of Cases xxiii R v Secretary of State for Transport ex p Factortame Ltd (No 5) [2000] AC 524 .................................................................................131, 188 R v Spear [2002] UKHL 31, [2003] 1 AC 734 ........................................................279 R v Waya [2012] UKSC 51, [2012] 3 WLR 1188 ....................................................413 Rabone and Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72 ............................................................................... 275–76 Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670..................... 125–27 Re McCaughey and Quinn’s application [2011] UKSC 20, [2011] Inquest LR 22, [2012] 1 AC 175 .................................. 268–69, 287, 475–76 Salvesen v Riddell [2013] UKSC 22.........................................................374, 414, 524 Savage v South Essex Partnership NHS Trust [2008] UKHL 74, [2009] AC 681 ............................................................................. 274–75 Secretary of State v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 .................. 280–81 Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264 ....................................... 412–13 Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 ........................................................................ 461–62, 474–75 Spiers v Ruddy [2007] UKPC D2, [2008] 1 AC 873.......................................... 491–92 Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 .................................. 380–81 Thoburn v Sunderland City Council [2003] QB 151 ......................................... 188–89 Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406 .............................375 Woolmington v Director of Public Prosecutions [1935] AC 462..............................426 YL v Birmingham City Council and Southern Cross Healthcare Ltd [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 ............................... 349–61, 363–64, 365, 367–68, 369–70 Zoernsch v Waldock [1964] 1 WLR 675 .................................................................120 United States of America Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (1791) 403 US 388; 29 L Ed 2d 619........................................454, 495 Hylton v US (1796) 3 US 171....................................................................................85 Marbury v Madison (1803) 5 US 137 ................................................................. 84–86

Table of Legislation Australia Charter of the United Nations Act 1945 ...................................................................99 Communist Party Dissolution Act 1950 ....................................................................85 Human Rights (Parliamentary Scrutiny) Act 2011 ....................................................18 Section 3 ..............................................................................................................298 Section 4 ..............................................................................................................315 Section 5 ..............................................................................................................316 Section 6 ..............................................................................................................316 Section 7 ..............................................................................................................316 Section 8 ..............................................................................................................298 Section 9 ..............................................................................................................323 Australian Capital Territory Equality Act 1991 .....................................................................................................15 Human Rights Act 2004 ......................................................................... 1, 13–15, 520 Dictionary ...................................................................................................336, 343 Preamble........................................................................................................ 155–56 Schedule 1 ...........................................................................................................157 Section 6 ..............................................................................................................462 Section 7 ......................................................................................................156, 377 Section 9 ..............................................................................................................219 Section 12 ............................................................................................................219 Section 18 ....................................................................................................219, 486 Section 23 ............................................................................................................486 Section 26 ............................................................................................................219 Section 28 ............................................................................................................219 Section 29 ............................................................................................................398 Section 30 ............................................................................................................397 Section 31 .............................................................................................. 156–57, 254 Section 32 ............................................................................................322, 539, 544 Section 34 ...................................................................................................... 472–73 Section 35 ............................................................................................................473 Section 37 ............................................................................................................295 Section 38 ............................................................................................................317 Section 39 ....................................................................................................295, 317 Section 40 ....................................................................................337, 342, 370, 371 Section 40A .........................................................................................................337 Section 40B..................................................................................................336, 341 Section 40C ........................................................................................... 452, 485–86 Section 40D .........................................................................................................336

xxvi

Table of Legislation

Human Rights Commission Act 2005 ...............................................................15, 472 Legislation Act 2001 Section 139 ..........................................................................................................394 Section 140 ..........................................................................................................394 Section 141 ..........................................................................................................394 Section 142 ..........................................................................................................394 Victoria Charter of Human Rights and Responsibilities Act 2006 ........................ 1, 15–17, 520 Section 3 ................................................................................................ 342–43, 462 Section 4 ................................................................................................ 338–40, 371 Section 5 ......................................................................................................157, 377 Section 7 ..............................................................................................................219 Section 9 ........................................................................................................ 219–20 Section 13 ............................................................................................................220 Section 15 ............................................................................................................220 Section 21 ....................................................................................................220, 486 Section 28 ...................................................................................................... 295–96 Section 29 ............................................................................................................296 Section 30 ............................................................................................................317 Section 31 .............................................................................................. 319–20, 519 Section 32 .............................................................................. 157, 254–55, 322, 398 Section 33 ............................................................................................................473 Section 34 ............................................................................................................473 Section 35 ............................................................................................................474 Section 36 ............................................................................................321, 539, 544 Section 37 ...................................................................................................... 544–45 Section 38 ....................................................................................................338, 341 Section 39 ...................................................................................... 338, 452–53, 486 Section 49 ............................................................................................................475 Equal Opportunity Act 1995.....................................................................................17 Equal Opportunity Act 2010...................................................................................472 Interpretation of Legislation Act 1984 Section 35 ...................................................................................................... 394–95 Canada Canadian Bill of Rights Act 1960 ........................................................................ 1, 2–3 Preamble..................................................................................................................3 Section 2 ......................................................................................................294, 400 Canadian Charter of Rights and Freedoms 1982.........................................................1 Section 1 ..............................................................................................................218 Section 24 ............................................................................................344, 465, 487 Section 32 ....................................................................................................319, 344 Section 33 ....................................................................................................319, 519 Constitution Act 1867.................................................................................................4 Constitution Act 1982......................................................................................... 1, 3–4 Section 52(1) ............................................................................................... 3–4, 319 Human Rights Act 1977 .............................................................................................6

Table of Legislation xxvii Hong Kong Basic Law Article 39............................................................................................... 158, 238–39 Article 87....................................................................................................... 238–39 Bill of Rights Ordinance 1991 Preamble..............................................................................................................158 Section 3 ........................................................................................ 237–38, 401, 539 Section 4 ........................................................................................ 237–38, 401, 539 Ireland European Convention on Human Rights Act 2003 .............................................1, 520 Preamble..............................................................................................................154 Section 1 ........................................................................................ 335–36, 341, 371 Section 2 ..............................................................................................372, 397, 398 Section 3 ........................................................................ 326, 335, 371, 451–52, 484 Section 3A ..................................................................................................... 484–85 Section 4 .......................................................................................... 154–55, 253–54 Section 5 ........................................................................................................ 538–39 Section 6 ........................................................................................ 155, 254, 471–72 Irish Equality and Human Rights Commission Act 2014 ..................................11, 484 Human Rights Commission Act 2000 .....................................................................472 Interpretation Act 2005 Section 5 ..............................................................................................................395 Section 6 ........................................................................................................ 395–96 Section 18 ............................................................................................................395 Irish Constitution 1937 Article 15......................................................................................... 86, 113–14, 115 Article 26...............................................................................................................86 Article 29.....................................................................................................113, 115 Article 34.......................................................................................................86, 372 Article 40....................................................................................................... 454–56 New Zealand Bill of Rights 1688 ............................................................................................90, 458 Civil and Criminal Justice Statute 1354.....................................................................90 Crimes of Torture Act 1989 ....................................................................................153 Criminal and Civil Justice Statute 1351.....................................................................90 Criminal Justice Act 1985 .......................................................................................104 Habeas Corpus Act 2001 ..........................................................................................91 Human Rights Act 1993 ......................................................................... 6–7, 444, 519 Preamble..............................................................................................................153 Section 20L..........................................................................................................246 Section 92G .........................................................................................................468 Section 92H .........................................................................................................469 Section 92I...........................................................................................................481 Section 92J .................................................................................................... 520–21 Section 92K .................................................................................................538, 540 Section 92M ................................................................................................481, 504

xxviii

Table of Legislation

Section 92O ................................................................................................... 481–82 Human Rights Amendment Act 2001 .........................................................................7 Interpretation Act 1999 Section 5 ..............................................................................................................394 Section 7 ..............................................................................................................104 Section 29 ............................................................................................................322 Judicature Act 1908 Schedule 2, High Court Rules ..............................................................................469 Lawyers and Conveyancers Act 2006 ........................................................................87 Magna Carta 1297 ....................................................................................................90 New Zealand Bill of Rights Act 1990............................................................ 1, 4–6, 22 Preamble..............................................................................................................153 Section 3 ......................................................................................333, 342, 343, 371 Section 4 ..............................................................................................322, 340, 538 Section 5 ..............................................................................................................218 Section 6 ......................................................................................................340, 397 Section 7 ..............................................................................................................294 Section 21 ............................................................................................................219 Section 22 ............................................................................................................219 Section 25(g)........................................................................................................104 Section 28 ............................................................................................................376 Section 29 ............................................................................................................462 Observance of Due Process of Law Statute 1368.......................................................90 Official Information Act 1982 .................................................................................367 Ombudsmen Act 1975 ...................................................................................... 366–67 Petition of Right 1627 ...............................................................................................90 Prisoners’ and Victims’ Claims Act 2005 .................................................................505 Supreme Court Act 2003.....................................................................................18, 87 United Nations Act 1946 ..................................................................................99, 188 South Africa Interim Constitution of 1993 Section 7 ..............................................................................................465, 487, 494 Section 33 ............................................................................................................220 Section 35 ............................................................................................................255 Section 98 ....................................................................................................496, 526 South African Constitution 1996 Section 2 ................................................................................................................86 Section 8 ..............................................................................................368, 372, 465 Section 33 ............................................................................................................466 Section 36 ....................................................................................................220, 372 Section 37 ...................................................................................................... 221–22 Section 38 ...............................................................................................465, 486-87 Section 39 ....................................................................................158, 255, 372, 377 Section 165 ............................................................................................................86 Section 167 ....................................................................................................86, 496 Section 172 ............................................................................................ 487, 525–26 Section 231 ..................................................................................................144, 145 Section 233 ..........................................................................................................144

Table of Legislation xxix United Kingdom Bill of Rights 1688 ....................................................................................................90 Canada Act 1982 ........................................................................................................3 Care Act 2014, section 73 .......................................................................................360 Civil and Criminal Justice Statute 1354.....................................................................90 Constitutional Reform Act 2005 .........................................................................87, 89 Constitutional Reform and Governance Act 2010...................................................119 Convention Rights (Compliance) (Scotland) Act 2001 ............................................542 Convention Rights Proceedings (Amendment) (Scotland) Act 2009 ........................450 Criminal and Civil Justice Statute 1351.....................................................................90 Damages (Asbestos-related Conditions) (Scotland) Act 2009 .................... 179–83, 464 Equality Act 2006 .............................................................................10, 365, 448, 470 European Communities Act 1972 ...........................................................................188 Section 2 ........................................................................................................ 129–33 Freedom of Information Act 2000..................................................................... 365–66 Government of Wales Act 1998 ................................................................................10 Section 107 ..................................................................................................177, 398 Government of Wales Act 2006 ................................................................................10 Section 81 ....................................................................177, 179, 335, 450, 451, 484 Section 82 ............................................................................................................178 Section 94 ............................................................................................177, 335, 398 Section 101 ..........................................................................................................178 Section 108 .......................................................................................177-78, 398–99 Section 110 ..........................................................................................................297 Section 111 ..........................................................................................................298 Section 112 ..........................................................................................................297 Section 114 ..........................................................................................................178 Section 153 ..........................................................................................179, 471, 525 Section 154 ..................................................................................................179, 400 Section 158 ..........................................................................................................177 Human Rights Act 1998 ....................................................... 1, 7–9, 154, 253, 519–20 Preamble..............................................................................................................153 Section 2 ................................................................................................ 153–54, 253 Section 3 ......................................................................................322, 397, 398, 538 Section 4 ......................................................................................................521, 538 Section 5 ..............................................................................................................470 Section 6 ........................................................................ 322, 333–34, 341, 342, 371 Section 7 ................................................................................ 334, 445, 447–48, 451 Section 8 ................................................................................ 253, 334, 451, 482–83 Section 9 ..............................................................................................334, 446, 483 Section 10 ............................................................................................................541 Section 11 ............................................................................................................377 Section 19 ............................................................................................................295 Section 22 ....................................................................................................448, 475 Interpretation Act 1978...........................................................................................396 Magna Carta 1215 ...................................................................................... 89–90, 382 Magna Carta 1297 ....................................................................................................90 Northern Ireland Act 1998........................................................................................10 Section 6 ..............................................................................................177, 334, 398

xxx

Table of Legislation

Section 9 ........................................................................................................ 296–97 Section 10 ............................................................................................................297 Section 11 ............................................................................................................297 Section 13 ............................................................................................................298 Section 14 ............................................................................................................178 Section 24 ....................................................................................................178, 334 Section 26 ............................................................................................................178 Section 68 ............................................................................................................318 Section 69 .............................................................................................. 318, 450–51 Section 70 ............................................................................................................450 Section 71 ....................................................................................179, 450, 451, 484 Section 75 ............................................................................................................335 Section 76 ............................................................................................................335 Section 80 ............................................................................................................525 Section 81 ............................................................................................179, 471, 525 Section 83 ....................................................................................................179, 399 Observance of Due Process of Law Statute 1368.......................................................90 Petition of Right 1627 ...............................................................................................90 Race Relations Act 1976 .........................................................................................366 Scotland Act 1998 Section 28 ............................................................................................................176 Section 29 ............................................................................................176, 334, 398 Section 31 ............................................................................................................296 Section 33 ............................................................................................................296 Section 35 ............................................................................................................178 Section 36 ............................................................................................................298 Section 57 ....................................................................................................178, 335 Section 58 ............................................................................................................178 Section 100 ...................................................................... 179, 448–50, 451, 483–84 Section 101 ..................................................................................................179, 399 Section 102 .............................................................................. 179, 470–71, 523–24 Section 126 ..........................................................................................................176 Scottish Commission for Human Rights Act 2006 ....................................10, 318, 451 Senior Courts Act 1981, Section 29.........................................................................446 United Nations Act 1946 .................................................................................. 98–103 United States of America Constitution Article VI ....................................................................................................... 114–15 USC 42, section 1983 ......................................................................................454, 487

Table of Treaties and Other International Documents African Charter on Human and People’s Rights 1981 and Protocol of 1998 .............63 Article 27.............................................................................................................206 Article 28.............................................................................................................206 Article 29.............................................................................................................207 American Convention on Human Rights 1969..........................................................63 Article 32.............................................................................................................206 Charter of Fundamental Rights of the European Union 2000 ...................................36 Article 51...............................................................................................................36 Article 52.....................................................................................................207, 208 Article 53...............................................................................................................36 Article 54.............................................................................................................207 Charter of the Commonwealth 2013.........................................................................28 Charter of the United Nations 1945 Article 1...........................................................................................................24, 25 Article 2.................................................................................................................25 Article 7...........................................................................................................25, 61 Article 13.........................................................................................................25, 61 Article 22...............................................................................................................61 Article 28...............................................................................................................34 Article 41...............................................................................................................98 Article 55...............................................................................................................24 Article 56...............................................................................................................24 Article 62.........................................................................................................26, 61 Article 110.............................................................................................................23 Preamble.......................................................................................................... 23–24 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, and Optional Protocol 2002 ..................................................................................................18, 37 Article 1.................................................................................................................47 Article 2.................................................................................................................48 Article 3...........................................................................................................48, 56 Article 4...........................................................................................................49, 57 Article 5...........................................................................................................49, 57 Article 6..................................................................................................... 49–50, 57 Article 7...........................................................................................................50, 57 Article 8...........................................................................................................50, 57 Article 9...........................................................................................................50, 57 Article 10...............................................................................................................51 Article 11...............................................................................................................51 Article 12...............................................................................................................57 Article 13...............................................................................................................57 Article 14...............................................................................................................57

xxxii

Table of Treaties and Other International Documents

Article 15...............................................................................................................51 Article 16...............................................................................................................51 Article 17...............................................................................................................62 Article 19...............................................................................................................65 Article 21...............................................................................................................74 Article 22...............................................................................................................74 OP Article 5...........................................................................................................62 OP Article 17.........................................................................................................59 OP Article 18.........................................................................................................59 OP Article 19...................................................................................................52, 59 OP Article 20................................................................................................... 59–60 OP Article 21.........................................................................................................60 OP Article 22.........................................................................................................60 OP Article 23.........................................................................................................60 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 ........ 127–28 Convention on Human Rights and Biomedicine 1997 ...............................................35 Convention on Preventing and Combating Violence against Women and Domestic Violence 2011 ....................................................................35 Convention on the Elimination of All Forms of Discrimination Against Women 1979 and Optional Protocol 1979 .........................................18, 37 Article 2..................................................................................................... 41–42, 56 Article 3.................................................................................................................42 Article 4.................................................................................................................42 Article 5.................................................................................................................42 Article 17...............................................................................................................62 Article 18...............................................................................................................65 Article 23...............................................................................................................47 Article 24...............................................................................................................41 OP Art 4 .......................................................................................................... 73–74 OP Art 7 ................................................................................................................82 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007 .....................................................................35 Convention on the Rights of Persons with Disabilities 2006 and Optional Protocol 2006 ....................................................................18, 37, 217 Article 2........................................................................................................... 44–45 Article 4...........................................................................................................43, 47 Article 5.................................................................................................................44 Article 6.................................................................................................................44 Article 7.................................................................................................................44 Article 8.................................................................................................................45 Article 9........................................................................................................... 45–46 Article 13.......................................................................................................46, 217 Article 33......................................................................................................... 46–47 Article 34...............................................................................................................62 Article 35...............................................................................................................65 Article 45.............................................................................................................216 OP Article 1...........................................................................................................75 OP Article 2...........................................................................................................75 OP Article 3..................................................................................................... 75–76

Table of Treaties and Other International Documents xxxiii OP Article 4...........................................................................................................76 OP Article 5...........................................................................................................76 OP Article 11.........................................................................................................76 OP Article 12.........................................................................................................76 Preamble.......................................................................................................... 42–43 Convention on the Rights of the Child 1989 and Optional Protocol on a Communication Procedure 2011 ................................... 18, 37, 74–75 Article 3.................................................................................................................56 Article 9.................................................................................................................56 Article 43...............................................................................................................62 Article 45...............................................................................................................65 Declaration on the Rights of Indigenous People .......................................... 61, 378–79 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 ........................................................34 Article 1.................................................................................................................63 European Convention on Human Rights 1950 (and numerous Optional Protocols) ...........................................................................................7, 11 Article 1.................................................................................................................29 Article 2................................................................................. 195, 198, 202, 329–30 Article 3......................................................................................... 194, 201, 329–30 Article 4......................................................................... 194, 195, 201, 202, 329–30 Article 5................................................................................. 195, 198, 203, 329–31 Article 5.4............................................................................................................478 Article 5.5..............................................................................................................55 Article 6.......................................................................................194, 195, 201, 217 Article 7...............................................................................................196, 200, 204 Article 8...............................................................................................196, 198, 204 Article 9...............................................................................194, 196, 198, 201, 204 Article 10.............................................................................................196, 198, 204 Article 11.............................................................................................196, 198, 204 Article 12.............................................................................................................197 Article 13................................................................................. 54, 327, 361–64, 493 Article 14.....................................................................................................197, 202 Article 15.............................................................................................................200 Article 16.............................................................................................................198 Article 17.............................................................................................................199 Article 18.............................................................................................................199 Article 19...............................................................................................................31 Article 33.........................................................................................................31, 67 Article 34........................................................................... 31, 67, 331–32, 348, 364 Article 35......................................................................................................... 67–68 Article 41...............................................................................................................78 Article 46.......................................................................................................31, 264 Article 59...............................................................................................................36 Article 52...............................................................................................................65 Article 53.............................................................................................................377 Preamble.................................................................................................. 28–29, 194 Protocol 1, Article 1 ....................................................................................194, 197 Protocol 1, Article 3 ............................................................................................194 Protocol 4, Article 1 ....................................................................................195, 201

xxxiv

Table of Treaties and Other International Documents

Protocol 4, Article 2 ............................................................................................197 Protocol 4, Article 3 ....................................................................................195, 203 Protocol 4, Article 4 ....................................................................................195, 198 Protocol 7, Article 2 ............................................................................................198 Protocol 7, Article 3 ......................................................................................55, 198 European Social Charter 1961 and 1996, and Optional Protocol.................. 35–36, 66 Framework Convention for the Protection of National Minorities ............................35 International Convention on the Elimination of All Forms of Racial Discrimination ..................................................................................18, 36 Article 2.................................................................................................................39 Article 3.................................................................................................................39 Article 4........................................................................................................... 40–41 Article 5........................................................................................................... 39–40 Article 6.................................................................................................................56 Article 7.................................................................................................................41 Article 8.................................................................................................................62 Article 9.................................................................................................................64 Article 11...............................................................................................................72 Article 14......................................................................................................... 72–73 International Covenant on Civil and Political Rights 1966 and Optional Protocol 1966 ..................................................................5, 13, 18, 36 Article 1......................................................................................................... 205–06 Article 2.1......................................................................................................32, 202 Article 2.2........................................................................................................32, 83 Article 2.3................................................................................................ 54–55, 327 Article 3...............................................................................................................202 Article 4...............................................................................................................205 Article 5.......................................................................................................205, 378 Article 6................................................................................................. 202, 329–30 Article 7................................................................................................. 200, 329–30 Article 8......................................................................................... 201, 202, 329–30 Article 9................................................................................................. 203, 329–31 Article 9.4............................................................................................................478 Article 9.5..............................................................................................................55 Article 10.....................................................................................................201, 203 Article 11.............................................................................................................201 Article 12.............................................................................................................203 Article 13.............................................................................................................203 Article 14.....................................................................................................201, 203 Article 14.6............................................................................................................55 Article 15.............................................................................................................204 Article 16.............................................................................................................201 Article 17.............................................................................................................205 Article 18.....................................................................................................201, 205 Article 19.....................................................................................................201, 205 Article 20.............................................................................................................204 Article 21.............................................................................................................204 Article 22.............................................................................................................204 Article 23.............................................................................................................202 Article 24.............................................................................................................202

Table of Treaties and Other International Documents xxxv Article 25.............................................................................................................204 Article 26.............................................................................................................202 Article 27.............................................................................................................202 Article 28......................................................................................................... 62–63 Article 40......................................................................................................... 63–64 Article 41................................................................................................... 68–69, 70 OP Article 1...........................................................................................................69 OP Article 2..................................................................................................... 69–70 OP Article 4...........................................................................................................70 OP Article 5...........................................................................................................70 Preamble................................................................................................................32 International Covenant on Economic, Social and Cultural Rights 1966 .................................................................................13, 18, 36 Article 2.................................................................................................................37 Statute of the Council of Europe 1949 Article 1.................................................................................................................26 Statute of the International Court of Justice Article 38.............................................................................................................110 Universal Declaration on Human Rights 1948 Article 1.................................................................................................................27 Article 2.........................................................................................................28, 197 Article 3...............................................................................................................195 Article 4...............................................................................................................195 Article 6...............................................................................................................201 Article 7...............................................................................................................197 Article 8.................................................................................................................54 Article 9...............................................................................................................195 Article 10.............................................................................................................195 Article 11.............................................................................................................195 Article 12.....................................................................................................193, 196 Article 13.............................................................................................................197 Article 16.............................................................................................................197 Article 17.............................................................................................................197 Article 18.............................................................................................................196 Article 19.............................................................................................................196 Article 20.............................................................................................................196 Article 28.........................................................................................................28, 53 Article 29.......................................................................................27, 193, 196, 199 Preamble................................................................................................................27 Vienna Convention on the Law of Treaties 1969 Article 27.......................................................................................................53, 332 Article 31.............................................................................................................214

1 Introduction: Aims and Outline I.

The Statutes Outlined .............................................................................6 A. The Canadian Bill of Rights 1960 and Charter of Rights and Freedoms 1982 ..........................................................6 B. The New Zealand Bill of Rights Act 1990 and Human Rights Act 1993 ................................................................12 C. UK—The Human Rights Act 1998 ................................................18 D. Ireland—The European Convention on Human Rights Act 2003 ........................................................................................23 E. Australian Capital Territory—The Human Rights Act 2004 ........................................................................................29 F. Victoria—Charter of Human Rights and Responsibilities Act 2006 ........................................................................................32 G. Australia—Human Rights (Parliamentary Scrutiny) Act 2011 ........................................................................................35

II. The Questions to be Explored ..............................................................37

In 1990 the New Zealand Parliament enacted the New Zealand Bill of Rights Act (NZBORA).1 It purported to protect fundamental rights through a statute that did not claim to be a form of higher law: and as such, it did not compromise the ability of the Parliament to breach those fundamental rights if it so chose, even though that would be contrary to the country’s international obligations. There was a precursor in the form of the Canadian Bill of Rights Act 1960. Canada was to adopt a supreme law approach to the protection of human rights, in the form of the Canadian Charter of Rights and Freedoms 1982, part of the Constitution Act 1982. This was planned for New Zealand, but did not achieve the necessary political support. The New Zealand statute’s methodology has been followed by the UK (Human Rights Act 1998, and also in various statutes devolving powers to some of the constituent jurisdictions of the country), Ireland (European Convention on Human Rights Act 2003), the Australian Capital Territory (ACT) (Human Rights Act 2004) and Victoria (Charter of Human Rights and Responsibilities Act 2006).

1 So called because the Bill of Rights 1688, the English statute, remains part of the statute law of New Zealand.

1

2

2 3

This book is concerned with the methodologies in these statutes. They have various commonalities: (i) (ii)

(iii) (iv)

(v)

(vi) 4

5

Introduction: Aims and Outline

They accept the relevance of international human rights standards. They impose or have given rise to processes whereby the legislature has to be alerted to potential concerns about the compatibility of proposed legislation with the relevant human rights standards.2 An interpretive obligation is placed on the courts to strive to find a rights-compliant outcome. A corollary of the this third feature combined with the lack of supreme law status for the statutes is that an outcome not compliant with rights standards remains possible, and will be a valid law. There is a prohibition on public bodies acting in a way that breaches fundamental rights unless the law (as subject to the interpretive obligation) requires it. There are enforcement processes.

Inevitably, questions arise as to the correct interpretation of these statutes. Whilst most of the debate is in relation to what the substantive rights require, the mechanics adopted have also come in for scrutiny. The aim of this text is to review the questions of interpretation of the mechanics; and to do so in the international and comparative context in which they occur, namely that the statutes each make reference to the international context and the precursors from other jurisdictions are acknowledged. In order better to outline some of the questions of mechanics that have arisen, the statutes themselves will be described.

I. THE STATUTES OUTLINED

A. The Canadian Bill of Rights 1960 and Charter of Rights and Freedoms 1982 6

7

The Canadian Bill of Rights 1960 and its supreme law effective replacement, the Canadian Charter of Rights and Freedoms 1982, were of central importance in the development of the New Zealand Bill of Rights Act 1990. This latter statute is the modern starting point for the other statutory bills of rights: but it would not be right to avoid giving appropriate recognition to its Canadian forebears. It is perhaps not surprising that the first statutory bill of rights would come from Canada in 1960, given the developments in the neighbouring USA, which was beginning the active period of human rights protection with the Supreme Court headed by Chief Justice Warren, who took up that office in

2 See also the Australian Commonwealth statute the Human Rights (Parliamentary Scrutiny) Act 2011, described below.

The Statutes Outlined

3

1953.3 Its purpose, as set in its preamble, reveals one of the tensions arising, namely the respective role of the courts and legislators. The preamble states that:

8

The Parliament of Canada, ... being desirous of enshrining ... human rights and fundamental freedoms ... in a Bill of Rights which shall reflect the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada.

This affirms the centrality of those rights in the constitutional setting, but it also confirms that Parliament has the ultimate authority in this context. This provides a reminder of the difference with the USA and the power of the courts in this regard. Certainly, the mechanisms of the statute made clear that, whilst the judges had an important interpretive role, the legislature retained the final say. The methodology adopted was as follows: (i)

(ii) (iii)

(iv)

(v)

There was a declaration that rights ‘have existed and shall continue to exist’ which was combined with the reminder that this situation had to be ‘without discrimination by reason of race, national origin, colour, religion or sex’. Those rights were listed.4 Section 5, it should be noted, preserves other rights. An interpretive obligation was imposed by section 2, that statutes ‘be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared’.5 However, Parliament was able to override these fundamental rights: section 2 noted that the rights to be secured by interpretation were subject to Parliament requiring that a statute ‘shall operate notwithstanding the Canadian Bill of Rights’. It was also provided that Parliament should have the relevant information before legislating: section 3 required that regulations and Bills be reviewed by the Minister of Justice to identify and report to the House of Commons on any inconsistency with the Bill of Rights.

Canada was to decide on supreme law protection for human rights. Section 52(1) of the Constitution Act 19826 asserts that ‘The Constitution of Canada 3

The famous school segregation case of Brown v Board of Education 347 US 483 was in 1954. The rights to life, liberty, security of the person, property, equality before the law, and the freedoms of religion, speech, assembly and association, and of the press. 5 Section 2 sets out interpretations that would be prohibited, including detention that was arbitrary and treatment or punishment that was cruel and unusual; and it noted procedural rights that should be guaranteed for people arrested or detained or involved in court proceedings. 6 Schedule B to the UK Parliament’s Canada Act 1982, under which the UK Parliament relinquished any further legislative mandate for Canada; the preamble to the Act notes that it was passed at the request and with the consent of Canada. The UK Parliament granted independence to many former colonies in the second half of the twentieth century, typically on the basis of a Constitution with built-in protection of fundamental rights. The decolonisation process was 4

9

10

4

11

Introduction: Aims and Outline

is the supreme law of Canada’ and sets out that the consequence of this is that ‘any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’. Section 52(2) and a schedule set out the various parts of the Constitution, in a non-exhaustive fashion.7 They include the British North America Act 1867, which was renamed the Constitution Act 1867, and which states in its preamble that various provinces wished to become federal dominions ‘with a Constitution similar in Principle to that of the United Kingdom’. Fundamental rights protection is found in Part 1 of the Constitution Act 1982, the Canadian Charter of Rights and Freedoms. However, it also has an important feature in common with the Canadian Bill of Rights, namely the ‘notwithstanding clause’; and it contained a general limiting clause in relation to the rights set out, which was also to be adopted in New Zealand, the ACT and Victoria. The Charter’s mechanisms are as follows: (i) (ii)

(iii)

(iv) (v)

It sets out a list of fundamental freedoms and rights.8 The rights are expressed in ways that make clear they belong to everyone or all citizens, and so they impose obligations on others, including public officials. These rights are subject to a general limitation clause in section 1, namely the rights can be ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Under the heading ‘application of Charter’, section 32 provides that it applies to the Federal and provincial legislatures. However, section 33 allows these legislatures to expressly declare that a statute or provision in a statute ‘shall operate notwithstanding’ the various rights: this can before a five year period, which can be renewed.

B. The New Zealand Bill of Rights Act 1990 and Human Rights Act 1993 12

The New Zealand Bill of Rights Act 1990 was initially proposed as legislation of higher law status that would require a 75 per cent vote in Parliament or a majority in a referendum to be amended or repealed:9 but, after an extended period of discussion, it passed as a normal statute with no claim for special status. encouraged by the United Nations, at the same time as it was also developing human rights norms, as described in Chapter 2. 7 See New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 for discussion of the additional elements of the Constitution (on the basis that section 52(2) is not a comprehensive list). 8 They are the rights to freedom of conscience, religion, thought, belief, opinion and expression, assembly and association; the right to vote; mobility rights; the right to life, liberty, security of person, no unreasonable search and seizure or arbitrary detention, and rights on detention to reasons, to counsel and to seek habeas corpus; various fair trial rights; the right not to be subject to cruel and unusual treatment or punishment; and various equality rights. 9 This is described in Chapter 4.

The Statutes Outlined

5

It is a relatively short 29-section statute, the majority of which—Part 2—sets out various civil and political rights. Its mechanics, mainly contained in Part 1, are as follows: (i) The purpose, according to its preamble, is to affirm the country’s commitment to the International Covenant on Civil and Political Rights 1966 (ICCPR) (which is discussed in Chapter 2) and to ‘affirm, protect and promote human rights and fundamental freedoms’. (ii) It affirms the rights set out (section 2);10 other rights are expressly preserved (section 28). (iii) It applies to the acts of the legislative, executive and judicial branches of government and anyone performing a public function (section 3). (iv) But it confirms that a statute that is inconsistent with the Bill of Rights remains valid (section 4). (v) There is a general limiting clause, namely any rights and freedoms can be limited if that is ‘demonstrably justified’ (section 5). (vi) It imposes an interpretive obligation on judges to seek to find a rightsconsistent meaning whenever that can be done (section 6). (vii) It requires the Attorney-General to report on Bills that appear to be inconsistent (section 7). (viii) One final element to note is that it is expressly provided that legal persons can benefit, which is not required by the ICCPR (section 29).11 This clearly borrows from the Canadian Bill of Rights 1960 in several regards: — — — — —

13

the rights are similar; they are declared in a way that indicates that they already exist rather than that they are new; judicial interpretation to avoid a breach of rights is key; but there is no claim to prevent parliamentary breaching of rights; and to assist the parliamentary process, there is to be a review by a suitable government minister.

In addition, the New Zealand statute borrows the process of a general limitation clause from the Canadian Charter 1982.

10 These are the rights to life (section 8), to be free from torture or cruel treatment (section 9), to be free from medical or scientific experimentation (section 10), to be able to withhold consent to medical treatment (section 11), to vote (section 12), to freedom of thought, conscience and religion (section 13), to freedom of expression (section 14), to be able to manifest religion and belief (section 15), to assemble peacefully (section 16), to associate (section 17), to move (section 18), to be free from discrimination (section 19), to enjoy the culture, practise the religion and use the language of a minority grouping of which one is a member (section 20), and to enjoy various rights in criminal investigations and trials and other court proceedings (sections 21 to 27—though one of these, the right to liberty in section 22, is of wider application, as is the right to justice in section 27). Missing is a general right to privacy, though freedom from unreasonable search and seizure is set out in section 21 and the autonomy right in relation to medical treatment is set out in section 11. 11 See Chapter 2 and Chapter 9; note that whilst the ICCPR does not apply to legal persons, the European Convention on Human Rights (ECHR) is not so limited.

14

6 15

Introduction: Aims and Outline There are some developments from the Canadian model: (i)

(ii)

(iii)

16

There is an express reference to the international framework; the rights listed are affirmed, rather than there being any suggestion that they are created, but the reference in the preamble to the commitment to the ICCPR supports the view that the rights have an international pedigree as well. There is clarification that all public bodies are covered; this is perhaps implicit in the Canadian Bill of Rights, and more obviously so in the Charter. The ‘notwithstanding’ clause is omitted: of course, a sufficiently clear indication in legislative language can exclude an interpretation that gives priority to a right (and without it being limited in time).

The New Zealand regime also includes the Human Rights Act 1993.12 This continues the existence of the Human Rights Commission (which had been established by the Human Rights Commission Act 1977) and sets its functions. It also provides a detailed prohibition on discrimination and methodology for dealing with that. This right to non-discrimination is one of the rights contained in the NZBORA. The following aspects of the 1993 Act are worth noting: (i) The preamble notes that its purpose includes the provision of ‘better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights’. (ii) The Human Rights Commission is given the remit of advocating and promoting respect for human rights in the country and also of securing harmonious relations within the country, and has a number of specific powers and duties designed to secure that, including by promoting understanding and holding inquiries (section 5). (iii) It may also bring legal proceedings (section 5); an Office of Human Rights Proceedings is established to assist with the latter (section 20). (iv) The Commission receives complaints about breaches of the non-discrimination provisions of the statute, and if they are not resolved the matter may be taken by the complainant or the Office of Human Rights Proceedings to the Human Rights Review Tribunal (the existence of which is continued under Part 4 of the statute). (v) If the Tribunal finds a breach of the non-discrimination provisions, it may award appropriate relief, including injunctions, damages or declarations (and the person against whom the complaint is made can seek a declaration that there was no breach of the Act); there are appeal routes to the High Court. (vi) The declaratory power includes that of declaring a statute inconsistent with non-discrimination standards. (vii) Such a declaration has to be reported to Parliament. 12 Note that Canada also has its Human Rights Act 1977, which indicates in its preamble that its purpose is to extend the prohibition on discrimination, and establishes the Canadian Human Rights Commission and a Human Rights Review Tribunal to adjudicate on disputes arising.

The Statutes Outlined

7

The Human Rights Act 1993 contains express provisions as to remedies that are absent from the NZBORA; as noted, one of those remedies is the power to grant a declaration that a statute breaches the non-discrimination obligation, which has to be reported to Parliament to allow a decision to be taken as to corrective action. This power was added by the Human Rights Amendment Act 2001, which also applied the non-discrimination provisions to central government (adding Part 1A to the 1993 Act).

17

C. UK—The Human Rights Act 1998 Next in the chronology of statutes, the Human Rights Act 1998 followed the model adopted by the NZBORA, with some modifications and supplements. It is somewhat longer, with 22 sections supplemented by four schedules. Its key features are as follows: (i)

(ii)

(iii) (iv)

(v)

There is purposive reference in the preamble to transnational obligations, namely those arising under the European Convention on Human Rights 1950 (ECHR) (which is described in Chapter 2). The relevant rights are set out by reference to selected rights in the ECHR, which are set out in a schedule;13 a Minister may amend the Act to allow additional rights set out in protocols to the ECHR to be secured under the Act (section 1(4)). Other rights are expressly preserved (section 11). The ECHR-based rights are subject to any derogation or reservation (section 1); the making or continuation of such derogations or reservations is governed by sections 14–17, including time limits and reviews. The jurisprudence of the bodies that exist under the ECHR must be taken into account (section 2(1)); the statute also makes provision for the method of appointing the UK judge to the European Court of Human Rights (ECtHR) (section 18).

13 Section 1 of the Act defines the relevant provisions of the ECHR, which are set out in Schedule 1. They are the rights to life (Article 2; and note also that the Thirteenth Protocol, which abolishes the death penalty in any circumstance, was added to the Schedule by the Human Rights Act 1998 (Amendment) Order 2004, SI 2004/1574, to reflect the ratification of the Thirteenth Protocol in place of the Sixth Protocol, which allowed the death penalty in time of war); to be free from torture or inhuman or degrading treatment or punishment (Article 3); to be free from slavery or forced labour (Article 4); to liberty, including ancillary protections (Article 5); to a fair trial, including various specifics in a criminal context (Article 6); to be free from retrospective criminalisation or heavier penalties (Article 7); to respect for private and family life (Article 8); to freedom of thought, conscience and religion (Article 9); to freedom of expression (Article 10); to peaceful assembly and association (Article 11); to marry and found a family (Article 12); to freedom from discrimination in relation to other fundamental rights (Article 14); to peaceful enjoyment of property (Protocol 1, Article 1); to education (Protocol 1, Article 2); to free elections (Protocol 1, Article 3). Also included are Article 16 (allows restrictions to be imposed on the political activity of those from overseas, notwithstanding Articles 10, 11 and 14), Article 17 (prevents the misuse of rights so as to limit the rights of others beyond what is permitted), and Article 18 (any limitations on rights cannot be misused).

18

8

Introduction: Aims and Outline

(vi) A strong interpretive obligation is imposed to find a Conventioncompliant reading of statutes (both primary14 and secondary) ‘so far as it is possible to do so’ (section 3). (vii) If the process of interpretation of a primary statute cannot secure compatibility, a declaration of incompatibility can be granted by the higher courts; in relation to secondary legislation, the declaration can be made if primary legislation requires the incompatible situation (section 4). (viii) The Crown is entitled to intervene in any proceedings which might lead to a declaration of incompatibility and so must be given notice (section 5). (ix) The incompatible legislation must be followed (section 4(6)), but a Minister may amend it if there are ‘compelling reasons’ to do so (section 10).15 (x) It is unlawful for a public authority to act incompatibly with the Convention rights set out in the statute unless primary legislation requires it (section 6). (xi) This unlawfulness can be raised as a defence but can also give rise to proceedings by any victim of the breach of Convention rights (section 7), which may lead to a remedy including damages (section 8), even against a court if there was a deprivation of liberty (section 9(3)).16 (xii) Proposed legislation promoted by the government must be accompanied by a statement to Parliament from the relevant Minister that the Bill is compatible with the Convention rights or, if not compatible, that it is wished that Parliament proceed in any event. 19

Again there are a number of clear similarities with the NZBORA: — — — — —

20

there is the clear reference to international obligations; other rights are expressly preserved; the application to the various branches of the state and those carrying out public functions is similar; there is a strong interpretive obligation; but the legislature has retained the power to breach rights (and hence the relevant international obligation).

There are also some substantial differences, including some additions and other elements that have been removed: (i) The first difference is the reliance on the ECHR; the UK is a party to the ICCPR,17 but it does not recognise the jurisdiction of the UN Human Rights Committee to consider individual complaints under the First Optional Protocol to the ICCPR;18 however, applications can be made to the 14 It is defined very widely in section 21 to include not just Acts of Parliament but also a Measure of the Church Assembly or the General Synod of the Church of England and also an Order in Council reflecting prerogative powers. 15 This is also permitted if there is a finding by the ECtHR that legislation breaches the Convention. 16 Section 12 notes the importance of freedom of expression if any relief is being considered that might impinge on that right; and section 13 that special regard be had to the right of freedom of thought, conscience and religion when issues arise relating to religious organisations. 17 See Chapter 2. 18 ibid; most other parties to the ECHR also allow complaints under the ICCPR.

The Statutes Outlined

(ii)

(iii) (iv)

(v) (vi)

(vii)

9

ECtHR, and part of the rationale for the statute was to domesticate complaints that were otherwise being argued before the ECtHR.19 There is no attempt to define rights to reflect those guaranteed in international law (and indeed there is no indication that the rights already exist and so are merely being affirmed): rather the rights set out in the international treaty are simply incorporated;20 this is also explained by the purpose of allowing arguments based on the ECHR to be resolved in the domestic courts. There is no general limiting clause; this is also explained by the reliance on the text of the international treaty.21 There is no express indication in the UK statute that both legal and natural persons are covered, but this is readily explicable by the fact that the ECHR may be used by ‘non-governmental organisations’ and so includes corporations; accordingly, the UK statute did not need to make clear that legal persons were also covered. The courts are obliged, not merely given a power, to take into account jurisprudence arising from the relevant international bodies. There is express language relating to remedy provisions, including the declaration of incompatibility, missing under the NZBORA but present in relation to discrimination complaints under the Human Rights Act 1993 (NZ) following the latter’s substantial amendment after the UK legislation was introduced. The statements to Parliament differ in several respects as between the two jurisdictions, although there is the similarity that there is no indication of the detail that is required: (a) in the UK, they come not from the Attorney-General but from the Minister in charge of the Bill; (b) they are limited to government bills; (c) the UK statute refers to a statement of either compatibility or not, whereas the New Zealand obligation is limited to inconsistency.

Three other parts of the UK regime should be noted. In the first place, the Westminster Parliament appointed a Joint Committee on Human Rights to carry out scrutiny of proposed legislation for human rights matters; this supplements any statutory obligation placed on Ministers as to statements.22 Secondly, the legislative programme of which the Human Rights Act 1998 was part also included devolution legislation for Scotland, Wales and Northern Ireland. More specifically, the devolved assemblies are limited in relation to the rights protected under the ECHR: they have no power to breach them. The Scottish Parliament and the Northern Ireland Assembly have no competence

19

See Chapter 4. There is also the language relating to and regulating derogations and reservations, which is missing in the New Zealand statute. 21 The explanation for the different approaches to the definition of the substance of rights, where the ICCPR and the ECHR are similar but differ from their predecessor, the Universal Declaration of Human Rights 1948, is developed in Chapter 5. 22 See Chapter 6. 20

21

10

22

Introduction: Aims and Outline

to pass legislation that breaches the ECHR: and a purported legislative measure that was outside competence will not be valid.23 Similarly, the Welsh Assembly cannot pass secondary legislation in breach; and now that it has some primary legislative powers, those statutes are also invalid if there is a breach of the ECHR.24 In addition, there are restrictions on executive actions, to the effect that there is no power to make secondary legislation or take any other action that breaches the ECHR.25 Finally, there is also provision for national human rights institutions. The Commission for Equality and Human Rights is established by the Equality Act 2006, its functions under section 3 including developing respect for and protection of human rights; section 9 indicates that this covers both rights guaranteed under the ECHR and Human Rights Act 1998 and other human rights. It replaced three previous commissions, being the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. The merged Commission operates in England, Scotland and Wales; in Scotland there is also the Scottish Commission for Human Rights, established by the Scottish Commission for Human Rights Act 2006 with the duty of promoting human rights (both the ECHR and other rights) and best practice in human rights matters. In Northern Ireland, similar functions are exercised by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which were both established as part of the devolution legislation, the Northern Ireland Act 1998.26

D. Ireland—The European Convention on Human Rights Act 2003 23

The Irish legislature’s introduction of a non-higher law statute is interesting in light of the existence of a supreme law Constitution that has some protection for fundamental rights that might have been supplemented. Instead, the Oireachtas chose to offer protection to additional human rights by adopting the statutory model of the strong interpretive obligation. Of course, it is easier to pass a statute than amend a constitution: the process in Ireland requires a Bill passed through its parliamentary stages and an approving referendum,27

23

Section 29 of the Scotland Act 1998, and section 6 of the Northern Ireland Act 1998. Section 107 of the Government of Wales Act 1998 for the initial position; section 81 of the Government of Wales Act 2006 repeats this, and section 94 provides the limits of legislative competence for the Assembly’s Measures. 25 Section 57 of the Scotland Act 1998; section 24 of the Northern Ireland Act 1998; and section 81 of the Government of Wales Act 2006. 26 Paragraph 5 of Part 6 of the Belfast Agreement of 10 April 1998 between the UK and Ireland—the Good Friday Agreement—contains an agreement as to the establishment of the Human Rights Commission and the Equality Commission; para 9 entails the Irish government doing the same. (Available at www.gov.uk/government/publications/the-belfast-agreement (last accessed 4 April 2014).) 27 Article 46 of the Constitution of Ireland 1937. 24

The Statutes Outlined

11

but there have been a significant number of amendments, including in relation to various aspects of Irish integration with the European Union. The Irish statute, the European Convention on Human Rights Act 2003, is more akin to the New Zealand model in terms of its length. Its mechanics are as follows: (i) The purpose noted in the preamble is of giving effect to international obligations (though it is made clear that this is subject to the Constitution). (ii) The rights which are domesticated are various ones set out in the ECHR or its protocols (section 1 and various schedules).28 (iii) This is subject to any derogation (section 1). (iv) Judicial notice is to be taken of the Convention and the jurisprudence of the Convention bodies to assist this, giving ‘due account’ to their rulings (section 4). (v) There is a strong interpretive obligation: ‘in so far as is possible’ a compatible interpretation shall be given in relation to any statute or rule of law but the obligation is itself subject to rules of law relating to interpretation (section 2). (vi) If this interpretive obligation does not run, a declaration of incompatibility may be made in relation to any statute or rule of law (section 5). (vii) The Attorney-General and the Human Rights Commission may intervene in proceedings that may lead to a declaration of incompatibility (section 6). (viii) Such a declaration shall be laid before the Oireachtas (section 5). (ix) Organs of the state have to perform their functions in a manner that is compatible with human rights obligations unless a statutory provision requires otherwise (section 3). (x) A breach of these obligations can lead to proceedings and damages (section 3). (xi) When a declaration of incompatibility is granted, whilst the law remains in effect, an application may be made to the Attorney-General for ex gratia compensation for any damage caused by the situation (section 5).

28 Section 1 defines the Convention rights covered as those in the ECHR and Protocols 1, 4, 6 and 7; these are set out in full in schedules 1–5 to the Act. In addition to the rights covered in the UK statute, listed at n 13 above, the Irish statute has the right to an effective remedy (Article 13), the prohibition on imprisonment for debt (Protocol 4, Article 1), freedom of movement (Protocol 4, Article 2), the right of nationals to enter and be in their territory (Protocol 4, Article 3), the prohibition on the collective expulsion of non-nationals (Protocol 4, Article 4), procedural rights in deportation cases (Protocol 7, Article 1), the right to appeal in criminal cases (Protocol 7, Article 2), the right to compensation for a miscarriage of justice (Protocol 7, Article 3), the prohibition of double jeopardy (Protocol 7, Article 4), and equality between spouses (Protocol 7, Article 5). The non-death penalty provision was the Sixth Protocol, which allows it in wartime, rather than the complete abolition in the Thirteenth Protocol. This was changed by the Irish Human Rights and Equality Commission Act 2014, which updated the scheduled provisions to cover amendments to the Convention and add the Thirteenth Protocol.

24

12 25

A review of the mechanics of the 2003 Act shows its similarities with the New Zealand and/or UK precursors. These include the following elements that are express in both of these earlier statutes: — — — —

26

Introduction: Aims and Outline

there is the clear reference to international obligations; the statute applies to the various branches of the state; there is a strong interpretive obligation; but the legislature has retained the power to breach rights (and hence the relevant international obligation).

Some of the matters added to the statutory language in the UK are also found suitable for the Irish regime: (i) The transnational law that is incorporated is the ECHR;29 although Ireland is also a party to the ICCPR, and more importantly follows the majority of European countries in allowing complaints to be taken to the Human Rights Committee of the UN under the First Optional Protocol,30 the purpose behind the statute is to allow arguments in the Irish courts that would otherwise occur in Strasbourg. (ii) Due account has to be given to ECHR case law. (iii) Breaches of rights by organs of the state may lead to a remedy in damages if not protected by a statute. (iv) Declarations of inconsistency can be granted if the interpretive obligation cannot secure compliance with rights. (v) There is a right for central government to intervene in proceedings that might lead to a declaration.

27

There are also some noticeable modifications: (i) First, the interpretive obligation in section 2 also covers any rule of law, which section 1 defines to include the common law; but it is itself subject to rules of law. (ii) Secondly, there are a number of modifications to the regime relating to declarations of incompatibility: (a) the Human Rights Commission is also given a right to intervene in the proceedings; (b) there is a remedy provision where a declaration of incompatibility is granted, in the form of the possibility to apply for ex gratia compensation; (c) there is no power for a Minister to take action on the making of a declaration of incompatibility; rather, there is an express requirement that the legislature be alerted. (iii) Among the additional rights incorporated in the 2003 Act is the Article 13 ECHR right to an effective remedy, which is absent from the UK statute.

29 The use of the ECHR text means that there is no need for general limiting language of the sort found in the NZBORA. 30 See Chapter 2.

The Statutes Outlined

13

(iv) Missing is an express indication that other rights are preserved, save those in the Constitution; however, it would be an unusual construction to suggest that other rights recognised in the law are removed by implication. (v) There is no requirement for parliamentarians to be advised as to the compatibility or not of proposed legislation with the ECHR.31 The Irish Human Rights Commission was established by the Human Rights Commission Act 2000 to promote human rights as set out in the Irish Constitution and also in any international treaties to which Ireland is a party; there is also an Equality Authority. At the time of writing, there is a proposal to merge the two bodies, and a Bill to achieve that is before the legislature.

28

E. Australian Capital Territory—The Human Rights Act 2004 The ACT was the first Australian jurisdiction to adopt the New Zealand approach.32 Its Human Rights Act 2004, which has been subject to some amendments, involves the following elements: (i) Although the preamble makes various comments about the importance of human rights without acknowledging any purpose of implementing international obligations (which would be a function of the Commonwealth Parliament), the statute contains a clear acknowledgement of the international basis for the rights involved: whilst it sets out in Part 3 a list of civil and political rights, and since an amendment in 2012, it also lists a single economic, social and cultural right in Part 3A, being a right to education, it also contains the following: (a) Schedules 1 and 2, which list, respectively, tables setting out which article of the ICCPR and which article of the International Covenant on Economic Social and Cultural Rights (ICESCR) provide the equivalent right in international law;33 (b) a statutory note at the outset of Part 3, which notes that the primary source of the rights listed is the ICCPR, and a similar note at the outset of Part 3A, which credits the ICESCR; (c) section 7, which notes that the Act is not exhaustive of rights and indicates that there are other rights under the ICCPR and the ICESCR. (ii) It sets out the various rights guaranteed.34

31

However, see Chapter 5: it is an accepted function of the Attorney-General. Australia is a State Party to the ICCPR, and allows complaints to be taken under its Optional Protocol: see Chapter 2. 33 Whilst the right to education is part of the First Protocol to the ECHR, which is a convention concerned with civil and political rights, education is classed as an economic, social and cultural right in the UN treaty system. 34 Section 5 of the Act defines ‘human rights’ for the purposes of the statute as the civil and political rights set out in Part 3 and the economic, social and cultural rights in Part 3A. The rights guaranteed are: recognition and equality before the law (section 8), life (section 9), no torture or 32

29

14

Introduction: Aims and Outline

(iii) There is a general limiting clause (section 28). (iv) It is made clear that only individuals have rights (section 6). (v) It is also made clear that there are other rights, including those in international law (section 7). (vi) The statute expressly applies to all the laws of the ACT (section 29). (vii) This application to laws is accompanied by an interpretive obligation on the courts, namely that ‘so far as it is possible to do so’ the law should be construed so as to comply with human rights; however, it is added that this must be ‘consistently with its purpose’ (section 30).35 (viii) In carrying out the task of interpretation, foreign and international court and tribunal judgments may be taken into account, but there is guidance on the factors relevant to the exercise of this discretion (section 31). (ix) The Attorney-General may intervene in any proceedings relating to the application of the Act (section 35) and the Human Rights Commission may seek leave to intervene (section 36). (x) If the interpretive obligation does not succeed in securing a rights-compliant outcome, a declaration of incompatibility can be granted (section 32). (xi) The Attorney-General and Human Rights Commission must be given notice of any proceedings that may lead to such a declaration (section 34). (xii) If a declaration of incompatibility is granted, the Attorney-General must present it to the legislature and then report on it (section 33). (xiii) Public authorities and those carrying out public functions may not act in breach of human rights unless required to do so by the law (section 40B).36 (xiv) There is significant guidance given on what amounts to a public authority and public function (sections 40 and 40A); and bodies may apply to be considered public authorities (section 40D). (xv) Legal proceedings can be taken (section 40C). (xvi) It is expressly indicated that damages cannot be awarded unless they arise under another cause of action (section 40C(4)–(5)). (xvii) The Attorney-General has to provide written statements as to the compatibility or otherwise of government Bills before the legislative assembly (section 37).

inhuman or degrading treatment, including non-consensual medical or scientific experimentation (section 10), protection of the family and children (section 11), protection of privacy and reputation (section 12), freedom of movement (section 13), freedom of thought, conscience and religion (section 14), assembly and association (section 15), holding and expressing opinions (section 16), taking part in public life (by citizens) (section 17), liberty and security of person and humane treatment in detention (sections 18 and 19), fair trial rights and specific rights in the criminal process, including additional rights for children (sections 20–25), no slavery or forced labour (section 26), and rights for minorities (section 27). There is also the right to education (section 27A). 35 This interpretive obligation was reworded under the Human Rights Amendment Act 2008 to add the ‘consistently with its purpose’ language. This occurred after the enactment of the Victorian Charter of Rights and Responsibilities 2006, which has similar language. 36 These express remedy provisions were added by the Human Rights Amendment Act 2008.

The Statutes Outlined

15

(xviii) A standing committee of the Legislative Assembly has to consider the human rights implications of any Bill (section 38). (xix) Various review processes were established: (a) the initial version of the statute required the operation of the Act as a whole to be reviewed in 2006 and 2009; (b) there is a process for reviewing the effect of territory laws on human rights, involving its Human Rights Commission and the Attorney-General (section 41); (c) the addition of the right to education has brought with it an obligation on the Attorney-General to review the situation of economic, social and cultural rights in 2014 (section 43). The Human Rights Commission in the territory was set up by the Human Rights Commission Act 2005. It has the function of promoting the Human Rights Act 2004 and also the Equality Act 1991. As is clear from the outline, the Human Rights Act 2004 builds on what had gone before, and involves a significant number of clarifications and extensions, and also some restrictions:

30

31

(i) There is the clear indication that people in the ACT have rights that arise from international sources. (ii) There is an express limitation that the rights being protected are those of individuals only, which is consistent with the international obligation on Australia, but narrower than the choice made in New Zealand. (iii) There is the express indication that the strong interpretive obligation is accompanied by the need to remain faithful to the purpose of the legislation being construed. (iv) Decisions as to the use of international and comparative case law to assist in the meaning of rights is a discretionary matter and factors relevant to the discretion are set out. (v) There is also significant guidance on what is meant by a public body or a body exercising public functions. (vi) Remedies that can be granted under the statute for a breach of rights do not include damages. (vii) There is a legislative obligation for Parliament to have a human rights scrutiny mechanism. (viii) Reviews of the operation of the statute are required.

F. Victoria—Charter of Human Rights and Responsibilities Act 2006 The ACT legislation was followed after a couple of years by Victoria, which adopted the Charter of Human Rights and Responsibilities Act 2006 (which in turn inspired some amendments to the ACT statute). Its structure involves the following elements: (i) Its sets its purpose as being the protection and promotion of civil and political rights (section 1; section 3 contains the limitation of civil and political rights).

32

16

Introduction: Aims and Outline

(ii) (iii) (iv) (v) (vi)

(vii)

(viii)

(ix) (x)

(xi) (xii)

(xiii)

(xiv) (xv) (xvi)

(xvii)

The rights are set out in Part 2 of the Charter.37 It is made clear that only individuals have rights (section 6). There is an express limitation clause (section 7(2)). In addition, there is also an express power given to Parliament to override the application of the Charter (sections 1(3)(a) and 31).38 It is noted expressly that other rights continue to exist, and they may arise under international law, the common law, the Victorian Constitution and Australian Commonwealth law (section 5). There is the strong interpretive obligation in relation to legislative provisions, expressed as ‘so far as it is possible to do so consistently with their purpose’ (sections 1(2)(b) and 32(1)). It is made clear in section 49, the transitional provisions section, that past and future legislation is covered, and so this interpretive obligation has retrospective effect. It is noted that in applying the interpretive obligation, international and comparative jurisprudence may be considered (section 32(2)). There is also a process for lower courts and tribunals to refer cases to the Supreme Court of Victoria (the higher court in the State) to deal with questions arising under the statute (section 33). The Attorney-General may intervene in such proceedings; and notice is to be given to the Equality and Human Rights Commission (sections 34–35). If the interpretive obligation does not allow a right to be secured, declarations of inconsistent interpretation may be granted, unless the legislative override has been used (sections 1(2)(d) and 36). The Attorney-General and the Equality and Human Rights Commission are given the chance to intervene if such a declaration is being considered (section 36). If a declaration is made, the Minister in charge of the relevant legislation has to respond to it and cause the legislature to be informed (section 37). There is a duty on public authorities not to breach human rights in their public actions unless the law requires it (sections 1(2)(c) and 38). There is considerable guidance as to what is a public authority (sections 4 and 6(2)); it is made clear that religious bodies cannot be required to act against their beliefs (section 38). Legal proceedings may be brought to seek a remedy (though it has to be an existing cause of action) (section 39).

37 The rights guaranteed are: recognition and equality before the law (section 8), life (section 9), no torture or inhuman or degrading treatment, including non-consensual medical or scientific experimentation (section 10), no slavery or forced labour (section 11), freedom of movement (section 12), protection of privacy and reputation (section 13), freedom of thought, conscience and religion (section 14), holding and expressing opinions (section 15), assembly and association (section 16), protection of the family and children (section 17), taking part in public life (section 18), cultural and minority rights (section 19), property rights (section 20), liberty and security of person and humane treatment in detention (sections 21 and 22), and fair trial rights and specific rights in the criminal process, including additional rights for children (sections 23–27). 38 In addition, section 48 makes clear that the law relating to abortion and child destruction is not changed.

The Statutes Outlined

17

(xviii) Damages may not be awarded for a breach of the Charter (section 39(3), but may arise from the other cause of action (section 39(4)). (xix) Statements of compatibility are required from any person introducing legislation (sections 1(2)(d) and 28). (xx) There is also a requirement of scrutiny by a parliamentary committee (sections 1(2)(d) and 30). (xxi) There is a requirement that the Charter be reviewed after four and eight years, including as to whether it should be extended in scope (sections 44 and 45).39 The Charter also changes the former Equal Opportunity Commission into the Victorian Equal Opportunity and Human Rights Commission (by amending the Equal Opportunity Act 1995) and grants it additional functions (sections 1(3)(b) and 40–43). As was the case with the ACT legislation, the Victorian Charter reflects what had gone before but makes various modifications and clarifications, and takes some things away. These points of difference are as follows: (i) There is a clear statement of rights arising from other sources being preserved (including at that point a reference to rights arising from international sources); but, aside from the natural implication arising from the fact that international jurisprudence may be relevant, there is much less of an emphasis in the legislative language of the value of international human rights law. (ii) As in the ACT, there is an express limitation that the rights being protected are those of individuals only, as is the ICCPR obligation. (iii) There is the express indication that the strong interpretive obligation is accompanied by the need to remain faithful to the purpose of the legislation being construed, which was then adopted in the ACT by a legislative amendment. (iv) There is also significant guidance on what is meant by a public body or a body exercising public functions. (v) The remedy provision depends on other causes of action rather than being a fresh one. (vi) There is a legislative obligation for Parliament to have a human rights scrutiny mechanism. (vii) But the need for statements of compatibility as to Bills being introduced to the legislature is on whoever introduces the Bill. (viii) There is also the express legislative override provision (which is borrowed from the Canadian Bill of Rights and Charter). (ix) Reviews of the operation of the statute are required, as in the ACT.

39 The first review was carried out in 2011 by the Equality and Human Rights Commission; the government response was that the Charter remain with some slight modifications: available at www.parliament.vic.gov.au/sarc/article/1446 (last accessed 22 October 2014).

33

34

18

Introduction: Aims and Outline

G. Australia—Human Rights (Parliamentary Scrutiny) Act 2011 35

Although the Commonwealth of Australia does not have a bill of rights, there is legislation that introduces a regime of scrutiny for compliance of Commonwealth Bills with human rights standards, which borrows from the mechanisms that feature in the statutes described above or in supplemental practice. The Human Rights (Parliamentary Scrutiny) Act 2011 contains the following mechanisms: (i) It establishes a Parliamentary Joint Committee on Human Rights to examine Bills for human rights compliance (sections 4–7). (ii) It requires those who propose legislation to make statements as to the compatibility of a Bill with human rights; there is a similar regime in relation to legislative instruments (sections 8 and 9).

36

It is to be noted that the human rights that are covered by this legislation are the entirety of Australia’s obligations under the main UN human rights treaties, which are described in Chapter 2: (i) the International Convention on the Elimination of All Forms of Racial Discrimination 1965; (ii) the ICESCR 1966; (iii) the ICCPR 1966; (iv) the Convention on the Elimination of All Forms of Discrimination Against Women 1979; (v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; (vi) the Convention on the Rights of the Child 1989; (vii) the Convention on the Rights of Persons with Disabilities 2006.

II. THE QUESTIONS TO BE EXPLORED

37

Whilst the UK and New Zealand follow a constitutional theory that the legislature can do anything (subject to arguable limits that would be so heinous that no judge would allow the statute to be enforced),40 the contrasting tradition of a legislature being bound by a supreme law constitution is followed in Ireland and Australia, and since 1982 in Canada. The latter has a full range of civil and political fundamental rights; Ireland has a limited number in express terms, and Australia none (at least none that are express). Although the

40 Note that when New Zealand decided to remove the jurisdiction of the Privy Council as the final appellate court and establish its own Supreme Court, section 3(2) of the Supreme Court Act 2003 (NZ) noted that the statute did not affect ‘New Zealand’s continuing commitment to … the sovereignty of Parliament’. There is also the Constitution Act 1986 (NZ), which regulates matters such as requiring the Executive to be formed from Parliament and indicating that Parliament has full power to make laws, confirming the Westminster model.

The Questions to be Explored

19

protections being considered in this text are not in supreme law constitutional documents (and even the Canadian situation is one that allows legislatures to override fundamental rights), the different constitutional settings must be borne in mind.41 All the countries noted follow a dualist tradition such that international treaty law is not part of domestic law,42 but have declared themselves to be bound by international human rights standards. In this context, whilst there are varieties in the mechanics in the various bills of rights statutes, the common purpose of protecting human rights and the similarities in the methodologies, a comparative analysis may illuminate controversies that have arisen at the macro and micro level. At the latter level, there have been questions arising as to the proper understanding of various of the mechanics. For example, how far does the concept of a public body go, given the expansion of areas where there some form of state intervention and the countervailing extension of the process of privatising operations previously carried out by a governmental body? This might be assisted by knowing what happens under the other statutes. Another example may be how far the interpretive obligation goes. This interpretive obligation also illustrates the more macro level of tension, which revolves around the propriety of judicial involvement and whether it goes far enough or too far. Some prefer supreme law protection for human rights, and may find that the interpretive obligation is inadequate because the legislature should not be allowed to breach fundamental rights (perhaps particularly as that is impermissible as a matter of international law). Others prefer that legislatures should have the power to determine the content of rights and so are concerned that interpretive obligations be constrained so as not to give too much power to the judiciary, often citing the lack of a democratic mandate for that. What underlies this debate is the fact that the interpretive power has two elements to it. The first is to determine the substantive content of the right in play; the second is to decide whether legislative language is on its normal reading consistent with these standards and, if not, whether there is some other reading available. Since the rights in question are invariably stated at a relatively high level of principle and often involve a balancing process, there may be room for differences of view as to what they mean. Moreover, these meanings may change over time. Who should determine the appropriate priority to the competing elements? If it is to be the judges, which is what these statutes indicate, what level of deference should they give to the elected branch of the state in this regard? A central part of the context for these statutes is the growth of international legal standards designed to secure fundamental rights across national 41 This book cannot do justice to the subtleties of all the constitutional traditions in the several countries with which it is concerned. 42 The USA provides a contrast in that Article 6 of its Constitution makes international treaties part of domestic law.

38

39

40

41

20

42

43

44

Introduction: Aims and Outline

boundaries. These standards are split into two broad categories, those which are civil and political in nature and those which are economic, social and cultural. The former are the ones to which the bills of rights statutes are designed to give effect; they can be found in such treaties as the ICCPR and the ECHR, which are described in Chapter 2. They are designed to secure the imperative identified in the aftermath of the Second World War of the need to have enforceable protection for human rights, both in international and domestic law. Most countries have engaged fully with the international regimes, including those which have statutory bills of rights. Indeed, as noted, a common feature of the statutes is a legislative purpose of giving effect to these international obligations. This is why the first substantive chapter of this book examines the state obligation as to compliance. Neither the ECHR nor the ICCPR require direct incorporation. This puts the focus on the domestic arrangements, but also raises the question of the extent to which the content of rights is determined internationally or pursuant to domestic sovereignty. Since the international obligations have existed for longer than the various bills of rights statutes, there are also questions of the extent to which there was compliance in any event, which may raise whether the statutes consolidate or develop what already existed. There is an interplay between the different features of the various bills of rights statutes. For example, acts of public authorities that breach the fundamental rights protected will be unlawful unless the authorities are required so to act by another statute (or perhaps another rule of law): but this involves reviewing the extent to which the interpretive obligation allows an apparently inconsistent legal provision or rule to be interpreted in a rights-compliant fashion. And the permissible extent of interpretation may turn on the material that has been put in front of the legislature for them to determine whether or not their perception is that rights-compliant language is being used. In short, the questions discussed are often interlinked. As such, the book could take various orders. However, the following order is used. — Chapter 2 sets out the general obligation to guarantee the standards set out in international human rights treaties, and in particular those involving the civil and political rights that are typically in play; and the specific obligation to have an effective domestic remedy. It also notes the international monitoring regime that is designed to ensure that the international obligation is respected. — Chapter 3 examines the extent to which this obligation was met through common law traditions, including the interpretive techniques of legality and taking into account international treaty obligations; the limits of this are noted. — Chapter 4 notes the indications given by the various legislatures as to their purposes in introducing the various statutes. — Chapter 5 turns to the question of how the substance of the meaning of the rights is worked out, including the relationship between the

The Questions to be Explored

— — — — — —

21

international tribunals and domestic bodies, and the roles of legislative and judicial bodies within the domestic regime. Chapter 6 examines the mechanism designed to ensure compliance with the international obligation in the legislative process. Chapter 7 turns to the question of which bodies are bound to respect the bills of rights statutes, noting the context of state liability at the international level. Chapter 8 deals with the technique that is central to the judicial armoury of seeking to ensure an outcome compliant with rights, namely the interpretive obligation. Chapter 9 examines the processes in place to allow rights standards to be litigated in the domestic arena, noting the main points of procedural law that have arisen. Chapter 10 reviews the remedies that are available, both when a breach of rights is found and also when the courts meet a statute that cannot be construed to support rights. Finally, Chapter 11 seeks to draw some brief conclusions about the extent to which the statutes and the case law interpreting them have met their purposes.

2 The Obligation to Secure Internationally Recognised Human Rights I.

The International Human Rights Regime and the Obligation in International Law to Guarantee Rights ............................4 A. The Background: the United Nations and the Council of Europe ......................................................................4 B. The Universal Declaration of Human Rights 1948 ........................15 C. The European Convention on Human Rights 1950 .......................19 D. The International Covenant on Civil and Political Rights 1966 ......................................................................28 E. Further Conventions—Council of Europe ......................................34 F. Further Conventions—United Nations ...........................................40 G. Purpose of This Material ...............................................................70

II. The Need for an Effective Domestic Remedy .......................................76 III. International Monitoring and Complaint Provisions ............................94 A. The Bodies Involved .......................................................................95 B. The Processes ...............................................................................101 i. Monitoring ............................................................................102 ii. Inquiries ................................................................................110 iii. Complaints ............................................................................112 C. Remedies in the International Mechanisms ..................................145 i. Compensation .......................................................................148 ii. Enforcement ..........................................................................158

1

The New Zealand Bill of Rights Act 1990 contains the indication in its preamble that it is designed to give effect to the country’s obligations under the International Covenant on Civil and Political Rights 1966; the Human Rights Act 2004 in the Australian Capital Territory gives the ICCPR as the source of most of the rights to which it gives effect. Both the UK’s Human Rights Act 1998 and Ireland’s European Convention on Human Rights Act 2003 have the clear aim of giving domestic effect to the ECHR. The Charter of Human Rights and Responsibilities Act 2006 in Victoria, whilst less clear about the matter on the face of the statute, does accept the value of case law arising under international human rights law; and the Explanatory Memorandum to the Bill opens with the indication that the civil and political rights protected ‘primarily derive from the International Covenant on Civil and Political Rights 1966’.

The International Human Rights Regime

23

So the clearly acknowledged background feature to all the statutes is international human rights law. This makes it germane to examine the obligation that arises as a matter of international law to guarantee the rights that are set out in the relevant treaties, that being relevant to a purposive approach to the statutes.1 A separate but related obligation reflects the fact that one of the substantive rights is that to an effective remedy if there has been a breach of rights, by which is meant the rights that have to be guaranteed. A third area to be noted is that the international regime also includes processes for monitoring compliance with the obligations set out in the relevant conventions: this reflects the imperative of ensuring that the rights set out are enjoyed in practice rather than just on paper.2

2

3

I. THE INTERNATIONAL HUMAN RIGHTS REGIME AND THE OBLIGATION IN INTERNATIONAL LAW TO GUARANTEE RIGHTS

A. The Background: the United Nations and the Council of Europe Naturally, there were human rights before the arrival of the United Nations. But for present purposes, it is appropriate to start with its formation because it represents a project by the international community to define standards that would be binding on all nations and, importantly, binding within those nations. The Council of Europe has a similar target. Importantly, this means that the international treaties that set human rights standards do not just govern relationships between the states that sign up to them but also contain solemn promises undertaken by the parties to ensure that domestic laws and practices are changed. The Charter of the United Nations3 is an international treaty. It came into effect, in accordance with Article 110, on its ratification by a majority of the signatories (plus China, the USSR, France, the UK and the USA). The relevant parts of its Preamble and Purposes are (with emphasis added): WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

1 As is described in Chapter 8, a purposive interpretation is the standard approach in the various jurisdictions, save for Ireland, which favours literal interpretation. 2 It also feeds into the question of the meaning of the rights, which is discussed in Chapter 5. 3 26 June 1945 (available at www.un.org/en/documents/charter/, last accessed 16 June 2013).

4

5

24

The Obligation to Secure Internationally Recognised Human Rights

to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED … Article 1 The Purposes of the United Nations are: 1.

2.

3.

4.

6

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and To be a center for harmonizing the actions of nations in the attainment of these common ends.

In short, there is an agreement that involves ensuring the progress of both human rights and the use of international mechanisms. This is given further recognition in Articles 55 and 56, under Chapter IX of the Charter, which is headed ‘International Economic and Social Cooperation’. Article 55 sets out that ‘stability and well-being’ are necessary for peace between nations, and so sets out a requirement for the UN to promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

7

This function of the UN is accompanied by the undertaking of the member states to take ‘joint and separate action in co-operation with the Organization’ to achieve these aims: Article 56.

The International Human Rights Regime

25

The Charter also recognises the value of state sovereignty, Article 2 noting:

8

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. … 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …

So domestic sovereignty remains central; but the context of this is an acceptance that the peaceful situation in which sovereignty can be safeguarded is to be built on international cooperation to achieve, among other things, respect for human rights. Any compromise over sovereignty in this context is a limitation on a state’s claim to be able to breach fundamental rights, something which should not occur in any event; an alternative view is that there has been an agreement that sovereignty will not be (mis-)used in certain respects and will be channelled into international cooperation is some areas. A further aspect of this is who is to decide the content of the rights that are described as fundamental; and what form of monitoring is to be provided. Article 1.3 of the UN Charter addresses this by indicating that the agreement undertaken by joining the UN, which is an exercise of national sovereignty, is to employ international machinery in some areas, including human rights protection. In short, there is a partnership between states in making the relevant decisions, exercised through a transnational mechanism. Other parts of the Charter set out the duties as to the development of human rights standards. Article 7.1 establishes as the ‘principal organs’ various bodies, namely ‘a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat’. The functions of the General Assembly and the Economic and Social Council, set out in Articles 13 and 62 respectively, include the following: Article 13 1.

The General Assembly shall initiate studies and make recommendations for the purpose of:

… b.

promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

9

10

11

26

The Obligation to Secure Internationally Recognised Human Rights

Article 62 1.

2. 3.

12

The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned. It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence.

In the European context, the Statute of the Council of Europe,4 similarly a treaty, also sets out a clear intention to put faith in transnational methods: Article 1 (a)

The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress. (b) This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

13

14

In short, states have exercised sovereign choices to enter obligations to respect internationally agreed and monitored standards in relation to matters such as human rights. Whilst there may be scope for disagreement on what those international rights involve, the essence of the settlement is that the benefits of having an international regime justify any friction in that regard. An example of this comes from what has become a vexed question in the UK of whether some prisoners should be allowed to vote (which requires an amendment to the long-established law of the UK). This has raised in very clear terms the sovereignty argument, because the UK position has been found to breach its obligations under the Council of Europe-sponsored European Convention on Human Rights, described below. An argument against complying with the international obligation has been that it should be for the UK to make the decision not to allow prisoners to vote, even if that breaches international obligations, because that is the UK’s right, as expressed through legislation. A Parliamentary Committee has addressed directly the question of whether sovereignty, which in the UK context (as in New Zealand) means the largely untrammelled power of the legislature to have a law that breaches international obligations, is defeated by compliance with the ECtHR’s understanding of the rights in question. The Joint Committee on the Draft 4 ETS No 001, en.asp&nd=&lg=en.

1949,

available

at

www.conventions.coe.int/?pg=/treaty/default_

The International Human Rights Regime

27

Voting Eligibility (Prisoners) Bill noted,5 under the heading ‘Parliamentary sovereignty and the European Court of Human Rights’ that it supported the views of the former Lord Chancellor, Lord Mackay of Clashfern, that ‘the principle of parliamentary sovereignty is not an argument against giving effect to the judgment of the European Court of Human Rights’. The reason for this was that: 6.

Parliament remains sovereign, but that sovereignty resides in Parliament’s power to withdraw from the Convention system; while we are part of that system we incur obligations that cannot be the subject of cherry picking. …

7.

A refusal to implement the Court’s judgment would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such an action as setting a precedent that they may wish to follow.

B. The Universal Declaration of Human Rights 1948 An early document promulgated by the General Assembly of the United Nations was the Universal Declaration of Human Rights (UDHR).6 Its preamble includes the indication that ‘... it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. The UDHR was proclaimed as:

15

16

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

This indicates that both individuals and all collective elements of society are to be bound: in short, it does not just involve standards that are binding on states. In addition, it is provided by Article 29.1 that ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’. The corollary of this obligation is the recognition of rights, which have as the starting point the indication in Article 1 that ‘All human beings are born free and equal in dignity and rights’. The UDHR lists a series of rights,

5 In recommending that prisoners serving 12 months or less be allowed to vote: see www. publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10312.htm. 6 Resolution 217(III) of 10 December 1948; the text is available at www.un.org/en/documents/ udhr/. It was passed by 48 votes to 0, but with 8 abstentions. Brownlie and Goodwin-Gill, in Basic Documents on Human Rights, 5th edn (Oxford University Press, 2006) 23, describe it as ‘not a legally binding instrument’ but note that ‘some of its provisions either constitute general principles of law … or represent elementary considerations of humanity’ and that it offers an authoritative guide to the interpretation of the Charter and so is often regarded as part of the law of the UN.

17

28

The Obligation to Secure Internationally Recognised Human Rights

but at the outset and towards the end of the list are indications of the need to ensure individual rights within the context of a collective entitlement: Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

18

The rights in the UDHR include those that became classified as civil and political on the one hand and economic, social and cultural on the other. One is that to an effective remedy, discussed below. Importantly, it also provides the starting point for the treaties that were put in place by the UN and the Council of Europe.7

C. The European Convention on Human Rights 1950 19

The Council of Europe was the first body to seek to turn the UDHR, or at least those parts of it setting out civil and political rights, into a treaty that contained binding obligations on the parties that chose to sign up to its terms. The European Convention on Human Rights8 indicates in its preamble that the agreement of the parties is based on the following features: … Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;

7 For Australia, New Zealand and the UK, it is worth recalling that the Charter of the Commonwealth 2013 includes in Part II the commitment to the UDHR as well as to other relevant instruments. 8 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950: CETS No 5; all Council of Europe treaties are available via www.conventions. coe.int. The ECHR has been amended by various protocols, including significant amendments brought about by Protocol No 11, ETS No 155: references are to the ECHR as amended unless otherwise indicated.

The International Human Rights Regime

29

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend; Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration …

The primary substantive obligation in the ECHR is to ensure the various rights set out.

20

Article 1—Obligation to respect human rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

The phrase ‘within their jurisdiction’ means not just the geographical territory of the state, but places over which de facto control is exercised, including as a result of a war or through such mechanisms as supporting a civil insurrection. An example of the former is the ruling of the ECtHR in Al-Skeini v UK9 to the effect that Iraqi civilians in the military zone controlled by UK forces during the US-led incursion into Iraq commencing in 2003 were in the jurisdiction of the UK and so entitled to the protections of the ECHR. An example of jurisdiction arising from support to parties in a civil war is provided by Ilascu and Others v Moldova and Russia,10 in which it was held that breaches of rights that occurred in a breakaway region, purporting to call itself the Moldovan Republic of Transdniestria, were the responsibility of Moldova because it had not done enough to secure its territory and prevent rights breaches, and also of the Russian Federation because of the practical support it gave to the illegal regime in the MRT. Article 1 does not require the text of the ECHR to be adopted, nor does it purport to breach any dualist legal taboo by being directly effective within a state. As Murray CJ of the Irish Supreme Court pointed out in McD v L and Another,11 ‘the Convention does not purport to be directly applicable in the national legal systems of the High Contracting Parties. Nor does the Convention require those parties to incorporate the provisions of the Convention as part of its domestic law’. As such, the obligation to secure rights means that ‘it is a matter for each Contracting Party to fulfil its obligations within the framework of its own constitution and laws’. He also noted that ‘Conceptually the Convention requires what most international instruments require, namely that the contracting parties take steps to introduce at national level measures giving

9

Al-Skeini v UK, App no 55721/07, (2011) 53 EHRR 18. Ilascu and Others v Moldova and Russia, App no 48787/99, (2005) 40 EHRR 46, [2007] Prison LR 42. 11 McD v L and Another [2009] IESC 81. 10

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30

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The Obligation to Secure Internationally Recognised Human Rights

effect to the obligations which they have undertaken’. The similar obligations in other conventions are noted below. As Lord Reed has noted in R (Osborn) v Parole Board,12 the relationship between domestic law and the ECHR reflects the fact that the expression of rights is at a ‘very high level of generality’, which means that the rights ‘have to be fulfilled at national level through a substantial body of much more specific domestic law’.13 Indeed, there are often requirements in the ECHR and other international documents that there be a domestic law in place to regulate a particular scenario, since otherwise there cannot be compliance with the obligation that an interference with a right be ‘in accordance with the law’ or ‘lawful’. So the international treaties work on the basis that domestic laws will be needed: this also allows the accommodation of the different ways of securing the same substantive right (to reflect local traditions) and the fact that where rights have to be balanced there may be different features in some countries that mean a different balance will be drawn which, provided that minimum rights standards are respected, allows different substantive rights to be enjoyed in different countries. These are the consequences of the margin of appreciation doctrine.14 Accordingly, in the context of sovereignty and human rights standards, there is no aim to harmonise laws. It remains for each country to decide how the required minimum standards are put in place, and whether to exceed those minima. The absence of direct effect has been noted as one of the factors in favour of the essential structure outlined in Chapter 1 of a strong interpretive obligation but with a retained ability to breach standards. So, the then-UK government’s White Paper in support of the Human Rights Bill15 noted that: 2.12 The Government has also considered the European Communities Act 1972 which provides for European law, in cases where that law has ‘direct effect’, to take precedence over domestic law. There is, however, an essential difference between European Community law and the European Convention on Human Rights, because it is a requirement of membership of the European Union that member States give priority to directly effective EC law in their own legal systems. There is no such requirement in the Convention.

25

This contains an implicit assertion of the right not to meet the international standard. Nevertheless, the context of the obligation to implement the ECHR in domestic law is the purpose set out in the preamble of giving effect to the UDHR’s principles in a way that is collective. This clearly involves an element of individual states transferring jurisdiction to the collective bodies established. This has developed over time because the jurisdiction of these collective bodies to consider claims of breaches of the ECHR initially turned on the 12

R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020. ibid at [55]. A constitutional bill of rights will invariably have the same structure. See, among many relevant authorities, Handyside v UK (1976) 1 EHRR 737, para 48 for an early indication of the existence of this doctrine. It is discussed further in chapter 5. 15 Rights Brought Home, cm 3782 (available at www.archive.official-documents.co.uk/ document/hoffice/rights/intro.htm). 13 14

The International Human Rights Regime

31

decision of the relevant state party (in accordance with Articles 25 and 44–48 of the ECHR as originally drafted). Following revisions to the structure of the collective bodies with the Eleventh Protocol to the ECHR, the jurisdiction of the ECtHR has become compulsory: Article 19 notes that its function is to ‘ensure the observance’ of the treaty obligations; and Articles 33 and 34 give it jurisdiction over cases referred to it by, respectively, states against states and individual, group or non-governmental organisations against states. In short, membership of the Council of Europe involves the agreement to allow the ECtHR to have the final say on questions of the meaning of the Convention (which comes together with an undertaking to abide by its rulings, set in Article 46).16 This enforcement process17 is outlined below;18 it centres on a complaint mechanism that can be invoked by states about other states (they being the traditional parties in international law) but also by individuals or legal persons about the situation within the country. The latter is the main source of material in front of the ECtHR, but it can only occur if domestic remedies have been exhausted.19 This is based on giving the states the first opportunity to ensure that rights are respected (which in turn reflects the substantive right to have a domestic remedy), thereby reflecting their sovereignty as to how to abide by their obligation. Ireland and the UK were among the signatories of the ECHR in Rome on 4 November 1950; it was ratified by the UK in March 1951 and by Ireland in February 1953.20 Although binding only as a matter of international law, its value under common law techniques is considered in Chapter 3. When the ECHR was further introduced into domestic law by the bills of rights statutes, both the UK and Ireland decided to make use of the text of the ECHR rather than restating the rights, as done in the Australasian statutes.

26

27

D. The International Covenant on Civil and Political Rights 1966 The International Covenant on Civil and Political Rights 196621 shares many features with the ECHR, including in relation to the purpose as set out in its 16 This reflects a long-standing doctrine of customary international law, now codified in Article 26 of the Vienna Convention on the Law of Treaties 1980, namely that States Parties have to perform a treaty in good faith. 17 Which is also an interpretation process: since the ECHR sets out statements of rights at a broad level of generality, an essential component of having the transnational mechanism is for the enunciation of the more detailed rules to which these rights give rise. See Chapter 5. 18 There is also a power given to the Council of Europe’s Secretary General, under Article 52 of the ECHR, to require a party to explain how rights are given effect. 19 This may suggest that the obligation to grant a domestic remedy has not been met: however, it might be that the domestic courts did not reach the same conclusion on the content of a right, including for reasons of deferring to the ECtHR on comity grounds, which is discussed in Chapter 5. 20 Full details, including text and current ratifications, are available at http://conventions.coe. int/ (last accessed 5 May 2014). 21 16 December 1966, 999 UNTS 171, entered into force 23 March 1976.

28

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The Obligation to Secure Internationally Recognised Human Rights

preamble and its basic obligation that the signatories should take steps to secure the rights set out: Preamble The States Parties to the Present Covenant, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant, Agree upon the following articles: PART II Article 2 1.

2.

29

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.22

So both the ECHR and the ICCPR expressly indicate that their purpose is to build upon the UDHR; this allows the contention that, whilst the terms of the two documents vary semantically, they aim to reflect the same substance and so jurisprudence arising under one may be of assistance under the other.23

22 See also Article 50, which indicates that ‘The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions’. 23 There are significant exceptions to this: for example, the free-standing right not to be discriminated against in Article 26 of the ICCPR was not replicated in the ECHR until the Twelfth Protocol, which was adopted in 2000, entered into force in 2005 for those states that had ratified it: CETS No 177, 4 November 2000, entered into force 1 April 2005; Ireland has signed but not ratified this as of April 2014, and the UK has not signed it. Another significant difference between

The International Human Rights Regime

33

Further, they both require that action be taken to guarantee the rights set out: the ICCPR is in more directive terms than the ECHR, in that Article 1 of the latter simply requires that the rights be secured whereas Article 2(2) of the ICCPR refers to the need for legislative or other measures to be put in place if rights are not already secured, as well as including language to the effect that the rights have to be guaranteed (Article 2(1)). The ICCPR notes that there is an obligation to secure rights for those who are in the territory of the state and subject to its jurisdiction. It could be suggested that this is narrower than the ECHR’s reference to being within the jurisdiction of the state, which as noted above has been held to include those not within the territory of a state where the state’s activities extend to operations outside its borders. However, this turns on whether the ‘and’ in ‘within its territory and subject to its jurisdiction’ is disjunctive or conjunctive. The former would better secure rights protection and has been adopted. In its general comment on ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’,24 the Human Rights Committee has noted:

30

10. States parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party. As indicated in general comment No 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum-seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. This principle also applies to those within the power or effective control of the forces of a State party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State party assigned to an international peacekeeping or peace-enforcement operation.

It is to be noted that, as is also the case in relation to the ECHR, there is no obligation to incorporate the text of the ICCPR directly into domestic law: this is an option but not a requirement, leaving it to the states to determine what to do (if, indeed, it is necessary to make any amendments to domestic law). So, whilst the UK and Ireland have proceeded by making use of the text of the ECHR in their domestic statutes, the Australasian jurisdictions have made use of their own language rather than using the ICCPR. The ICCPR also includes the obligation to provide an effective remedy, and there is an international mechanism in place. This is in the form of an

the two treaties is that Article 1 of the ICCPR is the guarantee of the right to self-determination of peoples, which can be seen as part of the decolonisation process; there is no similar right in the ECHR. 24

CCPR/C/21/Rev.1/Add.13, 26 May 2004.

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32

34

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The Obligation to Secure Internationally Recognised Human Rights

expert body, the Human Rights Committee, established under Article 28 of the ICCPR, which can hear inter-state and individual complaints if the state involved allows this.25 However, the central mechanism is the requirement on states to provide regular reports on their progress in guaranteeing rights in their system. This has led to the generation of ‘general comments’ on what the ICCPR requires: as appointment to the Committee depends on expertise in international human rights law (Article 28(2)), these represent the collective views of experts in international human rights law, and so amount to opinio iuris, one of the accepted sources of international law. Some mechanism is required because, as is the case with the ECHR, the ICCPR sets out statements of rights at a broad level of generality and so there has to be a more detailed explanation of what they entail. But the subsidiarity principle is applicable in relation to individual complaints through the substantive right to have an effective domestic remedy (discussed below) and the procedural point that any individual complaints are admissible only after domestic remedies have been exhausted (on which see Chapter 9). However, the reporting mechanism and its centrality makes it plain that there is an international process in any event. All the countries with bills of rights statutes are parties to the ICCPR. Australia signed on 18 December 1972 and ratified on 13 August 1980; Ireland signed on 1 October 1973 and ratified on 8 December 1989; New Zealand signed on 12 November 1968 and ratified on 28 December 1978; and the UK signed on 16 September 1968 and ratified on 20 May 1976, shortly after the treaty had become effective on its 35th ratification (Article 49). Canada acceded to the ICCPR on 19 May 1976.26 They thereby all became bound, though a number of reservations were entered as to substantive rights. In terms of the mechanics of implementation, the Australian government noted in a declaration that its federal structure meant that action would have to be taken by Commonwealth, State and Territory governments.

E. Further Conventions—Council of Europe 34

In addition to the various Protocols to the ECHR, some additional conventions have been promulgated by the Council of Europe, which can be seen to supplement the requirements of the ECHR and which tend to indicate in their preambles that they have regard to the ECHR as part of the reason for their promulgation. For example: (i) The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment27 sets out a framework to strengthen the protection of people from such treatment or punishment by establishing

25

See below. As noted above, the ECHR is not limited to natural persons; the ICCPR, however, is. Information on all ratifications is available from http://treaties.un.org/Pages/Treaties. aspx?id=4&subid=A&lang=en. 27 ETS No 126, Strasbourg 26 November 1987. Both Ireland and the UK have signed and ratified this Convention. 26

The International Human Rights Regime

(ii)

(iii)

(iv)

(v)

(vi)

35

an expert committee that visits places of detention and then makes recommendations as to improvements. Its reports have often been cited by the ECtHR in determining whether there has been a breach of Article 3 of the ECHR if the applicant has been detained in a location which the Committee has visited at around the relevant time, or in assessing such matters as what should be the minimum space allowed to detainees. The Framework Convention for the Protection of National Minorities,28 which notes that the protection of the rights and freedoms of national minorities is fundamental to the international human rights regime, includes in Section II of the Treaty various obligations, including measures to guarantee equality and mutual respect within society. The Convention on Human Rights and Biomedicine29 requires in Article 1 that ‘Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention’. The Convention on Action against Trafficking in Human Beings30 notes in Article 1 that its purpose is to protect the human rights of the victims of trafficking, and requires that appropriate steps be taken. The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse31 requires by Article 4 that ‘Each Party shall take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to protect children’ and contains various additional obligations as to legislation and policy on specific provisions that support this general aim. Not in force at the time of writing, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence32 has a similar mechanism, calling for appropriate legislative and policy action.

These Conventions build on the obligation to enforce by making necessary changes to domestic legislation or by adopting policies that support the rights involved, as is the central obligation in the ECHR. There is a separate Council of Europe treaty relating to economic, social and cultural rights. The text of the European Social Charter was adopted in 1961, and signed at the outset by both the UK and Ireland. Ratifications followed: in 1962 for the UK and 1964 for Ireland, which meant that both were bound by it from its entry into force in February 1965. A revised Charter from 1996 has been signed by both Ireland and the UK, but only Ireland has ratified it 28 ETS No 157, Strasbourg 1 February 1995. Both Ireland and the UK have signed and ratified this Convention. 29 ETS No 164, Oviedo 4 April 1997. Inter alia, it requires that interventions in the health field require free and informed consent (Article 5), though with an exception in mental health cases if serious harm to the health of the person is likely to result if there is no consent to treatment (Article 7). As at the time of writing, neither Ireland nor the UK has signed this Treaty. 30 CETS No 177, Warsaw 16 May 2005. Both Ireland and the UK have ratified this Treaty. 31 CETS No 201, Lanzarote 25 October 2007. As at the time of writing Ireland and the UK have signed but not ratified this Treaty. 32 CETS No 210, Istanbul 11 May 2011. As at the time of writing, the UK has signed this Treaty but Ireland has not; the UK has not yet ratified it.

35

36

36

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The Obligation to Secure Internationally Recognised Human Rights

(in 2000, meaning that it came into force in 2001); and there is an Optional Protocol from 1995 with a complaints mechanism, which Ireland has signed and ratified, but which the UK has not even signed. Another transnational rights instrument of note for the UK and Ireland is the European Union Charter, formally the Charter of Fundamental Rights of the European Union,33 which lays out various rights, both civil and political and economic, social and cultural. It provides that its scope is as follows: Article 51—Scope 1.

2.

38

The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.

This Charter gives precedence to the ECHR, and also other parts of international law, by noting in Article 53 that: Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

39

The EU, it is to be noted, is in the process of becoming a party to the ECHR: Article 59 of the ECHR as amended by Protocol No 14 provides for this to occur, which will mean that EU law and the actions of EU institutions will be subject to review by the ECtHR. F. Further Conventions—United Nations

40

The United Nations also has a series of human rights conventions. The ICCPR, as its name indicates, relates to civil and political rights. It built upon the UDHR, which contained both such rights and economic, social and cultural rights: the latter group of rights were given further effect in a separate treaty, the International Covenant on Economic, Social and Cultural Rights 1966.34 The UDHR, ICCPR and ICESCR together form the International Bill of Rights, and are supplemented by several other treaties, the main ones being: —

The International Convention on the Elimination of Racial Discrimination 1965 (ICERD)

33 European Parliament, Council and Commission, 18 December 2000, 2000/C 364/01. Available at www.europarl.europa.eu/charter/pdf/text_en.pdf. 34 16 December 1966, 993 UNTS 3, entered into force 3 January 1976.

The International Human Rights Regime — — — —

37

The Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) The Convention on the Rights of the Child 1989 (UNCRC) The Convention on the Rights of Persons with Disabilities 2006 (CRPD).35

These Conventions have been accepted by Australia, Canada, Ireland, New Zealand and the UK, save that as at the time of writing Ireland has not yet ratified the CRPD. Each of them contains obligations to amend domestic laws and policies should that be necessary—namely if there is non-compliance with the standards in the law as it stands—and to do so in a non-discriminatory fashion; the need for change may also extend to practices and the changing of attitudes. Since a distinction is drawn in relation to economic, social and cultural rights, which have to be secured over time rather than immediately, this is suggestive that other rights have to be secured immediately. Dealing first with the third element of the International Bill of Rights, the language of the general obligation to enforce in the ICESCR is as follows:

41

42

43

Article 2 1.

2.

3.

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.36 Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

The importance of this language is that if the particular standard is recognised as a right (and the ICESCR includes rights to work, social security, adequate living standards, health and education, as well as to culture and to benefit from scientific progress), then it ceases to be a matter for the discretion of the state and becomes a matter which has to be supported by the maximum of resources available within the state; moreover, it is also a matter that brings 35 There is also the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 and the International Convention for the Protection of all Persons from Enforced Disappearance 2006. All these treaties can be located at http://treaties.un.org/Pages/CTCTreaties.aspx?id=4&subid=A&lang=en. 36 Note also that Article 3 of the ICESCR provides that men and women shall have equal access to ESC rights.

44

38

45

46

The Obligation to Secure Internationally Recognised Human Rights

with it an obligation as to international assistance (from richer nations) and cooperation. The importance of this may be that the split between civil and political rights and those that are economic, social and cultural may have as its basis or cause the idea that there are standards that are not properly justiciable and so should not be incorporated into legal standards that might lead to arguments in a court setting. But the ICESCR is a legal document with standards that can be assessed and evidenced. Moreover, there is a clear obligation as to non-discrimination (which is not phrased as being subject to progressive realisation or limited by resources). Non-discrimination obligations are clearly justiciable. The other treaties give further effect to the substantive obligations contained in the International Bill of Rights, one in relation to the right not to be tortured, and the others in how to ensure that the substantive right not to be treated in a discriminatory fashion is given practical effect. One of these treaties, UNCRC, is limited to relatively general language setting out the obligation to enforce: Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.37

47

However, the others are marked by more specific language setting out indications as to what is required by the obligation to ensure that laws, policies and practices should be put in place to deal with the right in question. ICERD provides the early example of this: among other things, it requires that ‘appropriate means’ be used to end racial discrimination and promote equality, and gives indications as to what these means might entail. This includes ensuring that there shall be no racially based discrimination by public bodies, that its practice by private persons or groups shall be prohibited by legislation and other means (Article 2); this more general obligation is supplemented by more detailed requirements to ensure the absence of discrimination in relation 37 Article 2 includes a non-discrimination provision. Various rights might require specific action, including legislation: for example, Article 3 requires that the best interests of the child be a primary consideration in relation to all decisions; it also requires child protection and care provisions and requires that states ‘to this end, shall take all appropriate legislative and administrative measures’ (and Article 9 requires that any care proceedings include a process of judicial review). Also required by Article 11 are international agreements to combat the illicit transfer of children abroad; Article 12 requires that court processes be amended to allow children of sufficient maturity to be heard in proceedings that affect them; Article 19 requires ‘all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’. Article 34 supplements this with a requirement for national and international measures to protect from sexual abuse.

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39

to various rights (Article 5) and a particular condemnation of systematic segregationist and apartheid policies. The relevant language is as follows: Article 2 1.

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; (e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. Article 3 States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

40

The Obligation to Secure Internationally Recognised Human Rights

(c)

Political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one’s own, and to return to one’s country; (iii) The right to nationality; (iv) The right to marriage and choice of spouse; (v) The right to own property alone as well as in association with others; (vi) The right to inherit; (vii) The right to freedom of thought, conscience and religion; (viii) The right to freedom of opinion and expression; (ix) The right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; (ii) The right to form and join trade unions; (iii) The right to housing; (iv) The right to public health, medical care, social security and social services; (v) The right to education and training; (vi) The right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

48

ICERD also contains an obligation to create a criminal offence of inciting racial discrimination and to ban organisations that promote discrimination, with criminal sanctions. In short, the choice as to measures to deal with the problem is not a matter for the choice of the state: rather, there is an agreement that certain specific steps shall be taken. The relevant language is: Article 4 States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and

The International Human Rights Regime

(c)

41

shall recognize participation in such organizations or activities as an offence punishable by law; Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Part of the general obligation is that noted in Article 2(1)(e), which imposes positive obligations to encourage suitable integrationist movements. This is supplemented by Article 7, which notes:

49

Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

Similarly, in the context of entrenched gender-based discrimination, CEDAW contains a commitment to a policy to eliminate it, with various specific examples of what this requires, including changing any laws that involve discrimination, embodying the principle of equality in law (with an indication that this could be in a constitutional change), and having regimes involving legislation to prohibit gender-based discrimination and enforcement of the legislation. This is stated in the following terms:38 Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

38 See also CEDAW—Article 24, which provides a general obligation to adopt relevant measures: ‘States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention’.

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(f)

To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.

51

There is also a requirement that, in addition to preventing discrimination, positive steps should be taken to promote equality, which shall include legislation. In short, a state cannot decide simply to try to change attitudes. There is an indication that positive measures to ensure de facto equality are permitted temporarily. The relevant provisions are: Article 3 States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 4 1.

2.

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Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

The treaty does not rely only on formal legal requirements such as enforceable prohibitions; it is accepted that there must be steps that are taken, with legislative measures not excluded but not required, to ensure that attitudes are also changed. This is set out in Article 5: Article 5 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

53

The other main anti-discrimination treaty, the CRPD, follows a similar format, but also includes significant developments. There is no definition of disability, but the preamble recalls the provisions in the UDHR as to the equal dignity of all people and notes how discrimination breaches this, and suggests that ‘(e) … disability is an evolving concept and that disability results

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from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’. The general obligation provision is one that includes requirements to change laws, including ensuring that there are laws in place to prevent discrimination by both public and private actors; but it also includes the need for policies that ensure that people with disabilities have access to what is needed to participate in society on an equal basis, and importantly includes a requirement that there be full participation by people with disabilities in the development and implementation of relevant laws and policies. This is set out in Article 4 of the Convention: Article 4—General obligations 1.

States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines; (g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost; (h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; (i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in this Convention so as to better provide the assistance and services guaranteed by those rights. 2. With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those

44

3.

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The Obligation to Secure Internationally Recognised Human Rights obligations contained in the present Convention that are immediately applicable according to international law. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

Not surprisingly, there is a central obligation to prohibit discrimination on the grounds of discrimination (save that taking steps to accelerate de facto equality is permissible): Article 5—Equality and non-discrimination 1.

2.

3. 4.

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States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.39 In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

The reference to ‘reasonable accommodation’ is to the core concept defined in Article 2 as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons

39 See also Articles 6 and 7, which note the additional problems for women and children with disabilities:

Article 6—Women with disabilities 1. 2.

States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms. States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.

Article 7—Children with disabilities 1. 2. 3.

States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.

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with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

A failure to provide reasonable accommodation is one instance of what amounts to discrimination on the grounds of disability, which in Article 2 is defined to mean any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

The acceptance in the CRPD that the concept of disability is largely a social construct based on attitudes and environmental factors leads to understandable requirements that steps be taken to change attitudes and the environment. Again, there is a general point and then examples are given, which may inform any public law arguments as to whether adequate steps are being taken: Article 8—Awareness-raising 1.

States Parties undertake to adopt immediate, effective and appropriate measures: (a) To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; (b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; (c) To promote awareness of the capabilities and contributions of persons with disabilities. 2. Measures to this end include: (a) Initiating and maintaining effective public awareness campaigns designed: (i) To nurture receptiveness to the rights of persons with disabilities; (ii) To promote positive perceptions and greater social awareness towards persons with disabilities; (iii) To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market; (b) Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities; (c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention; (d) Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities. Article 9—Accessibility 1.

To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural

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areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; (b) Information, communications and other services, including electronic services and emergency services. 2. States Parties shall also take appropriate measures to: (a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; (b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities; (c) Provide training for stakeholders on accessibility issues facing persons with disabilities; (d) Provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms; (e) Provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public; (f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information; (g) Promote access for persons with disabilities to new information and communications technologies and systems, including the Internet; (h) Promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

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The CRPD also sets out the rights that are found in other UN instruments such as the ICCPR and indicates how they are to be achieved in a fashion that prevents there being a breach of the requirements not to discriminate against people who have a disability: to give one example, the need for access to justice on equal terms, set out in Article 13, includes in Article 13.2 the requirement that ‘States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff’. It also requires that efforts be made to coordinate the implementation of its requirements and monitor progress, which shall include participation by civil society bodies: Article 33—National implementation and monitoring 1.

2.

States Parties, in accordance with their system of organization, shall designate one or more focal points within government for matters relating to the implementation of the present Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to

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promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights. Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.

The Convention Against Torture is also designed to supplement a prohibition that is contained in the more general treaties. It does so in the same manner as the other supplemental treaties, namely by giving more specifics as to what steps are required as part of the obligation to guarantee the prevention of torture and of inhuman and degrading treatment. It also provides definitions of what is considered to amount to torture (which is not defined in the general treaties), and does so in a way that makes sure that anything in domestic legislation or another international treaty that goes further is not to be read down so as to conform with the definition in the CAT:40

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Article 1 1.

2.

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Included in the additional requirements that must be taken to make sure that the prohibition on torture is effective in practice are various points that require specific provisions to be part of domestic law if not already there: —

the need to ensure that torture is never permitted, even during a public emergency;

40 There are similar requirements set out in the CRPD and CEDAW. Article 4 of the CRPD includes: ‘… 4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent’. Article 4(5) provides that the rights shall extend to all parts of federal states. Article 23 of CEDAW states: ‘Nothing in the present Convention shall affect any provisions that are more conducive to the achievement of equality between men and women which may be contained: (a) In the legislation of a State Party; or (b) In any other international convention, treaty or agreement in force for that State’.

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— —

the need to ensure that an order to torture is not a justification; the need to criminalise torture, with suitable punishments; the same applies to attempted torture and any form of complicity; the need to ensure that immigration law is operated so as not to return people of countries where there is a risk of them being tortured; the need to establish universal jurisdiction over torture wherever committed; the need to have processes to determine whether to extradite someone or prosecute them, and to ensure cooperation between jurisdictions; the requirement to have staff training for those involved in custodial settings and reviews of relevant rules in those settings, so as to reduce the risks of torture (and also of other cruel, inhuman or degrading treatment); the requirement to ensure that torture evidence is not used in court proceedings.

— — — — — 61

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There are also steps that have to be taken to ensure an effective remedy in cases where torture is alleged, which are set out below; the cooperation that is obligatory in relation to the criminal process could also be viewed as part of this need for an effective remedy, but the starting point for any such cooperation on an individual case will invariably be having in place a legal structure that allows and regulates such cooperation (which must be such as not to interfere with fair trial requirements for the alleged perpetrator of the proscribed conduct). The language setting out the more basic obligation, together with the need to make sure that torture is never permitted and that official order is not a justification is set out in Article 2: Article 2 1. 2.

3.

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Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.

The requirement as to the content of immigration law is set out in Article 3, which states: Article 3 1.

2.

No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

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The requirements as to criminalisation and universal jurisdiction are in Articles 4 and 5:

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Article 4 1.

2.

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5 1.

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

The provisions as to international cooperation in relation to allegations of torture contain a significant amount of detail as to what is required, including deeming the offences of torture to be included within extradition treaties or being extraditable pursuant to the CAT even if there is no specific extradition treaty in place, and setting out the steps that are required by way of determining whether to extradite or to commence criminal proceedings: Article 6 1.

2. 3.

4.

Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. Such State shall immediately make a preliminary inquiry into the facts. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention.

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The Obligation to Secure Internationally Recognised Human Rights The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7 1.

2.

3.

The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8 1.

The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. Article 9 1.

2.

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States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Also to be noted in this context is that evidence obtained by torture cannot be used in court proceedings except those taken against the person alleged to be the perpetrator.

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Article 15 Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

The part of the CAT that relates to requirements as to training of relevant personnel involved in detention and also requiring reviews of codes and rules, such as those relating to interrogation, is also expressly applied by Article 16 to cover situations of cruel, inhuman and degrading treatment that does not amount to torture:

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Article 10 1.

2.

Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11 Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. Article 16 1.

2.

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.41

There is an Optional Protocol to the CAT, adopted in 2002 (OPCAT), which sets up an international monitoring mechanism and also requires that there be a national process of monitoring places of detention to ensure that there are suitable safeguards against improper treatment. These also require amendments to domestic law so as to permit the international visits and to make provision for a national preventive mechanism. Some of these provisions

41 Note the prohibition on extradition if there is a risk of torture and the detailed provisions as to cooperation in criminal processes, including extradition, noted above.

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are noted below, since they can be seen to be part of the need for an effective remedy or as part of the international monitoring of progress in securing rights. At the time of writing, New Zealand and the UK are parties to this Optional Protocol; but Australia and Ireland have not yet ratified it, though they have signed it. There are also some provisions in OPCAT that are relevant to systemic matters such as legislation and policies. Part of the function of the national preventive mechanism, set out in Article 19 of the Optional Protocol, is to make recommendations as to policies and comments on legislation and proposed legislation: OP Article 19 The national preventive mechanisms shall be granted at a minimum the power: … (b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations; (c) To submit proposals and observations concerning existing or draft legislation.

G. Purpose of This Material 70

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The reason for setting out this material at some length is that it makes clear that the international context, as developed from the UDHR, contains a general obligation to take seriously the standards to which a state has agreed as a matter of international law by taking the relevant steps to embody them in domestic law and to adopt suitable policies and practices. Most of the treaties that supplement the two general UN treaties, the ICCPR and ICESCR, contain more detail on what is required as part of that general obligation: as international law is to be read as a corpus, just as much as is domestic law, reference can be made to these supplemental treaties in deciding what is required as a matter of international law. As is noted below, there are also international monitoring and complaint mechanisms under various of these treaties, which may provide an avenue for complaint if it is alleged that there has been a breach of a right set out in a particular convention. They also provide a way for the international standards to be expanded: the treaties often set out relatively high-level principles, though some contain more detailed standards, and the additional commentary provides more flesh to these bones. The acceptance of the various treaty obligations is an agreement, as an exercise of sovereign power by ratifying a treaty, as to how the sovereign power to legislate and set policies will be exercised: in contrast to treaties that merely regulate the conduct of one state towards another state, the regime of international human rights obligations is intended to have an impact on domestic law. Indeed, that is its entire reason to be: to make sure that countries guarantee

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basic rights. As such, the existence of the various specific obligations, such as criminalising conduct, may provide value in arguments that might occur in the domestic setting if—as is discussed in Chapter 3—it is possible that domestic law (both statutory and common law) is to be interpreted in a way that supports compliance with international legal obligations. Does the regime of international human rights standards impinge on the freedom of an individual state to chart its own course? It is suggested that a proper reading of the international documents in their context is that there is no restriction of sovereignty but rather an agreement that there is only one proper way for some sovereign powers to be exercised because that is the way to protect sovereignty. In the first place, the whole framework is designed to give effect to the aims of the UN to protect national sovereignty through a stable international legal order (itself a fundamental right noted in Article 28 of the UDHR). Secondly, the rights are set out in various treaties that are joined only as an exercise of national sovereignty (and can be amended by the drafting of replacement or supplemental treaties). Thirdly, any claimed sovereign power to breach fundamental rights is a power that does not have any obvious merit. The suggestion more often made is that there should be freedom to define what content is given to a right and that this should be determined within a sovereign state: but this is where the benefit of the international order is such that any disagreement as to the content of a right is one that is voiced through the relevant process of international monitoring rather than the taking of a different course.42 As to how this translates to the more common question at the domestic level, namely the lawfulness of an executive decision or the meaning of a statutory provision that intersects with an international obligation, the following points are relevant to this question. First, the obligations undertaken at the international level are obligations on the state as a whole; and they may require alterations to various parts of domestic law. The Vienna Convention on the Law of Treaties 196943 is worth noting in this context, in that it emphasises the importance of ensuring that domestic law is compliant with international obligations:

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Article 27—Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. …

Secondly, there is, in the dualist tradition used by the common law countries, a view that international legal obligations form a wholly distinct system of law and do not impinge on the domestic law. However, this is a doctrine that reflects its origins in days before international treaties sought to provide a solution for breaches of rights that are universal and dependent on being human rather than

42 The content of a right may be different in a particular country in light of the margin of appreciation doctrine: the extent of that is something that can be resolved as part of the international monitoring process. 43 UNTS, vol 1155, p 331.

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on being present within a particular state. And a reason for the dualist dichotomy is no doubt the view that the executive branch is responsible for international relations and treaties, rather than the law-making branches, the legislature and the judiciary; but the modern process of treaty ratification is one that typically involves the approval of the legislature. This is described in Chapter 3. Thirdly, there is the existence of legislative mandates to the judiciary such as those provided by the bills of rights statutes, which expressly or by implication require that regard be had to international obligations and the decisions of international tribunals. These points are developed in Chapters 4 and 5. They reflect two features of the international human rights treaties that will next be described. First, the treaties typically have a requirement that there be an effective remedy in the case of a breach of the rights within the domestic legal system. Secondly, they also have an international monitoring mechanism of some nature, whereby there is a transnational process of reviewing the progress being made to secure rights: the international obligation to secure rights is reflected in the acceptance of the international monitoring process.

II. THE NEED FOR AN EFFECTIVE DOMESTIC REMEDY

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As well as the systemic obligation to guarantee rights domestically, one of the rights recognised is that to a remedy for breaches of rights within the domestic framework. This has been mentioned already, and is set out in more detail here. The language of the main documents as to the need for an effective remedy in domestic law is as follows: UDHR—Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. ECHR—Article 13—Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ICCPR—Article 2 3.

Each State Party to the present Covenant undertakes: (a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative

The Need for an Effective Domestic Remedy

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authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; to ensure that the competent authorities shall enforce such remedies when granted.

These provisions leave open the question of what is an effective remedy, though it should be noted that Article 5(5) of the ECHR and Article 9(5) of the ICCPR specify that there should be financial compensation awarded for detention in breach of the requirements set out for acceptable loss of liberty. The ICCPR also contains a compensation provision in relation to victims of miscarriages of justice:44 see Article 14(6). (There is an equivalent provision in Article 3 of Protocol No 7 to the ECHR: this has been signed and ratified by Ireland but not by the UK, which is one of only four members of the Council of Europe not to have done so as at the time of writing.) In addition, it has also been determined in case law that breaches of certain provisions should in principle attract a right to compensation, namely the rights to life and not to be tortured or subjected to torture or inhuman or degrading treatment. So, in Edwards v UK,45 the ECtHR noted:

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[I]n the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress ...46

Similarly, the Human Rights Committee of the UN has often called for damages in relation to similar breaches of the ICCPR.47 It is worth commenting that the UDHR and ECHR make reference to a national authority rather than a court. The ICCPR makes it clear that the remedies can be from administrative, judicial or legislative authorities, though it adds that states should aim to judicialise the remedy. But the reference to a legislative remedy makes the important point that the defect in the system that caused a failure to abide by rights might be the absence of a suitable legislative framework or the existence of a law that is not rights compliant.

44 This requires a new or newly discovered fact (and is subject to an exclusion if the nondisclosure was partly attributable to the person convicted). 45 Edwards v UK App no 46477/99, (2002) 35 EHRR 487, [2002] MHLR 220, at para 97. 46 The authorities cited were Z and Others v UK App no 29393/95, (2002) 34 EHRR 97, at para 97, where the Grand Chamber applied earlier cases to suggest that in addition to compensation there was a need for an effective investigation; and Keenan v UK App no 27229/95, (2001) 33 EHRR 913, [2001] Inquest LR 8, [2001] Prison LR 180, at [129] (though the better statement is at [130]). Both were Article 3 cases. 47 This has been so from its early days: eg de Geurrero v Colombia (HRC, 45/1979) involved a call for compensation for a breach of the right to life; similarly in Bleier v Uruguay, (HRC, 30/1978), there was a call for compensation for any injury suffered in a breach of the right not to be subjected to torture or cruel, inhuman or degrading treatment.

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There are also various similar requirements as to effective domestic remedies in the other UN Conventions. These are in the following language in ICERD and CEDAW: ICERD—Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. CEDAW—Article 2 States Parties ... undertake: ... (c)

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To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; …

The use of the word ‘tribunal’ might suggest a body that exercises judicial power (including perhaps an administrative body that adopts a judicial process); this may be thought particularly so in relation to the requirement in ICERD to provide a remedy in damages, which is a core judicial function. There is no particular remedy provision in UNCRC. However, Article 3 notes that ‘1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. In addition, Article 3.2 requires ‘such protection and care as is necessary for his or her well-being’, and Article 9.1 specifically envisages taking children away from abusive or neglectful situations. In addition, many of the specific rights set out in UNCRC are phrased in terms of positive obligations on the authorities to ensure that the right in question is secured. None of these provisions makes sense without there being at least an implicit indication that there should be some process capable of giving a remedy in case of default. The provisions in the CAT and the CRPD as to what is required in domestic law are more detailed and reflect the particular requirements of those Conventions. First, the CAT has numerous specific requirements as to enforcement of the right not to be tortured or to be subject to the risk of torture. These include: (i)

the right not to be sent to a state where there is a significant risk of torture (Article 3);

The Need for an Effective Domestic Remedy (ii)

(iii)

(iv) (v)

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a state obligation to make torture criminal and take effective steps to investigate and prosecute (including by way of cooperation, extradition and establishing jurisdiction to prosecute torture that occurs outside the jurisdiction) (Articles 4–9); a state obligation to investigate any reasonable grounds to suspect torture or other forms of cruel, inhuman or degrading treatment or punishment (Articles 12, 13 and 16); a state obligation to provide civil compensation for torture (article 14); the exclusion of evidence obtained by torture (Article 15).

Many of these provisions have been set out above, given that they impose requirements as to the alteration of the law, which can be seen as part of the general obligation to enforce the standards which are undertaken. Those not set out already but relevant to the need for a specific remedy for a specific allegation of ill-treatment are:

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Article 12 Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction. Article 13 Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. Article 14 1.

2.

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

It is worth noting that the duty to investigate is one that is territorial, but the duty to provide a civil remedy does not mention that it is limited to torture that has occurred within the jurisdiction and so it can be viewed alongside the need for universal jurisdiction in relation to criminal charges (noted above): this is certainly the view of the Committee Against Torture, which says as much in its General Comment No 3.48 However, disappointingly, it was decided in

48

CAT/C/GC/3, 13 December 2012, Implementation of Article 14 by States Parties, para 22.

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Jones v UK49 that it was acceptable to uphold state immunity in a UK case involving a damages claim against the Kingdom of Saudi Arabia and named Saudi officials accused of torture. The ECtHR noted the view of the Committee Against Torture, but concluded that the issue was not settled because it had not been determined by an international court or tribunal and contrary decisions had been reached in various domestic courts.50 Nevertheless, the specific provisions in the CAT may illuminate the remedy to be provided under the more general prohibition of torture in the ECHR (and the ICCPR).51 In A v Secretary of State for the Home Department (No 2),52 the question was the admissibility of evidence that might have been obtained by torture in front of a special immigration court that was designed to deal with suspected terrorists. The rules of the Special Immigration Appeals Commission allowed it to receive evidence that was not admissible in a court of law. The House of Lords, overturning the Court of Appeal, held that a judicial body could not place reliance on evidence obtained by torture. This was something that arose from the common law tradition, but it was also a matter of international human rights standards. The one directly applicable was the prohibition on torture in Article 3 of the ECHR, together with the right to a fair trial under Article 6. As to whether this could be supplemented by reliance on the CAT, Lord Bingham noted that the approach adopted in the ECtHR was to make reference to other international standards, construing the Convention as a part of the wider body of international law. He then set out in some detail statements from various bodies which contribute to international human rights jurisprudence before concluding that (i) the common law required the exclusion of evidence obtained by torture and (ii) the common law did not stand alone because it was also necessary to give effect to the ECHR, and thereby the consensus against torture ‘embodied in the Torture Convention’ because that informed the interpretation of the ECHR.53 There was a disagreement between the judges in relation to the approach to whether a particular piece of evidence was shown to be tainted by torture and so should be excluded. The minority would exclude it if evidence showing that there was a real risk that torture had been used was not effectively countered; the majority determined that evidence should be excluded if it was shown on the balance of probabilities to have been obtained by torture, but should otherwise be admitted and the risk that torture had been used should be taken into account in evaluating the evidence.54 Lord Bingham, in the minority, suggested that the majority position was unfortunate because it 49 Jones v UK App nos 34356/06 and 40528/06. This followed from the decision of the House of Lords to allow Saudi Arabia’s plea of state immunity: Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270. 50 App nos 34356/06 and 40528/06, paras 208, 213. 51 In a more general fashion, the provisions of one treaty may illuminate the meaning of another: see Chapter 5. 52 A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221. 53 ibid at [52]. 54 ibid at [118], per Lord Hope.

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had the potential to undermine the efficacy of the Torture Convention.55 The majority, however, believed the test to represent what the CAT required in relation to the exclusion of evidence.56 In other words, the dispute was about the meaning of the treaty rather than about its applicability. As noted above, there is an Optional Protocol to the CAT, adopted in 2002, and ratified by New Zealand and the UK (though signed also by Australia and Ireland). This sets up an international monitoring system (which is outlined under the section below dealing with international remedies), but also requires that there be a national process of monitoring places of detention to ensure that there are suitable safeguards against improper treatment. This is contained in Part IV of the Optional Protocol, which sets out a requirement as to the powers of the national preventive mechanism, including that it has access to detainees and is able to make recommendations (which allows it to operate as an informal complaint and remedy mechanism). In summary: (i) Article 17 requires the establishment of the mechanism (or mechanisms, since it is possible to have more than one); (ii) Article 18 requires that they shall be functionally independent and have a suitable status (having regard to the status that should be accorded to bodies that promote human rights), that their personnel shall be independent, and that they have the ‘necessary resources’; it is also noted that the experts on the body or bodies should have the ‘required capabilities and professional knowledge’ and that there should be balance between genders and representation of minority groups. The specific powers they should have are set out in Articles 19 and 20, and include the powers that involve reviewing particular scenarios:57 OP Article 19 The national preventive mechanisms shall be granted at a minimum the power: (a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment; OP Article 20 In order to enable the national preventive mechanisms to fulfil their mandate, the States Parties to the present Protocol undertake to grant them: (a) Access to all information concerning the number of persons deprived of their liberty in places of detention …, as well as the number of places and their location; (b) Access to all information referring to the treatment of those persons as well as their conditions of detention;

55

ibid at [62]. ibid at [120]. See also above, since Article 19 also requires that the national mechanism be able to make recommendations as to policies and comment on legislation and proposed legislation. 56 57

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(c) Access to all places of detention and their installations and facilities; (d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information; (e) The liberty to choose the places they want to visit and the persons they want to interview; (f) The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.

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Possible practical restrictions on the effectiveness of the mechanism are provided for in Article 21, which prohibits any sanction for communication with the mechanism ‘whether true or false’ and requires that information it has collected shall be privileged. As for the risk that it might simply be ignored, there is provision designed to reduce this risk: OP Article 22 The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures. OP Article 23 The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

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This approach provides both for remedies for individual breaches and also a requirement for processes designed to engage with prevention as a systemic matter. In the UK, a multiplicity of bodies are part of the national preventive mechanism, including the Inspectorate of Prisons, the Care Quality Commission and the Children’s Commissioner for England (with separate bodies in Scotland and Northern Ireland).58 Similarly in New Zealand, various bodies are involved, including the Ombudsmen, the Independent Police Conduct Authority and the Children’s Commissioner; the Human Rights Commission coordinates these.59

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Another transnational aspect of the modern human rights regime is the monitoring process and various complaints mechanisms that exist. Although the

58 HM Inspectorate of Prisons coordinates the various bodies. Reports are available through the Ministry of Justice: see www.justice.gov.uk/about/hmi-prisons/preventive-mechanism. 59 Information and links to reports can be found at www.justice.govt.nz/policy/constitutionallaw-and-human-rights/human-rights/international-human-rights-instruments/internationalhuman-rights-instruments-1/convention-against-torture.

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bills of rights statutes seem to have in mind mainly the processes whereby individual complaints can be taken to the ECtHR and the Human Rights Committee of the UN, there is a significant variety of processes whereby compliance with the obligations outlined above—to guarantee rights and to ensure that there is an effective domestic remedy—is monitored. This supports the motif that the effect of the international regime is an agreement to participate in its mechanisms as a way to support the aim of securing rights for all. This section outlines (i) the institutions, (ii) the processes, and (iii) the remedies that might be sought through those bodies.

A. The Bodies Involved The treaty that is the UN Charter, which includes required cooperation with the UN in its work to progress human rights, as noted above, also establishes various bodies through which it will carry out its work. The chief organs of the United Nations, listed in Article 7 of the Charter, include the General Assembly and the Economic and Social Council; both may take practical steps to promote human rights (see Articles 13 and 62, the latter specifically including the power to draft conventions to submit to the General Assembly). In addition, Article 22 allows the General Assembly to establish subsidiary organs to perform its functions. Two main types of body with particular roles in human rights promotion, protection and standard setting have been developed: those that are Charter based, and so exist pursuant to the Charter, and the treaty monitoring bodies, which are established pursuant to the various human rights treaties adopted under the auspices of the United Nations and outlined above. The three main Charter-based bodies are the General Assembly itself, given its role in formulating human rights standards, both soft law declarations60 and hard law treaties; the Economic and Social Council (ECOSOC)61 and its subsidiary bodies;62 and the Human Rights Council,63 established in 2006 to replace

60 For example, the Declaration on the Rights of Indigenous People (DRIP), 13 September 2007, A/RES/61/295; available at http://social.un.org/index/IndigenousPeoples/ DeclarationontheRightsofIndigenousPeoples.aspx. New Zealand joined Canada, Australia and the United States in being the only 4 countries to vote against the adoption of the Declaration; they have subsequently accepted it. There are monitoring bodies in the form of the Permanent Forum on Indigenous Issues, which reports to the Economic and Social Council, a Special Rapporteur on the Rights of Indigenous People, who reports to the Human Rights Council, and an Expert Mechanism on the Rights of Indigenous Peoples, which exists as a subsidiary body of the Human Rights Council and holds an annual meeting to monitor progress and provide advice. 61 The ECOSOC site is at www.un.org/en/ecosoc/about/index.shtml. 62 ECOSOC subsidiary bodies page is at www.un.org/en/ecosoc/about/subsidiary.shtml. 63 The Human Rights Council site is at www.ohchr.org/en/hrbodies/hrc/pages/hrcindex.aspx. It also has subsidiary bodies: for example, those relevant to the DRIP, noted in n 60 above.

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the Commission on Human Rights,64 and which among many activities has established the Universal Periodic Review, which is described below. Each of the core human rights treaties, noted above, has an expert committee attached to it, usually established by the treaty.65 For example, the terms of the ICCPR 1966 include the creation of the Human Rights Committee (see Articles 28 and following, relating to its establishment and the processes for electing members);66 the ICESCR 1966 has the Committee on Economic, Social and Cultural Rights, which was established by a resolution of ECOSOC.67 The other treaties have expert committees established as part of their terms: (i) (ii) (iii) (iv) (v) (vi)

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Article 8 of ICERD establishes the Committee on the Elimination of Racial Discrimination. Article 17 of CEDAW establishes the Committee on the Elimination of Discrimination Against Women. Article 17 of CAT establishes the Committee Against Torture. Article 5 of OPCAT establishes the Subcommittee on the Prevention of Torture. Article of 43 of UNCRC establishes the Committee on the Rights of the Child. Article 34 of CRPD establishes the Committee on the Rights of Persons with Disabilities.68

The standard language, as illustrated by Article 28 of the ICCPR is for the committees to carry out ‘the functions hereinafter provided’. Within the various regional human rights mechanisms, there are also relevant processes, including the European Court of Human Rights, which exists pursuant to Article 19 of the ECHR and is expressly designed to ensure that the obligations undertaken are respected: Article 19—Establishment of the Court To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European

64 General Assembly Resolution 60/251. It is a subsidiary organ of the General Assembly. The Commission on Human Rights, which it replaced, was a subsidiary body of ECOSOC, as required by Article 68 of the Charter of the UN. 65 The treaties and monitoring bodies, as well as lists of the additional treaties and standards, is compiled by the Office of the High Commissioner for Human Rights at www.ohchr.org/EN/ ProfessionalInterest/Pages/InternationalLaw.aspx. 66 A Committee of 18 individuals of ‘recognised competence in the field of human rights’; it is said to be useful if some of them have legal experience. 67 ECOSOC Resolution 1985/17of 28 May 1985. It grew out of a working group that had been established in 1978 to consider implementation of the ICESCR. 68 There are also the treaties in which the countries in this text do not participate, relating to migrant workers and enforced disappearance, which also have relevant committees: the Committee on Migrant Workers is established by Article 72 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, and the Committee on Enforced Disappearance is established by Article 26 of the International Convention for the Protection of All Persons from Enforced Disappearance 2006.

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Court of Human Rights, hereinafter referred to as ‘the Court’. It shall function on a permanent basis.

There is also the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1989, Article 1 of which establishes the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment to carry out functions under the Convention. Elsewhere, the human rights regime in Africa is contained in the African (or Banjul) Charter on Human and People’s Rights 1981,69 which provided in Article 30 for the African Commission on Human and People’s Rights. There is now an African Court on Human and People’s Rights, established under a Protocol.70 Similarly, the Inter-American Court of Human Rights exists under the auspices of the Organization of American States, together with the InterAmerican Commission on Human Rights, to work on the implementation of the American Convention on Human Rights 1969, under which both bodies are established.71

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B. The Processes There are many processes through which human rights standards are supported in practice, including matters such as education, but three categories of work done by human rights monitoring bodies are particularly relevant in the legal sphere. These are (i) monitoring progress in meeting the basic obligation to secure rights within a jurisdiction; (ii) the carrying out of inquiries; and (iii) the adjudication of disputes. Each of these processes allows the development of the high-level statements of rights into more practical-level indications of what is required. Different regimes may have more of a focus on one process than another.

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i. Monitoring The standard method of monitoring progress within the treaty-based process of the UN is through a reporting system whereby states report to the relevant committee under each of the human rights treaties to which they are parties on the progress being made to guarantee rights. This can be illustrated by Article 40 of the ICCPR.

69 OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), adopted 27 June 1981 entered into force 21 October 1986. 70 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights 1998, Article 27(1). There will be an African Court of Justice and Human Rights in due course: its Statute (of 2008) contains a similar power in Article 45. All available at www.achpr.org/. 71 Materials available from www.oas.org/en/default.asp.

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Article 40 1.

2.

3.

4.

5.

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The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights: (a) within one year of the entry into force of the present Covenant for the States Parties concerned; (b) thereafter whenever the Committee so requests. All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant. The Secretary-General of the United Nations may, after consultation with the Committee, transmit to the specialized agencies concerned copies of such parts of the reports as may fall within their field of competence. The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with paragraph 4 of this article.

These Periodic Reports are considered by the Human Rights Committee, which may issue comments, both to the country reporting and in the form of general comments aimed at all state parties (under Article 40(4)). The Committee seeks to involve civil society bodies in the preparation of the Periodic Report.72 In addition, once the report is provided to the Committee, it allows civil society bodies to comment on the content of the report (and any omissions from it).73 These ‘shadow reports’ allow for suggestions as to areas that the Committee might want to investigate when the state’s report is reviewed (which involves ambassadors or ministers being questioned). It is possible for both systemic matters to be raised in these reports, as well as for individual cases to be used to suggest that there are gaps in rights protection. At the end of the review, concluding comments and recommendations are issued to the state. This process of monitoring via country reports and shadow reports is also the core function of the other treaty-based expert committees: they also issue general comments, which are useful indications of what the particular committee suggests is the law under a particular article (which can qualify as a source of international law as the view of a body of experts). See: (i)

ICERD—Article 9

72 See Fact Sheet No 15, available at www.ohchr.org/Documents/Publications/ FactSheet15rev.1en.pdf; this can be done via a national human rights institution. Note also Article 35 of the CRPD specifically encourages the involvement of groups with disabilities in the process. 73 Fact Sheet No 15, p 17.

International Monitoring and Complaint Provisions (ii) (iii) (iv) (v)

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CEDAW—Article 18 CAT—Article 19 UNCRC—Article 45 CRPD—Article 35.74

The position in relation to the ICESCR is that the states are required to provide reports to ECOSOC (under Article 16); it is also allowed to make arrangements with specialised agencies of the UN to monitor progress (Article 18); it was also able to coordinate with the Commission on Human Rights as to the making of comments and recommendations (Article 19). The role of the ECOSOC has been devolved to the Committee on Economic, Social and Cultural Rights. In addition, the Human Rights Council, the Charter-based body within the UN, has the process of monitoring overall compliance with all human rights standards binding on a particular state via its Universal Periodic Review (UPR). This was established in 200675 and involves a review of each state in a four-year cycle, based on a national report summarising the state of human rights in a country, a summary of information provided by stakeholders (including civil society bodies) and a compilation of information from other UN bodies. The national report is one that should also involve ‘a broad consultation process at the national level with all relevant stakeholders’,76 which provides an addition process for civil society to be involved. As with the treaty-body monitoring process, the review takes place in a public session, and then leads to the compilation of an Outcome Report, which includes recommendations for action to be taken, and which is subject to further discussion before being adopted by the Council. The second round of UPR sessions have included monitoring of the implementation of recommendations made. Article 52 of the ECHR sets out a monitoring function:

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Article 52—Inquiries by the Secretary General On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.

More used within Europe is the monitoring process of the European Committee for the Prevention of Torture and Inhuman or Degrading 74 Note also Article 32 of the CRPD includes a specific obligation to engage in international cooperation in relation to fulfilling the requirements of the treaty: this includes such matters as sharing knowledge and best practices. 75 Resolution adopted by the General Assembly: Human Rights Council, 3 April 2006, A/RES/60/251—www2.ohchr.org/english/bodies/hrcouncil/docs/a.res.60.251_en.pdf. Details of the process can be found on the website of the Office of the High Commissioner for Human Rights at www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx. 76 Human Rights Council: Institution-building of the United Nations Human Rights Council, 18 June 2007, A/HRC/RES/5/1—http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_ RES_5_1.doc.

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Treatment or Punishment, which involves visits to countries, and in particular to places of detention: its reports are regularly cited by the ECtHR as the basis for findings on matters such as whether levels of overcrowding or other aspects of treatment within an institution are in breach of the requirements of Article 3 of the ECHR. The UN Subcommittee on the Prevention of Torture has a similar visiting and monitoring function under OPCAT: this is in addition to the national preventive mechanisms noted above. There is also the European Social Charter 1961, which the UK and Ireland ratified (though it is open to states to specify which rights they accept). Various additional protocols exist, and a consolidated and slightly revised Charter came into being in 1996, which has been signed but not ratified by the UK, but Ireland is a party. The major monitoring process under the Charter is the provision of reports to the European Committee of Social Rights (ECSR), which is similar in many respects to the treaty monitoring bodies. There is also the Council of Europe’s Committee of Ministers, which can make recommendations on human rights matters under the Charter: the ECSR works on those matters. ii. Inquiries

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In the UN system, the Committee Against Torture, the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of Persons with Disabilities are able to carry out investigations into serious or systemic violations of human rights in their area of expertise if a state has accepted that it can be subject to this. The prerequisite for an inquiry is the receipt of reliable information.77 Also, the Committee on the Elimination of Racial Discrimination has its Early Warning Procedure, which allows complaints about situations that may be deteriorating and allows it to investigate. In addition, the Human Rights Council has a ‘Special Procedures’ process,78 pursuant to which investigations may be carried out into the human rights situation in a particular country or into a theme, led by an individual or group of relevant experts (‘special rapporteurs’, ‘independent experts’ or ‘working groups’). At the time of writing, there are 51 mandates, 37 of which relate to a human rights theme and 14 to the situation in a particular country. Some of the mandate holders have been very active in examining the content of rights, perhaps particularly so in relation to economic, social and cultural rights, where the complaints processes have been more limited. iii. Complaints

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The Special Procedures mechanisms also allow for complaints to be made, which may lead to a speedy intervention in relation to a particular situation.

77 Article 8 of the Optional Protocol to CEDAW 1979; Article 20 of the CAT 1984; and Article 6 of the Optional Protocol to the CRPD 2006. 78 See details at www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.

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This will be subject to the resources of the particular mandate holder. Their annual reports typically outline the complaints received and action taken. The Human Rights Council has adopted a complaints process as well, which is intended to deal with systemic abuses of rights once domestic remedies have been exhausted.79 More well known is the more formal process of complaint to the ECtHR or the Human Rights Committee of the UN (or one of the other treaty monitoring bodies). The jurisdiction of the institutions established by the ECHR (initially a Commission as well as the Court) was originally a matter for the discretion of the state, but is now compulsory. There are two types of complaint, one being state complaining about state (they being the traditional actors in international law), and the other being the right of complaint by those whose rights are arguably breached. The text of the ECHR as it currently stands is:

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Article 33—Inter-State cases Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party. Article 34—Individual applications The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

It is worth noting that ‘individual’ applications do not have to be from individuals. An organisation, ie a corporate entity, can apply so long as it is nongovernmental. As has been noted above, the framework for the international human rights regime is that (i) domestic sovereignty remains in place, but (ii) there is an agreement to provide domestic solutions and to cooperate in transnational methods, which condition the exercise of sovereignty. It is implicit in the primary obligation being to guarantee rights within the domestic framework that the processes within that framework should be used first. This is formalised with the admissibility criteria before a matter can be considered by the ECtHR, which include an obligation to exhaust domestic remedies: Article 35—Admissibility criteria 1.

The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. 2. The Court shall not deal with any application submitted under Article 34 that (a) is anonymous; or 79 Details are set out at www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/ HRCComplaintProcedureIndex.aspx.

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(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

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These criteria include some amendments made by Protocol No 14 designed to reduce the case load of the ECtHR: in particular, Article 35(3)(b) was added on the basis that an international court should be concerned with matters of a certain level of seriousness (whether financially or otherwise), unless the facts revealed something of more moment than the apparently minor situation. There are also Rules of Court, the latest version of which took effect from 1 January 2014:80 they deal with various matters, from the availability of legal aid to the relationship between the various committees, chambers and Grand Chamber through which the jurisdiction of the Court is exercised. At the UN level, the jurisdiction of the treaty monitoring bodies is at the discretion of the state. In relation to the civil and political rights set out in the ICCPR, there are a number of similarities to the regime applicable to the ECtHR, including the existence of state and individual complaints and the need to exhaust domestic remedies. But there are also significant differences, in that the individual complaint process to the Human Rights Committee has no time limits, but is available only to natural persons. The language relating to inter-state complaints is in ICCPR Article 41, which notes that a state has to accept the jurisdiction of the Human Rights Committee in this regard: Article 41 1.

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A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the

www.echr.coe.int/Documents/Rules_Court_ENG.pdf.

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Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.81

By Article 44, it is noted that other UN procedures can be used, as well as any arrangements that exist involving the states in question. As for individual complaints, that is pursuant to a regime set out in an Optional Protocol, albeit that it was adopted at the same time as the ICCPR.82 This is now usually known as the First Optional Protocol because there is a second one that relates to the abolition of the death penalty. Its features are: (i) (ii) (iii) (iv) (v)

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it notes that individual complaints will assist the purposes of the ICCPR; it limits the process to individual victims; those individuals must have exhausted domestic remedies; anonymous complaints are not permitted; there are also provisions to exclude a communication that is an abuse of the process.

The relevant text is: (FIRST) OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966) The States Parties to the Present Protocol, Considering that in order further to achieve the purposes of the Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the implementation of its provisions it would be appropriate to enable the Human Rights Committee set up in part IV of the Covenant (hereinafter referred to as the Committee) to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant, Have agreed as follows: Article 1 A State Party to the Covenant that becomes a party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a party to the present Protocol. Article 2 Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all

81 The Article then sets out the procedure to be followed, including that domestic remedies have been exhausted and that there is an attempt to secure a friendly settlement; the states involved have a right to be represented before the Committee. Articles 42 and 43 supplement this: Article 42 allows for a Conciliation Commission to be appointed if the dispute remains unsettled. 82 A state that has joined the Optional Protocol may pull out of it, by denunciation in accordance with Article 12.

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available domestic remedies may submit a written communication to the Committee for consideration. Article 3 The Committee shall consider inadmissible any communication under the present Protocol which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the Covenant.

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Further provisions of the Optional Protocol deal with procedural matters, including the obligations of the state to respond, a repetition of the need for the exhaustion of domestic remedies and also a requirement that there be no other mechanism in play. There are also additional procedural rules, last amended in 2012.83 One significant difference with the ECtHR is that consideration of a communication is carried out in private: there is no provision for open or oral hearings: Article 4 1.

2.

Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

Article 5 1.

The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. The Committee shall not consider any communication from an individual unless it has ascertained that: (a) the same matter is not being examined under another procedure of international investigation or settlement; (b) the individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual.

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As to these optional elements of the ICCPR, declarations under Article 41, so as to allow inter-state applications, have been made by all the relevant governments: Australia made the declaration on 28 January 1993, Ireland, New Zealand and the UK made the declaration on the same date as ratification; and Canada made the relevant declaration on 29 October 1979.

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CCPR/C/3/Rev.10.

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The First Optional Protocol, which came into force in March 1976 on its tenth ratification (Article 9) is also part of the international obligations of Australia, Canada, Ireland and New Zealand, but not of the UK. Australia acceded to it on 25 September 1991, Ireland on 8 December 1989, and New Zealand on 26 May 1989; Canada was an early participant, having acceded on 19 May 1976. The failure of the UK to participate in this process of allowing individual complaints, which is perhaps based on the fact that its residents can take cases to the ECtHR, is difficult to comprehend for two reasons: in the first place, as is noted below, the UK, which has often supplied members to the Human Rights Committee, does recognise the jurisdiction of other UN bodies to hear individual complaints, such as the Committee on the Rights of Persons with Disabilities.84 Secondly, many nations from the Council of Europe are parties to the Optional Protocol to the ICCPR as well as recognising the jurisdiction of the ECtHR, and it is possible to ensure that there is no overlap. The mechanism is to enter a reservation, as Ireland has done, which is in the following terms: ‘Ireland does not accept the competence of the Human Rights Committee to consider a communication from an individual if the matter has already been considered under another procedure of international investigation or settlement’. This is phrased as a reservation to Article 5(2) of the Optional Protocol, which provides that if the matter is not ‘being considered’ by another body, then the Human Rights Committee has no jurisdiction. The reservation from Ireland extends this lack of concurrent jurisdiction to a lack of jurisdiction when there has been past consideration as well. So, an individual taking a case from Ireland has a choice to go to the Human Rights Committee or the ECtHR, but cannot go to both and if he or she chooses the latter is precluded from going to the former. Set out above, Article 35(2)(b) of the ECHR indicates that the ECtHR will not consider a case that is substantially the same as one that has been submitted elsewhere, so there is no prospect of going to the ECtHR either. An additional practical point is that the ECtHR has a time limit which the Human Rights Committee does not and so delays in going to the ECtHR will be problematic in any event. One additional practical point to note in relation to the choice of venue is that the ICCPR has in its text some rights that are only part of the ECHR by virtue of protocols, which may not have been signed and ratified. In practice, therefore, there may be options for an individual to go to the ECtHR and the Human Rights Committee simultaneously if there are different arguments to raise; or to take the ECtHR proceedings first and then go to the Human Rights Committee to deal with the additional points or—if the state has not entered a reservation such as Ireland has—to re-argue the same points. However, given that there is the option of limiting the reach of the Human Rights Committee, the fact that a significant number of Council of Europe States allow access by individual complainants to the Human Rights Committee, some without 84

See para 142 below.

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reservation but many with a reservation to prevent the relitigation of issues, means that the UK is in something of an outlying position. Some of the other treaty monitoring bodies also have complaints mechanisms, or are in the process of establishing them. These may have the advantage, if available, of allowing consideration by an expert body that is attuned to the issues in the particular context; it is also worth noting that the jurisprudence of these bodies may also support a case that is sent to the Human Rights Committee or the ECtHR, given that all the various treaties trace their roots to the UDHR and should be construed in a complementary fashion. These various remedies can be summarised as follows. The Committee on the Elimination of Racial Discrimination may consider inter-state complaints under Article 11 of ICERD; and Article 14 provides for individual complaints to be made. In the latter case only, it is necessary for the state to issue a declaration that this is permissible. There is also provision for the state to set up its own body for receiving such complaints, which shall have the first chance to consider them, with the Committee being involved if there is no suitable outcome: Article 14 1.

2.

A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Any State Party which makes a declaration as provided for in paragraph 1 of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies.

… 5.

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In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months.

The procedures, set out in the rest of the Article, are similar to those of the Human Rights Committee, including a duty on the state to cooperate with it: 6. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications; (b) Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

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7. (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged; (b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.

Australia made the relevant declaration on 28 January 1993, and Ireland did so on becoming a party to the Convention on 29 December 2000; but Canada, New Zealand and the UK have not. The Irish declaration, following a common model that is used by several Council of Europe members, indicates that:

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Ireland recognizes that competence on the understanding that the said Committee shall not consider any communication without ascertaining that the same matter is not being considered or has not already been considered by another international body of investigation or settlement.

The Committee on the Elimination of Discrimination against Women also has jurisdiction to consider complaints from individuals or groups, but this is under an Optional Protocol of 6 October 1999. This is subject to preconditions similar to those that arise in relation to the ICCPR. First, domestic remedies must have been exhausted unless they are unreasonably delayed (Article 4(1)); secondly, a communication that is manifestly ill-founded or not adequately substantiated (or incompatible with the Convention or an abuse of the right of communication) is inadmissible (Article 4(2)).

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Article 4 1.

The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. 2. The Committee shall declare a communication inadmissible where: (a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (b) It is incompatible with the provisions of the Convention; (c) It is manifestly ill-founded or not sufficiently substantiated; (d) It is an abuse of the right to submit a communication; (e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.

It is to be noted that Article 4(2)(a) is wider than its equivalent in the Optional Protocol to the ICCPR: it covers past investigations of the complaint by another body, whereas the Human Rights Committee is only limited in its jurisdiction if another body is reviewing the matter at the time.

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The procedures to be followed are similar to those in other Committees: the state is required to submit observations within six months, and the Committee then forms a view after considering the matter in private: Articles 6 and 7. The countries that have acceded to this Optional Protocol, which came into force on 22 December 2000, three months after the 10th ratification or accession, include: Australia (acceded as of 4 December 2008), Canada (acceded as of 18 October 2002), Ireland (signed and ratified on 7 September 2000), New Zealand (signed and ratified on 7 September 2000), and the UK (acceded as of 17 December 2004). In relation to the CAT, the Committee Against Torture may be permitted by states to receive both inter-state and individual complaints if the State Party makes a declaration to that effect: Article 21 1.

A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee.85

Article 22 1.

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A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.

In addition to the need for a victim, the other procedural matters set out in Article 22 include the need for no anonymity in the complaint, no abuse of the right of petition, giving the state six months to respond to an allegation, requiring domestic remedies to have been exhausted (unless unreasonably delayed) and, as with CEDAW, an exclusion if the matter either is being or has been considered by another international body. As to the making of the relevant declarations, the Australian government did so in relation to both inter-state and individual complaints on 28 January 1993; Canada did the same on 13 November 1989, Ireland on 11 April 2002, and New Zealand on ratification on 10 December 1989. The UK, however, has only made the relevant declaration, which it did on ratification on 8 December 1988, under Article 21, namely in relation to inter-state complaints: so individual complaints are not permissible. Turning to UNCRC, an Optional Protocol setting up a process for individual complaints to the Committee on the Rights of the Child came into effect in April 2014; Ireland has signed and ratified it, but none of the other countries 85

The Article then sets out the detail of the procedure to be followed.

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will bills of rights statutes has done so yet. In relation to the CRPD, the international mechanisms include a complaint mechanism, established under an Optional Protocol. It largely operates along the lines of the other processes, but has some variations: complaints may come from individuals or groups of individuals, and there are rules as to admissibility, including that it is the only mechanism being used and that no other mechanism has been used: Article 1 1.

A State Party to the present Protocol (‘State Party’) recognizes the competence of the Committee on the Rights of Persons with Disabilities (‘the Committee’) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention.

In addition to the need for a victim, the other procedural matters set out in Article 2 include the need for no anonymity in the complaint, no abuse of the right of petition, giving the state six months to respond to an allegation, requiring domestic remedies to have been exhausted (unless unreasonably delayed) and, as with CEDAW, an exclusion if the matter either is being or has been considered by another international body. There is also specific language about the merits of the communication, which must be rejected if it is plainly wrong or inadequate. The language is:

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Article 2 The Committee shall consider a communication inadmissible when: (a) The communication is anonymous; (b) The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of the Convention; (c) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (d) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief; (e) It is manifestly ill-founded or not sufficiently substantiated.

Procedural provisions are set out in Articles 3–5, including the need for the state to cooperate, for interim measures to be taken,86 and for private hearings to consider the matter: Article 3 Subject to the provisions of article 2 of the present Protocol, the Committee shall bring any communications submitted to it confidentially to the attention of the State Party. Within six months, the receiving State shall submit to the Committee written

86 Interim measures may be provided for in other ways: for example, for the Human Rights Committee, it is in Rule 92 of its Rules of Procedure.

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explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Article 4 1.

2.

At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation. Where the Committee exercises its discretion under paragraph 1 of this article, this does not imply a determination on admissibility or on the merits of the communication.

Article 5 The Committee shall hold closed meetings when examining communications under the present Protocol. After examining a communication, the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.

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An interesting development in the CRPD is the possibility of the establishment of regional international mechanisms: Article 11 The present Protocol … shall be open for accession by any State or regional integration organization which has ratified, formally confirmed or acceded to the Convention and which has not signed the Protocol. Article 12 1.

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‘Regional integration organization’ shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by the Convention and this Protocol. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the Convention and this Protocol. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence.

This Optional Protocol, which entered into force on 3 May 2008, has been accepted by Australia (which acceded on 21 August 2009), and the UK (which signed on 26 February 2009 and ratified on 7 August 2009), but not by Canada, Ireland or New Zealand as at the time of writing. It should be noted that there is a new complaint mechanism. The Optional Protocol to the ICESCR 2008 has a complaint mechanism, which came into effect in 2013 on its tenth ratification. However, although it has been ratified by some European nations, it has not been ratified by any common law countries. It has a number of features to note, including a time limit of a year and a need to demonstrate a ‘clear disadvantage’ (which is similar to the new admissibility provisions before the ECtHR).

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There is also the European Social Charter 1961, which introduced a complaints procedure by an additional Protocol of 1995: Ireland has joined this, but the UK has not. This is a different procedure from the UN mechanisms in that collective complaints can be taken by authorised bodies, such as employers’ organisations and trade unions, and various NGOs. A significant body of case law is developing.

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C. Remedies in the International Mechanisms The general monitoring processes outlined above are suitable for the development of the understanding of what the international standards require: this may include recommendations that any past breaches of rights require remedial action in individual cases. Similarly, inquiries that reveal that rights have been breached can lead to more general recommendations as to how domestic law and practice should be changed and more specific suggestions in individual cases. Individual complaints about specific breaches of rights are also capable of showing what the law should be. Since this may reveal that the state failed in its obligation to secure rights in the domestic regime, one question that might arise is whether the victim is able to obtain a remedy.87 There are some significant differences at the international level. In particular, UN bodies are able only to make recommendations as to any remedy that should be provided, whether in the form of compensation or some other step, whereas the regional human rights mechanisms, including the ECtHR, have a power to award a remedy, including damages. These processes are only available to victims of breaches (and under the UN system, these must be individuals rather than corporate bodies).88 There has been a wide interpretation of the victim requirement by the ECtHR: for example, in Norris v Ireland, 89 a challenge by a homosexual man to the criminalisation of homosexual conduct in Ireland was permitted (on the basis that it violated the Article 8 right to respect for his private life), although he accepted that the risk of being prosecuted was remote. A similar approach was taken by the Human Rights Committee in Toonen v Australia.90

87 Note that it is possible for the domestic legal regime to include a transnational court within its legal system in such a way that a ruling from the court leads to a right to a remedy within the domestic legal system. 88 As has been noted above in light of Article 34 of the ECHR and the First Optional Protocol to the ICCPR. 89 Norris v Ireland (1988) 13 EHRR 186. 90 Toonen v Australia Communication no 488/1992.

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i. Compensation 148

The remedy provision that supplements the ECtHR’s role of making declarations as to rights and findings as to whether or not the required standards have been met is in the form of ‘just satisfaction’:91 Article 41—Just satisfaction If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

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The approach of the ECtHR is invariably to consider whether a remedy of damages is needed for pecuniary loss (for which a causative link is required) and for non-pecuniary loss, which can include such matters as loss of liberty and anxiety, distress and frustration: damages under the first part are rare, but more frequent under the latter part. It invariably awards non-pecuniary damages on the basis of what is equitable. The Court has on a limited number of occasions sought to explain its role in this regard. For example, in Varnava v Turkey,92 which concerned ongoing failures to investigate the disappearances of various Cypriot soldiers taken into military custody during the take-over of the northern part of Cyprus by Turkish forces (and the circumstances of one civilian death at the same time), the Court found that there were breaches of Articles 2, 3 and 5 ECHR but that no damages were necessary. This involved rejecting a claim for a significant sum, including an amount identified as ‘additional damages to reflect … the grave systematic nature of the breaches and their duration’ and a daily amount to encourage specific remedial steps to be taken.93 The Court explained its rejection of this in the following terms. First, the suggestion that there be imposed a fiscal incentive to take action to comply with a requirement to take steps consequent on a finding of a breach, which a domestic court might find an acceptable way of ensuring compliance, was dismissed as being without ‘precedent’ or any ‘basis in principle’.94 That and the size of the claim made to reflect the aggravating features were met with the following comment as to the approach to be adopted under Article 41: 156. … Article 41 of the Convention does not provide a mechanism for compensation in a manner comparable to domestic court systems nor for imposing punitive sanctions on respondent Governments95 … Although the trigger for

91 Similar language was in Article 50 of the Convention as originally drafted. Note also that there is a process whereby the Court seeks to secure a friendly settlement, which may include the payment of compensation. 92 Varnava v Turkey App nos 16064/90 and others, (2010) 50 EHRR 467. 93 App no 16064/90 and others, (2010) 50 EHRR 467 at paras 150–151. 94 App no 16064/90 and others, (2010) 50 EHRR 467 at para 156. 95 The Court cited Orhan v Turkey, App no 25656/94, 6 November 2002 at para 448 (at which in turn various other cases are cited) for the proposition that punitive damages cannot be awarded.

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the Court’s jurisdiction under Article 34 of the Convention is that an individual or private body can claim to be a victim of a breach of their rights, the Court serves a purpose beyond the individual interest in the setting and applying of minimum human rights standards for the legal space of the Contracting States.

This conclusion was said to arise from the ability of the ECtHR to continue to consider a case even where the applicant no longer wished to pursue it, the test for that under Article 37 ECHR being whether respect for human rights so requires. The Court noted also that there were other processes that had been pursued in the past and on an ongoing basis in relation to the situation in northern Cyprus. When the matter proceeded to the Grand Chamber,96 where findings as to the breaches of Articles 2, 3 and 5 were upheld, the position as to damages was modified somewhat, resulting in awards being made. However, the indication as to the purpose of Article 41 was not significantly different (and so the changed outcome rested on the application of the approach to the facts). The applicants repeated their position, and were supported by an NGO intervention that emphasised the importance of reparation for and investigations into disappearances, and noted that the usual approach of the ECtHR was to award compensation.97 As to the question of the ongoing award until the government complied with its obligations as confirmed by the Grand Chamber, it noted that there was the obligation to comply with the ruling of the Court, which was supervised by the Council of Ministers in accordance with Article 46. It noted its constant view that punitive damages were not available, and added that there was no real scope ‘for directing governments to pay penalties to applicants which are unconnected with damage shown to be actually incurred in respect of past violations of the Convention’, which would be very speculative.98 The Court then set out its approach to the award of damages under Article 41 (citing various cases for each of the propositions noted): 224. The Court would observe that there is no express provision for non-pecuniary or moral damage. Evolving case by case, the Court’s approach in awarding just satisfaction has distinguished situations where the applicant has suffered evident trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity … and those situations where the public vindication of the wrong suffered by the applicant, in a judgment binding on the Contracting State, is a powerful form of redress in itself. In many cases where a law, procedure or practice has been found to fall short of Convention standards this is enough to put matters right … In some situations, however, the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the

96 97 98

App no 16064/90 and others, 18 September 2009. ibid at [220]–[221]. ibid at [222]–[223].

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The Obligation to Secure Internationally Recognised Human Rights applicant as to require something further. Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court’s role to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.

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The effect of this was that it was not possible to deduce ‘specific scales of damages’ arising from past disappearance cases; and the background to the case, and the ongoing processes seeking to remedy past problems were relevant. However, the length of the uncertainty faced by the applicants meant that the case had a ‘grievous nature’ which merited €12,000 per person, on an ‘equitable’ basis.99 This was endorsed by the Grand Chamber in Al-Jedda v UK,100 a loss of liberty case: The court recalls that it is not its role under Art 41 to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage.101

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The African Court on Human and Peoples Rights may award damages or grant any other ‘appropriate orders to remedy the violation’.102 Similarly, the InterAmerican Court of Human Rights has the power to order ‘fair compensation’ if that is appropriate.103 The contrast is with the UN bodies, which may only indicate their views and recommend compensation rather than awarding it. Interim remedies are also permissible in certain situations. These can be ordered by the African Court on finding that a situation involves extreme gravity and urgency and irreparable harm might otherwise occur.104 The

99

ibid at [225]. Al-Jedda v UK App no 27021/08, (2011) 53 EHRR 23, para 114. 101 Varnava in the Grand Chamber is cited as the authority for this. (Note that the EHRR report of this erroneously cites Varnava in the Chamber judgment.) 102 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights 1998, Article 27(1). There will be an African Court of Justice and Human Rights in due course: its Statute (of 2008) contains a similar power in Article 45: see n 70 above. 103 American Convention on Human Rights 1969, Article 63(1). 104 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights 1998, Article 27(2). 100

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Inter-American Court has similar powers.105 The ECtHR also has jurisdiction to award interim measures: rule 39 of its Rules of Court 2014. Rule 92 of the Rules of Procedure of the Human Rights Committee also gives this power. ii. Enforcement The Member States of the Council of Europe undertake to comply with the rulings of the Court, which undertaking is set out in Article 46 of the ECHR. The Committee of Ministers supervises this process, and has powers to refer a matter back to the ECtHR for clarification of the judgment and also for an assessment of whether steps taken are adequate to comply with the requirements of the Convention.

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Article 46—Binding force and execution of judgments 1. 2. 3.

4.

5.

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.

The ECtHR has also become active in this field, adopting a pilot judgment procedure whereby it remains involved in supervising the steps taken under a judgment, particularly if it is an issue in relation to which there are many similar claims pending from a particular country: essentially, it gives a country a specific time to solve a systemic problem, and delays considering other claims until that time has passed, but will resume its assessment if there is no satisfactory progress (which will mean that the state has to engage in the court process in relation to those cases).106 Nevertheless, the enforcement mechanism is largely political. This was noted by Murray CJ in the Irish Supreme Court case in McD v L and Another,107 who was keen to point out the traditional dualist dichotomy between 105

American Convention on Human Rights 1969, Article 63(2). For an example, see the position of prisoner voting in the UK and the case of Greens and MT v UK App nos 60041/08 and 60054/08, (2011) 53 EHRR 21, [2010] 2 Prison LR 22. 107 [2009] IESC 81. 106

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international obligations on the state and what are impliedly more ‘real’ domestic remedies. He said that it was ‘important to underline that the obligations of Contracting Parties under the Convention are engaged at international level’, with the corollary that ‘The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention’. Rather, ‘The Contracting States are answerable at international level before the ECtHR, an international court …’. He noted that this might lead to damages or declaratory judgments, but added that: ‘orders or declarations of the Court are not enforceable at national level unless national law makes them so’ (which national law may, but which is not the case in Ireland or in the UK). This is so even though a contracting state may be in breach of its obligations under Article 13 if it fails to ensure that everyone whose rights and freedoms as set out in the Convention has any effective remedy for their breach by the state. However, as Murray CJ was also to note, although some cases might linger in the Committee of Ministers, the only instance of total recalcitrance that led to the ultimate political sanction of expulsion from the Council of Europe was in the case of Greece during a military junta (which he noted followed action taken by various countries in the ECtHR to which the regime in Greece refused to respond). It could be suggested that the contrast between a court whose judgments are against a state and invariably followed because of political imperatives and one whose judgments have the back-up of sanctions is not to be exaggerated: after all, it is often the case in a domestic public law setting that a declaration as to the law is often as valuable as an order that specified steps be taken with penal sanctions attached because the rule of law is a political imperative that is followed. Within the UN system, there are follow-up procedures. These may be part of the treaty giving rise to the complaint mechanism. This occurs in relation to the decisions of the Committee on the Elimination of Discrimination Against Women. Once it has given its views and made any recommendations, the state has to indicate within six months what actions it has taken, and the Committee may request supplemental information: CEDAW Optional Protocol—Article 7 4.

5.

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The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 18 of the Convention.

Alternatively, the follow-up may be a matter of the rules of procedure adopted: eg, rule 101 of the Rules of Procedure of the Human Rights Committee 2012.

3 The Pre-Existing Protection of Human Rights I.

Fundamental Rights in the Common Law Tradition ...............................4 A. The Rule of Law ..............................................................................6 B. The Substantive Rights Protected ...................................................22 C. The Method of Protection—Legality ..............................................29 D. The Method of Protection—Control of Executive Discretion ........58

II.

The Value of International Law in the Common Law Tradition ..........63 A. Customary International Law ........................................................65 B. International Treaty Law ...............................................................74 i. Ireland .....................................................................................76 ii. The United Kingdom ...............................................................84 iii. The UK and Ireland: the European Union .............................104 iv. Australia ................................................................................115 v. New Zealand .........................................................................125 vi. Discussion..............................................................................139

III.

The Extent and Limits of the Common Law Approach ....................145

The basic obligation under the ECHR and ICCPR, and the other international human rights treaties outlined in Chapter 2, is to guarantee the various rights set out: there is no requirement to incorporate the text. Hence, whilst the UK and Irish statutes make direct use of the ECHR, that was not necessary; equally, the fact that the Australasian statutes do not use the language from the ICCPR is not legally problematic. Whilst it might be sensible to have domestic judges use the same language as that considered by the international body, there is no obligation in that regard. Article 2(2) of the ICCPR helpfully makes the point that this may involve making changes in domestic laws and policies, but need not:

1

2

(2) Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

This language makes clear that the duty to make changes is preconditioned on domestic law being inadequate. As the bills of rights statutes are designed to give effect to the international obligation, an assessment of their potential

3

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to make a difference in practice requires a review of whether the rights are reflected adequately in domestic law in any event. This turns on three aspects of the law that existed prior to the bills of rights statutes. One is the substantive rights recognised within the common law tradition; the second is the process by which those rights are protected; the third is the extent to which international human rights obligations are taken into account in the domestic process without the intervention of the bills of rights statutes, both in terms of statutory interpretation and the development of the common law. Once bills of rights statutes are in place, questions arise as to the ongoing relationship between the existing law and the statutory regime, including the development of the common law, the role for existing rights and the possibility that they might be reinvigorated. The latter questions are discussed in Chapter 7.

I. FUNDAMENTAL RIGHTS IN THE COMMON LAW TRADITION

4

5

The encapsulation of rights in documents such as the ICCPR and the ECHR has been said to reflect the rights that were most familiar to the common law. Lord Hoffmann in the case of R v Secretary of State for the Home Department ex p Simms, which is discussed below, noted that ‘much of the Convention reflects the common law ... That is why the United Kingdom government felt able in 1950 to accede to the Convention without domestic legislative change’.1 Since 1950, the international human rights regime has developed significantly; to assess whether the common law tradition reflected the requirements of the developed international regime, it is necessary to review the rights that are found in the common law and the methods used by the common law to protect those rights.

A. The Rule of Law 6

A starting point is the rule of law, and its core concept that all, including those exercising state power, are subject to legal requirements and judicial determination of what the law is. Most countries have a Constitution, which will recognise this either explicitly or implicitly. For example, in Marbury v

1 R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at 131H–132A. In ‘Rights Brought Home: The Human Rights Bill’, the White Paper in support of the proposed legislation, available at www.archive.official-documents.co.uk/document/hoffice/rights/intro. htm, it was said that ‘The United Kingdom played a major part in drafting the Convention, and there was a broad agreement between the major political parties about the need for it (one of its draftsmen later became, as Lord Kilmuir, Lord Chancellor in the Conservative Administration from 1954 to 1962). The United Kingdom was among the first group of countries to sign the Convention. It was the very first country to ratify it, in March 1951’ (para 1.2).

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Madison,2 in which the Supreme Court of the US famously ruled that the US Constitution was a form of supreme law such that ‘a law repugnant to the Constitution is void’,3 the propriety of the court determining the meaning of the Constitution was part of the reasoning process. Marshall CJ noted the right of the people to establish a constitutional framework on the basis of which they would be governed, including by imposing limits on what certain governmental entities could do; the question would then be whether that Constitution was a supreme law or was amendable by statute in that a conflicting statute was still to be respected as law. As to who should decide that, he commented:4 It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

On the facts of the case, the Supreme Court determined that statutory jurisdiction purportedly given to it was contrary to the Constitution and so void. The alternative view is that it is for other responsible bodies within the infrastructure of the state to determine what is meant by a Constitution. This can be illustrated by reference to the position in Australia, where the Constitution is based on a UK statute, the Australia Act 1900, which, among other things, sets out the functions of the Commonwealth Parliament, executive and judiciary, deals with finance and trade, makes provision for the states to continue and for new states to be added, and sets a process for the amendment of the Constitution.5 It is now accepted that the courts may invalidate laws that are inconsistent with the Constitution: but the contrary viewpoint has been noted. In the Communist Party case, Australian Communist Party v Commonwealth,6 the question was the validity of the Communist Party Dissolution Act 1950, which was based on the premise that the party and bodies linked to it endangered the existence of the Commonwealth (to the satisfaction of the Governor-General); they were dissolved, forfeited their property and their organisers were barred

2 Marbury v Madison (1803) 5 US 137. It is to be noted that in Hylton v US (1796) 3 US 171, the Supreme Court had upheld a tax on carriages which was challenged on the basis that it breached various parts of Article 1 of the Constitution, and so it may be argued that this established the jurisdiction of the Court to confirm the constitutionality of a statute. 3 5 US 137 at 180. 4 ibid at 177–78. 5 Note that the UK Parliament passed the Australia Act 1986, section 1 of which indicated that the Parliament terminated its power to legislate for Australia. 6 Australian Communist Party v Commonwealth (1951) 83 CLR 1.

7

8

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The Pre-Existing Protection of Human Rights

from public service and labour union positions. The High Court by majority held that the statute was invalid. Fullager J noted that7 there are those, even to-day, who disapprove of the doctrine of Marbury v Madison 5 US 137, 2 Law Ed 60, and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v Madison 5 US 137, 2 Law Ed 60 is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.

9

Clarity that a constitution is a supreme law one and that the judiciary has to responsibility to determine compliance of other laws with the constitution may come in the document itself. In Ireland, the Constitution of 1937 sets out in Article 15 that the Oireachtas has the ‘sole and exclusive power of making laws’ but that: 15.4.1. The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof. 15.4.2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

10

As to the role of the judiciary, Article 26 allows the President to refer to the Supreme Court the question of the constitutionality of a Bill before it becomes law, and Article 34 provides for the High Court and Supreme Court to rule on ‘the validity of any law having regard to the provisions of this Constitution’ (Article 34.3.2). Article 34.4.4 provides that: No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

11

See also the South African Constitution of December 1996, which sets out its supreme law status in section 2 and in section 167 provides for the Constitutional Court and includes in its powers making the ‘final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional’. Section 165 requires that there be respect given to the courts, as the holders of the judicial authority of the Republic: 165. Judicial authority 1. 2. 3. 4.

7

The judicial authority of the Republic is vested in the courts. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

ibid at 262–63.

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The rule of law is also a fundamental precept in the UK and New Zealand despite their avoidance of a supreme law constitution. For example, the Constitutional Reform Act 2005 (UK), which made various changes, including establishing the Supreme Court of the UK, notes:

12

1. The rule of law This Act does not adversely affect— (a) the existing constitutional principle of the rule of law, or (b) the Lord Chancellor’s existing constitutional role in relation to that principle.

Similarly, the Lawyers and Conveyancers Act 2006 (NZ) indicates in section 4 that the fundamental obligations of lawyers include upholding the rule of law and facilitating the administration of justice; and section 3(2) of the Supreme Court Act 2003 (NZ), which removed the jurisdiction of the Privy Council as the final appellate court for New Zealand and established its Supreme Court, noted that the statute did not affect ‘New Zealand’s continuing commitment to the rule of law …’.8 If there is a supreme law constitution that incorporates fundamental rights as well, the judicial function of determining constitutionality will also include an assessment of the validity of a statute in terms of rights. If it does not, or there is no supreme law constitution, as in the UK and New Zealand, the potential for the rule of law to offer protection for fundamental rights will turn on what is meant by the rule of law. Does it cover merely the need to have a law of some sort (a thin, formalist version) or does it also require that there be a particular content to a law that respects other constitutional precepts? This arose in litigation in the UK, which raised the question of whether judicial review had been excluded by implication through the creation of a new tribunal system, which included an appeal tribunal that was designated to be a superior court of record, and from which certain matters could be appealed further to the Court of Appeal (but not certain other matters): R (Cart, U and XC) v Upper Tribunal and Special Immigration Appeals Commission.9 The government suggested that the designation was sufficient to exclude judicial review. The English High Court rejected this, ruling that express and clear language was necessary to remove the fundamental right of access to the High Court to determine the legality of the action of an inferior body: the problem with the government argument was that it would allow the inferior body to have the last say on the what the law meant (and so potentially to proceed illegally) except if the statute also provided a right of appeal. Laws LJ cited the rule of law as one reason for this protection of judicial review: ‘34. The court’s ingrained reluctance to countenance the statutory

8 It also indicates in section 3(1) that the purposes include improving access to justice and allowing the law to be resolved with an understanding of the country’s history and traditions. 9 R (Cart, U and XC) v Upper Tribunal and Special Immigration Appeals Commission [2009] EWHC 3052, [2011] QB 120, [2010] MHLR 35.

13

14

15

16

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17

18

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The Pre-Existing Protection of Human Rights

exclusion of judicial review has its genesis in the fact that judicial review is a principal engine of the rule of law’. That led to a discussion of what was meant by the rule of law. The judge noted that ‘statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive government which (in the usual case) procured its making, and the public body by which the statute is administered’.10 In short, there was a need for an impartial interpreter of the meaning of a text to stop it becoming a mere matter of opinion, which would undermine the force of statute law.11 As such, the retention wherever possible of judicial review by the High Court—the ‘paradigm for such an authoritative source’12—was part of the process of ensuring the legislative sovereignty of Parliament (along with the precept that Parliament could not bind its successors).13 This conclusion was upheld on appeal: indeed, the main argument became the extent to which judicial review was proper in light of the new appellate structure (on the basis that the Upper Tribunal was not a court of unlimited jurisdiction, which was the key component to it being exempt from judicial review in the absence of clear words).14 In the UK Supreme Court,15 Baroness Hale for the Court specifically supported the views of Laws LJ that parliamentary sovereignty was supported by having a judiciary that was independent and authoritative.16 Lord Phillips agreed, noting: ‘64. … The rule of law requires that the laws enacted by Parliament, together with the principles of common law that subsist with those laws, are enforced by a judiciary that is independent of the legislature and the executive’. The rules of the common law that are protected by the judiciary include various human rights standards in addition to the core right outlined by Laws LJ of the right of access to the High Court. Lord Bingham has expressed as much: in his 2006 lecture entitled ‘The Rule of Law’,17 he provided several sub-rules to supplement the central idea that all persons and authorities be ‘bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’. These included the requirement that the law be intelligible and predictable, that there be limitations on the use of discretion, the equal application of the law in the absence of an objective ground for differentiation, the need for a dispute resolution process, which has to be fair, the need for state officials to exercise powers for the purpose for which they are conferred and within the limits of the power. 10

ibid at [36]. ibid at [37]–[38]. 12 ibid at [39]. 13 ibid at [38]. In the context of a constitutional system placing limits on legislative powers, this would become the legislative sovereignty within those constitutional constraints. 14 [2010] EWCA Civ 859, [2010] MHLR 353. 15 [2011] UKSC 28, [2012] 1 AC 663, [2011] MHLR 196. 16 ibid at [30]. 17 www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php; developed further in his book The Rule of Law (London, 2010). 11

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His fourth sub-rule was one that set out a requirement for substantive content, namely ‘the law must afford adequate protection of fundamental human rights’. He referred back to the Constitutional Reform Act and explained that if laws setting out inhumane treatment for certain groups were classified as abiding by the rule of law, that would ‘strip the existing constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue and infringe the fundamental compact which ... underpins the rule of law’. The eighth was that there should be compliance with international legal obligations (which would include human rights obligations). He accepted that whilst what was covered under this heading might be somewhat vague at the outer limits,

20

within a given state there will ordinarily be a measure of agreement on where the lines are to be drawn, and in the last resort (subject in this country to statute) the courts are there to draw them. The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental.

There is support in international human rights jurisprudence for this ‘thick’ version of the rule of law. For example, the Committee on Economic, Social and Cultural Rights, the expert body that monitors the ICESCR, has indicated in its General Comment no 9, ‘Substantive issues arising in the implementation of the ICESCR’,18 that courts in some countries were not giving any legal effect to the Covenant. This was said to be in error because ‘the rule of law … must always be taken to include respect for international human rights obligations’. This means that ‘courts should take account of Covenant rights where this is necessary to ensure that the State’s conduct is consistent with its obligations under the Covenant’, at least where this is possible ‘[w]ithin the limits of the appropriate exercise of their functions of judicial review’.

21

B. The Substantive Rights Protected Irrespective of where the rule of law leads in terms of protecting rights, the countries which share the common law tradition typically reflect a number of substantive rights in their legal systems: these may be placed in a written constitution, or they may be contained in statutes and recognised under the common law. Some of these are of ancient origin (and were exported as part of the colonial transposition of the common law). The Magna Carta of 1215 is the obvious starting point:19 within its concentration on securing rights for barons and earls, and clauses relating to weights and measures,20 there is also the commencement of the rule of

18

E/C.12/1998/24, 3 December 1998, at [13]–[14]. Available in full at www.britannia.com/history/docs/magna2.html; see also AE Dick Howard, Magna Carta: Text and Commentary (Charlottesville, VA, 1998). 20 Clause 35 sets the London quart as the measure of wine, ale and corn and makes further provision for cloths and weights. 19

22

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law: for example, clauses 30 and 31 protect horses, carts and wood from seizure by sheriffs and bailiffs. A good indication of the statutes of real interest in this category can be found in the English statutes that remain in effect in New Zealand, many of which involve prohibitions on the exercise of power through prerogative powers of the monarch. These include the following: (i)

(ii)

Section 29 of Magna Carta 1297: Imprisonment, etc contrary to law. This states that freemen cannot ‘be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed’ or dealt with ‘but by lawful judgment of his peers, or by the law of the land’. It adds: ‘We will sell to no man, we will not deny or defer to any man either justice or right’. Section 4 of the Criminal and Civil Justice Statute 1351: None shall be taken upon suggestion without lawful presentment; nor disfranchised, but by Course of Law. This confirms that the need for lawful processes is not satisfied by decisions of the King and his Council unless there is due process in the commencement of that process: none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom … by petition or suggestion made to our Lord the King, or to his Council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redresseed and holden for none.

(iii)

(iv)

(v)

(vi)

Section 3 of the Civil and Criminal Justice Statute 1354: None shall be condemned without due process of Law. This extends protection previously offered to freemen: ‘no man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law’. Section 3 of the Observance of Due Process of Law Statute 1368: None shall be put to answer without due process of law. This abolishes the process of accusing people through the King’s Council and reasserts that judicial due process is required: it indicates that ‘no man be put to answer without presentment before Justices, or matter of record, or by due process and writ original, according to the old law of the land’. The Petition of Right 1627, which limits taxation not approved by the legislature, provides that there be no imprisonment without reason, and places restrictions on the billeting of armed forces. Section 2 of the Bill of Rights 1688, which restates various rights and constitutional principles, including that the monarch cannot suspend laws or their execution, raise taxes, or maintain a standing army in peacetime except with parliamentary consent; elections should be free; speech and proceedings in Parliament cannot be impeached outside

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Parliament; there be no excessive bail, nor excessive fines, nor cruel and unusual punishments; and juries are required. Other rights from similar statutes may exist in an updated form: for example, the Habeas Corpus Act 2001 (NZ) restates and modifies the practice relating to the habeas corpus right (which is recognised in the NZBORA). This had previously existed as a common law right, with the courts of New Zealand having procedural rules that required English procedure to be followed.21 The existence of the ancient statutory guarantees is often taken for granted. For example, Re Bolton; Ex Parte Douglas Beane22 raised the question of whether a permanent resident of Australia who had absconded from the US armed forces during the Vietnam War could be extradited to the USA as a deserter. In a habeas corpus challenge, the High Court determined that there was no statutory authority to detain him, the relevant statute being limited to those who deserted whilst visiting Australia. In a concurring judgment, Brennan J noted:23

25

26

Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force. This is such a case and the common law of habeas corpus and the Habeas Corpus Act 1679 (31 Car II c2) as extended by the Habeas Corpus Act 1816 (56 Geo III c100) are such laws.

In addition to statutory rights, various substantive rights have been recognised by the judges of the common law. In Momcilovic v R,24 as part of his contention that statutory bills of rights were problematic, in part because detailed rules relating to rights in statutory or common law form were preferable, Heydon J set out a lengthy list of fundamental rights that have been found to merit protection under the common law, the initial ones in the list being identified by the Attorney-General for Western Australia in submissions to the court (footnotes as in original): 444. … freedom from trespass by police officers on private property;25 procedural fairness;26 the conferral of jurisdiction on a court;27 and vested property interests.28

21

See New Zealand Law Commission Habeas Corpus Procedure (R 44, 1997). Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514. 23 ibid at 520–21. 24 Momcilovic v R [2011] HCA 34. 25 [fn 640] Coco v The Queen (1994) 179 CLR 427 at 436–37, [1994] HCA 15. 26 [fn 641] Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 at 147–48 [74], 272 ALR 14 at 32, [2010] HCA 41. 27 [fn 642] Shergold v Tanner (2002) 209 CLR 126 at 136–37 [34], [2002] HCA 19. 28 [fn 643] Clissold v Perry (1904) 1 CLR 363 at 373, [1904] HCA 12. 22

27

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The Pre-Existing Protection of Human Rights

To these may be added others: rights of access to the courts;29 rights to a fair trial;30 the writ of habeas corpus;31 open justice;32 the non-retrospectivity of statutes extending the criminal law;33 the non-retrospectivity of changes in rights or obligations generally;34 mens rea as an element of legislatively-created crimes;35 freedom from arbitrary arrest or search;36 the criminal standard of proof;37 the liberty of the individual;38 the freedom of individuals to depart from and re-enter their country;39 the freedom of individuals to trade as they wish;40 the liberty of individuals to use the highways;41 freedom of speech;42 legal professional privilege;43 the privilege against self-incrimination;44 the non-existence of an appeal from an acquittal;45 and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.46

28

Another useful list is provided in the guidance on the drafting of legislation by New Zealand’s Legislation Advisory Committee. In chapter 3 of its Guidelines from 2001,47 it points out the various principles that common law judges

29 [fn 644] Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286; Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977; R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198 at 210; R v Lord Chancellor, ex parte Witham [1998] QB 575 at 585; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492–93 [32]. 30 [fn 645] R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 541–42, [1923] HCA 39; R v Lord Chancellor, ex parte Witham [1998] QB 575 at 585; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28], [2001] HCA 14. 31 [fn 646] Cox v Hakes (1890) 15 App Cas 506 at 527–30; Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 91; Wall v The King; Ex parte King Won and Wah On [No 1] (1927) 39 CLR 245 at 250, [1927] HCA 4. 32 [fn 647] Scott v Scott [1913] AC 417 at 473–77. 33 [fn 648] R v Reah [1968] 1 WLR 1508, [1968] 3 All ER 269; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28]. 34 [fn 649] Maxwell v Murphy (1957) 96 CLR 261 at 267, [1957] HCA 7; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194, [1960] HCA 80. 35 [fn 650] Sweet v Parsley [1970] AC 132 at 148 and 152. 36 [fn 651] Bowditch v Balchin (1850) 5 Exch 378 at 381 [155 ER 165 at 166]; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28]. 37 [fn 652] Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28]. 38 [fn 653] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520, 523 and 532, [1987] HCA 12. 39 [fn 654] Potter v Minahan (1908) 7 CLR 277 at 305–06, [1908] HCA 63. 40 [fn 655] The Commonwealth and the Postmaster-General v The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457 at 464, [1910] HCA 28. 41 [fn 656] Melbourne Corporation v Barry (1922) 31 CLR 174 at 206, [1922] HCA 56. 42 [fn 657] R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 130. 43 [fn 658] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 [11], [2002] HCA 49. 44 [fn 659] Hamilton v Oades (1989) 166 CLR 486 at 495, [1989] HCA 21. 45 [fn 660] Davern v Messel (1984) 155 CLR 21 at 31, 48, 63 and 66, [1984] HCA 34. 46 [fn 661] Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252, [1992] HCA 24; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 298 [28]; Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212 at 237–38 [124]. 47 Available at www2.justice.govt.nz/lac/. The Committee consists of judges, practitioners, academics and Parliamentary Counsel.

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will apply, many of which are rights promoting. A 2012 summary of the Guidelines notes these to be as follows:48 1. The dignity of the individual is a paramount concern of the law. 2. The principle of legality, which essentially means that legislation will be interpreted in a manner consistent with legal principles. 3. The citizen is entitled to have access to the courts, despite legislation which might be construed to remove it. 4. Construction of legislation is a matter for the courts and not the executive. 5. No one will be required to perform something that is impossible; from which follows the presumption against construing legislation as having retrospective effect. 6. No one is guilty of a crime who has not committed a criminal act with knowledge of the facts that make it criminal. 7. The citizen is not required to answer questions by anyone, including officials. 8. The principle in favour of liberty of the subject. 9. No one may be penalised except by a general measure rather than by act of attainder. 10. No tax will be imposed expect [sic] by Parliament. 11. Property will not be expropriated without full compensation. 12. Everyone exercising public authority must act legally, reasonably, and honestly. 13. The principle of the rule of law that no one, including the Crown in exercise of executive authority, is above the law. 14. All are treated equally under the law. 15. New Zealand’s constitutional conventions are not infringed. 16. New Zealand law conforms with both international law and our treaty obligations. 17. Delegated authority must be exercised within the power actually conferred, despite use of subjective language. 18. Foreign tax legislation is unenforceable in New Zealand courts.

C. The Method of Protection—Legality The central method by which these statutory and common law rights are protected is that in carrying out their rule of law function of interpreting the law, the concept of legality is used: this means that the courts will not construe statutory provisions to interfere with fundamental rights existing in the common law tradition unless there is clear and express language (in just the same

48

Chapter 3 of the Index to the Guideline, also available at www2.justice.govt.nz/lac/.

29

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way as judicial review will not be excluded without the relevant clarity). In Re Bolton; Ex parte Beane, Brennan J noted:49 [T]he courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework. It is presumed that that is the intention of Parliament, … Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.

30

31

Similarly, Deane J stated:50 ‘A legislative provision should not be construed as effecting such a derogation from fundamental principle relating to the freedom of the subject in the absence of a clear legislative intent that it should be so construed’. In Electrolux Home Products Pty v Australian Workers’ Union,51 Gleeson CJ noted that the presumption of legality was part of the rule of law because of its centrality to the framework of judicial interpretation: 21.

32

… The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

In giving the list of rights of common law rights in Momcilovic v R, noted above, Heydon J started with the indication that they were protected by the presumption of legality.52 In the same case, French CJ gave the following account of it: 43. The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law.53 … The principle of

49

Re Bolton, ex parte Beane (1987) 162 CLR 514 at 523. ibid at 532. The joint opinion of Mason CJ, Wilson and Dawson JJ was consistent with this: their conclusion was that it was not proper to imply the power argued for by the authorities in light of its impact on the fundamental right to liberty (at 520). 51 Electrolux Home Products Pty v Australian Workers’ Union [2004] HCA 40, 221 CLR 309, 209 ALR 116. Similarly, in Al-Kateb v Godwin [2004] HCA 37, 219 CLR 562 at [20], he noted ‘the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction … In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament’. 52 He cited Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003) 211 CLR 476, which is noted below. 53 [fn 70] Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J, [1908] HCA 63; Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 436–37 per Mason CJ, Brennan, Gaudron and McHugh JJ, [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ, [2004] HCA 40. 50

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legality … is a powerful one. It protects, within constitutional limits, commonly accepted ‘rights’ and ‘freedoms’.

Although he talks of ‘common law’ rights, the rights include those whose recognition started with a statute. In the UK, the most often-cited recognition of the concept is R v Secretary of State for the Home Department ex p Simms.54 In this case, the issue was whether the Home Secretary could prevent a prisoner seeing a journalist who was interested to investigate the safety of Mr Simms’ conviction (or permit it only on restrictive conditions that prevented the visit being useful). The House of Lords identified freedom of expression as the fundamental right in play and held that the principle of legality meant that restrictions required clear language by Parliament. A general power to manage prisons was insufficient. Lord Steyn, giving the leading opinion, noted that:55

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The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. Nevertheless, freedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests. … Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives.56

The countervailing interests on the facts, including the loss of liberty caused by the sentence of imprisonment (which the Court of Appeal had held led to the loss of the right to speak to a journalist) or the need for discipline in prison, might justify restrictions on such matters as joining in debates on politics. But the speech relevant to a challenge to the safety of their convictions was ‘qualitatively of a very different order. … In principle it is not easy to conceive of a more important function which free speech might fulfil’.57 As such, any blanket ban on interviews with prisoners would be ultra vires as ‘exorbitant in width in so far as they would undermine the fundamental rights invoked’.58 It was decided that there was no blanket ban (despite that being the literal interpretation of the relevant rules) because the fundamental rights in play meant that the rules had to be construed so as not to infringe freedom

54

[2000] 2 AC 115. ibid at 125G–126G. Interestingly, Lord Steyn immediately recorded that Article 10 of the ECHR set out the right and the standard for permissible restrictions (which, he recorded, reflected English law). 56 These objectives were identified as ‘the self-fulfilment of individuals in society’, the ascertainment of truth through the marketplace of ideas, and its instrumental role as ‘the lifeblood of democracy’ in such matters as informing debate, acting to counter abuse of power. And, most importantly on the facts: ‘It facilitates the exposure of errors in the governance and administration of justice of the country’. It was noted that interviews of the sort the claimants wished to have were, it was inferred, previously successful; it was also noted that there was no evidence of any discipline problems being caused as a result: [2000] 2 AC 115 at 127C–128H. 57 [2000] 2 AC 115 at 127B–C. 58 ibid at 130C. 55

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of expression. The concept of legality that permitted this construction was described as ‘a presumption of general application operating as a constitutional principle’.59 The explanation for the principle and its importance of ensuring that Parliament took full responsibility for any breaches of rights, was set out in the concurring speech of Lord Hoffmann:60 Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

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At around the same time, the principle was also used by Lord Steyn in the context of whether mens rea should be implied into a criminal offence. In B (A Child) v DPP,61 a 15-year-old boy who asked a 13-year-old girl to perform oral sex was charged with inciting a child under 14 to perform a grossly indecent act, and the question was whether his belief that she was at least 14 amounted to a defence. It was determined by the House of Lords (overturning the Divisional Court) that mens rea was an implied element unless Parliament provided to the contrary expressly or by necessary implication (which it had 59 ibid at 130E. His Lordship noted that he and Lord Browne-Wilkinson had used the principle in R v Secretary of State for the Home Department ex p Pierson [1998] AC 539. The latter commented that Parliament was taken not to exclude common law principles in the absence of express intention or necessary implication, citing as examples the rules of natural justice (R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531), the free flow of communications between solicitor and client (R v Secretary of State for the Home Department ex p Leech [1994] QB 198), and the right of access to the courts (R v Lord Chancellor ex p Witham [1997] 2 All ER 779); the statement of principle being ([1998] AC 539 at 575) ‘A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts ... which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament’: [1998] AC 539 at 573G–575. Lord Steyn expressed the view that these and other examples were manifestations of the principle of legality: [1998] AC 539 at 587H–590A. It is also worth noting, given that a challenge to human rights standards is that they leave too much room for disagreement and so are not adequately precise for the judicial task (such that the legislature should settle which principles should govern), that Lords Browne-Wilkinson and Steyn reached different conclusions on the application of the common law principles to the facts in front of them (which related to the question of whether a minimum term of imprisonment to be served by a prisoner convicted of murder had effectively been increased when it was not reduced after the Home Secretary accepted that an aggravating feature thought to be present when this tariff was originally fixed was not in fact present). 60 [2000] 2 AC 115 at 131D–G. 61 B (A Child) v DPP [2000] 2 AC 428.

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not done in relation to the offence in question, such that the defendant did not have the mens rea). Lord Steyn, in support of this approach, noted:62 [I]n the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. This is the theoretical framework against which section 1(1) must be interpreted.

Other instances of values and rights protected by this principle have been revealed by UK judges since the Human Rights Act 1998 came into effect (so making clear that it remains important). One is the admissibility of evidence obtained by torture. In A and others v Secretary of State for the Home Department (No 2),63 the question was whether the Special Immigration Appeals Tribunal, in determining the propriety of the detention of suspected terrorists, could admit evidence obtained through torture in a foreign country (in which British officials were not implicated) by reason of procedural rules that allowed evidence that would not be admissible in a court of law. The House of Lords concluded that whilst the Secretary of State could rely on such evidence when certifying that someone was a suspected terrorist, the judicial body supervising that power could not: and general language—referring to evidence not admissible in court—was not sufficient to permit that to happen. Lord Bingham summarised the position: 51.

The Secretary of State is right to submit that SIAC is a body designed to enable it to receive and assess a wide range of material, including material which would not be disclosed to a body lacking its special characteristics. And it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power on SIAC to receive third party torture evidence. But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all. ... The matter is governed by the principle of legality very clearly explained by my noble and learned friend Lord Hoffmann in R v Secretary of State for the Home Department ex p Simms … It trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose

62 ibid at 470G–H. See also R v K [2001] UKHL 41, [2002] 1 AC 462, which concerned an offence of indecent assault, in relation to which the statute provided that someone under 16 could not consent. The House of Lords determined that there was an implied mens rea of a lack of belief that the girl involved was under 16. Lord Steyn, in a concurring speech, noted that the presumption of mens rea was a constitutional principle, and so it supplemented the language defining the offence without any need for ambiguity: para 32. 63 A and others v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221.

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52.

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He added that the ECHR prohibition on torture supplemented this reasoning. Lord Hope noted that the Convention Against Torture 1984 required both that torture be a crime subject to universal jurisdiction and also that evidence obtained by torture be made inadmissible. The former obligation was embodied in a statute (section 134 of the Criminal Justice Act 1988); but there was no need for a statutory exclusionary rule because that was part of the common law: 112.

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authority the torture was inflicted. To that question I would give a very clear negative answer. I accept the broad thrust of the appellants’ argument on the common law. The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.

… The law will not lend its support to the use of torture for any purpose whatsoever. It has no place in the defence of freedom and democracy, whose very existence depends on the denial of the use of such methods to the executive.

There is a difference of emphasis in the comments of Lords Bingham and Hope: the former makes clear that Parliament might allow torture evidence to be used, provided that there is clarity in the language, whereas the latter suggests that there is a more absolute prohibition on the judicial process being tainted in that manner.64 Legality was also brought into play in Ahmed and Others v HM Treasury,65 which related to the enforcement asset freezing directives from the UN Security Council. The UN Charter requires that members carry out the decisions of the Security Council (Article 25), and also indicates that the Charter takes priority over other international obligations (Article 103);66 the Security Council may decide on the relevant methodology for enforcing its decisions (Article 41). The United Nations Act 1946 (UK) is described in its preamble as ‘An Act to enable effect to be given to certain provisions of the Charter of the United Nations’. Section 1 provides: (1) If, under article 41 of the Charter … the Security Council of the United Nations call upon His Majesty’s Government in the United Kingdom to apply any measures to give effect to any decision of that Council, His Majesty may by Order in Council make such provision as appears to Him necessary or expedient for enabling those measures to be effectively applied, including (without prejudice to the generality

64 The House, whilst unanimous on this point, was split on the question of what standard had to be applied to test whether evidence might be the product of torture and so be excluded. 65 Ahmed and Others v HM Treasury [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534. 66 The House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332 expressed the view that obligations arising as a result of the Security Council’s directions took precedence over obligations under the ECHR in light of Article 103 of the UN Charter.

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of the preceding words) provision for the apprehension, trial and punishment of persons offending against the Order.67

Section 1(4) requires Orders to be laid before Parliament. But this is done only for information, not debate on the merits.68 The two Orders in Council in question arose from Security Council directions in resolutions relating to assets allegedly being used for terrorist purposes. One allowed the Treasury to designate the person whose assets were frozen (on the test that the person ‘is or may be’ on reasonable grounds involved in terrorism); the other gave effect to the freezing of assets of people on a list compiled by the Security Council. The Supreme Court found the Orders in Council in large part ultra vires. The first had an improper reasonable suspicion test, which went beyond what was necessary or expedient to give effect to the relevant Security Council resolution, which referred to those who were involved. The second was held not to exclude procedural fairness before those named had action taken against them. The principle of legality was central to the reasoning: but it was subject to dispute, given a partly dissenting view from Lord Brown.

67 Similar statutes are common. In New Zealand, section 2 of the United Nations Act 1946 similarly provides for the Governor-General to make regulations by Order in Council as appear ‘necessary or expedient’ to give effect to any decision of the Security Council, and they have to be laid before Parliament after being made. Section 2(2) notes that ‘(2) No regulation made under this Act shall be deemed to be invalid because it deals with any matter already provided for by any Act, or because of any repugnancy to any Act’. This purports to make the Order in Council superior to any legislation (though there is the question of whether, whilst not invalid, the regulation has effect in the face of a contrary statute). In Australia, the Charter of the United Nations Act 1945 approves the Charter (section 5) and section 6 provides: ‘6 Regulations may apply sanctions (1) The Governor-General may make regulations for and in relation to giving effect to decisions that: (a) the Security Council makes under Chapter VII of the Charter of the United Nations; and (b) Article 25 of the Charter requires Australia to carry out; in so far as those decisions require Australia to apply measures not involving the use of armed force. Note: Articles 39 and 41 of the Charter provide for the Security Council to decide what measures not involving the use of armed force are to be taken to maintain or restore international peace and security. (2) Without limiting subsection (1), the regulations may give effect to a decision of the Security Council by any or all of the following means: (a) proscribing persons or entities; (b) restricting or preventing uses of, dealings with, and making available, assets; (c) restricting or preventing the supply, sale or transfer of goods or services; (d) restricting or preventing the procurement of goods or services; (e) providing for indemnities for acting in compliance or purported compliance with those regulations; (f) providing for compensation for owners of assets; (g) authorising the making of legislative instruments. (3) Despite subsection 14(2) of the Legislative Instruments Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’. This language is clearly much more specific than the UK or New Zealand language, and should not be subject to the same arguments as to legality: Parliament has clearly transferred to the Governor-General the power to infringe fundamental rights if a Security Council resolution requires it: there would still be arguments as to whether a Security Council resolution had such a requirement. 68 See R (Stellato) v Secretary of State for the Home Department [2007] UKHL 5, [2007] 2 AC 70, [10], per Lord Hope, for a discussion of the various methods that might be chosen (affirmative resolution procedure; negative resolution procedure; simply laying; and no parliamentary stage at all), which depend on the enabling statute. In Ahmed, Lord Hope was critical of the failure to use a process such as an affirmative resolution that would have involved parliamentary scrutiny: paras 48ff.

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He accepted the principle of legality but suggested that the need to comply with the requirements of the Security Council was a competing principle, given that its orders were likely to impinge on fundamental rights: the judicial task was to determine the balance between competing provisions: 196.

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He noted that the legislation gave the Minister discretion to determine what was ‘necessary or expedient’. But he accepted that it had to be construed with constraints, such that ‘the more invasive of human rights of those affected the proposed provision is, the narrower that margin will be’. Indeed, he also suggested that a point would be reached where ‘unless the UK could not consistently with its obligations under the Charter introduce provisions any less invasive of human rights than those proposed, they could not properly be introduced by Order in Council at all but only by primary legislation’.69 In short, some adequate authority was required for a breach of fundamental rights: that could come from an Order in Council coupled with a Security Council resolution or from a statute. Even so, there was a need for adequate clarity in the resolution: he noted that a Security Council resolution requiring ‘Internment where this is necessary for imperative reasons of security’70 would not ‘sufficiently clearly mandate a comprehensive internment regime in the UK pursuant to executive Order; internment of named individuals in certain circumstances might’.71 In summary: 196.

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… Obviously the Simms principle cannot operate to emasculate the section 1(1) power entirely. What, then, are the touchstones by which to decide whether a particular executive Order falls within the scope of the power? As it seems to me, two paramount considerations will always arise: first, the degree of specificity of the UN decision which the UK is called upon to implement; second, the extent to which the implementing measure will interfere with fundamental human rights.

… Where, as here, those to be designated under the proposed measure will suffer very considerable restrictions under the regime, I would hold that it can only properly be introduced by executive Order in Council if the measure is in all important respects clearly and categorically mandated by the UN resolution which it is purporting to implement. If the implementing measure is to go beyond this, then, consistently with the Simms principle, it can only properly be introduced by primary legislation.

His conclusion was that the first Order in Council was not faithful to the relevant Security Council resolution because it went further by introducing the language of reasonable suspicion, whereas the second simply enforced a Security Council resolution—with its inevitable breach of fundamental rights. This could be done via an Order in Council because the 1946 Act permitted action to be taken to avoid a flagrant breach of UN obligations (which was the effect of striking down the Order in Council).72 69 70 71 72

[2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534, [196]. On which see Al-Jedda v UK, App no 27021/08 (7 July 2011). [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534, [205]. ibid at [204].

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Lord Hope, for himself and two other justices, disagreed in relation to the second Order in Council. He noted that the meaning of ‘necessary or expedient’ had to be understood by reference to the principle of legality, which meant that executive powers had to be subject to scrutiny by the judiciary: 45.

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… If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive. In Chester v Bateson [1920] 1 KB 829, 837, Avory J referred to Lord Shaw of Dunfermline’s warning in R v Halliday [1917] AC 260, 287 against the risk of arbitrary government if the judiciary were to approach actions of government in excess of its mandate in a spirit of compliance rather than that of independent scrutiny. The undoubted fact that section 1 of the 1946 Act was designed to enable the United Kingdom to fulfil its obligations under the Charter to implement Security Council resolutions does not diminish this essential principle. As Lord Brown says in para 194, the full honouring of these obligations is an imperative. But these resolutions are the product of a body of which the executive is a member as the United Kingdom’s representative. Conferring an unlimited discretion on the executive as to how those resolutions, which it has a hand in making, are to be implemented seems to me to be wholly unacceptable. It conflicts with the basic rules that lie at the heart of our democracy.73

The context was of the authority given to legislate, the power of the legislature. This was transferred to the executive only so far as that ‘must necessarily follow from the words used by it’.74 That meant that the Order in Council ‘must be tested precisely against the words used by the Security Council’s resolution’,75 though the statutory authority to enact something that was ‘expedient’ meant that it did not have meet the stricter test of necessity. However, this was conditioned by the principle of legality, because the discretion given to the executive ‘does not permit interference with the basic rights of the individual any more than is necessary and unavoidable to give effect to the SCR and is consistent with the principle of legality’.76 Accordingly, Lord Hope agreed with comments of Collins J in the High Court and Sedley LJ, who dissented in the Court of Appeal, that the powers were draconian and turned the person affected into an effective prisoner of the state whose freedom of movement was severely restricted.77 It was ultra vires to introduce the reasonable suspicion test in the first Order in Council because it was an impermissible ‘clear example of an attempt to adversely affect the basic rights of the citizen without the clear authority of Parliament’.78 As to 73 He cited as authority (though making clear it was hardly needed) the summary by Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex p Pierson [1998] AC 539 at 575 noted in n 59 above. 74 [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534, [47]. 75 ibid at [47]. 76 ibid at [47]. 77 ibid at [60]. 78 ibid at [61]. Note that Lord Rodger would have allowed the use of an Order in Council to allow immediate compliance with obligations to the Security Council, provided that equivalent legislation was soon passed by Parliament: [176].

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the second, which implemented the Security Council’s listing procedure, Lord Hope noted that the rights to peaceful enjoyment of property and access to courts were involved:79 there was no express language to allow this, but it was something that was inevitable, and so the question became one of degree: 76.

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... Some interference with the right to peaceful enjoyment of one’s property may have been foreseen by the framers of section 1, as it authorises the making of provision for the apprehension, trial and punishment of persons offending against the Order. To that extent coercive steps to enable the measures to be applied effectively can be regarded as within its scope. But there must come a point when the intrusion upon the right to enjoyment of one’s property is so great, so overwhelming and so timeless that the absence of any effective means of challenging it means that this can only be brought about under the express authority of Parliament.

In short, the approach did not differ from that of Lord Brown’s dissent: but the latter was willing to find that more was permitted in terms of rights being breached by the statutory language. For Lord Hope, the concern was the lack of a process to challenge the designation of a person, given that mistakes in designation might occur.80 The context was questions about a lack of due process in the Security Council sub-committee that designates individuals. Whilst the Charter required the UK to act on those decisions, even if they were procedurally flawed, the position in domestic law was that the principle of legality applied and so Parliament had to use appropriate language to oust the

79 Authorities cited to justify their status as fundamental rights that required clear legislative language to permit an interference were Entick v Carrington (1765) 19 Howell’s State Trials 1029, and R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 and Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260; they were noted to be components of the principle of legality. See also Morris v Beardmore [1981] AC 446: in determining whether police could require an evidentiary breath test from a motorist who had been involved in a crash but was at home when the police arrived, the House of Lords noted that the legislation did not contain a clear authorisation to conduct what would otherwise be a trespass on private property. Lord Diplock noted (at 455F) ‘The presumption is that in the absence of express provision to the contrary Parliament did not intend to authorise tortious conduct’ and he specifically denied that this principle depended on the ECHR. Lord Scarman noted, at 463F–G, that Parliament could empower police officers to enter a house and compel evidence by an express power: as it had not done so ‘it is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental private rights and liberties than Parliament has expressly authorised. The importance of express provision is that it affords the citizen the opportunity, if he chooses to use it, to read and understand the extent to which his rights and liberties have been curtailed’. Accordingly, whilst judges in the UK do not make reference by name to ‘legality’ until Simms and afterwards, it was a long-established principle. 80 As Lord Rodger noted [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534, [182]: ‘ it may be that the Committee’s procedures are the best that can be devised if it is to be effective in combating terrorism. But, again, the harsh reality is that mistakes in designating will inevitably occur and, when they do, the individuals who are wrongly designated will find their funds and assets frozen and their lives disrupted, without their having any realistic prospect of putting matters right. On one view, they are simply the incidental but inevitable casualties of the measures which the Security Council has judged it proper to adopt in order to counter the threat posed by terrorism to the peace and security of the world. The Council adopts those measures in order to prevent even worse casualties—those who would be killed or wounded in terrorist attacks’.

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need for due process, which had not been done.81 Lord Rodger summarised his conclusion in light of the principle of legality: 185.

Undoubtedly, given the terms of article 41 of the Charter which envisages interruption of economic relations, Parliament must have envisaged that, for example, an Order in Council giving effect to a ban on trade with a particular country would interfere significantly with the rights of individuals or companies to export their goods or to use their funds to make payments to individuals or companies in the country concerned. But, having regard to the principle stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575, I have come to the conclusion that, by enacting the general words of section 1(1) of the 1946 Act, Parliament could not have intended to authorise the making of AQO 2006 [the second Order in Council] which so gravely and directly affected the legal right of individuals to use their property and which did so in a way which deprived them of any real possibility of challenging their listing in the courts.

Lord Phillips, concurring with the majority,82 provided a reminder that there was no breach of parliamentary sovereignty, but rather control of an unauthorised exercise of power by the executive: 157.

Nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country.83

81 [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534 at [79]–[80]. See Nada v Switzerland, App no 10593/08 (12 September 2012), for a finding of a breach of Article 8 ECHR for inadequate steps to have someone taken off the relevant Security Council list or to ensure that sanctions did not have too deleterious an effect. And in Al-Jedda v UK, App no 27021/08 (7 July 2011), the Grand Chamber of the ECtHR noted that: ‘76. … The principles underlying the Convention cannot be interpreted and applied in a vacuum and the Court must take into account relevant rules of international law … 102. … In addition, the Court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first subparagraph of Article 1 of the United Nations Charter, the third subparagraph provides that the United Nations was established to ‘achieve international cooperation in ... promoting and encouraging respect for human rights and fundamental freedoms’. Article 24(2) of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law’. This seems to equate to the application of the principle of legality as a matter of international law. 82 As did Lord Mance, who also described and relied on the principle of legality at [240]–[249]. 83 See also Lord Hope at [80]: the use of an Order in Council to breach fundamental rights without parliamentary approval or scrutiny involved ‘dangers that lie in the uncontrolled power of the executive’. The point, put simply, is that there is a conflation of Parliament and the Executive because the latter is formed out of the majority of the former: but it is only the former that can breach fundamental rights, at least in the absence of an entrenched or superior law bill

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The legality principles have also featured in New Zealand. In R v Poumako,84 the Court of Appeal had to interpret a statute which on its face required a retrospective increase in sentence for a murder committed in the course of a ‘home invasion’, by requiring that the life sentence then obligatory for murder involve a minimum non-parole period of 13 years ‘in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date’.85 However, other statutory provisions supported the general principle of nonretrospectivity: section 4 of the Criminal Justice Act 1985 and section 7 of the Interpretation Act 1999; and also arguably section 25(g) of the New Zealand Bill of Rights Act 1990 (though in terms it provides for the benefit of a lower sentence rather than preventing the detriment of an increase). The Court determined that as the sentencing judge would have imposed a minimum term of 13 years in any event on the facts, it did not need to determine the conflict. Thomas J dissented in part, indicating that he would have declared the statutory amendment to breach the NZBORA86 in light of its many problematic features, including the breach of the various statutory provisions against retrospective increases in sentence, international human rights standards and the rule of law.87 The majority suggested that the issue was likely to return to the Court, and when it did a seven-judge court was constituted: R v Pora.88 The defendant had been convicted and sentenced in 1994 of an offence committed in 1992 (before the minimum term provisions were introduced), but this was set aside on appeal in 1999. He was convicted at a retrial held after the mandatory minimum period regime had been extended, and given a minimum term in accordance with the amended statute. Two separate lines of reasoning were used to reach the unanimous conclusion that the retrospective minimum term language did not apply. For four judges,89 the language in favour of retrospectivity had to be construed with language that precluded retrospectivity;90 as the offence occurred before minimum terms were introduced and the challenged language referred to the retrospectivity of an order made under the

of rights and only as a matter of domestic law in a dualist state. So it has to grant clear powers to the executive before the latter can breach rights. 84

R v Poumako [2000] 2 NZLR 695. The need for a minimum sentence was enacted with effect from September 1993 by way of an amendment to section 80 of the Criminal Justice Act 1985, and was extended to home-invasion murders in 1999 by the Criminal Justice Amendment Act (No 2) 1999, section 2(4) of which contained the retrospective language cited. 86 See Chapter 10 relating to declarations of inconsistency. 87 [2000] 2 NZLR 695 at [75]. He added at [76]–[78] that the provision came close to an impermissible bill of attainder aimed at those going through the trial process at the time. 88 R v Pora [2001] 2 NZLR 37. 89 Gault, Keith and McGrath JJ, Richardson P concurring. 90 Section 56(1) of the Criminal Justice Act 1985 (also introduced by the 1993 amendments that added the minimum terms) indicated that ‘No court shall … impose … [a] minimum period of imprisonment … that it could not have imposed on the offender at the time of the commission of the offence’. 85

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minimum term provisions, it could not apply if the offence occurred before the concept of minimum sentences was introduced. This is artificial, since it was clearly not the legislative purpose; and it would also allow retrospectivity to go back to the time when minimum terms were introduced, and so fails to grapple with the broader question. Three judges91 did grapple with the broader question and went further in their reasoning, suggesting that the judicial task when dealing with conflicting choices as to interpretation was not just to look at the internal consistency or otherwise of the statutory language, but to ensure that fundamental principles were given primacy. One of these was the rule against retrospective increases of criminal sentences (reflected in the statutes noted by Thomas J in Poumako). The concern was to avoid incidental breaches of human rights. Elias CJ, speaking for herself and Tipping J commented: ‘51. … It is improbable where human rights are affected that Parliament would do by a side wind what it has not done explicitly’. She noted that this reflected the interpretive obligation in section 6 of the NZBORA that ‘Parliament must speak clearly if it wishes to trench upon fundamental rights’ (and so did not breach the principle that Parliament cannot bind its successors),92 and she cited the principle of legality and Simms. Thomas J added a concurring judgment, emphasising the role of the judiciary to protect rights, specifically endorsing the rights-centred approach in construing apparently contradictory provisions rather than the majority approach (which would have allowed significant retrospectivity).93 He was clear that this was a constitutional precept that constrained breaches of fundamental rights to the situation in which Parliament was clear that they could be breached: 120.

... Fundamental rights are to be taken seriously. This Court will not accept that, in enacting legislation, Parliament has intended to erode those rights unless it makes its intention manifest to do so in clear and unambiguous language. Where there is a conflict between two provisions the specific intent to abridge those rights must be plainly evident. 121. Without challenging Parliament’s supremacy, for Parliament can curb fundamental rights by making its intention to do so clear, this approach assumes a constitutional function. It provides a barrier against inadvertent legislation which would have the effect of abridging human rights. The conventional interpretative process whereby the Courts deem Parliament to have had an intention, even where it may have had no intention on the provision in issue at all, is arrested where fundamental rights are involved. 122. The risk that legislation will be passed in a form which has an unintended effect has always been present. Confronted with a difficult provision, the Courts make do by filling the gap, if there be a gap, or by otherwise adopting an interpretation

91

Elias CJ, Tipping and Thomas JJ. [2001] 2 NZLR 37 [52]. See Chapter 8 for a discussion as to whether the principle of legality is the same as the interpretive obligation. 93 [2001] 2 NZLR 37 [125]. 92

52

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The Pre-Existing Protection of Human Rights which accords with the purpose of the statute. But that risk must be confronted with greater judicial resolve where a fundamental right or freedom is at stake.

54

He identified the basis for this judicial control as being that rules of construction were judge-made and had to be applied in a way that took into account all the circumstances, such that: 156.

55

He added that the judicial task might involve a construction that had to read a provision so that it had no effect because of a conflict with another. In such a situation, the question was which was dominant, and whether one provision reflected a fundamental right was part of the process of interpretation: 164.

165.

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… rules of construction to the effect that later or more specific provisions are to be deemed to represent Parliament’s intent are inadequate when one of the conflicting provisions protects a fundamental right. Where such a right is involved, the doctrine of implied repeal or amendment should be capable of being displaced so that, in the event of a conflict between a provision incorporating a fundamental right and another later or specific section which offends that right, then, unless Parliament has deliberately and expressly indicated that the later provision is to override the earlier enactment, the human rights legislation should prevail.

… To read down one provision in order to reconcile it with another is one thing; to read down a provision which gives effect to a fundamental right in order to reconcile it with a provision which is in breach of that right is quite another. Unless it is patent that Parliament intended the former provision to be read down, an interpretation which deprives the later provision of all effect may well be the necessary consequence of a legislatively endorsed judicial approach which gives due weight to fundamental rights. … [C]onflicts of this kind should be seen for what they are: a clash between conflicting intentions on Parliament’s part. … The proper exercise for the Court to undertake is to discern which of these conflicting intentions is Parliament’s true or dominant intention. When it cannot be assumed that the later provision necessarily represents the dominant or true intention, this question can only be answered by adopting a rights-centred approach.94

The approach outlined by Thomas J, requiring that judges weigh the value of competing principles rather than applying a more mechanistic rule such as that a later legislative provision is to be preferred to an earlier one, has been applied in Canada also. As an example, Re Winnipeg School Division (No 1)95 concerned whether a consolidating statute that re-enacted a provision that breached fundamental rights meant that the fundamental right had been overridden. A power to require a teacher to retire was contained in the Public Schools Act 1980 even though it breached the Human Rights Act 1974 94 He added that Parliament could always re-enact the provision that had been construed in such a way as not to exist in a way that made it clear that it wished to breach rights: [2001] 2 NZLR 37 [167]–[168]. This was an example, he said, of the ‘collaborative enterprise’ of the courts and Parliament, upholding principles whilst accepting that they can be breached if the statutory language is sufficiently clear. 95 Re Winnipeg School Division (No 1) [1985] 2 SCR 150, (1985) 21 DLR (4th) 1.

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of Manitoba (being age discrimination). For the Supreme Court, McIntyre J noted that there was a conflict between the statutes and agreed with the approach of the majority of the Manitoba Court of Appeal that it was not proper simply to apply a rule that later legislation impliedly overrides earlier legislation (even when the later legislation is a consolidation statute). Rather, the proper approach was to respect the higher status of rights-protecting legislation: 8.

In any event, I am in agreement with Monnin CJM where he said: ‘Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.’ This is in accordance with the views expressed by Lamer J in Insurance Corporation of British Columbia v Heerspink [1982] 2 SCR 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case it cannot be said that s 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s 6(1) of The Human Rights Act.

This special approach to human rights standards is reflected in Privy Council jurisprudence relating to constitutional provisions. In Minister of Home Affairs v Fisher,96 the interpretation of the Constitution of Bermuda was in question. The alternative approaches were interpretation similar to that applied to a statute though ‘with less rigidity, and greater generosity’; or, more radically, applying wholly separate rules of interpretation. The latter was preferred: courts should be ‘guided by the principle of giving full recognition and effect to those fundamental rights and freedoms’ contained in the Constitution, whilst at the same time paying ‘respect ... to the language’.97 Lord Wilberforce noted that documents containing fundamental rights ‘call for a generous interpretation, avoiding what has been called “the austerity of tabulated legalism,” suitable to give to individuals the full measure of the fundamental rights and freedoms referred to’.98

57

D. The Method of Protection—Control of Executive Discretion Simms and the other legality cases discussed above concern the statutory power or vires of breaching rights, and require clear language to found the

96

Minister of Home Affairs v Fisher [1980] AC 319. ibid at 329. ibid at 328H. The quoted phrase is from SA de Smith, The New Commonwealth and its Constitutions (London, 1964) 194: see Matthew v The State [2004] UKPC 33 [34]. 97 98

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power. Another common law tool is changing the intensity of judicial review of whether a decision has given sufficient weight to rights. The standard model of judicial review entails asking whether the decision maker has taken relevant matters into account, but investigates the merits of the decision and the weight attached to the various relevant factors only by asking whether the decision is rational. In England and Wales, this is the Wednesbury formulation. In Ireland, an equivalent test looks to whether the decision ‘flies in the face of fundamental reason and common sense’.99 This is because the judicial review model looks to process rather than merits unless the high standard of irrationality is met, since otherwise the courts would take decisions that are given by law to the relevant decision maker. However, if there are fundamental rights guaranteed in a constitutional setting, a different approach may be required to administrative decisions (as well as to legislation) to ensure that rights are given full weight, a more invasive standard of reviewing the merits. In Meadows v Minister for Justice Equality and Law Reform,100 the Irish Supreme Court determined—though only by 3 to 2—that the question of reasonableness in judicial review incorporated the proportionality of the decision in terms of its impact on rights, though this was seen as inherent in the standard judicial review test. In the UK, and in the absence of a supreme law constitution, the courts also determined that a higher standard was required when an administrative decision affected rights, but they were more open that this was a different test in light of the involvement of rights. For example, in R v Secretary of State for the Home Department, ex p Bugdaycay,101 the House of Lords confirmed that where a decision involved fundamental rights, as in the case of someone who claimed asylum on the basis of the risk to their life if removed, the court review of the rationality of the decision could be at a higher standard in light of the ‘gravity of the issue’ and should involve ‘the most anxious scrutiny’ to ascertain that there were no flaws in the decision.102 This developed into a separate model that clearly allowed the court to review the merits of a decision to some degree. This was summarised by Sir Thomas Bingham MR in R v Ministry of Defence, ex p Smith,103 which involved the propriety of a blanket ban on homosexual membership of the armed forces:104 The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.

99 See The State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] IR 642 and O’Keeffe v An Bord Pleanála [1993] 1 IR 39. 100 Meadows v Minister for Justice Equality and Law Reform [2010] IESC 3. 101 R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514. 102 [1987] AC 514 at 531, per Lord Bridge. 103 R v Ministry of Defence, ex p Smith [1996] QB 517. 104 ibid at 554E–G.

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But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.

He added that the court, whilst adopting appropriate levels of deference to the primary decision maker and not becoming the primary decision maker, ‘must not shrink from its fundamental duty to “do right to all manner of people”’.105 But this did not allow a finding that the decision was not open to the Ministry of Defence (even though various comments were made to support the arguments of the claimants). Sir Thomas Bingham noted that if it had been possible for the claimants to rely on Article 8 of the ECHR, it might well be that the facts involved—which involved dismissing service personnel in light of their sexuality—were within the concept of respect for private life, and the question would then be whether there was a pressing social need to which the ban on homosexual armed forces personnel was a proportionate response. But this would be a question for the ECtHR.106

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The approach of the UK and Irish courts to fundamental rights is not out of place elsewhere. In New Zealand, in Electoral Commission v Cameron,107 a five-judge New Zealand Court of Appeal accepted that the approach to review could be flexible. On the facts, that turned on the nature of the body being challenged, an unincorporated body which regulated advertising, the Advertising Standards Complaints Board. The context was adverts to promote a new proportional voting system adopted in New Zealand that had been issued by an independent statutory body charged by statute with promoting the new system, but which were found by the Board to breach its codes. The Court of Appeal suggested that the Board should have reflected on the status of the Commission (including its membership and statutory mandate) and not have found its actions wanting. In Waitakere City Council v Lovelock,108 Blanchard J noted that the case stood for the proposition that the courts would apply a standard lower than irrationality if appropriate;109 and Thomas J took the opportunity to endorse the Bugdaycay reasoning to suggest that, following the Electoral Commission case, New Zealand courts would apply a different standard of review to protect fundamental rights, commenting that the courts would not require of a decision affecting life that it be ‘outrageous, absurd or perverse’ before they would intervene.110

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105 106 107 108 109 110

ibid at 556E. ibid at 558H–559A. Electoral Commission v Cameron [1997] 2 NZLR 421. Waitakere City Council v Lovelock [1997] 2 NZLR 385. ibid at 420. ibid at 403.

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The Pre-Existing Protection of Human Rights II. THE VALUE OF INTERNATIONAL LAW IN THE COMMON LAW TRADITION

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The material set out above relates to how the courts protect the rights recognised by the common law: it is often a question of contention as to whether these are similar in substance to those found in the international treaties relating to civil and political rights, particularly as interpreted by the relevant international bodies. As outlined in Chapter 2, there is an obligation in international law to abide by the views of the international body. In this context of assessing the ability of the domestic legal system to meet the treaty obligation without specific statutory or constitutional action, a further question arising is the extent to which international obligations (whether from customary or treaty law)111 are tools of interpretation or indeed part of domestic law. This can arise in relation to the various elements noted above, namely as part of statutory interpretation or control of executive discretion, and also in relation to the development of the common law.

A. Customary International Law 65

Customary international law, which may include some human rights elements, may be an interpretive tool and form part of substantive or procedural law, at least in some circumstances. The interpretive rule is of long standing. In Polites v Commonwealth,112 which concerned whether non-citizens of Australia could be required to serve in the military (said to be contrary to a rule of customary international law) pursuant to delegated legislation, Latham CJ commented that part of the argument—that there is ‘a general rule of construction of statutes according to which, unless the contrary intention is clear, it is to be presumed that they do not violate any recognized rule of international law’— was ‘well established by many authorities’. He cited an English case relating to the validity of the will of an English-born but German-domiciled woman (who had executed a will that followed English but not German form), where the judge of the Probate, Divorce and Admiralty Division had approved a textbook statement that ‘every statute is to be so interpreted and applied, as

111 See Article 38 of the Statute of the International Court of Justice, appended to the Charter of the United Nations (also available at www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0), which indicates that the Court’s function is to decide disputes submitted to it in accordance with international law (unless the parties agree to equity and conscience being the guiding principles), and sets out that the sources of international law are ‘a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. Article 59 is the provision that decisions of the ICJ are binding only between the parties in respect of the particular case. 112 Polites v Commonwealth [1945] HCA 3, (1945) 70 CLR 60.

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far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law’.113 As for its value in setting more substantive rules, an example is claims of sovereign immunity. In Controller and Auditor General v Davison and linked cases,114 the New Zealand Court of Appeal was concerned with a Commission of Inquiry into alleged tax evasion that involved the Cook Islands. The Commission sought the production of various documents, which was challenged on the basis, inter alia, that the documents were covered by sovereign immunity because they related to work that had been done for the government of the Cook Islands and could not be produced. The Court of Appeal, in dismissing the application, confirmed that the starting point was that the international law doctrine of sovereign immunity was part of the common law of New Zealand. The potential for this doctrine to have an impact in the human rights context was shown in the attempted extradition of General Pinochet from the UK to Spain to face allegations of serious crimes committed whilst he was the Chilean President:115 an effective investigation into allegations of breaches of rights, and the provision of an effective remedy, were the particular rights in play. Whilst most of the reasoning in the case related to statutory provisions, there was also consideration of customary international law. The majority concluded that torture outside the jurisdiction was not a crime in the UK and so could not meet the double criminality rule for the purposes of an extradition application until made a crime by statute (which had occurred in 1988).116 But Lord Millett disagreed and held that crimes prohibited by international law could attract universal jurisdiction if they were jus cogens and were so widespread as to amount to an attack on the international legal order.117

113 Bloxam v Favre (1883) 8 PD 101 at 107. Polites was cited by McHugh J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, (1995) 128 ALR 353, at para 35 of his judgment, for the proposition that both treaty and customary international law were to be used to assist in interpreting statutes. 114 Controller and Auditor General v Davison and linked cases [1996] 2 NZLR 278. 115 R v Bow Street Magistrate ex p Pinochet (No 3) [2000] 1 AC 147. 116 Note that by this time, the judges had determined that there should be no newly created common law crimes: see Knuller v DPP [1973] AC 435. In the Australasian jurisdictions, this was established in that codification was the norm. 117 ibid at 275F and following. Another part of the case turned on the proper understanding of the State Immunity Act 1978 and whether it covered acts of torture; the answer here was that the jus cogens nature of the criminalisation of torture meant that there could be no immunity for a former head of state for official acts of torture. There were many nuances as between the judges as to what this meant on the facts. See also A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221, the case determining whether evidence that might have been obtained by torture was admissible in domestic proceedings. Lord Bingham noted at para 27 the contrast between treaty law and customary international law: the appellant detainees accepted that ‘a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law’. However, in his judgment as to why torture evidence was not admissible, Lord Bingham relied on the common law prohibition on the use of torture evidence and the acceptance in the Convention against Torture of these views by the majority of countries rather than its prohibition by customary international law. Lord Hope at paras 100–10 gave a

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In Australia, there has also been doubt about customary international law creating substantive rules. In Nulyarimma v Thompson,118 the Federal Court had to consider the status of the crime of genocide in Australia (the context being the policies that had been adopted against Aboriginal peoples). Wilcox J accepted at paragraph 18 of his judgment that the prohibition of genocide is a peremptory norm of customary international law, giving rise to a non-derogable obligation by each nation State to the entire international community. This is an obligation independent of the Convention on the Prevention and Punishment of the Crime of Genocide.

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It thus existed before the Convention and required extradition and prosecution. He accepted that it was therefore permissible for Australia to take action to prosecute genocide, but only if a statute gave effect to the international obligation. This was because, in light of the fact that treaties require domestic legislation (discussed below), it would be a ‘curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention’.119 Whitlam J also rejected the idea that there was a common law crime of genocide, noting at paragraph 57 that it would be inconsistent with the abolition of common law crimes in Commonwealth law and in various parts of Australia. Merkel J, however, was more accepting. He gave a detailed account of the methods by which customary law could become part of domestic law: the theories are incorporation, namely that it is part of the common law, and transformation, namely the need for adoption by an act of a legislature or of a judge. Having noted at paragraph 131 that [i]t is plain from a survey of the case law in England, Canada, New Zealand and Australia that the courts have had considerable difficulty in formulating the principles to be applied in determining … whether a rule of customary international law has become part of domestic law,

he set out his conclusion at paragraph 132: In my view, the approach can be formulated as follows: 1.

A recognised prerequisite of the adoption in municipal law of customary international law is that the doctrine of public international law has attained the position of general acceptance by or assent of the community of nations

history of the use and then prohibition of torture in England and then Scotland, indicated that this was the background to the ratification of the Convention against Torture, and noted that there was no need to incorporate that treaty into domestic law in relation to excluding evidence because the common law had achieved the same result (para 112). 118

Nulyarimma v Thompson [1999] FCA 1192. ibid at [20]. At [30], Wilcox J expressly cast doubt on the views of Lord Millett in the Pinochet case. Whitlam J provided a more detailed account of his concerns about the correctness of Lord Millett’s views at [39] and following. 119

The Value of International Law in the Common Law Tradition

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3.

4.

5.

6.

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‘as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions.’ … The rule must not only be established to be one which has general acceptance but the court must also consider whether the rule is to be treated as having been adopted or ‘received into, and so become a source of English law’ … A rule will be adopted or received into, and so a source of, domestic law if it is ‘not inconsistent with rules enacted by statutes or finally declared by [the courts]’ ... Plainly, international law cannot be received if it is inconsistent with a rule enacted by statute. However, the position is less clear with a rule that might be inconsistent with the common law. To the extent that international law is to be received into domestic law, it will have necessarily altered or modified the common law and, to that extent, might be said to be inconsistent with it. … A rule of customary international law is to be adopted and received unless it is determined to be inconsistent with, and therefore ‘conflicts’ with, domestic law in the sense explained above. In such circumstances no effect can be given to it without legislation to change the law by the enactment of the rule of customary international law as law … This approach subordinates rules of customary international law to domestic law thereby avoiding a fundamental difficulty of the incorporation approach which, by requiring the common law to invariably change to accord with rules of international law, subordinates the common law to customary international law. … The rules of customary international law, once adopted or received into domestic law have the ‘force of law’ in the sense of being treated as having modified or altered the common law. The decision of the court to adopt and receive a rule of customary international law is declaratory as to what the common law is. … … international law evolves and changes from time to time. However, unlike the common law, the evolution of, and change, in international law is established by evidence and other appropriate material. Thus, it may be that in certain instances the adoption will only be as from the date the particular rule of customary law has been established.

In Ireland, Article 29.3 of the Constitution notes that the ‘generally recognised principles of international law’ are the rules to be applied in relation to relationships with other states; as noted below, there is a clearly expressed dualism as regards treaty law, set out in Article 29.5. It is also noted in Article 29.8 that ‘The State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law’. However, it is also provided in Article 15.2 that only the Oireachtas may make law.120 This raises the question of whether customary international law can create domestic law without legislative intervention.

120 The Constitution of South Africa provides an example of clarity: Article 232 provides that ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’; and Article 233 indicates that courts ‘must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’.

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In Edward Horgan v An Taoiseach and Others,121 the issue was the lawfulness of Ireland allowing forces from the US and UK to overfly Ireland and to refuel in Ireland whilst taking part in hostilities against Iraq in light of Ireland’s position of neutrality in relation to wars. Kearns J had to consider the reception of customary international law to assist the determination of this question. Under the heading ‘Incorporation of International law in Irish domestic law’, he noted that there was authority that: established principles of customary international law may be incorporated into Irish domestic law providing that they are not contrary to the provisions of the Constitution, statute law or common law… Further, since customary international law evolved from a practice or course of conduct which in time became widely accepted, it is not law made in the sense envisaged by Article 15.2.1 of the Constitution and, accordingly, that Article does not per se inhibit the incorporation of customary international law into Irish domestic law, subject to the proviso that there is no resultant conflict with the Constitution, statute law or common law.

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However, he then went on to hold that, whilst doctrines such as sovereign immunity could be raised and had been in the Irish forum, the essential purpose for which customary international law could be used was in relation to the rights and duties as between states (which would cover such matters as whether the courts could take jurisdiction over a case), but that the clear line of authority was that no individual rights could arise.122 In sum, although there is some support for customary international law’s value, it is questionable whether it can have a significant impact in the human rights field because of the lack of clear support for its use: however, as the majority of international human rights law is treaty-based, the rules as to the use made by the common law as to the incorporation of treaties are more important.

B. International Treaty Law 74

The dualist tradition requires statutory action to give effect in a case before the domestic courts to a right that originates in an international treaty, even if that treaty would otherwise be self-executing. This can be contrasted with the US Constitution, which provides in Article VI that ‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land’.123 This effectively makes the US

121 Edward Horgan v An Taoiseach and Others [2003] IEHC 64, [2003] 2 IR 468, [2003] 2 ILRM 357. 122 See Re O Laighleis [1960] IR 93, noted below. 123 Article II.2 allows the President to make treaties, but with two-thirds of the Senate having to concur.

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a monist nation (at least in relation to treaties that contain provisions that do not require further legislative action, ie that are ‘self-executing’).124 However, international law may have an impact short of creating a right; it can be a tool of interpretation and a source for public law rights mandating consideration of the international obligation in decision making. However, the different jurisdictions with bills of rights statutes vary in their approach: (i) in Ireland, the judicial view adopted has been that the Constitution requires a very cautious approach to the use of unincorporated treaties; (ii) the UK allows treaties to be used to assist interpretation only when there is an ambiguity, and is developing the use of legitimate expectation, particularly in relation to environmental matters; (iii) but the Australasian jurisdictions are more receptive to seeking to construe all statutes so as to comply with international obligations, without a prerequisite of ambiguity, and to require that discretions given to public officials be construed so as to conform with international obligations. For the UK and Ireland, the position of EU law also has to be considered: briefly, in Ireland it is given precedence by the Constitution, but in the UK it is given effect by a statute around which a strong interpretive obligation is placed.

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i. Ireland In Ireland’s Constitution, there is in Article 29.1 an affirmation of international cooperation, in Article 29.2 an acceptance of international settlement of disputes and in Article 29.3 an indication that ‘generally recognised rules of international law’ are accepted for relations between states. In relation to treaties other than those concerning the European Union, there is the basic indication in Article 29.4 that international relations are for the executive and it is also provided that:

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29.5.1.

Every international agreement to which the State becomes a party shall be laid before Dáil Éireann. 29.5.2. The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann. 29.5.3. This section shall not apply to agreements or conventions of a technical and administrative character. 29.6. No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

The last provision is to be read with Article 15.2.1 (which reserves law-making power to the Oireachtas).125 In short, the executive is in charge of negotiating and signing treaties, but the legislature is involved and its lower house

124

See Medellin v Texas (2008) 552 US 491. Article 15.4.1, it is to be noted, provides that the Oireachtas cannot pass a law that is repugnant to the Constitution. 125

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must approve any international obligation involving public expenditure and both houses are involved in determining whether the international obligation becomes part of domestic law. The effect of these provisions in relation to the use of the ECHR was considered in Re O Laighleis,126 in which it was argued that the ECHR could be used to challenge the validity of legislation relating to special courts (ie those sitting without a jury for security reasons); such courts are authorised by Article 38 of the Constitution, with legislation required for the details of their operation. Maguire CJ for the Supreme Court noted that Articles 29.1 and 29.3 did not confer rights on individuals, as they related only to relationships between states; and that Articles 15.2.1 and 29.6 provided ‘an insuperable obstacle’ to the arguments put forward because only the Oireachtas could make laws or incorporate treaties into domestic law. The conclusion was that: The Oireachtas has not determined that the Convention of Human Rights and Fundamental Freedoms is to be part of the domestic law of the State, and accordingly this Court cannot give effect to the Convention if it be contrary to domestic law or purports to grant rights or impose obligations additional to those of domestic law. No argument can prevail against the express terms of section 6 of Article 29 of the Constitution before judges whose declared duty is to uphold the Constitution and the laws.

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This approach was endorsed in Kavanagh v The Governor of Mountjoy Prison & anor,127 a case taken after Mr Kavanagh had been successful in a communication to the Human Rights Committee,128 which found that the use of special courts in his case had not been objectively justified129 and so breached the duty to provide equality before the law in Article 26 of the ICCPR. He sought then to challenge his conviction and also contended that there was a breach of customary international law and so of Articles 29.2 and 29.3 of the Constitution. Fennelly J, for the Supreme Court, confirmed that these provisions did not confer individual rights and endorsed the correctness of O Laighleis. The dualist nature of the Irish system has been reiterated after the introduction of the European Convention on Human Rights Act 2003. In McD v L and Another,130 Murray CJ summarised the position (in a case relating to whether the biological father of a child conceived via artificial insemination of donated sperm and being brought up by a lesbian couple could be granted access to or guardianship over the child): Status of the European Convention on Human Rights The relationship between international treaties to which Ireland is a party and national law is imbued with the notion of dualism the effect of which finds expression 126

Re O Laighleis [1960] IR 93. Kavanagh v The Governor of Mountjoy Prison & anor [2002] IESC 13. 128 Kavanagh v Ireland, Communication No 819/1998, Views of 4 April 2001: CCPR/ C/71/D/819/1998. 129 ibid, para 10.3. 130 McD v L and Another [2009] IESC 81. 127

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in Article 29.6 of the Constitution. According to the concept of dualism, at national level national law always takes precedence over international law. At international level, as regards a state’s obligations, international law takes precedence over its national or internal law which is why a state cannot generally rely on their own constitutional provisions as an excuse for not fulfilling international obligations which they have undertaken. Coming back to the national level the dualist approach means that international treaties to which a state is a party can only be given effect to in a national law to the extent that national law, rather than the international instrument itself, specifies. Of course many states, including many countries who are party to the European Convention on Human Rights, adopt the monist approach to the relationship between international law and national law. According to the monist concept, in principle international law has primacy over national law at national as well as international level. Nonetheless the application of this principle varies in its effect in States which follow the monist approach, some, for example, giving precedence to national legislation which post-dates the ratification of a relevant international treaty.

He added that the duty of the courts was to give effect to the Constitution, including ensuring respect for the limitation of legislative powers to the Oireachtas. This meant that the ECHR, including its obligation to have an effective domestic remedy, could not be invoked as having any normative value in the courts of Ireland beyond what was set out in a statute. In short, any breach of the ECHR was a matter for the ECtHR. An alternative argument, particularly developed in Australasian cases discussed below, is that even if a treaty does not directly create rights without domestic legislation, it might create a legitimate expectation that decision makers should take it into account. In Kavanagh, Fennelly J was prepared to assume ‘that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms’. But he was clear as to the limits of this expectation, and in particular that it could not justify anything that would breach the Constitution or a constitutionally valid law, because:

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The terms of the Covenant have not been enacted into Irish law. They cannot prevail over the provisions of the Offences against the State Act, 1939 or of a conviction by a court established under its provisions. … The Constitution establishes an unmistakable distinction between domestic and international law. The government has the exclusive prerogative of entering into agreements with other states. It may accept obligations under such agreements which are binding in international law. The Oireachtas, on the other hand, has the exclusive function of making laws for the state. These two exclusive competences are not incompatible. Where the government wishes the terms of an international agreement to have effect in domestic law, it may ask the Oireachtas to pass the necessary legislation. If this does not happen, Article 29, section 6 applies.

The claim in Kavanagh was for a quashing of his conviction, perhaps a request too far: the Human Rights Committee had not found a breach of the right to a fair trial or the presumption of innocence (in Article 14 of the

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ICCPR), and had not suggested that quashing the conviction was the necessary remedy.131 ii. The United Kingdom 84

The UK legal regime also has it that the executive is responsible for signing treaties, but that legislative action is necessary to amend domestic law as a result.132 A restatement of the basic proposition was given in JH Rayner (Mincing Lane) Ltd v Department of Trade and Others,133 which involved the question of whether the creditors of the International Tin Council could sue the sovereign states who set it up (by treaty) for the debts it owed (incurred in a failed attempt to support the price of tin in international markets). The ITC operated from London and was accorded legal personality by an Order in Council. The creditors argued that the ITC was a collective of the members states or was their agent, or that they were guarantors and so jointly and severally liable. As this turned on an assessment of the Treaty and the Order in Council involved, it posed significant problems for the creditors in light of the traditional view of international treaty law, as Lord Oliver explained:134 It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. … On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: … That is the first of the underlying principles. The second is that, as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are

131 A further application to the Human Rights Committee by Mr Kavanagh after his failed application for a review of his conviction was found inadmissible: Kavanagh v Ireland, Communication No 1114/2002, Views of 25 October 2002: CCPR/C/76/D/1114/2002/Rev.1. 132 See Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 per Lord Atkin at 347, noting the position for the UK and the rest of the then Empire: ‘Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes’. 133 JH Rayner (Mincing Lane) Ltd v Department of Trade and Others [1990] 2 AC 418. 134 ibid at 499–501.

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a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant.

This sensitivity to requirements that there be legislative action may reflect the history of statutory provisions that limit the monarch’s use of prerogative powers to create law. However, it is also part of the constitutional framework that Parliament has a significant role, indeed effectively a controlling role, before treaties are ratified. This is now on a statutory footing under Part II of the Constitutional Reform and Governance Act 2010 (UK). But this reflects the practice existing since 1924, known as the Ponsonby Rule, that treaties were not to be ratified until they had been laid before Parliament, each House having 21 days to reject ratification.135

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Nevertheless, this split between domestic law and international treaty law is the basis on which the legal framework operates, though it does not mean that the planes do not touch. Lord Oliver continued in Rayner by noting that, aside from the situation of a treaty being made part of domestic law by statute,136 it might have relevance if a statute was passed to reflect the obligations under rather than incorporate a treaty: in such a case, ‘the terms of the treaty may have to be considered and, if necessary, construed in order to resolve any ambiguity or obscurity as to the meaning or scope of the statute’. An obvious example of such a situation might be where claimants before the ECtHR had demonstrated that domestic law did not conform with the ECHR and the UK introduced amending legislation or changed policies.137 Naturally, there

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135 See the Explanatory Notes to the statute, paras 8, 33 and 129, for reference to the previous practice. 136 He cited Fothergill v Monarch Airlines Ltd [1981] AC 251 as an example; this involved the Carriage by Air Act 1961, which gave effect to the treaty arrangements for international air travel (including in relation to damage to baggage, which was what was in issue). Lord Oliver also noted that parties could incorporate treaty terms into a contract, which would require domestic courts to construe the treaty, citing Philippson v Imperial Airways Ltd [1939] AC 332 as an example: this case, which was for the loss of gold stolen from an aircraft, turned on the effect of a contractual term that incorporated the international treaties for air transport, including limits as to loss, even though the country to which the gold was being transported had not yet ratified the treaty. There might also be a rare situation, such as that in Post Office v Estuary Radio Ltd [1968] 2 QB 740, where the Royal Prerogative was such as to extend or contract the jurisdiction without any need for domestic legislation; this case turned on whether a pirate radio station could be shut down, which in turn depended on whether it was within the territorial waters of the UK, and a 1964 Order in Council governed this. 137 For two examples from the mental health law field, as a result of X v UK (1981) 4 EHRR 188 the Mental Health Review Tribunal was empowered to direct the release of restricted patients (Mental Health (Amendment) Act 1982, consolidated in the 1983 Act); it had previously been able to make recommendations, the final decision resting with the Home Secretary. In another example, in R v Secretary of State ex p K [1990] 3 WLR 755, the Court of Appeal held that a patient could be recalled by the Home Secretary without there first being evidence that Article 5(1) (e) ECHR was satisfied (in the form of a medical report justifying the conclusion that there was a mental disorder which justified detention); the Court indicated that the protection of the patient arose from the statutory requirement to refer the matter to a Mental Health Review Tribunal, which could order release. After the case was declared admissible by the European Commission on Human Rights, the UK government then settled it by agreeing to ensure that its practices were amended to allow recall only when the evidence was first obtained. (See Kay v UK, 12 November 1998: settlement endorsed by Committee of Ministers—resolution DH(98) 371.).

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might be room for a purposive interpretation in that situation, such that even without any need to find ambiguity it might be natural to ensure that the statute was construed in a way that was compliant with Convention requirements. Lord Oliver also noted that domestic legislation could require that terms in the statute be construed by reference to a treaty, even if it did not go so far as to give effect to the treaty.138 There might also be facts arising from international law, including the terms of a treaty, that might be evidence in a case, but Lord Oliver stressed that ‘The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders are not and they are not justiciable by municipal courts’. This approach of allowing international treaties to be used only to help construe an ambiguity was applied in relation to international human rights treaties—despite the undertaking in them to provide domestic remedies—in R v Home Secretary ex p Brind.139 This concerned a ban on broadcasting the words of members of Sinn Fein (on the basis that they were the representatives of an Irish terrorist organisation), introduced by directives issued under s29(3) of the Broadcasting Act 1981140 and clause 13(4) of the licence and agreement made with the British Broadcasting Corporation and approved by Parliament. The prohibition on broadcasting ‘any matter’ consisting of or including words spoken by persons in the proscribed groups (except in Parliament) had been clarified by the Secretary of State indicating that it referred only to statements made directly by the relevant persons, which meant that pictures could be used together with a voice-over, either in paraphrase or verbatim. This led to pictures of representatives of Sinn Fein being shown with their words spoken by an actor and lip-synched with the images. In proceedings for judicial review brought by producers and journalists, the legality of the directives was challenged. The arguments included that there was a contravention of Article 10 ECHR, the right to freedom of expression; a conflict with the broadcasters’ duties, in particular to preserve due impartiality under section 4 of the 1981 Act and under the licence and agreement; and that the directives were disproportionate to the mischief at which they were aimed, namely to prevent intimidation by, or undeserved publicity and an appearance of political legitimacy for, proscribed organisations. The proportionality argument was based on the ECHR approach rather than the domestic judicial standard of unreasonableness to the extent of irrationality.

138 Zoernsch v Waldock [1964] 1 WLR 675 was given as an example: this was a human rights case in that the Plaintiff sought to sue the President and Secretary of the European Commission on Human Rights in light of the Commission’s failure to admit his complaint under the ECHR against the Federal Republic of Germany; in holding that the defendants were entitled to rely on statutory immunities granted to people involved in the organs of various international organisations, the courts assessed the role of the Commission within the Council of Europe in order to establish whether it was such an organ. 139 R v Home Secretary ex p Brind [1991] 1 AC 696 (HL). 140 This gave the Home Secretary a power, apparently unlimited, to require a broadcaster not to broadcast specific or categories of material.

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The applicants lost at all levels of the domestic process. The House of Lords held that there was no ambiguity in the legislation and so no role for the ECHR in construing it, no requirement that the Home Secretary exercise any discretions in accordance with the ECHR concept of proportionality, and no unreasonableness on the facts. It was accepted that the right of freedom of expression was protected by the common law,141 but that interference with it was permissible if not irrational (which was not met on the facts, the Home Secretary being able to conclude that the restrictions imposed were justified by the public interest of combating terrorism). It was accepted that the apparently unrestricted discretion given to the Secretary of State was in fact limited by the public law doctrines that it could only be used for the purpose for which it was given142 and had to be rational.143 Rejected was the contention that the apparently unlimited discretion had to be construed so as not to breach the standards of the ECHR.144 The principles were described by Lord Bridge. He set out, first, the dualist position, which had not been contested; then he added the limited role of the ECHR in interpreting legislation only when there is an ambiguity, but he added that the logic of this did not require that executive discretions be construed so as to comply with the ECHR, because such a requirement could only be introduced by legislation. Finally, he noted that the common law allowed the courts to require that there be justifications for any interference with a fundamental right. The extracts making these points are: (i) It is accepted, of course, by the applicants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it.145 (ii) But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion

141 Lord Templeman suggested at the outset of his speech that ‘Freedom of expression is a principle of every written and unwritten democratic constitution’: [1991] 1 AC 696 (HL) at 750F; see also Lord Lowry at 763D, who noted ‘the principle of freedom of speech in a democratic society, so far as compatible with the safety of the state and the well-being of its citizens’. 142 The ‘Padfield’ doctrine set out in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. 143 In accordance with the test set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The ‘anxious scrutiny’ approach was not applied. 144 This can be seen as a version of the legality argument, discussed above: whilst the House accepted that fundamental rights had to be protected from infringement by general words, it was only to the limited extent provided by the rationality standard. 145 [1991] 1 AC 696 (HL) at 747G.

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capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament’s aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.146 (iii) But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the Convention, including the right to freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, Article 10(2) of the Convention spells out and categorises the competing public interests by reference to which the right to freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor the disadvantages of any comparable code to which we may refer or by which we are bound. But again, this surely does not

146

ibid at 747H–748F.

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mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment.147 Lord Bridge expressly adopted the fuller statement of the principles and relevant authorities given by Lord Ackner. He dismissed the challenge that the Home Secretary had not given effect or had proper regard to Article 10 of the ECHR,148 noting first that it was accepted by the parties that ‘it is a constitutional principle that if Parliament has legislated and the words of the statute are clear, the statute must be applied even if its application is in breach of international law’: in other words, that unambiguous legislative language had to be given effect without investigating whether an alternative interpretation was open. This was said not to have been modified by the statement of Lord Diplock in Garland v British Rail149 that it is a principle of construction of United Kingdom statutes ... that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.150

147

ibid at 748F–749B. ibid at 760C–762D. 149 Garland v British Rail [1983] 2 AC 751 at 771. 150 The question in Garland was the effect of Article 119 of what was then the EEC Treaty, which prohibited discrimination in relation to retirement benefits (as there had to be equal pay for equal work) and its impact on the lawfulness of a concessionary travel policy that benefitted the families of retired male railway employees but not the families of retired female employees. A point in issue was whether Article 119 created directly enforceable rights. Lord Diplock’s statement in full was: ‘My Lords, even if the obligation to observe the provisions of article 119 were an obligation assumed by the United Kingdom under an ordinary international treaty or convention and there were no question of the treaty obligation being directly applicable as part of the law to be applied by the courts in this country without need for any further enactment, it is a principle of construction of United Kingdom statutes, now too well established to call for citation of authority, that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it. A fortiori is this the case where the Treaty obligation arises under one of the Community treaties to which section 2 of the European Communities Act 1972 applies’. If ‘the subject matter of the international obligation’ is understood in a narrow fashion to be the obligation to enforce the treaty, this dictum is traditional; but if that subject matter means any statute that intersects with the international obligation, this is a much wider statement of principle, and since it does not require any ambiguity is not as limited as Brind. 148

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Lord Ackner cited three immigration cases for the proposition that ‘It is well settled that the Convention may be deployed for the purpose of the resolution of an ambiguity in English primary or subordinate legislation’.151 But he then found that the relevant statutory provision was not ambiguous because it was not open to more than one construction; even though it was apparently unlimited, that did not provide any ambiguity because it would be construed according to public law precepts, namely: The limit placed upon the discretion is simply that the power is to be used only for the purposes for which it is was granted by the legislation (the so-called Padfield doctrine) and that it must be exercised reasonably in the Wednesbury sense.

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He then answered the contention that a failure to correctly construe the requirements of Article 10 ECHR152 meant that there was an unreasonable failure to take into account a relevant factor: The fallacy of this submission is however plain. If the Secretary of State was obliged to have proper regard to the Convention, ie to conform with Article 10, this inevitably would result in incorporating the Convention into English domestic law by the back door. It would oblige the courts to police the operation of the Convention and to ask themselves in each case, where there was a challenge, whether the restrictions were ‘necessary in a democratic society ...’ applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question—did the Secretary of State act in breach of Article 10—does not therefore arise.153

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Also dismissed by Lord Ackner was the argument that the judicial control of discretion by the Home Secretary should be through the concept of proportionality rather than the domestic standard of irrationality:154 Mr Pannick’s ... formulation—could the Minister reasonably conclude that his direction was necessary—must involve balancing the reasons, pro and con, for his decision, albeit allowing him ‘a margin of appreciation’ to use the European concept of the tolerance accorded to the decision-maker in whom a discretion has been vested. The European test of ‘whether the interference complained of corresponds to a pressing social need’ must ultimately result in the question—is the particular decision acceptable?—and this must involve a review of the merits of the decision. Unless and until Parliament incorporates the Convention into domestic law, a course which it is well-known has a strong body of support, there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country.

151 R v Chief Immigration Officer, Heathrow Airport and another, ex parte Salamat Bibi [1976] 1 WLR 979; Fernandes v Secretary of State for the Home Department [1981] Imm AR 1; Chundawadra v Immigration Appeal Tribunal [1988] Imm AR 161. 152 It was accepted that the Home Secretary had considered Article 10: the argument was that he had not done so adequately. 153 [1991] 1 AC 696 (HL) at 761H–762B. See Lord Oliver’s statement in Rayner [1990] 2 AC 418 at 500, set out above, that treaties are not self-executing and so cannot give rise to rights or obligations without domestic legislation; this was quoted by Lord Ackner. 154 [1991] 1 AC 696 (HL) at 762F–763B.

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A problem with Brind is that it was not a strong case on the merits: the European Commission on Human Rights was to find an application to it inadmissible as manifestly ill-founded as the restrictions were fairly minor and clearly within the margin of appreciation of the government of the day.155 But it sets the proposition that unincorporated treaty law has a role in statutory interpretation only in the case of ambiguity; in relation to the control of administrative discretion, however, it has no role. That leaves the principle of legality, noted above: this does not need any ambiguity, and whilst it relies on the rights recognised in the common law, these may often be similar to those in the international treaties.156 (The common law technique of using ‘anxious scrutiny’ review was not used in Brind.) As to whether the rights in the common law can be developed by reference to international treaty law, it is fair to say that there had been limited judicial interest in the UK prior to the Human Rights Act 1998 coming into effect.157 For example, in Morris v Beardmore,158 which related to whether a police officer could enter private property to compel a breathalyser test to a man suspected of drink-driving, the absence of statutory authority to carry out what was otherwise a trespass was fatal to the claim because of the fundamental right to privacy in the home. As to where this right came from, Lord Scarman suggested that it had two sources: the common law and the ECHR in light of its ratification and the right of petition of those in the UK to the ECtHR.159 Lord Diplock, however, made clear that he found the right to be protected by the common law by what is now typically called the principle of legality. He added that it owed ‘nothing’ to the ECHR.160 However, it is arguable that a wider role than resolving ambiguities was accorded to the ECHR in relation to the exercise of a judicial discretion in Rantzen v Mirror Group Newspapers (1986) Ltd.161 This involved a media personality who was also involved in child protection organisations who had 155

App no 18714/91, decision of 9 May 1994. For example, in Derbyshire County Council v Times Newspapers [1993] AC 534, in which the issue was whether a local authority could bring an action in defamation, the decision of the House of Lords was that to allow that it would be an unnecessary fetter on freedom of expression. Lord Keith, with whom the other Lords agreed, made clear that he reached this conclusion without reliance on the ECHR, though he expressed the view that the common law and ECHR standards were the same: [1993] AC 534 at 551. 157 Note that Elias CJ in New Zealand suggested that human rights instruments were in the same category: in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1, Her Honour noted at [13] that ‘The common law had, I think, already evolved beyond requiring ambiguity before interpreting legislation to conform wherever possible with human rights instruments and fundamental values of the common law’. She cited ‘R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539; R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115; R (on the application of Wilkinson) v Inland Revenue Commissioners [2005] 1 WLR 1718 at para [17] per Lord Hoffmann’. However, since Lord Hoffmann in the latter case made it clear that it was common law rights were the basis for legality, the comments of Elias CJ are probably to be limited to domestic human rights instruments. 158 [1981] AC 446. 159 [1981] AC 446 at 464. 160 [1981] AC 446 at 455. 161 Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670. 156

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sued a newspaper for libel in relation to allegations that she had protected a teacher who was a child abuser. The jury rejected a defence of fair comment and awarded damages of £250,000 plus costs. On appeal, the newspaper successfully obtained a reduction of the damages under section 8 of the Courts and Legal Services Act 1990, to £110,000. The Court of Appeal decided that its power to order a new trial or to substitute a lower award where the damages awarded by a jury were ‘excessive’ should be construed in a manner which was not inconsistent with Article 10 of the ECHR. It also stated that the almost unlimited discretion given to a jury to award damages for defamation did not provide a satisfactory measurement for deciding what was a necessary restriction in a democratic society on the exercise of the right to freedom of expression under Article 10 to protect the reputation of others, and so large awards of damages by a jury should be more closely scrutinised by the Court of Appeal than had previously been the case. Giving the judgment of the Court, Neill LJ constructed the following argument:162 (i) The Convention was not part of English law, but the UK’s obligation to secure the rights set out and grant an effective remedy meant that it could be used to assist in construing an ambiguity, as shown in Brind. (ii) ‘It is also clear that Article 10 may be used when the court is contemplating how a discretion is to be exercised’ as it had been referred to in various cases, which supported ‘the proposition that Article 10 has a wider role and can properly be regarded as an articulation of some of the principles underlying the common law’ in light of comments that the common law and Article 10 were of the same substance.163 (iii) So ‘excessive’ should be construed by giving proper weight to the jurisprudence of the ECtHR: After careful consideration we have come to the conclusion that we must interpret our power so as to give proper weight to the guidance given by the House of Lords and by the European Court of Human Rights. In particular we should take account of the following passage in Lord Goff’s speech in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283–284: ‘The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include ‘the interests of national security’ and ‘preventing the disclosure of information received in confidence.’ It is established in the jurisprudence of the European Court of Human Rights that the word ‘necessary’ in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion.’ 162

[1994] QB 670 at 690G–693H. He referred to Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 and R v Wells Street Stipendiary Magistrate, ex parte Deakin [1980] AC 477. 163

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If one applies these words it seems to us that the grant of an almost limitless discretion to a jury fails to provide a satisfactory measurement for deciding what is ‘necessary in a democratic society’ or ‘justified by a pressing social need.’ We consider therefore that the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than has been customary in the past. It follows that what has been regarded as the barrier against intervention should be lowered. The question becomes: ‘Could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?’

(iv) It was a matter of practice rather than of substantive law that juries were not given assistance (and this had until recently also been the practice in relation to judge-made awards for personal injuries), albeit a matter of practice that had been reiterated recently.164 That was found problematic: It is for consideration whether this state of affairs should continue or whether the present practice conflicts with the principle enshrined in the second paragraph of article 10 that restrictions on the exercise of freedom of expression should be prescribed by law. As was said in The Sunday Times v The United Kingdom 2 EHRR 245, 271, ‘A norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct’ and to enable him to foresee, if need be with appropriate advice, the consequences which a given action may entail.165

Whilst in Brind it was concluded that Article 10 concepts could not be used to constrain an executive discretion, but rather only the common law’s doctrines should be used, in Rantzen it was held that a judicial discretion should reflect Article 10 concepts, rather than asking whether the jury award was outside the range of options or otherwise unreasonable so as to amount to being excessive. It is to be noted that the doctrine of legitimate expectation arising from international treaties has some momentum in relation to environmental cases. This has arisen from the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 (‘the Aarhus Convention’), promulgated by the United National Economic Commission for Europe.166 In R (Greenpeace Ltd) v Secretary of State for Trade and Industry,167 the High Court quashed the government’s indication that it had changed its policy on the building of nuclear power stations because it had not carried out adequate consultation about the change of policy, breaching a legitimate expectation that it would do so. This arose from an indication in an earlier policy statement (a 2003 White Paper) that

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Sutcliffe v Pressdram Ltd [1991] 1 QB 153. It was decided that the guidance should reflect other appellate decisions under the statute (rather than other jury awards in defamation cases or personal injury awards). 166 2161 UNTS 447: available at www.unece.org/env/pp/treatytext.html and http://treaties. un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en. It is a 1998 Convention, which came into effect in 2001, and currently has 47 parties in Europe, of which one is the European Union, which ratified the Convention just before the UK did in 2005. 167 R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin). 165

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there would be wide consultation before any change in policy. Sullivan J noted the public law doctrine by which public authorities have to have a good reason for departing from a policy as to how they will act,168 and determined that this applied even in relation to high level issues such as those in issue: ‘49. Whatever the position may be in other policy areas, in the development of policy in the environmental field consultation is no longer a privilege to be granted or withheld at will by the executive’. The reason for this was the Aarhus Convention and its requirement of public participation. The judge set out why the change in policy would have a significant impact, and concluded that 53. … It would be surprising if the procedural steps leading to a decision of such planning and environmental significance were immune from legal scrutiny, so that the Government could promise consultation in a White Paper and then renege on that promise in a subsequent policy document upon the basis that the latter was a ‘high level’ or ‘strategic’ decision for which it was politically, but not legally, accountable.

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The judge moved without pause from the international obligation to an indication that there was a legitimate expectation that it be applied, even in a highly political context.169 iii. The UK and Ireland: the European Union

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The reception of EU law in Ireland is authorised by the Constitution, which makes specific provision for membership of the EU and the priority of EU law.170 In McD v L and Another,171 Murray CJ contrasted the position of EU law with that of the ECHR: In passing I would note the treaties establishing the European Communities and the European Union, with a consequential creation of a sui generis and autonomous

168 He cited R (Nadarajah and Abdi) v Secretary of State for the Home Department [2005] EWCA Civ 1363. 169 In R (Evans) v Lord Chancellor and Secretary of State [2011] EWHC 1146 (Admin) Laws LJ noted that the Aarhus Convention is ‘largely given effect in European Union law by the Public Participation Directive 2003/35/EC’: however, in Morgan & Baker v Hinton Organics (Wessex) Limited [2009] EWCA Civ 107, the Court of Appeal, considering the rules relating to protective costs orders, suggested that some EU directives had incorporated Aarhus principles, but at para 22 noted that ‘For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated’. Naturally, as is noted in the next section, if the EU gives effect to an international treaty, that will be a matter of it having direct effect through EU law: see, for example, R (Greenpeace Limited) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWCA Civ 1036, in which the Court of Appeal dealt with a challenge to an importation of mahogany from Brazil on the basis that it breached EU law, which in turn was based on the UN Convention on Trade in Endangered Species of Wild Fauna and Flora (‘CITES’). 170 Article 29.4.10: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State. 171 [2009] IESC 81.

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legal order within the European Union according to which European law is a part of the domestic law of the State, is a wholly separate matter. The fact that the law of the European Union is directly applicable and may to the extent permitted by the Constitution take precedence over national law stems from the particular manner in which the State became party to those treaties by way of specific constitutional amendments adopted by the various referendums.172

The position in the UK is different, as EU law has validity through an Act of Parliament, the European Communities Act 1972, section 2(1) of which provides for the implementation of the treaties on which the European Union is based with the following language:

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(1) All such rights, powers, liabilities, obligations, and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.173

Section 2(2) allows delegated legislation to put EU obligations into effect, which is supported by an interpretive obligation in section 2(4):

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(4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council or orders, rules, regulations or schemes.174

This implements directly into UK law the terms of the European treaties. At the time of the statute, the main one, the Treaty of Rome 1957, summarised the mechanisms by which European law was promulgated in Article 189, which stated: In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives … A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

172 This meant that Article 29.6 of the Constitution, noted above, by which international treaties are part of domestic law only if the legislature so directs, was irrelevant. 173 In terms of the substantive content of such a right, the European Court of Justice is made the authoritative part of the judicial structure: see section 3, discussed in Chapter 5. 174 Schedule 2 prevents taxation, retrospectivity and criminal offences carrying more than a small penalty, and controls the method of legislation.

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A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.175

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So regulations are meant to be directly applicable without the need for any further steps at national level (ie, they are self-executing), but directives require national governments to take steps to implement them. This raises the question of what happens if a directive has not been implemented or has not been implemented adequately: does it give rise to rights, or can it be relied on as an aid to interpretation? The power to use a directive as a tool of interpretation was confirmed by the European Court of Justice in Marleasing SA v La Comercial Internacional de Alimentacion SA:176 [I]n applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of [Art] 189 of the Treaty.

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This does not run counter to the traditional framework of parliamentary sovereignty and dualism because the European Communities Act 1972 imposes the obligation to give effect to EU law. This leaves open the prospect of Parliament expressly saying that it should not be bound, whether by repealing the 1972 Act (which is not entrenched) or by using language to indicate that, notwithstanding the 1972 Act, a provision should be read and given effect in precedence to any EU requirement. That would be contrary to EU law; but not contrary to domestic law. It is suggested that the well-known Factortame litigation confirms this. It turned on the Common Fisheries Policy (CFP), which regulated the catching of fish in waters covered by what was at the time the EEC and included a wider Exclusive Economic Zone than had previously existed, of 200 miles.177 This meant that Spanish fishermen were unable to fish where they had historically done in what had previously been international waters off Ireland and Cornwall. So they registered their ships in the UK or bought UK ships (which benefitted the UK because the CFP compiled quotas on the basis of how

175 See now Article 288 of the Consolidated Version of the Treaty on the Functioning of the European Union 2012 (2012/C 326/01), which notes that ‘To exercise the Union’s competences, the institutions shall adopt regulations, directives, ... A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. ...’. The old provisions are used in the text because they are referred to in the case law. 176 Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] I-4135, 4159 (ECJ). See Chapter 8 and the discussion of the relevance of this language, which is reflected in the interpretive obligation used in section 3 of the Human Rights Act 1998, and whether it means that there is a stronger interpretive obligation than arising under section 3 of the New Zealand Bill of Rights Act. In short, there were suggestions made—for example by Lord Steyn in Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL)—that the UK obligation was stronger. 177 This was in response to action taken by Iceland to extend its territorial waters.

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much fish was caught by ships registered in a particular country). After Spain joined the Community in 1985, British government policy sought to remove these Spanish-owned but British-flagged vessels, and so Parliament passed the Merchant Shipping Act 1988 to provide that British fishing boats (which could fish for the established British quotas) could only be owned by people resident in the UK. The Factortame litigation challenged this statute, with the result that it was found to be in breach of EU law, its operation was suspended, and an award of damages was made against the UK. In other words, it was something that was suitable to give rise to remedies for legal entities as against the government, unlike the outcome in JH Rayner or Brind. The main stages in the Factortame litigation were:

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(i) R v Secretary of State for Transport ex p Factortame Ltd,178 May 1989, HL: the validity of the Merchant Shipping Act 1988 in light of the EEC Treaty had been referred to the European Court of Justice for its assistance, and the question was whether the operation of the 1988 Act could be suspended pending that ruling. The House of Lords held that it could not, but also held that the issue raised a point of Community law and so referred the question on. (ii) R v Secretary of State for Transport ex p Factortame Ltd (No 2), June 1990 (ECJ) and October 1990 (HL): the ECJ determined that community law required that interim relief should in principle be available and the House of Lords determined that it should be granted on the facts. (iii) R v Secretary of State for Transport ex p Factortame Ltd (No 3), July 1991 (ECJ): the ECJ determined that, overall, the Merchant Shipping Act 1988 was in breach of Community law. (iv) R v Secretary of State for Transport ex p Factortame Ltd (No 4), March 1996 (ECJ): the ECJ held that as a matter of Community law a state was obliged to pay damages for a violation of Community law caused by a legislature if various conditions were met, including if the Community law provision was designed to confer individual rights and the legislature had committed a sufficiently serious breach which gravely disregarded the limits imposed upon it. (v) R v Secretary of State for Transport ex p Factortame Ltd (No 5), October 1999 (HL): the House of Lords upheld the conclusion of the lower domestic courts that the test for an award of damages was met. At first sight, a finding that a statute is essentially invalid because it breaches international law, which has effect via another statute, is of great moment in a dualist legal system without any notion of one statute being supreme law. However, to understand the significance of Factortame it is important to note that the position of the government was always that the legislation was in compliance with and not contrary to the requirements of Community law (though it was ultimately shown to be wrong about this), and so Parliament 178 The first case is reported at [1990] 2 AC 85, No 2 at [1991] 1 AC 603, No 3 at [1992] QB 680, No 4 at [1996] QB 404, and No 5 at [2000] AC 524.

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had no intention to breach the requirements of the 1972 Act and the EU law that took effect through that statute. In light of this, the courts were not asked to determine what should happen if Parliament legislated with the purpose of or in the knowledge that it was breaching European law. Accordingly, in the first Factortame judgment in the House of Lords, Lord Bridge noted that the question was effectively one of a conflict between statutory regimes and the question was which one should be given effect. He ruled that it could not be a simplistic position that the later statute took effect over the prior statute, since the 1972 Act purported to apply to all statutes, including later statutes. This meant that Parliament passed the 1988 Act with the knowledge of what membership of the EEC entailed, and so it was to be read as subject to a limitation:179 By virtue of section 2(4) of the Act of 1972 Part II of the Act of 1988 is to be construed and take effect subject to directly enforceable Community rights and those rights are, by section 2(1) of the Act of 1972, to be ‘recognised and available in law, and … enforced, allowed and followed accordingly; ...’ This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC. Thus it is common ground that, in so far as the applicants succeed before the ECJ in obtaining a ruling in support of the Community rights which they claim, those rights will prevail over the restrictions imposed on registration of British fishing vessels by Part II of the Act of 1988 and the Divisional Court will, in the final determination of the application for judicial review, be obliged to make appropriate declarations to give effect to those rights.

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In short, this was a simple statutory interpretation point, involving giving one statute an enhanced status because of its centrality in the context. There was also a question of interim relief: Lord Bridge held that this was not available against the Crown as a matter of domestic law, but he was ‘strongly inclined to the view that if English law could provide no effective remedy to secure the interim protection of the rights claimed by the applicants, it was nevertheless our duty under Community law to devise such a remedy’.180 This question of Community law required the assistance of the European Court of Justice,181 which determined that a remedy was required, which the House of Lords then provided in Factortame (No 2), finding that there was a reasonably strong case against the 1988 Act being compatible with Community law as a significant part of the balancing act as to the grant of interim relief. It was noted in the damages claim, which led to Factortame (No 5), that the UK government had operated on the basis of legal advice that turned out to be wrong, namely that the 1988 Act was compatible with Community law. The point arising is that the parliamentary purpose was to comply with Community law. Once the courts, as the arbiters of points of law, found 179 180 181

ibid at 140B–F. ibid at 151E. See ibid at 152E for the question referred.

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that Parliament acted on an erroneous premise, it was determined that the language of the earlier statute was to be read into the later one as an implied condition on its effect. Accordingly, there should be no effect given to the 1988 Act in such a way as to breach Community law, which was not the purpose of Parliament. In short, Parliament may create a statute reflecting a political reality with a legal framework attached—such as membership of the European Union—that requires clear language before a breach of that legal framework will be found to be the consequence of a further statute. Human rights statutes may be designed with a similar effect. iv. Australia Australia is also dualist in its approach to treaty obligations. Treaty making is assigned to the executive by reason of section 61 of the Australian Constitution. However, the practice is that no ratification occurs without oversight by Parliament. There is a Joint Standing Committee on Treaties, from both chambers of the Commonwealth Parliament, which analyses treaties and makes a recommendation before binding action is taken.182

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Its judiciary allows them to be used in interpretation of statutes and as a factor relevant to administrative decisions even if they are not incorporated into legislation. In Minister for Immigration and Ethnic Affairs v Teoh,183 the High Court of Australia held that ratification of a Convention (the UN Convention on the Rights of the Child) was a positive statement by the executive that it would comply with the Convention, and so administrative decision makers would act in conformity with it. The question was how a largely unlimited statutory discretion to grant an entry permit to be a resident would be used in relation to a father who had a criminal conviction, his child being Australian. The international obligation is to make child welfare a primary consideration in relation to decisions that affect children, and also not to split families unless that is necessary to protect the child. Mason CJ and Deane J set out first the standard dualist approach, including its foundation on a premise that there is a complete split between the legislative part of the state and the treaty-making part of the state that does not reflect reality:184

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The status of the Convention in Australian law 25.

182

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions

See www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties. Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, (1995) 128 ALR 353. 184 Paragraph numbers are from the neutral citation transcript. The authorities cited were: Chow Hung Ching v The King [1948] HCA 37, (1948) 77 CLR 449 at 478; Bradley v The Commonwealth [1973] HCA 34, (1973) 128 CLR 557 at 582; Simsek v Macphee [1982] HCA 7, (1982) 148 CLR 636 at 641–42; Koowarta v Bjelke-Petersen [1982] HCA 27, (1982) 153 CLR 168 at 211–12, 224–25; Kioa v West [1985] HCA 81, (1985) 159 CLR 550 at 570; Dietrich v The Queen [1992] HCA 57, (1992) 177 CLR 292 at 305; JH Rayner Ltd v Dept of Trade [1990] 2 AC 418 at 500. 183

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The Pre-Existing Protection of Human Rights have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way.

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They then added the proposition that an unincorporated treaty could be used to help resolve an ambiguity in statutory language, but importantly determined that the idea of when there was ambiguity was to be given a wide meaning. This had the effect that statutes were to be construed so as to conform with international obligations unless that was not possible—in other words, what was necessary was language that unambiguously breached international obligations for that to be the result: 26.

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law. 27. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.185

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However, they accepted that the real question in the case was the role of a treaty in controlling a discretion, and the method here was not statutory interpretation but legitimate expectation that there would be compliance with the Convention, even though it was not incorporated, such that the failure of the

185

Brind was cited as authority for this proposition.

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Minister to take it into account or allow the applicant to put forward a case as to why it should be taken into account meant that the decision was flawed. A government argument that an unincorporated treaty could not create a legitimate expectation was dismissed because ‘No persuasive reason was offered to support this far-reaching proposition’, and Their Honours continued: 34.

... The fact that the provisions of the Convention do not form part of our law are a less than compelling reason—legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act,186 particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.187

The failure to take into account the requirements of the Convention meant that there was a procedural unfairness. McHugh J dissented in relation to whether there was a legitimate expectation, because the ratification of the Convention was to be understood as a statement only to the international community that there would be compliance and did not speak to the residents of Australia because it was a function of Parliament to determine whether they had domestic effect.188 However, he accepted the notion that unincorporated 186 Tavita, an important New Zealand authority, discussed below, was one of the authorities relied on for this proposition. 187 See also Toohey J at [20]–[23]; at [29], he endorsed the approach in Tavita, discussed below. Gaudron J, at para [3] of her speech, agreed with this legitimate expectation approach, but found that the citizenship of the child meant that best interests had to be taken into account as a matter of the common law. For her, the Convention was of relevance because it conformed with the common law: ‘6. The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilized countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations’. 188 [1995] HCA 20, para [37] of his opinion: ‘The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive government does not give undertakings to its citizens or residents. The undertakings in the Convention are given to the other parties to the Convention. How, when or where those undertakings will be given force in Australia is a matter for the federal Parliament. This is a basic consequence of the fact that conventions do not have the force of law within

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treaties were, just as were the rules of customary international law, tools to assist if a statute was ambiguous.189 The views of Mason CJ and Deane J were cited by Gleeson CJ in Plaintiff S157/2002 v Commonwealth,190 but he spoke of a situation in which the legislation in question was designed to give effect to an international obligation. French CJ in Momcilovic v R191 noted that there was a common law principle (which did not arise on the facts) that ‘statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party’.192 Similarly, in Al-Kateb v Godwin,193 McHugh J, a sceptic on the value of international law, accepted that statutes (but not the Constitution) should be construed compatibly with international law (which he seems to have taken to mean treaty and customary law), which he suggested was too well established an approach to be repealed by judicial development. But he added that the rule originated when there were only a small number of rules of international law and it was a complete fiction that the legislature was aware of the range of obligations now in place; and he was keen to suggest that the rule could only be used to construe statutory language as being consistent with such international law as was in existence at the time that the treaty was established.194 This limitation to pre-existing international law is not a feature of other dicta, and in any event neglects the fact that new treaties are invariably ratified only if it is believed that domestic law is in compliance with the treaty and Parliament has approved the treaty. There are also Australian decisions that permit the rights recognised by the common law to develop to conform with international treaties. In Teoh, Mason CJ and Deane J noted that ‘The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law’.195 Although one authority cited was the UK decision Australia’. See also McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 at [97]–[102]; they suggested that Teoh did not set a general principle and noted that it was improper for the judiciary to use the conduct of external affairs to control executive powers. 189 [1995] HCA 20, para [35] of his opinion. 190 Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476. 191 Momcilovic v R [2011] HCA 34 at [18]. 192 The authorities cited, at fn 25 in the judgment, were Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363 per O’Connor J, [1908] HCA 95; Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181 per Barton, Isaacs and Rich JJ, [1917] HCA 77; Polites v The Commonwealth (1945) 70 CLR 60 at 68–69 per Latham CJ, 77 per Dixon J, 80–81 per Williams J, [1945] HCA 3; Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304–05 per Gummow J. See also Garland v British Rail Engineering Ltd [1983] 2 AC 751 at 771; R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 at 747–48 per Lord Bridge of Harwich. 193 Al-Kateb v Godwin [2004] HCA 37, 219 CLR 562. 194 ibid at [63]–[65]. 195 McHugh J, who dissented in the outcome of the case relating to executive discretion, also accepted at para [35] of his opinion that ‘International conventions may also play a part in the development of the common law’.

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in Derbyshire County Council v Times Newspapers,196 which actually used the common law though indicating that the ECHR had the same rights in balance,197 the High Court of Australia had clearly made use of international legal standards in the noted Aboriginal rights case, Mabo v Queensland (No 2).198 This disapplied the terra nullius view that had accorded the indigenous people of Australia no rights over the land. Brennan J, with whom Mason CJ and McHugh J agreed, commented that this ‘fiction … has no place in the contemporary law of this country’ and that ‘A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration’. The route to this conclusion was both domestic contemporary standards (namely that the common law is a living instrument that can reflect modern-day standards) and international human rights standards: 42.

… Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights … brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.199

Mason CJ and Deane J in Teoh also expressed the view that this development of the common law should be done cautiously, because it would be wrong to introduce an unincorporated treaty, one that Parliament had not decided to domesticate by legislation, via the back door.200 However, if the common law process of discerning principles and applying them allows developments in the law, the coincidence that an international treaty has decided that the same principles should be applied is no reason for not recognising them through the common law.

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Derbyshire County Council v Times Newspapers [1993] AC 534. ibid at 551, per Lord Keith. See n 156 above. 198 Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1. 199 Similar comments about the role of complaints under the international mechanism were made in Tavita, an important New Zealand case noted below: [1994] 2 NZLR 257 at 266. 200 They suggested that ‘Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law’. 197

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v. New Zealand 125

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The signing of international treaties is a matter for the executive, but there is also a process of approval by the legislature. Standing Order 394-7 of the Standing Orders of the House of Representatives notes that the government presents treaties to the House before ratification (or afterwards if ratification was done on an urgent basis), including major bilateral treaties as well as multinational ones; that there is a national interests analysis provided with the treaty; and that the Select Committee on Foreign Affairs, Defence and Trade will provide a report to the House.201 Although there is nothing that indicates more than parliamentary examination (rather than approval) is necessary, it is also the standard approach that legislation to implement a treaty is passed before ratification, and so there is a political mechanism whereby Parliament has a level of control:202 however, an executive-dominated Parliament is unlikely to reject a government-approved treaty. The New Zealand judiciary has also accepted the value of unincorporated international treaties as creating a strong interpretive obligation and a public law legitimate expectation. This has developed over the course of a generation.203 A narrow and traditional view was set out in Ashby v Minister of Immigration,204 which challenged a decision to grant visas to an apartheid-era South African sporting team on the basis that it breached New Zealand’s obligation under the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (to which partial domestic effect had been given by the Race Relations Act 1965). Cooke P suggested it was far from clear that ICERD prevented sporting tours, and held that the Convention could not control the general discretion to grant an entry permit:205 If the Convention does have some wider scope, which is not clear, it has not as to any such wider scope been incorporated into New Zealand law by any Act of Parliament. It is elementary that international treaty obligations are not binding in domestic law until they have become incorporated in that way. So the Convention cannot possibly override the Immigration Act by depriving the Minister of authority to grant permits to the Springboks.

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Richardson J started with the consequence of dualism that ‘the making of a treaty is an executive act while the performance of its obligations, if they entail

201 See also paras 7.112–7.122 of the Cabinet Manual 2008, available at http://cabinetmanual. cabinetoffice.govt.nz/. 202 See International Treaty Making by the Ministry of Foreign Affairs and Trade, 2012, 9–13, available at www.mfat.govt.nz/downloads/treaties-and-international-law/International-TreatyMaking-Guide-2012.pdf. 203 For a historical background account, see Sir Kenneth Keith, ‘Roles of the Courts in New Zealand in Giving Effect to International Human Rights—with Some History’ (1999) 29(1) Victoria University of Wellington Law Review 27. See also chapter 3 of the New Zealand Law Commission, A New Zealand Guide to International Law and Its Sources, NZLC R34, which summarises the position as at 1996. 204 Ashby v Minister of Immigration [1981] 1 NZLR 222. 205 ibid at 224.

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alteration of the existing domestic law, requires legislative action’.206 But he accepted the role of treaties as a tool for interpretation, though only if there was an ambiguity:207 It has been increasingly recognised in recent years that, even though treaty obligations not implemented by legislation are not part of our domestic law, the Courts in interpreting legislation will do their best conformably with the subject-matter and the policy of the legislation to see that their decisions are consistent with our international obligations. ... But if the terms of the domestic legislation are clear and unambiguous they must be given effect in our Courts whether or not they carry out New Zealand’s international obligations.

His Honour suggested that the unlimited discretion was unambiguous, and could not be affected by ICERD because it would imply a class of persons who could not be granted entry in addition to those already listed in the immigration legislation and would run counter to the failure of the Race Relations Act to deal with visa matters. Somers J agreed as to the first point. There was an alternative argument that consideration of ICERD was mandatory, and the decision was unlawful because it had not been taken into account (save in the sense that there was a general awareness that New Zealand opposed apartheid). Cooke P noted, first, that New Zealand administrative law allowed the courts to interfere only in limited circumstances:208

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As emphasised in the CREEDNZ case,209 it is only when a statute expressly or by implication identifies a consideration as one to which regard must be had that the Courts can interfere for failure to take it into account. The mere fact that the consideration is one that could properly or reasonably be taken into account is not enough.

He then suggested that, whilst immigration was closely tied with foreign policy and so subject to significant deference from the courts, there might be some factor ‘of such overwhelming or manifest importance that the Courts might hold that Parliament could not possibly have meant to allow it to be ignored’.210 But he declined to place ICERD in that category (though he thought that an agreement between Commonwealth Heads of Government relating to apartheid-related matters, which had been taken into account, might be in that category). Richardson J felt that it was only necessary for the Minister to take into account the general policy of opposition to apartheid, as had been done. Somers J accepted that there might be matters relating to international obligations that were such that they had to be taken into account, and that the agreement among Commonwealth Heads of Government might be such an 206 207 208 209 210

ibid at 229. ibid at 229. ibid at 225. CREEDNZ Inc v Governor-General [1981] 1 NZLR 172. [1981] 1 NZLR 222 at 226.

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obligation, but he accepted that they only had to be taken into account in a general fashion.211 In a way, Ashby was, like Brind, a difficult factual case for the point raised, given the doubt as to whether ICERD was engaged. In the situation where a statute was designed to give effect to an international treaty obligation, it was clear that it could be taken into account in statutory construction. In King-Ansell v Police,212 the question was whether an anti-Semitic pamphlet amounted to an offence relating to an ‘ethnic group’, contrary to the Race Relations Act 1971. Richardson J noted the Act’s purpose of being to implement ICERD, which meant that the policy behind the Convention of eliminating all forms of racial discrimination was to be ‘borne in mind in interpreting the relevant domestic legislation. The text of the Convention has an international currency’.213 Then, in Gross v Boda,214 a case relating to transnational custody and access-to-children situations, a five-judge Court of Appeal indicated that the Hague Convention on the Civil Aspects of International Child Abduction should be used in construing the Guardianship Amendment Act 1991, which was designed to implement the Convention in domestic law. The trial judge held that the statutory language defeated the Convention: Cooke P disagreed, and added that he favoured liberal constructions to give effect to the Convention. Richardson J agreed that there was no legislative intent to depart from obligations undertaken in the Convention. In concurring judgments, Hardie Boys J and McKay J both noted the duty to construe statutory language to comply with the Convention. The former noted that as the statute was designed to implement the international obligation, ‘It is incumbent on the Court to construe the Act in a manner that will as far as possible give effect to that purpose’.215 The latter commented that the declared purpose meant that the statute ‘should so far as possible be construed in a manner which will implement the Convention and accord with its terms’ even though the statute had used different language.216

211

ibid at 233–34. King-Ansell v Police [1979] 2 NZLR 531. ibid at 540; at 541–42, His Honour accepted that it was relevant that the history of ICERD made it clear that discrimination based on religious grounds was not meant to be covered, but also that the drafters of both ICERD and the statute meant the various words used to be read together. See also Woodhouse J at 536: ‘the express mention in the Act of its intention to implement the Convention demonstrates, if that were necessary, that the language of the Act is intended to adopt and reflect its purposes’ (though this language could be seen to have a narrower requirement of ambiguity such as might make referring to the Convention necessary). It is fair to comment, however, that the central point of discussion in the case turned on what Parliament must have meant by the term; indeed, there is no additional clarity in ICERD, Article 1 of which defines ‘racial discrimination’ as differential treatment based on ‘race, colour, descent, or national or ethnic origin’. The conclusion of the Court was that a broad meaning was intended, covering shared customs and beliefs from a common past. 214 Gross v Boda [1995] 1 NZLR 569. 215 ibid at 573. 216 ibid at 574. 212 213

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The development of a wider approach in New Zealand, beyond the question of the construction of a statute specifically designed to implement an international treaty,217 really comes from Tavita v Minister of Immigration,218 in which the question arising in a deportation case was whether the ICCPR and the UN Convention on the Rights of the Child were relevant. The facts were that they had not been taken into account, and there might have been a different result if they had. But the argument for the government was that Ministers were allowed to ignore international obligations. The Court of Appeal, through the judgment of Cooke P, was not impressed by this suggestion (though it did not have to make a final decision because the case was remitted for reconsideration):219

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That is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing. Although, for the reasons to be mentioned shortly, a final decision on the argument is neither necessary nor desirable, there must at least be hesitation about accepting it. The law as to the bearing on domestic law of international human rights and instruments declaring them is undergoing evolution. For the appellant Mr Fliegner drew our attention to the Balliol Statement of 1992, the full text of which appears in 67 ALJ 67, with its reference to the duty of the judiciary to interpret and apply national constitutions, ordinary legislation and the common law in the light of the universality of human rights. It has since been reaffirmed in the Bloemfontein Statement of 1993.220

There was also discussion of Brind and whether it should be followed: there were hints that it would not be, Cooke P describing it as ‘in some respects a controversial decision’ even though it set out a fairly conventional position,

217 Not discussed in this text, but to be noted in understanding the context in New Zealand, is that its founding document of the country’s current legal system is the Treaty of Waitangi 1840, between the Crown and the majority of the Maori groups who had been in the country for several centuries. The practical importance of this became more apparent from the Treaty of Waitangi Act 1975, which allowed Maori to make claims to the Waitangi Tribunal that Treaty rights, including those arising from the principles of the Treaty, had not been respected (and since 1984, this jurisdiction extends back to 1840). Although the Tribunal’s powers are limited to recommendations, its existence and jurisdiction makes the point that treaty obligations are meant to be taken seriously. 218 Tavita v Minister of Immigration [1994] 2 NZLR 257. 219 ibid at 266. 220 The Balliol Statement can also be found at (1992) 18(4) Commonwealth Law Bulletin 1253. It is a statement at the end of meetings of senior judges from various Commonwealth countries and other common law jurisdictions. It noted in para 5 that the international instruments and case law ‘enshrine values and principles long recognised by the common law’ and also that they had inspired various constitutional guarantees; there is reference to there being ‘one coherent system of global human rights’. It also supported giving a generous interpretation to the international instruments because that is ‘appropriate to charters of freedom’. It continues that the international instruments ‘reflect international law and principle and are of particular importance as aids to interpretation and in helping courts to make choices between competing interests. ... They serve as vital points of reference for judges as they develop the common law and make the choices which it is their responsibility to make in a free and democratic society’.

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and adding that a relevant matter was that New Zealand having allowed its residents to make complaints of breaches of the ICCPR meant that:221 the United Nations Human Rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it, a failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.222

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The state of flux in the law which prevented the endorsement of Brind, particularly given the engagement of New Zealand in the international human rights regime, was clarified in favour of the hints given in Tavita. In Rajan v Minister of Immigration,223 the facts involved a decision to revoke the residence permit of the parent of a child with a right of residence in New Zealand; the evidence was again that the ICCPR and UNCRC had not been taken into account. The Court of Appeal identified a ‘presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations’.224 This was not part of the ratio of the case. However, a five-judge Court of Appeal in New Zealand Air Line Pilots’ Association Inc v Attorney-General225 confirmed the existence of this rule and indicated that ‘That presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text’.226 This was in the context of a determination that the relevant parts of the Convention in question, the Convention on International Civil Aviation 1944, had not been made part of New Zealand law. Keith J commented that [t]hat is not however the end of the matter since, although not part of the law of New Zealand, the [treaty provision] might place a limiting gloss on, or state a

221

[1994] 2 NZLR 257 at 266. Subsequently, the immigration department made it an express requirement in its policy documents: see Ye v Minister of Immigration [2010] 1 NZLR 104 at [5]. 223 Rajan v Minister of Immigration [1996] 3 NZLR 543. 224 ibid at 551. 225 New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269. 226 ibid at 289. See also Sellers v Maritime Safety Inspector [1999] 2 NZLR 44. Keith J for the Court of Appeal held that maritime legislation should be construed in the context of the international law of the sea: this reflected a long line of New Zealand case law, starting with R v Dodd (1874) 2 NZCA 598. He relied also on comments in R v Keyn (176–77) Lr R Ex D 63, which related to the question of whether there was jurisdiction over the commander of a foreign ship that ran over a British ship and caused a death. The incident was not within a port or inland waters but on the high seas, though within 3 miles of the coast (the area over which Parliament had passed various statutes). The prosecution claimed that common law allowed jurisdiction over incidents that occurred in that area. A majority of the Court for Crown Cases Reserved disagreed, holding that there was no such jurisdiction. Two judges had a supplemental reason, which was that statutory language claiming jurisdiction over crimes on British ships did not mention foreign ships and ‘it is an established principle as to the construction of a statute that it should be construed, if the words will permit, so as to be in accordance with the principles of international law’ (per Sir R Phillimore at 85). 222

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consideration relevant to, the exercise of the power of a judicial officer to issue a search warrant.227

The presumption of consistency was part of the determination of whether it had that effect. His Honour summarised the position in New Zealand law when he became a member of the newly established Supreme Court of New Zealand. In one of its early decisions, Zaoui v Attorney-General (No 2),228 the Court considered whether the risk of a breach of human rights had to be considered when the potential deportation of a person on security grounds was in issue. The statutory section in question gave the Governor-General an unlimited discretion to order the deportation of a person who had been certified to present a security risk; the Supreme Court determined that this had to be construed in a way that complied with the rights to life and not to be tortured, such that it could not be exercised if there was a substantial risk of such treatment on being deported. Keith J delivered the judgment of the court, and noted that the approach to both the question of the substance of the rights as guaranteed in the NZBORA and how the courts should seek to interpret the statutory discretion should be compliant with international law, and he drew no distinction between treaty and customary law: ‘90. … Those rights in turn are to be interpreted and the powers conferred by s 72 are to be exercised, if the wording will permit, so as to be in accordance with international law, both customary and treaty-based’. It can be said that this is now accepted as orthodoxy in New Zealand. In Huang v Minister of Immigration,229 William Young P said of Tavita that it proceeded on the orthodox basis that as far as possible statutes should be read in a way which is consistent with New Zealand’s international law obligations and the 227

[1997] 3 NZLR 269 at 289. Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289. 229 Huang v Minister of Immigration [2008] NZCA 377, [2009] 2 NZLR 700 at para 34. That is not to say that quite what this means is not problematic: so in Huang, and in Ye v Minister of Immigration [2009] NZSC 76, [2009] 2 NZLR 596 (CA) and [2010] 1 NZLR 104 (SC), there have been issues as to how these international obligations are best secured. In Ye in the Supreme Court, Tipping J, giving the opinion of the majority, noted that it was necessary for an immigration officer making a removal decision to take account of material that had not been before the judicial tribunal that makes decisions about whether to uphold decisions not to grant leave to remain. This tribunal, the Removal Review Authority (RRA), decides under section 47(3) of the Immigration Act 1987 whether removal would be unjust or unduly harsh in light of humanitarian concerns. At [24], Tipping J commented that this finding ‘is supported by the principle that the Act should be interpreted in a way that is consistent with New Zealand’s obligation to observe the requirements of applicable international instruments and, in particular, in present circumstances, those of the United Nations Convention on the Rights of the Child’. He also commented at [21] that the failure of the statutory provisions as to removal decisions by immigration officers to refer to humanitarian considerations could not mean that they were irrelevant since ‘It cannot have been Parliament’s purpose, when enacting s 58(5), to jeopardise fulfilment of New Zealand’s international commitment to treat the interests of children lawfully in New Zealand as an important consideration’. See also [31], in which international obligations were relevant to a conclusion that Parliament could not have intended ‘consistently with relevant international intentions’ that concern about immigration policy being upheld would be enough to disentitle someone from relying on humanitarian considerations. Elias CJ, who dissented in part on a question of the meaning of a central statutory test, expressed a similar view about the value of international standards: she noted the view of the Court of Appeal that humanitarian considerations were relevant only before the RRA and not when the immigration officer made a removal order would be an outcome that ‘would hardly conform to New Zealand’s international obligations’: [5]. 228

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corollary that statutory discretions should be exercised on a basis which accords with those obligations.

vi. Discussion 139

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The position reached in Australia and New Zealand is that there is an established process of relying on international law to assist statutory interpretation.230 Indeed, it can be compared to the constitutional position in South Africa. There, section 231 of the 1996 Constitution provides that the executive is responsible for negotiating and signing international agreements, but also that, save for technical or administrative treaties, they can only be ratified after approval by the National Assembly and the National Council of Provinces. Once the international obligation has been created, section 233 of the Constitution provides that: ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. This is the case irrespective of whether the statute in question was designed to promote the international obligation or not. In the latter context, a purposive interpretation clearly supports the courts seeking conformity (and would not be out of place in the UK or Ireland).231 But the wider proposition adopted in Australasia has its attractions. In the first place, just as the concept of legality imposes a presumption against a breach of fundamental rights in the absence of clear and precise language, so that inadvertent breaches are not supported by the judiciary, there is value in accepting that the interconnected world is such that international obligations have a value that should be protected from inadvertent breach. This may be particularly so in the case of human rights obligations in treaties, which should be protected by legality in any event. The fact that these obligations have an international dimension to them is not something to which the domestic courts should turn a blind eye. A second point in favour of the Australasian approach is that the more reluctant UK and Irish approach seems to be based on a fiction that the executive alone is responsible for treaties, such that there should be no impact on the law in the absence of legislative action. This may have been the case in

230 Similar language is used by the Committee on Economic, Social and Cultural Rights in General Comment No 3, ‘The nature of States parties obligations’, UN document E/1991/23, 14 December 1990: ‘15. It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State’s international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the state in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter’. 231 Note, however, that as shown in Chapter 8, the Irish courts have a preference for the literal meaning of words.

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history, but is no longer so, since legislatures now have a significant role in approving treaties, certainly major ones, before ratification. So international obligations have the necessary democratic mandate. In one respect, the South African Constitution sets out a position that goes further than the Australasian jurisdictions, because section 231(4) of the Constitution notes that, whilst ‘Any international agreement becomes law in the Republic when it is enacted into law by national legislation’, which is the typical dualist position, ‘a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. Whilst such a change would require specific legislation or constitutional change in other jurisdictions, the lesser position arising from the interpretive obligation of the sort recognised by the common law in New Zealand and Australia does not amount to giving legislative effect to a treaty. Rather, it allows the courts to support good international citizenship by ensuring that a parliamentary-approved international obligation is supported unless legislative language clearly breaches it. The same is so of the legitimate expectation approach to the exercise of executive discretions, namely that they should comply with international obligations unless Parliament authorises a contrary approach. Given that the executive is central to the treaty-making process, this is no more than the courts ensuring consistency in executive action; and given that the treatymaking process now involves the approval of the legislature, it involves the courts ensuring that the executive complies with the obligations approved through the parliamentary process. As to how far the judges should go in this regard into the merits of an executive decision, there is the argument that the judge should defer to the decision maker on the merits (who has the relevant skills and/or authority given by the democratic process) and simply check whether the decision maker has taken the international obligations into account. However, this check on process only, rather than merits, may undermine the international obligation that is after all a legal obligation to reach a result on the merits, pursuant to a treaty entered into in accordance with constitutional processes (and so having domestic legitimacy in any event) and with the approval of the legislature (and so having democratic legitimacy as well):232 no doubt where the legal obligation is one that allows a range of decisions to be valid, the courts can operate with a suitable level of deference to the choice of the decision maker within the range. The obverse is, as was noted in the Tavita case, the unattractive proposition that international obligations mean nothing. Parliaments can make clear in their language that there is no requirement to abide by international obligations in such discretionary decisions, and so court-enforced requirements to 232 This is aside from the fact that the executive comes from the legislature in Australia, New Zealand, Ireland and the UK and so has democratic legitimacy in any event.

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conform amount to an equivalent to protecting international obligations from inadvertent breach.

III. CONCLUSION—THE EXTENT AND LIMITS OF THE COMMON LAW APPROACH

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The combined effect of the common law tools and statutory provisions to protect rights commonly found in common law countries can be powerful. A good example of this is Plaintiff S157/2002 v Commonwealth of Australia,233 in which the issue was whether judicial review was excluded in the context of a refusal of a visa for someone claiming refugee status. Commenting on the interplay between international obligations and the statutory provisions designed to give effect to them, Gleeson CJ noted in a concurring judgment the following ‘established principles’ relevant to statutory construction (footnotes as in the original): 29.

First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations.234 30. Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.235 As Lord Hoffmann recently pointed out in the UK,236 for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.237 31. Thirdly, the Australian Constitution is framed upon the assumption of the rule of law.238 Brennan J said:239 Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

233

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003) 211 CLR 476. [fn 33] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; see also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. 235 [fn 34] Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ. 236 [fn 35] R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131. 237 [fn 36] See also Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. 238 [fn 37] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J. 239 [fn 38] Church of Scientology v Woodward (1982) 154 CLR 25 at 70. 234

Conclusion—The Extent and Limits of the Common Law Approach 32.

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Fourthly, and as a specific application of the second and third principles, privative clauses are construed ‘by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied’.240

In McD v L and Another,241 Murray CJ of the Irish Supreme Court note that ‘all states on ratifying the Convention would have had already in place, by virtue of the democratic structure of a state founded on the rule of law, protections which in many instances were equal or greater to those specified in the Convention. To the extent that that is so the Convention requires no further action by the contracting state least of all its incorporation as part of domestic law’. This may give rise to a form of constitutional review that protects fundamental rights, pursuant to an expansive understanding of the rule of law. For example, in relation to the devolution of primary legislative powers in the UK to the Scottish Parliament and Assemblies in Wales and Northern Ireland, each has limits on its powers, including that breaching the ECHR is not permitted. One question that has arisen is whether the common law power of judicial review exists. This was considered in particular in AXA General Insurance Ltd and others v HM Advocate and others242 as there was a challenge to the rationality of an Act of the Scottish Parliament. The Supreme Court determined that the Act could not be challenged on administrative review grounds: but it was also held that there was a form of constitutional review that allowed the judges to strike down the primary legislation of a devolved legislature because the UK Parliament had not used language that clearly excluded judicial review. This was explained as an application of the principle of legality. Lord Reed noted that the statutory limitation on the powers was not the end of the story because not all fundamental rights and the rule of law were protected by the ECHR.243 Since there was no exclusion of judicial review, it would run against the Acts of the devolved legislatures. But the need not to undermine the democratic mandate of the legislature and limit courts to their constitutional role of protecting rights meant that the review should not be on standard administrative review grounds (including irrationality) but limited to a constitutional review to protect common law fundamental rights. Indeed, as much was accepted by the government. He commented that the UK Parliament

240 [fn 39] Public Service Association (SA) v Federated Clerks’ Union (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ. 241 [2009] IESC 81. 242 AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, [2012] 1 AC 868. 243 ibid at [150], citing Lord Steyn in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 [27].

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legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law.244

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But there have also been judicial acceptances of the limits of what is achievable under the common law tradition, both in relation to specific rights and the techniques of protection. Murray CJ continued in McD v L: I hasten to add that on the other hand virtually all, if not all, contracting states have been found to be deficient in those protections, and in breach of the Convention, as the case-law of the European Court of Human Rights, (the ECtHR), amply testifies. The number of times and the extent to which any Contracting Party has been found by the ECtHR to be in breach of the Convention varies greatly according to the extent of deficiencies in the protection of rights at national level or the absence of an adequate domestic remedy under national law for a breach of rights the subject of protection by the Convention.

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This is because the common law techniques can go only so far (and supreme law constitutional protections of rights might be somewhat limited in their range). This has been recognised. For example, in Momcilovic v R,245 French CJ noted that the legality principle was a ‘powerful one’ and that the rights ‘should not be thought to be unduly fragile’ because they had an enhanced status, even if not entrenched in a constitutional document. But he also commented that it might not be proper to describe the rights protected by the common law as fundamental rights because ‘The principle of legality, after all, does not constrain legislative power’.246 He added the reason for this: 45.

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… statutory language may leave open only an interpretation or interpretations which infringe one or more rights or freedoms. The principle of legality, expressed as it is in terms of presumed legislative intention, is of no avail against such language.

Similarly, in Ahmed and Others v HM Treasury,247 Lord Phillips noted: ‘117. ... I do not consider that the principle of legality permits a court to disregard an unambiguous expression of Parliament’s intention’.248

244 [2011] UKSC 46, [2012] 1 AC 868 [153]. Lord Hope at [51] concluded that as the Scottish Parliament was not sovereign, the possibility—however remote—that it might seek to abolish judicial review meant that ‘The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise’. 245 [2011] HCA 34. 246 ibid at [43]. French CJ noted in relation to this comment: ‘[fn 72] Whether there are certain common law rights and freedoms which constrain legislative power is an unexplored question: South Australia v Totani (2010) 242 CLR 1 at 29 [31] per French CJ, [2010] HCA 39. See also Reasons of Crennan and Kiefel JJ at [562]. For a discussion of common law constraints on the executive power see Harris, “Government ‘Third-Source’ Action and Common Law Constitutionalism”, (2010) 126 Law Quarterly Review 373’. The first part of this is a comment on the proposition that it may be that some legislation will be so egregious that the judges would be obliged not to accept that it had the force of law. 247 [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534. 248 See also paras 37 to 39 above, and the possible contrast between Lords Bingham and Hope as to whether Parliament could require a court to make use of evidence obtained by torture.

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In short, the concept of legality is a mechanism that allows judges to assume that legislators do not interfere with fundamental rights by inadvertence: but this has to step aside if Parliament has either been clear in its purpose or has used language that does not provide any interpretive choice (which may involve inadvertence). Similarly, in relation to the development of enhanced standards of judicial review to protect rights, inadequacies were revealed. The view of Sir Thomas Bingham MR in Smith, noted above, that the ECtHR would have to consider the proportionality of the ban was prescient. Having lost in the domestic courts, two of the claimants proceeded to the ECtHR, where it was found that there was a breach of Article 8 and also of the Article 13 right to an effective remedy: Smith and O’Grady v UK.249 The latter involved the court assessing whether the domestic approach in judicial review proceedings, even involving the enhanced standard of review, was adequate to be an effective remedy. The answer was in the negative because the threshold at which the courts could overturn the decisions in question:250

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was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.251

The inadequacy of the pre-Human Rights Act approach in terms of offering protection to fundamental rights was accepted by the UK judges. In an early post-1998 Act case involving searches of prison cells without adequate safeguards for legally privileged correspondence, R (Daly) v Secretary of State for the Home Department,252 the House of Lords determined that there was a breach of rights in both common law and Convention terms. The former arose from the conclusion that there was a common law right to the confidentiality of privileged correspondence and any infringement had to be necessary to secure other objectives in play.253 It also amounted to a breach of the Article 8 right to respect for the privacy of correspondence, and it was noted that assessing this would have to involve a different standard than the previous judicial review tests when rights were involved because ‘the threshold of review had been set too high’, as was revealed by Smith and Grady.254 Lord Steyn explained this in the following terms: that it was necessary for the courts to 249

Smith and O’Grady v UK App nos 33985/96 and 33986/96, (1999) 29 EHRR 493. ibid at para 138. 251 Note in contrast that the anxious scrutiny test had been found adequate for the purposes of Article 13 when there had been risks of torture in play; this was explained (at [138]) as because it was felt that it involved the same level of scrutiny as the ECtHR would apply in that situation, as had happened in Vilvarajah and Others v UK, App nos 13163/87, 13164/87, 13165/87, (1991) 14 EHRR 248. An alternative viewpoint is that the level of deference shown by the ECtHR was reduced by the time of Smith and Grady. 252 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532. 253 ibid at [19]. 254 ibid at [23], [27]. 250

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The Pre-Existing Protection of Human Rights

engage in a review of the proportionality of the decision, which might often produce the same result as a traditional review, but was different in that:255 First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights.

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Lord Steyn, whose comments in this regard were specifically endorsed by Lords Hutton and Scott, drew a contrast between this approach and the anxious scrutiny approach. He commented on a test propounded by Lord Phillips MR in R (Mahmood) v Secretary of State256 that the Human Rights Act 1998 required that anxious scrutiny of an executive decision that interferes with human rights involves an objective assessment of the reasonableness of the decision maker’s view as to the necessity of interfering with the right, with account taken of ECtHR case law.257 This needed to be clarified on the basis that it was a modified version of the traditional judicial review approach, whereas the proportionality review was a different beast. An obvious question arising with the introduction of the statutory bills of rights statutes is whether they are designed to modify this situation. Legislative purpose in this regard is developed in Chapter 4, next. However, there is also some material in the statutes that suggests that the common law ought to be developed as well; this is reviewed in Chapter 7, where the provisions that make clear that existing protections are retained are also set out.

255 256 257

ibid at [27]. R (Mahmood) v Secretary of State [2000] EWCA Civ 315, [2001] 1 WLR 840. ibid at [40].

4 The Desire to Move Further I.

The Purpose of the Bills of Rights Statutes .............................................2 A. Introduction .....................................................................................2 B. Relevant Statutory Provisions ..........................................................4 C. White Papers and Explanatory Memoranda ..................................23 i. New Zealand ..........................................................................24 ii. United Kingdom ......................................................................33 iii. UK and Ireland........................................................................46 iv. Ireland .....................................................................................51 v. Australia..................................................................................57 D. The UK Devolution Legislation ......................................................62 E. Discussion ......................................................................................89

The material in Chapters 2 and 3 sets out the obligation arising in international law to guarantee rights within the domestic legal framework, and the techniques that already existed whereby rights were protected.1 Combining the two streams of material, if the domestic protection is not adequate—and the limits of the protection offered in the various jurisdictions has been set out in Chapter 3—there are duties to make changes. This chapter reviews whether the bills of rights statutes are designed to comply with that obligation: this involves examining chiefly the texts and the policy papers behind them. There is an obvious question as to the point of the statutes if they are not designed to make a difference, though it is to be noted that legislatures sometimes take steps designed to preserve an existing position. Indeed, in the context of a choice between different methods—such as whether to have supreme law protection, or whether to have some form of direct effect as with EU law—it may be perfectly sensible for a legislature to announce its choice of a particular model that balances protection with a level of flexibility to breach rights

1 The focus has been on civil and political rights; arguments as to the inclusion of economic, social and cultural rights in the domestic system, as happens in South Africa and increasingly so under Indian constitutional jurisprudence, are not covered in this book.

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and/or decide that the protection in the domestic setting should differ from that in the international arena.

I. THE PURPOSE OF THE BILLS OF RIGHTS STATUTES

A. Introduction 2

The relevance of the international legal obligations is expressly recognised in the bills of right statutes in two ways: (i) statements, whether in preambles or elsewhere on the face of the statutory text; and (ii) requirements (or at least permissions) to take international jurisprudence into account. These can be summarised as follows: (i) (ii)

(iii)

(iv)

(v)

3

The New Zealand statute indicates in its preamble that the purpose of the statute is to give effect to the ICCPR. Under the Human Rights Act 1998, the UK Parliament has indicated that it is giving further effect to the ECHR and it is also provided that jurisprudence from the ECHR bodies must be taken into account; in addition, there are various other provisions relevant to the operation of the ECHR at the international level and to the involvement of the UK in the ECtHR. The Irish legislation notes that it is intended to give further effect of the ECHR in domestic law and that judicial notice should be taken of the jurisprudence of the ECHR bodies and ‘due account’ given to it. In relation to the ACT, the preamble does not give an international obligation as part of the purpose, but there is express provision that international law, and the judgments of foreign and international courts, may be taken into account. A schedule sets out the origin in the ICCPR of the various rights guaranteed in the Act, and Parts 3 and 3A of the statute, which sets out the rights as protected in the ACT, state that the ICCPR and the ICESCR are the source of the rights set out. The statute expressly notes that there are other rights, including rights in international law. For Victoria, the preamble also does not state that international obligations are part of the purpose, but the statute does acknowledge that there are rights in international law and expressly provides that international court and tribunal decisions should be taken into account.

In addition, policy documents behind the various statutory provisions indicate clearly that there was an intention to domesticate international obligations. The detail of the taking into account of international jurisprudence is covered in Chapter 5.

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B. Relevant Statutory Provisions The relevant preambles and other provisions in the statutes are in the following language, starting with the New Zealand statute:2

4

New Zealand—New Zealand Bill of Rights Act 1990 Preamble: An Act— (a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and (b) To affirm New Zealand’s commitment to the ICCPR.

This language does not particularly suggest that there is more to achieved in relation to the ICCPR (since ‘affirm’ suggests maintaining the status quo), but the overall impression—the reference to both protecting and promoting rights—is one that suggests forward movement. The latter is clearly present in the preamble to the UK legislation:

5

UK—Human Rights Act 1998 Preamble: An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights …

This statute does not directly incorporate the provisions of the ECHR. Rather, there is the indication in section 1 that various rights in the ECHR are to be used in this domestic statute. This can be a matter of convenience, without a necessary implication that the words should have a transnationally understood meaning. However, an indication that there is a transnational intention, reflecting the obligation to promote ECHR standards in Article 1 of the ECHR, can be found in the obligation to take into account the jurisprudence of the bodies established by the ECHR: UK—Human Rights Act 1998 2. Interpretation of Convention rights. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any— (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, 2 It is worth noting that other New Zealand statutes are expressly designed to give effect to international human rights obligations. For example, the Human Rights Act 1993, which particularly relates to the right not to be discriminated against, states in its preamble that it is ‘to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights’; and the Crimes of Torture Act 1989 schedules the Convention against Torture and its Optional Protocol, and makes the appropriate domestic provisions to cover New Zealand’s obligations under the Convention and Protocol.

6

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The Desire to Move Further (c)

decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

7

8 9

Provision is then made in subsections (2) and (3) for the process of citing such materials in accordance with rules of court. Along similar lines, section 8 requires that, in assessing damages awarded for an act in breach of the Convention, including whether they are needed, account must be taken of any principles developed by the ECHR bodies in relation to its awards of just satisfaction.3 It is also worth noting that sections 14–17 make provision for derogations and reservations from the UK’s international obligations, putting into a statute matter relevant to what on the traditional theory is a wholly executive action because it relates to treaties.4 Similarly, section 18 makes statutory provision relevant to the appointment of the UK judge of the ECtHR; this was previously a matter covered only by executive action. The integration of domestic law and ECHR law and procedures is made clear in the various provisions of this statute. The devolution legislation in the UK also makes reference to the rights in the Convention, typically by reference back to the Human Rights Act 1998. For Ireland, again there is an indication in the preamble that the aim of the statute is to have a positive impact: Ireland—European Convention on Human Rights Act 2003 Preamble: An Act to enable further effect to be given, subject to the Constitution, to certain provisions of the ECHR and various protocols

10

Similarly, the rights involved are defined by reference to certain parts of the ECHR, which are scheduled to the Act, as is the case with the UK statute, but not directly incorporated. However, the need to give ‘due account’ to the interpretations of the ECHR bodies suggests the value of the transnational understanding of the rights: Ireland—European Convention on Human Rights Act 2003 4. Interpretation of Convention provisions. Judicial notice shall be taken of the Convention provisions and of— (a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction, 3 See Chapter 10, dealing with remedies; Chapter 5 sets out the effect of the language of section 2, which has become that the views of the ECHR bodies are essentially to be followed. 4 See Chapter 3 for the material showing that there is in fact full oversight by the legislature of international obligations.

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(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, (c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction, and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.

Note also that section 6 of the Act allows an ex gratia payment to be made if there is a declaration of incompatibility; the amount of any such payment is set after ‘appropriate account’ is taken of the principles and practice of the ECtHR in assessing what amounts to just satisfaction.5

11

The situation in Australia is that international relations are for the federal government, whereas the substantive bills of rights are state legislation. The obligation to guarantee rights is one that attaches to all parts of a federal state, and so may require action at the state level.6 The statutes in question make reference to international obligations, most particularly the statute from the ACT. Its preamble sets out the aim to ‘respect, protect and promote human rights’ and sets out the various reasons for that aim, which is phrased as one of progressing rights. These include the benefits to individuals (as ‘1. Human rights are necessary for individuals to live lives of dignity and value’, ‘3. Human rights are set out in this Act so that individuals know what their rights are’ and ‘5. This Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others’).7 There are benefits for the community as a whole (as ‘2. Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community’); and also for the often disadvantaged indigenous community (‘7. Although human rights belong to all individuals, they have special significance for Indigenous people—the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance’.) There is also an indication that: ‘4. Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation’. This last reason does not necessarily suggest an aim to advance rights save in the practical sense of facilitating what should happen in any event; nor do any of the purposes necessarily reflect international rights as opposed to those that exist as a matter of the common law tradition. However, the indication that

12

5

See Chapter 10, dealing with remedies. See Article 50 of the ICCPR. 7 It is also noted that there is a question of balance between the interests of individuals: ‘6. Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual’s rights may also need to be weighed against another individual’s rights’. Naturally, this could have made specific mention of the interests of the community as a whole sometimes having to be part of the balance. 6

13

14

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The Desire to Move Further

rights should be developed is outlined in the opening words of the preamble, and other parts of the statute are clear that there are rights, including in international law, and that the rights in international law are directly relevant to the statute. For the indication that international rights exist, section 7 refers to domestic and international rights outside the Human Rights Act: ACT—Human Rights Act 2004 7. Rights apart from Act This Act is not exhaustive of the rights an individual may have under domestic or international law. Examples of other rights 1 2 3 4

rights rights rights rights

under under under under

the Discrimination Act 1991 or another Territory law the ICCPR not listed in this Act the ICESCR not listed in this Act other international conventions

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

15

The language of the example supports the view that the origin of various of the rights is the international instruments; this is made more clear by the opening notes to Parts 3 and 3A, where the rights are set out: Part 3 Civil and political rights Note The primary source of these rights is the International Covenant on Civil and Political Rights. [Sections 8–27 then sets out various rights.] Part 3A Economic, social and cultural rights Note The primary source of these rights is the International Covenant on Economic, Social and Cultural Rights. [Section 27A then sets out the right to education.]

16

The international motif is supplemented by the indications as to the material that should be taken into account in the interpretation of the language of the statute, and in particular as to the content of the rights: 31. Interpretation of Human Rights (1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. (2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account:

The Purpose of the Bills of Rights Statutes

157

(a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the accessibility of the material to the public.

In addition, Schedule 1 to the Act provides a table which sets out the link between the various rights that are contained in Part 3 of the Act, where the substantive rights guaranteed are enunciated, and the provision in the ICCPR which sets out the right in international law; and Schedule 2 does the same in relation to the ICESCR and the right to education. Turning to Victoria, the preamble to its Charter sets out its purposes in less utilitarian terms than those employed in the ACT, though noting the need for mutual respect (‘human rights come with responsibilities and must be exercised in a way that respects the human rights of others’) and emphasising the importance of inclusivity and non-discrimination, and the importance of rights for indigenous people. There is also, as in the ACT statute, the indication that the rights in the Charter do not limit the rights that arise from other sources, which include international law:

17

18

Victoria—Charter of Human Rights and Responsibilities Act 2006 5. Human rights in this Charter in addition to other rights and freedoms A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

Finally, the interpretive provision notes the value of bodies that exist in international law:

19

32. Interpretation (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

The Australian Commonwealth statute, the Human Rights (Parliamentary Scrutiny) Act 2011, which is discussed in Chapter 6, given its concern with activities in Parliament, is one that clearly rests on international legal obligations: though its focus is on process rather than substantive rights, indications given pursuant to its operation that the legislature believes that provisions in a particular statute are compatible with international rights standards may be found to assist the interpretation of the statute by the courts. The requirement to take into account international or comparative jurisprudence may also feature in constitutions or other supreme law

20

21

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The Desire to Move Further

documents. The South African Constitution of 1996 expressly requires that account be taken of international law in assessing the provisions in its Bill of Rights. Section 39 is headed ‘Interpretation of Bill of Rights’ and provides: 1.

22

When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law.8

Similarly, the Hong Kong Bill of Rights Ordinance 1991 is also of some analogous value in some circumstances: it was passed, according to its preamble, to incorporate the ICCPR into domestic law. In Hong Kong’s new constitutional framework, Article 39 of the Basic Law notes the incorporation and effect in Hong Kong of the ICCPR, the ICESCR and International Labour Organization conventions (many of which supplement rights of association in the ICCPR and rights relating to work and working standards in the ICESCR). However, there is no equivalent provision relating to international materials in the Canadian Charter 1982.

C. White Papers and Explanatory Memoranda 23

The statutory purposes of the various bills of rights statutes to give effect and/ or weight to international obligations seem fairly evident from the face of most of the statutes, save for the Victorian Charter. As for the relevant White Papers and policy statements issued, the following extracts give an indication as to what was in the mind of the policy makers and, it can be said, the legislators. Some of these documents also include indications as to the choice that was made to have statutory protection that was not supreme law in its effect or did not simply amount to making the international provisions directly effective. i. New Zealand

24

The New Zealand Bill of Rights Act 1990 had a gestation period of several years, starting with a White Paper by the Minister of Justice, Geoffrey Palmer, in 1985, entitled ‘A Bill of Rights for New Zealand’.9 It was accompanied by a draft Bill. At that stage, it was suggested that there be an entrenched supreme law provision and also that the foundational document of the modern 8 Section 35(1) of the Interim Constitution of 1993 provided ‘(1) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law’. 9 Available at www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/ domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act.

The Purpose of the Bills of Rights Statutes

159

New Zealand, the Treaty of Waitangi, be recognised and affirmed in law.10 Although what emerged at the end of the process was somewhat different, the substantive rights guaranteed are similar; and there was also a reflection of the international origin (or restatement) of the rights that were in play, though common law traditions were given higher priority. Chapter 3 of the White Paper indicated the long-standing basis for rights in the constitutional background of the country and its UK heritage, though noting the recent development of international human rights: Chapter 3. What Would the Bill of Rights do? A statement of fundamental rights of New Zealanders … 3.1 The Bill would state fundamental rights and freedoms of New Zealanders. The proposed statement is founded and builds on our strong and diverse heritage. 3.2 The text accordingly runs back to the great guarantees, in the Magna Carta of 1215 and the Bill of Rights of 1689, of such matters as the rights of the citizen to justice in the courts and the right not to be subjected to cruel and unusual punishment. It reaffirms the long-established constitutional principle that the Government is under the law. It reaffirms other more specific rights declared by our common law courts such as the right to be free from unreasonable search and seizures and the privilege against self-incrimination. … 3.4 The proposed Bill draws as well on the wider experience and conscience of the international community—a conscience reawakened and developed by the horrific denials of human rights 40 to 50 years ago and later put into binding international legal form—especially in the International Covenants on Human Rights. New Zealand continues to play a significant part in that international endeavour and in 1978 ratified the International Covenants. That wider experience now also includes the working out over the last 20 years or so of Bills of Rights in many Commonwealth countries,11 particularly, in the most recent period, Canada.12

10 The Preamble indicated that it was ‘An Act to institute as the supreme law of New Zealand a Bill of Rights in order to affirm, protect and promote human rights and fundamental freedoms in New Zealand, and to recognise and affirm the Treaty of Waitangi’. The proposed section 1 indicated ‘1. New Zealand Bill of Rights supreme law—This Bill of Rights is the supreme law of New Zealand, and accordingly, any law (including existing law) inconsistent with this Bill shall, to the extent of the inconsistency, be of no effect’. The mechanism of entrenchment was provided for in section 28: ‘28. Entrenchment—No provision of this Bill of Rights shall be repealed or amended or in any way affected unless the proposal—(a) is passed by a majority of 75 percent of all the members of the House of Representatives and contains an express declaration that it repeals, amends or affects this Bill of Rights; or (b) has been carried by a majority of the valid votes cast at a poll of the electors for the House of Representatives; and, in either case, the Act making the change recites that the required majority has been obtained’. 11 This is a reference to the fact that many former UK colonies were granted independence on the basis of a Constitution that included a Bill of Rights. 12 Another part of the preamble was a series of recitals: ‘WHEREAS (1) New Zealand is a democratic society based on the rule of law and on principles of freedom, equality and the dignity and worth of the human person; (2) New Zealand in 1978 ratified the International Covenant on Civil and Political Rights; (3) The Maori people, as tangata whenua o Aotearo, and the Crown entered in 1840 into a solemn compact, known as Te Tiriti o Waitangi or the Treaty of Waitangi, and it is desirable to recognise and affirm the Treaty as part of the supreme law of New Zealand; (4)

25

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The Desire to Move Further

As to why such a development was needed for New Zealand, chapter 4 summarised some of the arguments in favour of court-enforced Bills of Rights. As in chapter 3, international obligations were mentioned, but given a supplemental rather than central role. There was more of a concentration on other features, and particularly concerns as to Parliament and the Executive having powers that were too great and subject to too few checks, which needed to be rebalanced. There is language relevant to the international aspect:13 The implementation of New Zealand’s international obligations 4.21 New Zealand ratified the International Covenant on Civil and Political Rights in 1978. As the New Zealand Government’s report and presentation to the Human Rights Committee indicates, the Government was of the opinion, with the exceptions marked by the formal reservations attached to the instrument of ratification, that New Zealand law and administrative practice conformed with the Covenants. At the same time that presentation recognised that there can be a legitimate difference of opinion about the adequacy of the protection afforded to the human rights set out in the Covenant in the absence of a basic or supreme law which guarantees those rights. In a formal legal sense there is no guarantee that the relevant law will not be changed and that Parliament will not invade the rights that New Zealand is internationally bound to observe. The representative then went on to refer to the arguments mentioned earlier: that there are other informal restraints guaranteeing individual liberty.14 4.22 The Bill would provide that greater guarantee of compliance with those important international obligations that comes from the superior status of the Bill. It would as well give a legal significance, a significance, that is, that can be asserted in court proceedings, to the informal restraints on which we place such very large reliance at the moment. 4.23 As will appear from the Commentary on the draft Bill, many of its provisions do in fact relate closely to those of the Covenant. There are some differences. Some provisions of the Covenant do not appear in the draft. The Bill would include rights not included in the Covenant. And the detail of the drafting differs.

27

Although this language might suggest that the proposal bore in mind the international obligations rather than having them as a central purpose, it should be noted that the preamble to the draft Bill noted, first, that New Zealand was a democratic, rule of law society, and secondly that it had signed the ICCPR.

It is desirable to affirm the human rights and fundamental freedoms of all the people of New Zealand without discrimination and to ensure their recognition and observance as part of the supreme law of New Zealand by the Parliament and Government of New Zealand’. The third recital sets out that Maori are the indigenous people of New Zealand. 13 It was made clear that there was no intention to change the dualist position of New Zealand (see page 67, para 10.11), but that the ICCPR would assist interpretation of the Bill of Rights (page 67, para 10.13). 14 At para 4.4 it is noted that whilst Parliament has the power to take away fundamental rights, this is restrained because as a matter of practice is does ‘not … lightly initiate or even consider initiating’ legislation that would limit some fundamental concepts, such as habeas corpus, because of the political ramifications of such a step; and at para 4.5 it is commented that ‘a formal constitutional arrangement can never be seen apart from its social setting’.

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161

By the time the modified Bill was passed, the role of the ICCPR had become more prominent, being mentioned in the preamble (as noted above); and part of the context was that New Zealand had signed the Optional Protocol so as to allow individual complaints under the ICCPR to be taken to the Human Rights Committee. The most significant change between the Draft Bill and its final form was the removal of its proposed entrenched and supreme law status (and its reference to recognising and affirming the Treaty of Waitangi 1840). The value of entrenched supreme law status was noted in chapter 7. In essence, there was a requirement to provide more protection from the dominant party in the legislature (which formed the executive as well) than in the current arrangement in New Zealand’s unicameral Parliament: 7.4.

28

To enact a Bill of Rights which can be overridden, either expressly or impliedly, by a simple majority of the Government’s parliamentary supporters would be no real advance on our present situation with respect to the protection of our basic rights and freedoms.

It was noted that there was the legislative override provision in the Canadian Charter (which is discussed further in Chapter 6, and which has also been adopted in Victoria). This could give ‘a certain measure of protection’ (paragraph 7.5) and had the advantage that ‘any attempt to override the Charter must be done openly, and any proposal for amendment will be subject to public scrutiny and debate in the legislature and by the public at large’, which would have to be repeated every five years (paragraph 7.6). However, the conclusion was that such a device ‘is no protection against a Government intent on using its parliamentary majority to force through legislation amending the Charter’ (paragraph 7.6).15 The White Paper then discussed the arrangements for entrenchment, which were in the form of a 75 per cent vote in the legislature or a majority in a referendum (at paragraphs 7.7 to 7.20). There was a precedent in the Electoral Act 1956 (which has been continued in the Electoral Act 1993); and a discussion of the jurisprudence suggesting that it was possible for a legislature to bind future legislatures as to the procedure for amending a piece of legislation without undermining the constitutional idea that a sovereign parliament cannot bind its successors (though it was also noted that legislation granting independence to formerly colonial ‘possessions’ provided an illustration of why some legislation clearly did bind;16 and that there was judicial support

15 An additional point to note was that it was suggested that there be no appeal to the Privy Council—the final court in the New Zealand system prior to the creation of the Supreme Court by the Supreme Court Act 2003—in relation to Bill of Rights questions. It was said at para 8.11 of the White Paper that ‘The Government doubts whether any tribunal outside New Zealand ought to be able to hold that an Act passed by the New Zealand Parliament is without effect, or decide whether or not the New Zealand Parliament can effectively guarantee human rights and fundamental freedoms’. 16 This was the experience for the UK, and also for the New Zealand legislature, which had passed the Western Samoa Act 1961 and the Cook Islands Constitution Act 1964. It is worth

29

30

162

31

The Desire to Move Further

for the view that some legislation would not be recognised if it breached fundamental rights (for example if it required torture)).17 However, the government noted its plan to put out to consultations the idea of an entrenched supreme law, since it could only succeed with public support (paragraphs 7.21–7.24). The Bill was referred to a Select Committee, the Justice and Law Reform Committee, and after hearings it presented a final report in October 1988. This was usefully summarised by Gault J in Simpson v Attorney-General (Baigent’s Case),18 who noted: The ‘Final Report of the Justice and Law Reform Committee on a White Paper on a Bill of Rights for New Zealand’ (1988) appears to have been instrumental in the change from the White Paper proposal to the ordinary statute as enacted with the exclusion of the express remedies provision (cl 25). In the section headed ‘Recommendation’ the report referred to the White Paper draft of an entrenched statute having the effect of supreme law and providing for enforcement by the Courts of the enumerated civil and political rights and stated at pp 2–3: ‘The power given to the judiciary by the White Paper draft was the principal reason for opposition to the proposal. The main thrust of that argument concerned the redistribution of power this was thought to entail from elected representatives of the people who were directly accountable to them to the judiciary who were appointed and held office until their retirement. The Committee considers that there is a limited public understanding of and support for the role of the judiciary under a bill of rights. In countries which do have a bill of rights the judiciary does not usually see it as their function to thwart the wishes of the elected representatives by striking down legislation without a very good reason. In fact they rarely exercise the power. Nonetheless, the Committee has concluded that New Zealand is not yet ready, if it ever will be, for a fully fledged bill of rights along the lines of the White Paper draft.’

32

The effect of this was that on 10 October 1989 the New Zealand Bill of Rights Bill as introduced to the Parliament by Geoffrey Palmer (now Prime Minister) was one that did not purport to be supreme law or to be entrenched, but was a normal statute with scrutiny in the form of the review by the Attorney-General noting that the human rights framework developed through the United Nations included the process of decolonisation as a central part of it: the right to self-determination is in Article 1 of the ICCPR and the ICESCR. 17 The White Paper referred to Taylor v NZ Poultry Board [1984] 1 NZLR 394. In this case, which concerned the privilege against self-incrimination in the context of the regulation of egg production, and upheld the criminalisation of the refusal to answer questions about where eggs for sale had come from, Cooke J indicated (at 398) that the starting point was the common law right not to answer questions and a separate right of non-incrimination, but these rights could be overridden by the legislature. He added, as an aside, that Parliament could do this in the form of penalties for non-compliance rather than in the form of ‘literal compulsion, by torture for instance’ since that would not be within ‘the lawful powers of Parliament’. He added: ‘Some common law rights presumably lie so deep that even Parliament could not override them’ and referred to other cases discussing the point (Fraser v State Services Commission [1984] 1 NZLR 116; New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390; Brader v Ministry of Transport [1981] 1 NZLR 73, 78; L v M [1979] 2 NZLR 519, 527). 18 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 at 707.

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when legislation was proposed and by the interpretive obligation placed on the courts. The Prime Minister, introducing the Bill, noted: ‘I agree with the select committee that an ordinary Act can provide protection for the fundamental rights and freedoms that are vital to the survival of New Zealand’s democratic society’.19 ii. United Kingdom In the UK, the introduction of The Human Rights Bill was a Labour party manifesto commitment for the 1997 election.20 Under the heading ‘We will clean up politics’ was a series of suggested reforms—including ending hereditary peers in the House of Lords, devolution and elected mayors, and freedom of information and human rights. The latter was mentioned under a sub-heading ‘Real rights for citizens’ with the text:

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Citizens should have statutory rights to enforce their human rights in the UK courts. We will by statute incorporate the European Convention on Human Rights into UK law to bring these rights home and allow our people access to them in their national courts. The incorporation of the European Convention will establish a floor, not a ceiling, for human rights. Parliament will remain free to enhance these rights, for example by a Freedom of Information Act.21

The White Paper in support of the Bill, ‘Rights Brought Home: The Human Rights Bill’,22 noted that proposals were based on the manifesto commitment and a consultation document of the Labour Party, ‘Bringing Rights Home’, and the responses to it.23 Chapter 1 set out ‘The Case for Change’, including the need to have more than the common law approach. It was noted that the UK had been heavily involved in the drafting of the Convention, which had broad political support, and was the first country to ratify it; and that individual complaints had been possible since 1966 (paragraph 1.2). The

19

Parliamentary Debates 10 October 1989, page 13039 Text taken from the unofficial site www.labour-party.org.uk/manifestos/1997/1997-labourmanifesto.shtml. 21 There were also commitments to end unjustifiable discrimination, reform legal aid and immigration and asylum processes. 22 Available at www.archive.official-documents.co.uk/document/hoffice/rights/intro.htm. 23 For a history of previous reviews of whether to incorporate the Convention and of arguments that had won the day previously, see House of Commons Research Paper 98/24, 13 February 1998, available at www.parliament.uk/documents/commons/lib/research/rp98/rp98024.pdf. More recent attempts are described in para 1.5 of the White Paper: ‘1.5 The Liberal Democrat Peer, Lord Lester of Herne Hill QC, recently introduced two Bills on incorporation into the House of Lords (in 1994 and 1996). Before that, the then Conservative MP Sir Edward Gardner QC introduced a Private Member’s Bill on incorporation into the House of Commons in 1987. At the time of introducing his Bill he commented on the language of the Articles in the Convention, saying: “It is language which echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta.” (Hansard, 6 February 1987, col. 1224). In preparing this White Paper the Government has paid close attention to earlier debates and proposals for incorporation’. 20

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transnational nature of the ECHR and the involvement of the ECtHR was put forward as a specific virtue: 1.3

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There was also specific comment made that the dualist nature of the UK’s legal system was problematic, and that the faith in the common law to deliver rights was slipping: 1.4

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The constitutional arrangements in most continental European countries have meant that their acceptance of the Convention went hand in hand with its incorporation into their domestic law. In this country it was long believed that the rights and freedoms guaranteed by the Convention could be delivered under our common law. In the last two decades, however, there has been a growing awareness that it is not sufficient to rely on the common law and that incorporation is necessary.

This was developed further: a contrast was drawn between the decision not to incorporate the ECHR when it was ratified and the changed landscape within Europe and other common law jurisdictions. The point made was that the UK’s position of not taking steps somehow to incorporate the ECHR meant that it was an outlier: 1.11

1.12

1.13

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… over the years [the ECHR] has become one of the premier agreements defining standards of behaviour across Europe. It was also for many years unique because of the system which it put in place for people from signatory countries to take complaints to Strasbourg and for those complaints to be judicially determined. These arrangements are by now well tried and tested. The rights and freedoms which are guaranteed under the Convention are ones with which the people of this country are plainly comfortable. They therefore afford an excellent basis for the Human Rights Bill which we are now introducing.

When the United Kingdom ratified the Convention the view was taken that the rights and freedoms which the Convention guarantees were already, in substance, fully protected in British law. It was not considered necessary to write the Convention itself into British law, or to introduce any new laws in the United Kingdom in order to be sure of being able to comply with the Convention. From the point of view of the international obligation which the United Kingdom was undertaking when it signed and ratified the Convention, this was understandable. Moreover, the European Court of Human Rights explicitly confirmed that it was not a necessary part of proper observance of the Convention that it should be incorporated into the laws of the States concerned. However, since its drafting nearly 50 years ago, almost all the States which are party to the European Convention on Human Rights have gradually incorporated it into their domestic law in one way or another. Ireland and Norway have not done so, but Ireland has a Bill of Rights which guarantees rights similar to those guaranteed by the Convention and Norway is also in the process of incorporating the Convention. Several other countries with which we have close links and which share the common law tradition, such as Canada and New Zealand, have provided similar protection for human rights in their own legal systems.

Reference was also made to the fact that whilst decisions of the ECtHR that UK law was defective did not automatically produce a change in the law, the international obligation was to make the relevant changes in domestic law.

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The comment was made that UK governments had always accepted and acted upon these obligations: paragraph 1.10. A possible implication from such a comment, particularly in the context of the indication that the operation of the ECtHR had been successful, is that retaining the complete separation of domestic and international law was difficult to justify. The White Paper then turned to the positive case for incorporation. This combined material that set out several strands of argument: (i) British people were disadvantaged because they did not have an easily accessible forum in which to secure their rights speedily; the remedy was to allow them to be able to raise the arguments in a domestic setting; (ii) the rights in question were seen as no longer British, despite their origin; the remedy was to allow them to be incorporated into domestic law; (iii) the rights not being British meant also that there was limited input from British judges into the development of the jurisprudence of the ECtHR; the solution was to allow British judges to participate; (iv) the machinery of enforcement in Strasbourg was problematic, which was only to the advantage of recalcitrant governments; the solution was to make them subject to the domestic courts; (v) the domestic approach to the protection of rights was simply inadequate; the solution was to provide a better mechanism. These various strands appear in the following extract from the White Paper: The case for incorporation 1.14 The effect of non-incorporation on the British people is a very practical one. The rights, originally developed with major help from the United Kingdom Government, are no longer actually seen as British rights. And enforcing them takes too long and costs too much. It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000.24 Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts—without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe. 1.15 Moreover, in the Government’s view, the approach which the United Kingdom has so far adopted towards the Convention does not sufficiently reflect its importance and has not stood the test of time. 1.16 The most obvious proof of this lies in the number of cases in which the European Commission and Court have found that there have been violations of the Convention rights in the United Kingdom. The causes vary. The Government recognises that interpretations of the rights guaranteed under the Convention have developed over the years, reflecting changes in society and attitudes. Sometimes United Kingdom laws have proved to be inherently at 24

This might reflect a failure to concede cases that were found to breach the ECHR.

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odds with the Convention rights. On other occasions, although the law has been satisfactory, something has been done which our courts have held to be lawful by United Kingdom standards but which breaches the Convention. In other cases again, there has simply been no framework within which the compatibility with the Convention rights of an executive act or decision can be tested in the British courts: these courts can of course review the exercise of executive discretion, but they can do so only on the basis of what is lawful or unlawful according to the law in the United Kingdom as it stands. It is plainly unsatisfactory that someone should be the victim of a breach of the Convention standards by the State yet cannot bring any case at all in the British courts, simply because British law does not recognise the right in the same terms as one contained in the Convention. 1.17 For individuals, and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays. This might be convenient for a government which was half-hearted about the Convention and the right of individuals to apply under it, since it postpones the moment at which changes in domestic law or practice must be made. But it is not in keeping with the importance which this Government attaches to the observance of basic human rights.

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The summary of the purpose of the government in proposing the Bill to Parliament was under the heading of ‘Bringing Rights Home’, which was to be an important phrase in the subsequent judicial commentary as to how far they were supposed to go in using the core tool in the Human Rights Act, namely the interpretive obligation: Bringing Rights Home 1.18

1.19

We therefore believe that the time has come to enable people to enforce their Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling courts in the United Kingdom to rule on the application of the Convention will also help to influence the development of case law on the Convention by the European Court of Human Rights on the basis of familiarity with our laws and customs and of sensitivity to practices and procedures in the United Kingdom. Our courts’ decisions will provide the European Court with a useful source of information and reasoning for its own decisions. United Kingdom judges have a very high reputation internationally, but the fact that they do not deal in the same concepts as the European Court of Human Rights limits the extent to which their judgments can be drawn upon and followed. Enabling the Convention rights to be judged by British courts will also lead to closer scrutiny of the human rights implications of new legislation and new policies. If legislation is enacted which is incompatible with the Convention, a ruling by the domestic courts to that effect will be much more direct and immediate than a ruling from the European Court of Human Rights. The Government of the day, and Parliament, will want to minimise the risk of that happening. Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home.

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The White Paper then turned to the mechanics proposed, namely making it unlawful for public authorities to breach the ECHR, providing an interpretive obligation and providing for declarations of incompatibility. There was also a discussion of the effect of these mechanics on the foundational principle of dualism and the non-justiciability of international law; and of the choices that were available to secure further recognition of ECHR-based rights and the reason for preferring the route that was proposed. In short, (i) it was indicated that there was an intention to give effect in domestic law to rights that originated in international instruments (though not in the same way as EU law was made directly effective, that being required by the EU treaties); (ii) it was noted that there was an option of some form of constitutional court review at the end of the normal court process, but it was better to allow ECHR rights to be argued during normal proceedings; and (iii) UK judges should be allowed to take part in the process of weighing competing interests as the ‘living instrument’ that is the ECHR developed. This material is in the following extracts: 2.1 The essential feature of the Human Rights Bill is that the United Kingdom will not be bound to give effect to the Convention rights merely as a matter of international law, but will also give them further effect directly in our domestic law. But there is more than one way of achieving this. This Chapter explains the choices which the Government has made for the Bill. … 2.4 It is our intention that people or organisations should be able to argue that their Convention rights have been infringed by a public authority in our courts at any level. This will enable the Convention rights to be applied from the outset against the facts and background of a particular case, and the people concerned to obtain their remedy at the earliest possible moment. We think this is preferable to allowing cases to run their ordinary course but then referring them to some kind of separate constitutional court which, like the European Court of Human Rights, would simply review cases which had already passed through the regular legal machinery. In considering Convention points, our courts will be required to take account of relevant decisions of the European Commission and Court of Human Rights (although these will not be binding). 2.5 The Convention is often described as a ‘living instrument’ because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention. In particular, our courts will be required to balance the protection of individuals’ fundamental rights against the demands of the general interest of the community, particularly in relation to Articles 8–11 where a State may restrict the protected right to the extent that this is ‘necessary in a democratic society’. … 2.12 The Government has also considered the European Communities Act 1972 which provides for European law, in cases where that law has ‘direct effect’, to take precedence over domestic law. There is, however, an essential difference between European Community law and the European Convention on Human Rights, because it is a requirement of membership of the European Union that member States give priority to directly effective EC law in their own legal systems. There is no such requirement in the Convention.

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There was also mention of the question of whether the UK should follow the supreme law route of the Canadian Charter or the interpretive obligation method of the NZBORA (or the hybrid of the Hong Kong Bill of Rights Ordinance, with its implied repeal of previous statutes that were incompatible with rights and interpretive obligation for subsequent statutes): paragraph 2.11. The power to strike down legislation (even past legislation on the basis of implied repeal) was rejected on the basis that there was no support from the public or the judiciary for giving powers to the judiciary to set aside primary legislation, given Parliament’s ‘democratic mandate’ to make ‘decisions about important matters of public policy’, giving rise to the important principle of parliamentary supremacy, and the need to avoid conflict between the judiciary and Parliament: paragraph 2.13. Of course, given that the whole reason for supporting the need to give further effect to the ECHR was that the current arrangements did not work, that the ECtHR was seen to have worked well in producing rights-protecting outcomes, and that successive UK governments had accepted decisions from the ECtHR that domestic law was wrong and had taken appropriate remedial action, the rationale for stopping short of a supreme law approach does not appear convincing in terms of principle. However, there was the more pragmatic reason noted at the end of the paragraph that ‘Certainly, this Government has no mandate for any such change’. The approach resting on the implied repeal of past legislation was also rejected as the statute was ‘intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it’: paragraph 2.14. Secondary legislation was, however, only to be protected if the primary statute required a breach of rights. This was the contrast drawn: 2.15. The courts will, however, be able to strike down or set aside secondary legislation which is incompatible with the Convention, unless the terms of the parent statute make this impossible. The courts can already strike down or set aside secondary legislation when they consider it to be outside the powers conferred by the statute under which it is made, and it is right that they should be able to do so when it is incompatible with the Convention rights and could have been framed differently.

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There was also consideration of the other typical aspect of a supreme law proposal, as had been considered in New Zealand, namely entrenchment. This was rejected on the simple ground that the UK’s constitutional tradition was that any Act of Parliament can be amended or repealed by a subsequent statute and it was thought neither necessary nor desirable to seek to entrench the Human Rights Bill: paragraph 2.16. Despite this rejection of any challenge to the legislative sovereignty of Parliament,25 it is important to note the significant points arising from this

25 There was reference made at paras 2.17–2.19 of the power given to pass secondary legislation to amend a primary statute that had been found incompatible with the ECHR rights: see Chapter 10. This was thought to be preferable to emergency legislation on such a finding, which was proper only in ‘the most exceptional circumstances’ (para 2.17).

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discussion of the government’s purpose, and hence the rationale that was presented to the legislature. First, it was accepted that the meaning of the rights was subject to change over time, such that the meaning understood by the States Parties at the time the relevant treaty was signed was not the governing feature: this arises from the acceptance that British judges would be able to participate in the development of the living instrument that is the Convention (paragraph 2.5).26 Secondly, it was suggested that the process of developing rights would be a two-way process, with the British judges being able to contribute to that development (also paragraph 2.5). Thirdly, it was noted that the rights arising under international law would be ‘directly’ effective (paragraph 2.1) and ‘applied’ by the domestic courts (paragraph 2.4); but there was the limitation that they would not be directly effective in the way that EU law was (paragraph 2.12), though it was not clear what difference this would make. iii. UK and Ireland Also of relevance for the UK legislation and the European Convention on Human Rights Act 2003 in Ireland is the Belfast Agreement (usually known as the Good Friday Agreement) of 10 April 1998, signed between the respective governments as part of negotiations as to the future of Northern Ireland.27 The Agreement includes a section on ‘Rights, Safeguards and Equality of Opportunity’. It starts with an indication of the human rights of particular relevance to the problems there, including freedom of religion and absence of discrimination. There are then undertakings given by the UK as to legal changes that would be made as to the law in Northern Ireland, including, it should be noted, that there should be court powers to override legislation: this is made express in relation to Northern Ireland law, with at least equivalent protection in the law in Ireland. The text indicates: 2.

3.

The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency. Subject to the outcome of public consultation underway, the British Government intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation. Public bodies would be required to draw up statutory schemes

26 It is also worth recalling that the Strasbourg court was going through significant expansion at the time, partly due to the fact that the Council of Europe had expanded; Protocol No 11 to the ECHR was adopted at around the same time to streamline its proceedings. The desire to allow UK judges to play their role is consistent with the idea that it was to be expected that significant jurisprudence was likely and should be assisted by UK domestic rulings. 27 Available at www.gov.uk/government/publications/the-belfast-agreement or www.taoiseach. gov.ie/attached_files/Pdf%20files/NIPeaceAgreement.pdf.

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The Desire to Move Further showing how they would implement this obligation. Such schemes would cover arrangements for policy appraisal, including an assessment of impact on relevant categories, public consultation, public access to information and services, monitoring and timetables. The new Northern Ireland Human Rights Commission (see paragraph 5 below) will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR—to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be:

— the formulation of a general obligation on government and public bodies — 47

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fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.

Paragraphs 5–8 set out the institutions proposed to promote rights compliance, namely a Northern Ireland Human Rights Commission (with a remit wider than the existing Standing Advisory Commission on Human Rights, and including bringing litigation) and an Equality Commission (which would take over the work of various existing commissions that dealt with particular aspects of discrimination). The Irish government undertook to make changes to its legal framework: Comparable Steps by the Irish Government 9.

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The Irish Government will also take steps to further strengthen the protection of human rights in its jurisdiction. The Government will, taking account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

The paragraph continued with an indication as to institutions that would be established and supplemental legislation: In addition, the Irish Government will:

— establish a Human Rights Commission with a mandate and remit equivalent to that within Northern Ireland;

— proceed with arrangements as quickly as possible to ratify the Council of —

Europe Framework Convention on National Minorities (already ratified by the UK); implement enhanced employment equality legislation;

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— introduce equal status legislation; and — continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland.

It was also suggested that there be a joint committee of representatives of both Human Rights Commissions; and specific provision was made for action to assist victims of violence, to ensure equality in relation to economic development, and to protect the various languages in use in Ireland.

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iv. Ireland What emerged in Ireland as the mechanism to ‘strengthen and underpin the constitutional protection of human rights’, as required in the Good Friday Agreement, was the European Convention on Human Rights Act 2003. The Explanatory Memorandum that accompanied the Bill when it was introduced in 200128 gave a brief introduction to the ECHR and gave the following account as to its status in Irish law:

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Insofar as the constitutional and legal position of the Convention is concerned, this may be explained by the statement that it is [sic] has already been law for Ireland since 1953 on the International plane, as it forms part of the State’s obligations in the area of Public International Law. The decisions of the Court of Human Rights in relation to any breaches of the Convention’s provisions by the State are binding, but under our constitutional scheme of things, it is the prerogative of the Government to decide precisely how any incompatible provision of national law or administrative practice may be reconciled with a ruling by the Court. More simply put, this means that the Convention is law for Ireland, but not actually law in Ireland. The reason for this will be found in Article 15 of the Constitution, which provides that the only law making authority in the State is the Oireachtas. Accordingly, at present arguments based on Convention rights, if they can be raised at all before domestic courts, are not of persuasive effect in Irish law. If a person wishes to vindicate a right under the Convention they must first exhaust all possible remedies which may be availed of under national law, before going on to plead their case before the Court of Human Rights in Strasbourg.

It then indicated that this would be fundamentally different as a result of the Bill being passed: the intention of the government was that there would be a significant change in the approach to international law-based rights, by making them enforceable in the domestic setting. The relevant language is: Provisions of the Bill The provisions in the Bill will alter the current position fundamentally. It is designed to facilitate the bringing of cases involving alleged breaches of rights under the Convention in Irish courts. In other words, it will make rights under the Convention enforceable in Irish courts, and this means that cases of this type will be able to be processed much more expeditiously than under the present arrangements.

28

Available at www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2001/2601/default.htm.

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The Explanatory Memorandum noted that there had been recent consideration of ‘The question of incorporating the Convention into domestic law so as to allow its provisions to be pleaded directly before Irish Courts’. This included the rejection of the idea of incorporating the ECHR into the Constitution by the Constitution Review Group in 1996. The reasons for this were summarised as being that there was already an overlap between what was in the Constitution and the ECHR (so nothing would be added) and there might be reduced protection for some rights not in the ECHR (such as trial by jury). The conclusion was that ‘it was preferable … to leave the Convention as a source of noncognisable and non-justiciable rights in the strict sense’. But, the Explanatory Memorandum noted, the matter was reconsidered in light of the Good Friday Agreement, and the fact that the UK had introduced the Human Rights Act 1998. It was said: Accordingly, following its consideration of the matter, the Government decided to adopt a similar interpretative type approach and legislate so as to give further effect to the Convention in the State. The European Convention on Human Rights Bill provides accordingly, though it goes somewhat further than the legislation in the United Kingdom and also takes into account the four remaining operational Additional Protocols to the Convention, as previously outlined. The provisions of the Bill will ensure that there are two complementary systems in place in Ireland for the protection of fundamental rights and freedoms, with the superior rules under the Constitution taking precedence, in accordance with the State’s dualist doctrine on the giving of effect to international obligations and the primary role of the Oireachtas in that regard.

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It should be noted that, although the Irish legislation goes further in relation to the additional rights that are engaged (though, as explained in subsequent chapters, the effect of this has been muted because of a narrow effect being given to the legislation by the Irish courts), the UK devolution legislation for Northern Ireland goes further in allowing the courts to strike down noncompliant legislation by the Northern Ireland Assembly (which is discussed below). This does not happen in Ireland, which has that constitutional possibility as a long-established feature. Nevertheless, the Explanatory Memorandum makes clear that there would be a fundamental change in the situation of Irish residents seeking the recognition of their rights in the ECHR via the mechanics of the new legislation. Commentary to the specific sections of the Bill was as follows: (i) Under section 1, it was noted that the Convention provisions being incorporated did not include the basic obligation to secure rights set out in Article 1 of the ECHR; but this was explained as being ‘because the purpose of the Bill as a whole is to give effect to the obligation in the Article on the Member States to secure for everyone within their jurisdictions the rights and freedoms as set out in Section 1 of the Convention’. (ii) The obligation to interpret legislation in compliance with Convention rights, contained in section 2, was noted to operate prospectively as well.

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(iii) As to taking into account international jurisprudence, in section 4 of the Bill, it was noted that: ‘The purpose of this section is to provide a statutory aid to the interpretation of the provisions of the Convention and the relevant Protocols thereto, to which further effect is being given in the Bill. This will allow the Courts to examine the interpretation of the Convention’s provisions by the European Court of Human Rights, the former European Commission on Human Rights and the Committee of Ministers of the Council of Europe, and to take their interpretations into account’. (iv) Then in relation to the existence of declarations of incompatibility, it was noted that the purpose of this, and the fact that such laws continued in effect, was to ensure that ‘because of the primary law-making role assigned to the Oireachtas under the Constitution, the statutory provision or rule of law will remain in place and it will be a matter for the Government to consider what steps should be taken to remedy the particular incompatibility in question’. It is to be noted that whilst this material does not expressly comment in the way the UK material does about the living instrument nature of the ECHR, the context in Ireland is that the Constitution is accepted to be a document that might have a different meaning over time (and so there should be no surprise that the ECHR has a similar life, which might be argued about in the domestic setting). An example of this is from Denham J in Sinnott v Minister for Education:29 191.

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… The Constitution is a living document. It must be construed as a document of its time. In McGee v Attorney General [1974] IR 284 at 319 Walsh J stated: ‘… no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts’.

v. Australia Turning to the Australian statutes, the Explanatory Statement to what started as the Human Rights Bill 2003 in the Legislative Assembly for the ACT,30 gave the reason for expressly retaining other rights, including those under international law, in what became section 7 of the Act. It was to ensure that there was no impermissible contention that rights should be thought to be limited because they were not expressly mentioned in the statute, such that they would continue to have a role in matters such as being a relevant consideration in administrative decision making. As to the indication that international law could be taken into account,31 it was said: ‘it is the clear intention of the Bill

29 30 31

Sinnott v Minister for Education [2001] IESC 63, [2001] 2 IR 505. Available at www.legislation.act.gov.au/b/db_8266/default.asp. See chapter 6 for a further discussion of this.

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that the interpretation of human rights is to be as coherent with internationally accepted standards as possible’. This indicates that the intention was to accept the international standards into territory law. Naturally, given that the methodology was an interpretive obligation that might not secure a compliant outcome (hence requiring a declaration of incompatibility for that situation), the international standards might not be secured. These features are discussed in Chapters 8 and 10, but it is worth noting that it was expressly recorded that the proposed legislation was based on an ‘interpretive and dialogue model’32—the idea that the judges make comments about compliance, achieving it where they can and recording the need for change when they cannot, so as to inform the legislature of the need to consider the requirement to amend legislation. As for the Victorian Charter, which—as is noted above—does not make significant reference to international matters on the face of the text—the Explanatory Memorandum for the Bill as introduced33 noted that: The purpose of this Charter is to establish a framework for the protection and promotion of human rights in Victoria. The human rights protected by the Charter are civil and political rights. They primarily derive from the International Covenant on Civil and Political Rights 1966.

In short, the language that appears as a note in the text of the ACT statute as to the origin of the rights involved is accepted to apply in Victoria also, but appears in the background material only. This is repeated in the Explanatory Memorandum at the outset of the description of the rights protected, in Part 2 of the Bill. It is noted that: The rights protected by the Charter are contained in clauses 8 to 27. These rights are based on fundamental human rights protected in international human rights law. The majority of these rights were codified in the International Covenant on Civil and Political Rights 1966 (the Covenant) which the Commonwealth ratified in 1980. Although the rights appear in a different order to that of the Covenant, they are generally expressed in the same terms as the Covenant. Some adjustments to language have been made, to both improve the drafting and to clarify the application of the particular human right in the context of the State of Victoria. In some instances a right, or part of a right, contained in the Covenant has been omitted from the Charter. Omissions have occurred for various reasons. The right to self-determination contained in article 1 of the Covenant is not incorporated in the Charter because the right to self-determination is a collective right of peoples. Moreover, there is a lack of consensus both within Australia and internationally on what the right to self-determination comprises. Other rights are omitted because they are matters within the Commonwealth’s jurisdiction and are consequently inappropriate in State legislation. For example, the prohibition on expulsion of non-nationals contained in article 13 of the Covenant is omitted for this reason. 32

This is recorded in relation to clause 32, relating to the declaration of incompatibility. Available from the Parliamentary website www.parliament.vic.gov.au/static/www.legislation. vic.gov.au-bills-archive.html. 33

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Article 23(2) to (4) of the Covenant concerning marriage is also omitted, as is article 24(3) which concerns a child’s right to a nationality. Other omissions are mentioned in the clause notes below. Regarding the nature and meaning of the human rights listed in Part 2, it is intended that clause 32(2) will operate as a guide. Under this clause, a court or tribunal may examine a number of sources in interpreting the meaning and nature of the human rights. These sources are international law and the judgments of domestic, foreign and international courts and tribunals relevant to the human rights. The operation of clause 32(2) is discussed further below.

Turning to the interpretation provision, the explanation for clause 32 is as follows:

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Sub-clause (2) permits courts and tribunals to consider international law and judgments of domestic, foreign and international courts and tribunals relevant to a human right in reading and giving effect to a statutory provision. It is intended that sub-clause (2) will operate as a guide, so that a court or tribunal may examine international law and the judgments of foreign and international courts and tribunals relevant to the human rights in interpreting the meaning and scope of the human rights in Part 2 as formulated in that Part. Under sub-clause (2), a court or tribunal may examine international conventions, international customs as evidence of a general practice accepted as law, the general principles of law recognised by civilized nations, and (as subsidiary means) judicial decisions and teachings of the most highly qualified publicists of various nations (see article 38 of the Statute of the International Court of Justice). Decisions of the International Court of Justice, European Court of Justice, Inter-American Court of Human Rights and United Nations treaty monitoring bodies including the Human Rights Committee, will be particularly relevant. The clause also permits consideration of judgments of domestic and foreign courts and tribunals relevant to a human right when interpreting a statutory provision. A number of jurisdictions have incorporated international human rights into domestic law. Decisions from courts in these jurisdictions including the Australian Capital Territory, Canada, New Zealand, South Africa and the UK may be relevant.

The actual language of the Bills in the ACT and Victoria, which were passed unchanged, is very similar, but the view of the governments as to the purpose of the provisions is expressed in somewhat different language. Both have produced a situation in which international standards are relevant, but this is permissive rather than directory. The Victorian language leaves it as a general discretion (and therefore one to be exercised judicially), whereas the ACT statute sets out factors to be taken into account, namely (i) the importance of the ordinary meaning of language (in context), (ii) the need to ensure that there is a proportionate benefit from citing the material, and (iii) how accessible the material is.

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D. The UK Devolution Legislation Part of the context noted above is that there were decisions made not to make the bills of rights statutes supreme law. In the UK, this was said to

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be to avoid conflict between the courts and the Westminster Parliament; in New Zealand, there was similarly a desire to retain legislative supremacy, even to breach fundamental rights. In Ireland, even though there is already a supreme law Constitution, it was decided that the rights in the ECHR should not be added to the Constitution in part because they were already reflected in it (which raises the question of why not expressly add them in any event) and because there was a risk that rights not in the ECHR would be diminished (which seems to suggest a lack of confidence in the ability of drafters). Nevertheless, part of the human rights framework is of a supreme law nature, namely the devolution legislation in the UK. It was noted in the White Paper in support of the Human Rights Bill, ‘Rights Brought Home: The Human Rights Bill’,34 that the approach under the devolution legislation would contrast with the retention of legislative sovereignty in relation to the Westminster Parliament. In short, whilst the courts in Scotland and Northern Ireland would have the same powers as the courts in England and Wales in relation to Westminster statutes that had effect in those jurisdictions, devolved legislation would be open to challenge on the basis that is was outside the powers of the body.35 As a result, section 29 of the Scotland Act 1998 deals with the ‘legislative competence’ of the new Parliament by defining that competence and setting the consequence of an attempt to act outside those limitations: 29. Legislative competence. (1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply— … (d) it is incompatible with any of the Convention rights or with EU law …

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The various other parts of section 29(2) provide additional restrictions, most notably in relation to matters that are reserved to the Westminster Parliament (for which further provision is made in subsections (3) and (4)).36 The ‘Convention rights’ are the same as those in the Human Rights Act 1998: see s126(1) of the Scotland Act 1998.

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Available at www.archive.official-documents.co.uk/document/hoffice/rights/intro.htm. Rights Brought Home, paras 2.20–2.23. 36 The UK Parliament retained the right to pass UK-wide legislation on matters devolved to Scotland in section 28(7): in Martin v Most [2010] UKSC 10, 2010 SC (UKSC) 40, Lord Hope noted at [4] that there was a system whereby the Scottish Parliament expressed its consent to these matters, which worked well until elections in 2007 produced governments with different political agendas in the UK and Scotland. This case dealt with the approach to overlapping legislative powers, drawing on past jurisprudence relating to the validity of legislation passed by colonial legislatures. 35

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Section 6 of the Northern Ireland Act 1998 is in similar terms, in preventing the Northern Ireland Assembly from passing Acts that breach the Convention rights (or, in light of the Good Friday Agreement, noted above, discriminate on the basis of religious belief or political opinion):37

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6. Legislative competence. (1) A provision of an Act is not law if it is outside the legislative competence of the Assembly. (2) A provision is outside that competence if any of the following paragraphs apply— … (c) it is incompatible with any of the Convention rights; … (e) it discriminates against any person or class of person on the ground of religious belief or political opinion;

In Wales, section 107 of the Government of Wales Act 1998 prevented the Welsh Assembly from taking steps (‘make, confirm or approve’) in relation to subordinate legislation that breached Convention rights (as contained in the Human Rights Act 1998). The Government of Wales Act 2006 granted additional powers to the Welsh Assembly, including some primary legislative powers. Section 81 of the 2006 Act is in similar terms to section 107 of the 1998 statute; and sections 93 and following provided for Assembly Measures, which were the primary legislation. The latter had legislative competence provisions similar to those for the other devolved legislatures:

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94. Legislative competence (1) Subject to the provisions of this Part, an Assembly Measure may make any provision that could be made by an Act of Parliament. (2) An Assembly Measure is not law so far as any provision of the Assembly Measure is outside the Assembly’s legislative competence. … (6) … a provision … is outside the Assembly’s legislative competence if— … (c) it is incompatible with the Convention rights or with Community law.38

In addition, subject to a referendum supporting that enhanced role, which was held and granted the relevant approval in March 2011,39 the 2006 Act provided for enhanced statutory powers in the form of Acts of the Assembly in place of the previous Assembly Measures. These also have legislative competence provisions: section 108, which is in the same terms 37 This is potentially wider than the prohibition contained in Article 14 of the ECHR because it is not necessary for there to be discrimination in relation to another fundamental right. 38 Section 158 notes that Convention rights are those as set out in the Human Rights Act 1998. 39 Following this, the Government of Wales Act 2006 (Commencement of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011 (SI 2011 No 1011 (W 150)) was made to bring the relevant provisions into effect from 5 May 2011.

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as section 94 in relation to human rights save that it refers to an Act of the Assembly: 108. Legislative competence (1) Subject to the provisions of this Part, an Act of the Assembly may make any provision that could be made by an Act of Parliament. (2) An Act of the Assembly is not law so far as any provision of the Act is outside the Assembly’s legislative competence. … (6) … a provision … is outside the Assembly’s legislative competence if— … (c) it is incompatible with the Convention rights or with Community law.

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This is a different approach from the other devolution legislation in that section 108(3) provides also that a measure is only within competence if it complies with certain requirements, namely being within a list of matters transferred to it. In short, there is first an assessment of being within competence in terms of subject matter, but breaching human rights standards in that context will take it outside competence. The provisions in the original Welsh legislation relating to secondary legislation, all that was devolved initially, are replicated in Northern Ireland in section 24 of the Northern Ireland Act 1998 and in Scotland in section 57 of the Scotland Act 1998. See Chapter 7 for a discussion of these provisions, which cover executive acts. It is worth noting that section 35 of the Scotland Act 1998 allows central government to prevent a Bill from proceeding further on the basis of reasonable grounds to believe that international obligations would be breached; sections 57 and 58 allow central government to intervene to prohibit executive action that would be incompatible with international obligations or require action to be taken to comply with those obligations. Section 14 of the Northern Ireland Act 1998 similarly allows central government to prevent a Bill being presented for Royal Assent if it is considered to breach international obligations, as does section 101 of the Government of Wales Act 2006 in relation to Assembly Measures and section 114 in relation to Acts of the Assembly; section 26 of the Northern Ireland Act 1998 contains provisions that equate to sections 57 and 58 of the Scotland Act, as does section 82 of the Government of Wales Act 2006. These powers allow action by the Westminster government to prevent breaches of other international human rights obligations by the devolved legislatures and governments. Although the courts in the UK have been given supreme law powers, the fact remains that it is an extreme step for a decision of a legislature to be declared illegal by a court. Baroness Hale noted as much in DS v Her Majesty’s Advocate,40 where she noted: ‘88. First, the question before us is whether an enactment of the Scottish Parliament is, or is not, the law. It is a strong thing for any court to declare an enactment of a democratic legislature invalid’. The legislation therefore sets out a series of questions that have to be addressed 40

DS v Her Majesty’s Advocate [2007] UKPC D1, [2007] 24 BHRC 412.

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before there can be a finding that a statute is ‘not law’ (and, indeed, there are various options short of striking down legislation once a finding has been made that it is outside competence). These features are discussed in Chapters 8–10, and so only mentioned here as indicators of the sensitivity to allowing legislation to be overturned. For Scotland, the various steps are laid out in sections 100–102 of the Scotland Act 1998. First, only a person who would be a victim in the ECtHR can bring proceedings (section 100(1)). So it may be that there is incompatible legislation but no victim who wishes to challenge it emerges; in addition, there has been added a time limit for bringing actions to challenge legislation. Secondly, the court has to try to secure an interpretation consistent with the ECHR, so as to enable the court to give effect to legislation wherever possible rather than strike it down (section 101). Thirdly, the court may take various steps, including making an order that is suspended so as to allow corrective legislative action, if incompetence is found (section 102). There are also relevant interpretive and remedy provisions in the other devolution statutes: section 83 of the Northern Ireland Act 1998 provides a similar interpretive obligation, and section 81 allows time to be taken to remedy a defect. In Wales, the interpretive obligation is in section 154 of the Government of Wales Act 2006, and the flexibility as to remedy in section 153. There is also a victim requirement in relation to proceedings under the latter statute, though only in relation to challenges to acts of the executive (section 81); in Northern Ireland, section 71 of the Northern Ireland Act 1998 limits the right to bring action to victims, but it includes challenges to legislation. In light of these features, it is difficult to suggest that a law ‘outside competence’ is ‘void’. The phrase ‘is not law’ may suggest that something has no validity and perhaps never had any validity (because a precondition to validity is missing); and different statutory language could have been used, such as ‘An Act of the Scottish Parliament shall no longer be law once it is found to be outside the legislative competence of the Parliament’. But the possibility that no action is brought and the discretion as to remedy, such as any order declaring incompetence not being retrospective, means that the statute may have some legal effect, and so is not void. The case law on legislative competence includes some arising from the process described in Chapter 6 of allowing pre-legislative scrutiny of a Bill by the Supreme Court. The litigation has included a challenge to a statute that relied not just on the ECHR but on the traditional judicial review ground of irrationality: AXA General Insurance Ltd and others v HM Advocate and others.41 The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed to overturn case law that particular conditions arising from asbestos exposure did not amount to injury because of the lack of direct impact on the risk of other conditions or life expectancy. The statute provided that they

41 AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, [2012] 1 AC 868.

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were injury, and was challenged by various insurance companies who relied on their property rights (and so legislative competence under section 29) and also contended that the statute was an irrational exercise of legislative authority and so outside competence as a matter of common law. This common law challenge required an assessment of the purpose of devolution and of the limits that should be imposed on court control of the exercise of legislative powers by the devolved legislature. The Supreme Court concluded that a devolved legislature was subject to the supervisory powers of the court to determine whether it was acting within its powers, but that it had full powers subject to the limitations of section 29 of the statute and so irrationality was not a proper ground for review. It was, however, noted that the court might intervene if the rule of law or fundamental rights other than those protected by section 29 were engaged. Lord Hope first discussed the nature of the devolution of legislative powers from the UK to the Scottish Parliament (and to the other assemblies) and the consequent characterisation of the latter as a body with delegated powers; and he noted the absence of any ouster of judicial review powers (together with the power of the courts to assess the competence of legislation), meaning that the power of judicial review was present: 45. Devolution is an exercise of its law-making power by the United Kingdom Parliament at Westminster. It is a process of delegation by which, among other things, a power to legislate in areas that have not been reserved to the United Kingdom Parliament may be exercised by the devolved legislatures. The Scotland Act 1998 sets out the effect of the arrangement as it affects Scotland with admirable clarity.

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The parts of the statute he noted were the ‘democratic legitimacy’ provided by the electoral provisions in section 1; the power to enact Acts of the Scottish Parliament (which receive Royal Assent), set out in section 28; and its power to make laws for Scotland, which equates to those of the Westminster Parliament except for the limitations in section 29. But he noted ‘Section 29 does not, however, bear to be a complete or comprehensive statement of limitations on the powers of the Parliament’.42 These provisions, and more importantly, ‘the general message that the words convey’, meant that:43 … The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. … Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.

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But Lord Hope noted the limitations on its status because of devolution: 46.

42 43

… The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless

ibid at [45]. ibid at [46].

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a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament … Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. ….

The result of this was that: 47.

… as there is no provision in the Scotland Act which excludes this possibility, I think that it must follow that in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law.

But he added that ‘The much more important question is what the grounds are, if any, on which they may be subjected to review’. There was, not surprisingly, no case law in light of the lack of any possibility to challenge primary legislation in the UK,44 and so the issue had to be addressed as a matter of principle.45 This led Lord Hope to consider the different functions of the Parliament and the judiciary and the consequent limitations that the judges should place on themselves to avoid subverting democracy: 49.

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The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances. As Lord Bingham of Cornhill said in R (Countryside Alliance) v Attorney General [2008] AC 719, para 45, the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament.

The conclusion to which this led was that: 52.

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… Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. This is not needed, as there is already a statutory limit on the Parliament’s legislative competence if a provision is incompatible with any of the Convention

44 He noted that there had been suggestions by some judges that the sovereignty of Parliament might have some limitations in extreme situations, giving way to the rule of law: [2011] UKSC 46, [2012] 1 AC 868 [50]. He added his support to this, in light of the possible domination of the Scottish Parliament by one party: ‘It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise’: [2011] UKSC 46, [2012] 1 AC 868 [51]. 45 [2011] UKSC 46, [2012] 1 AC 868 [48].

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Lord Reed reached a similar conclusion, resting on the purpose of the UK Parliaments being to give the Scottish Parliament ‘plenary powers’ so long as it did not step outside its competence, and also considerations of justiciability based on the respective functions of courts and legislatures: 147.

148.

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… it must have been Parliament’s intention, when it established the Scottish Parliament, that that institution should have plenary powers within the limits upon its legislative competence which were created by section 29(2). Since its powers are plenary, they do not require to be exercised for any specific purpose or with regard to any specific considerations. It follows that grounds of review developed in relation to administrative bodies which have been given limited powers for identifiable purposes, and which are designed to prevent such bodies from exceeding their powers or using them for an improper purpose or being influenced by irrelevant considerations, generally have no purchase in such circumstances, and cannot be applied. As a general rule, and subject to the qualification which I shall mention shortly, its decisions as to how to exercise its law-making powers require no justification in law other than the will of the Parliament. It is in principle accountable for the exercise of its powers, within the limits set by section 29(2), to the electorate rather than the courts. Considerations of justiciability lead to the same conclusion. … Law-making by a democratically elected legislature is the paradigm of a political activity, and the reasonableness of the resultant decisions is inevitably a matter of political judgment. In my opinion it would not be constitutionally appropriate for the courts to review such decisions on the ground of irrationality. Such review would fail to recognise that courts and legislatures each have their own particular role to play in our constitution, and that each must be careful to respect the sphere of action of the other.

Nevertheless, he was willing to accept that there was a form of constitutional review if there were breaches of fundamental rights or the rule of law that were not covered by section 29(2): that had been accepted by counsel for the government.46 And, in light of the principle of legality, review was not excluded by the language of the statute and so was available.47 On the question of the approach to the alternative submission that there was a breach of the ECHR right to property and so the statute was outside legislative competence by reason of section 29(2) of the Scotland Act 1998, the Court noted that the substantive right to property was protected to the extent that any interference had to support a legitimate aim and be proportionate. It noted that the ECtHR would grant a margin of appreciation to a state in assessing these

46 47

ibid at [149]. ibid at [150]–[153]. See Chapter 3 for a further discussion of this principle.

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matters; and concluded that in the domestic context, the courts should accept that they might have to respect the legislature’s assessment.48 The question was the extent to which it went. Lord Hope used language that was suggestive of the traditional grounds of judicial review. Having noted first the existence of the margin of appreciation and the equivalent in the domestic setting of respecting the judgment of the legislature that a step was legitimate, whilst at the same time noting that the Court had to determine the legislative competence of a statute, Lord Hope posed the question: ‘33. Can it be said that the judgment of the Scottish Parliament that this was a matter of public interest on which it should legislate to remove what was regarded as a social injustice was without reasonable foundation or manifestly unreasonable?’ He answered that it was not, and then considered separately the question of its proportionality, which he considered was ‘reasonably proportionate’49 and so permissible. It may be that there was a particular concern to respect the nature of the decision of the legislature because of the involvement of questions of social justice that fell particularly within the purview of the elected branch of the state. This seems to have been clearly in the mind of Lord Reed, whose concurring account also started with the ECtHR’s concept of the margin of appreciation, which was noted to be wide in relation to social and economic policies. He added: 124.

… 131.

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… At the domestic level, courts require to be similarly circumspect, since social and economic policies are properly a responsibility of the legislature, and policy-making of this nature is amenable to judicial scrutiny only to a limited degree. … At the domestic level, the courts also recognise that, in certain circumstances, and to a certain extent, other public authorities are better placed to determine how those interests should be balanced. … The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances. As Lord Hope explained in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381, the relevant circumstances include whether, as in the present case, the issue lies within the field of social or economic policy.

Lord Hope in Local Government Byelaws (Wales) Bill 201250 suggested the following as a summary of the jurisprudence on legislative competence, applied this time to the situation in Wales: (i) it was a question of law, based on the proper interpretation of the statutory language; (ii) although the statutes are of constitutional importance, there are no special rules of interpretation, albeit

48 This is discussed further in Chapter 5, which outlines the process of working out the meaning of rights. 49 [2011] UKSC 46, [2012] 1 AC 868 [41]. At [96], Lord Mance agreed that the decision of Parliament to impose any costs on the insurance industry rather than taxpayers in general ‘must on balance be regarded as legitimate, as within the scope of the judgment which it was entitled to make as to what was appropriate and as proportionate’. He does not develop these views at length and so it is difficult to assess whether they involve a lesser degree of deference: there is certainly a suggestion from his phraseology that the legitimacy was shown on balance only. 50 Local Government Byelaws (Wales) Bill 2012 [2012] UKSC 53, [2012] 3 WLR 1294.

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that the purpose of the statutes in distributing powers should be taken into account; (iii) the AXA approach should apply to the Welsh Assembly as well. The relevant comments are: 79.

First, the question whether a Bill of the Assembly is within its legislative competence is a question of law which, if the issue is referred to it, the court must decide. The judicial function in this regard has been carefully structured. It is not for the judges to say whether legislation on any particular issue is better made by the Assembly or by the Parliament of the United Kingdom at Westminster. How that issue is to be dealt with has already been addressed by the United Kingdom Parliament. It must be determined according to the particular rules that section 108 of the 2006 Act and Schedule 7 have laid down. Those rules, just like any other rules, have to be interpreted. It is for the court to say what the rules mean and how, in a case such as this, they must be applied in order to resolve the issue whether the measure in question was within competence. 80. Second, the question whether the Bill is within competence must be determined simply by examining the provisions by which the scheme of devolution has been laid out. That is not to say that this will always be a simple exercise. But, as Lord Walker observed in Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 44 when discussing the system of devolution for Scotland, the task of the United Kingdom Parliament in relation to Wales was to define the legislative competence of the Assembly, while itself continuing as the sovereign legislature of the United Kingdom. It had to define, necessarily in fairly general and abstract terms, permitted or prohibited areas of legislative activity. The aim was to achieve a constitutional settlement, the terms of which the 2006 Act was designed to set out. Reference was made in the course of the argument in the present case to the fact that the 2006 Act was a constitutional enactment. It was, of course, an Act of great constitutional significance, and its significance has been enhanced by the coming into operation of Schedule 7. But I do not think that this description, in itself, can be taken to be a guide to its interpretation. The rules to [sic] which the court must apply in order to give effect to it are those laid down by the statute, and the statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words mean. 81. Third, the question whether measures passed under devolved powers by the legislatures in Wales, Scotland and Northern Ireland are amenable to judicial review, and if so on what grounds, was considered in AXA General Insurance Company Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868. The court in that case had the benefit of submissions by the Counsel General. It was common ground that, while there are some differences of detail between the 2006 Act and the corresponding legislation for Scotland and Northern Ireland, these differences do not matter for that purpose. The essential nature of the legislatures that the devolution statutes have created in each case is the same. But it has not been suggested that the Bill is the result of an unreasonable, irrational and arbitrary exercise of the Assembly’s legislative authority. This case is concerned only with the question whether the Bill is outside competence under the provisions laid down by the statute.

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E. Discussion The question of whether a statute is supreme law or not does not govern whether the statute is of a constitutional nature. Whilst the introduction of something that purports to be supreme law constitutional document makes the point clearly, a statutory bill of rights can also become part of the fabric of the way rights are protected and so part of the constitutional framework. Accordingly, there have been clear indications that a change such as the introduction of the Canadian Charter was meant to provide a point of difference: but there have also been indications that the statutory bills of rights have the same sort of impact. In the Canadian context, an early decision under the Charter, R v Oakes,51 concerned the validity of a reverse burden of proof in a drugs case.52 As has been noted, there was in Canada already an interpretive statute, the Canadian Bill of Rights 1960. Dickson CJ commented: 38.

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Although there are important lessons to be learned from the Canadian Bill of Rights jurisprudence, it does not constitute binding authority in relation to the constitutional interpretation of the Charter. As this Court held in R v Big M Drug Mart Ltd [1985] 1 SCR 295, the Charter, as a constitutional document, is fundamentally different from the statutory Canadian Bill of Rights, which was interpreted as simply recognizing and declaring existing rights. …

The importance of this was that whilst the common law presumption of innocence was subject to any statute that provided to the contrary, the constitutional presumption of innocence was subject to a much more stringent approach. In particular, the fact that the right, in section 11(d) of the Charter, was to be ‘presumed innocent until proven guilty according to law’ was not to be taken to allow a statute simply to provide for a reverse burden of proof as part of the process of proving guilt ‘according to law’. Rather, it was suggested that: ‘39. … In Canada, we have tempered parliamentary supremacy by entrenching important rights and freedoms in the Constitution’. As such, allowing any statute that imposed a reverse burden to be saved by the phrase ‘according to law’ would subvert the entrenching of the right. That meant that any previous case law using this approach should be ignored. Similarly, in the UK devolution legislation, although there is a cautious approach to the power to strike down legislation from the Scottish Parliament because of features such as its democratic mandate to make policy choices (which may be a central part of determining the content of a right—as noted in the devolution case law outlined above, and also discussed in Chapter 5), nevertheless these ordinary, unentrenched statutes are of a constitutional nature because of the political reality they reflect. This was of importance in the case

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R v Oakes [1986] 1 SCR 103. This is described in more detail in Chapter 8.

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of HM Advocate v R,53 in which the Privy Council had to consider whether there was a remedy arising under the Scotland Act 1998 when the statute was unclear about this. (See Chapter 9 for a more detailed discussion of this.) Lord Rodger, of the majority supporting the view that there was a remedy under the Scotland Act, contrary to the government argument that any remedy had to be under the express remedy provisions of the Human Rights Act 1998, explained how the constitutional nature of the Scotland Act meant that it has to be accompanied by a remedial regime: 121.

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… The Scotland Act 1998 is a major constitutional measure which altered the government of the United Kingdom. … It would … seem surprising if … the Scotland Act 1998 itself did not enable proceedings to be raised where either the Parliament or a member of the Scottish Executive had overstepped the mark and had done something that was incompatible with Convention rights—even something as grave as ill-treating a prisoner so badly as to violate article 3. If that were indeed the position, then the absence of any effective public law remedies under the Scotland Act 1998 would mark it out from other constitutional documents.

He cited New Zealand case law for this proposition. This leads to the point that has been made in New Zealand case law that the fundamentally different nature of a constitutional document, which is part of this reasoning in Oakes, does not prevent an interpretive statute from having an impact that is sufficiently significant to be designated as constitutional. Hence, early comments made in New Zealand case law indicate that the NZBORA—passed as an ordinary statute because there was inadequate support for the initial suggestion that it be a supreme law document—was nevertheless designed to change the status quo. In Ministry of Transport v Noort; Police v Curran,54 Cooke P commented that ‘the rights and freedoms in Part II have been affirmed as part of the fabric of New Zealand law’,55 which was a reason to suggest that they should be protected by the ordinary range of judicial remedies. He added56 that this affirmation required the law to be developed where necessary57 because the NZBORA ‘is not to be approached as if it did no more than preserve the status quo’. Rather: In approaching the Bill of Rights Act it must be of cardinal importance to bear in mind the antecedents. The International Covenant on Civil and Political Rights speaks of inalienable rights derived from the inherent dignity of the human person. Internationally there is now general recognition that some human rights are fundamental and anterior to any municipal law, although municipal law may fall short of giving effect to them: see Mabo v Queensland (1988) 166 CLR 186, 217–218. 53

HM Advocate v R [2002] UKPC D3, [2004] 1 AC 462. Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260. 55 ibid at 267. He noted that they were subject to justified limits and the power of the legislature to pass conflicting statutes, which were expressly preserved by section 4. 56 ibid at 270. 57 He cited Barker J in Re S [1992] 1 NZLR 363: the latter commented at 374: ‘The long title of the Bill of Rights indicates that a commitment to individual constitutional rights is not only required by international law, but that that commitment must develop. “Affirm”, “protect; and “promote” are all words used which suggest activity. Those entities to which the Bill of Rights applies (see s 3) must shrug off any sense of complacency towards the status of civil rights’. 54

The Purpose of the Bills of Rights Statutes

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His Honour also commented58 that the rights set out in the NZBORA were of the sort that were found elsewhere in constitutional documents: that was taken to indicate that the approach was that of avoiding ‘the austerity of tabulated legalism’ but instead adopting a ‘generous interpretation’. This comes from Privy Council jurisprudence relating to how to interpret constitutional rights: but it is applied to the statutory provision as though there was no difference (at least until the question of applying the interpretive obligation arises).59 In Simpson v Attorney-General (Baigent’s Case),60 a majority of a five-judge Court of Appeal determined that there was a cause of action for breach of the rights in the NZBORA despite the absence of any remedy provision. This is outlined in Chapter 9. Cooke P took the opportunity to repeat some of his views from Noort as to the approach. Similarly, part of the approach of Casey J was that any denial of a remedy would mean that the statute was merely window-dressing rather than protective of rights, and he cited constitutional jurisprudence that was supportive. This was done in more detail by Hardie Boys J, whose survey of constitutional jurisprudence as to a remedy being required led him to conclude:61

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The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights that the Bill affirms. It is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed. I see no reason to think that this should depend on the terms of a written constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection the obligation of every civilised state. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning.

In short, a focus on whether there is a supreme and non-supreme bill of rights is overly simplistic: rather, the focus should be on the reality of the level of entrenchment of a right rather than the form through which that is done.62 A supreme law constitutional right that is never enforced may offer less protection that a statutory protection that is used. The important point is that the legislative texts and the background material seem to suggest that there was a desire to offer a level of protection higher than had previously been offered. 58

[1992] 3 NZLR 260, 268. See the discussion of Minister of Home Affairs v Fisher [1980] AC 319, from which the approach comes, in Chapter 3. See also Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 for an endorsement of the application of this approach to the NZBORA. 60 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667. 61 ibid at 702. 62 As developed in Chapter 3, there are a significant number of statutes that have constitutional status, in building the foundational rule of law concept and setting out various fundamental rights, such as to liberty and to due process. 59

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Other legislation also emphasises the importance of compliance with significant international obligations without any formal supreme law status. As described in Chapter 3, legislation is common that gives effect to obligations arising under the Charter of the United Nations, and in particular to decisions of its Security Council. To use the example of the statute in New Zealand, this purports to give superior effect to those decisions. Section 2 of the United Nations Act 1946 allows the Governor General to make regulations as ‘necessary or expedient’ to put into effect measures required to be put into effect by reason of Article 41 of the Charter of the United Nations. The statute does not require them to be laid before Parliament in advance (subsection (3) indicates that they should be laid after being made), and it gives them superior effect: ‘(2) No regulation made under this Act shall be deemed to be invalid because it deals with any matter already provided for by any Act, or because of any repugnancy to any Act’. Although litigation outlined in Chapter 3 noted that the common law concept of legality means that general language of this sort does not authorise actions that breach fundamental rights, the point to note for present purposes is that these statutes reveal a clear intention to transfer powers to bodies such as the UN with a mechanism for then giving effect to them in domestic terms that do not require primary legislation. Similarly, significant constitutional change has been accorded by a normal statute in the UK, namely membership of the European Union. This is shown by the well-known Factortame litigation in the UK, which is described in Chapter 3.63 The Merchant Shipping Act 1988 was passed in the belief that it did not breach EU law: the Court of Justice confirmed that this was an error,64 and ultimately damages were awarded to the claimants.65 But this flowed from EU law that had its validity in the domestic courts via the European Communities Act 1972. Whilst an important point of the litigation was the confirmation that courts could prevent the enforcement of legislation if there was a strong case that there was a breach of EU law,66 the context was that there had been no intention to breach EU law with the 1988 Act, and so Lord Bridge in Factortame No 167 indicated that the 1988 Act was to be read as though there was a clause in it to the effect that its provisions were subject to directly enforceable Community law.68 As Parliament did not indicate that

63 In contrast, the Irish government and people decided that effect should be given to membership of the EU by way of amendments to the Irish Constitution. 64 R v Secretary of State for Transport, Ex p Factortame (No 3) (Case C 221/89) [1992] QB 680 (ECJ). 65 R v Secretary of State for Transport, Ex p Factortame (No 5) [2000] AC 524 (HL). 66 R v Secretary of State for Transport, Ex p Factortame (No 2) [1991] 1 AC 603 (HL). 67 R v Secretary of State for Transport, Ex p Factortame (No 1) [1990] 2 AC 85 (HL). 68 ibid at 140. See Laws LJ’s account in Thoburn v Sunderland City Council [2003] QB 151 at paras 60ff that ‘constitutional statutes’ are to be treated similarly—he lists ‘Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998’.

The Purpose of the Bills of Rights Statutes

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EU law was to be suspended, and as it is not entrenched, it would have to stand aside if Parliament made it clear.69 Any concerns as to the transfer of the sovereign power to determine the content of rights in domestic law have to be assessed in their context: namely the engagement with the UN or other supra-national bodies in order to mitigate against the consequences of not having supra-national standards to which real effect is given. This has been outlined in Chapter 2. Nevertheless, it is right to record those concerns, elaborated most particularly by Heydon J in Momcilovic v R,70 which is discussed in various parts of the book because it covers many issues. His Honour was concerned at many things in the Victorian Charter. Not only did he suggest that the rights in the Charter were not original, given that, on the whole, they could be found in the common law and statute, he also suggested that the existing formulation of rights was superior because they were ‘worked out in a detailed, coherent and mutually consistent way’ that amounted to ‘tough law’ that could be contrasted to the general statements of rights.71 The superiority also arose from the fact that their creation occurred ‘over a very long time by judges and legislators who thought deeply about the colliding interests and values involved in the light of practical experience’.72 He does not say so expressly, but this comment can only make sense if it implies that the negotiation of statements of rights as part of the international human rights regime that offers the backdrop to the bills of rights statutes involves a process of lesser merit in terms of being able to weigh relevant factors. Moreover, he was concerned that the scheme under the Charter played havoc with the rule of law because of the uncertainty created by the retrospective application of the Charter to past legislation and the difficulty of determining what justified limits there might be to rights.73 Again, this seems to overlook that the common law may change over time, as may understandings of constitutions, and that there is a judicial process that determines the meaning of rights and such matters as the extent to which there should be deference as between legislators and judges and between transnational and domestic standards (as noted in Chapter 6). Heydon J did acknowledge that there might be developments of the common law and rules of equity,74 a process that involved an organic

69 In Thoburn v Sunderland City Council [2003] QB 151 at paras 58–59, Laws LJ made clear that there was no entrenchment of Community law. 70 Momcilovic v R [2011] HCA 34. 71 ibid at [381]. 72 ibid at [2011] HCA 34 [381]. 73 ibid at [382]. Of course, the fact that judges will be able to consider the questions over lengthy periods as cases arise for interpretation, which is a merit in relation to the common law, is seen more as a matter creating uncertainty; this despite the fact that the rights involved are said to be similar to those found in the common law and other statutes, which will require them to be invoked in matters of interpretation, whether pursuant to the doctrine of legality (if they are fundamental rights) or the need to construe the law in context, which includes other statutes and the common law. 74 ibid at [392].

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The Desire to Move Further

and restrained progress.75 Again by implication, he must be suggesting that the processes involved in the international human rights regime and in the many constitutional regimes involving rights standards is somehow less cognisant of the rule of law and the need for a level of certainty in that. But he denied that there was any power to change the meaning of a statute: rather, the judicial power was to ascertain its meaning, as part of the judicial function ‘to resolve controversies about statutory meaning’,76 leaving any power of amendment to the legislature.77 This had the important corollary that legislatures could not delegate such a function to judges;78 and the consequence of seeking to confer a non-judicial power on a judge was that it was an invalid attempt.79 His was a minority view. What is clearly indicated in the various bills of rights statutes is that there was a commitment to rights (which were familiar to the common law) and the introduction of processes designed to protect them, which was intended to enhance what had been produced through the common law. This, it is to be noted, does not involve a purported codification of all rights; and there is language, discussed in Chapter 7, that makes it clear that other rights are retained (which is mirrored in the international treaties as well). This was summarised by Lord Steyn in R (Anufrijeva) v Secretary of State for the Home Department,80 who noted ‘27. … The Convention is not an exhaustive statement of fundamental rights under our system of law’. This meant the doctrine of legality applied ‘to fundamental rights beyond the four corners of the Convention’. The statutory purposes were to promote the centrality of human rights arguments in domestic processes—legislative, executive and judicial—so as to ensure that the international obligation to secure them was put into practice. The subsequent chapters will outline how this was done, and offer some commentary on its success. The starting point is the important question of how rights are to be given content: this is a central example of how the relationships between the different branches of government and between domestic and international legal standards is managed by the bills of rights statutes.

75 ibid at [393]–[395]. At [396], he summarised a range of factors that marked the distinction between the permissible and the impermissible, including the ability of the courts to assess the effect of the change and whether it would have a significant effect on major institutions in society (including business entities). But he also noted at [397] that there were examples of such changes (and that different judges would give different weight to the various factors): surely that means that the rule of law and the needs of certainty are significantly compromised in any event? 76 ibid at [398]. 77 This cannot be correct: judges may change the meaning of statutory provisions if, on reflected or supplemental argument, an earlier decision was incorrect; otherwise, judicial error would require legislative amendment (and would cause substantive injustice until that change was made). 78 ibid at [398]–[400]. 79 ibid at [401]–[406]. He accepted that it might be difficult to assess what was problematic and what was not. 80 R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604.

5 Working Out the Content of Rights I.

The Structure of Rights and Limitations in International Documents ......................................................................6 A. UDHR ...........................................................................................6 B. ECHR ............................................................................................8 C. ICCPR .........................................................................................18 D. Other Regional Treaties ..............................................................25 E. Summary; The Margin of Appreciation .......................................29 II. The Approach to Interpreting Human Rights Standards ....................35 A. General Principles in the International Arena ..............................36 B. Taking Account of Other Conventions ........................................43 C. Common Law Approach .............................................................51 III. Limiting Clauses in Domestic Bills of Rights Instruments ...................54 A. The Statutory Language ..............................................................55 B. White Papers and Other Indications of Legislative Purpose .........65 C. Leading Case Law as to the General Limiting Clauses ................80 i. Canada ................................................................................81 ii. South Africa ........................................................................91 iii. Hong Kong ..........................................................................98 iv. New Zealand .....................................................................105 v. Australia ............................................................................121 D. Deference to the Legislature ......................................................130 IV. The Relationship Between International Rights and Tribunals and Domestic Rights and Tribunals ..................................141 A. Relevant Provisions ...................................................................142 B. White Papers and Explanatory Memoranda ..............................148 C. Discussion .................................................................................153 i. The Terminology of the Rights Standards..........................154 ii. The Common Law Power Compared ................................158 iii. The Discretion Involved.....................................................165 iv. The Duty to Take Into Account—UK and Ireland .............171 v. Domestic Precedent Rules ..................................................231

The scene set thus far is that the bills of rights statutes were designed to give effect to the international obligation to secure rights within the domestic framework, and in the context of an appreciation by the legislators that what had been secured by existing techniques was not adequate. As a result, there was an indicated desire to go further: but to do so in a way that preserved

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Working Out the Content of Rights

non-compliant law rather than introducing a supreme law protection (save in relation to the UK’s devolution legislation). The legislative and court processes whereby this aim is achieved are discussed in subsequent chapters. There is also the question of what the rights mean. In Chapter 3, it was noted that part of the reason for the rule of law, and the strong attraction of the courts to retaining judicial review, is the importance of having a body that can give a definitive view of what a standard set in a statute means. Otherwise, that meaning is a matter of opinion, and the statute is thereby of diminished importance. This principle can be seen to apply to the standards in international law as well. There are inevitably different dynamics because, as language takes its meaning from context, it is necessary to take into account the varied situations in the many nations which have agreed to be bound by an international treaty. These countries retain sovereign powers to determine the law in their domain, but have agreed both to abide by international standards and also to subject themselves to the jurisdiction of relevant transnational bodies, and in particular the Human Rights Committee of the UN (though not the UK in the case of individual complaints) or the ECtHR (in the case of the UK and Ireland). These bodies have the task of expounding the practical effect of the widely phrased definitions of rights. In doing this, they have made clear that there is no intention to impose uniformity. Rather, various elements of subsidiarity apply: at the procedural level, this leads to the jurisdiction of the international body in relation to an individual complaint being conditioned on having made use of domestic remedies (as described in Chapter 10). At the substantive level, there is the doctrine of the margin of appreciation in relation to the balancing of interests, as well as the acceptance that disputes of fact are not really for the transnational body and so there will be deference to the domestic tribunal; this is outlined below. There is also the question of the extent to which the standards in the domestic bills of rights, even if they are phrased in exactly the same terms as those in the international document, mean the same. This raises the question of the relationship between the international and domestic tribunals. The following issues are covered in this chapter. There is first the textual analysis of the rights and the limits on them in the international conventions, and any rules as to interpretation of them adopted there. This is then repeated at the domestic level. Then there is the question of the relationship between the different structures and the elements of dialogue that determine how meaning is ascribed: this covers the relationship between domestic and international tribunals (in their respective roles as being the arbiters of what the law actually means, which has to take into account the transnational dynamics) and the relationship in the domestic sphere between the different parts of the state in assigning content to a right. This latter is distinct from the interpretive obligation imposed on courts to try to secure an outcome consistent with the content of a right once that content has been defined: this is a separate mechanic which is discussed in Chapter 8.

The Structure of Rights and Limitations in International Documents 193 I. THE STRUCTURE OF RIGHTS AND LIMITATIONS IN INTERNATIONAL DOCUMENTS

A. UDHR From the outset, the international documents have accepted that working out the content of a right involves the balancing of competing rights or interests. The Universal Declaration of Human Rights 1948 lists various rights (both civil and political and economic, social and cultural), and then makes the point that there are also duties to the community, that limits on rights are possible to meet the needs of society, and that the rights cannot be exercised for an improper purpose:

6

Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.1

Article 29(1) recognises the existence of duties and Article 29(2) accepts that rights may be limited in light of community interests and the rights of other individuals. There are also some rights expressed in language that suggests a limit: for example, the right to privacy in Article 12 is phrased as requiring protection from arbitrary interference.2 A legalistic question is whether a non-arbitrary interference with privacy is one that is permitted by Article 29, or whether it is possible to have something that is arbitrary but justified by reason of Article 29. In the former situation, Article 29 provides no additional limitation on the right to privacy; in the latter, it does. It may be thought unlikely that some rights would be subject to a double limitation: so the legalistic answer is that a right that is defined in a limited fashion cannot be subject to any further restrictions for the purposes of Article 29(2) because that is what the arbitrariness standard accomplishes.3

1 In addition, Article 1 sets the tone, with its indication that ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. 2 See also that arrest, detention and exile are only problematic if arbitrary, according to Article 9. Similarly, the right to a nationality and to a change of nationality in Article 15(2) is protected from arbitrariness; as is the right to property in Article 17. 3 It is noted below that the ECHR and ICCPR are designed to give effect to the UDHR, and do so without a general limiting clause, but instead express specific limits on most rights, without double limits on those that are listed in the UDHR as having both a limit and to be subject to the general limitation clause, which suggests that the drafters of the ECHR and ICCPR did not view the UDHR as allowing a double limit.

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B. ECHR 8

The European Convention on Human Rights 1950 was designed, according to its preamble, to reflect the UDHR (or at least the civil and political rights set out there). It records that the European countries involved have decided ‘to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’. However, it does not have a general limiting clause. Rather, the rights it sets out are limited in several ways that reflect the provisions of Article 29(2) of the UDHR: (i) (ii) (iii)

(iv) 9

the majority of the rights have various restrictions placed on them as a matter of definition of the right; there are some specific limitations on the circumstances in which the rights can be used; the document has to be read as a whole because there may be situations in which the exercise of one right might have an adverse effect on another right and a balance has to be drawn or an implicit limitation is a legitimate state power; and the possibility exists of some of the rights being suspended if there are specific problems in society at a particular point in time.

Taking these in turn, first, the few rights in the ECHR not expressed as being limited in some fashion are as follows: (i) (ii)

(iii)

(iv)

(v) (vi)

The Article 3 right not to be tortured or subject to inhuman or degrading treatment. The Article 4 right not to be subject to slavery or servitude is also absolute (though limits on some aspects of forced labour, also protected in Article 4, do appear). The Article 6 right to a fair trial is without limitation, but some of the elements of the right—such as right to a public trial—are subject to limitations; the presumption of innocence in Article 6(2) is not limited in its terms, nor are the minimum guarantees set by Article 6(3) in relation to a criminal trial. There are no permissible restrictions on the right to hold an opinion or have a belief, protected by Article 9 (though manifestations of opinions or beliefs may be restricted). The right to education in Article 1 of the First Protocol is expressed to be without limitation (in that no one can be denied it).4 The right to free elections in Article 3 of the First Protocol is also expressed in language without limitation.

4 In Article 26 of the UDHR, it is phrased with limitations as to its scope (elementary education being compulsory and free, technical and professional education being ‘generally available’ and higher education being ‘equally accessible to all on the basis of merit’).

The Structure of Rights and Limitations in International Documents 195 (vii) Article 1 of the Fourth Protocol, which is part of the Irish legislation,5 is the right not to be imprisoned for debt, which is expressed as being without limitation. (viii) Similarly, the rights to enter one’s own country and to not be expelled from it (Article 3) and the ban on the collective expulsion of aliens (Article 4) are also unlimited. This does not mean that these rights are absolute, in particular because of the need to read the document as a whole and hence the possibility of implicit limits. This is developed further below. Most of the rights listed are set out in a way that expressly includes a limit. The rights set out in the UK or Irish legislation are noted (together with comparisons to the UDHR):6 (i) The right to life: this is set out without limitation in the UDHR (Article 3); Article 2(1) of the ECHR provides a right to life but Article 2(2) indicates that various situations in which life is lost are not to be considered to breach the right (self-defence, lawful arrest and preventing escape, quelling a riot, provided that the force is no more than absolutely necessary).7 (ii) Absence of slavery or forced labour: again set out without limitation in the UDHR (Article 4); Article 4 of the ECHR prohibits slavery and servitude, and adds forced labour, but as with Article 2 of the ECHR it is indicated that various things do not amount to forced labour (work done as part of a court sentence, as an alternative to compulsory military service, work where there is a public emergency or work that is part of ‘normal civic obligations’). (iii) Liberty is set out as a right in Article 3 of the UDHR, though it is to be noted that Article 9 also provides protection against ‘arbitrary arrest, detention or exile’ and so the right is qualified by the standard of ‘arbitrariness’ as well as the limitations permissible under Article 29; in Article 5(1) of the ECHR there are various situations listed in which it is permissible for liberty to be taken away (such as after a court sentence, on the basis of mental disorder or for immigration purposes). (iv) The right to a fair trial, which is set out in Articles 10 and 11 of the UDHR, is provided for in Article 6 of the ECHR: this is not limited, but some of the elements of the right—eg to a public trial—may be limited in various situations (morals, public order, national security, the interests of juveniles or the protection of private lives).

5

See Section 1 of and Schedule 3 to the European Convention on Human Rights Act 2003. This list sets out the major rights in the ECHR and the First Protocol (which are part of the UK and Irish statutes) and also the Fourth and Seventh Protocol (which are part of the Irish Statute). 7 Article 2 also expressly allows judicial executions; this has been removed by Protocols 6 and 13. The former allows executions in time of war; the latter contains an absolute prohibition on the death penalty. 6

10

11

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(v) No retrospective criminal offences may be created and sentences may not be increased retrospectively: Article 7 of the ECHR, however, allows national law to be brought into line with the general principles of law. Article 11(2) of the UDHR is similarly phrased, as it prohibits conviction of something that was not a ‘penal offence, under national or international law’ when committed.8 (vi) As for the right to privacy, this is set out in Article 8(1) of the ECHR, but Article 8(2) permits interference that is proportionate and supports a legitimate aim, listed as ‘national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. As noted above, Article 12 of the UDHR does not give an absolute right to privacy that is then subject to Article 29; rather, the right is not to be subject to arbitrary interference, which may mean that Article 29 adds little. (vii) The right to freedom of thought, conscience and religion set out in Article 9(1) of the ECHR in mentioned above as a right that is absolute in its terms; there is also a right to manifest those beliefs, but by Article 9(2) this may be subject to proportionate restrictions in support of several of the grounds applicable in relation to Article 8 ECHR, namely ‘public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. The UDHR right, set out in Article 18, is expressed in terms that are unlimited, but is subject only to the restrictions set out in Article 29. (viii) The right to freedom of expression—which is the right to freedom of opinion and expression in Article 19 of the UDHR, where it is not qualified9—in Article 10 of the ECHR is noted to be a right with ‘duties and responsibilities’ and so it may be subject to proportionate restrictions ‘in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’. In addition, it is expressly noted that systems for licensing broadcasting, television and cinema are permissible. (ix) Freedom of assembly—which again is phrased as being without limitation in Article 20 of the UDHR, though it is expressly joined by the freedom not to be compelled to join an association—is provided for in Article 11 of the ECHR. Proportionate restrictions are permissible

8 This may not obviously seem to engage a conflict of rights, but the purpose of allowing such a prosecution would be based on community protection and reflecting the rights of victims and the community to seek punishment in that context. 9 There is, however, the indication in Article 7, the right to equal protection of the law, that this right includes protection against ‘incitement to’ discrimination, which thereby places a specific limitation on freedom of expression.

The Structure of Rights and Limitations in International Documents 197

(x)

(xi)

(xii)

(xiii)

(xiv)

‘in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’, and it is also noted that restrictions may be placed on these rights by those involved in the armed forces, the police or the administration of the state. The right to marry in Article 12 of the ECHR is one that is a right ‘according to the national laws’ governing it, and so implicitly subject to those laws. In the UDHR, Article 16 provides a right to marry, emphasising that this must be accorded without discrimination10 but also that it must be based on free consent. It also notes that the family unit is entitled to protection. The right not to be discriminated against in Article 14 of the ECHR is at first sight unlimited, but it is not a free-standing right not to be discriminated against in relation to any matter but only a right to no discrimination in relation to another of the rights protected in the ECHR (and it must be on a ground of status, though that is perhaps the essence of discrimination, namely treatment that is motivated by something arising from the nature of the person rather than a valid reason). This is similar to the language of Article 2 of the UDHR, but it also has a free-standing protection against discrimination and a right to the equal protection of the law, set out in Article 7. The right to property in Article 1 of Protocol 1 to the ECHR is limited by the fact that both deprivation of property may be taken ‘the public interest’ and use controlled in ‘the general interest’; taxation is also expressly permitted. The right to property recognised in Article 17 of the UDHR is, as with the right to privacy, subject to the limitation that ‘arbitrary deprivation’ is not permissible. The right to freedom of movement is contained in Article 2 of Protocol No 4: this is subject to proportionate limitations ‘in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. In addition, the right to freedom of movement and choice of residence can be restricted in a way that is regulated by law and justified by the public interest in a democratic society. Its UDHR equivalent, Article 13, is not limited. The first of the provisions in Protocol No 7 sets out a number of procedural rights in relation to the expulsion of aliens, but it permits expulsion before the exercise of these rights ‘when such expulsion is necessary in the interests of public order or is grounded on reasons of national security’.

10 This appears to go further than the ECHR, though the Article 12 ECHR right has to be read in conjunction with the Article 14 right to non-discrimination in relation to fundamental rights; the UDHR has similar language in its Article 2, and so it might be that the language of non-discrimination in Article 16 UDHR is not necessary.

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(xv) Article 2 of Protocol No 7 is the right to appeal in criminal matters, but it permits ‘exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal’. (xvi) Article 3 of Protocol No 7 is headed as the right to ‘compensation for wrongful conviction’, but the definition of what is wrongful imposes significant limits on what is covered: in essence, what is required is a ‘new fact shows conclusively’ that a miscarriage of justice has occurred, and there is a proviso that if the lack of knowledge of this fact was ‘wholly or partly attributable’ to the person convicted then there is no right to compensation. Whilst the aim behind the fair trial rights is that there should only be a conviction if the defendant is proved to be guilty, such that any error in this regard means that justice has not been secured and any overturning of a conviction could be seen as the correcting of a miscarriage of justice, the provisions of the ECHR are much more limited.11 (xvii) There is a right to protection from double jeopardy in Article 4 of Protocol No 7, but this need not apply for retrials following new facts or fundamental defects. (xviii) Finally, Article 5 of Protocol No 7 provides for equality between spouses, but this is expressly something that permits action to be taken in the interests of children. 12

13

The approach in the ECHR is sometimes to have a definition of the reasonable limitation: so Articles 2 and 5 delimit the circumstances in which is it permissible to deprive of life or liberty. On other occasions, more general limiting language is used, and this has to be given substance in a particular context, such as applies in relation to Articles 8–11. In addition to the language defining the right, the ECHR also has some additional limiting language in Articles 16 and 17: Article 16—Restrictions on political activity of aliens Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

11 It could be suggested that this is not a right which allows competing rights to be taken into account, rather that it is a right that only arises in limited circumstances. On the other hand, the reason for the limitation is no doubt that resources—the payment of compensation—should not be diverted from other state functions except in limited situations when someone has been punished who should not have been on the true facts, rather than simply where, for example, a judge erred in law in directing a jury. There may be an argument, similar to those that apply when immunities of bodies such as the police from actions in negligence are considered, that the criminal justice system would not function properly if it had to focus on the prospect of avoiding being required to pay compensation.

The Structure of Rights and Limitations in International Documents 199 Article 17—Prohibition of abuse of rights Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 16 is an additional part of the limitations built into the definitions of rights in Articles 10, 11 and 14. Article 17 is more of a general limiting clause, though it does not equate to Article 29(2) of the UDHR but is similar to the provision of Article 29(3), which prevents rights being used in a manner contrary to the UN’s purposes or principles.12

14

The third element of the restrictions on rights in the ECHR arises from the case law revealing implied limitations of rights that seem to be defined as absolute. For example, in Salabiaku v France,13 the question for the ECtHR was whether France had breached the presumption of innocence in Article 6(2) ECHR; the facts were that the defendant took possession at an airport of luggage which contained cannabis, and so was deemed to have smuggled the drugs unless he or she demonstrated a feature such as lack of knowledge (which Mr Salabiaku had not done).14 The ECtHR, having noted that offences of strict liability or negligence were permissible and also that the courts had considered all the evidence and so had not relied on the deeming provision, also determined that the reverse burden of proof was not prohibited provided that it was held within appropriate bounds:

15

Presumptions of fact or of law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. … Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. This test depends upon the circumstances of the individual case.15

12 There is also in Article 18 of the ECHR a limitation on the purposes for which the various limitations may be used: ‘Article 18—Limitation on use of restrictions on rights The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’. 13 Salabiaku v France (1988) 13 EHRR 379. 14 ibid at paras 13, 14 and 19: he was convicted of a ‘customs offence’ of smuggling rather than a criminal offence of illegal importation. 15 ibid at para 28: the Court specifically disagreed with the apparent view of the European Commission on Human Rights that the words ‘according to law’ in Article 6(2) meant that the presumption could be set aside provided it was done in law. It commented that ‘Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law’. In Phillips v UK (2001) 11 BHRC 280, the ECtHR noted ‘40. The Court considers that, in addition to being specifically mentioned in Article 6§2, a person’s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her forms part of the general notion of a fair hearing under Article 6§1 … This right is not, however, absolute, since presumptions of fact or of law operate in every criminal-law system and are not prohibited in principle by the Convention,

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A final area of potential limitation on rights is in emergency situations, when the protection of the community allows derogations of some rights: Article 15 Derogation in time of emergency 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.16

17

The fact that some rights are absolute in international law even in the constrained circumstances of a war or public emergency of such moment may provide a guide to the limited circumstances in which deviations from the rights are permitted if incorporated into domestic law (and if the purpose of the incorporation is to mirror the obligations arising in international law).

C. ICCPR 18

The International Covenant on Civil and Political Rights 1966 is similar to the ECHR in many respects: it recognises the UDHR as the foundational document (and also the obligation in the UN Charter to give effect to rights), does not use a general limiting clause but provides for restrictions in the definitions of rights, and it provides for some more general limiting circumstances and for derogations.17

19

A significant number of rights in the ICCPR are expressed as not being limited (and so are similar to the rights as set out in the UDHR, though without the existence of the general limiting language of clause 29(2) of the UDHR); comparisons with the ECHR are noted: (i) There is the Article 7 right not to be tortured or subject to cruel, inhuman or degrading treatment, which is similar to Article 3 ECHR; it adds a specific indication that there shall be no non-consensual medical or scientific experimentation.

as long as States remain within certain limits, taking into account the importance of what is at stake and maintaining the rights of the defence’ (citing Salabiaku). This has been adopted in a domestic law setting: in R v Lambert [2002] 2 AC 545, which related to reverse burden of proof, Lord Steyn commented that ‘34. … a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed’. 16 These are, respectively, the rights to life, not to be tortured, not to be subject to slavery and the prohibition on retrospective criminalization. 17 A third source of restrictions on rights, from implicitly authorised limitations, as identified in ECtHR case law described above, is likely to apply under the ICCPR as well; the Human Rights Committee case law is developing at a slower pace.

The Structure of Rights and Limitations in International Documents 201 (ii) The Article 8 right not to be subject to slavery or servitude is also absolute (though limits on some aspects of forced labour, also protected in Article 8, do appear); this structure is similar to Article 4 ECHR. (iii) Article 10(1) sets out a right for detainees to be treated with ‘humanity’ and ‘respect for the inherent dignity’ of people. (This is an example of a right not in the ECHR, where use has to be made of the Article 3 prohibition on inhuman or degrading treatment.) In addition, Article 10(2)(b) provides that accused juveniles in detention have to be kept separately from adults and brought speedily for adjudication; as for convicted juveniles, Article 10(3) indicates that there shall be segregation from adults and also age-appropriate treatment.18 (iv) Article 11 (which is similar to Article 1 of the Fourth Protocol to the ECHR) is the right not to be imprisoned for debt, which is expressed as being without limitation. (v) The Article 14 right to a fair trial is also without limitation, as is the Article 6 ECHR right, but some of the elements of the right—such as to a public trial—are subject to limitations. There are also some specific aspects that are phrased as being without limit: the presumption of innocence in Article 14(2), the right to a review of a conviction or sentence in Article 14(5),19 and the right against double jeopardy in Article 14(7). (vi) Article 16 is the right to recognition as a person, which is phrased as being without limit. It has no obvious counterpart in the ECHR, though it is reflected in Article 6 of the UDHR. (vii) There are no permissible restrictions on the right to freedom of thought, conscience or religion, protected by Article 18, which also prohibits any coercion in relation to this right (though manifestations of opinions or beliefs may be restricted); this is the same approach as Article 9 of the ECHR. (viii) Similarly there is a ‘right to hold opinions without interference’, which is set out in Article 19(1).

18 There have been various reservations in relation to this provision: Australia accepted ‘the obligation to segregate … only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned’. Ireland acted similarly, its reservation stating that ‘Ireland accepts the principles referred to in paragraph 2 of article 10 and implements them as far as practically possible. It reserves the right to regard full implementation of these principles as objectives to be achieved progressively’. The New Zealand reservation was in similar terms to that of Australia: ‘The Government of New Zealand reserves the right not to apply article 10 (2) (b) or article 10 (3) in circumstances where the shortage of suitable facilities makes the mixing of juveniles and adults unavoidable; and further reserves the right not to apply article 10 (3) where the interests of other juveniles in an establishment require the removal of a particular juvenile offender or where mixing is considered to be of benefit to the persons concerned’. The United Kingdom also entered a reservation in relation to various colonies. What is probably the common thread is that resource constraints in the context of sparse or thin populations might make the objectives difficult. 19 The equivalent, in Article 2 of Protocol No 7 of the ECHR allows exceptions, including for minor offences.

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(ix) The provisions as to the protection of the family in Article 23, together with the right to marry and found a family, are in terms that appear to be unlimited.20 (x) There are also protections for children in Article 24 that appear to be unlimited, including the right to be registered and to have a nationality and also to have the protection required for a child. (xi) Article 27 sets out the right for minority populations to ‘enjoy their own culture, to profess and practise their own religion, or to use their own language’: this is expressed without language of limitation. (xii) It is worth noting that the right not to be discriminated against in the ICCPR is also unlimited, and in this regard can be contrasted with the approach under the ECHR, which under Article 14 covers only differential treatment in relation to one of the fundamental rights otherwise protected. In the ICCPR, there are three relevant provisions: the first, Article 2(1) of the ICCPR, is similar to Article 14 of the ECHR in that it applies only to other rights set out; the second, Article 3, reinforces the need for equality between men and women, but again is in relation to the other rights set out. However, the third relevant provision is Article 26, which indicates that ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law’ and requires that ‘the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination’. 20

Turning to the Articles that include limits on rights: (i) The right to life: the language of Article 6 of the ICCPR requires protection against an arbitrary deprivation of life, whereas Article 2 of the ECHR sets out a specified range of circumstances in which life may be lost without Article 2 being breached (though it may be that the list in Article 2 sets out the only situations in which it might be thought that the loss of life is not arbitrary).21 (ii) Although slavery, servitude and forced labour are prohibited by Article 8 of the ICCPR, it also—similarly to Article 4 of the ECHR—indicates that various things do not amount to forced labour (work done as part of a court sentence, including hard labour as part of a sentence of imprisonment, as an alternative to compulsory military service, work where there is a public emergency or work that is part of ‘normal civic obligations’).

20 In Joslin v New Zealand (902/1999), ICCPR, A/57/40 vol II (17 July 2002) 214 (CCPR/ C/75/D/902/1999), it has been determined that the language ‘The right of men and women of marriageable age to marry and to found a family’ is limited to heterosexual couples. The contrary view to this is that there is no indication in terms that it is limited to men marrying women and the reference to the founding of a family does not expressly limit itself to what might be termed the usual birth process (since that would exclude matters such as adoption). 21 Both Article 6 of the ICCPR and Article 2 of the ECHR allow judicial executions, though only for the most serious offences and subject to various procedural provisions; note that the Second Optional Protocol to the ICCPR prohibits the death penalty, except in time of war.

The Structure of Rights and Limitations in International Documents 203 (iii) Liberty is set out as a right in Article 9 of the ICCPR: the protection is against ‘arbitrary arrest or detention’, and so is structured differently from the ECHR’s Article 5, which contains a list of the permissible circumstances in which liberty may be lost.22 (iv) As noted above, there is an unlimited right to treatment with dignity in detention set out by Article 10(1). Article 10(2)(a) contains an additional right to those in prison awaiting trial, which is to be segregated from convicted prisoners, though that is unless there are exceptional circumstances.23 (v) There is a right to freedom of movement and also a right to leave a country, which is set out in Article 12: Article 12(3) notes that these rights can only be restricted in a way that is regulated by law and by a provision that is ‘necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others’; and it has to be ‘consistent with the other rights recognized in the present Covenant’. Article 12(4) provides an additional right to enter one’s own country, and that is subject to the limitation of no arbitrary deprivation: the equivalent in the ECHR, Article 3(2) of Protocol No 4, is without limitation. (vi) Article 13 provides that aliens may be expelled only if the process followed involves the person being allowed to submit reasons and have a review with representation: but this is subject to ‘compelling reasons of national security’. Article 1 of the Seventh Protocol to the ECHR is of similar effect. (vii) The right to a fair trial is set out in Article 14: this is not limited, but some of the elements of the right—eg to a public trial—may be limited in various situations (morals, public order, national security, the interests of the private lives of the parties or the interests of justice). Article 14(6) requires compensation for a miscarriage of justice: whereas ‘justice’ might be thought to have been compromised whenever anyone is convicted who should not have been, the provisions for compensation are limited to new facts emerging, and provided that their initial non-discovery is not attributable in whole or in part to the defendant.24

22 The ICCPR returns to the approach of Article 9 of the UDHR, which also uses the test of arbitrariness. 23 Australia entered a reservation, noting that ‘In relation to paragraph 2 (a) the principle of segregation is accepted as an objective to be achieved progressively’. Ireland acted similarly, accepting the principles but noting that progressive realisation might be necessary: see n 18 above. 24 See n 11 above for the suggestion that, whilst this may be seen to be a limited right rather than one in relation to which there are competing interests, the reason for the restriction is probably resource based, reflecting a priority to expend money elsewhere, with also an element of not making the system too defensive in its outlook. Note also that there have been reservations entered in relation to this provision: Australia’s reservation is limited to indicating that the assessment may be a matter of an administrative process rather than a specific legal remedy; and New Zealand indicates that it will be an ex gratia payment scheme and if this is not sufficient then it will not apply Article 14(6).

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(viii) No retrospective criminal offences may be created and sentences may not be increased retrospectively (and a defendant must benefit from the reduction in the penalty): Article 15. But this is subject to the proviso that something criminal according to the general principles of law may still be punished. Article 7 of the ECHR is similarly phrased. (ix) Privacy, family, home and correspondence are protected by Article 17: the standard here is one that ‘arbitrary or unlawful’ attacks are not permitted. The same article protects ‘honour and reputation’, and requires that they not be subject to unlawful attacks, without reference to arbitrariness. Article 8 of the ECHR allows proportionate interferences with privacy rights in support of various legitimate aims, which is a more wordy version of the concept of arbitrariness; it also requires that there be a law in place. However, it does not cover honour and reputation expressly (though it is fair to say that there is a wide interpretation of what it covers). (x) The right to freedom of thought, conscience and religion set out in Article 18 is in unqualified terms: but the right to manifest those beliefs may be limited if there is a law in place and the restriction is ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. Article 9 of the ECHR is in similar terms. (xi) Article 19 protects rights to hold opinions (in an unlimited fashion), and also to expressions—both receiving and imparting; the latter right may be limited if the restriction is set out in law and the restriction is necessary ‘(a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals’. This is similar to Article 10 of the ECHR. In addition, the ICCPR contains in Article 20 requirements to restrict certain expressions of opinion, namely those which amount to propaganda for war and incitement to discrimination, hostility or violence on national, racial or religious grounds. (xii) Peaceful assembly is recognised by Article 21: so not all assembly is recognised for protection. In addition, restrictions are permitted if they are laid out in law and the restrictions meet the test of being ‘necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others’, which is similar to Article 11 of the ECHR. (xiii) There is also a right to associate, including forming trade unions, in Article 22, which is subject to similar restrictions as Article 21 with a supplemental restriction that it does not prevent ‘lawful restrictions’ on the armed forces and police in the exercise of the right. (xiv) Article 25 provides protection for taking part in public affairs, voting and having access to public service: this shall be allowed ‘without unreasonable restrictions’. The ECHR covers only the right to vote, but it is set out in terms without express words of limitation.

The Structure of Rights and Limitations in International Documents 205 In summary, the approach adopted in the ICCPR in relation to various rights is that there are limitations which either use the concept of arbitrariness or set out relevant contrary aims that might make a restriction necessary. In some instances, it uses a similar structure to that in the ECHR; but on other occasions it uses a more general concept such as arbitrariness where the ECHR has more specifically limited restrictions. However, given the common heritage of the UDHR, it would be a surprise if the aim was to reach a different conclusion as to the substance of the rights. There are, however, instances where rights not in the ECHR have been included in the ICCPR. The second source of limitations on rights is the express limitation as to the use of the rights, in Article 5(1) ICCPR, which provides:25

21

22

Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

As to derogations, they are permissible under Article 4 of the ICCPR but only in limited circumstances and not in relation to certain rights (which may provide some guidance for when restrictions might be permissible when the rights are brought into a domestic setting):

23

Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.26 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

The ICCPR contains some additional rights. It also has one very different feature, arising from the UN’s role in leading the process of decolonisation, namely the inclusion of various unlimited rights which are collective in nature in Article 1. They are the right of ‘all peoples’ to ‘self-determination’, namely 25 There is no equivalent to Article 16 of the ECHR, which specifically allows restrictions on the political activities of foreigners. 26 These are the rights to life, not to be tortured or subject to slavery or servitude, not to be imprisoned for debt, not to be subject to retrospective criminal laws and the right to be recognised as a person and to have freedom of thought, conscience and religion.

24

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‘political status’ and ‘economic, social and cultural development’. Another is the right of ‘all peoples’ to dispose of wealth and resources, which includes a prohibition on depriving ‘a people … of its own means of subsistence’.27

D. Other Regional Treaties 25

There are other regional human rights treaties. The American Convention of 196928 also refers in its preamble to the UDHR, and follows the same structure as the ECHR and the ICCPR in terms of how rights are defined and in relation to derogations,29 rather than having a general limitation clause. It does, however, have additional express language as to ‘Personal Responsibilities’ in Article 32: Article 32 Relationship between duties and rights 1. Every person has responsibilities to his family, his community, and mankind. 2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.

26

The African Charter on Human Rights and Peoples’ Rights 198130 indicates in its title that it has collective rights as well. It notes in its preamble that ‘due regard’ should be paid to the UDHR: the rights and their limitations are then defined with limitations expressed in similar ways as to those set out in the ECHR and ICCPR,31 without a general limitation clause but with significant language pointing out duties in Chapter II of Part I of the Charter: Article 27 1. Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest. Article 28 Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

27 Note also Article 47, which notes that ‘Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources’. 28 OAS, Treaty Series, No 36. Available at www.oas.org/dil/treaties_B-32_American_ Convention_on_Human_Rights.htm. 29 There is a reference in Article 26 to the progressive development of economic, social and cultural rights. 30 Available at www.achpr.org/instruments/achpr/. 31 As with the American Charter, there are references to economic, social and cultural rights.

The Structure of Rights and Limitations in International Documents 207 Article 29 The individual shall also have the duty: 1.

2. 3. 4. 5. 6. 7.

8.

To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need; To serve his national community by placing his physical and intellectual abilities at its service; Not to compromise the security of the State whose national or resident he is; To preserve and strengthen social and national solidarity, particularly when the latter is threatened; To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law; To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society; To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society; To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

There is also the Charter of Fundamental Rights of the European Union,32 which lays out various rights, both civil and political and economic, social and cultural, and does so by following the model of the UDHR, listing rights and adding a general limitation clause in the following terms: Article 52—Scope of guaranteed rights 1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties. 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.33

32 European Parliament, Council and Commission, 18 December 2000, 2000/C 364/01. Available at www.europarl.europa.eu/charter/pdf/text_en.pdf. 33 It is also provided in Article 54 that rights cannot be abused, ie ‘Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein’.

27

208 28

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The important point is that Article 52(3) makes it clear that the aim of the EU Charter is to have the same impact as the language of the ECHR when the rights covered are the same: so the process of providing general limitation language, as set out in Article 52(1) of the Charter, should have the same result as the process followed in the ECHR (which is that followed in the other regional documents and the ICCPR).

E. Summary; The Margin of Appreciation 29

30

31

In summary, as a matter of international law, (i) the use of a general limiting clause is a method of providing protection for the rights of others and duties to the community that has the same limiting effect as the technique of outlining particular restrictions on particular rights; (ii) some rights may be defined as absolute but be interpreted as having limitations in them; but (iii) some rights cannot be derogated from and so have the same strength even in times of emergency. There is a choice between making use of either general limiting language or more specific provisions. The potential advantage of being more specific is that it provides more certainty at the outset. This arises in two contexts. The first, illustrated by the provisions of Article 2 and 5 of the ECHR, is that it is possible to define the situations in which a loss of life or liberty will not be considered arbitrary, the standard used in Articles 6 and 9 of the ICCPR, rather than leaving them to be discerned by the body in charge of interpretation. Secondly, and illustrated by the contrast between Article 8 of the ECHR and Article 17 of the ICCPR, it is possible to set out the factors that might be relevant to a restriction on a right (the ECHR approach) or leave it to a more general concept such as arbitrariness (the ICCPR approach). Again, in the latter context, the interpretive body will have to work out the features relevant to arbitrariness, whereas in the former context they are delineated. It may be that the more general approach is thought to offer more flexibility.34 However, given the importance of substance over technicalities or semantics, there should be less of a concentration on those matters than might be proper in a purely domestic statute that does not affect rights. In particular, a holistic assessment is preferable, perhaps concentrating on the nature of the right. To use the right not to be tortured as an example: in the UDHR, this is subject to a general limiting clause, but the nature of the right is such that it can never be limited, and this conclusion does not depend on whether or not there is a limiting clause, but on the nature of the right. This would apply also to the right not to be held in slavery.

34 Note that this choice between flexibility and certainty is also raised in other contexts, such as in the definition of what amounts to a public body, noted in Chapter 7.

The Structure of Rights and Limitations in International Documents 209 A domestic example that suggests an acceptance that there is no difference in the substance of the rights is Lange v Atkinson.35 The New Zealand Court of Appeal noted that decisions of the ECtHR were of value in determining the extent of the common law defence of qualified privilege (and its protection of freedom of expression) despite noting that the model used in the ECHR was of specific limitations rather than the general limitation clause used in the NZBORA (discussed below). Blanchard J does not expressly comment that these are simply semantic differences, but he seems to treat them as equivalents.36

32

One other feature should be noted. At the international level, this need for balance also combines with the fact that the transnational body is carrying out what is essentially a reviewing function that has to recognise (i) its own limited ability at fact finding37 and (ii) that the primary task in the relevant treaties is that imposed on the states to put rights into effect in a way that reflects their own contexts, which may mean that a different balance is struck when different interests lead in different directions. This has given rise to the concept of the ‘margin of appreciation’: for an early instance, see Handyside v UK.38 The ECtHR noted that the machinery in Strasbourg is subsidiary to the national institutions involved (as reflected by the need for domestic remedies to be exhausted); that ‘it is not possible to find in the domestic law of the Contracting States a uniform European conception of morals’, which creates the margin of appreciation given to domestic legislators and judges in enacting and applying law that impacts on rights that have to be balanced.39 This reflects the fact that the aim of international human rights law is not to impose uniformity. Minimum rights have to be upheld, but the actual content, at least of some rights, may differ between countries because of the need to reflect different competing interests and traditions. This margin of appreciation, however, has its limits. In particular, the rights guaranteed by international conventions must have an ‘autonomous meaning’—ie a meaning which applies in all countries in which the treaty is valid. For example, the question of what is ‘criminal’ may differ between countries (eg, when does a civil penalty become a criminal matter, what is the difference between disciplinary and criminal): but the rights set out in ICCPR Article 14.3 or ECHR Article 6.3 (minimum rights in criminal trials) have to apply to what is viewed as criminal for the purposes of the ICCPR or ECHR irrespective of how it is treated in domestic law. In addition, when it comes to weighing competing interests, it remains necessary to ensure that there is

33

35

Lange v Atkinson [1998] 3 NZLR 424. ibid at 466. 37 Some bodies may have specific fact-finding functions: see Chapter 2 for the description of the various bodies; and see, for example, the fact-finding missions arising under the anti-torture conventions. The ECtHR does have a fact-finding process, set out in Rule A1 to the Rules of Court 2014. 38 Handyside v UK (1976) 1 EHRR 737. 39 ibid at para 48. 36

34

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proper respect for rights, and to recall that the ‘margin’ is not an ‘unlimited power’, as was noted in Handyside.40 This is what the ECtHR has the function to police.

II. THE APPROACH TO INTERPRETING HUMAN RIGHTS STANDARDS

35

Rules have developed as to the interpretation of standards that appear in human rights documents, both when they are matters of domestic constitutional law and also in relation to the standards set out in international human rights treaties. It is worth noting, however, that the context of these standards is they are invariably ones that require a nuanced weighing of factors that pull in different directions, which are political in the sense that choices have to be made that involve weighing factors on which people might differ according to a political outlook.

A. General Principles in the International Arena 36

The language used in human rights conventions to set out the standards is invariably at a high level, such that it needs more detailed rules underneath it. This may include the implication of additional rights; and it may also found the discovery of other high-level principles that can be used to interpret what the standards mean. For example, it is established that human rights instruments are living instruments that must be interpreted in the light of present day conditions.41 This may also be reflected by the States Parties agreeing to amend the terms of the treaty, as has happened in relation to the death penalty, which is permissible under both the ECHR and the ICCPR, but has now been prohibited within the Council of Europe by protocols to the ECHR and may be illegal except during war time if parties to the ICCPR have signed its Second Optional Protocol. However, it is an accepted feature that the ECtHR and the Human Rights Committee of the UN may develop the principles as well: this living instrument feature was well known; it was certainly recognised 40

ibid at para 49. Of many examples, see from the ECtHR the early cases of Tyrer v UK (1978) 2 EHRR 1 at para 31 and Airey v Ireland (1979) 2 EHRR 305 at para 26. In the former case, the Court was able to rule that the acceptability of corporal punishment had to be judged against developing understandings in penal policy (and found that it was inhuman and degrading, even though it had no doubt been commonplace, was no doubt supported by many and is still not unusual in some countries). For another early example of the updating of concepts on which people might differ, see Marckx v Belgium (1980) 2 EHRR 330 at para 41, in which it was ruled that differential treatment of children born outside marriage could not be justified in light of developments that had occurred in the period since the ECHR was adopted. This is an aspect of case law from the Human Rights Committee as well: in Judge v Canada (communication 829/98), it departed from previous case law that extradition on a capital charge was permissible from a country that had abolished the death penalty to a country that used it, finding it now impermissible without an undertaking not to impose the death penalty. The rationale included the growing consensus against the death penalty. 41

The Approach to Interpreting Human Rights Standards 211 by the UK government in its White Paper supporting the Human Rights Bill, as has been discussed in Chapter 4.42 This can include significant changes to the understanding of the law. This is illustrated by Šilih v Slovenia,43 a judgment of the Grand Chamber of the ECtHR in which the facts involved the investigation of a death that had occurred before ratification of the ECHR. The simple point was whether the procedural obligation to investigate a death was separable from the substantive obligation to protect life and so could have a different time line: the allegation was of medical negligence causing the death and of inefficiency in the court processes designed to ascribe responsibility. The Grand Chamber confirmed that the ECHR was not retrospective, but also that the procedural obligation to investigate a death reflected an autonomous right enjoyed by the family of the deceased: whilst it would only be triggered by an act that might breach the substantive rights, its separate nature meant that it had a different time frame.44 On the facts, the majority of the procedural steps (which were inadequately diligent) occurred after ratification and founded a breach of Article 2. This involved departing from previous decisions of the ECtHR.45 Another example of a general principle is that the purpose of human rights instruments can be identified and so used to support a certain way of construing them. In Kjeldsen and others v Denmark,46 it was noted that ‘the general spirit of the Convention’ had to be taken into account, which was identified as it being ‘an instrument designed to maintain and promote the ideals and values of a democratic society’. The case involved a challenge by religious parents to the teaching of sex education: this was dismissed on the basis that it was acceptable so long as done in an ‘objective, critical and pluralistic manner’ that did not amount to indoctrination as to one particular view on the topic and thereby denigrate contrary religious or philosophical convictions. The reference to pluralism was also found in another case from the same era, Handyside v UK,47 in which the ECtHR upheld a ban on the publication of a book promoting liberal attitudes in relation to various matters, including sex, alcohol and discipline, and aimed at children. This had led to a conviction under obscenity legislation, in light of various passages being found ‘extreme’ 42

Rights Brought Home: The Human Rights Bill, para 2.5. Šilih v Slovenia App no 71463/01, [2009] Inquest LR 117, (2009) 49 EHRR 996. 44 At para 159, the ECtHR set out its conclusion in law: ‘the procedural obligation to carry out an effective investigation under Art 2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Art 2 it can give rise to a finding of a separate and independent “interference” [which] can be considered to be a detachable obligation arising out of Art 2 capable of binding the state even when the death took place before the critical date’. 45 In Moldovan v Romania (App nos 41138/98 and 64320/01, 13 March 2001), the Court had found a claimed procedural breach of Article 2 inadmissible because it related to a killing that pre-dated ratification by Romania; this was followed in Voroshilov v Russia (App no 21501/02, 8 December 2005) in relation to an Article 3 point and Kholodov and Kholodova v Russia (App no 30651/05, 14 September 2006). 46 Kjeldsen and others v Denmark (1976) 1 EHRR 711 at para 53. 47 (1976) 1 EHRR 737. 43

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and ‘subversive’ and so likely to ‘deprave and corrupt’ (being the test for obscenity); the publisher was fined and the books were destroyed (though a revised edition, with various parts amended, was permitted). The prosecution and conviction was challenged as being a breach of the right to freedom of expression. Although the ECtHR determined that it had been open to the UK to act as it did on the basis of the protection of morals, even though it had been very much in a minority within the Council of Europe’s membership at the time, it also gave some guidance on the basis for assessing the extent of this power to interfere with the right in question. Freedom of expression was noted to be part of the necessary framework for a democratic society (arising from the fact that restrictions on the right to freedom of expression have to be ‘necessary in a democratic society’): so the Court looked to the other elements of such a society and identified them as ‘pluralism, tolerance and broadmindedness’.48 This in turn meant that the right could cover expression that might be offensive or shocking, so as to require the state to justify whether a ban on them was necessary. Also recognised as a core feature is the ‘rule of law’: for example, in Golder v UK,49 a challenge to the refusal to allow a serving prisoner to contact a solicitor (with a view to starting libel proceedings arising out of allegations by a prison officer) or his MP (to make complaints about his position), neither of which were allowed unless the prison authorities granted permission, raised the question of whether there was a right of access to a lawyer as part of a right to access to a court; and whether there was a disproportionate restriction on the right to freedom of correspondence. The former argument was based on the right to a fair trial in Article 6 ECHR: so the government contention was that the guarantee in the ECHR was that any legal proceedings would be conducted in a certain fashion. The ECtHR disagreed with this narrow approach, finding that a right of access to a court was inherent in the right to a fair trial. It is the process of reaching that conclusion that is important. The Court noted that a purposive approach was required (as is generally the case for treaties, on which see below), that preambles are good indications of such a purpose, and that the reference in the preamble to the ECHR to the rule of law was significant (and was a feature also of the Statute of the Council of Europe). This led to the conclusion that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts’.50

48 ibid at para 49. See also Dudgeon v UK (1981) 4 EHRR 149 at para 53; this case held that the criminalisation of male homosexual intercourse in Northern Ireland breached the right to respect for private life under Article 8 ECHR. For an equivalent case before the Human Rights Committee, see Toonen v Australia, Communication No 488/1992. 49 Golder v UK (1975) 1 EHRR 524. 50 (1975) 1 EHRR 524 at para 34; at para 35, it noted that the right of access to a court was also a generally recognised principle of international law, which reinforced the conclusion. See also Klass v Germany (1978) 2 EHRR 214 at para 55: ‘The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last

The Approach to Interpreting Human Rights Standards 213 Similarly, there are various instances in which any restrictions have to be in accordance with the law or somehow lawful: in other words, there has to be regulation in domestic law, and this has been held to require that the law be accessible and sufficiently precise to be foreseeable in its effect.51 This is something that can have a formalistic meaning. However, it has been determined from an early stage that this concept of legality involves the courts reviewing the merits of the law as well to ensure that rights are protected. For example, in Winterwerp v Netherlands,52 the ECtHR was asked to rule that the detention of the claimant in a psychiatric hospital had been unlawful because he was not of ‘unsound mind’ for the purposes of Article 5(1)(e) ECHR. The Court noted that the phrase was not to be given a definitive meaning, as knowledge in psychiatry was developing, but also noted the importance of the need for detention to be ‘lawful’ and ‘in accordance with a procedure prescribed by law’. This involved first examining the purpose of the protections in Article 5, which was to prevent detention being arbitrary. The conclusion that an arbitrary detention had to breach Article 5 was supported by the fact that ‘in a democratic society subscribing to the rule of law … no detention that is arbitrary can ever be regarded as “lawful”’.53

41

The other result of the need for lawfulness was the implication of both procedural and substantive rules. In the case of mental disorder, these were noted to be that the evidence to support detention had to come from an expert in psychiatry, that the disorder had to be of a nature or degree to warrant detention and that it had to be shown to persist.54 This mixes an insistence on procedural matters and the merits of whether detention is proper, giving the concept of legality a ‘thick’ rather than formalistic role.

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B. Taking Account of Other Conventions As has been noted, the ICCPR and the ECHR both aim to give effect to the UDHR: this means that, whilst they often use different language, their substantive impact ought generally to be the same. Certainly, there is cross-citation of

resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure’. The context here was surveillance legislation, which was upheld as being a justified interference with privacy. 51 For example, in its General Comment No 34 on Article 19 of the ICCPR, Freedoms of Opinion and Expression, CCPR/C/GC/34, 12 September 2011, the Human Rights Committee noted of the requirement that restrictions be provided for by law that ‘25. … a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not’. In the ECtHR, see Sunday Times v UK (1979) 2 EHRR 245. 52 Winterwerp v Netherlands (1979) 2 EHRR 387. 53 ibid at [39]. 54 ibid.

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their case law with regularity. Another aspect of the giving of meaning to treaties is that account will also be taken of other human rights treaties: this may include situations in which another treaty represents an updating of standards. This is pursuant to the Vienna Convention on the Law of Treaties 1969,55 Part III, section 3 of which sets out various rules of interpretation. Article 31.1 notes the starting point to be both the ordinary meaning of the terms of the treaty and its object and purpose; Article 31.2 indicates that the context includes the language of the treaty, including preambles, but also other instruments signed in connection with the treaty; and Article 31.3 requires that account should also be taken of subsequent agreements or practices as to the interpretation and ‘(c) any relevant rules of international law applicable in the relations between the parties’. In Loizidou v Turkey56 the ECtHR noted that this provision was applicable to the interpretation of the ECHR and so: 43.

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… the principles underlying the Convention cannot be interpreted and applied in a vacuum. Mindful of the Convention’s special character as a human rights treaty, it must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction …

The context of this comment was that the application related to the land of the applicant in the northern part of Cyprus, which had been taken over by Turkish-supported forces in 1974. There had been a new Constitution in Northern Cyprus in 1985, pursuant to which the claimant had lost her property. Then in 1990, the government of Turkey issued a declaration under which it sought to prevent the ECtHR having jurisdiction over events prior to 1990. Accordingly, they argued, there was no jurisdiction to consider complaints relating to an expropriation of property that was complete by 1985. However, noting that there was no international recognition of the regime in Northern Cyprus, the ECtHR concluded that the legal regime applicable to the property was Cypriot law rather than the Constitution of the illegitimate state of Northern Cyprus, with the consequence that the property in question remained the applicants’ and so the ongoing limitation of access to the property (which continued after 1990) was a matter over which there was jurisdiction ratione temporis. The ‘rules of international law’ to which reference is made by the Court in paragraph 43 above were those pursuant to which there was no recognition of Northern Cyprus as a separate entity. However, these rules of interpretation have a wider currency, and indeed had so before the Vienna Convention came into effect, on the basis that it reflected accepted principles of international law in any event. So in Golder v UK,57 noted above, the ambit of the right to a fair trial in Article 6 ECHR was held to include a right of access to a court in order to have a dispute tried

55 56 57

1155 UNTS 331. Loizidou v Turkey (1996) 23 EHRR 513. (1975) 1 EHRR 524.

The Approach to Interpreting Human Rights Standards 215 (and not just being fair once started) in part because of ‘general principles of law recognised by civilised nations’ (as noted in Article 38(1)(c) of the Statute of the International Court of Justice as a source of international law), which included access to a court.58 This was repeated in Al-Adsani v UK,59 in which the question of state immunity was raised: the applicant had been prevented from pursuing a claim for torture against Kuwait and argued that this breached Article 6 ECHR because he was unable to secure a trial in relation to his complaints. The ECtHR dismissed the claim (by a bare majority of 9–8), finding that the restriction imposed by the UK was a proportionate restriction on the right to a trial that supported the important aim of comity in international relations. In assessing the proportionality question, the Court repeated the principle set out in paragraph 43 of the Loizidou decision, noted above, and explained that the consequence was that ‘The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part’ (including on the facts the relevant rules relating to state immunity, meaning that a process that accorded with the general rules of international law could not be a disproportionate interference with Article 6).60 There are also various instances of other treaties being taken into account.61 This may include UN Conventions. An example of this is Kiss v Hungary,62 which considered the question of the disenfranchisement of people placed under guardianship. In assessing whether this breached Article 3 of Protocol No 1 to the ECHR, the ECtHR noted the relevant provisions of the CRPD (in paragraph 14) and also of recommendations of the Council of Europe and an opinion of the European Commission for Democracy Through Law (paragraphs 15–17). In reaching its conclusion that there was a disproportionate breach of the right to vote, the Court indicated that 44.

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The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paras 14–17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. There has accordingly been a violation of Article 3 of Protocol No 1 to the Convention.

ibid at para 35. Al-Adsani v UK (2002) 34 EHRR 273. 60 (2002) 34 EHRR 273 at paras 55–56. 61 This may include other Council of Europe Conventions: the findings of the Committee for the Prevention of Torture that operates under the European Convention on the Prevention of Torture (ETS No 126) inform the findings of the ECtHR in relation to the adequacy of prison conditions for the purposes of a claim under Article 3: as one of many examples, see Iovchev v Bulgaria, App no 41211/98, 2 February 2006. 62 Kiss v Hungary App no 38832/06, [2010] MHLR 245. 59

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This, it is worth noting, may be a method whereby standards in a convention that is not specifically made part of domestic law become part of that domestic law in any event through a treaty which is somehow incorporated. It should also be noted that the European Union is a signatory to the CRPD as a ‘regional integration organisation’ (as defined in Article 45) and ratified the Convention on 23 December 2010: as such, to the extent that it relates to matters which are within the competence of the Union, the Convention will become part of community law and may become binding on the UK by reason of the European Communities Act 1972.63

C. Common Law Approach 51

It is worth noting that this wide approach to the interpretation of human rights standards is an established part of the common law tradition as well. It was developed by the Privy Council in relation to decolonisation Constitutions long before the bills of rights statutes came back into fashion (and so would have been known about by the legislators who gave supplemental powers to judges). This approach is summed up in the much-quoted passage from the judgment of Lord Wilberforce in Minister of Home Affairs (Bermuda) v Fisher. The question was the meaning of ‘child, stepchild or child adopted’ in relation to the nationality provisions in the Constitution of Bermuda,64 and in particular whether ‘child’ was limited to legitimate children. This restriction was thought to be the natural meaning had the word appeared in a normal statute, but in relation to the interpretation of language that guaranteed fundamental rights the appropriate approach was to adopt ‘a generous interpretation … suitable to give to individuals the full measure of the fundamental rights and freedoms referred to’ and so avoid ‘the austerity of tabulated legalism’.65 This has been expressly endorsed as suitable for the substantive rights set out in the NZBORA.66

63 The complexities of the circumstances in which that will happen are beyond the scope of this work. 64 SI 1968 No 112. This contained various fundamental rights. 65 Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), 328–29. 66 Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439. This was endorsed by Cooke P in the Noort case, [1992] 3 NZLR 260, discussed below, at 268. See also Richardson J in that case, who noted at 276–77 that whilst not a constitution NZBORA had a ‘special character’ and dealt with fundamental rights; he added that the purpose of the statute, being to ‘affirm, protect, and promote’ those rights indicated that it was ‘expressive of a positive commitment to’ them and called for an interpretation ‘in that spirit’. Gault J agreed at 292, noting that ‘The fundamental rights affirmed in the Bill of Rights Act are to be given full effect and are not to be narrowly construed. Its provisions are to be construed to ensure its objects of protecting and promoting human rights and fundamental freedoms. It is a statute, not an entrenched constitutional document, but it is couched in broad terms requiring interpretation appropriate to those objects’. In Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56, Glazebrook J (for herself and Hammond J) noted: ‘[31] In interpreting the Bill of Rights Act, a generous interpretation designed to give to individuals the full measure of the rights guaranteed is required …’. She also noted the value of making use of the White Paper in assessing the scope of the right, which she said was the ‘usual’ approach (at [33]).

Limiting Clauses in Domestic Bills of Rights Instruments 217 Discussed below is the relationship between domestic courts, making rulings on the rights in the domestic statutes, and the transnational courts. However, on this discrete issue of citing standards arising elsewhere in international law, there have been instances of domestic courts doing this. For example, in A v Secretary of State for the Home Department (No 2),67 the non-admissibility of evidence that had been obtained by torture was confirmed by reliance on the Convention Against Torture, Lord Bingham noting that the ECtHR made reference to other international standards as part of the process of construing the ECHR. Similarly, the CRPD has been cited. In AH v West London MHT and Secretary of State for Justice,68 the Upper Tribunal—chaired by Carnwath LJ as he then was—had to consider the question of whether a patient in a psychiatric hospital was entitled to have a hearing of his case for release in public rather than the default position of it being held in private. In upholding the patient’s application, it was noted that the provisions in favour of public hearings in Article 6 ECHR were reinforced by the obligation undertaken by the UK under Article 13 of the CRPD to guarantee ‘effective access to justice for persons with disabilities on an equal basis with others’, such that the same access to a public hearing as that given to a non-disabled person deprived of his or her liberty should be granted to a disabled person. Among other things, this meant that cost factors could only prevent a public hearing if they were significantly disproportionate in the circumstances. This reliance on the CRPD is despite the UK government maintaining the traditional approach when it ratified the CRPD and its Optional Protocol (with a complaints mechanism), suggesting that it would be entirely for the UK to decide whether to follow any decisions made.69

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III. LIMITING CLAUSES IN DOMESTIC BILLS OF RIGHTS INSTRUMENTS

At the international level, as outlined above, use is made of general and specific limitations on rights, some express and some implicit: the foundational document, the UDHR, makes use mainly of a general limiting clause, whereas the ECHR and ICCPR, which aim to give effect to it, have no general limiting

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A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221. AH v West London MHT and Secretary of State for Justice [2011] UKUT 74 (AAC), [2011] MHLR 85. 69 See the Explanatory Memorandum on the Optional Protocol http://webarchive. nationalarchives.gov.uk/20121212135632/http://www.fco.gov.uk/en/about-the-fco/publications/ treaty-command-papers-ems/explanatory-memoranda/explanatory-memoranda-2009/160. OptionalProtocol.Misc6.UN, last accessed 26 October 2014, in which the Foreign and Commonwealth Office noted that: ‘10. The UK does not regard decisions of UN treaty bodies, including the Disabilities Committee, to be legally binding and Committee decisions regarding complaints brought against the UK will not be legally binding on it, although of course will carry considerable political weight. The Committee cannot award damages. It can recommend a course of action for the State Party to follow, and may have an influential effect, but it is for the State Party concerned to decide whether to accept the recommendation and how to implement it’. 68

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clause. This, combined with the non-legalistic but broad and purposive approach to human rights interpretation, suggests that the choice of methodology as to how it is expressed that some rights require to be balanced against others does not make a substantive difference. This next section explores how this has been translated to the domestic statutes.

A. The Statutory Language 55

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In the domestic statements of rights, which often express that the intention is to give effect to international standards (as seen in Chapter 4), there are also variations between whether use is made of specific limitations on rights or a general limiting clause, and often both together. The Canadian Charter 1982 uses a general limiting clause, as does the New Zealand Bill of Rights Act 1990, the ACT Human Rights Act 2004 and the Victorian Charter of Rights and Responsibilities Act 2006; the last three are designed to give effect to the ICCPR, which does not use general limiting language. In the UK and Ireland, the language of the ECHR is adopted, which suggests that the ECtHR’s approach is adopted: this is discussed below in relation to the duty imposed by the statutes to take into account the views of the transnational tribunal. The general limiting clauses follow two formats: the Canadian and New Zealand models simply set out the general language; the two Australian statutes set out the facts that should be weighed in the decision as to whether the limitation is justified. As will be seen in subsequent chapters, there is a general tendency for the Australian statutes to set out the factors that are otherwise implicit or have been delineated in case law. The language used is as follows: Canada—Canadian Charter of Rights and Freedoms 1982 Guarantee of Rights and Freedoms 1. Rights and freedoms in Canada The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. New Zealand—New Zealand Bill of Rights Act 1990 5. Justified limitations Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.70

70 Section 4 provides that enactments have effect even if they are inconsistent with the Bill of Rights.

Limiting Clauses in Domestic Bills of Rights Instruments 219 ACT—Human Rights Act 200471 28. Human rights may be limited (1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society. (2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. Victoria—Charter of Human Rights and Responsibilities Act 2006 7. Human rights—what they are and when they may be limited (1) This Part sets out the human rights that Parliament specifically seeks to protect and promote. (2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including— (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. (3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.72

In addition, there are instances where, as in the UDHR, language in the definition of the right is also subject to a limitation. So sections 21 and 22 of the NZBORA 1990 provide for protection against ‘unreasonable’ search and seizure and the right to liberty is expressed as one that is protected by the standard of arbitrariness. In the ACT Human Rights Act 2004, the right to life is protected by the arbitrariness standard (section 9), as is privacy (section 12(1)) and liberty (section 18); honour and reputation are protected by lawfulness (section 12(2)) and the freedom from forced work (section 26) is defined so as to permit court-ordered work or the need to require work during an emergency. There are similar provisions in the Victorian Charter of Rights and Responsibilities Act 2006: arbitrariness is the right to life standard 71

As enacted, there was just the language of section 28(1); it was amended in 2008. In addition to this use of limiting language as to the substance of the right, there is provision for legislative override in the Canadian Charter and the Victorian statute. This is discussed in Chapter 6. 72

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(section 9), the privacy standard (section 13(1)) and that applicable to liberty (section 21); for honour and reputation, lawfulness is the key (section 13(2)); freedom of expression is noted to bring with it duties that allow for restrictions that are ‘reasonably necessary’ to protect others or community interests (section 15(3)). The use of both a general limiting clause and particular limitations on rights is inelegant and involves superfluous verbiage. For example, the right to life is protected by the arbitrariness standard in both Australian statues.73 It is not conceivable that the general limitation clause allows a lesser standard than arbitrariness even when it is used in combination with the fact that life is not protected absolutely because of the definition of the right by reference to the arbitrariness standard; similarly with relation to liberty, since the need to avoid arbitrariness is the standard in the definition of the right and an arbitrary detention power is not justifiable under the general limitation clause. Note that the freedom of expression language in the ACT and Victoria differs in that the former is unlimited and so just subject to the general limitation clause whereas the latter includes both express limitations and the general limitation clause. It seems difficult to suggest that there is intended to be a substantively different standard in the two jurisdictions. The South African Constitution also has a general limiting clause, found in section 36:74 36. Limitation of rights 1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

73 In New Zealand, life can only be taken on grounds ‘consistent with the principles of fundamental justice’ (which may be taken as a reference to matters such as self-defence and the protection of others). 74 Section 33 of the Interim Constitution of 1993 had a similar provision, though phrased differently: ‘(1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation—(a) shall be permissible only to the extent that it is—(i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality and (b) shall not negate the essential content of the right in question’; some rights could only be breached if it was also necessary.

Limiting Clauses in Domestic Bills of Rights Instruments 221 It also contains a domestic derogation mechanism in relation to some rights, in section 37.75 The prerequisite is a state of emergency: under section 37(1), this requires an Act of Parliament and the prerequisites are:

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(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order. It is also provided that any legislation enacted in light of the emergency must be prospective rather than retrospective (section 37(2)(a)), and there are significant limits on any derogation from the Bill of Rights, set out in section 37(4) and (5):

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4. Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that— (a) the derogation is strictly required by the emergency; and (b) the legislation— (i) is consistent with the Republic’s obligations under international law applicable to states of emergency; (ii) conforms to subsection (5); and (iii) is published in the national Government Gazette as soon as reasonably possible after being enacted. 5. No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration, may permit or authorise— (a) indemnifying the state, or any person, in respect of any unlawful act; (b) any derogation from this section; or (c) any derogation from a section mentioned in column 1 of the Table of NonDerogable Rights, to the extent indicated opposite that section in column 3 of the Table.

This table provides the following protections: there can be no derogation from (i) the right not to have unfair discrimination based on race, colour, ethnic or social origin, sex religion or language, (ii) the right to human dignity, (iii) the right to life, (iv) the right not to be held in slavery or servitude; (v) some aspects of the rights of children and (vi) some aspects of the rights of those facing criminal prosecution. In addition, detailed provision is made in section 37(6) and (7) for a protective regime for anyone detained without trial during any state of emergency (though with a proviso, in section 37(8) that if the state of emergency arises in the context of international armed conflict, non-citizens detained are to be treated in accordance with the rules of international humanitarian law rather than these provisions).

75 There was a similar mechanism in section 34 of the Interim Constitution of 1993. There is a time limit of 21 days, though the National Assembly can extend it by up to 3 months at a time, but only if there has been a public debate in the Assembly and, from the second extension onwards there must be a majority of 60% for doing so: section 37(2)(b).

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Importantly, it is clear that the rule of law cannot be set aside during any emergency. So section 37(3) provides that: 3. Any (a) (b) (c)

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competent court may decide on the validity of a declaration of a state of emergency; any extension of a declaration of a state of emergency; or any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency.

As part of that assessment, the court will seek to apply directly international human rights standards, given the need for consistency with them, as set out in section 37(4). The express derogation power in the South African Constitution, it is to be noted, is additional to the power to impose limits on rights in normal circumstances and so suggests the limited situations in which rights may be voided. B. White Papers and Other Indications of Legislative Purpose

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The aim behind the general limiting clauses in the bills of rights statutes is revealed by the various pre-legislative documents. The NZBORA 1990 grew from a Draft Bill with accompanying White Paper in 1985.76 Clause 3 of the Draft Bill stated that: The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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This is in the same terms as what became section 5 of the Act, save that it has been made clear that this is subservient to the preservation of parliamentary supremacy in section 4 of the Act (which reflects the change from a Bill designed to be supreme law to an Act passed as an ordinary statute). However, the explanation for the use of a general limiting clause and the text used should have ongoing validity. The government position was to point out that ‘The rights stated in and guaranteed by the Bill are not absolute’,77 because it might have an inherent limit (freedom of expression does not permit commercial fraud) or might conflict with other rights (freedom of expression does not permit the release of prejudicial information that might affect a fair trial). So there was a need to have limits, and the question was how to do that. The White Paper turned to the mechanics that could be used: 10.25 Existing models suggest three ways of drafting the possible limits to the freedoms. The first is to include in each provision stating a freedom a separate statement of the permitted limits. This is in general the approach of the International Covenant. Consider, for freedom of expression, the formulation in Article 19(3).78 That approach appears as well in a number of Commonwealth 76

‘A Bill of Rights for New Zealand’: see Chapter 4 for an outline. ibid, p 71, para 10.24. 78 Article 19(1) sets out the right to hold opinions; Article 19(2) sets out the right to freedom of expression; then Article 19(3) states ‘3. The exercise of the rights provided for in para 2 of 77

Limiting Clauses in Domestic Bills of Rights Instruments 223 constitutions, particularly those influenced by the drafting of the European Convention on Human Rights. A second approach, at the other extreme, is to state no express limits at all. The United States Constitution provides a good example: Congress shall make no law … abridging the freedom of speech …79 The Courts do of course have to work out limits either by determining the scope of ‘speech’ or by reading in balancing and limiting factors. 10.26

Article 4 adopts an intermediate model, setting out a single limitation provision which is to be applied as appropriate to each of the separate freedoms. It is based closely on section 1 of the Canadian Charter. Among the reasons for choosing that limitation formula rather than the other approaches are the following: (a)

The Bill should recognise explicitly that there are limits on its freedoms. It is misleading (and could be thought irresponsible) to suggest otherwise. (b) The practice of courts under the different regimes suggests that the apparently greater precision resulting from the greater elaboration of detail in the Covenant and European models is just that—apparent. The particular judgement to be made remains essentially the same. Consider for example a dispute about the appropriate scope of the law of sedition. The Covenant would set this question: are the restrictions provided by the law necessary to protect national security or public order (ordre public). Under Article 3 the question would be: is that limit a reasonable one prescribed by law and such that it can be justified in a free and democratic society? Indeed, as indicated later, the proposed formula in some ways gives a better regulated direction to the courts. (c) There would be a danger that too much significance would be given to differences between different limitation provisions—differences which in the case of the Covenant can sometimes be the result of the accidents of drafting over the long period that the text was elaborated in the General Assembly of the United Nations. (d) So far as possible the Bill should be couched in short, simple, elegant and inspiring language. A long series of detailed exception provisions makes that impossible. (e) New Zealand courts will be able, in this respect as in others, to take advantage of the developing jurisprudence of the Canadian courts.

The important phrase from paragraph 10.26 is ‘to be applied as appropriate’: this raises the prospect that there might be no appropriate limitation. This in turn means that the indication in the White Paper that rights are not absolute overlooks the fact that some do in fact have that character, most obviously the right not to be held in slavery or not to be tortured. Any limits have to be ‘prescribed by law’. The White Paper noted that this could be in primary or delegated legislation or common law, and referred to

this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals’. 79

This is an extract from the First Amendment to the US Constitution.

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68

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ECtHR jurisprudence as to the need for the law to be accessible and sufficiently precise to allow people to know where they stand, and commented: 10.28.

69

It was then noted that the general limitation provision had the function of allocating a burden of proof: whoever sought to rely on a law or government action that presumptively breached a right had to show that it was a justified limitation.81 The merits of the test was then set out: 10.30.

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The fourth and central feature of the provision is the substantive test: is the limit a reasonable one? Can it be demonstrably justified in a free and democratic society? These questions present the courts with a difficult and important task trenching in some cases on matters of policy. The task is limited in one way by the Bill: it arises in respect only of the rights carefully stated in the body of the Bill. And it is limited as well, in a practical sense, by the material available in litigation.

The White Paper then outlined what the limiting language would achieve, noting at paragraph 10.31 that case law from various sources, including the ECtHR and the US, might assist in answering what a reasonable limit might be. In short, material arising from the two other methodologies of restriction— the specific language of the ECHR, the entirely implicit and judge-found limitations of the US Constitution—would be of value in construing the general limiting language. There was no expectation that the substance of the rights guaranteed would differ according to the methodology used. The approach expected to what became section 5 of NZBORA was outlined: 10.31

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… It is important to note that this position, which is consistent with basic principles of the certainty of the criminal law and the denial by the Rule of Law of unfettered discretion, does not stand in a legislature’s way. It does not say that a censorship law cannot be passed. Rather in essence it sends the matter back to the legislature. The legislature has not yet done its job which is to make law, to prescribe limits. It is that that the court is asking it to do.80

… In broad terms, what is involved is not just a careful reading of the precise words of Article 3. Rather the courts will be weighing (1) the importance of the rights infringed, (2) the nature of the infringement, and (3) the importance of the interest put forward to justify the limit. The European Court, in weighing such matters, has developed a principle of proportionality: is the restraint (2 above) proportionate to the legitimate aim pursued (3 above)? Obviously there would also have to be a rational connection between the restraint and the aim.

The White Paper revealed clearly that this was to be a judicial role, and also explained what would be involved: 10.32 Such a judicial role will mean that the court will have to be told of the purpose of the restrictive legislation. How is it evolved? What is its rationale? Changing attitudes to the use of legislative history and related practices relevant to challenges to the validity of regulations will assist in finding the answers to

80 81

See the discussion in Chapter 3 of the rule of law. White Paper para 10.29.

Limiting Clauses in Domestic Bills of Rights Instruments 225 those questions: (Re Simpson [1984] 1 NZLR 733, 747; Brader v Ministry of Transport [1981] NZLR 73). 10.33

Counsel and the courts will also draw on economic, statistical and social information relevant to the matters listed in the preceding paragraph.

10.34

Another category of extrinsic evidence will be useful: information about the state of law in other countries. The fact that a law similar to that under attack exists in the United Kingdom, the United States, Canada, Australia or Western Europe would tend to show that the law could be justified in a free and democratic society … This evidence would not of course be decisive. A judgment is to be made of the New Zealand situation and of the particular reason which gives rise to the legislation, but the comparative material would often be suggestive.

This makes it clear that the courts would be involved in weighing the proportionality of any limitation, that being a judicial role and requiring an assessment through the court process of whether the legislature had balanced rights correctly. This would occur, it was noted at paragraph 10.27, if ‘one of the guaranteed freedoms has been presumptively abridged’ by a statute. The example given was that ‘censorship legislation does restrict freedom of expression. The next question is whether the legislation can be justified …’. Naturally, the White Paper was in the context of a proposal that human rights be protected by a superior law, such that any conflicting statute would be set aside (though clause 23 provided that interpretations consistent with the Bill of Rights were to be preferred, so as to minimise the extent of striking down). As enacted, there remains an interpretive obligation (described in Chapter 8), but parliamentary supremacy was retained so that any statute that did not provide a justified limitation but could not be construed compatibly with rights remained in effect. There was also the following point made as to the absence of a derogation provision: 10.35

72

73

The Bill, unlike the Covenant (Article 4), does not deal expressly with emergency situations and the derogations from rights and freedoms that might be required. Such derogations would be dealt with in one of two ways—either by the derogations being tested against Article 3 or by legislation being enacted in accordance with the more onerous procedures of Article 28.82

Turning to the ACT, the Explanatory Statement to what started as the Human Rights Bill 2003,83 noted expressly that some rights would not be subject to any limits; and it also made it clear that the intention was to secure an equivalent outcome to that provided in the ICCPR (which uses individual limiting clauses rather than a general clause). The text is as follows: Clause 28 Human rights may be limited The purpose of clause 28 is to recognise that few rights are absolute and limits may be placed on rights and freedoms. It provides one standard against which to measure

82 Article 28 was the entrenchment provision, which allowed an amendment of the Bill of Rights if 75% of all legislators agreed or it was passed by a referendum. This was removed from the final version of the Act, so leaving it that any emergency derogation was tested by the reasonable limitation provision. 83 Available at www.legislation.act.gov.au/b/db_8266/default.asp (last accessed 20 June 2014).

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justifications for limits on human rights. However, it is not intended that clause 28 will operate in a uniform way in relation to all the rights expressed in Part 3. Some rights are absolute and distinguishable from non-absolute rights. The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment (clause 10(1) is an example of a right that is not subject to any limitation). The intention is to achieve coherence between the rights recognised in Part 3 and civil and political rights recognised in international human rights law. It is not intended that a Part 3 right will be subject to any greater limitation beyond those expressed in the Covenant. Whether a limitation is reasonable in respect of a person(s) in a special legal position will fall for determination in each individual case. Clause 28 requires that the limit must be authorised by a Territory statute or statutory instrument. The limitation must also be reasonable and one that can be demonstrably justified in a free and democratic society. Whether a limit is reasonable depends upon whether it is proportionate to achieve a legitimate aim. Proportionality requires that the limitation be: — — —

75

76

necessary and rationally connected to the objective; the least restrictive in order to accomplish the object; and not have a disproportionately severe effect on the person to whom it applies.

Again, the point arising is that a general limiting clause would not produce results different from the use of specific limits in relation to individual rights. This arises from the acceptance that some rights were absolute, such that the limiting clause would be of no effect, and that the application of the limiting language would differ according to the right involved. Further, it was made clear that the intention was to achieve the substantive outcome arising under the ICCPR, which uses the different technique of limits phrased differently in relation to some of the individual rights. Section 28(2) of the ACT statute was added subsequently (and so the material in the third paragraph of the White Paper extract above was thought to be implicit). The Explanatory Memorandum to the Human Rights Amendment Bill 2007 noted that the language of section 28(2) was designed to make these implied factors express. It said that the amended language is modelled on Section 7 of the Victorian Charter of Human Rights and Responsibilities Act 2006 and section 36 of the Bill of Rights in the Constitution of the Republic of South Africa 1996. Its intention is to provide guidance in the application of the general limitation clause in section 28(1) and to reduce its uncertainty. The general limitation clause in section 28(1) and the list of relevant factors in section 28(2) reflect what is known as the ‘proportionality test’. The concept of proportionality as the means of determining how and when human rights may be limited is a well accepted principle in international law and comparable human rights jurisdictions—see, for example, General Comment No 22 by the United Nations Human Rights Committee; in the context of the European Court of Human Rights, see Handyside v United Kingdom (1978–1979) 1 EHRR 737; under the United Kingdom Human Rights Act 1998, see London Regional Transport v Mayor of London [2001] EWCA Civ 1491, Brown v Stott [2001] 2 WLR 817, R v A (No 2); in Canada, see R v Oakes [1986] 1 SCR 103; and in New Zealand, see Noort v MOT [1992] 3 NZLR 260 (CA).

Limiting Clauses in Domestic Bills of Rights Instruments 227 Some of this case law is discussed below. In relation to the Victorian Charter of Rights and Responsibilities 2006, which informed the amendment to the ACT statute, the Explanatory Memorandum for the Bill as introduced84 noted that the general limitation clause ‘recognises that no right is absolute and that there may be various limitations imposed on any right’. This is overstating the matter, given that some rights cannot be limited (torture, for example). It was also recognised that there were also some specific limitations in relation to a particular right, although it was noted that ‘Parliament considers a general limitation to be preferable to limitations that operate on a clause-by-clause basis’. This choice was not explained. It was said to be based on New Zealand and South African models (as was picked up by the ACT amendment), and the likely effect was traced:

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The operation of this clause envisages a balancing exercise between Parliament’s desire to protect and promote human rights and the need to limit human rights in some circumstances. … Laws which are necessary to protect security, public order or public safety which limit human rights, are examples of laws which may be demonstrably justified in a free and democratic society.

What became section 7(3) was explained as being designed:

78

to safeguard against the possibility that the Charter might be misused to destroy or limit rights. Parliament recognises in the Preamble that human rights come with responsibilities and must be exercised in a way that respects the human rights of others. For example, it is not Parliament’s intention that the right to freedom of expression should be used to destroy the right to privacy.85

There is no indication in the White Paper of any aim to secure a different outcome from that applicable when there are individual limitations on rights. Indeed, it is noted that the Charter sometimes sets out individual limitations and it is not suggested that this has any supplemental impact.

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C. Leading Case Law as to the General Limiting Clauses Where general limiting clauses have been used in domestic settings, there has been some judicial disagreement as to the effect of the language, particularly in the context of the retention of the power to breach rights. This has led to consideration of the respective roles and institutional capabilities of the courts and legislatures in giving the necessary definition in a particular context to

84 Available from the Parliamentary website www.parliament.vic.gov.au/static/www.legislation. vic.gov.au-bills-archive.html (last accessed 20 June 2014); see pp 7–9. 85 See also R v Momcilovic [2011] HCA 34, at paras 22 and 24, per French CJ, noting that it had been described in parliamentary debates as involving a proportionality test.

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the broad phrases that typically make up a statement of a right. The majority view, however, is that the choice between a general limiting clause and specific restrictions is a semantic matter rather than one having a substantive effect, and that it falls to the courts to assess whether a particular legislative choice that might interfere with a right in fact does so in light of the definition of the right when account is taken of the competing interests. i. Canada 81

82

Given that Canada’s Charter was the starting point in the use of general limiting language in a domestic setting, not surprisingly its courts were the first to examine the issue of what effect they had; they did so, of course, in the context of a supreme law Constitution. The Supreme Court of Canada considered the question in R v Oakes,86 in which the issue—one which it will be seen is common in leading cases on the interpretation of bills of rights—was the propriety of a reverse burden of proof placed on a defendant in a trial relating to drug possession. Essentially, the prosecution had to prove possession of illegal drugs, and this then required the defendant to prove that the possession was not for the purpose of trafficking (with its higher sentence). But there was the presumption of innocence in section 11(d) of the Canadian Charter. At all levels of the court system in Canada it was found that the statute was not a justified limitation on the right to be presumed innocent.87 The reasoning process of Dickson CJ, for five of the seven justices,88 was as follows. First, it was necessary to explore the purpose of the right in play;89 the Supreme Court had decided this in R v Big M Drug Mart Ltd,90 in which the comment was made that this meant that a right ‘was to be understood, in other words, in the light of the interests it was meant to protect’, which turned the focus to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms …91

The presumption of innocence was identified as being a vital protection for life, liberty and security of the person and human dignity (given the risk of

86

R v Oakes [1986] 1 SCR 103. There was a preliminary point that the statutory language could not be construed to amount to only an evidential burden on the defendant, which would have been permissible. 88 The other two justices agreed with the outcome and expressly adopted the reasoning of the Chief Justice as to the relationship between the presumption of innocence and the provisions of section 1 of the Charter, noted below, and the reasons of the Ontario Court of Appeal in relation to all other issues. 89 [1986] 1 SCR 103 at [28]. 90 R v Big M Drug Mart Ltd [1985] 1 SCR 295, at 344. 91 Dickson J, for the Court, then added ‘The interpretation should be … a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the Charter’s protection’. This is the approach in Fisher, noted above. 87

Limiting Clauses in Domestic Bills of Rights Instruments 229 punishment and its various social, psychological and economic harms, stigma and ostracism): the gravity of the consequences meant that it was a ‘crucial’ right that was ‘essential in a society committed to fairness and social justice’ because it ‘confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise’.92 He then noted its recognition at common law and in various international human rights instruments, and suggested that it required the state to prove guilt beyond a reasonable doubt in accordance with a fair procedure (and also to require an evidential case before the accused had to call evidence), giving it a wide understanding.93 The next step was to conclude that previous case law that allowed reverse burdens of proof was to be rejected because the Charter had a supreme law status. So that turned attention to the question of whether a reverse burden was saved as a reasonable limitation, and the purpose of the substantive test in section 1 of the Charter. The Chief Justice commented: 63.

It is important to observe at the outset that s 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria (outside of s 33 of the Constitution Act, 198294) against which limitations on those rights and freedoms must be measured. Accordingly, any s 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms—rights and freedoms which are part of the supreme law of Canada. As Wilson J stated in Singh v Minister of Employment and Immigration, supra, at p 218: ‘it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.’

64.

92 93 94

A second contextual element of interpretation of s 1 is provided by the words ‘free and democratic society’. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

[1986] 1 SCR 103 at [29]. ibid at [30]–[32]. Namely the power of legislative override.

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This meant that the test of validity for an exception to a guaranteed right was stringent: ‘namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society’.95 And the burden was on the party seeking to justify the limit, given that they were exceptions and had to be ‘demonstrably’ substantiated.96 But this raised the question of what standard of proof should apply. The conclusion was that the civil standard was appropriate: 67.

85

This rigorous application also had to be understood in the context that the civil standard did not necessarily mean a mere balance in light of the context being that of constitutional protections: 68.

86

The standard of proof under s 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as ‘reasonableness’, ‘justifiability’ and ‘free and democratic society’ are simply not amenable to such a standard. Nevertheless, the preponderance of probability test must be applied rigorously.

Having regard to the fact that s 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning, ‘commensurate with the occasion’.97 Where evidence is required in order to prove the constituent elements of a s 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit. … A court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions. I should add, however, that there may be cases where certain elements of the s 1 analysis are obvious or self-evident.

In short, the process had to involve the court being informed as to what process was followed by the legislature: far from the traditional approach of not questioning proceedings in Parliament, the courts were placed into the position of reviewing the processes and alternatives available in order to assess whether the burden of proof had been met. Dickson CJ outlined then the approach to the substantive question arising in demonstrating what was reasonable: 69.

95 96 97

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’: R v Big M Drug Mart Ltd, supra, at p 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

[1986] 1 SCR 103 at [65]. ibid at [66]. The authority cited in the original is Bater v Bater [1950] 2 All ER 458 (CA) at 459.

Limiting Clauses in Domestic Bills of Rights Instruments 231 70.

Second, once a sufficiently significant objective is recognized, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves ‘a form of proportionality test’: R v Big M Drug Mart Ltd, supra, at p 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question: R v Big M Drug Mart Ltd, supra, at p 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’.

71.

With respect to the third component, it is clear that the general effect of any measure impugned under s 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

The nature of the judicial exercise in reviewing questions that had been answered by the legislature was made clear by the application of the principles to the facts. It was established that there were justified reasons to take action to combat drug trafficking, which was evidenced by national reports, international conventions, and reverse burdens of proof that had been introduced in other jurisdictions.98 This allowed the court to conclude that the legislature had a basis to contemplate breaching the presumption of innocence: 76.

98

The objective of protecting our society from the grave ills associated with drug trafficking, is, in my view, one of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases. Moreover, the degree of seriousness of drug trafficking makes its acknowledgement as a sufficiently important objective for the purposes of s 1, to a large extent, selfevident. The first criterion of a s 1 inquiry, therefore, has been satisfied by the Crown.

[1986] 1 SCR 103 at [73]–[75].

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But it failed at the second stage because it was not reasonably and demonstrably justified in light of Canada being a free and democratic society. Indeed, it fell at the first component of this hurdle, namely the rational connection test, since it was overly inclusive (given its application to even the smallest quantity, and the potential of the higher sentence, which was life imprisonment).99 This approach was confirmed in R v Chaulk,100 in which one issue was whether it was appropriate for a defendant to have to prove insanity. The Court adopted different approaches to this question: for six justices, there was a breach of the presumption of innocence, but for five it was reasonable limit and so saved, one justice dissenting on this point; three justices found that it was not a breach of the presumption of innocence because insanity is not relevant to elements of the offence or the existence of a defence but is a precursor to responsibility. Lamer CJ, speaking for five of the justices on this point,101 gave the following summary of the Oakes test: 1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must: (a) be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right or freedom in question as ‘little as possible’; and (c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.102

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In summary, the approach is to identify the content of the fundamental right by adopting a purposive approach; and then to assess whether a countervailing purpose justified an infringement, and if so to assess whether the method used to support this countervailing purpose was proportionate (which broke down into rational connection, absence of arbitrariness or irrationality, and having an impact on the fundamental right that was the minimum possible and was justified in light of the objective being secured). ii. South Africa

91

This approach was adopted by the South African Constitutional Court. In Zuma v The State,103 which considered the Interim Constitution, the issue was a provision that a confession made or recorded in front of a magistrate

99

ibid at [78]. R v Chaulk [1990] 3 SCR 1303. 101 Three who joined in his opinion and a fourth, Sopinka J, who agreed that it was a justified limitation. 102 [1990] 3 SCR 1303 at 1335–36. 103 Zuma v The State [1995] ZACC 1; 1995 (2) SA 642. 100

Limiting Clauses in Domestic Bills of Rights Instruments 233 was voluntary ‘unless the contrary is proved’ and whether this conflicted with various constitutional fair trial rights found in section 25 of the Interim Constitution, including the right to silence and the right not to be compelled to give evidence and the presumption of innocence. Kentridge AJ noted the wide purposive approach to constitutional rights (citing Minister of Home Affairs (Bermuda) v Fisher, noted above, and the Canadian jurisprudence), though adding that ‘regard must be paid to the legal history, traditions and usages of the country concerned, if the purposes of its constitution are be fully understood’104 and that it was necessary to remember the need to interpret the language rather than appeal in general to ‘values’, since that would replace the judicial role of interpretation with ‘divination’.105 He also noted that there were alternative approaches that turned on the nature of the limitation process: in places that did not have a general limiting clause, such as the US or Hong Kong, there might be a more flexible approach to the content of a right (ie building in the limits), whereas in the Canadian and South African context, it was possible to give a broader interpretation to the right because it could then be qualified.106 On the facts, it was concluded that the requirement on the defendant to prove that a confession was involuntary breached a right to silence after arrest (which was also identified as part of the presumption of innocence). This was found not to meet the constitutional test of reasonableness. This approach was upheld in the landmark ruling that struck down the death penalty as unconstitutional, State v Makwanyane and Another.107 Chaskalson P endorsed Zuma and its point as to the difference between a single and two-stage enquiry. The President also pointed to another difference with the US approach: there, the courts had to decide whether a legislature’s evaluation of the value of executions was clearly wrong, but: [102] Under our Constitution, the position is different. It is not whether the decision of the State has been shown to be clearly wrong; it is whether the decision of the State is justifiable according to the criteria prescribed by section 33. It is not whether the infliction of death as a punishment for murder ‘is not without justification’, it is whether the infliction of death as a punishment for murder has been shown to be both reasonable and necessary, and to be consistent with the other requirements of

104 ibid at [15]. See also Fose v The Minister of Safety and Security 1997 (3) SA 786, relating to whether the remedy for a breach of rights should include constitutional damages. This is discussed in Chapter 10. Ackermann J, for the majority of the Court, discussed jurisprudence as to constitutional remedies in various jurisdictions, including both where there was an express remedy clause and also where it had been fashioned from implication by the courts (as in Ireland or India), and suggested that the majority were recognised as public law remedies that had been crafted as such in order to overcome the vagaries of the common law. But he cautioned against the simple application of this jurisprudence because, inter alia, the Constitution required the development of the common law to be consistent with the Constitution’s principles (section 35(3) of the 1993 Interim Constitution and section 39(2) of the 1996 Constitution): 1997 (3) SA 786 [55]–[59]. 105 [1995] ZACC 1; 1995 (2) SA 642 at [17]–[18]. 106 ibid at [21]. It was noted that this would often but not necessarily produce the same outcome: see the discussion of the Hong Kong case law below. 107 State v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

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section 33. It is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party challenging it to show that it was not justified.108

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Chaskalson P also drew attention to the ECHR and the ECtHR’s doctrines of proportionality and the margin of appreciation. In light of the different language in the South African Constitution, it was said that the case law might have to be viewed with some caution: [109] The European Convention also has no general limitations clause, but makes certain rights subject to limitation according to specified criteria. The proportionality test of the European Court of Human Rights calls for a balancing of ends and means. The end must be a ‘pressing social need’ and the means used must be proportionate to the attainment of such an end. The limitation of certain rights is conditioned upon the limitation being ‘necessary in a democratic society’ for purposes defined in the relevant provisions of the Convention. The national authorities are allowed a discretion by the European Court of Human Rights in regard to what is necessary—a margin of appreciation—but not unlimited power. The ‘margin of appreciation’ that is allowed varies depending upon the nature of the right and the nature and ambit of the restriction. A balance has to be achieved between the general interest, and the interest of the individual.109 Where the limitation is to a right fundamental to democratic society, a higher standard of justification is required;110 so too, where a law interferes with the ‘intimate aspects of private life.’111 On the other hand, in areas such as morals or social policy greater scope is allowed to the national authorities.112 The jurisprudence of the European Court of Human Rights provides some guidance as to what may be considered necessary in a democratic society, but the margin of appreciation allowed to national authorities by the European Court must be understood as finding its place in an international agreement which has to accommodate the sovereignty of the member states. It is not necessarily a safe guide as to what would be appropriate under section 33 of our Constitution.

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The different language in section 36 of the Constitution of 1996 has given rise to a similar approach of assessing first the content of the right and then testing whether it is justified in light of the factors set out: namely the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve that purpose. For a recent example of

108 The reasons for finding the death penalty unconstitutional, set out at paras 144–46 were that the rights to life and dignity were the most important rights (and worth more than retribution), were enjoyed by criminals and could not be secured by objectifying them and using them for possible (and unproven) deterrence of others. In addition, errors were possible, there was an alternative of life imprisonment, and the use of this severe penalty was not shown to be materially less effective. As such there was no clear and convincing justification for the death penalty. 109 His Honour referred to R v France (1993) 16 EHRR 1, para 63. 110 His Honour referred to Handyside v United Kingdom (1979–80) 1 EHRR 737, para 49. 111 The cases cited were Dudgeon v United Kingdom (1981) 4 EHRR 149, para 52; Norris v Ireland (1988) 13 EHRR 186, para 46; Modinos v Cyprus (1993) 16 EHRR 485. 112 His Honour noted that ‘“the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one …” James v United Kingdom (1986) 8 EHRR 123, para 46. See also, Lithgow v United Kingdom (1986) 8 EHRR 329, para 122’.

Limiting Clauses in Domestic Bills of Rights Instruments 235 its application, see Road Accident Fund and Another v Mdeyide,113 in which the question was the propriety of the time limit of three years for making an application for compensation arising out of a road accident in light of the right of access to courts set out in section 34 of the Constitution. Having concluded that the provision, which did not require knowledge of the right to make a claim against the fund, was indeed a limit on the right of access to a court, Van der Westhuizen J (for the 8 to 1 majority of the Court) noted the following as the approach to be adopted: Is the limitation reasonable and justifiable? [63] Consequently, we have to consider whether this limitation of the right of access to courts meets the requirements of section 36 of the Constitution. Section 36(1) provides that the rights in the Bill of Rights may be limited in terms of law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. It requires taking into account all relevant factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve that purpose.

The law in question was of general application, and so the question was the reasonableness and justifiability of the limitation ‘in view of all relevant factors, including those mentioned in section 36(1)’,114 making the point that they are not exclusive. It was noted that the right of access to a court was clearly important, and so the main question was one of ‘proportionality’.115 The factors to be taken into account included the need to give adequate time to institute a claim, including taking account of socio-economic conditions (such as poverty and illiteracy) and the possibility that many citizens were unaware of how the legal system worked and so that they had a claim they could bring and had limited access to a lawyer), which had to be weighed against such matters as financial issues and the importance of being able to close accounts and the difficulties of litigation after it has been delayed. The overall conclusion was that the limitation imposed was reasonable and justifiable.

113 Road Accident Fund and Another v Mdeyide [2010] ZACC 18; 2011 (1) BCLR 1 (CC), 2011 (2) SA 26 (CC). For the development of the jurisprudence, see De Lange v Smuts NO and Others 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC); National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC), 1998 (12) BCLR 1517 (CC), in which Ackermann J for the Court said ‘34. .. The relevant considerations in the balancing process are now expressly stated in section 36(1) of the 1996 Constitution to include those itemised in paragraphs (a) to (e) thereof. In my view this does not in any material respect alter the approach expounded in Makwanyane, save that paragraph (e) requires that account be taken in each limitation evaluation of “less restrictive means to achieve the purpose [of the limitation].” Although section 36(1) does not expressly mention the importance of the right, this is a factor which must of necessity be taken into account in any proportionality evaluation’; and Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC), 2001 (2) BCLR 152 (CC). 114 [2010] ZACC 18, 2011 (1) BCLR 1 (CC), 2011 (2) SA 26 (CC), at [64]. 115 ibid, at [66].

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One issue that arises in this context is the approach of the Court to the justification. The language of section 36 indicates that the state has to demonstrate how the relevant provision is justified. Guidance on this has been given in Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others,116 in which the Court struck down legislation depriving serving prisoners of the right to vote. Chaskalson P, commenting on the burden of demonstrating that legislation was saved by section 36, set out the importance of recognising that justifying a legislative choice was not the same as establishing a fact: [34] … it is … an onus of a special type. It is not the conventional onus of proof as it is understood in civil and criminal trials where disputes of fact have to be resolved. It is rather a burden to justify a limitation where that becomes an issue in a section 36 analysis. … [35] This calls for a different enquiry to that conducted when factual disputes have to be resolved. In a justification analysis facts and policy are often intertwined. There may for instance be cases where the concerns to which the legislation is addressed are subjective and not capable of proof as objective facts. A legislative choice is not always subject to courtroom fact-finding and may be based on reasonable inferences unsupported by empirical data. When policy is in issue it may not be possible to prove that a policy directed to a particular concern will be effective. It does not necessarily follow from this, however, that the policy is not reasonable and justifiable. If the concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify action taken to address them. [36] Where justification depends on factual material, the party relying on justification must establish the facts on which the justification depends. Justification may, however, depend not on disputed facts but on policies directed to legitimate governmental concerns. If that be the case, the party relying on justification should place sufficient information before the court as to the policy that is being furthered, the reasons for that policy, and why it is considered reasonable in pursuit of that policy to limit a constitutional right. That is important, for if this is not done the court may be unable to discern what the policy is, and the party making the constitutional challenge does not have the opportunity of rebutting the contention through countervailing factual material or expert opinion. A failure to place such information before the court, or to spell out the reasons for the limitation, may be fatal to the justification claim. There may however be cases where despite the absence of such information on the record, a court is nonetheless able to uphold a claim of justification based on common sense and judicial knowledge.117

116 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others [2004] ZACC 10, 2005 (3) SA 280 (CC), 2004 (5) BCLR 445 (CC). See also Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC), 2001 (8) BCLR 765 (CC) at [19]; and Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (3) SA 345 (CC), 2003 (4) BCLR 357 (CC). 117 The President cited Phillips and Another v Director of Public Prosecutions, Witwatersrand Local Division and Others 2003 (3) SA 345 (CC), 2003 (4) BCLR 357 (CC) at [20].

Limiting Clauses in Domestic Bills of Rights Instruments 237 [37] … In this process, different and sometimes conflicting interests and values may have to be taken into account. Context is all important and sufficient material should always be placed before a court dealing with such matters to enable it to weigh up and evaluate the competing values and interests in their proper context.118

In summary, section 36 involves a judgment by the Court, in which a burden of persuasion lies on the state body seeking to uphold a statute that breaches the rights in the Constitution: in approaching the merits, the Court will assess whether the statute conflicts with a right and will then determine with the policy supporting the conflicting statute is one that satisfies the test for justification in section 36. This involves the court assessing whether the state is able to justify its policy position.

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iii. Hong Kong In R v Lee Kwong-cut,119 the validity of reverse burdens of proof was considered (and upheld in one situation but not another) in light of the Hong Kong Bill of Rights Ordinance 1991,120 which was designed to give effect to the ICCPR. It provided that existing legislation should be given a construction consistent with the Ordinance and was otherwise to be considered to be repealed (section 3); future legislation was to be construed so as to be consistent with the ICCPR ‘to the extent that it admits of such a construction’ (section 4). In short, this was an interpretive requirement for the future and a general repeal clause for past legislation. However, it did not involve a general limiting clause. On the question of the approach to adopt, Lord Woolf for the Privy Council noted the need for a generous interpretation of human rights provisions,121 and then commented about the value of comparative (US and Canada) and transnational (ECHR) jurisprudence in the following terms: Such decisions can give valuable guidance as to the proper approach to the interpretation of the Hong Kong Bill, particularly where the decisions in the other jurisdictions are in relation to an article in the same or substantially the same terms as that contained in the equivalent provisions of the Hong Kong Bill. However, it must not be forgotten that decisions in other jurisdictions are persuasive and not binding authority and that the situation in those jurisdictions may not necessarily be identical to that in Hong Kong. This is particularly true in the case of decisions of the European Court of Human Rights … [which] is not concerned with directly with the validity of domestic legislation but whether … a state has in its domestic jurisdiction infringed the rights of a complainant under the European Convention; whereas, in the case of the Hong Kong Bill, the Hong Kong courts and, on appeal the Board,

118 See also Mdeyide, where it was noted ‘[67] The state—in this case the RAF and the Minister—has to demonstrate that the limitation is reasonable and justifiable. This duty is not the same as the evidentiary onus of proof’. 119 R v Lee Kwong-cut [1993] AC 951. 120 Laws of Hong Kong, c383. 121 [1993] AC 951 at 966B–E, citing inter alia Minister of Home Affairs v Fisher [1980] AC 319.

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have to determine the validity of domestic legislation having regard to the entrenched provisions of the Hong Kong Bill.122

99

He also noted US jurisprudence, which, despite any express limiting language, provided for an ‘implicit degree of flexibility’123 which ‘allows a balance to be drawn between the interest of the person charged and the state’ and so allowed for the ‘situations where it is clearly sensible and reasonable that deviations should be allowed from the strict application of the principle that the prosecution must prove the defendant’s guilt beyond reasonable doubt’.124 But he noted that the propriety of an exception would turn on ‘whether it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines’.125

100

In other words, there is a balancing act to be adjudicated which weighs, on one side, the importance of the principle and, on the other, the reasonableness of a deviation: this will involve taking into account the extent of the departure, whether the prosecution still have to prove the essential elements of the offence, and the rationality of any presumptions involved. Lord Woolf noted that the Canadian approach involving a justified limitation clause might produce the same result, but by a different process of giving a wide scope to a right and then applying the limiting clause rather than construing the right as having limits to it. There were, however, practical consequences from a two-stage process, namely the formal criteria that had been developed at the second stage.126 This meant that it was not necessary for the judges of Hong Kong to follow it, albeit that it might help in borderline cases.127 However, since there is no obvious reason why the outcomes should differ according to the process, and the Hong Kong approach necessarily involved a balancing process (which is express in the Canadian approach), it seems legalistic to devalue the alternative methodology. The Hong Kong Court of Final Appeal has recognised this. The relevant parts of the Bill of Rights Ordinance no longer apply, but the Basic Law applies the ICCPR by reason of Article 39 and provides that pre-existing criminal trial rights continue by reason of Article 87. In HKSAR v Lam Kwong Wai,128 the Court found an impermissible breach of the presumption of innocence in a reverse onus provision (which

101

122

[1993] AC 951 at 966F–967A. ibid at 969D. 124 [1993] AC 951 at 969D–E. He gave examples: a requirement that the defendant prove he had a licence if that provided a defence, since it would be easy for the defendant to prove a licence and ‘virtually impossible’ for the prosecution to prove the absence of a licence, and insanity. Both these examples are questionable: since the very concept of a licence entails permission given by a state agency to carry out a task, it should be relatively easy for the prosecution to investigate and demonstrate the absence of a licence; and Lord Denning had suggested in DPP v Bratty [1963] AC 386 that the prosecution were able to adduce evidence of insanity. 125 [1993] AC 951 at 969G. 126 ibid at 971H–972A. 127 ibid at 972D–973A. 128 HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574. 123

Limiting Clauses in Domestic Bills of Rights Instruments 239 was remedied by construing it to impose an evidential burden). Mason NPJ noted of the presumption of innocence language in the ICCPR and the Hong Kong Bill of Rights: 21.

Although these rights are expressed in absolute terms and are not subject to explicit exceptions or qualifications, it has generally been accepted elsewhere that an encroachment on these rights by way of presumption or reverse onus of proof may be justified if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that legitimate aim … In principle, the same approach applies to the Basic Law. … the presumption is not an absolute right and is capable of derogation but the derogation must be justified.129

The sequence established was (i) ascertain the meaning of the statute being challenged (on normal common law lines), (ii) determine whether that breached the right in play, and if so (iii) determine whether that could be justified, and if not (iv) determine whether it could be saved from invalidity by applying a construction designed to secure compliance with the Basic Law.130 This reveals that the presence or absence of general limiting language in the way that fundamental rights are defined does not make a significant difference because a balancing approach will always be required if the right in play is one that might be subject to an express or implied limitation. At most, the existence of general limiting language simply has an impact in providing the content of the balancing test that has to be applied. In the Canadian or South African situation, the approach of the courts is to assess the normal meaning of the language, to assess whether there is a breach of the presumption of innocence, if so to ask whether it is a justified limitation (at which point they will make use of the statutory test for whether the limitation is justified), and if so the relevant consequence will follow (which may involve striking down). In Hong Kong, the approach of Mason NPJ indicates that the same process is followed, with the real difference being that the justification provision arises from a judicially developed test (arising as a matter of implication from the substantive right in play) rather than the judicial interpretation of a limitation provision in the constitutional document in place. In supreme law contexts, the challenged provision will be impliedly repealed if it cannot be interpreted away. In the New Zealand and Australian jurisdictions, the end result may be different in light of the absence of any power to strike down or consider legislation that breaches rights to be impliedly repealed. Does the differential outcome have an impact on the process of determining the outcome of the initial question involved, namely whether there is a breach of a fundamental right as appropriately limited? Differing views have been expressed on this, albeit that the majority view is that the same approach is followed.

129 130

He cited ECtHR, UK, South African and Hong Kong jurisprudence. (2006) 9 HKCFAR 574 [29].

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iv. New Zealand 105

106

The Oakes test has been important in New Zealand, perhaps not surprisingly in light of the clear indication in the White Paper that the Canadian Charter was the model (and the similarity of the language). There is the significant difference that the obligation of the New Zealand courts is to seek to find a rights-consistent meaning if that is a possible interpretation (section 6 of the NZBORA, discussed in Chapter 8), but otherwise to enforce the relevant statute despite it having the effect of breaching rights (section 4). It is in this process that there is the general limiting clause (section 5). The structure has led to two main questions: (i) what is the approach to the permitted limitations (which includes the question of whether the substantive right is to be interpreted as having the permitted limitation built in)? (ii) how does the question of whether it is a reasonable limitation fit with the question of the interpretive obligation and the upholding of the statute if the interpretation is not rights consistent? The suggested answers to these questions have been refined over time, but there has been disagreement as to the proper judicial role in light of the enactment of the NZBORA as an ordinary statute rather than a supreme law one. A significant early case decided by a five-judge Court of Appeal was Ministry of Transport v Noort; Police v Curran.131 This reveals the clear differences of view available on the question of the role of the judiciary in the context of whether a right is justifiably limited. The essential question was whether being detained for breath-testing procedures brought with it a right to consult a lawyer: this is a right for all detainees (in section 23(1)(b) of NZBORA), and so the question was whether the legislation relating to the breath-testing procedures could or should be construed consistently with the right. Richardson J gave the following account of the purpose and operation of section 5:132 (i) it recognised that there are limits on rights, but (ii) ‘guards those rights by insisting that they may be regarded as modified only where the stringent tests laid down are met’; (iii) the need for a law to be in place would be illuminated by ECtHR and Canadian jurisprudence; (iv) those relying on section 5 had to show that the challenged provision met the test of reasonableness and being demonstrably justified; (v) this inquiry ‘will properly involve consideration of all economic, administrative and social implications’ and the weighing of: (1) the significance in the particular case of the values underlying the Bill of Rights Act; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights Act; (3) the limits sought to be placed on the application of the Act provision in the particular case; and

131 132

Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260. ibid at 282–84.

Limiting Clauses in Domestic Bills of Rights Instruments 241 (4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits. Finally, he noted that the need to enforce the statute despite a breach of rights (as provided for in section 4) would arise only once there had been consideration of whether it was a justified limitation and any application of the interpretive obligation (though he noted it was ‘not immediately apparent whether the Court should turn first to s 5 or to s 6’). Cooke P emphasised the importance of section 4 first. And he downplayed the potential for section 5 to have any role in the courts: their task would be to assess whether a statute breached a right and ascertain whether a rightsconsistent interpretation could be reached, and if not to enforce the statute. Section 5 was something that was for the political process, including the report of the Attorney-General as to whether a Bill was consistent with the rights (on which see Chapter 6).133 Cooke P and Richardson J reached the same conclusion on the facts, namely that there should be a reasonable opportunity for obtaining legal advice by telephone; the Crown accepted this would not significantly undermine the procedures for obtaining a test result. The former found that the right arose from the NZBORA and that the testing statute was not inconsistent with this; the latter noted the existence of the right, that it was not ousted by the other statute, but commented that any such ouster could not be reasonable or demonstrably justified. Gault J agreed with Cooke P that section 5 was not for the courts (and he also dissented on the result), Mackay J agreed with Richardson J, and Hardie Boys J set out an approach consistent with Richardson J, commenting that:134 sections 4, 5 and 6, must be read as a whole. … Section 6 is directed to the meaning of the other enactment, and does not permit any limitation or qualification of the Act’s rights and freedoms. It rather treats them as absolutes, and so, on its own, could allow quite wide scope for the application of s 4. Yet there must be many a statute which can be read consistently with the Act’s rights and freedoms if it is accepted that the statute has imposed some limit or qualification upon them; in other words, that although the statute cannot be given a meaning consistent with the Act’s rights and freedoms in their entirety, it can be given a meaning consistent with them in a limited or abridged form. It is obviously consistent with the spirit and the purpose of the Bill of Rights Act that such a meaning should be adopted rather than that s 4 should apply so that the rights and freedoms are excluded altogether. Section 5 in my opinion is designed to enable such an approach to be taken. It is directed not only to ‘acts done’ by the persons or agencies mentioned in s 3, and

133 ibid at 271–73. See also his comments in Temese v Police (1992) 9 CRNZ 425 that argument before a court as to whether an enactment is a limitation justified under s 5 ‘may have the drawback that, if the Court were to say that the limitation was unjustified yet overridden by the enactment, the Court could be seen by some to be gratuitously criticising Parliament by intruding an advisory opinion’. However, he perhaps softened his approach by saying ‘But possibly that price ought to be paid’. 134 [1992] 3 NZLR 260 at 287.

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to the Attorney-General’s responsibilities under s 7, but it also has a reconciling or bridging role between the two sections between which it is placed, s 4 and s 6. Thus in terms of s 4 there will be inconsistency between an enactment and a right or freedom only if after construing it in accordance with s 6 there is no room within it for the right or freedom even in modified or abridged form. To view the matter in this way is no arrogation by the Court of the responsibility of determining what is a reasonable limit, and what can be demonstrably justified in a free and democratic society. Rather it is to see s 5 as a mechanism to secure recognition of the Act’s rights and freedoms to the fullest extent that is reasonable and practicable in a specific statutory context.

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In a subsequent five-judge Court of Appeal judgment, this time unanimous, in the case of Moonen v Film and Literature Board of Review,135 the approach of the bare majority in Noort was followed and guidance given as to the steps to follow; this was reiterated in Moonen v Film and Literature Board of Review (No 2),136 though the guidance was noted not to be the sole method available to courts. This has now been endorsed by the Supreme Court in the leading case of R v Hansen,137 though with the Chief Justice dissenting on the role of section 5 in light of her view that it should not be used as a way to judicially review legislation. The case was also a reverse burden of proof case in relation to drugs: possession of over a specified quantity led to a presumption of possession for the purpose of supply unless the contrary was shown. The majority determined that, as had the Canadian courts in Oakes, they could assess whether the legislature had been justified in breaching the presumption of innocence. Blanchard J applied the comments of Richardson J in Noort as to the weighing of the various features and the Oakes test as summarised in Chaulk.138 He suggested: [60] If the natural meaning of a statutory provision does appear to limit a guaranteed right, the appropriate next step is to consider whether that limit is a justified one in terms of s 5. If it is, the meaning is not inconsistent with the Bill of Rights in the sense envisaged by s 6, and should be adopted by the Court. It is only when that natural meaning fails the s 5 test that it is necessary to consider whether another meaning could legitimately be given to the provision in issue. If the words of the provision in their context are not capable of supporting a different and Bill of Rights-consistent meaning, s 4 requires the Court to give effect to the provision in accordance with its natural meaning notwithstanding the resulting inconsistency with the Bill of Rights. … [65] … any limitation on a guaranteed right should be accepted as demonstrably justified only after the Court has worked through a careful process. In the case of some

135 136 137 138

Moonen v Film and Literature Board of Review [2000] 2 NZLR 9. Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754. R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. ibid at [64].

Limiting Clauses in Domestic Bills of Rights Instruments 243 rights, no limitation could be justified. The overarching rights not to be tortured139 or tried unfairly,140 for example, can have no meaningful existence as anything less than absolute protections. By contrast, within the contextually defined concept of fair trial sit some ‘subsidiary rights’ such as that to counsel141 which, while expressed in unqualified language, may be legitimately qualified in their expression in particular circumstances without undermining the integrity of the criminal justice system. And no one would dispute that many of the freedoms enumerated in Part 2, for example freedom of expression, are in practice routinely limited to a greater or lesser extent by other concerns, both within and external to the Bill of Rights, which are demonstrably justified in a free and democratic society.

Tipping J suggested a sequence of steps should be followed (which was a revised version of what had been set out in the Moonen cases), which he summarised as follows:

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[92] A summary may be helpful: Step 1. Ascertain Parliament’s intended meaning. Step 2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom. Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5. Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament’s intended meaning prevails. Step 5. If Parliament’s intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted. Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.

McGrath J noted provisions in the White Paper and statements in parliamentary debates that made clear that the courts were to be able to assess the validity of legislation against the section 5 test. This meant that: [190] … Section 4 is the provision of last resort, which the legislature has directed be applied when the mechanisms for protecting the rights do not operate, because of a clearly expressed contrary legislative intention. [191] As between ss 5 and 6 it will usually be appropriate for a Court first to consider whether under s 5 there is scope for a justified limitation of the right in issue. The stage is then set for ascertaining if there is scope to read the right, as modified by a justifiable limitation, as consistent with the other enactment.

139

Section 9 of the NZBORA. Section 25(a) of the NZBORA. 141 Section 24(c). His Honour cited R v Condon [2007] 1 NZLR 300 (SCNZ) for the proposition. 140

112

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His summary was that a court should approach its task in the following sequence (though he was clear that this was not prescriptive and he thought it consistent with what Blanchard and Tipping JJ had indicated): [192] … first to consider whether the circumstances fall within the natural meaning of the statutory provision being applied, then secondly to ask whether on that meaning there appears to be an inconsistency with a protected right. If so, the third inquiry is whether the limit on the right is a justifiable one in terms of s 5. If the limit is justifiable there is no inconsistency with the Bill of Rights. If not, then fourthly consider whether there is another meaning available through which the statute can be read consistently with the right. If there is no such other meaning, finally, the stage is reached that the natural meaning must be applied as that is required by s 4 of the Bill of Rights.

114

Anderson J also suggested that section 5 defined the scope of the substantive right (though some rights could not be limited), and was to be used before any interpretive obligation.142 He accepted that there was a point in a court commenting that legislation was improper even if it had to be followed by reason of section 4 (though he added that a court should be sure that it was not overstepping the mark of its expertise, which might mean that such advisory opinions might be improper): [267] In some cases that method may involve a finding by a Court that Parliament has enacted legislation that cannot be demonstrably justified in a free and democratic society. Although such legislation cannot be struck down, the Court’s opinion will have a social value in bringing to notice an enactment which is inconsistent with fundamental rights and freedoms. It is indicative of the strength of our democratic institutions that Parliament, although not countenancing its being overruled, has, by the terms of the Bill of Rights Act, accepted the prospect of judicial assessment of the consistency of its enactments with affirmed rights and freedoms. [268] It is important to understand that although a Court may express what amounts to an advisory opinion, its perspective may be constrained by the limits of its own process and the scope of its inquiry. Its process will have the advantage of legal expertise but, sometimes, the disadvantage of lack of generality. The scope of its inquiry will be constrained by the nature of its judicial process. These limitations may warrant a margin of appreciation in circumstances where they significantly affect the Court’s inquiry. … it must be recognised that in respect of some rights and freedoms there will be little or no room for marginalisation. In any event, the Courts should not be diffident about calling attention to encroachment on fundamental rights and freedoms.

142

[2007] NZSC 7, [2007] 3 NZLR 1 [262]–[272].

Limiting Clauses in Domestic Bills of Rights Instruments 245 His Honour also suggested a modified version of the test that had been summarised in R v Chaulk.

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[272] I think the form of the test summarised in Chaulk could be refined without diminution of its core elements, which I accept. I would recast it as follows: A limitation of an affirmed right or freedom will not be demonstrably justified in a free and democratic society unless it: (a) relates to concerns which are pressing and substantial in a free and democratic society; and (b) is rationally connected to its intended purpose; and (c) in light of its intended purpose is the least possible impairment; and (d) is a proportional response to the concerns.

The Supreme Court majority makes it clear that the function of the court is to work out what might be considered as the quantum of the right, that is with whatever limitations are appropriate and whether they come from the clause that defines the right or the general limiting clause (and remembering that some may not be subject to a limitation) before turning to the question of whether it is possible to secure a rights-consistent meaning. Naturally, if there is no conflict between the relevant statute and the right as understood with its limitations, there will be no need for any interpretive exercise because there will be no conflict on which section 6 has to bite. The Chief Justice dissented because the approach of the majority ‘would set up a soft form of judicial review of legislation which seems inconsistent with s 4 of the Act’ and ‘risks erosion of fundamental rights through judicial modification of enacted rights according to highly contestable distinctions and values’.143 Rather, she suggested that the courts should interpret what the rights meant (including any limitation on the definition of the right) and then determine whether the statute could be interpreted consistently with that (under section 6) but without any reference to section 5.144 In other words, Her Honour’s view is that the choice made by the legislature as between a specifically limited right (which the courts can interpret) and a general limiting clause (which they cannot) makes a significant difference as to what the courts can do. So, she would presumably find that different results were intended in relation to freedom of expression in the ACT (where section 16 of the Human Rights Act 2004 sets out an unlimited right) and Victoria (where section 15(3) of the Charter provides for lawful and reasonably necessary limitations for various other purposes), despite the general limiting clause in both statutes. This may be thought to be surprising in the absence of a clear statement from legislators that this was the purpose they had in mind. It is also to be noted that she suggested that interpretation of what the right meant could take into account the international context: but that involves alternative methodologies (either with a general limiting clause, the UDHR, or without,

143 144

ibid at [6]. ibid at [15]–[18].

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the ICCPR, the ECHR) but with no apparent suggestion that the one used should make a difference to the substance of the right, and in both cases leading to a defined construct. As for her concerns that rights would be eroded if they were modified, the simple fact is that in the texts of the international materials, which the statutes purport to domesticate, the rights in play are limited in many instances (whether expressly or as a matter of balance); and the obligation of the state is to secure those rights as subject to any appropriate limitation. In doing this, the judges can ensure that the focus remains on the right and that any limitation is subject to scrutiny in the context of the importance of upholding the right. It is worth noting that in relation to New Zealand’s Human Rights Act 1993, which gives supplemental protection to the right not to be discriminated against, set out in section 19 of NZBORA, the statutory test for unlawful discrimination by a public body (which is contrary to Part 1A to the 1993 Act) makes use of the approach set out by the majority. Section 20L(2) provides that … an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission— (a) limits the right to freedom from discrimination affirmed by that section; and (b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.

v. Australia 121

The difference of judicial view in New Zealand has also featured in relation to the Australian statutes. The main case is R v Momcilovic,145 again involving a drugs offence, where the focus was on a Victorian statutory provision that deemed a person to possess drugs found in their premises unless the contrary is proved and whether this breached the presumption of innocence. In the end, the deeming provision was found not to apply to the offence charged, but the High Court addressed the human rights issues arising, including the role of the general limiting language in section 7(2) of the Charter of Human Rights and Responsibilities Act 2006. The Victorian Court of Appeal had specifically endorsed and applied the minority views of Elias CJ from Hansen, noting that [110] … If the ‘reasonable limits’ provision had to be applied before the meaning of legislation was finally ascertained, there would inevitably be inconsistencies in its application and uncertainties in interpretation. Judges and tribunal members, as well as public officials, would have to determine whether the relevant provision imposed a justifiable limit before determining finally how the provision was to be interpreted.

145 R v Momcilovic Court of Appeal, Victoria [2010] VSCA 50, (2010) 25 VR 436, High Court of Australia [2011] HCA 34.

Limiting Clauses in Domestic Bills of Rights Instruments 247 We cannot accept that this is what Parliament is to be taken to have intended. Certainly there is nothing in s 32(1) to suggest that it was Parliament’s intention.

Before the High Court, all parties supported the view of the majority in Hansen (save that an amicus brief supported the conclusion of Court of Appeal).146 The judges, though not unanimously, supported the contention of the parties. Gummow J (with the agreement of Hayne J on the point) endorsed the view of the majority in Hansen that the interpretive obligation applied to the rights ‘as identified and described …, including, where it has been engaged, s 7(2)’.147 (He had noted that some rights were expressed in absolute terms whereas others were subject to limitations.148 He went on to note that there were a number of open questions arising from the terms of section 7(2), namely (i) whether the possibility that rights could be ‘subject under law’ to limits could include limits imposed by the common law; (ii) what was the standard of evidence by which the permissible ‘reasonable limits’ on rights were shown to be ‘demonstrably justified’; and (iii) whether the rights that were defined in a way that included limitations were subject to a further qualification under section 7(2).)149 Similarly, Heydon J noted that ‘Section 7(2) gives a court power to “determine what legal rights and obligations should be created” by giving it the power to decide the legal extent of the limit to a human right’.150 Crennan and Kiefel JJ, in a joint judgment, were also of the view that section 7(2) was part of the process of defining the content of a right: they relied on the Explanatory Memorandum to the Bill as introduced and the many precursors (in New Zealand, Canada, South Africa, and the proportionality review that was familiar in several contexts).151 They commented that: 571.

147 148 149 150 151 152

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Section 7(2) is an acknowledgement that Charter rights are not absolute or always completely consistent with each other. … It would appear to follow that if a limitation or restriction effected by a statutory provision is demonstrably justified, a Charter right is to be read and understood as subject to such a limitation or restriction. Section 7(2) may therefore be said to have something of an interpretive effect directed to the content of the Charter right …

Bell J also adopted this line, citing Blanchard J in Hansen and noting that it recognised ‘the central place of s 7 in the statutory scheme’ because the Charter accepted ‘that rights are not absolute and may need to be balanced against one another’.152 The approach of these judges contrasted with the position of French CJ, whose view was that section 7(2) qualified the extent of the protection of the

146

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[2011] HCA 34 at [677], noted by Bell J. ibid at [168]. ibid at [163]. ibid at [165]. ibid at [428]. ibid at [547]–[564]. ibid at [683].

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right but did not affect the right. This was, he suggested, the result of the ‘logical structure’ of the section, which ‘does not affect the content of those rights’ but rather makes them ‘the subjects of the limits to which it refers’ such that It qualifies the extent of their protection and promotion. It has the appearance of a parliamentary reservation, which may be applied from time to time by leaving unamended existing legislation which encroaches on human rights or by enacting new legislation which does so.153

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Heydon J, it is worth noting, believed that the judicial task mandated by section 7(2) rendered it unconstitutional because the ‘difficult tasks’ created are ‘not tasks for judges’ as they involve ‘debates that call for resolution by legislative decision’, turning on ‘questions of expediency, social policy and morality’. He added that the evidence on which the decisions were to be based went beyond the evidence that courts could consider.154 He noted that, ‘illustrious’ though its origins were in its Canadian and South African forebears, ‘its language is highly general, indeterminate, lofty, aspirational and abstract. It is nebulous, turbid and cloudy’,155 and beyond the judicial skill set. In summary: Section 7(2) requires the court to carry out the function which the legislature failed to carry out—refashioning the ss 8–27 human rights by working out what reasonable limits exist. The court is thus legislating through s 7(2) by giving a meaning to a particular ‘human right’ which Parliament did not give. The legislature, instead of deciding for itself which rights are limited and in which circumstances, has delegated those tasks to the courts.156

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Heydon J was also clear that it was problematic for courts to investigate not only what a right involved but also whether any limitation might be reasonable and justified: The limit to a human right must be ‘reasonable’. What is the relevant criterion of reason? What can be ‘justified’—and not only justified, but ‘demonstrably’ justified. What is the difference between that which is ‘justified’ and that which is ‘demonstrably justified’? The shrill, intensifying adverb merely highlights the vacuity of the verb.157

128

Bell J took a very different view, noting: 684.

153

If the literal or grammatical meaning of a provision appears to limit a Charter right, the court must consider whether the limitation is demonstrably justified by reference to the s 7(2) criteria. As the Commonwealth submitted, these are criteria of a kind that are readily capable of judicial evaluation.158

ibid at [23]. ibid at [431]. 155 ibid at [429]. 156 ibid at [434]. 157 ibid at [428]. 158 Citing [fn 967] Thomas v Mowbray (2007) 233 CLR 307 at 331–34 [20]–[28] per Gleeson CJ, 344–48 [71]–[82], 350–51 [88]–[92] per Gummow and Crennan JJ, 507 [596] per Callinan J; [2007] HCA 33; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 553–54 [14] per Gummow J, 597 [168]–[169] per Crennan and Kiefel JJ [2008] HCA 2. 154

Limiting Clauses in Domestic Bills of Rights Instruments 249 Consideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation.

For Her Honour, whose view represented the majority, any concerns in that regard would then lead to the interpretive obligation being applied (if possible), which is discussed in Chapter 8.

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D. Deference to the Legislature The fact that most judges accept that they can assess the substance of what is required by a right in the context of the various competing interests does not mean that there is no distinction drawn between legislative and judicial skill sets. In fact, there is a significant amount of jurisprudence to the effect that the judicial role has to accept its limitations: in just the same way as the international tribunals have accepted that there is a margin of appreciation to the national authorities in circumstances where competing interests have to be weighed, so domestic courts have developed a concept of deference. This was noted by Anderson J in Hansen, when he spoke of the need for a court to recognise that it might not be able to assess some factors and had to give a margin of appreciation to the legislature’s decision, as noted above.159 This idea has been developed within the UK jurisprudence, and usefully summarised in the contentious situation of whether a Scottish Act was within the competence of the Scottish Parliament in AXA General Insurance Ltd and others v HM Advocate and others.160 The Damages (Asbestos-related Conditions) (Scotland) Act 2009, overturning case law, indicated that particular conditions arising from asbestos exposure—pleural plaques—did amount to injury. This was challenged by various insurance companies who relied on their property rights under the ECHR (and so legislative competence under section 29 of the Scotland Act 1998). There was also a common law challenge, discussed in Chapter 6. The Supreme Court dismissed the challenge, and in doing so gave guidance on how the concept developed in the transnational arena in relation to state action translated to the domestic separation of powers. The right to property is one that is subject to lawful and proportionate interference in support of a legitimate aim. On the facts, the judgement of the legislature was upheld on the basis that it did not fail to strike a proportionate balance between the interests involved, including those of the insurance companies. This entailed an assessment of whether the aim pursued was legitimate and the means proportionate.

159

[2007] NZSC 7, [2007] 3 NZLR 1 [268]. AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, [2012] 1 AC 868. 160

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In relation to the former question, Lord Hope noted the considerations in support of the Act arising from the policy statements made available to the legislature, namely that pleural plaques had been considered actionable for many years, and those diagnosed with them would have understandable anxieties from living in the same area as those who had developed fatal conditions consequent on exposure to asbestos. In short, it was thought to be a matter of social justice.161 He then noted that the ECtHR typically granted a significant margin of appreciation in relation to balancing acts involving such questions, and suggested that there should be a domestic version of the concept: 32.

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That meant that in the circumstances, the review exercised by the domestic court of whether the aim behind the statute was legitimate should ask whether it was ‘without reasonable foundation or manifestly unreasonable’.162 Lord Reed also used the margin of appreciation concept, commenting, in relation to the aim of the statute: 124.

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… in the hands of the national courts too the Convention should be seen as an expression of fundamental principles which will involve questions of balance between competing interests and issues of proportionality. … in some circumstances, such as where the issues involve questions of social or economic policy, the area in which these choices may arise is an area of discretionary judgment. It is not so much an attitude of deference, more a matter of respecting, on democratic grounds, the considered opinion of the elected body by which these choices are made.

… At the domestic level, courts require to be similarly circumspect, since social and economic policies are properly a responsibility of the legislature, and policymaking of this nature is amenable to judicial scrutiny only to a limited degree.

The proportionality of the interference was also assessed by the Court. Lord Hope did not identify that there were any special reasons for deference here. Lord Reed, however, stressed the existence in the ECtHR jurisprudence of a wide margin of appreciation in relation to the right to property, which makes implicit that he was applying a wide discretionary area of judgment, as had been described in relation to the legitimacy of the aim;163 and he was then clear about the matter, noting: 131

161 162 163

The concept of the margin of appreciation reflects a recognition on the part of the Strasbourg court that in certain circumstances, and to a certain extent, national authorities are better placed than an international court to determine the outcome of the process of balancing individual and community interests. At the domestic level, the courts also recognise that, in certain circumstances, and to a certain extent, other public authorities are better placed to determine how those interests should be balanced. Although the courts must decide whether, in their judgment, the requirement of proportionality is satisfied, there is at the same time nothing in the Convention, or in the domestic legislation

ibid at [29]–[30]. ibid at [33]. ibid at [126].

Limiting Clauses in Domestic Bills of Rights Instruments 251 giving effect to Convention rights, which requires the courts to substitute their own views for those of other public authorities on all matters of policy, judgment and discretion. As Lord Bingham of Cornhill observed in Brown v Stott [2003] 1 AC 681, 703: ‘Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supranational court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies.’ The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances. As Lord Hope explained in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381, the relevant circumstances include whether, as in the present case, the issue lies within the field of social or economic policy.

Both judges noted that the test of proportionality was one of fair balance (though Lord Hope asked the converse, namely whether the burden on the insurance industry was disproportionate or excessive). This was met, even though there was retrospectivity in the operation of the Act, in light of it doing no more than was necessary (namely simply declaring that there was an injury, but leaving it still necessary for the claimant to show negligence and not disturbing any defences) and it operated in relation to an industry that was concerned with risk (meaning that questions of how many claims there might be, and how the law might develop were to be expected and taken into account in the commercial operation).164 It is worth noting that whether through a general limiting clause or through the approach of balance between rights, there is a relationship between the judiciary and the legislature whereby the former accept the need to take into account institutional capabilities. They do this in the context of determining whether there has been compliance with a legal standard which involves rights. This is something which by definition requires a level of protection from competing interests, including majority views; and which will invariably require some specificity in terms of rules laid down by the legislature in order to ensure that there is legal regulation of the situation. But account has to be taken of the nature of the right and of the competing interests: some may be such that a wide range of competing interests might justify an intervention with the right if the legislature so decides, in which case the judicial oversight will be light. In other situations, it may be that the competing interests require a much more individualised assessment, such that attempts by the legislature to provide detailed rules will be problematic.

164 ibid at [34]–[40] and [132]–[134]. Lord Mance in a concurring judgment described the decision as being ‘within the scope of the judgment which it was entitled to make as to what was appropriate and as proportionate’: at [96].

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By analogy, see Lord Hoffmann’s account in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions,165 where he noted that democratic validity of reflecting the general interest sometimes allowed the legislature to lay down detailed rules (as in tax law) but sometimes required that a decision maker be empowered to weigh the interests (as in planning law). In both such cases, rights might be involved, such that protection would be required: these would include fair trial rights, but also protection of substantive rights, typically of property in the context of wider socio-economic policies (tax raising, development and protection of the environment), such that the rules and/ or decision maker would be entitled to significant discretion. When one of the first rank rights is involved, the level of deference would be much lower. There are also instances in which a legislature has made clear that it will limit the potential consequences of arguments based on rights. For example, section 48 of the Victorian Charter contains a saving provision to indicate that the law relating to abortion or child destruction is not changed. Equally, a legislature may make specific changes to legislation in order to make good any concerns about compliance. The Victorian Parliament passed the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009 to amend various statutory provisions to ensure compliance. See to similar effect the Convention Rights (Compliance) (Scotland) Act 2001, which changed some areas that were thought problematic. Naturally, if these changes did not go far enough, there might still be scope for a challenge; if they went further than was necessary, they would provide an example of a state doing what was permissible in going further than the human rights treaty requires. The question of what a treaty requires and what the domestic legislation requires involves another dynamic that should be noted, which is the relationship between the international mechanisms and the domestic courts. This is described next. IV. THE RELATIONSHIP BETWEEN INTERNATIONAL RIGHTS AND TRIBUNALS AND DOMESTIC RIGHTS AND TRIBUNALS

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Already outlined in Chapter 4 is material through which the legislatures that introduced the various bills of rights statutes expressed the view that international rights should be argued about in the domestic courts. This was also evident as the purpose from the face of most of the statutes, save the Victorian Charter. One additional feature in this regard is that the statutes, save for the NZBORA, make specific reference to taking into account international jurisprudence, and the UK and Irish statutes make very clear reference to account being taken of jurisprudence from the bodies established under the ECHR. The White Paper in the UK also made specific reference to the importance of judges in the domestic courts being able to play a part in the development of the standards in the ECHR, which was noted to be a living instrument. 165 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 [69].

International Rights, Domestic Rights and Tribunals 253 A. Relevant Provisions The relevant language to indicate that international or comparative jurisprudence is relevant is in the following terms:

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UK—Human Rights Act 1998 2. Interpretation of Convention rights. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any— (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. [Provision is then made in subsections (2) and (3) for the process of citing such materials in accordance with rules of court.]

Note also that section 8 requires that, in assessing damages awarded for an act in breach of the Convention, including whether they are needed, account must be taken of any principles developed by the ECHR bodies in relation to its awards of just satisfaction.166 It is also worth noting that sections 14–17 make provision for derogations and reservations from the UK’s international obligations, putting into a statute matter relevant to what was at the time conceived as wholly executive action;167 and section 18 makes statutory provision relevant to the appointment of the UK judge of the ECtHR. The integration of domestic law and Convention law and procedures is thereby made clear. Turning to the Irish legislation, it has an interpretive provision and also a provision relating to ex gratia payments that specifically refers to the ECHR jurisprudence: Ireland—European Convention on Human Rights Act 2003 4. Interpretation of Convention provisions. Judicial notice shall be taken of the Convention provisions and of— (a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,

166

See Chapter 10, dealing with remedies. Though note that, as set out in Chapter 3, there is significant parliamentary oversight of international treaties. 167

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(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, (c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction, and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.

145

Section 6 of the Act allows an ex gratia payment to be made if there is a declaration of incompatibility; the amount of any such payment is set after ‘appropriate account’ is taken of the principles and practice of the ECtHR in assessing what amounts to just satisfaction.168

146

In the Australian statutes, there are also interpretive provisions. Although the ICCPR is the main source of the rights there, there is no express mention of the Human Rights Committee of the UN, save that section 12 of the Human Rights Act 2004 in the ACT, the protection of the family, includes a statutory note indicating that the Human Rights Committee of the UN has given a wide definition to the definition of ‘family’ in its General Comment 19. The more general language is: ACT—Human Rights Act 2004 31. Interpretation of Human Rights (1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. (2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account: (a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the accessibility of the material to the public. Victoria—Charter of Human Rights and Responsibilities Act 2006 32. Interpretation (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

168

See Chapter 10, dealing with remedies.

International Rights, Domestic Rights and Tribunals 255 The South African Constitution also expressly requires that account be taken of international law in assessing the provisions in its Bill of Rights. Section 39 is headed ‘Interpretation of Bill of Rights’ and provides:

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(1) When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law.169

B. White Papers and Explanatory Memoranda The purpose of these provisions is illustrated by some extracts from the relevant pre-legislative material. The UK White Paper has been described in Chapter 4;170 in terms of the relationship between the domestic courts and the ECHR’s institutions, it was noted that the latter’s rulings would not be binding (paragraph 2.4). But there was also an emphasis on the positive value of British judicial involvement in the development of the jurisprudence. So, the positive case for incorporation (at paragraph 1.14) noted the costs and time involved in having to go to the ECtHR to seek redress in relation to ECHR rights, but also the value of being able to argue about rights in domestic courts would mean that they would become part of domestic case law. It also noted:

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1.14 … And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.

The particular value of this was noted subsequently, in relation to the fact that the standards set out in the ECHR were ones that developed, and so judges in the UK should be able to make a contribution to this: 2.5 The Convention is often described as a ‘living instrument’ because it is interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and the changes in the circumstances of society. In future our judges will be able to contribute to this dynamic and evolving interpretation of the Convention.

169 Section 35(1) of the Interim Constitution of 1993 provided ‘(1) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law’. The language used in both documents handily fixes the purpose of the human rights document as supporting openness, democracy, and human dignity, equality and freedom. 170 ‘Rights Brought Home: The Human Rights Bill’, available at www.archive.officialdocuments.co.uk/document/hoffice/rights/intro.htm.

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For Ireland, the Explanatory Memorandum that accompanied the European Convention on Human Rights Bill 2001171 did not really add much to the text, noting that the intention of section 4 was to allow account to be taken of the jurisprudence of the institutions in Strasbourg. The Australian statutes similarly noted that the relevant statutory language was designed to permit reference to be made to international jurisprudence. In the ACT, the Explanatory Statement to what started as the Human Rights Bill 2003 in the Legislative Assembly of the ACT,172 noted that what became section 31 ‘enables the court, tribunal or person interpreting a Territory law to have regard to international law and jurisprudence relevant to a human right’. It then noted that international law was defined so as to include treaties, custom, judicial decisions and expert views (as listed in Article 38(1) of the Statute of the International Court of Justice) and suggested that ‘The opinions, decisions, views and judgments of the UN Human Rights Committee and European Court of Human Rights are particularly relevant’. It added the intended effect of the Bill as a whole: Clause 31 does not bind those interpreting the law to have recourse to these materials or make the interpretations of international or foreign courts or tribunals binding. However, it is the clear intention of the Bill that the interpretation of human rights is to be as coherent with internationally accepted standards as possible.

151

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It was also noted, in relation to the provision that became section 32 relating to declarations of incompatibility that the proposed legislation was based on an ‘interpretive and dialogue model’. This clearly envisaged dialogue between the judiciary and the legislators, though there was no equivalent suggestion in relation to the international courts and tribunals. As for the Victorian Charter, the Explanatory Memorandum for the Bill as introduced173 noted of what became section 32(2) that it permitted reference to international and overseas judgments in interpreting the meaning and scope of the rights set out in the Charter; it also referred to the sources of international law in the Statute of the ICJ. It was noted that: A number of jurisdictions have incorporated international human rights into domestic law. Decisions from courts in these jurisdictions including the Australian Capital Territory, Canada, New Zealand, South Africa and the United Kingdom may be relevant.

171 Available at www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2001/2601/ default.htm. 172 Available at www.legislation.act.gov.au/b/db_8266/default.asp. 173 Available from the Parliamentary website www.parliament.vic.gov.au/static/www. legislation.vic.gov.au-bills-archive.html.

International Rights, Domestic Rights and Tribunals 257 C. Discussion A number of matters arise from the statutory language and how it has been interpreted:

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(i) the difference arising from the use of the actual text of the international standard (as the Irish and UK statutes do) rather than the legislature using its own language (as in the Australasian statutes); (ii) whether the power to cite international material adds anything to what exists in any event at common law (which is the only power in the New Zealand context, given the absence of any statutory language); (iii) the extent to which the power set out in the Australian statutes is different from the direction in the European statutes; a related question is the existence of any limitations on the power or duty to consider international jurisprudence; (iv) the relationship consequent on the power or direction between the domestic courts and the international tribunal that sits under the relevant treaty; (v) given that the international standards may develop, what is the impact on domestic rules of precedent, and what should happen when the understanding of the content of a right develops in the transnational court. i. The Terminology of the Rights Standards One difference of approach as between the UK and Irish statute on the one hand and the Australasian statutes on the other is that the former both use the actual text of the ECHR whereas the latter use their own language rather than that in the international treaty, the ICCPR (and the ICESCR in relation to the right to education in the ACT). Whilst the Australasian statements of rights may use terms that overlap with those in the international treaty, any differences may lead to a question of whether a substantively different outcome results. There may be situations where that is clearly the purpose of the language. An extreme situation may be where the domestic statute is silent about a right that is in the international treaty. For example, the NZBORA does not have the generic right to privacy found in Article 17 of the ICCPR (the equivalent to Article 8 of the ECHR), but instead contains some specific elements of this (such as the right to be protected from unreasonable search and seizure and a right not to have medical treatment without consent). In that situation, the New Zealand courts clearly can make only limited use of the Article 17 right in the operation of the NZBORA.174 Similarly, the language used may be so substantially different that the right guaranteed in the statute is not the same: 174 It might, however, as is noted in Chapters 3 and 7, be able to make use of international standards in developing the common law: the New Zealand courts have recognised torts that protect privacy interests.

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258

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this, it should be noted, may be to add to the minimum standards set out, given that the international treaties are meant to provide a floor rather than a ceiling for rights. However, there is no general principle that any variation in language supports a different outcome. In the first place, the duty to guarantee rather than to incorporate puts the focus on the substantive right rather than semantics. This is to be combined with the common emphasis in human rights interpretation on avoiding legalistic, narrow arguments. This focus on a more broad-brush and purposive approach, noted above, suggests that parsing the text as though it were a tax statute is not appropriate. A related question flows from the use in the Australasian statutes of UN standards and the use in the UK and Ireland of the ECHR standards, even though both are also parties to the ICCPR. The reason for this difference is that the ECHR is seen as the primary text in Europe (and has a more direct process of enforcement) and so it is not surprising that it has been chosen.175 However, the ECHR and the ICCPR are both designed to give further effect to the UDHR 1948 and so there are limited instances where they would be expected to produce a different outcome. This situation may exist: for example, there may have been a purpose behind the drafting of different language to reflect a stronger version of a particular right.176 ii. The Common Law Power Compared

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159

A difference between the New Zealand statute and the others is that the latter expressly permit or direct reference to international authorities, whilst the NZBORA is silent. Whether this is a significant difference turns on whether there is a common law power in any event. The reliance on the common law may be of wider impact than just in New Zealand: this is because the Irish and UK statutes only make express reference to jurisprudence from the bodies that exist under the ECHR, and so the power to make use of other elements of transnational jurisprudence, such as decisions of the Human Rights Committee of the UN or of decisions from other domestic courts, must arise from another source. It is clear that the absence of the express statutory power does not prevent the New Zealand courts taking into account the jurisprudence of the ICCPR (and of other courts). Using their accepted common law power, senior judges in New Zealand regularly refer to decisions of the Human Rights Committee

175 As noted in chapter 2, Ireland allows complaints to be taken to the Human Rights Committee of the United Nations alleging breaches of the ICCPR, but the UK does not. 176 This will involve a situation-specific assessment; there is clearly stronger protection of equality in the ICCPR (Article 26) than in the ECHR as drafted (Article 14). As part of this assessment, it may be worth bearing in mind that the use of the living instrument doctrine in international human rights interpretation may mean that drafting that is later in time reflects what the earlier language is now understood to mean.

International Rights, Domestic Rights and Tribunals 259 of the United Nations and of the European Court of Human Rights, as well as judgments from other domestic courts, when making decisions about the meaning of terms in the NZBORA. By way of illustrative example involving issues of retrospectivity: (i) in R v Poumako,177 which related to whether there was an impermissible retrospective increase in a sentence, the leading judgment of Gault J in the Court of Appeal set out first the relevant provision of the domestic statute prohibiting retrospective increases in sentence, then moved to the ICCPR provision and in discussing what the standard meant cited ECtHR case law. In a separate judgment, which went further than the majority, Thomas J set out various reasons why the apparent retrospective increase in sentence was ‘constitutionally objectionable’, which started with domestic provisions and moved seamlessly into the ICCPR and then rule of law standards from various transnational and national legal documents; (ii) in R v Pora,178 involving a similar question, at paragraph 20, Elias CJ noted that a non-retrospectivity provision in the Criminal Justice Act 1985 that started life in a 1980 amendment to the Criminal Justice Act 1954 ‘was enacted in deliberate fulfilment by Parliament of the obligations undertaken by New Zealand under art 15 of the ICCPR …’; (iii) in R v Mist,179 the Supreme Court had to determine whether preventive detention provisions that applied to persons ‘not less than 21 years of age’ covered someone convicted past that age in relation to offences committed before that age: the non-retrospectivity provisions helped to provide an answer that they did not, and the analysis of the Court was assisted by reference to ECHR case law (an admissibility decision of the former European Commission on Human Rights), which was distinguished; this case law was discussed together with a Privy Council decision, with no differentiation between the value of each. The existence of the common law power has been made clear by the Chief Justice of the High Court of Australia, by way of emphasising that the statutory provision was nothing novel. In Momcilovic v R,180 French CJ commented (footnote from the original judgment): 18.

177

… Section 32(2) does not authorise a court to do anything which it cannot already do. The use of comparative materials in judicial decision-making in Australia is not novel.181 Courts may, without express statutory authority,

R v Poumako [2000] 2 NZLR 695. R v Pora [2001] 2 NZLR 37. 179 R v Mist [2006] 3 NZLR 145. 180 Momcilovic v R [2011] HCA 34. This is discussed in various parts of this text. 181 Footnote is from the judgment: [fn 23] See eg Kiefel, ‘Comparative Analysis in Judicial Decision-Making: The Australian Experience’, (2011) 75(2) The Rabel Journal of Comparative and International Private Law 354; Saunders, The Constitution of Australia: A Contextual Analysis, (2011) at 102–106. 178

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260

Working Out the Content of Rights refer to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision. If such a judgment concerns a term identical to or substantially the same as that in the statutory provision being interpreted, then its potential logical or analogical relevance is apparent. … Section 32(2) does not create a mechanism by which international law or interpretive principles affecting international treaties become part of the law of Victoria. On the other hand, it does not exclude the application of common law principles of interpretation relevant to a statute which adopts, as the Charter has, the terminology of an international convention.

161

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163

This suggests that the common law power is co-extensive with the statutory permission given in the Victorian Charter: that is certainly what seems to be the outcome in New Zealand (where there is no language) and will apply in relation to the power of the UK and Irish courts to cite material other than the ECHR material that is expressly mentioned in their statutory provisions. From this, it follows that statutory language is necessary only if there is a desire to somehow control the exercise of the common law power. The co-extensive nature of the powers is not universally accepted. Heydon J, who found the Victorian Charter to be unconstitutional in his largely dissenting judgment in Momcilovic, noted that there was presumably an intention to change things, asking ‘If this does not increase the power, whatever it is, of Victorian courts to examine comparative materials, what was its point?’182 An answer is that legislative language may often be otiose. Another part of the answer may be to suggest that His Honour is asking too narrow a question by focusing on the jurisdiction to undertake a particular task: legislative language can also provide an impetus to a change in the practice of the courts in terms of how they make use of a power. A reminder of this comes from Lord Carswell in R (Ullah) v Special Adjudicator,183 an asylum case. He commented that the UK’s Human Rights Act 1998 has made a significant difference both to the substantive law and to the material that was cited before the courts: 54.

182 183

The appeal before the House furnishes a good illustration of the extent of the changes made to our domestic law by the incorporation by the Human Rights Act 1998 of provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the enlargement of the source material which has to be taken into account by the courts of the United Kingdom and the way in which they have to approach the issues before them where Convention rights come into play. … The differences which the Act has made in the approach to the issues in asylum appeals such as those before the House, in the material put before the courts and in the content and reasoning of decisions are profound …

[2011] HCA 34 at [453]. R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

International Rights, Domestic Rights and Tribunals 261 This does not mean that there is a new power to consider additional material: rather, there is a wider range of circumstances in which such material becomes directly relevant to the task before the court, in light of such matters as the interpretive obligation discussed in Chapter 8.

164

iii. The Discretion Involved There is a prima facie difference between the Australian and European statutes: the former contain what are said to be powers whereas the latter set out directions to the courts. However, a direction to take into account or give due weight, as in the UK and Irish statutes, contains a clear element of discretion in terms of whether or not to follow the lead from the international court. Various cases in which these provisions have been construed illustrate whether the regimes differ. The discretion in the Victorian Charter has been subject to interpretation. As French CJ noted in Momcilovic, there was a common law power in the situation as well as that set out in the statute, which meant that ‘Judgments of international and foreign domestic courts may be consulted’ to answer the question of whether the statutory guarantee of the presumption of innocence is to be construed as ‘congruent with the common law presumption of innocence or as extending beyond it’.184 However, he added a note of caution about the power: 19.

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… Nevertheless, international and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them. What McHugh J said in Theophanous v The Herald & Weekly Times Ltd185 is applicable in this context: ‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.’

Heydon J had greater concerns. First, he suggested that ‘There is little to be learned from African or Arab Charters, for example, for in 2006 Africa contained very few countries answering the description “liberal democracy”, and the Arab world contained none’.186 But he seemed to find more problematic the authorities from what he deemed more suitable parts of the world. His challenge to the constitutional validity of the Charter focused on its requirement that judges answer inherently political questions that were beyond their skills. Central to this was the interpretive obligation in section 32(1) of the Charter,

184 185 186

[2011] HCA 34 at [19]. [fn 27] (1994) 182 CLR 104 at 196; [1994] HCA 46. [2011] HCA 34 at [453].

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discussed in Chapter 8; the power to cite overseas judgments was part of this problem because its effect is (with footnotes as in the original): … to ‘ratchet-up’ s 32(1) by reference to the most extreme foreign decisions.187 The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world. But the effect can only be maintained over time by increasing the strength of the dose. In human rights circles there are no enemies on the left, so to speak. Because s 32(2) only permits consideration of foreign decisions, but does not compel it, the Victorian courts are empowered to consider those decisions they favour and decide not to consider those they dislike. ‘To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.’188 But that will not stop it being done, relentlessly and irreversibly—a factor which reinforces the invalidity of s 32(1).

168

169

In short, Heydon J was of the view that judges needed to be protected from their inability to recognise the limits on their role: not only would they make decisions that should be left to the legislature, but they would cherry-pick overseas decisions to justify this. This was a dissenting position, leaving the Chief Justice’s more moderately expressed view as to taking care, which reflects the fact that any power has to be exercised judicially. As such, account has to be taken of any differences in context when considering the substantive outcome: this goes to the weight to be attached to the comparative material. This judicial approach may also lead to decisions not to admit overseas material. The ACT statute makes this point: section 31(2) of the Human Rights Act 2004 sets out factors that it requires be taken into account is determining whether to consider comparative material and the weight to be attached to it. However, it should be said that the statute lists a strange collection of factors, namely (i) the importance of the ordinary but purposive meaning of statutory language, (ii) the need to ensure that there is a proportionate benefit from citing the material, and (iii) how accessible the material is. The first seems to go more to the substantive task behind the interpretive obligation, and the tension between seeking the ordinary purposive meaning in the statutory context, and a purposive meaning that looks both at the purpose as defined by the normal process and the purpose of giving effect to rights if possible. The third factor also reflects the argument in opposition to an extended purposive approach, namely that the outcome should be readily understandable to a non-lawyer, which will be based in part on the ease of access to material used to work out the purpose behind language. Of course, much of the international material may be just as accessible as domestic jurisprudence and background material of the sort that is often used to explain the purpose of legislative terminology. That leaves the second factor, which is procedural in nature, but which leaves a significant element of discretion to the court to

187 [fn 682] Allan and Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’, (2006) 43 San Diego Law Review 1 at 54–57. 188 [fn 683] Roper v Simmons 543 US 551 at 627 (2005) per Scalia J dissenting.

International Rights, Domestic Rights and Tribunals 263 consider the advantage of admitting relevant material: a task which might be difficult without considering the value of the material, which effectively means looking at it. In the UK and Irish situations, and particularly the UK, the focus has been more on the extent to which relevant jurisprudence from the ECtHR should be followed: there has been no question that it is to be considered by the courts. This is considered next.

170

iv. The Duty to Take into Account—UK and Ireland The aspect of the discretion to use international material, including that arising from the transnational bodies that sit under the international treaties, that has led to most judicial comment is its power to illustrate the relationship between the domestic courts and those transnational bodies. This is not surprising in light of two contextual elements: first, the purpose behind the statutes being to secure the international standard in a domestic context; and second, the prospect that an unsuccessful litigant may end up before the relevant international body. In the early NZBORA case, Tavita v Minister of Immigration,189 Cooke P noted the relationship between the domestic and transnational bodies. He was responding to a government argument that obligations that arose under the ICCPR should be ignored in a domestic challenge to a decision. On the facts, it was not necessary to express a final view on the argument, but he made clear that it was unappealing; part of his reasoning was that:190

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[A]n aspect to be borne in mind may be one urged by counsel for the appellant: that since New Zealand’s accession to the Optional Protocol the United Nations Human Rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it, a failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.

Although this does not state that anything akin to a binding precedent arises from any relevant statements from the Human Rights Committee about what the ICCPR requires, the very indication that the Committee is to be equated to a part of the judicial structure raises the proposition that it has the final say on those matters within its remit, namely the exposition of what the relevant substantive standards require. This imbues it with an authority which allows the suggestion that its statements of law should be followed if the other aspects of the domestic regime (most noticeably the interpretive obligation) allow.

189 190

Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). [1994] 2 NZLR 257 at 266.

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174

Complaints from New Zealand and Australia have been taken to the Human Rights Committee, though not in large numbers.191 The ECtHR has been used on many more occasions by those from Ireland and the UK: those in Ireland have the choice, but only a handful of complaints have gone to the Human Rights Committee. As a result, part of the imperative behind the Human Rights Act 1998 (UK) was to allow cases that would otherwise have arguments on rights before the ECtHR dealt with domestically; the motif of ‘bringing rights home’ indicates this.192 Similarly, as the Explanatory Memorandum to the Irish statute noted, it was ‘designed to facilitate the bringing of cases involving alleged breaches of rights under the Convention in Irish courts’.193

175

The statutes could have provided, but do not, that rulings of the ECtHR set binding precedent. There is a clear contrast in this regard in relation to the status of the courts under the EU treaty arrangements. In the UK, section 3 of the European Communities Act 1972 provides that questions of EU law are to be referred to its court, which gives binding rulings. This clearly sets a pyramid structure, with the transnational court at the apex. This model was not followed. Indeed, it could not have been in light of the approach adopted in the international human rights field that domestic processes have to be followed first. However, a provision in the UK statute does gives a status to the ECtHR equivalent to that of a domestic court in one situation: the process whereby a Minister can amend primary legislation that is incompatible with the ECHR, described in Chapter 10, requires either a declaration of incompatibility from a domestic court or a ruling from the ECtHR. Indeed, it could be argued that the ECtHR has an appellate status in this regard because it might be that the domestic courts determined that there was no breach of the ECHR, that the ECtHR disagreed with that assessment, and that the Minister exercises the power to amend on the basis of the ECtHR decision. The availability of the ECtHR as a body to which claimants can go and whose decisions invariably have a real impact may colour the approach taken to the requirement to give weight to its jurisprudence. Another preliminary point to note is that both statutes also require that decisions of the Committee of Ministers be taken into account. This is, of course, a non-judicial body: but the obligation to take notice of its views is in relation to its role under Article 46, the enforcement provision of the ECHR, and so there is no suggestion that there is a requirement to take account of governmental views in relation to the meaning of the substantive rights. The UK courts have considered their relationship with Strasbourg frequently, and have reached the position that case law from the ECtHR should invariably be followed, even if UK judges disagree with it. There are other scenarios to consider: for example, if the ECtHR has not ruled directly on the point, or a line of ECtHR authority seems likely to be departed from in

176

177

191 192 193

Decisions are compiled at www.bayefsky.com. See above and Chapter 4. ibid.

International Rights, Domestic Rights and Tribunals 265 the near future. These involve different dynamics, though it is worth recalling that the aim expressed in the UK White Paper, as noted above, was that the domestic courts would have an active role in the development of the living instrument. There are two components to the reasoning in the UK case law. The first turns on what the UK Parliament has signed up to in the domestic context when enacting the Human Rights Act 1998, and reticence that should be adopted by the judges as a result; the second looks to the transnational nature of the standards and the lack of any mandate from UK judges to develop those standards. These seem contrary to the more active participation in developing standards that was envisaged in the White Paper. The first component emerges from an early case from the Scottish courts, Brown v Stott,194 in which the requirements of the right to a fair trial were in issue: the particular point was whether evidence obtained under compulsion was admissible, namely the fact that Ms Brown was required to admit that she had been driving a car when questioned in relation to an offence of drink-driving. The compulsion arose from a legal power to insist on an answer rather than any oppressive conduct by police officers. The Privy Council, overturning the High Court of Justiciary, determined that there was no disproportionate interference with the right to a fair trial. Article 6, in contrast to Article 14(3)(g) of the ICCPR, does not have an express right not to incriminate oneself; and so whether that right exists depends on whether it can be implied from the more general right to a fair trial. In the process of reaching that conclusion that there was no absolute right against self-incrimination, Lord Bingham commented on the role of the courts in implying sub-rights to a general right set out in the ECHR:195 In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a ‘living tree capable of growth and expansion within its natural limits’ (Edwards v Attorney General for Canada ([1930] AC 124) at p 136 per Lord Sankey LC), but those limits will often call for very careful consideration.

194 195

Brown v Stott 2001 SC (PC) 43, [2003] 1 AC 681. ibid at 703.

178

266 179

180

In short, whilst accepting the living instrument approach, which would include the implication of rights, it was necessary for the courts to be cautious about imposing rights that had not been accepted by the States Parties. Turning to the second component, the respective capabilities of the international and domestic judges, in a relatively early case, R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions,196 the tone was set and a practical reason given. The House of Lords held that the process for determining planning applications complied with the fair trial requirement of Article 6 ECHR if there was an administrative decision that was subject to judicial review. Lord Slynn, having noted that many ECtHR cases had been cited, set out that: 26.

181

… Although the Human rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the courts should follow any clear and constant jurisprudence of the European court of Human Rights. It if does not do so there is at least a possibility that the case will go to that Court, which is likely in the ordinary case to follow its own constant jurisprudence.

Lord Hoffmann took a slightly different view, expressing greater willingness to depart from an ECtHR ruling with which he disagreed (though it was not necessary for him to do so on the facts because he found that the Strasbourg court permitted a bifurcated approach in planning decisions of an administrative decision subject to judicial review). He stated: 76.

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… section 2(1) of the Human Rights Act 1998 requires an English court, in determining a question which has arisen in connection with a Convention right, to take into account the judgments of the European Court of Human Rights (‘the European court’) and the opinions of the Commission. The House is not bound by the decisions of the European court and, if I thought that the Divisional Court was right to hold that they compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution, I would have considerable doubt as to whether they should be followed. But in my opinion the Divisional Court misunderstood the European jurisprudence. …

The proper approach was considered further in R (Ullah) v Special Adjudicator,197 which concerned claims for asylum based on religious persecution. The ambit of Article 3 (prohibition on torture or inhuman or degrading treatment) and Article 9 (disproportionate interference with freedom to manifest religion) was raised. Lord Bingham cited Alconbury and gave a further explanation of it: 20. … the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the 196 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295. 197 R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.

International Rights, Domestic Rights and Tribunals 267 Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.198

This ‘no more, no less’ comment has been endorsed, with limited suggestions as to change, some limiting and some potentially expansive.199 In R (Al-Skeini) v Secretary of State for Defence,200 a case turning on the extent to which the provisions of the Human Rights Act 1998 applied to the operations of British forces conducting operations in Iraq, Lord Brown quoted the relevant paragraph and added: [106] I would respectfully suggest that last sentence could as well have ended: ‘no less, but certainly no more’. There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event, the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg.

198 See also Kay v Lambeth LBC [2006] 2 AC 465, in which Lord Bingham commented at [28] that the ‘mandatory duty’ under section 2 did not make Strasbourg rulings binding in the same way as rulings of the ECJ are binding because section 3(1) of the European Communities Act 1972 has that effect. This section, it is to be noted, provides that rulings about the EU treaties and EU instruments are questions of law and shall be determined ‘in accordance with the principles laid down by and any relevant decision of the European Court’ (and can be referred to that court if there is no clarity. Lord Bingham then qualified this non-binding nature by commenting that section 6 of the 1998 Act makes it ‘unlawful for domestic courts, as public authorities, to act in a way which is incompatible with a Convention right’ and the result of section 2 was that ‘it is ordinarily the clear duty of our domestic courts, save where and so far as constrained by primary domestic legislation, to give practical recognition to the principles laid down by the Strasbourg court as governing the Convention rights specified in section 1(1) of the 1998 Act. That court is the highest judicial authority on the interpretation of those rights, and the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles it lays down’. 199 A different version of the test was offered by Lord Nicholls in M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, which related to the differential treatment of same-sex couples in relation to an aspect of child support benefits. The House of Lords concluded that same sex relationships were not within the scope of Article 8 ECHR because no case law from the ECtHR had reached that conclusion. Lord Nicholls noted: ‘24. … Under the Strasbourg case law same-sex partners still do not fall within the scope of family life. … 29. In its interpretation of Convention rights your Lordships’ House is not bound to follow decisions of the ECtHR. The House is bound only to take these decisions into account. But the House will not depart from a decision of the ECtHR on the interpretation of an article in the Convention save for good reason. It goes without saying that it would be highly undesirable for the courts of this country, when giving effect to Convention rights, to be out of step with the Strasbourg interpretation of the relevant Convention article’. He then added that there was no good reason on the facts of the case. 200 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153.

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107. Your Lordships accordingly ought not to construe article 1 as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.201

184

185

The conclusion of the court was that Iraqi civilians were not within the jurisdiction of the British forces for the purposes of the Human Rights Act, except for one who was taken into custody on an army base. This was based on their interpretation of ECtHR cases. The point made by Lord Brown in paragraph 106 of his speech was illustrated on the facts: in Al-Skeini v UK,202 the Grand Chamber of the ECtHR determined that all the claimants were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR. The disadvantage of this was that it involved a further delay of some four years (added to the time delay occasioned by going through the appellate processes in the UK). This case also illustrates the interaction with another general principle of human rights case law outlined above, namely the living instrument approach. The claimants were then able to pursue proceedings in the UK. Another illustration of this is Re McCaughey and Quinn’s application.203 This concerned an inquest relating to a death that occurred before the Human Rights Act 1998 came into effect. Security forces were involved. As was the case in relation to several such deaths, inquests had yet to be held:204 statements from soldiers involved in the deaths had not been provided for many years, until after it had been confirmed that criminal proceedings would not be brought, and then there was a delay in commencing the inquest process. It had been established in domestic law that (i)

the inquest process was the one by virtue of which it could be established whether there was state liability for a death; this process fulfilled

201 See also Lady Hale at [90]. In R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1, this was endorsed by Lord Phillips at [60], Lord Hope at [93] and Lord Brown at [147]. And in R (Clift) v Home Secretary [2006] UKHL 54, [2007] 1 AC 484, the House of Lords declined to find that a differential process of release on licence for long-term prisoners breached Article 14 ECHR because the ground for differentiation was the length of the sentence and not a personal characteristic, which is what the case law on ‘status’ suggested was key. Lord Hope noted ‘49. … A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the states parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the second agreed issue in Mr Clift’s favour’. The ECtHR disagreed with the conclusion of the House of Lords, and so expanded the scope of Article 14: Clift v UK, App no 7205/07, 13 July 2010. See also Ambrose v Harris [2011] UKSC 43, per Lord Hope, after raising Alconbury: ‘17. In R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20 Lord Bingham of Cornhill said that Lord Slynn’s observations in that case reflected the fact that the Convention is an international instrument, the correct interpretation of which can be expounded only by the Strasbourg court. From that it followed that a national court should not without strong reason dilute or weaken the effect of the Strasbourg case law. It was its duty to keep pace with it as it evolved over time. There is, on the other hand, no obligation on the national court to do more than that. As Lord Bingham observed, it is open to member states to provide for rights more generous than those guaranteed by the Convention. But such provision should not be the product of interpretation of the Convention by national courts’. 202 Al-Skeini v UK (2011) 53 EHRR 18, App no 55721/07, 7 July 2011. 203 Re McCaughey and Quinn’s application [2011] UKSC 20, [2011] Inquest LR 22, [2012] 1 AC 175. 204 ibid at [102]: Lord Brown recorded that there were 16 ‘legacy inquests’ (involving 26 deaths) already in motion; and 15 further deaths that had been or might be referred for inquests.

International Rights, Domestic Rights and Tribunals 269

(ii)

the obligation to investigate arising under Article 2 ECHR, which was a distinct obligation from the substantive obligation not to take life when it would be arbitrary to do so, that being the essence of Article 2.205 This represented a development in domestic law, involving a wider review than had previously been the case in domestic law.206 But this applied only if the death occurred after the Human Rights Act 1998 came into effect.207

However, as has been noted above, the case law of the ECtHR developed so as to determine that the procedural obligation to investigate was not merely ancillary to the substantive right to life but had its own existence. This had meant in the international case law that it could be breached in relation to a death that occurred before the ratification of the treaty (such that the substantive right to life was beyond the jurisdiction of the ECtHR): see Šilih v Slovenia, discussed above. The Supreme Court determined that it was necessary to follow this approach under the Human Rights Act, though Lord Rodger dissented on the basis that legal certainty should be upheld. The entrenched nature of the ‘no more, no less’208 view does not mean that there is unanimity about its wisdom. A suggestion that it is too limiting was made by Lord Kerr in Ambrose v Harris.209 The issue was when a suspect should be provided access to a lawyer to ensure a fair trial, and in particular whether it applied before a person was in police custody. The Supreme Court determined that it applied only when a person was in police custody because any other holding would go further than existing ECtHR cases. Lord Kerr was unhappy with this approach. He noted that the Ullah rule as explained by Lord Brown in Al-Skeini meant that ‘some judges in this country have evinced what might be described as an Ullah-type reticence’, meaning that they would not ‘attempt to anticipate developments at the supra national level of the

205 See McCann v UK (1995) 21 EHRR 97 for the determination that Article 2 gives rise not merely to a substantive obligation on the state not to kill people but also, where there might have been state fault, a procedural obligation on the state to carry out an effective official investigation. This was a distinct obligation in the sense that there could be a breach of the duty to investigate even if there was no breach of the substantive obligation. 206 The question for the inquest is ‘how’ the deceased was killed: this had been held to mean ‘by what means’ in the leading case of R v Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1. But this was found to be inadequate in relation to deaths covered by the Human Rights Act, and ‘how’ became understood to mean by ‘by what means’ and also ‘in what broad circumstances’ the deceased came to their deaths, since that would allow the inquest to meet the procedural obligations: see R (Middleton) v West Somerset Coroner [2004] 2 AC 182, [2004] Inquest LR 17. 207 See In re McKerr [2004] 1 WLR 807, [2004] Inquest LR 35; R (Hurst) v London Northern District Coroner [2007] 2 AC 189, [2007] Inquest LR 29; and Jordan v Lord Chancellor [2007] 2 AC 226, [2007] Inquest LR 44. In McKerr and in Jordan, it is to be noted, the ECtHR had specifically ruled that there had been a breach of the investigative obligation and the cases then returned to the domestic courts to consider what form the inquests should take. 208 Note also its application in relation to claims for damages: see Chapter 10 and the outline of R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529. 209 Ambrose v Harris [2011] UKSC 43.

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Strasbourg court’ and also ‘not go where Strasbourg has not yet gone’.210 But he suggested that Lord Bingham’s position in Ullah, based on the proposition that the authority of the Strasbourg court to be the authoritative interpreter of the ECHR was not intended to restrict domestic courts to making a ruling only once the ECtHR had spoken. In contrast, he indicated a reasoned position that: 128.

… it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken. There are three reasons for this, the first practical, the second a matter of principle and the third the requirement of statute.

129.

It is to be expected, indeed it is to be hoped, that not all debates about the extent of Convention rights will be resolved by Strasbourg. As a matter of practical reality, it is inevitable that many claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from ECtHR. Moreover, as a matter of elementary principle, it is the court’s duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available. The great advantage of the Human Rights Act is that it gives citizens of this country direct access to the rights which the Convention enshrines through their enforcement by the courts of this country. It is therefore the duty of this and every court not only to ascertain ‘where the jurisprudence of the Strasbourg court clearly shows that it currently stands’ but to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view. Finally, section 6 of the Human Rights Act leaves no alternative to courts when called upon to adjudicate on claims made by litigants to a Convention right. This section makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it.

130.

In this context, it would be particularly unsatisfactory, I believe, if, because of an Ullah-type reticence, we should feel constrained not to reach a decision on the arguments advanced by the respondents to these references just because those very arguments are likely to be ventilated on behalf of the applicant in ECtHR in Abdurahman v United Kingdom application no 40351/09 and we cannot say how Strasbourg will react to them. If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.

210

ibid at [126].

International Rights, Domestic Rights and Tribunals 271 Lord Kerr was in a dissenting position. Lord Mance’s dissent in R (Smith) v Oxfordshire Assistant Deputy Coroner211 is also worth noting. The issue in the case was whether the Human Rights Act and the ECHR applied to the death from hyperthermia of a soldier in Iraq who was at the time away from the British base. By six votes to three, the Supreme Court held that it did not.212 Lord Mance found that there was jurisdiction over the soldier for the purposes of the Human Rights Act (even if there might not have been over Iraqi citizens). In response to the suggestion that as the ECtHR had not yet reached such a conclusion, it was improper for the domestic courts to do so, he commented: 199.

… it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. But neither is the case here. Strasbourg has not decided any case directly in point, and both the messages contained in its existing jurisprudence and considerations of general principle seem to me to point in a clear direction. In my judgment the armed forces of a state are, and the European Court of Human Rights would hold that they are, within its jurisdiction, within the meaning of article 1 and for the purposes of article 2 wherever they may be. On that basis, it is incumbent on us under the Human Rights Act 1998, section 6, to give effect to that conclusion.

There are expansive and narrower understandings of this comment. The wider understanding is the indication that the task of the domestic courts is to give effect to the domesticated version of the ECHR right, which might not be coextensive with the views of the ECtHR: so rather than merely the possibility of the common law going further than the ECHR, it might be that the UK interpretation of the statutorily recognised Convention right might go further (or perhaps less far). The narrower understanding of the comment is that there might be a clear direction of travel in the ECtHR case law, and that the UK courts could take a step further down the road than the ECtHR had done so far. The suggestion of Lord Kerr in Ambrose v Harris that the UK judges have to be involved in the development of the understanding of the ECHR is perhaps in between these two possible interpretations, indicating that the judges in the UK should be keen to participate in developing Convention standards. Nevertheless, it is clear that a more cautious position represents the law at present, although the proper level of reticence is not clear. Lord Hope, in the majority in Ambrose v Harris, suggested that Lord Kerr was incorrect in his understanding of the ECtHR case law on the substantive point in issue, but he also reiterated the need for the domestic courts to take only limited steps forward in the absence of an ECtHR decision directly on point, relying on

211 212

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R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] 1 AC 1. They followed Al-Skeini, which had not by then been found too limiting by the ECtHR.

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the two components of the UK jurisprudence outlined above. He cited Lord Bingham’s comments in Brown v Stott about the risk of judicial interpretation taking states beyond the rights they had signed up to and commented that it was wholly consistent with the Ullah aphorism and revealed the:

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19.

… proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. … Lord Bingham’s point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation.

20.

That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.213

This seems to be similar to the narrower interpretation of what Lord Mance noted in Smith. But the lack of clarity as to the degree of reticence arises from the difficulty in reconciling various cases. There is an important difference of emphasis between this view of Lord Hope—ie, going where the ECtHR case law ‘justifies’—and Lord Brown’s comment in Al-Skeini about only going where that case law clearly reaches. That is illustrated by the approach to what should happen if the Strasbourg court has not ruled on a particular issue. Lord Brown’s position, based as it was on the fact that a claimant could go to the ECtHR whereas a state can only be a defendant, would suggest that there should be a ruling against a claimant who seeks to develop the application of Strasbourg case law unless it is blindingly obvious what will happen in a transnational complaint. Lord Hope’s position, however, would allow the domestic courts to develop the case law when it was less obvious but fairly predictable. An example of the sort of situation in which Lord Brown’s more restrictive view would allow the domestic courts to go ahead of Strasbourg is R (Anderson) v Secretary of State.214 The question was whether the punitive tariff of a life sentence for murder could be fixed by the Home Secretary or had to be fixed by the judge because it was part of the trial process; the latter was the position in relation to those receiving a discretionary life sentence. The effect of the tariff was to mark the point at which detention ceased to be based on punishment and became based on risk: since the latter could change with time, Article 5(4) meant that it had to be reviewed by a court. If Article 5(4) applied, the logic was that the setting of the tariff was part of the sentence and so Article 6 applied. However, the ECtHR had accepted that a mandatory sentence of life imprisonment for murder marked a special situation in which the legislature had directed that the sentence was life and so any release was 213

Lord Brown at [86] specifically endorsed this view. R (Anderson) v Secretary of State [2001] EWCA Civ 1698, [2002] UKHL 46, [2003] 1 AC 837. 214

International Rights, Domestic Rights and Tribunals 273 a matter of executive discretion, such that fixing the tariff and determining release could be carried out by the executive as part of the administration of the sentence. It had drawn a contrast with a discretionary life sentence based on dangerousness, which had to involve a judicial fixing of the tariff (to comply with Article 6) and Parole Board control of release after tariff (to comply with Article 5(4)). However, it had also accepted that juveniles sentenced for murder should be treated like discretionary lifers. At the time of the hearing in Anderson in the Court of Appeal, the ECtHR was due to hear a case which would determine whether it should reverse its position in relation to adults convicted of murder. Lord Brown, as Simon Brown LJ, accepted that it would be wrong for the English courts to predict what would happen in Strasbourg and so should not rule in favour of Anderson.215 He emphasised that comity meant that the domestic courts should await the Strasbourg ruling. This was so even though he was critical of the distinction that had previously been drawn (such that he was clearly of the view that the ECtHR should change the law in favour of equating the position of all life sentence prisoners). By the time of the hearing in the House of Lords, the ECtHR had decided, in a Grand Chamber decision, that adult mandatory lifers should have the same rights under Article 5(4), and the logical corollary of this was that the tariff of both groups had to be fixed judicially. In the House of Lords, the argument of the Secretary of State was that the ECtHR was wrong in its decision under Article 5(4). The House, however, determined that a decision of the Grand Chamber should be followed, by reason of section 2 of the Human Rights Act 1998, and this included applying its logic to what had not expressly been decided, namely that setting the tariff under Article 6 had to be for the judiciary. But as to whether to go further than a situation of simply applying an inexorably logical progression, there are examples of more extensive and narrower approaches. So Lord Dyson in Ambrose v Harris noted that the Ullah and Al-Skeini approach was ‘not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority’.216 That meant that the courts should turn to their duty to identify the domesticated version of the duty, giving effect to the judicial choice that Lord Mance spoke about in Smith. The choice would only be missing if there was clear and constant case law from Strasbourg on the point or such case law as existed allowed a clear deduction or inference as to what the ECtHR would decide.217 The absence of clear jurisprudence or material that showed clearly what the ECtHR would decide meant that: 105.

… caution is particularly apposite and … the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe-wide rulings on the Convention. …

215 [2001] EWCA Civ 1698 at [65]–[66]. See Hussain and Singh v UK (1996) 22 EHRR 1 and Stafford v UK (2002) 35 EHRR 32. 216 [2011] UKSC 43 at [102]. 217 ibid.

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The outcome was that the claimant lost. Similarly, Lord Hope in Ahmed v HM Treasury,218 which raised the issue of the validity of orders freezing the assets of suspected terrorists in light of resolutions of the UN Security Council, was concerned that prediction was not a function of the domestic courts. The context was arguments about various breaches of the ECHR, in relation to which there was House of Lords’ authority one way219 and European Court of Justice authority to the contrary.220 Lord Hope noted that only the ECtHR could give authoritative guidance on what the ECHR required when considered together with the Charter of the UN,221 and so it was ‘not open to this court to predict’ reasoning in the ECtHR (with the result that the case should be decided on the basis of common law principles).222

197

It may be thought that a greater level of prediction has been supported in other situations. In R (Countryside Alliance) v Attorney-General,223 Baroness Hale noted that—in relation to the question of whether a prohibition of hunting with dogs breached various ECHR rights or whether the restrictions were proportionate ones that were within the discretion of the state—the concept of the protection of morals was controversial and so would lead to a level of deference (the margin of appreciation in the ECtHR and the deference given by the courts to the legislature in the domestic setting). She then added:

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125.

I do not, however, think that it is open to us to wash our hands of such difficult issues on the ground that this is a matter for Parliament. For better or worse, Parliament has entrusted us with the task of deciding whether its legislation is compatible with the Convention rights. If it is not, it is our duty to say so. The fact that the issue raises moral questions on which views may legitimately differ does not let us off the hook. … When we can make a good prediction of how Strasbourg would decide the matter, we cannot avoid doing so on the basis that it is a matter for Parliament. Strasbourg will be largely indifferent to which branch of government was responsible for the state of the domestic law.

126.

But when we can reasonably predict that Strasbourg would regard the matter as within the margin of appreciation left to the member states, it seems to me that this House should not attempt to second guess the conclusion which Parliament has reached. I do not think that this has to do with the subject matter of the issue, whether it be moral, social, economic or libertarian; it has to do with keeping pace with the Strasbourg jurisprudence as it develops over time, neither more nor less: see R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20.

This indication that a sensible predictive power—‘good’ or ‘reasonable’ being her descriptors—was permissible is what seems to have happened in three cases. First, in Savage v South Essex Partnership NHS Trust,224 the question 218

Ahmed v HM Treasury [2010] UKSC 2 and 5, [2010] 2 AC 534. R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. Kadi v Council of the European Union (Joined Cases C-402/05P and C-415/05P) [2009] AC 1225; there was also Canadian and US authority in support. 221 [2010] UKSC 2 and 5, [2010] 2 AC 534 at [74], citing Lord Bingham in Ullah. 222 ibid at [74]–[75]. 223 R (Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] 1 AC 719. 224 Savage v South Essex Partnership NHS Trust [2008] UKHL 74, [2009] AC 681. 219 220

International Rights, Domestic Rights and Tribunals 275 was whether the duty to protect life, arising under Article 2 ECHR, applied in relation to a mentally disordered person who was detained under the Mental Health Act 1983 (UK). The House of Lords held that it did, dismissing arguments by the hospital and the Secretary of State for Health that existing case law on the duty to protect did not apply in the field of health care. Baroness Hale (whose judgment was expressly endorsed by all other members of the House) commented that the finding by the House of Lords involved ‘following the clear thrust of the Strasbourg jurisprudence’.225 Secondly, in Rabone and Rabone v Pennine Care NHS Trust,226 the question was whether the same duty to protect life applied in relation to a mentally disordered person who had been a voluntary patient. The Supreme Court, overturning the decision of the Court of Appeal, held that the duty did apply (on the basis that it arose from the nature of the risk posed to the person not his or her formal or informal status). Lord Dyson, giving the leading speech, noted that the task of the Supreme Court was to find the indicia that supported the application of such a duty and apply it to the facts:227 implicitly, this involved accepting that there was no case directly on point and so the question was to predict where the case law was moving. Similarly, Baroness Hale discussed the existing jurisprudence, commenting that the case law from Strasbourg was such that Savage had not involved a ‘large step’, and then framed the question in the present case as one of ‘might the obligation stretch further?’228 The answer was a clear yes. Lord Brown, in a concurring speech, was keen to point out that there was no breach of the Ullah line of reasoning: 112.

225 226 227 228

Nobody has ever suggested that, merely because a particular question which arises under the Convention has not yet been specifically resolved by the Strasbourg jurisprudence, domestic courts cannot determine it—in other words that it is necessary to await an authoritative Strasbourg decision more or less directly in point before finding a Convention violation. That would be absurd. Rather what the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this. Indeed, the more reluctant the domestic court may be to recognise in the circumstances a violation of the Convention, the readier it should be to reject the complaint unless there exists … an authoritative judgment of the Grand Chamber plainly decisive of the point at issue. If, however, the domestic court is content (perhaps even ready and willing) to decide a Convention challenge against a public authority and believes such a conclusion to flow naturally

ibid at [102]. Rabone and Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72. ibid at [22] and [33]. ibid at [102].

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Working Out the Content of Rights from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then in my judgment it should take that further step. …229

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So, it was possible as part of ‘taking into account’ to go where the Strasbourg case law would head. But he added that it should always be borne in mind that rights beyond the minimum guaranteed through the ECHR could be provided through the common law, and this was preferable to purporting to act through the ECHR, given that the ECtHR was the only body that could give a definitive ruling and there was the need for a uniform meaning throughout the Council of Europe.230 So that was the risk of going further unless that was something that flowed naturally. Equally, it could not be right not to follow a clear ruling from the Grand Chamber and reach a different conclusion as to the ambit of a right on the basis that the only obligation was to ‘take into account’ that ruling; that, he suggested would be both unsatisfactory and against the intention of Parliament in enacting the statutory language. The approach he set out should ensure that the aims of the Human Rights Act 1998 of engaging in dialogue about the content of rights and at the same time bringing those rights home to the domestic legal system were secured.231 The third case in which there seems to have been an extension of what the ECtHR case law had determined is P v Cheshire West and Chester Council and another; P and Q v Surrey County Council.232 The issue raised in this case was whether factual scenarios involving three people with learning disabilities amounted to loss of liberty for the purposes of Article 5 ECHR: each person had restrictive conditions placed on them in light of their situations, two in group home settings and one in a foster care setting in a private home. The Supreme Court held that all three were deprived of their liberty, but by a 4–3 majority in relation to two of the subjects. The dispute centred around the fact that there was no case from the ECtHR that determined that Article 5 applied in the situation of what was effectively a normal residential setting with modifications to cope with the consequences of learning disability. Baroness Hale gave the leading speech for the majority. She noted that the statutory framework, in the Mental Capacity Act 2005, set the question as being whether the situation was within Article 5. As such, strictly, the question did not turn on the application of section 2 of the Human Rights Act 1998 (and the duty to take account) but raised the question of the remit of Article 5. But this required an assessment of the ECtHR case law because the statutory purpose was to deal with a breach of Article 5 revealed in a case before that

229 He suggested that this is what had happened in some other cases: R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396; In re G (Adoption: Unmarried Couple) [2009] AC 173 and EM (Lebanon) v Secretary of State for the Home Department (AF (A Child) intervening) [2009] AC 1198. 230 [2012] UKSC 2, [2012] 2 AC 72 at [113]. 231 ibid at [114]. 232 P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19.

International Rights, Domestic Rights and Tribunals 277 court.233 She accepted that there was no case directly on point, discussed the case law that did exist, which was ‘clear in some respects but not in others’,234 and then sought to apply that case law to reach the conclusion that Article 5 applied. In their opinion setting out the minority view, Lord Carnwath and Lord Hodge made clear that their concern was the absence of ECtHR case law directly on point: 93.

204

We accept that the mere fact that Strasbourg has not yet had occasion to consider a case with this combination of factors does not of itself preclude us from forming our own view of how it would decide the matter if cases such as the present were to come before it. As Lord Dyson said, in Ambrose v Harris (Procurator Fiscal, Oban) [2011] 1 WLR 2435, para 88, it may be possible to find a ‘sufficiently clear indication in the Strasbourg jurisprudence of how the European court would resolve [the] question’. However, short of such a clear indication, we should be cautious about extending a concept as sensitive as ‘deprivation of liberty’ beyond the meaning which it would be regarded as having in ordinary usage.

Lord Kerr responded directly to this in an opinion concurring with Lady Hale and in essence repeated his view from Ambrose v Harris: 86.

With respect, I do not agree that caution is the appropriate reaction to an absence of authoritative guidance from Strasbourg. This court, in common with all public authorities, has the duty under s6 of the Human Rights Act not to act in a way which is incompatible with a Convention right. That statutory obligation, to be effective, must carry with it the requirement that the court determine if the Convention right has the effect claimed for, whether or not Strasbourg has pronounced upon it. This court must therefore resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view.

87.

In any event for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an ‘ordinary usage’ approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those ‘using ordinary language’.

233 ibid at [19]; the ECtHR case was HL v UK (2004) 40 EHRR 761, [2004] MHLR 236, which determined that a man with learning disabilities held in a hospital setting as an apparently voluntary patient because he did not object to being there (but did not positively consent) was deprived of his liberty in light of the control exercised over him. 234 [2014] UKSC 19 at [32].

205

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It is difficult to argue that Lord Kerr’s wider view is part of the ratio of the case: first, he accepted that there was authority that pointed the way clearly; secondly, the other judges in the majority do not endorse the position. However, it is fairly evident that the case turns directly on a prediction of where the ECtHR would go if the case was in front of it, and the extension of Article 5 to an essentially domestic setting of small group homes or a family setting is a large, albeit logical, step forward from the situation of detention in a hospital or a large state home. It is certainly further than would have been possible under the approach of Lord Brown, outlined above, which would have been to the effect that this was a matter on which it was important to allow the ECtHR to rule, which could only occur if the claimants lost in the domestic courts so that they could take the case there. Another case worth noting is R (West) v Parole Board:235 the issue was whether a prisoner recalled from release on licence was entitled to an oral hearing, and arguments were run under Articles 5 and 6. The former were successful, the House of Lords finding that Article 5(4) had been breached in the absence of such a hearing. This was despite the fact that the ECtHR had held inadmissible such a complaint only a few months before: see Brown v UK,236 which was cited in West but not found to be binding. Indeed, the House seems not to mention section 2 of the Human Rights Act 1998 at all. Finally, in terms of the description of the UK case law, it should be noted that there are limited instances of a refusal to follow the jurisprudence of the ECtHR. The prominent example is R v Horncastle,237 in which the issue was whether convictions that relied largely on written evidence from witnesses the defendants had not been able to cross-examine breached Article 6. Reliance was placed by the claimant on case law from the ECtHR that suggested as much if such evidence was the sole or decisive evidence.238 But Lord Phillips for the Supreme Court, after a detailed analysis of the development of that case, concluded: 107.

235

… The jurisprudence of the Strasbourg court in relation to article 6(3)(d) has developed largely in cases relating to civil law rather than common law jurisdictions and this is particularly true of the sole or decisive rule. … But as I have shown that case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure. Nor, I suspect, can the Strasbourg court have given detailed consideration to the English law of admissibility of evidence, and the changes made to that law, after consideration by the Law Commission, intended to ensure that English law complies with the requirements of article 6(1)(3)(d).

R (West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350. Brown v UK App no 968/04, 26 October 2004, [2005] 2 Prison LR 14. 237 R v Horncastle [2009] UKSC 14, [2010] 2 AC 373. As at the time of writing, the case has been lodged before the ECtHR and communicated to the government: App no 4184/10. 238 Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. 236

International Rights, Domestic Rights and Tribunals 279 108.

In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.239

Lord Bingham had foreseen that possibility. In Kay v Lambeth LBC,240 he had reiterated the usual duty to follow ECtHR case law (arising from the duty to take it into account under section 2 and the duty of the court as a public body not to breach Convention rights unless required to do so by statute). But he noted that: 28.

209

… There are isolated occasions (of which R v Spear [2003] 1 AC 734, paras 12 and 92, is an example) when a domestic court may challenge the application by the Strasbourg court of the principles it has expounded to the detailed facts of a particular class of case peculiarly within the knowledge of national authorities.241

Reference should also be made to R v McLoughlin,242 which concerned the question of whether whole life sentences (ie a life sentence without a prospect of release) were unlawful because they breached the Article 3 ECHR prohibition on inhuman or degrading treatment. The Grand Chamber of the ECtHR had decided that point in favour of various UK prisoners in Vinter v UK;243 this was on the basis that (i) there must be some way of a prisoner being able to have a review of whether detention is necessary, and (ii) there was no such process in UK law. But the Court of Appeal disagreed in light of the fact that there was a statutory discretion to release prisoners sentenced to whole life terms on compassionate grounds, which would have to be used in such a way as to avoid there being a breach of Article 3. The existence of this power of release had been known to the ECtHR but it concluded that the policy that existed was too restrictive to satisfy the need to avoid Article 3.244 However,

239 Note that in Rabone, discussed above, Lord Brown at [112] was keen to point out that this was a permissible approach because there was no definitive case from the Grand Chamber on the point; in other words, he would limit the power of correction to Chamber judgments. 240 Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. 241 In R v Spear [2002] UKHL 31, [2003] 1 AC 734, the House of Lords did not follow the conclusions of ECtHR case law about the Article 6 compliance of courts martial because of perceptions of bias: Lord Bingham noted at [12] that the Strasbourg court had not received adequate submissions by the government to demonstrate that the concerns about bias were not well founded. See also Lord Rodger at [29], who noted that the ECtHR case law was to be challenged by the government in other cases currently before it. 242 R v McLoughlin [2014] EWCA Crim 188. 243 Vinter v UK App nos 66069/09, 130/10 and 3896/10, 9 July 2013. 244 App nos 66069/09, 130/10 and 3896/10, 9 July 2013, at [125]–[129].

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the essential reason for this was the lack of clarity in domestic law: the Court of Appeal in McLoughlin made clear that domestic law required the policy to be read and applied in a way that would not breach Article 3. This is not, therefore, an example of the Horncastle variety, but one of the domestic court providing relevant clarity. The ECtHR has shown an ability to accept that it might have made a mistake, such that dialogue from a domestic court that feels that it has fallen into error may be worthwhile. For example, in Osman v UK,245 there had been a finding of a breach of Article 6 because a claim had been struck-out in light of the immunity of the police from actions in negligence. In Barrett v Enfield LBC246 Lord Browne-Wilkinson criticised the ECtHR for failing to understand that a strike-out application allowed a full ventilation of the points of law in issue and so amounted to a fair trial (such that the strike-out reflected the substantive law in play rather than an inadequate process).247 In Z v United Kingdom,248 the ECtHR noted249 that its understanding of the approach in the domestic courts had changed in light of the comments of Lord Browne-Wilkinson (such that there was no breach of Article 6 in a strike-out that held that there could be no negligence action based on a failure of a local authority to prevent child abuse).250 However, the normal situation will be that the UK courts will follow ECtHR case law even if they disagree with it. This is illustrated in part by Secretary of State v AF (No 3),251 which related to the requirements of procedural fairness under the control order regime applicable to suspected terrorists who could not be deported on human rights grounds. The holding in the case was that it was necessary to ensure that a detainee knew the gist of the case against him so that the special advocate appointed in relation to sensitive evidence that was not considered in open court could obtain adequate instructions. The House of Lords held that the guidance given by the Grand Chamber of the ECtHR in A v United Kingdom252 should be applied. There was limited discussion of section 2 of the Human Rights Act 1998, though Lord Carswell expressed its effect as follows: 108.

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… the authority of a considered statement of the Grand Chamber is such that our courts have no option but to accept and apply it.

But Lord Carswell indicated that he agreed with the decision, as did other members of the House.253 It is Lord Hoffmann’s position that is worth noting. 245

Osman v UK (1998) 29 EHRR 245. Barrett v Enfield LBC [2001] 2 AC 550. 247 ibid at 558D–560C. 248 Z v United Kingdom (2002) 34 EHRR 97. 249 At para 100. 250 X (Minors) v Bedfordshire County Council [1995] 2 AC 633. 251 Secretary of State v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. 252 A v United Kingdom (2009) 49 EHRR 625. 253 For example Lord Hope, at [2009] UKHL 28, [2010] 2 AC 269 at [80] indicated that the Grand Chamber had ‘exposed’ the problem with the previous procedure and at [83] outlined that its conclusion was hardly surprising; he spoke in positive terms of agreement. Lord Scott at [96] expressed his agreement with the reasoning of the Grand Chamber. 246

International Rights, Domestic Rights and Tribunals 281 He expressed the view that section 2(1) of the 1998 Act required the House to follow the Grand Chamber decision even though he thought it was erroneous: 70.

… I agree that the judgment of the European Court of Human Rights (‘ECtHR’) in A v United Kingdom (2009) 49 EHRR 625 requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to ‘take into account’ decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.

Lord Rodger also noted in that case that the position was ‘Strasbourg has spoken, the case is closed’.254 He also expressed his agreement with Lord Phillips, who accepted that the Grand Chamber had given the ‘definitive resolution’ of the issue in the case255 and that the requirement that courts act compatibly with ECHR rights and take into account ECtHR jurisprudence meant that the Grand Chamber’s ruling resolved the case.256 However, he gives no indication that he thought the ruling was problematic, commenting on the difficulty of having a fair trial if important material was kept away from a party,257 which was precisely the point of the Strasbourg judgment. The approach of Lord Hoffmann seems unwarranted: as the structure of the Human Rights Act allows a dialogue between the judiciary and Parliament which gives the final say to the latter (since it can overturn the effect of strained interpretations reached under section 3 if they produce a result with which it does not agree, and makes the final decision about what to do in relation to declarations of incompatibility, as is explained in Chapter 8), and between the UK judiciary and the Strasbourg judiciary, it was Lord Hoffmann’s judicial duty to explain his position and, having taken into account the jurisprudence of the ECtHR, to not follow it if it represented a misunderstanding of domestic law.

254

ibid at [98]. ibid at [50]. 256 [2009] UKHL 28, [2010] 2 AC 269 at [64]. In R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, the Supreme Court noted that a judgment of the Grand Chamber could only not be followed if it revealed an egregious misunderstanding of domestic law or was contrary to some ‘truly fundamental principle’ of domestic law (per Lord Mance at [28]). He noted that dialogue was possible if the decision from Strasbourg was from a Chamber rather than the Grand Chamber. 257 [2009] UKHL 28, [2010] 2 AC 269 at [63]–[64]. 255

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The position was summarised by Lord Neuberger MR, speaking for a ninejudge Supreme Court in Manchester City Council v Pinnock:258 48.

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This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see eg R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. … Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.

In short, ‘taking into account’ in the UK case law equates to following established ECtHR case law unless that case law is particularly problematic and should be revisited by that court after it has been given a better understanding of domestic law: if there is such a problem, the role of the domestic courts is to engage in a dialogue with the ECtHR to point out where there might have been an error. This following role also involves taking the logic of Strasbourg case law into new areas, but with a level of caution, the precise nature of which is difficult to define and on which different judicial views have been expressed. This difficulty reflects two principles that tend to pull in different directions: one is the importance of allowing the ECtHR to exercise its role of considering and ruling on a standard that applies across the Council of Europe; the other is the extent to which a domestic court should seek to fill in a gap because the domestic legislature requires it to give an assessment of what the ECHR requires. The Irish Supreme Court seems to have followed a more insular role in relation to section 4 of the European Court of Human Rights Act 2003. It has not strayed from the line that the ECtHR does not bind the Irish courts. In Mahon Tribunal v Keena and another,259 Fennelly J indicated: 43.

258 259

The combined effect of these provisions for the purposes of the present case is that the relevant sections of the Tribunals of Inquiry legislation must be interpreted in ‘a manner compatible with the State’s obligations under the Convention provisions.’ For that purpose, the court must take judicial notice of the Convention provisions themselves and of the various documents mentioned in section 4 of the Act of 2003. Foremost among those are the judgments of the European Court of Human Rights. The requirement that the Court take judicial notice of the Convention and of the various documents referred to means that they can be relied upon by the Court without special proof. The Court must, in addition, as the concluding words of the provision make clear, ‘take due account’ of the principles laid down in those judgments. This is not the same as saying that they constitute binding precedents.

[2010] UKSC 45, [2011] 2 AC 104. Mahon Tribunal v Keena and another [2009] IESC 64.

International Rights, Domestic Rights and Tribunals 283 The fact that the decisions are not binding precedents does not, however, give much in the way of guidance beyond indicating that they will not necessarily be followed. In this regard, this is not much different from the position that applies aside from section 4. In McD v L and Another,260 having commented that the state’s obligation in international law did not ‘in itself affect the application of national law’, Murray CJ added:

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This is not to take away from the fact that recourse may and has been had by our courts to the case-law of the European Court of Human Rights (ECtHR) for comparative law purposes when a court is considering the import of a right under our law which is the same or similar to a right under the Convention. (See for example In re Article 26 and the Health (Amendment) Bill 2004: 2005 1 IR 105.)

In the case relating to the Health (Amendment) Bill 2004, the Supreme Court had to consider the lawfulness of prospective and retrospective charging provisions for health services: the retrospectivity provisions were in place to prevent people who had been charged in the past claiming a refund in light of the apparent unlawfulness of such charging. But the Supreme Court struck them down as an unconstitutional breach of property rights. In so deciding, Murray CJ noted that case law from the ECtHR, Pressos Compania SA v Belgium,261 provided a useful illustration of the issues arising. His comment as to the purpose of section 4 in the McD v L case was that it ‘facilitates the Courts by permitting account to be taken of decisions of the ECtHR and other matters without special proof’ as well as requiring that account be taken of the principles set out by the institutions existing under the ECHR. He was also keen to point out that there was no direct incorporation of the ECHR and so there was limited use that could be made of its provisions. So he expressly disagreed with the High Court judge’s conclusion that Articles 1, 13 and 35 gave the domestic judiciary the obligation to create a remedy for a breach of a Convention provision. Rather:

219

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An international convention cannot confer or impose functions on our Courts. The role and functions of Courts in the administration of justice are governed by the Constitution and the laws of the State. Of course the Courts may be given jurisdiction to enforce or adjudicate on rights which the State has agreed, in an international treaty, to promote or protect. But it can only be conferred by national law and if sought to be done by making an international agreement, wholly or partially, part of domestic law then it must be done in accordance with Article 29.6 and in a manner consistent with the Constitution as a whole. … Accordingly, Courts will enforce or adjudicate on issues concerning rights which have their origin in an international convention when duly conferred with such jurisdiction as a matter of national law. Otherwise they have no jurisdiction to do so.

So the Article 13 obligation to provide a domestic remedy ‘does not purport to impose or confer any jurisdiction on national courts’: rather, it imposes an 260 261

McD v L and Another [2009] IESC 81. Pressos Compania SA v Belgium (1995) 21 EHRR 301.

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expectation that the contracting states will provide a remedy, and the ‘national authority’ through which this is achieved will usually be the courts. But: The absence of an adequate remedy in national law for the breach of a person’s convention rights does not entail a breach of duty by the national courts, who must apply national law, including constitutional law, but by the contracting state as such. For any such breach is answerable before the ECtHR.

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This, he explained, is the reason why the ECHR includes a right to seek a remedy from it, by way of a separate application rather than by way of an appeal. So he clearly rejected any view—such as that suggested by Cooke P in Tavita in the New Zealand context—that the transnational court is in any sense part of the domestic court structure. Another part of the reasoning of the Supreme Court was whether the High Court judge had been right to conclude that the biological father was part of the ‘de facto’ family. Denham J concluded at paragraph 76 of her judgment that there was no definitive jurisprudence from the ECtHR directly on point (suggesting that the Irish courts should not seek to pre-empt such case law). Fennelly J (with whom Geoghegan J agreed on this point) cited the Ullah approach from the UK, which he noted was roughly corresponding with the Irish position; and he concluded that the High Court judge had gone beyond what was appropriate on the duty of keeping pace but not getting ahead, given that there was no ECtHR case law that was directly on point: 103.

The learned judge identifies a movement or trend in the case-law and decides to move in that direction. …

104.

It is vital to point out that the European Court has the prime responsibility of interpreting the Convention. Its decisions are binding on the contracting states. It is important that the Convention be interpreted consistently. The courts of the individual states should not adopt interpretations of the Convention at variance with the current Strasbourg jurisprudence.

105.

… The Act of 2003 does not provide an open-ended mechanism for our courts to outpace Strasbourg.

As has been noted in Chapter 2, Irish residents are not limited to the ECtHR but may take cases to the Human Rights Committee of the UN. There is no duty to take its decisions into account, and so it becomes a matter of common law power. Kavanagh v The Governor of Mountjoy Prison & anor262 was a case taken after Mr Kavanagh had been successful in a communication to the Human Rights Committee,263 which found that the use of special courts in his case had not been objectively justified264 and so breached the duty to provide equality before the law in Article 26 of the ICCPR. He sought then to challenge his conviction and also contended that there was a breach of customary

262

Kavanagh v The Governor of Mountjoy Prison & anor [2002] IESC 13. Kavanagh v Ireland, Communication No 819/1998, Views of 4 April 2001: CCPR/ C/71/D/819/1998. 264 ibid, para 10.3. 263

International Rights, Domestic Rights and Tribunals 285 international law and so of Articles 29.2 and 29.3 of the Constitution. Fennelly J, for the Supreme Court, confirmed that these provisions did not confer individual rights, and added: The notion that the ‘views’ of a Committee even of admittedly distinguished experts on international human rights experts, though not necessarily lawyers, could prevail against the concluded decision of a properly constituted court is patently unacceptable. To be fair, even in international law, neither the Covenant nor the Protocol make such a claim. Neither the Covenant nor the Protocol at any point purports to give any binding effect to the views expressed by the Committee. The Committee does not formulate any form of judgment or declare any entitlement to relief.

Some comments are worth making on the thrust of the case law as to the duty to take into account the ECtHR’s case law. First, there is the comity rule that has been established under the duty to take account or give due account to decisions from Strasbourg. This self-imposed limitation does not seem to have been intended by the legislators, certainly not those in the UK: they accepted that domestic judges should play a part in the development of the living instrument (and declined to make Strasbourg decisions binding265). The corollary of this, that the ECtHR’s views should be regarded as a starting point rather than an end-point, is a minority view only among the judiciary. The bigger picture behind bills of rights statutes is that rights-based reasoning should be more entrenched in domestic law; part of this picture is that the margin of appreciation specifically allows one state to determine that it should go further than other member states of the Council of Europe, but the refusal of judges to move ahead of Strasbourg prevents this possibility. Indeed, the margin of appreciation means that the ECtHR may not be able to rule on some balancing questions because it will defer to the national authorities: in such a case, deferral by the national authorities to the ECtHR will mean that there is a circle of deferral and no progress will be possible. A pragmatic response to counter this point is that, as is developed in Chapter 7, the common law (and domestic statute law) may indeed develop further, and so there is no need for there to be developments which rest on the ECHR (which, given that the state cannot take a case there, prevents the obtaining of the views of the ECtHR unless a conservative approach is taken). But this surely entrenches the problem that bills of rights statutes are aimed to fix, namely that the rights in the ECHR, based on the common law tradition, are seen as belonging now to an alternative tradition: this means that whilst the human rights framework is designed to diminish the strictures of dualism, the response of the judges to a statutory attempt to counter dualist approaches to rights has been to reinvigorate the concept that there is ‘our’ common law and ‘their’ ECHR which we only use because a statute requires it.

265 See J Cooper and A Marshall-Williams, Legislating for Human Rights (Oxford, 2000) 35–44.

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286 227

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Secondly, there must be a concern about the delay in enforcing rights. Again, a clear purpose behind the UK statute was that people should not have to trek to Strasbourg to secure their rights. As an illustration, there have been several instances where claimants defeated in the domestic courts have then succeeded in the ECtHR: so in Al-Skeini v UK,266 the Grand Chamber of the ECtHR determined that all the claimants were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR. The disadvantage of this was that it involved a further delay of some 4 years (added to the time delay occasioned by going through the appellate processes in the UK). Whilst this, and other such cases, could be described as instances of the system working, in that the claimants were able to go further, it could also be said that they reveal the UK courts failing to ensure that rights are brought home, because the claimants still had to go further. However, there are signs in recent cases from the UK Supreme Court that a process of domesticating and embedding rights is taking place. As noted above, slender majorities have been willing to go further than the ECtHR on the basis of their view as to where that Court would go (though with some judges urging caution). An example of this that combines a number of features is R (Nicklinson and Another) v Ministry of Justice,267 where the Supreme Court set out the consequence of the national margin of appreciation and of the role for deference as between the judiciary and the legislature. The case turned on whether the law’s failure to allow assisted suicide was incompatible with Article 8 of the ECHR. It is a serious criminal offence (albeit that the Director of Public Prosecutions has issued guidance as to when there might be a prosecution for it). Suicide itself is not a crime; but there are people who cannot commit suicide because of physical impediments (and there are others who might wish for it to be carried out in a particular setting, so as to guarantee the nature of the process). The first part of the decision was that the question turned on standards that were for the UK to determine, there being no European consensus that might permit the ECtHR to make any decision beyond ruling that it was within the margin of appreciation: all nine justices agreed with this. The second part of the decision involved significant disagreement. A minority of four concluded that the issue was one that required an assessment of matters of such a nature that the legislature’s view had to be respected (albeit that they accepted that there was a question of law and so jurisdiction in the courts to make a ruling). But the majority determined that it was open to the courts to rule on whether the blanket ban breached what was a proper understanding of Article 8 within the UK. Three of them then held that the evidence in the case did not allow a decision, and also relied on the fact that there was an active debate ongoing in the legislature, which should be allowed to reach a conclusion. Two, Lady Hale and Lord Kerr, suggested that it was proper to issue a declaration 266 267

Al-Skeini v UK (2011) 53 EHRR 18, App no 55721/07, 7 July 2011. [2014] UKSC 38.

International Rights, Domestic Rights and Tribunals 287 of incompatibility. So the deference from the three was in the context of an indication that there might well be a review by the courts; and the willingness of Lady Hale and Lord Kerr to give an indication that the one option that could not be supported was the current position provides parameters for the legislative discussion of where to draw the balance. The important point is that this involves the domestication of rights arguments based on the ECHR, and in such a way that might assist the development of a consensus over time within the Council of Europe. This reflects the aim behind the legislation of having the rights arguments in domestic courts, particularly when the margin of appreciation means that there can be no significant progress within the transnational arena. In this context, it may be that one part of the case law apparently overturned in McCaughey, discussed above, is actually correct. In In re McKerr,268 it was noted that it was important to differentiate between the (international) rights existing under the ECHR and the (domestic) rights arising under the Human Rights Act. The context here was whether the inquest into a precommencement death had to be compliant with the ECHR, and the House of Lords determined that the retrospectivity provisions of the domestic statute meant that the two sets of rights did not coexist. As found in McCaughey, an updated understanding of the procedural obligation in relation to the right to life meant that the retrospectivity point no longer applied. So whilst in McKerr the difference between the domestic and international rights was used to narrow the scope of the former, the views in Nicklinson suggest that there may be wider rights in the domestic setting because it might be necessary for their content to be given through national processes to which the ECtHR would have to defer.

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v. Domestic Precedent Rules The facts of the UK case of Pinnock, noted above as summarising the UK position, involved a local authority tenant whose tenancy had been made less secure because of anti-social behaviour by his children and which was then terminated because of further such behaviour. This was then subject to an internal review, which upheld the decision to seek possession; the proceedings for possession were commenced in court, and the question arose as to whether the judge should review the decisions of the local authority on normal public law grounds or whether the judge should take into account Article 8 of the ECHR and the proportionality of removing someone from their family home. The Supreme Court determined that proportionality had to be assessed by the court (and that it was on the facts). Central to the determination of the 268 In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35. See also Al-Skeini and others v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153, [2007] Inquest LR 168, in which it was determined that a claim under the Human Rights Act 1998 required the claimant to show both that the ECHR applied and also that the claim was within the scope of the Human Rights Act.

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court was the approach of the ECtHR to what was required in the circumstances, which was to the effect that Article 8 required a court assessment of proportionality, as part of the procedural safeguards inherent in that Article. In applying this approach, the Supreme Court moved away from three recent majority decisions of the House of Lords:269 the minority views in these cases had been endorsed by the ECtHR.270 This illustrates another question that arises when the jurisprudence of the international human rights court is essentially binding: how does it interface with the domestic approach to precedent? Two aspects of this have emerged in the UK jurisprudence. First, pre-Human Rights Act authorities do not have to be followed if the Act requires a different conclusion in light of the need now to take ECtHR case law into account. This can be seen as an example of the power of a statute to override authority. So, for example, in R (IH) v Home Secretary and Secretary of State for Health,271 the House of Lords held that previous House of Lords authority (relating to whether a Mental Health Review Tribunal could be reopened) needed to be revisited in order to comply with Article 5 ECHR; and it was also indicated that this had been open to the lower courts. The High Court judge hearing the application had not followed the previous authority;272 the Court of Appeal had expressly ruled that the House of Lords authority was no longer valid.273 Lord Bingham in the House of Lords agreed and said that ‘27. … I would accordingly endorse the Court of Appeal’s decision to set aside the [previous] ruling’.274 There is a second scenario, however, namely the development of case law in the international tribunal. It may be that the living instrument approach means that a line of precedent changes; or a point decided by a domestic court without the benefit of a ruling on a similar scenario by the international tribunal may be contrary to a later such ruling. In this situation, it has been 269 Harrow LBC v Qazi [2004] 1 AC 983, Kay v Lambeth LBC [2006] 2 AC 465 and Doherty v Birmingham City Council [2009] AC 367. 270 Most importantly in Kay v UK (2012) 54 EHRR 30. 271 R (IH) v Home Secretary and Secretary of State for Health [2003] UKHL 59, [2004] 2 AC 253. 272 [2001] EWHC Admin 1037, [2002] MHLR 77; at [48], he noted that it was accepted that he could depart from the earlier authority. 273 [2002] EWCA Civ 646, [2002] MHLR 87; at [63], it was noted that this was an accepted position. 274 Note, however, that in Kay v Lambeth LBC, which is discussed below, Lord Bingham described how in D v East Berkshire Community NHS Trust [2005] UKHL 23, [2005] 2 AC 373, the House had not criticised the Court of Appeal for finding that earlier authority from the House of Lords, X (Minors) v Bedfordshire County Council [1995] 2 AC 633, was no longer binding because it had been based on policy-based immunities for public authorities that were contrary to duties imposed on public bodies (on the facts, the duty to protect children from abuse that amounted to a breach of Article 3 of the ECHR). But he suggested that X v Bedfordshire was an exceptional case because it had been decided long before the Human Rights Act 1998 came into effect, did not contain any references to the ECHR, and the situation had been found to breach Article 3 by the ECtHR (in Z v UK (2001) 34 EHRR 97). The suggestion was that ‘extreme facts’ such as these would be necessary for a lower court not to follow precedent. It is suggested that, as illustrated by the IH case law, this is an overly restrictive approach in light of the simple statutory introduction of an obligation to follow what the ECHR requires rather than previous case law.

International Rights, Domestic Rights and Tribunals 289 determined by the UK courts that the normal rules of precedent apply: so a lower court must allow the same court as made the earlier ruling to decide what should happen (even though the approach to section 2 of the 1998 Act effectively means that the new ECtHR approach is very likely to be followed). This arises from Kay v Lambeth LBC, Leeds City Council v Price,275 one of the decisions not followed in terms of its substantive ruling in Pinnock because it was found wanting by the ECtHR. Lord Bingham (whose minority decision on the substantive point was to find favour eventually) set out the following account of the approach to precedent at the domestic level. The context was that the Court of Appeal in one case had determined that, although it found that a House of Lords’ ruling was inconsistent with later ECtHR case law, it would follow the House of Lords’ authority but grant permission to appeal. This was upheld. Lord Bingham noted that there was a carefully crafted submission that later ECtHR case law should be followed if four conditions were met, which were:

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(1) the Strasbourg ruling has been given since the domestic ruling on the point at issue, (2) the Strasbourg ruling has established a clear and authoritative interpretation of Convention rights based (where applicable) on an accurate understanding of United Kingdom law, (3) the Strasbourg ruling is necessarily inconsistent with the earlier domestic judicial decision, and (4) the inconsistent domestic decision was or is not dictated by the terms of primary legislation, so as to fall within section 6(2) of the 1998 Act.276

But he noted that ‘adherence to precedent … has been a cornerstone of our legal system’277 and that certainty was of value and could be supported by some procedural flexibility: 43.

… That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.

He also added that there was a supplemental structural reason as to why the precedent rule was a good thing: 44.

275 276 277

There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular

Kay v Lambeth LBC, Leeds City Council v Price [2006] 2 AC 465 at [40]–[45]. ibid at [41]. ibid at [42].

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Working Out the Content of Rights cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.

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In short, the need for certainty is best achieved by requiring lower courts to follow a decision that may well be flawed and leaving it to the court that made it to determine whether it is indeed flawed; this is reinforced by the fact that the margin of appreciation often applies, such that there has to be a definitive national ruling, and this should be based on the normal domestic approach to precedent.278

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This approach based on precedent has not been challenged. For an example in practice, see R (Kaiyam) v Secretary of State for Justice,279 in which prisoners detained under sentences of imprisonment for public protection but not receiving appropriate courses to help them reduce risk and so have a prospect of release complained that there was a breach of Article 5 ECHR. High Court judges had dismissed the claims on the basis that the House of Lords had ruled that there was no such breach: R (James and others) v Secretary of State for Justice.280 But the ECtHR had ruled that there was a breach: James, Wells and Lee v UK.281 Lord Dyson MR, for the Court of Appeal, noted that, in light of Kay: 5.

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It is common ground that … both judges were right to regard themselves as bound to follow the House of Lords decisions: It is not argued that this is an exceptional case which would justify departing from the general domestic rules of precedent. It is also clear that, although we are obliged to follow the House of Lords decisions, we can (but are not obliged to) review the Convention arguments and express our views on them.

However, given that there is a clear rule that ECtHR precedent will be followed unless there are strong grounds to argue that it is wrong, and the purpose of the Human Rights Act was to prevent people having to wait to have their rights endorsed, why should not the lower courts be able to follow the Strasbourg development, leaving it to the governmental body to appeal if it were thought necessary on the basis that there was a ground for suggesting that this was a case in which the domestic courts could be persuaded not to follow the 278 Lord Bingham did add what he described as a ‘partial exception’, namely where precedent that had not engaged with ECHR case law because it was from pre-Human Rights Act days might be ignored: see n 273 above and the limited circumstances in which he thought this might allow domestic authority to be ignored by a lower court. 279 R (Kaiyam) v Secretary of State for Justice [2013] EWCA Civ 1587. 280 R (James and others) v Secretary of State for Justice [2009] UKHL 22, [2010] 1 AC 553. 281 James, Wells and Lee v UK (2013) 56 EHRR 12. In one of the cases, there was also an argument based on Article 14, in relation to which R (Clift) v Home Secretary [2006] UKHL 54, [2007] 1 AC 484 had been found in error in Clift v UK, App no 7205/07, 13 July 2010.

International Rights, Domestic Rights and Tribunals 291 ECtHR? The appeal ruling would then be followed in accordance with the domestic rules (and the claimant would be in a position to take a challenge to the ECtHR). To insist that the development in the domestic law must go through the whole domestic process, with the relevant time and expense incurred, seems to be an exercise in procedural formalism that is incompatible with the ethos of allowing rights to be vindicated at the earliest possible opportunity on which the domestication of rights is based.

6 Pre-Enactment Scrutiny I.

Legislative Statements of Compatibility ..................................................6 A. The Statutory Provisions ..................................................................7 B. Supporting Policy Documents ........................................................11 C. Variations in Law and Practice ......................................................21

II. Parliamentary Scrutiny .........................................................................49 III. Legislative Override ..............................................................................63 IV. Delegated Legislation ...........................................................................69

1

2

The wide statements of principle in human rights documents invariably require more detailed rules to be laid down; indeed, the need for regulation by law of various rights, where balancing between rights and/or between rights and community interests has to be in accordance with the law, may require legislative action. In the context of action by the legislature, the aim of the common law concept of legality, discussed in Chapter 3, is to avoid inadvertent breaches of fundamental rights by the legislature: in short, if Parliament has not made clear that it is knowingly breaching fundamental rights, efforts will be made to construe statutory language compatibly with rights.1 Of course, a situation that requires a court to give a particular construction suggests a lack of clarity in the language. Since prevention is better than cure, the bills of rights statutes typically include processes that seek to ensure that legislation is drafted so as to comply with what after all are international obligations of the state. This can also be seen as part of the statutory purpose outlined in Chapter 4 of making sure that human rights are central to the legal framework. The two main techniques are reports or statements by the sponsor of a Bill or a legal officer that it is not believed to breach rights (or, rarely, that it does but should proceed in any event), and reports from a legislative scrutiny committee as to compliance with human rights standards. The different regimes can be summarised as follows: (i) In New Zealand, it is necessary for the Attorney-General to report on any apparent inconsistency between a Bill (government or otherwise). Scrutiny within Parliament is carried out by a non-specialist select committee 1 There is also the statutory interpretive obligation, discussed in Chapter 8; some judicial comments suggest it is a statutory version of legality, applied to the rights expressed in the various bills of rights statutes rather than the rights recognised in the common law tradition.

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of legislators. There is a significant amount of material now made available as to the legal opinions as to compliance generated with government legal circles; and the process of forming legislation requires human rights reporting. (ii) In the UK Parliament, a Minister makes a statement as to compatibility or not of government Bills; but all the relevant legal opinions are kept within government. The process of formulating government Bills requires consideration of human rights standards from the outset. There is a standing committee of Parliament designated to deal with human rights issues, which is taken into account by the executive as part of the drafting of legislation. (iii) In the devolved UK legislatures, human rights compliance is a prerequisite to the statutes having validity; the presiding officer therefore forms an assessment of compatibility as well as the relevant statement having to be made by the Minister (or the proposer of the Bill in Scotland or Wales). In addition, there is a process allowing the Supreme Court to give an opinion on validity in advance of a statute passing. (iv) In Ireland, there are no special provisions. (v) In Australia, although there is no Commonwealth Bill of Rights, there is a statutorily created Parliamentary Joint Committee on Human Rights and statements of compatibility with all international human rights standards must be prepared by legislators introducing Bills. In the two jurisdictions that have bills of rights, the ACT and Victoria, statements of compatibility with the rights set out in the domestic statute are required in relation to government Bills in the ACT and all Bills in Victoria; and both have Parliamentary scrutiny requirements, though not by a specialist human rights committee. In addition, the Victorian legislature has a specific power to declare that rights are overridden in a statute that it passes. These processes may interplay with the role of the courts in providing the ultimate interpretation of what the legislative words mean since the legislative history may be relevant.2 In short, if the process followed by legislators in the course of passing legislation reveals that they believe that they have not breached fundamental rights (for example because the action taken amounts to a justified limitation on a right), that might be a factor that feeds into the question of the extent to which the judges—who have the task of determining that legal question—can properly use their interpretive powers to construe the language in play so as not to breach rights. Of course, there may also be situations in which the legislature takes one view of what a rights-compliant scheme involves but the judges take a different view. The question for the courts will invariably be whether the dominant purpose of the legislature is to have the legislation operated in a manner that complies with rights or to have it operate in the way legislators envisaged.

2 However, as is noted in Chapter 8, there are different approaches in different jurisdictions as to the admissibility of parliamentary material.

3

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The reverse might also be so: a statement by the sponsor of a Bill that its language is believed to breach fundamental rights, or a warning from a scrutiny committee that statutory language has that effect, might be used to support a contention for an outcome that is inconsistent with rights (which the courts might formally mark with a declaration to that effect, on which see Chapter 10) if the language in the final legislation is the same. However, the judicial interpretive obligation to strive for rights consistency would still apply if the legislation was phrased in a way that did not clearly secure the outcome of breaching rights. This chapter analyses the relevant provisions, first in relation to statements of compatibility, then the parliamentary scrutiny process. There is then an account of the legislative override provision in Victoria (which originated in Canada), allowing the legislature to direct that the interpretive obligation not apply;3 and finally there is a note about delegated legislation.

I. LEGISLATIVE STATEMENTS OF COMPATIBILITY

6

The statutory provisions and some supplemental materials relating to practice are set out and then the variations are summarised.

A. The Statutory Provisions 7

The statutory provisions relating to statements of compatibility in the nonconstitutional bills of rights are as follows (save that there is no relevant language in Ireland’s European Convention of Human Rights Act 2003): New Zealand—New Zealand Bill of Rights Act 1990 7. Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights Where any Bill is introduced into the House of Representatives, the AttorneyGeneral shall,— (a) (b)

In the case of a Government Bill, on the introduction of that Bill; or In any other case, as soon as practicable after the introduction of the Bill,—

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

3 As did the requirement for a report on the consistency of legislation so as to alert legislators: section 2 of the Canadian Bill of Rights 1960 provides for an interpretive obligation to apply in relation to the various rights set out in the statute unless the Parliament of Canada makes an express declaration to the contrary; and section 3 requires the Minister of Justice to assess proposed legislation for inconsistency and report that to the House of Commons.

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UK—Human Rights Act 1998 19. Statements of Compatibility (1)

A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill— (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (‘a statement of compatibility’); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate. ACT—Human Rights Act 2004 Part 5 Scrutiny of proposed Territory laws 37. Attorney-General’s statement on government bills (1)

This section applies to each bill presented to the Legislative Assembly by a Minister. (2) The Attorney-General must prepare a written statement (the compatibility statement) about the bill for presentation to the Legislative Assembly. (3) The compatibility statement must state— (a) whether, in the Attorney-General’s opinion, the bill is consistent with human rights; and (b) if it is not consistent, how it is not consistent with human rights. … 39. Noncompliance with s 37 and s 38 A failure to comply with section 37 or section 38 in relation to a bill does not affect the validity, operation or enforcement of any Territory law. Victoria—Charter of Human Rights and Responsibilities 2006 Part 3, Division 1—Scrutiny of New Legislation 28. Statements of compatibility (1)

(2)

A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill. A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under sub-section (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

Note: The obligation in sub-sections (1) and (2) applies to Ministers introducing government Bills and members of Parliament introducing non-government Bills.

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(3)

A statement of compatibility must state— (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility. (4) A statement of compatibility made under this section is not binding on any court or tribunal. 29. No effect on Victorian law A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

8

There is also human rights protection in the UK’s devolution legislation, and the provisions as to legislative scrutiny involve (i) a requirement that the sponsor of a Bill form a view that it is within competence and (ii) a process giving the Supreme Court jurisdiction to rule on the matter before enactment. The relevant provisions are in the following terms: Scotland Act 1998 31. Scrutiny of Bills before introduction. (1)

A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament. (2) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision. ... 33. Scrutiny of Bills by the Supreme Court. (1)

The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.4 (2) [Sets a time limit of 4 weeks from the passing of the Bill.] Northern Ireland Act 1998 9. Scrutiny by Ministers. (1)

A Minister in charge of a Bill shall, on or before introduction of it in the Assembly, make a statement to the effect that in his view the Bill would be within the legislative competence of the Assembly.

4 The Lord Advocate is a member of the Scottish Cabinet and the Chief Legal Officer for the Scottish government in relation to Scots law; the Advocate General represents the Scottish government in litigation; the Attorney-General is the Westminster government’s chief legal officer.

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The statement shall be in writing and shall be published in such manner as the Minister making the statement considers appropriate.

10. Scrutiny by Presiding Officer. (1)

Standing orders shall ensure that a Bill is not introduced in the Assembly if the Presiding Officer decides that any provision of it would not be within the legislative competence of the Assembly.

... 11. Scrutiny by the Supreme Court. (1)

(2)

The Attorney General for Northern Ireland may refer the question of whether a provision of a Bill would be within the legislative competence of the Assembly to the Supreme Court for decision. [Sets a time limit of 4 weeks from the passing of the Bill.] ...

(4)

If the Supreme Court decides that any provision of a Bill would be within the legislative competence of the Assembly, its decision shall be taken as applying also to that provision if contained in the Act when enacted.

Government of Wales Act 2006 110. Introduction of Bills5 (1)

A Bill may, subject to the standing orders, be introduced in the Assembly— (a) by the First Minister, any Welsh Minister appointed under section 48 any Deputy Welsh Minister or the Counsel General, or (b) by any other Assembly member. (2) The person in charge of a Bill must, on or before the introduction of the Bill, state that, in that person’s view, its provisions would be within the Assembly’s legislative competence. (3) The Presiding Officer must, on or before the introduction of a Bill in the Assembly— (a) decide whether or not, in the view of the Presiding Officer, the provisions of the Bill would be within the Assembly’s legislative competence, and (b) state that decision. ... 112. Scrutiny of Bills by Supreme Court (1)

(2)

5

The Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision. [Sets a time limit of 4 weeks from the passing of the Bill.]

Sections 97ff made equivalent provision for Assembly Measures.

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There are provisions requiring that the legislative body have a chance to reconsider a Bill found beyond competence: see section 36(4) of the Scotland Act 1998, section 13(5) of the Northern Ireland Act 1998 and section 111(6) of the Government of Wales Act 2006. In the Australian Commonwealth Parliament, although it has not enacted a bill of rights statute, it has scrutiny legislation relating to international standards binding on Australia. The Human Rights (Parliamentary Scrutiny) Act 2011 contains in section 3 a definition of ‘human rights’ as being those set out in ICERD 1965, ICESCR 1966, ICCPR 1966, CEDAW 1979, CAT 1984, UNCRC 1989 and CRPD 2006 so far as they apply to Australia. The obligations to comply with all these conventions is discussed in Chapter 2: suffice it to say, the list represents the core human rights treaties that are binding on Australia as a matter of international law.6 The obligation as to providing a statement of compatibility is found in Part 3 of the statute: Part 3—Statements of compatibility 8. Statements of compatibility in relation to Bills (1)

(2)

(3) (4) (5)

A member of Parliament who proposes to introduce a Bill for an Act into a House of the Parliament must cause a statement of compatibility to be prepared in respect of that Bill. A member of Parliament who introduces a Bill for an Act into a House of the Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be presented to the House. A statement of compatibility must include an assessment of whether the Bill is compatible with human rights. A statement of compatibility prepared under subsection (1) is not binding on any court or tribunal. A failure to comply with this section in relation to a Bill that becomes an Act does not affect the validity, operation or enforcement of the Act or any other provision of a law of the Commonwealth.

B. Supporting Policy Documents 11

In New Zealand, guidance on the drafting of legislation is provided by the Legislation Advisory Committee. Chapter 4 of their Guidelines from 20017 covers human rights, including the NZBORA and the non-discrimination provisions of the Human Rights Act 1993, pointing out that these matters must

6 The Convention Relating to the Status of Refugees 1951 is not listed: but it is not listed as one of the UN’s core human rights treaties. 7 Available at www2.justice.govt.nz/lac/. The Committee consists of judges, practitioners, academics and Parliamentary Counsel.

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be considered from the time that a policy is being developed that might require legislation and setting out how this can be achieved.8 In addition, the Cabinet Manual9 contains guidance in chapter 7 as to how government Bills are developed, including the need for vetting for compliance with fundamental rights:

12

Compliance with legal principles and obligations 7.60. Ministers must confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme. In particular, Ministers must draw attention to any aspects of a bill that have implications for, or may be affected by: (a) the principles of the Treaty of Waitangi; (b) the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993; (c) the principles in the Privacy Act 1993; (d) international obligations; (e) the guidance contained in the LAC Guidelines.

The Manual also notes the obligation of the Attorney-General to provide a formal vetting and indicates that issues of potential inconsistency ‘should be identified at the earliest possible stage’ (paragraph 7.62). More detail on the role of the Attorney-General is provided in Part 4 of the Manual; the function under section 7 of NZBORA is a ‘Law officer role’ (paragraphs 4.3–4.5), which precludes party political considerations and means that the advice given is not subject to collective responsibility. In addition, it is noted that the Attorney has particular responsibility for the rule of law, which raises the interesting question of whether a view that a Bill breaches international obligations and human rights standards is one for which the Attorney can be required to vote (or should vote) when it comes to a parliamentary vote.10 In the UK, there is also guidance in the Cabinet Manual.11 In chapter 6, the ECHR is outlined, as is the Human Rights Act 1998, and the following guidance is given as to the provisions of section 19 of the 1998 Act (footnotes omitted): 6.30. Under section 19 of the Human Rights Act 1998, the minister in charge of a government bill must, before second reading of the bill in Parliament, make a statement that in his or her view the bill’s provisions are compatible with the Convention rights. Rarely, a minister may also make a statement that he or she cannot say that the bill’s provisions are compatible but that the Government nevertheless wishes Parliament to proceed with the bill.

8 Chapter 3 sets out various common law presumptions, including rights-protecting ones: see Chapter 3. 9 2008 edition: available at http://cabinetmanual.cabinetoffice.govt.nz/. 10 In other words, does the Attorney-General’s function to uphold the rule of law cease once a parliamentary vote is called? 11 October 2011, available at www.gov.uk/government/publications/cabinet-manual.

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6.31 Before a bill is introduced or published in draft, ministers must submit to the Cabinet committee responsible for legislation the ECHR memorandum which sets out the impact, if any, of the bill on the ECHR rights. The memorandum must be cleared by the Law Officers before it is submitted to the committee, and so should be sent to the Law Officers at least two weeks before being circulated to committee members.

15

More detailed guidance is contained in the separate Cabinet Office Guide to Making Legislation, as updated.12 Among its ‘Key Points’ at the introduction to chapter 11 on the ECHR, the Guide states: — Consideration of the impact of legislation on Convention rights is an integral —

16

part of the policy-making process, not a last-minute compliance exercise.13 Legislative provisions should contain appropriate safeguards and limitations to ensure compliance with the Convention rights; but these should not repeat the more general safeguards already guaranteed by the Human Rights Act and the Convention rights. …

The Guide sets out the importance of early discussion with legal advisers in the relevant department, and requires the preparation of a memorandum to the government’s Parliamentary Business and Legislation Committee (which manages the legislative programme) as to compatibility with the ECHR. The more detailed provisions relevant to this memorandum note that the Law Officers will assist with the final draft of it, and that updated memoranda will be required if there are amendments to Bills during the parliamentary process. As to what should be contained, the Guide states: 11.11 Memoranda should cover the human rights issues raised, with a frank assessment by the department of the vulnerability to challenge in legal and policy terms. The ECHR memorandum cannot be disclosed and should address the weaknesses as well as the strengths in a department’s position. It can assume a basic knowledge of the ECHR and should be supported by any significant cases that may affect the analysis. It should not, however, be a compendious discussion of the case law. Over-lengthy memoranda are likely to be unwelcome and attract criticism at PBL. What is needed is a clear and succinct statement of the human rights considerations and the justification in ECHR terms for any interference. Where advice has been sought from Counsel or from the Law Officers it will often be helpful to refer to the advice received in the memorandum or, in some cases, annex the advice to the memorandum.14

12 The latest version is from April 2013, available at www.gov.uk/government/publications/ guide-to-making-legislation. 13 In the expanded guidance, it is noted at paragraph 11.6 that ‘It should be standard practice, when preparing a policy initiative, for officials to consider the impact of the proposed policy on people’s Convention rights. Officials therefore need awareness of the Convention rights, and of key concepts such as proportionality. Such consideration must not be left to legal advisors (though they should be involved throughout) or to a last-minute “compliance” exercise’. 14 Note, however, that paragraph 11.7 of the Guide indicates that any advice given by the Law Officers should not be disclosed. Note also that the previous version of this Guide, from 2010, noted in paragraph 12.9 that ‘Though the primary focus should be upon the Convention rights, other relevant treaty obligations should be addressed, eg those in the UN International Covenant on Civil and Political Rights (ICCPR), or those in the UN Convention on the Rights of the Child’.

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The statutory requirement that Ministers must personally make statements of compatibility in each House is noted, and the format of these is set out. It is also possible for there to be a statement that there is no compatibility but that it is the wish of the government to proceed. At paragraph 11.21 it is noted that the ‘most common (but not the only) situation’ in which this will occur is where the Bill has been amended in one House in a way that is not compatible with the ECHR: it is suggested that this will be explained during the debate. The Guide adds: 11.24

17

There is no legal obligation on the minister to give a view on compatibility other than as required by section 19, nor is there a specific requirement for the minister to reconsider compatibility issues at a later stage. Nonetheless, were a minister to reach the conclusion that the provisions of a bill, whether as originally introduced or as amended, no longer met the standards required for a section 19 statement to be given, it would be a breach of the Ministerial Code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

The limitation of the section 19 process to government Bills is noted in the Guide, but it is also recorded that:

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11.27. No section 19 statement is needed for private members’ bills. However, where it is proposed that the Government supports the bill, it should be in a position to make a statement concerning the compatibility of the bill, and the department will need to produce an ECHR memorandum for PBL Committee before it gives clearance to support the bill. Where the Government decides to take a genuinely neutral stance on a private member’s bill (eg by permitting a free vote), as opposed to the neutrality demanded by convention when opposing a private member’s bill in the House of Lords, it will be appropriate for the Government to be in a position to indicate to the House its view on Convention compatibility. The lead department should therefore inform PBL Committee of its view when seeking agreement to the position of neutrality. It may not be necessary to produce a separate ECHR memorandum for the purpose but the precise approach should be decided on a case-by-case basis with the Attorney General’s Office and Legal Secretariat to the Advocate General for Scotland.

The suggestion from the Guide is that there is a significant amount of discussion about human rights matters as part of the process of preparing legislation, albeit that only limited information about this will be made public. However, Bills presented to Parliament by the government are accompanied by Explanatory Notes, and the Guide notes that these should provide additional information to assist Parliament.15 This expansive approach is not followed in relation to the Explanatory Notes that accompany an Act: paragraph 11.37 of the Guide notes that there is no need for a statement of compatibility, and that there should be no reference to compatibility (or to the making of a section 19 statement). 15 Paragraphs 11.28–11.30. It is specifically noted that information as to compatibility with the Convention on the Rights of the Child is to be included. It is also recorded that the Parliamentary Joint Committee on Human Rights, discussed below, will provide additional analysis and may ask for additional memoranda on particular points (or on other human rights standards: the Convention on the Rights of the Child is also mentioned).

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There is guidance on the drafting of legislation in Australia as well. The Department of the Prime Minister and Cabinet produced a Legislation Handbook in 1999;16 it mentions human rights obligations briefly, indicating the need to consult the office of the Attorney-General if legislative provisions may breach international human rights obligations.17 This, however, has been overtaken by the 2011 statute. In Ireland, the process is as in the non-statutory Australian setting, as it is accepted to be a function of the Attorney-General to advise on human rights issues in the legislative drafting process.18

C. Variations in Law and Practice 21

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There are some variations between the statutory provisions and processes as to legislative statements of compatibility. These concern: (i) whether government or all Bills are covered, (ii) who carries out the function, (iii) the timing of the statement and whether it is repeated or is a continuing duty, (iv) whether the statement is binding on the courts, (v) the consequence of no statement being made, including whether that can be challenged, (vi) what human rights standards have to be covered in the report, (vii) the level of detail in the report, (viii) whether the report is needed for consistency and inconsistency or only the latter, and (ix) whether advice from the courts is permitted during the legislative process. Dealing with these in turn, first, there is the question of whether the mechanism applies to all Bills or just to government Bills: — —

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In the UK (except Wales) and the ACT, it is just government Bills; however, UK practice is that private members’ Bills that are supported by the government must be assessed for compatibility. in New Zealand and Victoria, and also Wales, it is all Bills, although the obligation as to assessment is made by the Attorney-General in New Zealand and the sponsor in Victoria.

Since all statutes, not just those that originate with the government, are covered by the international obligation of the legislative branch of the state not to pass rights-breaching statutes, and are subject to the assessment of whether they breach rights and, if so, the interpretive obligation of the courts discussed

16

Updated once, in 2000; available at www.dpmc.gov.au/guidelines/index.cfm. Legislation Handbook, para 6.34. 18 See the Functions of the Attorney General on the official webpage for the office: www. attorneygeneral.ie/ac/ac.html#drafting. It is noted that ‘The drafting of legislation in the Office of the Attorney General is undertaken by specialist Parliamentary Counsel, with Advisory Counsel having an important but essentially auxiliary role in the drafting process. The role of the Advisory Counsel is primarily to provide advice on the proposed legislative action, for example, on whether it might conflict with the provisions of the Constitution, acts and treaties of the European Union, the European Convention on Human Rights or other international treaties to which the State has acceded’. 17

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in Chapter 8, the model that applies the mechanism to all Bills seems more sensible. A second variation is whether the function of reporting compatibility is carried out by a law officer, a Minister, or a legislator: — — — —

In New Zealand and the ACT, the Attorney-General is responsible. In the UK Parliament, it is the Minister (but only in relation to government Bills). In Victoria, it is the sponsor of the Bill, which could include a private member; the Australian Commonwealth Parliament’s obligation as to reporting is also imposed on whoever is the sponsor of the Bill. In the devolved legislatures of the UK, in Scotland and Wales it is the person who introduces the Bill, but in Northern Ireland it is the relevant Minister; however, in each jurisdiction, the officer who presides over the legislature must also form a view as well.

These differences may be relatively limited in practice, given that a private member might well consult with an appropriate lawyer, such as a parliamentary drafter, and the guidance in the UK indicates that Ministers will act on advice from relevant government lawyers. However, the approach in the devolved legislatures in the UK, with the supplemental requirement that the legislature’s presiding officer form a view, is worth noting: this has the practical benefit of providing a neutral voice, given that the promoter of the legislation might have a partisan interest in arguing for compliance. In the international context, the duty of compliance with human rights standards is placed on the state: as such, all the branches of government are bound. Whilst the domestic constitutional frameworks allow the various legislatures other than the devolved ones to breach fundamental rights as a matter of domestic law, they nevertheless have a stake in the central purpose behind the bills of rights statutes, namely avoiding inadvertent breach of fundamental rights. The presiding officer is an appropriate official in this regard, as he or she will have access to advice from neutral parliamentary officials. However, where parliamentary committees carry out a scrutiny role in some of the legislatures involved, this might obviate the need for the presiding officer to form a view. New Zealand is the jurisdiction that seems to be lacking in this regard as there is no specialist scrutiny committee or requirement placed on a neutral officer such as the Speaker of Parliament. A third issue that arises is the timing of the statement. The statutory provisions all require early action, though there are some variations: —

—

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in New Zealand it is on introduction in relation to government Bills and as soon as practicable in relation to private members’ Bills; in the ACT, the obligation arises on presentation of the relevant government Bill, and although there is no specific time limit mentioned for the report to be produced, the natural implication is that it will be on the introduction of the Bill. for the UK and Victoria, the obligation is linked to the second reading of the Bill, but there is a difference in that the UK statute requires the

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Pre-Enactment Scrutiny relevant Minister in each House of Parliament to make a statement, and so two statements are required, the second one after the Bill has progressed through one level of Parliament.

27

Case law in New Zealand confirms that the duty to provide a vetting report there is not a continuing one and so is not re-triggered by an amendment to a Bill during the unicameral legislative process: see Boscawen, McVicar and Hide v Attorney-General.19 The argument put in favour of the contrary view was twofold: first that the purpose of section 7 was to ensure that the legislature was warned about potential breaches of rights; and second that section 16(2) of the Interpretation Act 1999 provides that a duty or function imposed by an Act may be performed from time to time. The Court of Appeal, upholding the High Court judge, said: [46] That argument confuses purposive interpretation with advocacy for legislative change. It may well be that there is a case to argue that s 7 should require the Attorney-General to report at other stages in the legislative process. But, as Clifford J correctly observed, s 7 is clear and unambiguous in its terms. Purposive interpretation does not extend to rewriting the statute book. Similarly, the application of s 16(2) cannot affect the interpretation of s 7. Section 16(2) applies where a provision imposes a duty, without specifying that the duty must be undertaken at a particular point of time or on the happening of a certain event. In the present case, s 7 not only imposes the duty, but says when it must be performed (on the introduction of the Bill). A Bill can be introduced only once. That means that the duty arises only once.

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The UK arrangement allows a reconsideration of compatibility at the early stage of progress through each House of Parliament, and so there will be a second formal assessment (albeit only in relation to government Bills). Whilst this does not deal with amendments made during final debates on a Bill, the practice in the UK is for Ministers to bring to the attention of Parliament any concerns raised. Again, if there is proper ongoing scrutiny within Parliament, perhaps by a relevant select committee, the absence of a formal requirement that the sponsor of the Bill confirm ongoing compliance as the matter proceeds is less important. Nevertheless, it is worth asking why it is not possible for the sponsor of proposed legislation to indicate immediately before it completes its passage that it is believed to be compliant with human rights standards, which could clarify that the belief of legislators is that they are meeting their obligations. The position of the UK that there should be no mention of human rights compliance in explanatory notes that accompany an Act is to be noted here. This may reflect a sensitivity to separation of powers concerns, which is evident in a fourth variation between the statutes. The Victorian statute makes it clear that the statement is not binding on courts and tribunals; the Australian Commonwealth scrutiny statute similarly makes this clear. This is not express in the other statutes, but it would be a breach of the separation of powers for 19

Boscawen, McVicar and Hide v Attorney-General [2009] NZCA 12.

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the legislature’s views on the meaning of a statute to be binding on the courts, which have the task of giving an authoritative view on the meaning of statutory language.20 As discussed in Chapter 8, it is possible that the legislature’s view that its language as interpreted in the normal way is compliant with human rights standards will turn out to be incorrect; this raises the question of whether the dominant intention to which the courts should seek to give effect is compliance with what rights standards require or the scheme Parliament has put into effect under its mistaken belief. A fifth variation in the language might also reflect similar concerns as to separation of powers. The two Australian bills of rights statutes and the Commonwealth statute also make plain that the statement of compatibility is a procedural requirement that is not mandatory. The New Zealand and UK statutes do not have such a provision, but the UK devolution statutes do: section 28(5) of the Scotland Act 1998 indicates that the validity of an Act of the Scottish Parliament is not affected by any invalidity in the process followed leading to its enactment, and section 5(5) of the Northern Ireland Act 1998 provides that it is not permissible to call into question the validity of the process leading to the making of an Act of the Northern Ireland Assembly; section 107(3) of the Government of Wales Act 2006 protects Acts of the Assembly from invalidity on the basis of any breach of procedures in the legislative process (as did section 93(3) in relation to Assembly Measures). A reason for this might be that Australia has a constitutional framework pursuant to which statutes can be invalidated because the constitution is supreme law. Accordingly, confirmation that the courts have no power to do that in relation to the bills of rights provisions is worthwhile. The absence of any such power in New Zealand and the UK, but its creation in relation to the devolved legislatures, could have a similar basis: it is difficult to conceive that legislation passed by the Wellington or Westminster Parliaments could be ignored on the basis that there was non-compliance with a procedure prescribed by Parliament, because the substantive validity of a statute cannot be questioned on appropriate proof of its passage; whereas the substantive validity of a devolved assembly statute is dependent on compliance with the substance of the rights protected, and so confirmation that this does not extend to a procedural defence is sensible. There have been cases in New Zealand on this point. Minor procedural errors have been found not to be problematic. In Easton v GovernorGeneral,21 Mallon J concluded that the tabling of a report under section 7 of the NZBORA in relation to a government Bill the day after its introduction rather than simultaneously with introduction provided no conceivable basis for invalidating the legislation. This case proceeded on the assumption that judicial review was available. However, it has been determined that there 20 See also the discussion below as to the legislative override provisions and their interplay with the function of the courts. 21 Easton v Governor-General [2012] NZHC 206.

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can be no judicial review of a decision not to provide a section 7 report. The politician applicants in Boscawen, McVicar and Hide v Attorney-General22 took the view that proposed electoral financing legislation breached fundamental rights and challenged the failure to provide a section 7 report. The Attorney-General clearly disagreed on the point of substance. The Court of Appeal’s reasoning was that any judicial review challenge might impeach or question speech in Parliament and so breach Article 9 of the Bill of Rights 1688,23 and would certainly offend the wider principle of comity, namely that the courts and Parliament should remain within their respective roles.24 The Court did accept that there was a good argument that the function of the Attorney-General in relation to section 7 reports was that of a member of the executive (given the account in the Cabinet Manual). There was contrary High Court authority, namely that actions under section 7 amounted to ‘proceedings in Parliament’ within Article 9,25 but the Court of Appeal noted the uncertainty about the scope of both Article 9 and the comity principle.26 The Court decided not to make a finding on whether the role of the Attorney-General was within Article 9, though it accepted that if it reached a conclusion that the Attorney had made a mistake any order to make a report would amount to a requirement to speak to Parliament contrary to his or her wishes, which would be within Article 9.27 However, it was clear that the role was parliamentary and so covered by the comity principle: [32] The Attorney-General’s reporting role under s 7 is part of the legislative process and therefore covered by the principle of comity. The s 7 function has been embodied in Parliament’s standing orders (SO 261), though in slightly different terms to those used in s 7. Standing Order 261 requires that the report under s 7 must be made by presentation of a paper which, once presented, is published under the authority of the House (SO 261(3)–(4)). The s 7 function is designed to ensure that Parliament is aware when a Bill has been introduced that the Attorney-General considers there appears to be an inconsistency with the NZBORA so that any reduction in the rights contained in the NZBORA can be debated. This is clear from the introductory speech of the Hon Geoffrey Palmer on the Report from the Select Committee on the Bill which was enacted as the NZBORA ((17 July 1990) 509 NZPD 2802) and on the third reading ((21 August 1990) 510 NZPD 3760).

34

The Court then pointed to the significant practical difficulties from any involvement, making clear that the applicants’ position was untenable: it would be a major undertaking that might impede the political process (para 35), the 22

Boscawen, McVicar and Hide v Attorney-General [2009] NZCA 12. Part of the law of New Zealand by reason of section 3 of the Imperial Laws Application Act 1988 and section 242 of the Legislature Act 1908. 24 Citing Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 at 307–08, and Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 at 7 (PC). 25 Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, endorsed in obiter comments by McGrath J in the Court of Appeal in Awatere Huata v Prebble [2004] 3 NZLR 359 at [55]. 26 Citing Buchanan v Jennings [2002] 3 NZLR 145 at [19]–[24] (CA). 27 [2009] NZCA 12 at [33]. 23

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Bill might change if Parliament did not postpone its consideration (para 35), it would place the courts into a political debate ‘on a topic in which Parliament has entrusted the required assessment to the Attorney-General, not to the Courts’ (para 36), the courts could not compel the Attorney-General to act if he or she disagreed with the courts (the Article 9 problem) (para 36), there might be problems if a later challenge was brought that raised inconsistency with the NZBORA (para 37), and the courts were not well suited to undertaking broad reviews (para 38). The applicants also noted the absence of a parliamentary scrutiny mechanism, but the Court noted that it could not ‘evaluate the efficacy of Parliament’s internal processes’ (para 39). This approach might well resonate in other jurisdictions, being based on the constitutional tenet of the separation of state powers as between the judiciary and the legislature, pursuant to which the legislature deals with its own processes and the courts take control of the meaning of legislation once it has been passed. There is the contrary point that the rule of law, for which the Attorney-General has responsibility within the executive, is directly within the purview of the judiciary: but they will typically only consider such issues once provided with a concrete set of facts. Despite this, the devolution legislation in the UK allows a reference to the Supreme Court for a decision in advance if relevant law officers wish that step to be taken.28 As noted in Chapter 4, these legislatures may not breach the ECHR: this additional process allows the question to be tested in advance of the legislation becoming effective (perhaps only to be struck down for incompatibility). For an example of this in practice, see Local Government Byelaws (Wales) Bill 2012,29 in which Lord Hope suggested that there had been use of the power in the context of the Welsh Assembly first and not in relation to the Scottish Parliament, despite the latter having had legislative powers for longer, because the constructions of legislative competence in Wales and Scotland are different. The latter has general competence unless it is incompetent by reason of various exclusions from competence (of which breaching fundamental rights is one); however, the former has to establish that the subject matter is within the circumstances of competence first and also that it is not excluded by reason of breaching fundamental rights and the like. This different approach in the devolved legislatures may also explain the absence of specific human rights scrutiny committees (which are discussed 28 Note also that sections 79 and 121 of the Constitution of South Africa allow the President and the Premier of a province respectively to refer a Bill to the Constitutional Court for a ruling on its constitutionality if they are concerned about that before giving their assent. In short, in other jurisdictions, the reticence of the judiciary to express a view in advance of a concrete dispute arising does not govern. 29 Local Government Byelaws (Wales) Bill 2012 [2012] UKSC 53, [2012] 3 WLR 1294. This was the first example of such an application. A reference was made in relation to a Northern Ireland Assembly Bill but withdrawn: see AXA General Insurance Co Ltd v Lord Advocate [2012] 1 AC 868 [15]. Rule 41 of the Rules of the Supreme Court 2009 (supplemented by Practice Direction 10) set the relevant procedural rules; Lord Hope gives further guidance on this at [85] ff of Local Government Byelaws (Wales) Bill 2012.

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below), in that compliance with the relevant standards being a prerequisite for legislative validity, the task is properly one for the whole Assembly and those officers most concerned with legal requirements. A sixth issue that arises is the standards to be covered in the relevant report. The ACT, Victoria and New Zealand statutes require an assessment of compliance with the standards set out in the statute (albeit that they are based on those in international law). The Commonwealth of Australia statute requires a report based on various international obligations, and is much more extensive than the others. The UK practice is a hybrid: the main standards set out are in an international treaty, the ECHR, but it is only those that are scheduled to the statute that are covered.30 Another aspect of the coverage of the report is the level of detail required. In this regard, the UK statute requires simply a statement of opinion as to compliance (or not). In the other statutes, more may be required, but not necessarily much more. So the New Zealand statute on its face simply requires an indication of apparent inconsistency as between provisions in a Bill and the particular human rights standard, which could simply be a listing of the relevant provisions. The Australian statutes in terms require an explanation as to how it is inconsistent (ACT) or the nature and extent of an inconsistency (Victoria); similarly, the Commonwealth statute notes the need for an assessment, which seems to require a greater degree of discussion.31 In terms of practice, in the Australian Commonwealth Parliament there is a discursive account of compliance with human rights standards as part of the explanatory memoranda accompanying a Bill, coming before the discussion of the clauses of the Bill. For example, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 contains an assertion of compatibility as part of a six-page opinion from the AttorneyGeneral on the various standards involved. The positioning of this outline, importantly, sends the message that compliance with human rights standards is an essential part of the legislative process. In New Zealand, the possibly narrow construction of the legislation is not matched in practice. The website of the New Zealand Department of Justice contains the following explanation as to the purpose, limitations and developed practices in relation to section 7 vetting reports:32 Section 7 of the New Zealand Bill of Rights Act Under section 7 of the New Zealand Bill of Rights Act 1990, the Attorney-General is required to notify the House of Representatives of any provision in any Bill

30 For example, the Article 13 ECHR right to an effective remedy is not scheduled. However, as noted at n 15 above, in practice, information is also given about the Convention on the Rights of the Child, which is not part of domestic law. 31 The Joint Committee on Human Rights has issued a Practice Note setting out what it expects to find in a statement: see the discussion below. 32 www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestichuman-rights-protection/about-the-new-zealand-bill-of-rights-act/advising-the-attorney-general. Guidance is also available in Parliamentary Practice in New Zealand, 2005, 326–28, which can be obtained at www.parliament.nz/en-NZ/AboutParl/HowPWorks/PPNZ/.

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introduced into the House that appears to be inconsistent with the Bill of Rights Act. Parliament may form a different view about whether a particular right or freedom is limited or whether the limitation is justified. The purpose of section 7 is to help ensure that decisions made by Parliament to limit fundamental rights and freedoms are not taken without its full knowledge and proper consideration. The section 7 process also ensures that Bill of Rights considerations are a significant focus in the development of policy and the drafting of legislation. To enable the Attorney-General to carry out this function, the Ministry of Justice provides legal advice on all Bills (with the exception of appropriation Bills, which are not scrutinised, and those from the Ministry of Justice, which are vetted by the Crown Law Office). Inconsistent Bills If the Attorney-General considers that a provision of a Bill is inconsistent with the Bill of Rights Act, the Attorney must bring the relevant provision of the Bill to the attention of the House upon introduction, in the case of a Government Bill, or as soon as practicable after introduction, in the case of a Non-Government Bill (e.g. Local, Member’s, or Private Bills). The different procedure for Non-Government Bills reflects the fact that these types of Bills are generally not available prior to introduction. Consistent Bills The Attorney-General is not required to notify the House of Representatives when a Bill appears to be consistent with the Bill of Rights Act. … Where a Bill appears to be consistent with the Bill of Rights Act, the Ministry’s and the Crown Law Office’s advice to the Attorney-General is usually published on the Ministry’s website (from 2003).

Significant information relating to the section 7 process is available. The reports of the Attorney-General to Parliament are, as documents presented to Parliament as part of the legislative process, included as Appendices to the Journal of the House of Representatives and are also set out on the parliamentary website.33 The pieces of advice to government that there is no apparent inconsistency (and so need to present a section 7 report) can be found on the website of the Ministry of Justice34 (even though legal professional privilege will apply, given the nature of the report).35 33 Standing Order 262 of the House of Representatives sets out the process and confirms that the report is published under the authority of the House. At the time of writing, reports back to August 2002 are on Parliament’s website (see www.parliament.nz/en-NZ/PB/Presented/Papers/ and search ‘Attorney-General’). In addition, all reports, from the first three in 1991, are found on the Ministry of Justice website: www.justice.govt.nz/policy/constitutional-law-and-humanrights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act/ advising-the-attorney-general/section-7-reports-published-before-august-2002/. 34 At least going back to 2003: see www.justice.govt.nz/policy/constitutional-law-and-humanrights/human-rights/bill-of-rights. 35 To give an example: section 80(1)(d) of the Electoral Act 1993 provides that all those detained in prison are disqualified from voting; initially, prisoners serving sentences of 3 years or more were disqualified. The amendment came as a result of the Electoral (Disqualification of Convicted Prisoners) Amendment Act 2010. In a concise 16-paragraph report, which cited case law from the European Court of Human Rights and the Supreme Court of Canada, the Attorney-General concluded that the Bill breached the right to vote set out in section 12 of the New Zealand Bill of Rights Act and Article 25 of the ICCPR. The Bill nevertheless passed: the report of the debate on the Third and final Reading of the Bill in Hansard for 8 December 2010 (commencing at 669 NZPD 15961) indicates that 58 members of the National Party voted for

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In this regard, UK practice seems out of step in terms of the amount of discussion included in the material put in front of Parliament from the Minister who certifies compliance (or not) with the rights in play. It may be that this deficit is made good by the workings of the parliamentary scrutiny process, outlined below, but since there is, at least for government Bills, a systematic process of scrutiny and since the aim of the reporting process is to ensure that parliamentarians are well informed and do not risk inadvertently breaching rights, the value of passing on more reasoned conclusions seems self-evident. It was noted by the New Zealand Court of Appeal in Boscawen, McVicar and Hide v Attorney-General:36 [16] Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill. This allows further contribution to and participation in the NZBORA debate during the legislative process.

44

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The Court then cited as an example, at paragraph 19, the indication of the Attorney-General in relation to random breath testing for drivers in the Transport Safety Bill 1991 that this was a breach of NZBORA; Parliament took a different view, based on legal advice commissioned by the select committee reviewing the Bill from the President of the Legislation Advisory Committee, and passed the Bill. In parliamentary debates, the Attorney indicated that it was open to Parliament to decide that the benefits to public safety were such as to justify a breach of the Bill of Rights Act.37 The point of principle arising was that the section 7 process was one of opinion, which was entrusted to the Attorney-General, but on which there could be legitimate differences which it was not for the court to resolve at that stage of the process. An eighth difference also relates to the content of what is required, namely whether the relevant report is required to state a view on consistency and inconsistency or only the latter. New Zealand is the only jurisdiction in which the reporting requirement is limited in the statutory language to inconsistency. However, in practice consistency is assessed (as must necessarily be the case in order to form a view on inconsistency) and the relevant material now made available, as outlined above. A question that arises out of this is whether the absence of an inconsistency report is an implicit indication of a belief that there is consistency (which may feed into the question of whether the legislature believed it was acting in compliance with rights, which may be relevant when the courts make use of their interpretive obligation). This was addressed by the Court of Appeal

the Bill, which suggests that the Attorney-General was amongst them, since the National Party had 58 MPs at the time. 36 37

[2009] NZCA 12. 521 NZPD 6368, 17 December 1991.

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in Boscawen, McVicar and Hide v Attorney-General.38 It commented at paragraph 12 that As the Attorney-General did not bring to the attention of the House of Representatives any provisions in the Electoral Finance Bill, it can be assumed that he considered that none of the provisions appeared to be inconsistent with any of the rights and freedoms contained in the NZBORA.

This assumption was supported by the fact that the Court of Appeal was fully aware of the process of government, including the Cabinet Manual, the guidance of the Legislation Advisory Committee and the advice to be found on the Ministry of Justice website: essentially it took judicial notice of this, indicating at paragraph 13 that ‘it was a matter of public record’ that advice had been taken and what it was (including that there was no breach of rights in the proposed legislation, albeit that it was a finely balanced matter). An important point arising is that it may be important to consider the entirety of the process in the legislature, not merely the view of the AttorneyGeneral or whoever expresses the required view as to compatibility, in order to determine whether the collective belief of the legislature (or at least of the majority in favour of passing the legislation) was that the particular piece of legislation was rights compliant. Of course, the more reluctant a court is to examine parliamentary debates (invariably on the basis that the language used should speak for itself), the less likely it is to be able to reach a conclusion on this aspect of the purpose of a statute. In some instances, there will also be a specific process in a legislature that seeks to focus on human rights compliance: this is discussed next.

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II. PARLIAMENTARY SCRUTINY

The different models of parliamentary scrutiny, where it exists, differ according to two matters: whether there is a specialist committee or it is part of the function of another committee; and whether it exists or operates pursuant to a statutory mandate or one given by parliamentary rules. So (i) there is no specialist committee but human rights scrutiny is an area of responsibility of a particular select committee of legislators in (a) New Zealand, under parliamentary rules and (b) Victoria and the ACT, under statute; (ii) there is a specialist standing committee (of both chambers) in (a) the UK, under parliamentary rules and (b) in the Australian Commonwealth Parliament, under statute. Ireland is an outlier in that there are no provisions for scrutiny, and, as at the time of writing, no standing committee of the legislature has a specific remit that covers human rights: the nearest is the Committee on Justice, Defence and Equality,39 but its terms of reference do not mention 38 39

[2009] NZCA 12. See www.oireachtas.ie/parliament/oireachtasbusiness/committees_list/jde-committee/.

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human rights (though they do refer to various concepts of the rule and law and equality which are central to the substance of human rights). However, it is accepted to be a function of the Attorney-General: albeit that the focus is at the stage of the drafting of legislation, there is no doubt scope for advice during the parliamentary process.40 In New Zealand, the Justice and Electoral Select Committee of the unicameral legislature has the role of considering human rights matters, as one of several topics.41 The relevant framework allows it to be active (if it so chooses) in ensuring that human rights considerations are given a full airing in the legislature. The functions of select committees within their subject areas are set in Rule 186 of the Standing Orders of the House of Representatives: 186. Functions of subject select committees (1)

The subject select committees specified in Standing Order 185 consider and report to the House on the following types of business referred by the House or otherwise under the Standing Orders: (a) bills: (b) petitions: (c) financial reviews and reviews of reports on non-departmental appropriations: (d) Estimates: (e) Supplementary Estimates: (f) international treaty examinations: (g) reports of Officers of Parliament: (h) any other matters. (2) The subject select committees may receive briefings on, or initiate inquiries into, matters related to their respective subject areas as specified in Standing Order 185. (3) Paragraph (2) does not allow a subject select committee to consider— (a) a bill that has not been referred to it, except as provided in the Standing Orders, or (b) a Supplementary Order Paper relating to a bill that is not before the committee— without the approval of the House or the Business Committee.

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They have various powers, including to compel evidence (SO rules 192 and following). Rule 186(1) limits a Committee to matters referred to it by the House or generally, but rule 186(2) allows proactive work to be done, though it must seek approval to investigate a Bill or developments in a Bill not referred to it. In short, the Justice and Electoral Select Committee cannot tread on the toes of another Select Committee to which a specific Bill that might have human rights implications has been referred, but it can choose to take a leading role that reflects good practice from other legislatures.

40

See n 18 above. Standing Orders of the House of Representatives (2011), Rule 185; further information on Select Committees is available at www.parliament.nz/en-NZ/PB/SC/. 41

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In the UK, the Westminster Parliament’s Standing Orders of the House of Commons provide for the existence and powers of the Parliamentary Joint Committee on Human Rights.42 The version current as of December 2013 provides as follows: 152B. Human rights (joint committee) (1)

There shall be a select committee, to consist of six Members, to join with the committee appointed by the Lords as the Joint Committee on Human Rights. (2) The committee shall consider— (a) matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); (b) proposals for remedial orders, draft remedial orders and remedial orders made under section 10 of and laid under Schedule 2 to the Human Rights Act 1998; and (c) in respect of draft remedial orders and remedial orders, whether the special attention of the House should be drawn to them on any of the grounds specified in Standing Order No. 151 (Statutory Instruments (Joint Committee)).43 (3) The committee shall report to the House— (a) in relation to any document containing proposals laid before the House under paragraph 3 of the said Schedule 2, its recommendation whether a draft order in the same terms as the proposals should be laid before the House; or (b) in relation to any draft order laid under paragraph 2 of the said Schedule 2, its recommendation whether the draft order should be approved; and the committee may report to the House on any matter arising from its consideration of the said proposals or draft orders. (4)

The committee shall report to the House in respect of any original order laid under paragraph 4 of the said Schedule 2, its recommendation whether— (a) the order should be approved in the form in which it was originally laid before Parliament; or (b) that the order should be replaced by a new order modifying the provisions of the original order; or (c) that the order should not be approved,

and the committee may report to the House on any matter arising from its consideration of the said order or any replacement order. (5) (6)

42

The quorum of the committee shall be two. Unless the House otherwise orders, each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament.

Available from www.publications.parliament.uk/pa/cm/cmstords.htm. Rule 151 provides for a Joint Select Committee to consider all instruments (such as statutory instruments) to determine whether they should be drawn to the attention of the House on one of various grounds, including apparent exclusion from court challenge, retrospectivity not in the parent statute, ‘(vi) that there appears to be a doubt whether it is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made’. 43

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314 (7)

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Pre-Enactment Scrutiny The committee shall have power— (a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time; and (b) to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

So it has specific functions relating to the Human Rights Act 1998, but rule (2)(a) allows it to consider rights other than those contained in the 1998 Act.44 The Joint Committee has engaged in a significant workload since its inception,45 carrying out scrutiny work into proposed legislation (which will invariably have been referred to a Public Bill Committee under SO 84A for consideration by it, such that the work of the Joint Committee will be supplemental); various other forms of scrutiny—for example of the suggestion that there be a bill of rights for Northern Ireland;46 it has also demonstrated a willingness to conduct inquiries.47 The existence and operation of the Joint Committee on Human Rights has become a central part of the process of legislating in the UK. In the Cabinet Office Guide to Making Legislation,48 in the section relating to ensuring human rights compliance in proposals made by government departments, it is noted: The Joint Committee on Human Rights 11.31

The JCHR will report on the ECHR issues raised by a bill and is likely to examine closely the arguments put forward by the department justifying interference with a Convention right. It will also look at whether there are sufficient safeguards to ensure a proper guarantee of human rights in practice, regardless of whether the absence of safeguards is strictly a compatibility issue. The JCHR’s approach to legislative scrutiny is set out in detail at paragraphs 18–51 of the Committee’s Twenty-third Report of Session 2005–06 at The Committee’s Future Working Practices.

11.32

If the JCHR considers that the explanatory notes to a bill do not adequately set out the Convention issues, it will ask the responsible minister for a memorandum on particular points, which will need to be produced extremely quickly. It is clearly advantageous if the JCHR reports favourably early in the bill’s passage, and departments should attempt to identify

44 See also the Committee’s Twenty-Third Report of 2005–2006, The Committee’s Future Working Practices, HL Paper 239, HC 1575 (available at www.publications.parliament.uk/pa/ jt200506/jtselect/jtrights/239/239.pdf in which it analysed various options for how to interpret its mandate. 45 See www.parliament.uk/jchr for links to its work. 46 See www.parliament.uk/business/committees/committees-a-z/joint-select/human-rightscommittee/other-scrutiny-work/bill-of-rights-for-northern-ireland/. 47 See www.parliament.uk/business/committees/committees-a-z/joint-select/human-rightscommittee/inquiries/. 48 Originally from 2010, updated in April 2013, available at www.cabinetoffice.gov.uk/ resource-library/guide-making-legislation.

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areas likely to concern the Committee and prepare briefing ahead of time, if possible. 11.33

It may be helpful for departments to volunteer a memorandum at the time of introduction informing the JCHR of any human rights issues which the bill may raise, or write to them setting out any issues which were too detailed or substantial to be included in the explanatory notes.

11.34

The JCHR may also ask about compliance with any international human rights instrument which the UK has ratified; it does not regard itself as limited to the ECHR.

11.35 Bill teams should contact the Clerk to the JCHR to find out if the Committee is likely to report on the bill, and ask to be advised when the report is published (as departmental parliamentary branches are unlikely to be alerted to any reports until much later). 11.36

It is not usually necessary for the department to respond to the Committee’s report in writing as members of the Committee will often move amendments to give effect to the Committee’s recommendations and objections; the minister will be expected to give a full response at that time. However, if the response to a recommendation or objection is particularly legal or technical, it may be easier for the department to respond in writing; advice on this point can be sought from the Human Rights Division of the Ministry of Justice. Memoranda can be emailed to the JCHR and bill teams should alert the Committee Clerk that a response is coming (contact details at Appendix B). If a memorandum is sent shortly before the next stage of a bill, making it unlikely that the Committee will be able to publish it before the debate, bill teams should also consider laying a copy of the memorandum in the library of the appropriate House.

The provision of memoranda to the JCHR reinforces the point noted above in relation to statements of compatibility that the New Zealand approach of making relevant material available generally is beneficial: the UK executive would no doubt say that communications with the JCHR provide an appropriate channel, but the starting point in New Zealand of sharing information facilitates transparency and debate. In Australia, the Commonwealth Parliament also has a Joint Committee, established by statute: Australian Commonwealth—Human Rights (Parliamentary Scrutiny) Act 2011 An Act to establish a Parliamentary Joint Committee on Human Rights, and for related purposes Part 2—Parliamentary Joint Committee on Human Rights 4. Parliamentary Joint Committee on Human Rights As soon as practicable after the commencement of the first session of each Parliament, a joint committee of members of the Parliament, to be known as the Parliamentary Joint Committee on Human Rights, is to be appointed according to the practice of the Parliament.

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5. Membership of the Committee [Rules are set out as to membership, including excluding Ministers and certain Officers of the legislature] 6. Powers and proceedings of the Committee All matters relating to the powers and proceedings of the Committee are to be determined by resolution of both Houses of the Parliament. 7. Functions of the Committee The Committee has the following functions: (a) to examine Bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue; (b) to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue; (c) to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of the Parliament on that matter.

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In short, the Committee has powers to review all current and proposed legislation, but its remit in relation to conducting inquiries is limited to those matters referred to it by the Attorney-General. It has issued a Practice Note49 setting out its expectation for what should be included in statements as to compatibility (making clear that, as has developed in the UK, there is a relationship between the statements of compatibility made to Parliament and the process whereby Parliament investigates the claimed compliance with rights standards). It also comments that its tasks are ‘primarily preventive in nature and directed at minimising risks of new legislation giving rise to breaches of human rights in practice’; but it notes also that ‘it has an educative role, which includes raising awareness of legislation that promotes human rights’. It adds an important point that: The committee notes that previously settled drafting conventions and guides are not determinative of human rights compatibility and may now need to be re-assessed for the purposes of developing human rights compatible legislation and practice.

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In the ACT and Victoria, there are also requirements as to scrutiny, but as with the situation in New Zealand this is not by a specialist committee: ACT—Human Rights Act 2004 Part 5. Scrutiny of proposed Territory laws ... 49 Available at www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/ Practice_Notes.

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38. Consideration of bills by standing committee of Assembly (1) (2)

The relevant standing committee must report to the Legislative Assembly about human rights issues raised by bills presented to the Assembly. In this section:

relevant standing committee means— (a) the standing committee of the Legislative Assembly nominated by the Speaker for this section; or (b) if no nomination under paragraph (a) is in effect—the standing committee of the Legislative Assembly responsible for the consideration of legal issues. 39. Noncompliance with s 37 and s 38 A failure to comply with section 37 or section 38 in relation to a bill does not affect the validity, operation or enforcement of any Territory law. Victoria—Charter of Human Rights and Responsibilities 2006 Part 3, Division 1—Scrutiny of New Legislation ... 30. Scrutiny of Acts and Regulations Committee The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights. Note: The Scrutiny of Acts and Regulations Committee must also review all statutory rules and report to Parliament if it considers the statutory rule to be incompatible with human rights: see section 21 of the Subordinate Legislation Act 1994.

The effectiveness of the different structures may merit consideration (no doubt best based on research). For example, is the existence of a statutorily established Committee more stable, such that it cannot be bypassed as easily if a newly elected majority in a legislature decides that parliamentary rules should be replaced (which may be easier than passing repealing legislation)? Does that legislative underpinning provide the Committee with more status, or is that more a matter of political will? Another question that might arise in terms of coverage is whether there are advantages in following the example of the Australian Commonwealth Parliament of having scrutiny of a wide range of standards that are binding in international law without a corresponding domestic obligation. It may provide for an increase in knowledge about the wide range of international human rights standards, and thereby undermine the view that there is nothing much beyond the narrow range of civil and political rights that are typical in the statutory bills of rights. Further, it may provide reassurance for those who support the view that democratically elected bodies should have the final say on whether there should be compliance with human rights standards, and any such decision will be informed by the wide range of international obligations if legislators have to consider them as part of their task.

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The position in the devolved UK legislative bodies also merits a brief comment. As noted above, compliance with the relevant human rights standards is a prerequisite to any law passed being valid. This may explain the additional procedures for pre-legislative checking of validity, including the possibility of a reference to the courts. This in turn may ensure that the entire legislative assembly has a role in relation to human rights scrutiny: but this does not mean that there is no value in having a specialist committee that carries out human rights work, since such a committee may have additional inquiry functions and might also develop an expertise in looking wider than the limited range of rights that are entrenched. However, other provisions should be noted. The Northern Ireland Act 1998 provides for the formation of the Northern Ireland Human Rights Commission, by section 68 of the statute. Its functions, set in section 69, include generally reviewing the adequacy of the protection of human rights, but there are a number of more specific functions, including providing advice to the executive and the legislative bodies when requested or on its own motion. The relevant language is: (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.

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In Scotland, there is the Scottish Human Rights Commission. Although it does not have the specific power to advise in relation to Bills, it does have the power to review an area of law and make recommendations for change: section 4 of the Scottish Commission for Human Rights Act 2006. Since this is part of a general duty to ‘promote human rights and … to encourage best practice in relation to human rights’ (in section 2), this seems appropriate for the proffering of advice during the legislative process, particularly if a legislator asks.

III. LEGISLATIVE OVERRIDE

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An additional legislative mechanism is a legislative override, which originated in Canada and has been adopted in Victoria. The Canadian Bill of Rights Act 1960 provided that all Canadian laws were to be construed in accordance with the rights listed in the Bill of Rights ‘unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights’. This was also included in Canada’s supreme law Charter. Legislation that is not compliant with the rights set out in the Charter is invalid (see section

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52 of the Constitution Act 1982, of which the Charter is a part), but a legislature may take a conscious decision to breach the Charter. Under the heading ‘Application of Charter’, section 32 provides that it applies to the various legislatures and governments in the Canadian federation, but section 33 indicates: (1) Exception where express declaration Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) Operation of exception An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) Five year limitation A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Re-enactment Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Five year limitation Subsection (3) applies in respect of a re-enactment made under subsection (4).

Although this ‘notwithstanding’ clause is largely unused, it has been incorporated by the Victorian Parliament into the Victorian Charter, which states: 31 Override by Parliament (1)

(2)

(3)

(4) (5)

Parliament may expressly declare in an Act that that Act or a provision of that Act or another Act or a provision of another Act has effect despite being incompatible with one or more of the human rights or despite anything else set out in this Charter. If an override declaration is made in respect of an Act or a provision of an Act that declaration must be taken to extend to any subordinate instrument made under or for the purpose of that Act or provision. A member of Parliament who introduces a Bill containing an override declaration, or another member acting on his or her behalf, must make a statement to the Legislative Council or the Legislative Assembly, as the case requires, explaining the exceptional circumstances that justify the inclusion of the override declaration. It is the intention of Parliament that an override declaration will only be made in exceptional circumstances. A statement under subsection (3) must be made— (a) during the second reading speech for the Bill that contains the override declaration; or (b) after not less than 24 hours’ notice is given of the intention to make the statement but before the third reading of the Bill; or

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with the leave of the Legislative Council or the Legislative Assembly, as the case requires, at any time before the third reading of the Bill. (6) If an override declaration is made in respect of a statutory provision, then to the extent of the declaration this Charter has no application to that provision. Note: As the Charter has no application to a statutory provision for which an override declaration has been made, the Supreme Court cannot make a declaration of inconsistent interpretation in respect of that statutory provision. Also, the requirement under section 32 to interpret that provision in a way that is compatible with human rights does not apply. (7) A provision of an Act containing an override declaration expires on the 5th anniversary of the day on which that provision comes into operation or on such earlier date as may be specified in that Act. (8) Parliament may, at any time, re-enact an override declaration, and the provisions of this section apply to any re-enacted declaration.

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Subsections (3) and (4) indicate that the key prerequisite is ‘exceptional circumstances’ (though it could be argued that the language of subsection (4) does not so limit any future Parliament, and could not actually do so). In the Explanatory Memorandum to the Bill that became the Charter, it was noted that ‘Examples of exceptional circumstances would be threats to national security or a state of emergency which threatens the safety, security and welfare of the people of Victoria’. A number of comments can be made about this. In the first place, international law permits derogations from some human rights standards if there is an emergency of the sort mentioned: see Chapter 5.50 Whilst a Victorian statute cannot replicate international derogation provisions that are for Commonwealth authorities, it could have been made clear that the exceptional circumstances envisaged were of the sort that would justify a derogation, including making clear that only some rights can properly be suspended. It could be argued that since the Victorian Charter is an ordinary statute which makes use of an interpretive mechanism, there is no need for the override power for two reasons: (i) appropriate legislation can be passed in the event of any emergency that states that the Charter does not apply;51 (ii) and all that is necessary is that Parliament use adequately clear language to avoid the impact of any interpretive obligation. A contrary argument is that there is value in stating that any breaches of fundamental rights require exceptional circumstances. The potential interplay between the override and the interpretive obligation is interesting. It might be argued that any failure to use the override provides 50 In the Human Rights Act 1998 (UK), section 14 makes reference to this power, and authorises the making of derogation orders if necessary (to conform the domestic and international regimes). The South African Constitution also makes reference to international derogation standards; see Chapter 5. 51 New Zealand passed legislation that dealt with the immediate aftermath of earthquakes, the Canterbury Earthquake Response and Recovery Act 2010, which allowed for various rights in various statutes to be amended in light of the situation (though it expressly did not claim any power to suspend the effect of various statutes of constitutional significance, of which the New Zealand Bill of Rights Act 1990 was one).

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evidence of an intention to be consistent with rights, such that the interpretive obligation should be used vigorously to produce a rights-compliant outcome; the contrary argument is that the very structure of the interpretive obligation means that the normal methodology to breach fundamental rights is simply to be clear enough about it in the legislative language used. A more fundamental objection to the override power may arise from the separation of powers. The content of a legally defined right (with any justified limitation) is a matter for judges, pursuant to the rule of law; normally, a court would consider those questions, seek to apply the interpretive obligation if that was appropriate to meet the right, and could then consider making a declaration of inconsistency if legislative language breached rights and could not be saved.52 Section 36(2) of the Victorian Charter indicates that such a remedy may not be sought if a legislative override has been made. Whilst this may seem to be a pragmatic outcome—given that there is no point in alerting Parliament to the fact that it has breached fundamental rights when the override makes it clear that it knows it has done so—the underlying premise is that the legislative branch can express a concluded view on the content of the law in advance of any judicial pronouncement of what the right requires. That is not the usual process of the rule of law. It may be that a court in Victoria will feel that it remains permissible for it to go through the process of assessing whether the relevant parliamentary language would produce a justified limitation on a right in any event, so as to answer the legal question that must remain for it to determine: then all that section 36(2) would achieve is to deny the power to grant the statutory remedy if it turns out that the legislators’ view that a right had been breached is confirmed by the courts.

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IV. DELEGATED LEGISLATION

A final area to consider is the position of delegated legislation. In New Zealand, the tradition against the use of delegated legislation except to fill in the details of statutory schemes is reflected in the note in the guidelines of the Legislative Advisory Committee53 that ‘Matters of policy or principle should be included in primary legislation only. … For example, matters that affect fundamental human rights …’.54 In addition, it is recorded that any delegated legislation should be passed only after various checks, including that it is ‘not inconsistent with any other enactment (especially the Bill of Rights Act)’.55 This reflects a finding of the Court of Appeal, in Drew v AttorneyGeneral,56 that delegated legislation that breached NZBORA was ultra vires 52

See Chapter 10. See n 7 above. 54 Part 10 of the summary and index: the issue is covered in more detail in chapter 10 of the full guidelines. 55 Part 10A of the summary and index; there is more detail in the full chapter 10A. 56 Drew v Attorney-General [2002] 1 NZLR 58. 53

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unless specifically permitted by the primary statute to be drafted in a way that breached fundamental rights. This was despite an obvious argument to the contrary in that (i) section 4 of NZBORA prevents the striking down of ‘enactments’ for inconsistency and (ii) section 29 of the Interpretation Act 1999 includes regulations within the definition of an enactment. The particular problem in the case was a regulation that prevented legal representation in a prison disciplinary process. The Court of Appeal found that a blanket prohibition was contrary to natural justice, and so could not have been within the contemplation of Parliament as permitted by a regulation. This was so irrespective of any relevant rights set out in NZBORA, and so the question of the effect of section 4 did not strictly arise. However, the Court commented of the contention that regulations were preserved by section 4: 68. … this argument is so plainly erroneous that it is desirable that we despatch it in the present case rather than leave any lingering doubt that it might have had validity. Counsel was correct, of course, when he said that a regulation is an ‘enactment.’ Section 29 of the Interpretation Act 1999 confirms that position. But the answer to counsel’s argument is that, in striking down the regulations because they are ultra vires the empowering section (s 45), the Court is not doing so only because they are inconsistent with the Bill of Rights. To the extent that it is necessary to refer to the Bill of Rights, the regulation is invalid because the empowering provision, read, just like any other section, in accordance with s 6 of the Bill of Rights, does not authorise the regulation. The Court merely gives s 45 a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. In accordance with s 6, that meaning is to be preferred to any other meaning.

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In short, the empowering statute is checked for compliance with NZBORA; and any authority to breach NZBORA by way of delegated legislation must be contained within that primary statute. In the UK, a similar result obtains. The preservation of delegated legislation that breaches fundamental rights rests on there being primary legislation that prevents it being drafted in any way other than by breaching rights: see section 3(2)(c) of the Human Rights Act 1998. Note also that section 6 of the Act, which is discussed in Chapter 7, permits public authorities to breach rights only if required to do so by primary legislation. In the Australian jurisdictions, section 32(3) of the Victorian Charter expressly preserves the effect of secondary legislation that breaches rights and leads to a declaration of inconsistency if it ‘is empowered to be so by the Act under which it is made’; so the focus is on the primary statute. The ACT statute appears to be different: it starts with a definition of a Territory law as including primary and secondary legislation, which is consistent with the other statutes (such that the interpretive obligation applies). However, the declaration of inconsistency provision applies to the delegated legislation as well, and its validity and consequences are preserved without any express indication that this turns on there being underlying primary legislation that has that consequence: see section 32(3) of the Human Rights Act 2004 (ACT). Nevertheless, the more general question

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of whether secondary legislation can breach fundamental rights without express authorisation in a primary statute is not excluded. In the different framework of Australian Commonwealth law—which is not subject to a bill of rights interpretive provision—specific procedures have been set up. So section 9 of the Commonwealth Human Rights (Parliamentary Scrutiny) Act 2011 contains requirements that there be statements of compatibility in relation to certain legislative instruments. Similarly, in Victoria, Parts 2, 2A, 5 and 5A of the Subordinate Legislation Act 1994 require that Ministers proposing statutory rules or legislative instruments prepare certificates relating to compliance with the Charter and the Scrutiny Committee may report back to Parliament on compliance with the Charter and various other human rights standards (such as retrospective effect, reversing a burden of proof) with recommendations as to whether the proposed secondary legislation be permitted. However, the interplay with the Charter’s provisions as to the validity of inconsistent legislation suggests that a legislative instrument that has been passed in the belief that it is inconsistent with rights will be preserved if the courts confirm this inconsistency only if the primary statute allows this position to pertain.

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7 The Duty to Respect Rights I. State Responsibility at the International Law Level ..............................10 II. Responsibility at the Domestic Level ....................................................29 A. Introduction ...................................................................................29 B. The Statutory Language .................................................................31 C. Analysis of the Statutory Language ................................................52 D. The Executive ................................................................................61 E. Functions of a Public Nature .........................................................64 i. Introduction .............................................................................64 ii. The UK Case Law ....................................................................71 iii. Discussion ..............................................................................102 a. Identifying a Public Authority by Looking at the ‘Official Capacity’ Test ...................................................................103 b. More Prescriptive Statutory Language ..............................111 c. Private Acts and Actors; Horizontal Effect .......................122 F. Application to the Judiciary .........................................................134 i. Introduction ...........................................................................134 ii. Judicial Action based on the Statutes .....................................144 iii. Judicial Action where the Statutes do not Apply ....................149 iv. Rediscovery of the Common Law, Including where the Statutes also Apply.................................................................163

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In the international context, as is set out in Chapter 2, there is a basic obligation to guarantee all the rights within a state (which may have an extended meaning to cover controlled overseas territories); this may include both situations where there is a breach of rights by state officials and also when there is a breach of rights by private actors which the state had an obligation to prevent. In addition, there is a specific obligation to ensure that there is an effective remedy for a breach of rights even if committed by someone in an official capacity. Any failure to meet either of these requirements is something for which the state can be held to account in the international enforcement mechanism. It has been noted that there is no obligation simply to incorporate the terms of the relevant international treaty into domestic law. That, however, is a possible route, namely for legislation simply to state that the obligations arising at international law are thereby made part of domestic law. This would then leave it to the courts to work out the effect. This might differ according to the nature of the domestic constitutional structure. For example, in Ireland and Australia, where there are supreme law Constitutions, the judges would likely see their obligation as being to the Constitution, and so would assess the international

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standard against that. So in McD v L and Another,1 Murray CJ noted that ‘The European Convention may only be made part of domestic law through the portal of Article 29.6 and then only to the extent determined by the Oireachtas and subject to the Constitution’.2 He noted that the result was that individuals could not rely on any normative power from the Convention itself, adding that any claims made under the European Convention on Human Rights Act 2003 against an ‘organ of the state’ or for a declaration of incompatibility are ‘special exceptions’. This can be contrasted to the position of the law of the European Union, which is incorporated via a constitutional amendment. Whilst the courts in the UK and New Zealand would give effect to the statutory language that sought to incorporate an international treaty, there being no constitutional bar on that, the bills of rights statutes are all designed to preserve the power of the legislature to breach international obligations, and so incorporation is not an option. Consequently, the courts have to construe the mechanics as adopted. This lack of direct incorporation means also that the rights are not the same. This point was made by Lord Nicholls in In re McKerr,3 when he commented that courts below:4

3

fell into error by failing to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them.

He gave the example that Convention rights existed before the domestic statute was enacted but the rights under the 1998 Act ‘came into existence for the first time on 2 October 2000’, namely when the 1998 Act was brought into effect. Another consequence of this was that Convention rights ‘are not as such part of this country’s law because the Convention does not form part of this country’s law’ whereas the rights under the 1998 Act ‘are part of this country’s law’ and their extent ‘depends upon the proper interpretation of that Act’. The particular question arising was whether there was a right to an inquest (as part of the investigative obligation arising under Article 2 of the ECHR) in relation to events that occurred before the 1998 Act came into effect.5 As Lord Nicholls noted, the lack of direct incorporation of the international right had the result that: It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the 1998 Act came into force will be mirrored by a corresponding right created by the 1998 Act. Whether it finds 1

McD v L and Another [2009] IESC 81. See also section 231 of the South African Constitution of 1996, which allows ‘a self-executing provision of an agreement that has been approved by Parliament’ to be ‘law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. 3 In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35. 4 ibid at [26]. 5 The issue of retrospectivity is noted in Chapter 9. The holding in McKerr has been overturned because of developments in ECtHR case law relating to its subject matter, namely the investigative obligation arising under Article 2 of the ECHR; however, it is suggested in Chapter 9 that the differentiation between domestic and international rights is correct and allows them to have a content in domestic law that is in advance of what has been determined by the ECtHR as a transnational standard (which has to bear in mind the margin of appreciation). See also Chapter 5. 2

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reflection in this way in the 1998 Act depends upon the proper interpretation of the 1998 Act.

5

Making a similar point, Lord Hoffmann emphasised that it was important to:6 distinguish between the obligations under international law which the United Kingdom (as a state) accepted by accession to the Convention and the duties under domestic law which were imposed upon public authorities in the United Kingdom by section 6 of the 1998 Act. These obligations belong to different legal systems; they have different sources, are owed by different parties, have different contents and different mechanisms for enforcement.

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The Irish legislation, it should be noted, uses an approach that may be thought to suggest that the rights are not distinct: section 3 of the European Convention on Human Rights Act 2003, set out below, requires that organs of the state act ‘in a manner compatible with the State’s obligations under the Convention provisions’. But even here, this is subject to domestic constitutional and other rules, and there is nothing on the face of the statute to indicate that is it retrospective in its operation. So the point made about there being conceptually distinct rights applies also. (The same has to be said of the rights in the Australasian statutes, because they are phrased differently from the rights in the international document and so may have a different substance, albeit that might be awkward if the domestic version is found to have a lesser substance, since the legislative purpose of securing better compliance with the international rights would not have succeeded.) The language used in the Irish statute provides a reminder that at the international level, the obligation to guarantee rights is owed by the state. When international rights are ‘domesticated’, the method by which this is done may reflect different dynamics. In particular, the state is invariably split into at least three separate parts, based on the type of governmental function, legislative, judicial and executive; and there will inevitably be an existing legal structure that reflects the relationship between these parts. There is also the modern tendency to have state functions carried out by private bodies (such as prisons), which may blur the role between the executive part of the state and the private sector. In the context of these different dynamics, and the familiarity of the component parts of the state with the law governing the interaction between them, the possibility exists that ensuring the successful transplantation of the international duty owed by the state to the domestic setting will be lost in arguments about who within the different branches of the state is responsible for ensuring its fulfilment. Nevertheless, there is the international obligation and the purpose behind the statutory bills of rights is to give better effect in domestic law to the international rights: and so it may be relevant to assess the methodology chosen against the international obligation to see the extent of concurrence.

6

[2004] UKHL 12, [2004] 1 WLR 807, [2004] Inquest LR 35, [64].

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To that end, this chapter sets out first the international materials relating to the bodies that give rise to state responsibility. There is then an assessment of the coverage of the domestic statutes in relation to executive, legislative and judicial bodies. The latter also covers the question of the extent to which judicial immunities still apply; and also whether judges are required to develop the common law so that it is in compliance with the rights guaranteed under the statutes.

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I. STATE RESPONSIBILITY AT THE INTERNATIONAL LAW LEVEL

In the international settings relating to the civil and political rights that are commonly in play in these bills of rights, there has been some guidance offered on the question of what counts as a governmental body.7 Under both the ICCPR and the ECHR, there is the obligation to provide an effective remedy notwithstanding that the person committing the breach of rights has been acting in an ‘official capacity’ (see ECHR Article 13 and ICCPR Article 2(3)). There is limited material on what is meant by this. It has been discussed particularly in the context of the prohibition on torture, as expanded upon in the UN Convention against Torture 1984. Article 2 of the CAT contains the general obligation to have effective measures to prevent torture and includes a specific provision that ‘3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. In explaining this obligation further, the Committee Against Torture has issued General Comment No 2 on the Implementation of Article 2 by State Parties.8 Included in this is an outline of when there is state responsibility. The general point made is that the Convention binds states rather than individuals, but that: 15.

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… States bear international responsibility for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law.

This leads to obligations to take preventive action and to ensure redress in various settings which are viewed as having state responsibility, of which the examples given are prisons, hospitals, schools, and institutions involved in caring for children or the elderly, those who are mentally disordered or disabled, and military settings; but also contexts where there is a duty to protect because ‘the failure of the State to intervene encourages and enhances the danger of privately inflicted harm’. In paragraph 17, the Committee refers to the need to prevent any participation or complicity in acts of acts of torture by ‘public authorities … or others

7 There is also the question arising of when a state is exercising jurisdiction so as to bring the more general obligation to guarantee rights: this is noted in Chapter 2, at para 21. 8 CAT/C/GC/2, 28 January 2008.

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acting in an official capacity or under colour of law’; similarly, paragraph 18 provides for liability for failures to intervene in torture or ill-treatment by ‘non-State officials or private actors’ if ‘State authorities or others acting in official capacity or under colour of law’ have knowledge or reasonable grounds to believe that the private actor is engaging in torture or ill-treatment. In short, the contrast between a private actor and an actor for whom the state bears responsibility is whether someone’s action is on behalf of the state or is controlled by the state or is subject to legal authorisation. The International Law Commission, which is charged by the UN with the task of clarifying the rules of international law, has produced a draft statement on the responsibility of the state for wrongful acts, and as part of this has considered when acts should be attributed to the state.9 Articles 4–11 set out these proposed rules of attribution. The core instance is the conduct of a state organ: this is whether it exercises ‘legislative, executive, judicial or any other functions’ (Article 4). Also covered are ‘persons or entities exercising elements of governmental authority’ (Article 5), which covers someone or an entity ‘empowered by the law of that State to exercise elements of the governmental authority’ and carrying out that function (even if acting in excess of authority or in contravention of instructions—Article 7); it is also indicated that the actions of those who exercise de facto governmental authority when there is a failure by the state to provide such authority are imputable (Article 9). Agents are covered by the provision for those ‘acting on the instructions of, or under the direction or control of’ the state to found liability (Article 8); and the adoption by the state of conduct as its own is also sufficient (Article 11). This question has been considered, albeit somewhat at a tangent, in the ECtHR case of Jones v UK,10 the main point in which was whether there was a breach of the right to a fair trial (Article 6 ECHR) in light of the application of the doctrine of state immunity to prevent an action for damages for torture (allegedly carried out by police officers in Saudi Arabia), which had been claimed against the state and the officials involved. Most of the decision was concerned with the propriety of state immunity in relation to a civil claim arising out of acts of torture, and the ECtHR essentially held that the domestic courts had considered the relevant case law and principles in play and reached a tenable conclusion that state immunity was properly claimable even for torture. The ECtHR decided that it was not yet time to move on from its conclusion to this effect in the 2001 case of Al-Adsani v UK.11 There was no doubt on the facts that the actions in question were of a state official, and one of the issues decided against the claimants was that they were as a result acts of the state. As part of this process, the rules of attribution to the state

9 Annexed to General Assembly resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4; available at http://legal.un.org/ilc/texts/9_6.htm. 10 Jones v UK App nos 34356/06 and 40528/06. This followed from the decision of the House of Lords to allow Saudi Arabia’s plea of state immunity: Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270. 11 Al-Adsani v UK App no 35763/97, (2001) 34 EHRR 273.

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were considered, and there was specific reference to and apparent reliance on Articles 4 and 5 of the draft from the International Law Commission.12 These Articles have some obvious similarity with the rules arising out of the Convention Against Torture, in that being given the authority by law to carry out a governmental function is sufficient. Another example that is relevant in the ECHR context is that the Committee of Ministers, the functions of which include making recommendations on rights-related matters. Recommendation No R (84) 15, issued on 18 September 1984, noted the importance of ensuring that ‘public authorities … should ensure reparation’ for any damage they cause. The definition offered of ‘public authority’ in the appendix to the recommendation is:

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a. any entity of public law of any kind or at any level (including state; region; province; municipality; independent public entity); and b. any private person, when exercising prerogatives of official authority.

There is also case law from the ECtHR, in which questions have had to be answered as to whether there is state responsibility for breaches of rights carried out by private individuals. Two situations should be distinguished. First, various rights give rise to positive duties to protect the right from infringements by private actors; secondly, there may be instances in which there is participation by the state in action where there is a breach of rights carried out by a private party so as to found joint liability. In the former situation, various examples can be given arising from the duty to protect life (Article 6 of the ICCPR, Article 2 of the ECHR), the absolute prohibition on torture or inhuman or degrading treatment (Article 7 of the ICCPR, Article 3 of the ECHR), the absolute ban on slavery and forced labour (Article 8 of the ICCPR and Article 4 of the ECHR), and the need to protect the right to liberty (Article 9 of the ICCPR and Article 5 of the ECHR). The following are some recent instances of these: (i)

The right to life expressly includes the need for the right to be protected. This was breached in Tomasic v Croatia,13 when the state failed to

12 App nos 34356/06 and 40528/06, para 207. An interesting part of this case is the discussion of whether any immunity for state officials for acts of torture was abrogated by the Convention Against Torture 1984, Article 14 of which requires redress in civil actions and has been suggested by the Committee Against Torture to require universal civil jurisdiction (as well as the universal criminal jurisdiction), which would also prevent state immunity: see [63]–[68]. The ECtHR noted this view, but also that no international court had made such a finding, and that national courts had ruled to the contrary (at [208]), which was part of the reasoning for saying that there was no international consensus to the contrary which might have undermined the conclusion of the House of Lords. The ECtHR also cited jurisprudence from New Zealand and Australia. In Australia (discussed at [137]– [139]), there was a clear statutory indication that the immunity applied to members of the executive government (as decided in Zhang v Zemin [2010] NSWCA 255; and in New Zealand (discussed at [135]–[136]), the High Court had in Fang v Jiang [2007] NZAR 420 followed the UK House of Lords in the Jones case, noting that it was not the right occasion for New Zealand to start a new trend. The shows the Committee Against Torture as taking a lead role: but, despite its role as the authoritative body under the most obviously relevant treaty on point, the rules of comity as between different courts and tribunals have not led to it being accepted as having any enhanced status. 13 Tomasic v Croatia App no 46598/06, [2012] MHLR 167.

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(ii)

(iii)

(iv)

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The Duty to Respect Rights prevent a domestic killing by a man who had been jailed for making threats to kill his wife and child, was diagnosed as having a severe personality disorder, but not made subject to adequate treatment for his disorder or adequate risk assessment before his release. For a more systemic failure, see Dodov v Bulgaria,14 where there was a breach of the right to life caused by a failure to care adequately for an elderly woman with dementia when the problem identified was that no one was held accountable because the state had not adequately defined the duties in play, with the result that criminal proceedings could not be taken against the staff apparently responsible. The right to be protected from torture and inhuman and degrading treatment arises from the fact that it is an absolute right and so brings with it a duty to protect. An example of this is Ðord¯evic´ v Croatia,15 where the inadequate response of the state authorities to nasty harassment of a man with learning disabilities amounted to a breach of Article 3 of the ECHR by the authorities. Similarly, the absolute prohibition on slavery means that there is a duty to protect people from slavery, including its modern forms such as the trafficking of women to work in the sex trade: for an example of this, see Rantsev v Cyprus and Russia.16 The protection of the right to liberty is also such that, since it can occur in some private contexts, such as the detention of people in private psychiatric clinics, it may engage state responsibility if there has been inadequate supervision by the state. For example, in Storck v Germany,17 the claimant had been held in a private clinic, and part of the reason why this was held to be the responsibility of the state was that there had been a failure to protect the right to liberty because there were inadequate checks by the state on whether detention was voluntary or otherwise lawful.18

The additional scenario involves situations in which the fault of the state is not so much a failure to protect but active participation in a breach, such that there is some form of joint liability with the private actor. Storck v Germany also provides a good example of this: in addition to the failure to protect, noted above, the question as to whether the loss of liberty was ‘imputable to the state’19 turned on two additional factors: (i) police officers had returned Ms Storck to the clinic when she absconded, which was classed as a form of ‘direct involvement’ by ‘public authorities’,20 (ii) courts considering a claim for

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Dodov v Bulgaria App no 59548/00, [2009] MHLR 11. Ðord¯evic´ v Croatia App no 41526/10, [2013] MHLR 89. Rantsev v Cyprus and Russia App no 25965/04, (2010) 51 EHRR 1. Storck v Germany App no 61603/00, (2006) 43 EHRR 96, [2005] MHLR 211. ibid at paras 100–108. ibid at para 89. ibid at paras 89, 91.

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compensation for unlawful detention had not acted in a way that respected the right to liberty, which was also an act imputable to the state.21 In the case of the ECHR, an additional route for argument as to what is governmental arises from the procedural provisions relating to complaints to the ECtHR, because Article 34 allows complaints by various categories of victim, including ‘non-governmental organisations’; in contrast, the Human Rights Committee of the United Nations allows only complaints by individuals (or states against states).22 The ECHR provision had led to a number of cases where the state has argued, or the ECtHR has considered, whether an application is inadmissible because it involves a governmental organisation. A relatively mature example of this jurisprudence is Transpetrol v Slovakia,23 where the applicant was an oil trading company that was 51 per cent owned by the Slovakian government at the relevant time (and had a monopoly on the trade). It sought to argue that there had been a breach of fair trial rights (under Article 6 ECHR) in relation to proceedings relating to the ownership of the other shares: in particular, another company brought proceedings concerning the ownership of some of these other shares, and a decision was made in those proceedings, but Transpetrol was not a party. The preliminary question was whether it could make an application to the ECtHR. The court concluded that it could not because it was not a non-governmental organisation within the terms of Article 34. The purpose of the rule was said to be ‘to prevent a Contracting Party acting as both an applicant and a respondent party before the Court’.24 The central reason for the conclusion on the facts was that, whilst Transpetrol had features of both a governmental and non-governmental organisation, the issue in the underlying proceedings about which it sought to complain was the interests of the shareholders in the company and the interests of the government were therefore central. The court also set out some of the features that pointed one way or the other. The general approach involved assessing the corporation’s ‘legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities’.25 The court noted that state ownership was not decisive and that factors against being classed as governmental included carrying out commercial activities and not having a monopoly in a competitive sector of the economy;26 so the relevant facts in front of it were that Transpetrol had a commercial structure, governed by private law and subject to the jurisdiction of the ordinary courts, with no immunities or privileges,

21 22 23 24 25 26

ibid at paras 89, 92–99. This is noted in Chapter 2. Transpetrol v Slovakia App no 28502/08, 15 November 2011. ibid at para 60. ibid at para 63. ibid at para 61.

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and was part-owned by private entities (though by the time of the hearing, it was 100 per cent owned by the government).27 The general features pointing towards being a governmental organisation were the exercise of governmental powers and running a public service under governmental control.28 On the facts, the indicators of having this status were the significant government shareholding, its past exclusion from privatisation on account of its strategic importance, and its monopoly operations.29 It is worth noting that as a matter of international law, the Vienna Convention on the Law of Treaties 196930 provides in Article 27 that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. This has been referenced by the Human Rights Committee of the UN in its General Comment No 3131 on the nature of the obligation on states to support the indication that: 4.

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The obligations of the Covenant in general and article 2 in particular are binding on every State party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level—national, regional or local) are in a position to engage the responsibility of the State party. The executive branch that usually represents the State party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State party from responsibility for the action and consequent incompatibility. …

It follows that the adequacy of the bills of rights statutes in ensuring that all those whose actions are state actions in the international arena may be assessed in that arena.

II. RESPONSIBILITY AT THE DOMESTIC LEVEL

A. Introduction 29

A common feature of the bills of rights statutes is that they express their coverage to be over bodies exercising a public function (though with variations on how that is done); there is sometimes also express coverage of judicial acts or of courts, and mention made of the acts of the legislature, though the latter has to be understood in the context of the retention of legislature power to 27

ibid at para 65. ibid at para 63. 29 ibid at para 65. This is a fairly long-established approach: see RENFE v Spain, App no 35216/97, 8 September 1997, in which an application by the Spanish monopoly train operator was found inadmissible on the basis that, though it had legal personality and was administratively independent, it was a governmental organisation because it was created by the state to run the rail network, had a public service mandate, its board was answerable to the government, and its operating processes were set out in laws. 30 UNTS, vol 1155, p 331. 31 CCPR/C/21/Rev.1/Add. 13, 26 May 2004. 28

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breach the rights set out in the statute and so put limits on the control of the legislature. In summary: (i) New Zealand’s statutory language applies the statute to the ‘acts’ of the three branches of the state (and only to those acts). (ii) In relation to the UK, the Human Rights Act applies to all public authorities except Parliament in its legislative function (and also Ministers acting in relation to legislative functions), and there is an express exclusion of the private acts of public bodies; the human rights provisions of the devolution legislation apply to the legislatures and also to executive bodies, and provide for invalidity in the event of non-compliance with rights. (iii) Ireland’s statute uses the word ‘function’ and the phrase ‘organ of state’ and defines the former to cover powers and duties and the latter to cover bodies exercising legislative, executive or judicial powers, but this is subject to an exclusion of the President, the national legislature and the courts. (iv) In the ACT, there is a more detailed legislative description of what bodies count as being within the definition of public bodies covered by the legislation, though also with express exclusions for the legislature. (v) In Victoria, the approach from the ACT is also adopted. On the whole, the trend over time has been for the statutes to become more express and more prescriptive as to how the relevant bodies are to be designated (so leaving less scope for judicial interpretation).

30

B. The Statutory Language The relevant language is in the following terms. First, in New Zealand:

31

New Zealand—New Zealand Bill of Rights Act 1990 3.

Application—This Bill of rights applies only to acts done (a) By the legislative, executive, or judicial branches of the government of New Zealand; or (b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

In the UK, the Human Rights Act 1998 has an express remedy provision, set out in sections 6–9. The starting point is that section 6(1), read with section 6(2), prohibits a ‘public authority’ from breaching the rights set out in the Act unless primary legislation requires a breach: 6.

Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

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The Duty to Respect Rights (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

33

So a key question is what is a public authority? This is partially defined with some inclusive and some exclusionary language. Section 6(3) indicates that: (3)

In this section ‘public authority’ includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

34

There is further exclusionary language in relation to legislative actions. Subsection (4) as enacted excluded from the definition of Parliament the actions of the House of Lords in its judicial capacity: this was removed when the Constitutional Reform Act 2005 established the Supreme Court and removed the role of the judicial committee of the House of Lords as the final court for the UK. Moreover, subsection (6) notes that: (6) ‘An act’ includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.

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39

In short, the primary legislative process is excluded. But the executive function in relation to secondary legislation is treated very differently: secondary legislation cannot prevent an action being found illegal unless primary legislation required the maker of the secondary legislation to act in that way (in which case section 6(2) provides a safeguard); and the failure to make secondary legislation is not protected. Secondary legislation that has to be approved by Parliament will not be saved either unless any breach of rights is the consequence of the primary legislation: in short, non-compliance with rights standards has to have a basis in primary legislation. The language in section 6(3)(b) is also subject to exclusionary language in subsection (5) to make clear that the classification of the body as a public authority does not apply ‘if the nature of the act is private’. Sections 7–9 set out the right to bring proceedings and obtain a remedy; these are covered in Chapters 9 and 10, but it is worth commenting that section 9 specifically provides that judicial acts are not immune from action under the Act, but are subject to certain procedural requirements (namely that the proceedings have to involve an appeal or an application for judicial review, and damages are limited to situations where that is required by Article 5(5) of the ECHR, namely breaches of the right to liberty). The devolution legislation has a different structure because it is not governed by the desire to preserve the power to breach rights: so the obligations to abide by rights are imposed on the legislative branch as well. Consequently, section 29 of the Scotland Act 1998, section 6 of the Northern Ireland Act 1998

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and section 94 of the Government of Wales Act 2006 indicate that there is no competence to pass legislation that breaches the rights set out in the ECHR that are part of the Human Rights Act.32 In addition, executive actions are of no effect if they breach these rights: section 57 of the Scotland Act 1998; section 24 of the Northern Ireland Act 1998; and section 81 of the Government of Wales Act 2006. The Northern Ireland Act 1998 has the additional aim of giving effect to elements of the agreement between the Irish and UK governments to redress past inequities, and so it includes a requirement in section 75 that public authorities have due regard to the need to promote non-discriminatory equality of opportunity.33 There is a definition of ‘public authority’ in section 75(3), which cross-refers to bodies that come under the jurisdiction of various ombudsmen,34 various police and prosecuting bodies (though not in relation to prosecuting functions), the Northern Ireland Law Commission and anyone designated by the Secretary of State. Similarly, section 76 of the Northern Ireland Act 1998 contains a prohibition on discrimination by public authorities based on religious or political belief or political opinion (with a remedy, including damages and injunctions). There is a separate definition of a public authority for the purposes of this section, set out in section 76(7), which is similar to but slightly wider than that relevant to section 75 (for example, including postal service providers). In Ireland, the obligation not to breach the rights set out in the European Convention on Human Rights Act 2003 is phrased as belonging to every ‘organ of the state’ in the performance of its functions; and this is defined so as to include those exercising legislative, executive or judicial powers but also so as to exclude the President, the national legislature or a court: 3.

Performance of certain functions in a manner compatible with Convention provisions. (1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions. 1(1) Interpretation ‘functions’ includes powers and duties and references to the performance of functions includes, as respects powers and duties, references to the exercise of the powers and the performance of the duties; ‘organ of the State’ includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which 32

See Chapter 4. See also section 24(1)(c), which provides that executive action cannot discriminate on the grounds of religion or political belief, and section 6(2)(c), which prohibits legislation that has that effect. 34 As established by the Parliamentary Commissioner Act 1967, Schedule 2 to which provides a lengthy list of those subject to investigation for maladministration; and the Commissioner for Complaints (Northern Ireland) Order 1996 and Ombudsman (Northern Ireland) Order 1996, both of which have a similar list arrangement. 33

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The Duty to Respect Rights is established by law or through which any of the legislative, executive or judicial powers of the State are exercised; … ‘rule of law’ includes common law; ‘statutory provision’ means any provision of an Act of the Oireachtas or of any order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created thereunder or any statute, order, regulation, rule, licence, byelaw or other like document made, issued or otherwise created under a statute which continued in force by virtue of Article 50 of the Constitution.

43

The Australian statutes take a similar approach in providing for the primacy of legislation, but a different approach in that there are more detailed descriptions of the bodies covered, leaving far less to the courts to interpret. In the ACT, the Human Rights Act 2004 provides that public authorities may not breach the rights set out in the statute unless required to do so by another law (which can be an express requirement or arising from the lack of any possibility of interpreting the statute in a way that complies with rights). It is also expressly provided that a public authority making a decision must take rights into account unless prevented by the other law: 40B

Public authorities must act consistently with human rights

(1) It is unlawful for a public authority— (a) to act in a way that is incompatible with a human right; or (b) in making a decision, to fail to give proper consideration to a relevant human right. (2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and— (a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or (b) the law cannot be interpreted in a way that is consistent with a human right. Note A law in force in the Territory includes a Territory law and a Commonwealth law. 44

45

There is a definition of Territory law (in the Dictionary part of the statute, which has effect through section 3) that indicates it includes both primary statutes and statutory instruments. The duty of the public authority not to breach rights does not apply in relation to any economic, social and cultural rights, which at the time of writing means the right to education, which are excluded by subsection (3). Proceedings may be taken in the event of a breach: see Chapters 9 and 10. The definition of public authority is again key. There is a detailed statutory account of the bodies which are within the category of public authority; and it is also possible, under section 40D of the Act, for an entity to declare itself to be a public authority. (Section 40B(3) provides expressly that a public authority that has made such a declaration is bound by this requirement to act in accordance with rights.) As to the definition of what is a public authority (ie who is covered irrespective of whether a declaration has been made), the statute sets out some specified bodies that are covered and some that are excluded; and it has a more general provision to cover bodies exercising a

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public function, but with an indication in the statute as to (i) the features that may be relevant to assessing what is a public function and (ii) certain functions that are covered, including public utilities, housing, transport and education. The relevant language is: Part 5A Obligations of public authorities 40 Meaning of public authority (1) Each of the following is a public authority: (a) an administrative unit; (b) a territory authority; (c) a territory instrumentality; (d) a Minister; (e) a police officer, when exercising a function under a Territory law; (f) a public employee; (g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise). Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)). (2) However, public authority does not include— (a) the Legislative Assembly, except when acting in an administrative capacity; or (b) a court, except when acting in an administrative capacity. 40A Meaning of function of a public nature (1) In deciding whether a function of an entity is a function of a public nature, the following matters may be considered: (a) whether the function is conferred on the entity under a territory law; (b) whether the function is connected to or generally identified with functions of government; (c) whether the function is of a regulatory nature; (d) whether the entity is publicly funded to perform the function; (e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory. (2) Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature. (3) Without limiting subsection (1) or (2), the following functions are taken to be of a public nature: (a) the operation of detention places and correctional centres; (b) the provision of any of the following services: (i) gas, electricity and water supply; (ii) emergency services; (iii) public health services; (iv) public education; (v) public transport; (vi) public housing.

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The provisions in Victoria are similar. The starting point is section 6, which indicates the application of the Act, which is to Parliament, courts and tribunals, and public authorities. However, in relation to Parliament, the application provision is in relation to the need for statements as part of the legislative process and the exercise of the legislative override power; for the courts and tribunals, it is in relation to the interpretation of other laws. The more general application to public authorities is in relation to the obligation on them as to their conduct and the way of enforcing this. Section 39 of the Charter of Human Rights and Responsibilities Act 2006 allows for proceedings if there has been a breach of the obligation set out in section 38, which follows the standard approach of making it illegal for a public authority to act incompatibly with rights or fail to give appropriate weight to the right, but with the proviso that another statutory provision may have required the breach. The relevant language is: 38. Conduct of public authorities (1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. (2) Sub-section (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision. (3) This section does not apply to an act or decision of a private nature. (4) Sub-section (1) does not require a public authority to act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates. (5) In this section ‘religious body’ means— (a) a body established for a religious purpose; or (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

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It should be noted that section 3(1) defines a statutory provision to cover also secondary legislation. Section 38 indicates the importance of reviewing the nature of the act, to determine whether it is a private or public act; it also indicates that religious bodies may be public authorities but also that they have an exemption if their religious doctrines are in conflict with the rights in the statute. Key is the coverage of the provision. There is a lengthy definition of public authority, which follows the model of the ACT statute. Section 4 of the 2006 Act notes: 4. What is a public authority? (1) For the purposes of this Charter a public authority is— (a) a public official within the meaning of the Public Administration Act 2004;35 or 35 There is a statutory note that indicates: ‘A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government

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(b)

an entity established by a statutory provision that has functions of a public nature;36 or (c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);37 or (d) Victoria Police; or (e) a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act; or (f) a Minister; or (g) members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or (h) an entity declared by the regulations to be a public authority for the purposes of this Charter— but does not include— (i) Parliament or a person exercising functions in connection with proceedings in Parliament; or (j) a court or tribunal except when it is acting in an administrative capacity;38 or (k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.

Regulations have been issued to indicate that for the purposes of subparagraph (k), the Victorian Youth and Adult Parole Boards are not public authorities, nor is the Youth Residential Board.39 There is statutory assistance on the question of what amount to functions of a public nature. It is noted in sections 4(2)–(5) that certain features may be taken into account but are not exclusive. These are similar to the general features in the ACT statute, but without the more specific indications that certain functions are clearly public. The language is: (2) In determining if a function is of a public nature the factors that may be taken into account include— (a) that the function is conferred on the entity by or under a statutory provision;40 department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices’. 36 The statutory notes indicate ‘1. In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body. 2. See subsection (2) in relation to “functions of a public nature”’. 37 There is both a statutory example and a note: ‘Example—A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter. Note—See subsections (4) and (5) in relation to “on behalf of the State or a public authority”’. 38 The statutory note indicates that ‘Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures’. 39 See, most recently, the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, SR No 129/2013. 40 There is a statutory example, namely ‘The Transport (Compliance and Miscellaneous) Act 1983 confers powers of arrest on an authorised officer under that Act’.

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(b) that the function is connected to or generally identified with functions of government;41 (c) that the function is of a regulatory nature; (d) that the entity is publicly funded to perform the function; (e) that the entity that performs the function is a company (within the meaning of the Corporations Act) all of the shares in which are held by or on behalf of the State.42 (3) To avoid doubt— (a) the factors listed in subsection (2) are not exhaustive of the factors that may be taken into account in determining if a function is of a public nature; and (b) the fact that one or more of the factors set out in subsection (2) are present in relation to a function does not necessarily result in the function being of a public nature. (4) For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority. (5) For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.

C. Analysis of the Statutory Language 52

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A number of different approaches are evident in certain aspects of these statutory provisions: but also some similarities. There is an exclusion of the legislature in relation to its law making. This is express in the statutes apart from the NZBORA. It applies to the acts of the legislative branch. This means that legislative acts are covered, but the question is how the NZBORA covers them. The answer is that they are subject to the interpretive obligation in section 6; but section 4 of the NZBORA indicates that statutory provisions are in no way invalid by reason of inconsistency with the rights set out, and so they remain enforceable even if they breach rights.43 The other clear consistent feature is that legislative material that requires a public authority to breach rights has to be respected. This again is implicit in the NZBORA, arising from the ongoing validity of a statute that breaches rights. Where there is express language that a legislative mandate provides a defence to actions by public authorities, there are some differences in relation to this obligation: 41 The statutory example is that ‘Under the Corrections Act 1986 a private company may have the function of providing correctional services (such as managing a prison), which is a function generally identified as being a function of government’. 42 The statutory example is that ‘All the shares in the companies responsible for the retail supply of water within Melbourne are held by or on behalf of the State’. 43 There is the point that the rule of law should include human rights standards, which is discussed in Chapter 3; but the firmly established idea of the supremacy of legislation in the New Zealand Constitution, perhaps unless it is so egregious, such as requiring torture, means that it continues to have the force of law.

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(ii)

(iii)

(iv)

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In Ireland, higher status is also accorded both to a statutory provision and a rule of law (both of which can displace the duty to abide by rights). In section 1(1), a ‘rule of law’ is defined so as to include the common law,44 and a statutory provision is widely defined to cover any instrument setting out the law—including for example a bye-law—pursuant to a statute. The Australian statutes also include delegated legislative provisions within their definitions. The UK statute, however, is clear that only a primary statutory requirement provides a defence. In the ACT, there is an express indication in section 40B(2)(b) of the Human Rights Act 2004 that this turns on whether the law being considered can be interpreted in a way that is compliant with rights (which is implicit in the other statutes, through the basic obligation to read the various provisions together). In the Victorian Charter, it is to be noted that section 38(2) provides that the question is not whether the public body could have acted differently but whether it ‘could not reasonably have acted differently’: this may be thought to allow the public body to argue that its conduct was reasonable albeit found to be improper. For example, legal advice that its action was lawful because a statute required a particular approach might provide a defence if a court determines that a contrary interpretation of the law is correct but that the legal advice was reasonable. A more traditional argument is that the court having declared the law, it could not be reasonable for the body to have acted differently (ie in breach of the law). The Victorian Charter also provides an exemption for religious bodies in that section 38(4)–(5) allows them to follow their doctrines even if they breach the rights set out in the Charter.

Another common feature is the non-coverage of acts of a private nature. This is central to a distinction discussed below between bodies that are governmental in relation to some of their functions and those that are always governmental. However, there are some significant differences between the statutes in relation to the extent of the exclusion of private acts. It is express in the Victorian and the UK statutes, but with some differences. In the UK statute, the exemption for a private act relates to a body which is only a public body in relation to some of its functions (see section 6(3)(b) and (5)); in the Victorian Charter, the private act exemption (in section 38(3)) applies to all public authorities, and the definition of this in section 4 includes various bodies that are not public authorities only on the basis of having some functions of a public nature but are, in the language developed in the UK courts and set out below, ‘core’ public authorities, such as the police or a government minister. In short, in the UK, some private acts might well be covered on the basis that they are the acts of a body that cannot avoid being covered; in such a case, the 44 There is the question of whether the common law has to be developed to be compliant with rights: see below.

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question will still have to be asked as to whether a right is in play by reason of the conduct in question. But in the Victorian Charter, it is the nature of the act that governs and so it might be excluded from purview on that basis. The exclusion of private acts is a matter of implication in the other statutes. There is no clear language in the NZBORA that private acts are excluded. However, by the indication in section 3 that the statute applies ‘only’ to the bodies exercising public functions, the implication is that anyone operating in a private capacity is not covered: this most obviously covers the situation in section 3(b) that some bodies carry out public functions some of the time, but are otherwise not bound; this is because the other bodies—ie those which are essentially full time in such a function—are covered in any event and not only by virtue of having some functions of a public nature. Certainly, in the White Paper supporting the un-enacted supreme law version of the legislation— which in clause 2 guaranteed rights against acts done ‘(a) by the legislative, executive, or judicial branches of the government of New Zealand; or (b) in the performance of any public function, power or duty conferred or imposed on any person or body by or pursuant to law’—the commentary to this clause noted the importance of a distinction between public acts (which would be controlled) and private acts (which would not), and suggested that this clause was a ‘first step’ in drawing that distinction.45 The ACT statute also implicitly excludes private acts when carried out by a hybrid public body: again, section 40(1) of the Human Rights Act 2004 refers to certain bodies as being public bodies by virtue of what they are; but other bodies are defined as public bodies in relation to their functions of a public nature ‘when … exercising those functions’ and so not when exercising other functions. Similarly, in the Irish statute, the duty to abide by rights is in relation to the functions carried out by organs of the state: the definition of functions refers to powers and duties, which, when combined with the need for the body to be an organ of the state, suggests that the statute only applies when there is the exercise of a public function rather than some act that is private in nature. Another point to note is whether the statute covers only actions or also omissions. In the UK and the Australian statutes, the failure to act is covered expressly. Section 6(6) of the UK Human Rights Act 1998 provides that an omission by a public body is counted as an act, save that there is the exclusion of omissions that occur within the parliamentary setting in relation to primary legislation or the making of a remedial order (which can be made after a declaration of incompatibility to correct primary legislation). In the ACT and Victoria, the definitional sections of the statutes indicate that an act includes an omission: section 3 of the Charter of Human Rights and Responsibilities Act 2006 (Victoria) provides that ‘act includes a failure to act and a proposal

45 Pages 69–71; available at www.justice.govt.nz/policy/constitutional-law-and-human-rights/ human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act.

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to act’; and in the ACT, the Dictionary to the Human Rights Act 2004 (which has effect via section 3) states that for the purposes of the obligation on public authorities, ‘act … includes fail to act and propose to act’, and more generally that engaging in conduct covers acting and omitting to act. In the case of New Zealand and Ireland, it will be a matter of interpretation. The context of this is that there are various positive duties in the rights arising at international law, such that a failure to act can be a breach of the regime. That should allow omissions that breach rights to be covered. There are also differences in the statutes in relation to the main areas of governmental function, namely the executive, legislative and judicial. The former instance now covers also the growing tendency for governmental functions to be carried out by private bodies. These matters are discussed next.

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D. The Executive The statutes do not all make reference to the executive branch of the state. The NZBORA does, identifying in section 3(a) that it applies to the executive branch; similarly, in Ireland, the duty to abide by rights standards is owed by organs of the state, defined in section 1 of the European Convention on Human Rights Act 2003 as including a body through which executive powers are exercised.46 However, since the majority of interactions between residents and the state are with those exercising executive powers, it is clear that executive bodies have to be covered. This seems to arise most naturally in the other statutes by the reference to bodies carrying out public functions, which will often be functions of an executive nature. Some are specifically named in the Australian statutes. There is in the NZBORA reference both to the executive branch and to bodies exercising public functions: this has led to some questions as to the basis on which a body is covered. For example, in Innes v Wong,47 the question was the body to be named as a defendant for the purpose of a damages claim for a breach of the NZBORA. (See Chapters 9 and 10 for the relevant provisions on this.) In allowing a claim against a hospital on the basis that it was owned by the Crown but might not lead to liability on the part of the Crown, Cartwright J set out section 3 and indicated that it ‘acknowledged … that persons or bodies other than the Crown or those for whose actions the Crown has direct responsibility may be subject to the provisions of the New Zealand Bill of Rights Act’. The apparent distinction Her Honour drew was between the bodies of central government, covered by section 3(a), and other bodies exercising governmental functions but not directly part of the Crown, covered by section 3(b). This is a distinction that draws readily on the features of the 46 The devolution legislation in the UK is also clear that the executive branch in the relevant jurisdictions is covered. 47 Innes v Wong (1994) 4 HRNZ 247.

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UK Constitution exported to New Zealand: namely, the centralised power of the monarch (now shared with the Parliament in relation to legislation, and operated by Ministers who come out of and are responsible to Parliament in relation to most executive matters, and independently exercised by the royal judges in relation to judicial powers). This always left room for other powers to be exercised by non-Crown entities, albeit subject to Crown control, such as powers at a local level. In this more modern scenario, it was applied to cover Crown-owned entities that were not directly part of the Crown. The counterpoint is that this is perhaps an outdated view of a modern state, and the focus should be on the nature of the power rather than its origin as a Crown or non-Crown power. This might place bodies such as the police and parts of a national health service as part of the executive and so covered by section 3(a) rather than as public bodies under section 3(b), subject to direction by the executive but not considered to be part of the executive. Whether this is a distinction without a difference is a matter for the interpretation of the rest of the statute. It would be important in the UK, for example, because the exclusion of ‘private’ acts from the purview of the Human Rights Act 1998 is only in relation to those bodies that are covered because they exercise functions of a public nature rather than because they are a public authority as a matter of their nature (ie core public authorities).

E. Functions of a Public Nature i. Introduction 64

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A major difference of approach in the statutes arises in the detail in the statutory definition of what is a public function or what bodies are captured by this. In the earlier statutes, there is a general indication that the various main functions of government are covered, with at most an express inclusion of bodies that may exercise governmental functions in some situations but are not otherwise considered to be part of the government. The Australian statutes provide the contrast, in having a greater degree of specificity. There has been significant case law, particularly in the UK, as to which bodies are covered. It may be that this case law provides a ready explanation for the greater precision offered by the Australian statutes. It is worth noting at the outset the choice of language, in particular the reference to being a public authority, since a narrower concept—such as governmental—could have been used. This arises from the language in the Canadian Charter of Rights and Freedoms 1982. It expresses in section 32 that it applies to the legislature and government of Canada and its constituent provinces. The former is to be expected in the case of a supreme law document. It also provides in section 24 that everyone is entitled to a remedy for a breach of their rights: so a question was inevitably to arise as to whether a remedy could be granted against a body that was not run directly by the state.

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In Eldridge v Attorney-General of British Colombia,48 the Supreme Court considered the question of the applicability of the Charter to a hospital setting, the context being the lack of interpreters for deaf patients, and the consequent impairment of their ability to communicate with their doctors on equal terms to patients who did not need an interpreter. The claim was that this involved a breach of non-discrimination standards in Article 15 of the Charter. As part of the reasoning in the case as to why the Charter applied, the court reviewed past jurisprudence as to what was governmental, which had involved differences of view among the justices.49 La Forest J, for a unanimous court, noted first a route that might seem to apply only in a supreme law context, namely the ‘basic principle of constitutional theory that since legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to do so’.50 However, he then discussed a situation relating to government rather than legislative powers, noting that legislation might create or authorise the creation of entities that were wholly or partly independent of government: in the former situation would be private corporations; in the latter would be the various public and quasi-public institutions with some level of independence from government. The question of whether they were bound by the Charter turned on whether the action being challenged was done as part of government for the purposes of section 32. This involved the public/private distinction. His Honour noted that ‘the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as “private”’, but also that there had been suggestions that it might apply to a private body carrying out a governmental function.51 He confirmed the accuracy of these suggestions, indicating that there were two scenarios: one was that a body might itself be part of the government, which could arise ‘either by its very nature or in virtue of the degree of governmental control exercised over it’;52 but there was also the fact that ‘a private entity may be subject to the Charter in respect of certain inherently governmental actions’.53 There was a distinction between these two categories. In the first, ‘all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed

48

Eldridge v Attorney-General of British Colombia [1997] 3 SCR 624. See McKinney v University of Guelph [1990] 3 SCR 229, and its companion cases, Harrison v University of British Columbia [1990] 3 SCR 451, Stoffman v Vancouver General Hospital [1990] 3 SCR 483, and Douglas/Kwantlen Faculty Assn v Douglas College [1990] 3 SCR 570. These cases related to mandatory retirement policies at universities and hospitals, which were found not to be covered by the Charter save in the final case, because the college involved there had been established by statute to carry out a governmental policy and did not have the autonomy of other educational institutions. See also Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211. 50 [1997] 3 SCR 624 [35]. 51 ibid at [41]. 52 ibid at [44]. 53 ibid at [42]. 49

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by a non-governmental actor, correctly be described as “private”’.54 In the latter, it would be covered in relation to the parts of its conduct that were governmental. For the second category, the question arising was what factors allowed the identification of this characterisation, and La Forest J noted that they ‘do not readily admit of any a priori elucidation’.55 However, there would clearly be coverage if the private entity was implementing a specific governmental programme or policy: the government would retain responsibility, including for Charter review, on the basis that there can be no permission to evade scrutiny by entering into private arrangements or delegating implementation of policies to private entities. But there was a caveat to this: it was not sufficient that the entity in question was doing something that was ‘public’, but it had to be something that was specifically ‘governmental’.56 On the facts, although public hospital provision was not governmental, the implementation of a policy of ensuring health service provision was. Whilst this case law did not mature until after the NZBORA was implemented, which was the first to use language referring to bodies that are covered because of the functions they exercise but only in relation to those functions, as has been noted above, the White Paper that preceded the New Zealand statute revealed an awareness of the private/public distinction, and referenced factors that had been used in particular in the USA to differentiate between state action that brought with it potential constitutional controls and private action.57 In light of that background, it is perhaps not surprising that there was significant case law that proceeded to the highest court in the UK as to whether certain bodies were covered by the Human Rights Act 1998. ii. The UK Case Law

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The question that arose in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another58 was the ecclesiastical and chancery question of enforcing a right to compel payments that were to be used to repair a church. The Wallbanks lived on a farm that had previously been owned by the local church and, as a matter of ecclesiastical and common law, were liable to contribute to the cost of repairing the local church. The whole process was regulated by statute, the Chancel Repairs Act 1932, and the relevant procedures had been followed by the relevant parochial church council (who were organised according to the Parochial Church Councils (Powers) Measure 1956, a Measure of the General Synod of the Church of England that has the status of primary legislation for the purposes of the Human Rights Act 54

ibid at [44]. ibid at [42]. 56 ibid at [43]. 57 See n 45 above. 58 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] UKHL 37, [2004] 1 AC 546. 55

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1998: see section 21). The sole question in dispute—since liability at common law59 was not in issue—was whether the Wallbanks’ right to enjoyment of their property (in the form of their funds that were being claimed by the church) was being breached in a disproportionate fashion and so contrary to Article 1 of the First Protocol to the ECHR, with a subsidiary argument based on the Article 14 right of non-discrimination in relation to other fundamental rights, which was said to arise from the differential treatment of landowners based on whether they had land that had once been owned by the church. But in order for this substantive right to be in play in the litigation, it had to be something that bound parochial church councils, which in turn raised the question of whether they were a public authority. The Court of Appeal60 had concluded that such councils were a public authority. Its reasons were summarised by Lord Hope as involving the following elements, which were attractive at first sight: (i) they had powers of enforcement not open to the public, which element of coercion suggested that there was some sort of authority involved and (ii) they were created and given powers by law.61 But the House of Lords reached a contrary conclusion, albeit by a majority, and so determined that the powers of the parochial church councils were not limited by the Human Rights Act 1998,62 in the course of reaching which conclusion some guidance was given on the test for being a public authority. Lord Nicholls noted, first, that there was no definition of what was a public authority, nor was it a recognised term of art such that its meaning could easily be ascertained. That led to the second point, which was that the statutory context should be a key feature in providing a purposive meaning for the phrase. This was categorised in the following terms: 6.

… the broad purpose sought to be achieved by section 6(1) is not in doubt. The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatibly with Convention rights. If they act in breach of this legal obligation victims may henceforth obtain redress from the courts of this country. In future victims should not need to travel to Strasbourg.

7.

Conformably with this purpose, the phrase ‘a public authority’ in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the European Convention on Human Rights. …63

59

Described by Lord Scott at [97]–[109]. [2002] Ch 51. 61 [2003] UKHL 37, [2004] 1 AC 546 at [40]–[41]. 62 A majority of the court also determined that Article 1 of Protocol 1 was not breached, nor was Article 14. 63 Similarly, Lord Rodger noted at [160] that ‘Prima facie … when Parliament enacted the 1998 Act … the intention was to make provision in our domestic law to ensure that the bodies carrying out the functions of government in the UK observed the rights and freedoms set out in the Convention’ such that a ‘purposive construction’ of section 6(1) ‘indicates that the essential characteristic of a public authority is that it carries out a function of government which would 60

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74

Such bodies, Lord Nicholls noted, were ‘core’ public authorities.64 Having identified the purpose as being linked to the procedural part of the ECHR, he added that the sorts of bodies that could not claim victim status before the ECtHR were more likely to be public authorities.65 Lord Hope was also keen to ensure that the right of petition to the ECtHR given to ‘non-governmental organisations’ had to be reflected in the interpretation given to the different phrase in the domestic statute, and discussed case law from Strasbourg relating to who has the right of petition.66 This led to reverse reasoning in that the importance of the possibility of claiming victim status in relation to their own rights supported them being kept outside Article 34 of the ECHR: Lord Nicholls suggested that it would be ‘extraordinary’ if parochial church councils could not make complaints as to their own human rights being breached, which must have meant that they could not be ‘core’ public authorities, particularly as section 13 of the Human Rights Act 1998 (UK) emphasises the right to freedom of thought, conscience and religion for religious bodies.67

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The aim of the statute, however, was to go further than core public bodies, in light of two features, namely the wider range of functions that are considered governmental and the use of non-governmental bodies to carry out ‘governmental functions’:68 having used that phrase, Lord Nicholls also noted that the statutory phrase was ‘public function’ rather than ‘governmental function’ and so any consideration of whether the activity in question was one that was considered to be governmental could only be a guide rather than definitive.69 These non-core bodies were covered by the statute in relation to their ‘functions of a public nature’, though not in relation to their private acts. He gave illustrations of such ‘hybrid’ bodies,70 namely a privatised prison and the Law Society in its regulatory role. In terms of how to identify such organisations, Lord Nicholls commented that, first, it was appropriate to give a ‘generously wide’ interpretation of ‘public function’ in order to support the statutory purpose of promoting human rights;71 and, secondly, that the ‘touchstone’ for determining that a function was ‘public’ was not capable of being reduced to ‘a single test of universal application’ because of ‘the diverse nature of

engage the responsibility of the UK before the Strasbourg organs’. This purpose having been identified, it became impermissible to refer to parliamentary debates to assist, given the need for ambiguity, before courts in England and Wales will look at such material (in accordance with Pepper v Hart [1993] AC 593). 64 Another phrase used was ‘standard’ public authorities: see Lord Hope, [2003] UKHL 37, [2004] 1 AC 546 at [35]. 65 ibid at [8]. 66 ibid at [45]–[51]. Lord Rodger also supported this line of reasoning at [158]–[165]. 67 ibid at [15]. 68 ibid at [9]. 69 ibid at [10]. The Canadian Supreme Court, as has been noted above, was clear that governmental was a narrower phrase than public. 70 Such bodies, in contrast to core public bodies, might be victims of human rights abuses in relation to their private acts: ibid at [11]. Lord Hope described them as ‘functional’ public bodies: ibid at [35]. 71 ibid at [11].

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governmental functions and the variety of means by which these functions are discharged today’.72 That meant that, thirdly, it was necessary to consider features that had to be weighed in the balance: Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.73

In concurring judgments, Lord Hope noted that case law on amenability to judicial review was helpful but not determinative of either core or hybrid status, and Lord Hobhouse suggested that such case law was not relevant because the question arising was different.74

76

As to how the law applied to the facts, Lord Nicholls accepted that the Church of England75 had historically had a central role in public life and maintained links with central government, and also that some parts of it carried out public functions (running schools and conducting marriages being examples, as was the function of the General Synod (whose Measures are primary legislation)). But he concluded that the Church of England as a whole was a religious body, and that the parochial church council was essentially an administrative unit with functions including maintaining churches and so not a ‘core’ public body.76 Nor were any of its functions public in nature so as categorise it as a ‘hybrid’ public body that was carrying out public functions in enforcing the payment owed by law; rather, the payment due was the equivalent of a restrictive covenant.77 The other Lords agreed, except Lord Scott, who concluded that the parochial church council was acting as a hybrid public authority, and the right in play was not a private one, because the church building was properly to be thought of as a public building, the council had a charitable (and therefore public trust) status, and its decisions to enforce the repair liability were not taken in pursuit of private interests but in the interests of all parishioners.78 The common context of the transfer of functions previously carried out by public authorities to private companies fell for consideration in YL v

77

72

ibid at [12]. ibid at [12]. 74 ibid at [52] (per Lord Hope) and [87]. 75 Which, Lord Hope noted, at [61] has no legal status or personality or statutory basis; see also Lord Hobhouse at [84]. Lord Scott, in contrast, noted at [130] that the Church of England was ‘a church by law established’. 76 [2003] UKHL 37, [2004] 1 AC 546 at [13]–[14]. Lord Hope at [56]–[58] gives more detail on its administrative status within the Church of England; see also Lord Rodger at [149]–[152]. 77 ibid at [17]. Lord Hope noted that the action of the parochial church council was simply the enforcement of a debt and so was a private act. Lord Hobhouse noted at [89]–[90] that the history of the obligation of the Wallbanks was a private Act of Parliament of 1742 that created the obligation to pay for chancel repairs, as an incident of the ownership of the land, as a private right. 78 ibid at [130]–[131]. 73

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Birmingham City Council and Southern Cross Healthcare Ltd.79 The question was whether the decision of a private care home to cancel the contract to care for YL, an elderly woman with dementia, and so require her to move, was something that could be objected to on the basis that it breached her rights under Article 8 ECHR. The placement had been arranged by and was largely paid for by Birmingham City Council under its social care obligations, specifically the National Assistance Act 1948: these were clearly public in nature80 and had over time changed from a duty of provision to a duty to make arrangements for provision.81 In addition, the National Health Service made some payments for nursing care, which would also be available for those whose stay in the care home was arranged entirely through private arrangements.82 Public finances were the source of 80 per cent of the funding of the company;83 it was a major operator in that sector, providing some 29,000 beds.84 The whole sector and individual care homes were subject to extensive regulation and monitoring by the state.85 However, there were also contracts in place. Between the council and the company there was a general or ‘umbrella’ agreement whereby Southern Cross was effectively the care provider for Birmingham; this included as a standard of service provision that the company and its employees not act in breach of Convention rights.86 There was an additional contract involving YL’s family under which they paid a small top-up fee towards the care (presumably arising from the fact that community care provision is means tested). It is apparent that the family was involved in the choice of the care home involved.87 The company decided to terminate the arrangement because of allegations about the conduct of YL’s husband and daughter during visits (but this had been resolved by the time of the final decision).88 The House of Lords was split 3:2, the majority concluding that Southern Cross was acting as a commercial company providing accommodation and care rather than exercising a public function in that provision and so was entitled to rely on its contractual rights unconstrained by the ECHR: the rights of YL existed only as against the Council. Lord Scott, the dissentient in Aston Cantlow, was firmly on the other side here. He noted that the issues were twofold, namely was the operation of the care home a function of a public nature and was the notice of termination

79 YL v Birmingham City Council and Southern Cross Healthcare Ltd [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85. 80 They are set out by Lord Mance: [2007] UKHL 27, ibid at [107]–[109]. 81 ibid at [50]–[52] and [111]–[115]. 82 ibid at [53], noted by Lady Hale. 83 ibid at [168], noted by Lord Neuberger. 84 ibid at [76]. 85 Described by Lord Mance, ibid at [79]. 86 ibid at [40], noted by Lady Hale. 87 ibid at [78]. 88 ibid at [47] and [78].

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a public or private act?89 The first question would determine whether the Human Rights Act 1998 applied on the basis that the home operator was a hybrid public authority; the second would determine whether the decision that was challenged was excluded from the purview of the act because it was a private act. Lord Neuberger expanded on this distinction between functions and acts, noting that there could be several acts in a particular function and some of those acts could be private in nature; so, he noted, if the provision of care was a public function, it might involve private acts such as contracting for food and electricity.90 He noted that, unlike a core public authority, all of whose acts were public,91 ‘a hybrid public authority is only bound by s6(1) in relation to an act which (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature’.92 The approach of the judges was to set out factors relevant to the classification and then apply them: but there was a significant range of views as to the relevance of particular factors, even within the majority. Lord Scott started with the nature of the company, which was wholly commercial and reliant on private contracts, albeit that it carried out a function that was for the public good: 26.

… Southern Cross is a company carrying on a socially useful business for profit. It is neither a charity nor a philanthropist. It enters into private law contracts with the residents in its care homes and with the local authorities with whom it does business. It receives no public funding, enjoys no special statutory powers, and is at liberty to accept or reject residents as it chooses (subject, of course, to anti-discrimination legislation which affects everyone who offers a service to the public) and to charge whatever fees in its commercial judgment it thinks suitable. It is operating in a commercial market with commercial competitors.

He then turned to the nature of the services provided and the funding for them, and concluded that they were also commercial nature, albeit largely from the public purse and analogous to what a publicly run home could do. These latter features had been relied on by those who sought the application of the 1998 Act: but Lord Scott thought they carried ‘little weight’.93 In turn: (i)

89

Public placement and funding of residents: Southern Cross was paid for a service on commercial terms, and did not receive a subsidy, so ‘It is a misuse of language and misleading to describe Southern Cross as publicly funded’.94 His rationale seems to have been that the contrary would have proved too much in that it would mean that any contractor— cleaner or caterer—would become a public authority.

ibid at [25]. ibid at [130]. 91 This is a point made by Lords Rodger and Hobhouse in Aston Cantlow and also Lord Mance in YL: see the discussion below. 92 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [131]. 93 ibid at [27]. 94 ibid at [27]. 90

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352 (ii)

The Duty to Respect Rights Being an alternative to public provision: although local authority homes would clearly involve a public authority, the involvement of a private operator meant that there was the fundamental difference that public law duties were replaced by private law duties in contract and tort (including the duty of care).95 Again, the concern was that the point of similarity proved too much because it would mean that all contracting out would produce a hybrid public authority (and indeed that all public sector employees would be a public authority by virtue of carrying out the function). So the key question, he said, was not the nature of the activity and hence the question of whether it could be carried out by a public authority: rather it was the reason for the activity and whether it arose from a public obligation or a private obligation. He noted: 31.

… A local authority is doing so pursuant to public law obligations. A private person, including local authority employees, is doing so pursuant to private law contractual obligations. The nature of the function of privately owned care homes, such as those owned by Southern Cross, no different for s6 purposes from that of ordinary privately owned schools or privately owned hospitals (nb some schools and hospitals may have special statutory powers over some pupils and patients eg reformatories in the olden days and mental hospitals these days), seems to me essentially different from that of local authority care homes.

(iii)

84

85

Policy reasons in light of the vulnerable nature of the clients: this did not justify a wide approach to the question of what was a public authority because it was the function of the governmental authorities to provide the necessary regulation and remedy, which could be built into the relevant contractual arrangements at the insistence of those governmental bodies.96 Lord Scott did suggest that there might be a difference if there were certain powers allowed, such as restraint, discipline or confinement: this was no doubt to prevent the obvious argument that would come by analogy in relation to private prisons if his conclusion was taken a step further.97 He accepted that those running a care home might exercise some powers of control, but suggested that they were subject to private law regulation (essentially being saved from being tortious by the defence of necessity, which was about to be put into statutory form under the Mental Capacity Act 2005 (UK)). Lords Mance and Neuberger, in more detailed judgments, also discussed various factors. Lord Mance noted that Aston Cantlow decided that the purpose of the regime was to ensure that the 1998 Act covered bodies for which there would be state responsibility in the ECtHR. He then turned to situations where there might be state fault in failing to prevent a breach of rights by a

95 96 97

ibid at [29]. ibid at [32]. ibid at [28].

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private person or when there had been delegation of state power to a private person: 92.

… First, the state may in some circumstances be responsible for failure to take positive steps to regulate or control the activities of private persons where there will otherwise be a direct and immediate adverse impact on a person’s Convention protected interests. Second, the state may in some circumstances remain responsible for the conduct of private law institutions to which it has delegated state powers. …98

He then discussed relevant ECtHR case law, before concluding that the first point did not assist because it required regulation by a governmental body (whereas Southern Cross was not a regulator). The second principle was more important, and he set out the factors relevant to whether this applied: (i)

(ii) (iii)

(iv) (v)

Having powers conferred by Parliament: this was not sufficient, because they might be granted for private, religious or commercial purposes; equally, it was not necessary to have powers conferred by Parliament, since regulatory functions that were carried out in the public interest could be sufficient to make a regulatory body also a public body.99 Nevertheless, the existence and source of any special power or duty was relevant.100 Powers and duties that exist for the general public interest (ie the purpose of the power): such were included in the list of typical state or government features.101 Democratic accountability: this was relevant, as it might prevent private interests being at the fore.102 Public funding: this might be relevant,103 but it would depend, because: 155. … The injection of capital or subsidy into an organisation in return for undertaking a non-commercial role or activity of general public interest may be one thing; payment for services under a contractual arrangement with a company aiming to profit commercially thereby is potentially quite another. In every case, the ultimate focus must be upon the nature of the functions being undertaken.

98 He then discussed examples of the relevant case law. One example is R (Beer (trading as Hammer Trout Farm)) v Hampshire Farmers’ Markets Ltd [2004] 1 WLR 233, in which a nonprofit-making company set up by a council to run farmers’ markets on a contractual basis on publicly owned land was held to be performing a public function and to be subject to judicial review, part of the reasoning being the regulation of a common law right of public access. 99 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [100]–[102]. 100 ibid at [102]. He noted that the source was more important than the nature of the task—so traffic control on private land would be different from traffic control as a contractor working for a local authority as part of the latter’s enforcement of a statutory power. 101 ibid at [103]. 102 ibid at [103] and [105]. 103 ibid at [103]. At [117]–[119] he discussed how it might be unsatisfactory to regard those residents having public funding as being in a different position as a matter of the contractual situation, and indeed would breach the importance of equal treatment of the publicly funded and privately paying residents.

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(vi)

Having a statutory Constitution; this was relevant, as it might prevent private interests governing.104 (vii) ‘Standing in the shoes’ of a public body: might be relevant, since, depending on the statutory context, it could involve a delegation of the public power; but, as in the instant case, it might be the making of arrangements rather than a delegation.105 (viii) Being subject to regulation to ensure the public interest: this was not a pointer (and if anything was a pointer to the contrary) because it suggested the existence of a private and commercial motivation.106 87

88

Lord Mance concluded that, whilst it was a governmental function to arrange for the provision of care that could not otherwise be provided (the precondition to the community care duty), the actual provision of the relevant services and facilities under a commercial contract could remain entirely private rather than being ‘governmental’ and did so on the facts.107 Lord Neuberger expressly adopted Lord Mance’s reasoning (and on some points he supported Lord Scott’s views), but also added his own explanation. He started with the proposition that an entirely privately funded contractual arrangement for care would not involve the performance of a public function by the provider of care, and discussed the factors that were raised to suggest a different outcome: (i)

(ii)

(iii)

(iv)

104

The detailed regulation and supervision of the sector: whilst the regulation was a function of a public nature, that did not have to be so for the provision of the services involved (given that financial services and restaurants were all regulated in the public interest).108 The public interest in caring for the old and infirm, and provision of care by charities: of minor positive weight, but various services which were provided by charities or were in the public interest—eg food and housing—were often provided by entirely commercial operators.109 Vulnerable people were involved, and there were positive duties to ensure provision under Article 8 ECHR: this was similar to the quasicharitable nature and regulation points.110 The community care duty of Birmingham, and the existence of the ‘umbrella arrangement’ between Birmingham and Southern Cross: this provided a public connection rather than turning the service provision necessarily into a public function.111

ibid at [103] and [105]. ibid at [4]. ibid at [116]. 107 ibid at [111]–[115]. 108 ibid at [134]. 109 ibid at [135]. 110 ibid at [136]. 111 ibid at [140]–[141] and [143]. His Lordship was not prepared to accept the concession by Birmingham that the function of arranging care was a public function, though this seemed to be on the legalistic basis that the action of a core public authority such as a city council does not have to be classified according to the function test that is applicable only when hybrid authorities are in play. 105 106

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Payment by Birmingham: similarly, a public connection, albeit that it was unlikely that there would be a hybrid authority that was not paid by a core authority for its public work;112 he added that it would be more likely to be a public function if the payment was in the form of a subsidy or block grant rather than for funding specific provision for particular individuals.113 The fact Birmingham could have provided the care and accommodation in question: of limited support for the contention that the service provision was of a public nature—though the fact that a core public body could do it was probably a necessary, but not a sufficient condition.114 He added that whilst a person should not lose rights because a core public authority ‘contracted out’ but still paid for a service, the duty on the facts was to make arrangements rather than to make provision, the arrangement involved payment for specific services, the rights still existed as against the core public body (which could always incorporate them into the contract with the private provider), there were no statutory powers given to the care home, it would be arbitrary to put private payers for services in a lesser position, it would not be right to discourage contracting out (which was public policy) by including obligations to respect rights, and it would mean that anything that was contracted out by a core authority would be covered.115

He noted that these factors116 offered some support for the contention that Southern Cross was within section 6(3)(b), but not sufficient to get across the line unless some wider or policy-based consideration was in play.117 The first was that decisions on amenability to judicial review were of ‘real assistance’ in light of the similarity of the issue of amenability to judicial review and to the coverage of the 1998 Act; he noted that the cases he had in mind had been analysed by Lord Mance and that he agreed with that analysis.118 The second was the purpose behind the statute of providing claimants with a remedy such that they did not need to go to Strasbourg: but he emphasised the negative aspect of this, namely that there was no intention to provide an outcome that

112 ibid at [142]. His Lordship was not prepared to accept the concession by Birmingham that the function of arranging care was a public function, though this seemed to be on the legalistic basis that the action of a core public authority such as a city council does not have to be classified according to the function test that is applicable only when hybrid authorities are in play. 113 ibid at [148] and [165]. 114 ibid at [144]. 115 ibid at [146]–[153]. 116 Summarised ibid at [154] as ‘(a) the existence and detailed nature of statutory regulation and control over care homes; (b) the provision of care and accommodation for the elderly and infirm is a beneficial public service; (c) the elderly and infirm are particularly vulnerable members of society; (d) the care and accommodation was provided pursuant to the local authority’s statutory duty to arrange its provision; (e) the cost of the care and accommodation is funded by the local authority pursuant to its statutory duty; (f) the local authority has power to run its own care homes to provide care and accommodation for the elderly and infirm; and (g) the contention that s6(3)(b) should apply to a contracting-out case’. 117 ibid at [155]. 118 ibid at [156]; Lord Mance’s contribution is at [100]–[105].

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would not have been possible in the ECtHR,119 which in turn meant that material as to who could bring a complaint in the transnational jurisdiction was specifically relevant and contained a focus on what was a governmental function for which there would be state responsibility.120 These wider features helped to establish, said Lord Neuberger, that Southern Cross was not a hybrid public authority in providing care and accommodation to YL: 160.

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… (a) the activities of Southern Cross in providing care and accommodation for Mrs YL would not be susceptible to judicial review; (b) Mrs YL would not, I think, be treated by the Strasbourg court as having Convention rights against Southern Cross, and she retains her Convention rights against Birmingham; (c) Southern Cross’s functions with regard to the provision of care and accommodation would not be regarded as ‘governmental’ in nature, at least in the UK; (d) in relation to its business, a care home proprietor such as Southern Cross has no special statutory powers in relation to those it provides with care and accommodation, or otherwise; (e) neither the care home nor any aspect of its operation, as opposed to the cost of the care and accommodation provided to Mrs YL and others in her situation, is funded by Birmingham; and (f) the rights and liabilities between Southern Cross and Mrs YL arise under a private law contract.

The conclusion that the provision of care and accommodation was not ‘governmental’ rested on it being a matter arising in private law.121 This was for reasons similar to those noted by Lord Scott: (i) the mere fact that local authorities could also provide care and accommodation was not sufficient (just as the power of a local authority to run staff restaurants did not mean that catering became a governmental function);122 (ii) arranging such care and accommodation in a private facility did not turn the operator of the facility into a public authority, even if the payment came from a core public body (just as private schools and hospitals were not public bodies because the state also accepted the need to be involved in education and healthcare and might pay for it), certainly when the arrangement was in the form of the payment for services for an individual rather than a service usable more generally;123 (iii) there were no statutory powers over residents (which would be a ‘powerful reason’ pointing the other way, though not necessarily determinative, in light of Aston Cantlow).124 (iv) He dealt finally with a suggestion that it would be anomalous to have differential protection according to whether the resident was in a privately run facility rather than a public one by indicating that it

119

ibid at [157], citing various authorities to that effect. ibid at [158]–[159], citing the majority in Aston Cantlow. 121 Illustrated by the choice of the family as to which care home was to be made use of under the relevant contract: ibid at [168]. 122 ibid at [162]. 123 ibid at [163]–[165]. He gave further examples: private landlords who housed those whose rents were paid for by their local authority and private fund managers who managed a public sector pension fund did not become public authorities. 124 ibid at [166]–[167]. This meant that activities such as running prisons were different. 120

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would be more of an anomaly that publicly funded residents in a private facility had rights that privately paying residents did not.125 So the conclusion of the majority was that there was no public function involved. Between Aston Cantlow and YL, it seems evident that the focus of the two majorities was on the nature of the body being challenged. If it was a commercial and/or private body in its operations, that created a significant inertia that was difficult to displace by looking at the nature of the function carried out. The dissenting judges in YL, Lord Bingham and Lady Hale, also had an approach based on weighing factors: but their focus was on the nature of the functions performed by the body. Lord Bingham126 noted that, as section 6 was a domestic provision, its ‘meaning is not to be found in the Convention’; but the important phrase ‘public function’ was to be given ‘a generously wide scope’ because its purpose was to ensure ‘effective domestic protection’ to Convention rights.127 As to possible factors, Lord Bingham considered that some were likely to be relevant and others were likely not to be relevant: but he cautioned that there was no general test applicable to all cases, and that the weight to be attached to the various factors would vary in different cases (and no single factor was likely to be determinative on its own).128 His expressly non-comprehensive129 list of relevant factors was: (i) (ii)

(iii) (iv)

(v)

the nature of the function, ie whether it was public or private;130 the extent of state responsibility, which could be long-standing and clearly governmental (such as defence and prisons) or ‘more recent and more remote’ (as in sport or the arts);131 the level of public interest in the function;132 the level of regulation by way of powers and duties, which might illuminate state concern and responsibility, the absence of which might support the view that the activity was private;133 the level of regulation by way of supervision and inspection to ensure that the function is performed to an acceptable standard (perhaps with criminal sanctions if there is a failure to follow promulgated standards),

125 ibid at [169]. It was, he said, a consequence of the legislative scheme that ‘any service provided by a core public authority is caught, whereas it is only if the service falls within s6(3)(b) that it is caught where the service is provided by anyone else’. 126 Whose views were accepted and amplified by Lady Hale: ibid at [75]. 127 ibid at [4], citing Lord Nicholls in Aston Cantlow at [11]. Lady Hale also accepted this, noting at [61] that the ‘domestic concept’ had ‘no parallel in the Convention jurisprudence’. 128 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [5], citing Lord Nicholls in Aston Cantlow at [12]. 129 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [13]. 130 ibid at [6]. 131 ibid at [7]. 132 ibid at [7]. 133 ibid at [8].

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which shows state recognition of the importance of the function and the harm misfeasance might involve;134 (vi) the extent of state willingness to pay (even if as a last resort), which reflects an assumption of responsibility;135 (vii) the level of risk that rights would be breached in the case of misfeasance.136 94

Turning to those likely to be irrelevant (or largely so), he noted: (i) amenability to judicial review was unlikely to be relevant as hybrid public authorities were likely to include bodies not subject to judicial review;137 (ii) the potential liability of another body for a breach of the Convention (since both might be liable);138 (iii) whether the act is likely to be criminal or a tort (since the worst examples might be both).139

95

Lord Bingham’s conclusion was that the statute was clearly intended to cover bodies such as Southern Cross in their relationship with those receiving care. The function was the provision of care for those needing it which was not otherwise available; this was pursuant to a statutory duty to arrange provision, which meant that services could be provided by the public sector, voluntary sector or private sector. The process was heavily regulated (including with criminal sanctions) but reflected the state function of social welfare provision as a last resort;140 Lady Hale noted the place of the National Assistance Act 1948 in the creation of the welfare state, with its purpose of providing a safety net but not interfering with those who wished to arrange and could afford their own provision.141 As for the duty of arrangement and contractual provisions in play, Lord Bingham considered them irrelevant because the duty mandated by Parliament was the provision of residential care whereas ‘the means of doing so is treated as, in itself, unimportant’.142 It was also irrelevant that some people paid the full costs, since the state ensured that no one would be left unaccommodated and uncared for, using public funds if necessary; indeed, the obligation to pay supported the public nature of the function.143 His Lordship did not mention in this context those who made entirely private arrangements: but that was because the public function involved was being the last resort arranger. And those who needed that intervention would be very vulnerable, such that the protections of the ECHR—the rights to life, to be free from inhumane

96

134 135 136 137 138 139 140 141 142 143

ibid ibid ibid ibid ibid ibid ibid ibid ibid ibid

at at at at at at at at at at

[9]. [10]. [11]. [12]. [11]. [11]. [14]–[17]. [49]. [16]. [18].

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treatment, liberty, autonomy and family relationships—were not to be removed: the context of parliamentary awareness of this vulnerability and also of the contracting out of services previously provided by the state also made it most likely that it was intended to cover those who provided such services.144 This latter point was supported by parliamentary materials that Lady Hale was willing to consider, both the background papers and parliamentary debates, which included express statements that companies responsible for previously state-provided functions, such as utilities, would be covered.145 She also noted (as had Lord Mance) that the state could be responsible for the actions of private individuals, such as if there had been a delegation of a function or participation in a breach by a private body (as in the Storck case, noted above); and also that there might be positive obligations to protect people from the actions of third parties, which arose under those Articles most likely to be invoked by vulnerable people in care homes, including Articles 3, 5 and 8.146 She added that: ‘60. … The most effective way for the UK to fulfil its positive obligation to protect individuals against violations of their rights is to give them a remedy against the violator’.147 Lady Hale portrayed the contrast as being between something ‘“public” in the sense of being done for or by or on behalf of the people as a whole’ and something ‘“private” in the sense of being done for one’s own purposes’;148 she accepted that there could be no ‘litmus test’,149 but suggested that certain points supported ‘inexorably’150 a conclusion that the company was performing a public function, and that Parliament intended companies like it to be covered: (i)

(ii)

144

Regulatory or coercive state powers, if delegated, would be functions of a public nature (and so would include prisons and private psychiatric hospitals which admitted compulsory patients).151 She noted that there was the risk of unregulated detention in care settings, which was such as would invoke state responsibility in the ECtHR.152 A state acceptance of responsibility to undertake a task in the public interest, if necessary at public expense, provided the ‘underlying rationale’ for the application of section 6(3)(b);153 of the various elements of this test: (a) that responsibility to ensure service provision had been accepted through the National Assistance Act 1948, which meant that it

ibid at [19]–[20]. ibid at [54]. By contrast, Lord Mance, who suggested that Aston Cantlow meant that it was impermissible to refer to parliamentary material because the statutory purpose was obvious: ibid at [89]. 146 ibid at [56]–[58]. 147 She also noted research that suggested that the Human Rights Act 1998 was having a positive effect in this regard: ibid at [59]. 148 ibid at [62]. 149 ibid at [65]. 150 ibid at [73]. 151 ibid at [63]. 152 ibid at [69]–[70]. 153 ibid at [65]. 145

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was ‘artificial and legalistic’ to draw a distinction between meeting needs on the one hand and assessing and arranging them on the other;154 (b) there was a clear public interest in providing the relevant care— including obviously public health care—for those who could not look after themselves;155 (c) and public funding was an important factor, showing an acceptance of responsibility.156 (iii) There was the link between the provision of care and ‘the core values underlying the Convention rights’—which she does not explain, but is presumably a reference to the need for dignity to be upheld—and the ‘undoubted risk that rights will be violated unless adequate steps are taken to protect them’.157 99

Lady Hale also dealt with the fact that people could also make their own arrangements, just as they could for healthcare: that could not mean that the same function being carried out under statutory powers at public expense was not a public function. Nor could the recipient’s contribution to the costs (as in the instance of NHS dentistry in the UK as well as care provision) have that effect.158 In summary: 72.

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… I accept that not every function which is performed by a ‘core’ public authority is necessarily a ‘function of a public nature’; but the fact that a function is or has been performed by a core public authority for the benefit of the public must, as Lord Nicholls pointed out in Aston Cantlow [2004] 1 AC 546, para 12, be a relevant consideration.

It should also be noted that there is an important statutory postscript to YL. Under section 73 of the Care Act 2014, the UK Parliament has indicated that the provision of personal care at the person’s home or in a residential setting is a public function for the purposes of section 6(3)(b) of the Human Rights Act 1998 if there is public funding. A second point identified by Lord Scott in YL was the nature of the act being challenged. He concluded that the notice of termination, which had given rise to the litigation, was clearly of a private nature, in much the same way as the notice of liability in Aston Cantlow had been private, being the enforcement of a contractual provision.159 A case where the nature of the act was central was R (Weaver) v London and Quadrant Housing Trust:160 here, a registered social landlord (ie one providing housing at below market 154 155 156 157 158 159 160

363.

ibid at [66]. ibid at [67]. ibid at [68]. ibid at [71]. ibid at [72]. ibid at [34]. R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ587, [2010] 1 WLR

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rents) accepted that it was a hybrid public authority, in particular because its operations received a subsidy. The important question arising was whether the act of seeking possession on the basis of rent arrears was a private act and so excluded from the Human Rights Act 1998 by reason of section 6(5). Not surprisingly, there was a split court, two judges of the Court of Appeal finding that the act was not private but with one dissenter. The majority determined that the action in question was adequately connected to the public function of providing social housing that it was caught by the Human Rights Act (and so had to take into account the rights of the tenant under Article 8 of the ECHR). It was noted that the fact that a private landlord could do the same act did not make it a private act when carried out by a public authority, certainly in relation to a tenant who was paying below market rent, as that would undermine the protection of the tenant. iii. Discussion A number of questions arise. In light of the close decisions in the leading UK cases, it is fairly obvious that there is room for disagreement about the statutory language in use in the UK (and the similar language in New Zealand). This naturally leads to a discussion of which approach is to be favoured. There is also a broader question of whether it is better for the statutes to use just general language or to be more specific, as in the Australian statutes, where the statutory identification of relevant factors and indication that some bodies are covered should make the task of the courts easier (even if there will be some grey areas).

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a. Identifying a Public Authority by Looking at the ‘Official Capacity’ Test On the former point, it may be useful to consider whether the judges in the majority in the UK decisions asked themselves the correct question. In short, there has been a concentration on the nature of the body, which flows from the judges identifying that the purpose of the statutory provisions is to replicate the remedy process in front of the ECtHR: this leads to the question of whether the body is governmental or not, in which the focus is on the nature of the body. However, if the focus is put onto the substantive right to have an effective remedy even if the alleged breach of rights is by someone acting in an official capacity, this places the concentration on whether the activity being carried out has some sort of state backing. This leads to a concentration on the nature of the activity, which was the approach of the minority in YL and also of Lord Scott in Aston Cantlow, his focus being on the nature of the building in question and its public use, and the functions of the parochial church council in supporting this. There is limited reference to Article 13 of the ECHR in the UK cases. Indeed, it is to be noted that it is not part of the Human Rights Act 1998 in the sense that it is not scheduled to the Act. This is in contrast to the position in

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Ireland, though it is to be noted that the inclusion of that Article has not been viewed as significant by the judges there: see the discussion in Chapter 10. Indeed, the UK government suggested in the course of debates that there was no need to incorporate Article 13 because the Human Rights Act provided the effective remedy.161 This was also the starting point for some judicial discussions: Lord Hope in Aston Cantlow noted that the purpose of sections 6–9 of the Human Rights Act 1998 ‘is to provide a remedial structure in domestic law for the rights guaranteed by the Convention. … The source of this obligation is Article 13’.162 As such, he accepted that this was part of the ‘background’ to the definition of public authority. Lady Hale in YL also noted that the Human Rights Act 1998 was designed to provide an effective domestic remedy, as required by Article 13.163 But neither referred to the ‘official capacity’ language of Article 13. The core connotation of acting in an official capacity is being directly an officer of a governmental agency. But there is a wider connotation of operating pursuant to governmental or state sanction. As such, the Committee Against Torture has referred to the state responsibility for those who act under colour of law: see the discussion in part I of this chapter. Applying this to the Aston Cantlow situation, it can be seen that the parochial church council was involved in enforcing a state-sanctioned substantive right (developed and upheld by the common law and so the judicial branch of the state)164 and recognised and regulated as to process by the legislature. The fact of regulation is not enough by itself since essentially private interests such as those protected by restrictive covenants might well be regulated, for example by requirements as to land registration; indeed the recognition and enforcement of private contracts through the courts cannot make the underlying rights public. However, the regulation in this case reflected a substantive right arising not from a private negotiation between landowners but from an imposition by the law.165 The purpose behind the law creating the right was no doubt to protect what was at the time a core part of public life, because ecclesiastical law and the moral force of the Church of England regulated much of life. That supports the view of Lord Scott that the particular function of the parochial church council in securing the fabric of the church was carried out in an official capacity, or under colour of law, and

161 See J Cooper and A Marshall-Williams, Legislating for Human Rights (Oxford, 2000) pp 231–47. 162 [2003] UKHL 37, [2004] 1 AC 546 [44]. 163 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [54]. 164 Its abolition had been recommended by the Law Commission in 1985 but no action had been taken by the state to do that: see Lord Nicholls at [2], in which he characterised the liability as ‘anachronistic, even capricious’. 165 In Aston Cantlow, Lord Hope’s characterisation of the action as being the enforcement of a debt (see n 77 above) arguably does not determine the situation: the point is that the debt arises from a public source rather than a private loan. Similarly, in relation to Lord Hobhouse’s indication that the statutory creation of the right was in terms that it was of a private nature, that is not conclusive if the underlying scheme was one of support for the church as an incident of the governance of society.

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was public in nature: as a hybrid body, it might also have other functions, such as administering a religious organisation, that could well be private in nature. This view seems to be reinforced by part of the reasoning of Lord Nicholls. He concluded that even if the action of enforcing the call for funds had been public in nature, the parochial church council could not have been prevented from acting in pursuit of a right that was recognised by a primary statute, namely the Chancel Repairs Act 1932, and so protected by section 6 of the 1998 Act (there being no obligation to neutralise its effect):166 having the protection of a statute—both in the form of the 1932 Act, which recognised the common law right in play, and its protection by the 1998 Act—must surely provide the function in question with a public character because it allows the body in question to press ahead to enforce its right with the official sanction of statutory backing. The conclusion of the Court of Appeal167 and of Lord Scott seems close to this: the view of the former was that there was a public function (and indeed the parochial church council was a core public authority because): 35.

167

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… It is an authority in the sense that it possesses powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force. It is public in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church. …

If the question is rephrased as whether the actions of the council were those of a body acting in an official capacity, that reasoning might more obviously lead to the conclusion in the terms of the statute that it was a hybrid public authority. Certainly, that seems a better fit than the approach adopted by the majority in the House of Lords, which was to concentrate on whether the body was governmental for the purposes of Article 34 of the ECHR, which was done in the context of accepting that the language used in section 6 of the 1998 Act was not the language of Article 34 but referred to the carrying out of functions of a public nature. This seems obviously wider than being a body that is an actual part of government, which had led to a narrower application of the Canadian Charter. Similarly, in YL, the official capacity of Southern Cross arises from the fact that it was the partner of the local authority in meeting the governmental policy of ensuring that residential care was provided; and it did so pursuant to another aspect of governmental policy, namely that private sector bodies be involved in this. As such, it seems likely that it would have been covered by the Canadian Charter concept of governmental, given the link with implementation of a legislative policy. That would still leave the possibility of those

166

106

[2003] UKHL 37, [2004] 1 AC 546 at [19]. See also Lord Hobhouse at [93]. [2002] Ch 51.

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who were present in the home by reason of wholly private arrangements being outside the coverage of the statute. Part of the reasoning of the majority in YL, expressed clearly by Lord Neuberger, was that it would be arbitrary to put those residents in a lesser position. This should be questioned: first, it is hardly sensible to say that we avoid arbitrariness by taking rights away so that no one has them; secondly those who are accommodated pursuant to private arrangements are always able to specify the basis on which they will contract and so secure the same rights (which they could do in any event by agreeing to go through the public arrangements, which is open to them). Making use of this wider concept of acting in an official capacity supports a number of aims of the Human Rights Act 1998 and its equivalents in other jurisdictions. It is better able than the concentration on whether a body is governmental or not for the purposes of Article 34 of the ECHR to ensure that there is a wider coverage by the statute, which was noted by Lord Nicholls in Aston Cantlow as being a proper approach to the definition of ‘public function’ in order to support the statutory purpose of promoting human rights.168 It also helps to ensure that there is compliance with the fundamental right to an effective remedy, so as to reduce the number of situations in which a person might have to go to a transnational body to seek confirmation of the breach of a right: the concentration by the UK judges on identifying who can make a complaint to the ECtHR169 places at the centre the procedural right to make use of the ECtHR rather than the substantive right to a domestic remedy, when the context was the discussion of the language designed to give a domestic remedy. An analysis of the function (ie the action) rather than the actor would also deal with the concern of Lord Nicholls that hybrid bodies should be able to make use of the ECtHR if they were a victim of a breach of their own rights. His concern here was perhaps overstated in that he noted that hybrid public authorities might be victims in relation to their non-public functions;170 but this is made clear if the official capacity test is used to identify when someone is acting as a hybrid public authority, since that body is by definition not governmental and so is outside Article 34 of the ECHR unless in relation to the particular function it is acting with state sanction rather than in a private capacity. b. More Prescriptive Statutory Language

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It is perhaps obvious that use should be made of general language because inevitably new bodies will be established (and it might be cumbersome constantly

168 [2003] UKHL 37, [2004] 1 AC 546 at [11]. See also Lord Bingham in YL at [4], discussed above. 169 See Lord Nicholls in Aston Cantlow at [2003] UKHL 37, [2004] 1 AC 546 at [15], noted above. 170 ibid at [11]; this was in contrast to their core public authority cousins, who would always be governmental.

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to have to amend the bill of rights statute if the model adopted was only to list bodies covered); and there might be some grey areas in which it was better for there to be a court-based argument to analyse the features that support one conclusion or the other. However, does that mean that only general language should be used? Lord Bingham in YL suggested that leaving it entirely to the courts was a ‘wise’ approach by the legislative drafter.171 The Australian drafters clearly took a different approach; and the UK Parliament has had to reverse the decision in YL because the intention of the 1998 Act to capture bodies such as Southern Cross, which Lady Hale had quoted in her dissenting reasoning, was frustrated. The existence of dissenting positions illustrates the level of ambiguity in the language, which allowed reference to parliamentary materials within the relatively restricted approach to that in the UK.172 When assessing the propriety of more prescriptive language, it is worth noting that this is done in other statutory situations. In the wider UK legislation dealing with non-discrimination standards, the Equality Act 2010, this has a cross-reference to the Human Rights Act 1998 in relation to the exercise of a public function. However, in relation to a general duty by the ‘public sector’ to have regard to reducing socio-economic disadvantage, found in section 1 of the Act, there is a list of the bodies bound by the duty (including various central and local government bodies, health and police authorities). Similarly, in the Freedom of Information Act 2000 (UK), the basic right is access to information held by ‘public authorities’.173 Section 3 plus Schedule 1 to the Act provide the definition of a public authority: there is a lengthy list in the Schedule, which covers central and local government, health service bodies (including those providing various services under contract, with the rider added ‘in relation to those services’), educational bodies that are within the public sector, the police, and—listed in Part VI of the Schedule—a list of ‘other public bodies’, which includes such bodies as the Royal Botanical Gardens, the Tate Gallery, the Sentencing Advisory Panel, the UK Sports Council and the BBC (except in relation to its journalism). The non-public functions of bodies listed in relation to some parts of their functions that are private are specifically exempted by section 7. Powers are given to modify the Schedule under section 4, but there are preconditions: the body added must be created by prerogative, primary or secondary legislation or a government Minister or department (or Welsh Assembly officers) and the members of the body or the office holder are appointed by those exercising central governmental power. There is also a power given to the relevant government Minister to designate a person as a public authority

171 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [5], citing Lord Nicholls in Aston Cantlow at [12]. 172 See the brief discussion of this in Chapter 8; the Australasian jurisdictions are more ready to ascertain the purpose of Parliament by reading materials before it, whereas the Irish courts do not. 173 Publicly owned companies are also covered; they are defined in section 6.

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who cannot meet these criteria for the Schedule. This is contained in section 5 of the statute and depends on whether the person: (1)

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… (a) appears to the Secretary of State to exercise functions of a public nature, or (b) is providing under a contract made with a public authority any service whose provision is a function of that authority.

There are also situations in which a statute sets out a process that clearly has a purpose of covering some parts of what is encompassed by the more general concept of public function, and does so by listing the relevant bodies. For example, the Parliamentary Commissioner Act 1967 allows investigation of matters of alleged maladministration by a ‘government department or other authority to which this Act applies’ (section 5(1)), and provides in Schedule 2 a lengthy list of the bodies over which there is jurisdiction (which prevents any argument about what might be considered a government department)). However, the Race Relations Act 1976 has an approach similar to that in the Human Rights Act 1998.174 Section 19B(1) prohibits discrimination by ‘a public authority’, defined in section 19B(2) as follows: (2) In this section ‘public authority’— (a) includes any person certain of whose functions are functions of a public nature; but (b) does not include any person mentioned in subsection (3). (3) The persons mentioned in this subsection are— (a) either House of Parliament; (b) a person exercising functions in connection with proceedings in Parliament; (c) the Security Service; (d) the Secret Intelligence Service; (e) the Government Communications Headquarters; and (f) any unit or part of a unit of any of the naval, military or air forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions. (4) In relation to a particular act, a person is not a public authority by virtue only of subsection (2)(a) if the nature of the act is private.

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There are further exceptions for judicial and legislative acts in section 19C, and for certain immigration decisions in section 19D. Section 19F refers to decisions not to prosecute or to bring a prosecution to an end: these are also not covered by section 19B. The argument based on the various exceptions is, naturally, that they are good examples of what clearly are decisions of a sort that are covered by the concept of what is a public function. The New Zealand legislature has also been more prescriptive in some circumstances. For example, in the Ombudsmen Act 1975, which consolidates

174 It does, however, also contain various prohibitions on discrimination in relation to what would be considered private settings, such as employment or the provision of services.

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earlier legislation, the investigative powers apply to various public bodies listed in a schedule to the statute, and split into central governmental bodies, local governmental bodies (some of which are specific and some of which are more generic, such as regional councils and harbour boards), and a list of other bodies that exercise specific functions (again, some of which are more generic, such as district health boards that operate the public health service, and other particular bodies such as the national broadcasters and the operators of the national railway). Similarly, in the Official Information Act 1982, which allows members of the public to seek access to information held by official bodies, there is a clear indication of who is subject to the remit of the statute. It cross-refers to the Ombudsmen Act, some bodies that perform functions in the area of education and a specific list of scheduled organisations. The potential for these to be of assistance in helping to define what is a public authority in the bill of rights context is limited—see Lord Mance in YL, who noted that ‘The different contexts of these statutes mean that they offer very limited assistance in the construction of the Human Rights Act 1998’.175 But they do reveal that there are other models that were available, and that the approach of the Australian drafters has support from other UK and New Zealand public law settings. This different approach does raise a point of interest: namely can Parliament control what the law means? Viewed from a different angle, could bodies such as Southern Cross, if they objected to being classed as hybrid public authorities as a result of the statute, perhaps on the basis of the obligations imposed, seek to challenge that in the courts? The most likely finding would be that the legislature has the power to provide that rights should go further in the domestic setting than is strictly required by the international obligation. As is apparent from Chapter 5, the judiciary in the UK has largely adopted the proposition that it will not go further than the Strasbourg court has gone in interpreting rights, in part because that is a function limited to the legislature.

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c. Private Acts and Actors; Horizontal Effect There is a further argument that might have been developed, given the starting point of the need to provide liability in circumstances in which it would be found before the ECtHR. At the international level, the doctrine of horizontal effect would fairly clearly lead to state liability for failing to prevent a private body from exercising an arbitrary power to take the property of another when the reason that was permitted was that the law did not prevent it. That was precisely the situation found by the majority in Aston Cantlow.176 The narrower definition used of bodies for whose acts the state is answerable in 175

[2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [106]. That would mean that the substantive argument could then run, albeit that, as noted in n 62 above, a majority of the House felt that there was no breach of the substantive law. 176

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Strasbourg allows coverage in the domestic situation of the negative aspects of the various rights set out, namely the prohibitions of actions by state bodies that directly breach a right. But there is a wider basis for state liability in the form of a failure by state bodies to regulate others when there is a duty to protect a right or otherwise take positive action.177 This cannot be taken too far in the context of the domestic language that requires a public authority to abide by rights, since the international doctrine will often produce state liability for the failure to control wholly private people: if the failure to regulate is a failure to introduce legislation, that is clearly excluded by section 6(6) of the Human Rights Act 1998, and similar protections in other jurisdictions. But there may be other instances in which there is a failure to protect, including by judicial bodies: this is discussed further below. This doctrine of horizontal effect in the context of a positive obligation supplements the argument for covering those who act under the cloak of a state sanction that fails to offer protection to a right. If that would achieve the aims of the 1998 Act to secure rights protection of the sort that would be recognised in the ECtHR, it seems a possible interpretation of the coverage of those acting under a public function and so one that should be preferred by reason of section 6 of the 1998 Act. That would also have internal consistency with the express indication that everyone can obtain a remedy for the breach of their rights: it should include situations where the breach is of a positive obligation unless a statute prevents that. Baroness Hale in YL, it should be noted, appreciated this as part of her minority view. She set out the difference between negative and positive obligations and commented: ‘60. … The most effective way for the United Kingdom to fulfil its positive obligation to protect individuals against violations of their rights is to give them a remedy against the violator’. It is possible for more clear language to be used. For example, in South Africa, section 8 of the Constitution of 1996 provides that private persons are also covered: 8. Application 1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. 2. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

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Such language is helpful in the sense of clarifying the point that arises from the international case law that domestic law should provide protection in various situations from the actions of private actors that breach rights: as suggested 177 The obligation is to guarantee rights and ensure that there is an effective remedy for any breach, including when it occurs at the hands of a public official, makes clear that breaches of fundamental rights may occur at the hands of someone acting in a private capacity; state liability may follow if there has been inadequate state action to protect from the actions of a private actor. See the discussion at paras 19–21 above.

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above, a wider interpretation of the references in bills of rights statutes to the concept of exercising a public function. In other situations of breaches by private individuals, it may be that the claimant has to identify a failure by a public authority to control a private individual. The other side of this is that there may be private acts carried out by bodies that are public authorities or carry out public functions. Another common feature of the statutes is the non-coverage of private acts, but with significant differences between the statutes. The exclusion is express in the Victorian and UK statutes. However, in the UK statute, the exemption for a private act relates to a body which is only a public body in relation to some of its functions (see section 6(3)(b) and (5)); in the Victorian Charter, the private act exemption (in section 38(3)) applies to all public authorities, and the definition of this in section 4 includes various bodies that are not public authorities only on the basis of having some functions of a public nature but are, in the language developed in the UK courts, ‘core’ public authorities, such as the police or a government Minister. Lords Hobhouse and Rodger in Aston Cantlow drew a distinction between core and hybrid bodies on the basis that, since the latter were those with some public functions, the former must by inference be a body ‘all of whose functions are of a public nature’.178 What this means was explained by Lord Mance, of the majority in YL: he agreed with counsel’s submission based on academic writings that it was ‘a fallacy to regard all functions and activities of a core public authority as inherently public in nature’. But, he noted that ‘All such functions and activities are subject to the Convention, because the authority is a core public authority’. The result was that ‘It only becomes necessary to analyse their nature, if and when they are contracted out to a person who is not a core public authority. Some of them may then on analysis be private in nature’.179 Lord Neuberger expanded on this distinction between functions and acts, noting that there could be several acts in a particular function and some of those acts could be private in nature; so, he noted, if the provision of care was a public function, it might involve private acts such as contracting for food and electricity.180 He also tied this to the distinction between core and hybrid public authorities: 131.

Accordingly, a core public authority is bound by s6(1) in relation to every one of its acts whatever the nature of the act concerned; there is therefore no need to distinguish between private and public acts or functions of a core public authority. On the other hand, a hybrid public authority is only bound by s6(1)

178 [2003] UKHL 37, [2004] 1 AC 546 at [85] (Lord Hobhouse, from whom the quote is taken) and at [144]. 179 [2007] UKHL 27, [2008] 1 AC 95, [2007] MHLR 85 at [110]. The basic proposition set out by Lords Hope and Woodhouse in Aston Cantlow was accepted at [86]–[87]. 180 ibid at [130].

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This suggests that in the UK, some private acts might well be covered by the Human Rights Act on the basis that they are the acts of a body that cannot avoid being covered. However, in such a case, the question will still have to be asked as to whether a right is in play by reason of the manner of exercise of functions by the core public body: a wholly private act may be thought of as unlikely to implicate a right.181 In the Victorian Charter, this process is simpler in that it is the nature of the act that governs. The exclusion of private acts is a matter of implication in the other statutes. There is no clear language in the NZBORA that private acts are excluded. However, by the indication in section 3 that the statute applies ‘only’ to the bodies exercising public functions, the implication is that anyone operating in a private capacity is not covered: this most obviously covers the situation in section 3(b) that some bodies carry out public functions some of the time, but are otherwise not bound; this is because the other bodies—ie those which are essentially full time in such a function—are covered in any event and not only by virtue of having some functions of a public nature. Certainly, in the White Paper supporting the un-enacted supreme law version of the legislation— which in clause 2 guaranteed rights against acts done ‘(a) by the legislative, executive, or judicial branches of the government of New Zealand; or (b) in the performance of any public function, power or duty conferred or imposed on any person or body by or pursuant to law’—the commentary to this clause noted the importance of a distinction between public acts (which would be controlled) and private acts (which would not), and suggested that this clause was a ‘first step’ in drawing that distinction.182 The ACT statute also implicitly excludes private acts when carried out by a hybrid public body: again, section 40(1) of the Human Rights Act 2004 refers to certain bodies as being public bodies by virtue of what they are; but other bodies are defined as public bodies in relation to their functions of a public nature ‘when … exercising those functions’ and so not when exercising other functions. Similarly, in the Irish statute, the duty to abide by rights is in relation to the functions carried out by organs of the state: the definition of functions refers to powers and duties, which, when combined with the need for the body to be an organ of the state, suggests that the statute only applies when there is the exercise of a public function rather than some act that is private in nature.

181 For example, in ibid at [30], Lord Scott commented that the fact a local authority could provide a care home proved too much, because it would mean that contractors or local authorities acting as lifeguards at a municipal swimming pool might be public authorities (and similarly nursing staff at a private care home—see also Lord Neuberger at [142]). But what is wrong with that? If the lifeguard fails to protect life, or discriminates against swimmers based on gender or ethnicity in a way that implicates a right, an action under the Human Rights Act may be justified. 182 Pages 69–71; available at www.justice.govt.nz/policy/constitutional-law-and-human-rights/ human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act.

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F. Application to the Judiciary i. Introduction An issue on which the bills of rights statutes differ is the applicability to the judiciary of the duty not to breach rights. As a matter of international law, it is clear that judicial default may lead to state liability: for example, in the case of Storck v Germany, mentioned above, part of the reason the detention of Ms Storck in a private clinic led to state liability for loss of liberty was that courts considering a claim for compensation after the event had not approached their task in a way that respected the right to liberty.183 The statutory definition of a public body set out above contains the following in terms of whether the judiciary is covered: (i)

(ii)

(iii)

(iv)

(v)

NZBORA 1990—clearly yes, because section 3 states that it applies to ‘acts done (a) By the … judicial branches of the government of New Zealand …’. UK—Human Rights Act 1998—again, clearly yes because the definition of ‘public authority’ in section 6(3) ‘includes (a) a court or tribunal’; similarly, there is express provision in section 9 for actions to be brought in relation to judicial acts (including a claim for damages for breach of the right to liberty).184 Ireland—European Convention on Human Rights Act 2003—the duty to abide by the rights set out in section 3 is owed by an ‘organ of the state’, which is defined in section 1(1) to include ‘a tribunal or any other body … which is established by law or through which any of the … judicial powers of the State are exercised’ but with an exclusion that states ‘other than … a court’. ACT—Human Rights Act 2004—section 40(2) expressly indicates that a court is excluded from the definition of a public authority unless it is acting in an administrative capacity. Victoria—Charter of Human Rights and Responsibilities Act 2006— section 4(1) also contains the indication that a court is excluded from the definition of a public authority except in an administrative capacity; the statute gives as examples of administrative functions ‘Committal proceedings and the issuing of warrants … listing cases or adopting practices and procedures’.

The statutory language has express inclusion and express exclusion of courts within the definition of a public body. (The trend of moving judicial functions towards tribunals is different: such bodies are covered expressly (eg in Ireland) or come under the definition of a public function.) As to the differential coverage of courts, it is worth reviewing the policy documents attached to the legislation. These suggest that there is not intended to be a different outcome in Ireland: but the situation in Australia does differ deliberately. 183 184

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App no 61603/00, (2006) 43 EHRR 96, [2005] MHLR 211, paras 89, 92–99. See Chapter 9 for the procedural provisions relating to this.

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The Explanatory Memorandum to what became the European Convention on Human Rights Act185 noted: ‘All courts have been excluded from the definition of organ of the State on the basis that they are already under a duty to administer justice in accordance with the provisions of the law and the Constitution’. This duty arises from Article 34 of the Constitution of Ireland. In short, there is no intention to exclude the judiciary from obligations under the statute. Indeed, it is to be noted that the central obligation on the judiciary, the interpretive obligation in section 2 of the statute, discussed in Chapter 8, expressly applies to all courts and includes the situation where the court interprets or applies any ‘rule of law’. Since this is defined in section 1 so as to include the common law, the applicability of the statute to the judicial task of developing the common law can be suggested.186 In contrast, the UK and New Zealand statutes apply the interpretive obligation only to statutes: and so the fact that courts are public authorities is important, because their obligation is to give effect to rights unless a statute prevents that. This would mean that the development of the common law seems, at least at first sight, to be covered. It can, of course, be suggested that the common law is a constitutional component and so cannot be changed without express language such as that in Ireland (or South Africa). But the bills of rights statutes are clearly designed to change the framework and so are constitutional in nature, making them suitable to compel a change in the common law, which after all will only arise if there is a need for better protection for rights that the country has an obligation to protect and respect in any event as a matter of treaty obligation. The difference that applies in Australia is easily explicable. The explanatory memorandum to the Bill that became the Human Rights Amendment Act 2008, which amended the Human Rights Act 2004 in the ACT to add the definition of public authority, including the exclusion of courts, explained the reason for the clause: ‘Paragraph 40(2)(b) provides that courts, other than when they are performing administrative functions, are not public authorities. This avoids conflict with High Court jurisprudence suggesting that Australia has one unified common law’. In short, the common law there will not be affected, meaning that remedies that rely on the rights set out in the statute should depend on the statute: note,

185 Available at www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2001/2601/ default.htm. 186 Note that in South Africa, section 8 of the Constitution of 1996 makes clear that the common law should develop (and both to protect rights and to protect interests that have to be balanced in the process): it states that ‘3. When applying a provision of the Bill of Rights to a natural or juristic person …, a court—a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1) (section 36(1) is the general limitation clause, discussed in Chapter 5). Note also that section 39 provides that ‘2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.

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however, that existing remedies, including those developed at common law, may provide a remedy. Whilst it will not be possible in Australia to argue that the common law should develop in response to the statutory bill of rights, all other aspects of the judicial function are covered, including statutory interpretation and decisions as to processes (including, naturally, the components of a fair trial, one of the rights covered); and it may be that the common law will develop in relation to the underlying rights in any event, since all that is excluded is the argument that the common law is required to develop. In the other jurisdictions, not only have there been instances of judges taking actions because they feel bound to act by reason of the statute, but there have been significant instances of the common law developing rights-protecting outcomes. These have occurred both in situations where the statute does not apply, but also where it arguably does apply as well. Since the common law is not a frozen body of law, it is possible that these developments would have occurred in any event. However, since the legislative aim of the bills of rights statutes was that arguments about rights would become embedded in the legal framework, it is not difficult to at least posit an argument that the statutes have had a causative effect in both these situations. The starting point for this discussion is the role of the common law that existed as the statutes were introduced, as outlined in Chapter 3, which led legislators to plan for more to be done, as outlined in Chapter 4. There was the statutory interpretation presumption, stronger in some jurisdictions than others, but which could be bypassed by clear language (even if there was no intention to breach rights); there was the principle of legality, which had significant power if a statutory provision was silent about whether it could be used to breach rights; and there was the ability to control administrative decisions, which might be more invasive in terms of allowing judges to review features of the merits of a decision in some extreme situations where rights might be involved. The principle of legality was possibly the strongest component of this protection (and, indeed, there are arguments put forward that the core tool of the statutory bills of rights, the interpretive obligation, is a statutory adaptation of it: see Chapter 8). However, it should be noted that its confirmation as an overarching presumption in the UK coincided with the introduction of the Human Rights Act 1998.187 It is right to say that there were some arguments in favour of the less invasive common law approach. For example, in Brind,188 Lord Lowry dismissed arguments based on the use of proportionality to review administrative decisions, and commented that he was more than happy with the approach of the

187 There had been other instances of protecting rights by presuming that a statute could not have authorised a breach of the right: but the packaging of these into a principle of protecting rights comes from cases such as Simms that coincide with the Human Rights Act. The leading New Zealand authorities similarly post-date the NZBORA. Australian cases of legality can, however, claim to have developed before domestic statutory bills of rights. 188 R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 (HL).

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common law because it confined judges within their areas of competence and prevented floodgates opening:189 1.

2.

3.

4.

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The decision-makers, very often elected, are those to whom Parliament has entrusted the discretion and to interfere with that discretion beyond the limits as hitherto defined would itself be an abuse of the judges’ supervisory jurisdiction. The judges are not, generally speaking, equipped by training or experience, or furnished with the requisite knowledge and advice, to decide the answer to an administrative problem where the scales are evenly balanced, but they have a much better chance of reaching the right answer where the question is put in a Wednesbury form. The same applies if the judges’ decision is appealed. Stability and relative certainty would be jeopardised if the new doctrine held sway, because there is nearly always something to be said against any administrative decision and parties who felt aggrieved would be even more likely than at present to try their luck with a judicial review application both at first instance and on appeal. The increase in applications for judicial review of administrative action (inevitable if the threshold of unreasonableness is lowered) will lead to the expenditure of time and money by litigants, not to speak of the prolongation of uncertainty for all concerned with the decisions in question, and the taking up of court time which could otherwise be devoted to other matters. The losers in this respect will be members of the public, for whom the courts provide a service.

Of course, one can suggest that judges are not social scientists who can predict the various factors that combine to support a change in the use of judicial review; and that the choice of stability over the promotion of rights is a political perspective. In any event, the question now is the effect of the statutory provisions. ii. Judicial Action based on the Statutes

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There have been a number of instances where judges have determined that their ‘public body’ status—where that is the case—compels a particular result. For example, in Salvesen v Riddell,190 part of the Agricultural Holdings (Scotland) Act 2003 was found to breach the right to property of a landlord whose right to end a tenancy was compromised by the statute; it was found beyond the competence of the Scottish Parliament. There was then the question of the remedy, in relation to which there was a judicial discretion, including as to whether to make the court order prospective only. Lord Hope, for the UK Supreme Court, noted that the legislation had been in effect for some time and a failure to make the court order retrospective might breach the rights of other landlords in a similar position and so amount to the court breaching its obligation under section 6 of the Human Rights Act 1998 to act in accordance with rights.

189 190

ibid at 766H–767C. Salvesen v Riddell [2013] UKSC 22.

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This may also include the development of the common law. In Lange v Atkinson191 the New Zealand Court of Appeal extended the availability of the defence of qualified privilege in defamation actions involving public figures (which is a matter of both statute and common law in New Zealand). The judgment of four of the judges of the five-judge court was given by Blanchard J and contained a detailed analysis of comparative law, including that arising under the ECHR and the ICCPR. The ECHR case law was said to be ‘… of real assistance for at least two broad reasons. The first is the common elements in the New Zealand and European inheritance. The second is the similarity of the wording of the relevant texts—the New Zealand Bill of Rights Act 1990, s 14 (read with s 5 and para (b) of the title), art 19 of the ICCPR and art 10 of the convention’.192 The Court was aware of and discussed the NZBORA, but did not suggest that it controlled its decision to extend the common law. Similarly, in Campbell v MGN Ltd,193 the House of Lords determined that the scope of the tort of breach of confidence and the statutory action for breach of the Data Protection Act 1998 should be construed in light of the rights of the newspaper under Article 10 of the ECHR and of the claimant under Article 8.194 In recent cases, the UK Supreme Court has emphasised how it might be possible to achieve significant protection through the development of the common law, including in light of the Human Rights Act. For example, in R (Osborn) v Parole Board,195 Lord Reed commented that the common law and statutory protection of human rights continued rather than being superseded by the Human Rights Act 1998:196 ‘Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate’. There are also instances where the result has been that the common law has not developed, sometimes surprisingly. For example, in Aston Cantlow, one concern is whether there was too much of a concentration on the process 191 Lange v Atkinson [1998] 3 NZLR 424. This was upheld after a journey to the Privy Council and remittal to the Court of Appeal: [2000] 3 NZLR 385. 192 [1998] 3 NZLR 424 at 457. 193 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 467. 194 Note that in Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406, the House had declined to adopt a general common law right of action for breach of privacy, part of the reason being that there could be a development of a remedy based on the Human Rights Act (which had not been in force at the time of the incident complained of on the facts). The other part of the reasoning was that such a tort would require legislative action to determine its parameters; the New Zealand Court of Appeal was able to construct a limited invasion of privacy tort in Hosking v Runting, noted below: but that is in the context of there being no inclusion of privacy in the NZBORA. In Jain and another v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853, the House found that statutory procedures for cancelling the registration of a nursing home were highly defective, and declined to provide a common law duty of care as to their use to remedy the problem, though noting that the Human Rights Act 1998—which had not been in force at the time of the challenged decision—might provide a remedy. Note also the cases of Van Colle and Smith [2008] UKHL 50, [2009] 1 AC 225, in which the House of Lords declined to remove the common law principle of allowing the police an immunity for actions in negligence in failing to protect a potential victim, suggesting that any breach of the rights under the ECHR could be accommodated by an action under the Human Rights Act. 195 R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020. 196 ibid at [57].

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whereby the right of the parochial church council was regulated by statute rather than on the question of where the right came from. The latter, namely the common law, is clearly a state emanation, meaning that the church commissioners were exercising a public power: so the question arising is why the courts did not accept that, as public bodies themselves, they were required to move the common law on from its unsatisfactory state.197 A New Zealand example of this is the close decision of the Supreme Court in Chapman v AG,198 in which the majority decided that there could be no award of damages in relation to judicial decisions that breached the NZBORA because the judicial immunity to action—developed at common law—still governed. This is discussed in Chapter 10. iii. Judicial Action where the Statutes do not Apply

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There are also many instances where the statutory bills of rights do not apply. In such situations, the common law and other statutory provisions that protect rights have to be invoked. It should be noted that the bills of rights statutes do not purport to oust the fundamental rights that otherwise exist (and replace them with a code contained in the relevant statute). This is important for a number of reasons: in the first place, international human rights laws are designed to provide minima below which a state cannot fall, which means that a domestic law may grant additional content to a right, even though that might be discretionary from the point of view of international human rights law. Secondly, the content of a right, in the context of a margin of appreciation, may depend on what the practice is in a number of states: so practice which goes beyond the minima may move them forward. Thirdly, a right will only feature in a treaty if enough states are able to agree that it should (which is why, for example, the ECHR has many supplemental rights in optional protocols); as such, there may be rights, including important rights, that are not part of international human rights law, but which a state may be willing to provide. The language to make plain that this saving of rights that are supplemental is in the following terms: New Zealand—New Zealand Bill of Rights Act 1990 28. Other Rights and Freedoms not affected An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.

197 The Chancel Repairs Act 1932, which was in play, seems to recognise the existence of the common law right rather than codify its existence. A statutory recognition of the common law by providing a process to enforce the right does not seem adequate within section 6(2) of the Human Rights Act 1998 to constrain the development of the common law, though Lord Nicholls seems to have taken a different view, even though he thought the continuation of the right was problematic: see n 164 and para 106 above. 198 Chapman v AG [2011] NZSC 110, [2012] 1 NZLR 462.

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UK—Human Rights Act 1998 11. Safeguard for existing human rights. A person’s reliance on a Convention right does not restrict— (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or (b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9. ACT—Human Rights Act 2004 7. Rights apart from Act This Act is not exhaustive of the rights an individual may have under domestic or international law.199 Victoria—Charter of Human Rights and Responsibilities Act 2006 5. Human rights in this Charter in addition to other rights and freedoms A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

There may also be similar language in a constitutional setting, so as to indicate that the common law and other provisions may exist and the Constitution is not designed to be the sole place where rights are located (though it may require consistency with the Constitution in light of its supreme law status). For example,200 section 39(3) of the South Africa Constitution of 1996 notes:

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… 3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

It should be noted that the international conventions also make it clear that they are not designed to reduce rights that are otherwise guaranteed under domestic law. So Article 53 of the ECHR states: Article 53—Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.

199 The statute gives examples of other rights, namely ‘1 rights under the Discrimination Act 1991 or another Territory law, 2. rights under the ICCPR not listed in this Act, 3. rights under other international conventions’. 200 See also various provisions of the Canadian Charter of 1982: section 25 preserves the rights and freedoms of aboriginal people, and section 26 expressly indicates that ‘other rights or freedoms that exist in Canada’ are not to be denied. Section 29 also expressly preserves the rights or privileges of various types of school.

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This is mirrored in Article 5(2) of the ICCPR, in a clause which is given more prominence as one of the initial operative provisions: There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

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There is no express preservation of other rights (save for those set out in the Constitution) in the Irish legislation. However, it would be an unusual construction to suggest that other rights recognised in the law are removed by implication, and contrary to the principle of legality. An example from New Zealand of the development of the common law to protect rights arises from one of the limitations on the NZBORA, namely that there is no incorporation of the general right to privacy (in Article 17 of the ICCPR, the equivalent provision to Article 8 of the ECHR). However, the Court of Appeal in Hosking v Runting201 determined that it was proper to develop a tort of unreasonable invasion of privacy (albeit only by a bare majority). Part of the reasoning here relied on the right as protected in the ICCPR, and its limitations also rested on the right to freedom of expression (which is in both the ICCPR and the NZBORA).202 See also Takamore v Clark,203 which concerned the interplay between Maori customary law and the common law in relation to burial. The Court of Appeal noted that there was an argument that the common law should provide more protection for collective rights (which was the argument put forward based on customary law for wider family members, who were challenging the decision of the wife of the deceased) because they were recognised in both overarching international treaties204 and also the non-binding Declaration on the Rights of Indigenous People 2007, which New Zealand had endorsed in 2010.205 Glazebrook and Wild JJ favoured the use of case law under the ECHR and the ICCPR on the basis that the presumption of compatibility of statutes with international obligations should be extended to the common law: 241.

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… this Court has recognised a ‘presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations’. We therefore consider that the case law relating to the right to privacy and right to freedom of thought, conscience and religion is relevant to the development of New Zealand’s common law in this area.

Hosking v Runting [2003] 3 NZLR 385. In contrast, see M v Minister of Immigration [2012] NZCA 489, in which it was decided that there is no common law right to family life, despite its recognition in the ICCPR. 203 Takamore v Clark [2011] NZCA 587, [2012] 1 NZLR 573 (CA). 204 ibid at [241]–[242]. This did not feature in the decision of the Supreme Court that upheld the Court of Appeal: [2012] NZSC 116, [2013] 2 NZLR 733. 205 [2011] NZCA 587, [2012] 1 NZLR 573 at [250]–[254]. 202

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Where the cultural beliefs, practices and traditions of the deceased or his or her family are those of indigenous peoples, the development of the common law to give greater consideration to indigenous culture is therefore supported by the international covenants to which New Zealand is a party.

They went on to support the use of the Declaration, which is not a treaty but arguably sets standards that amount to state practice and so form part of customary international law, and, as the judges noted, is consistent with obligations in binding treaties. Their conclusion was: 252.

…The importance of protecting collective rights of indigenous peoples is specifically recognised in the Declaration. Accordingly, there is an argument that the common law relating to burial needs to give greater consideration to the collective nature of indigenous people’s rights. Article 12 of the Declaration specifically acknowledges that the ‘right to repatriation of human remains’ is inherent to the right of indigenous peoples ‘to manifest [and] practice … their religious traditions, customs and ceremonies’.

253.

Whilst the Declaration is non-binding, New Zealand announced its support of the Declaration in 2010. It is also a party to the international human rights covenants on which the Declaration is based. …206

The validity of this approach has been upheld by the Supreme Court in New Zealand Maori Council v Attorney-General:207 it accepted that the Declaration could be invoked to support a wide construction of the Treaty of Waitangi, the founding document for modern New Zealand and guarantor of Maori rights.208 There are several UK cases where rights have been in play and outcomes consistent with international obligations have resulted when the Human Rights Act 1998 does not apply. These include cases where the non-retrospectivity of the Human Rights Act 1998 meant that it could not be invoked in court hearings after it was in force. (See Chapter 9 for an indication of the procedural rules that gave rise to the non-retrospectivity approach.) For example, in R (Al-Hasan and Carroll) v Secretary of State,209 prisoners successfully challenged convictions of disciplinary offences on the basis of bias. The central point was that the adjudicating deputy governor of the prison had been present when the governor made the order for invasive searches:

206 See also Chambers J’s separate judgment, which largely concurred and emphasised the fact that the deceased had reduced his links with his extended family. He noted that the right to freedom of association and dissociation was significant, adding ‘309. … It is noteworthy that the United Nations Declaration on the Rights of Indigenous Peoples, to which New Zealand has subscribed, while recognising the rights of indigenous peoples to develop and maintain “juridical systems or customs” in art 34, also states in art 46(2) that nothing in the exercise of the rights under the Declaration undermines “fundamental freedoms”’. 207 New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31. 208 ibid at [91]–[92]: the Court doubted that the Declaration added anything to what was already understood to flow from the Treaty of Waitangi. 209 R (Al-Hasan and Carroll) v Secretary of State [2005] UKHL 13, [2005] 1 WLR 688, [2005] 2 Prison LR 120.

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it was a refusal to comply with searches pursuant to the order that led to the disciplinary proceedings, and there was an argument that the order was unlawful. It might seem surprising that there could be any doubt that there was bias, but the High Court and Court of Appeal had dismissed the challenges, necessitating a journey to the House of Lords. Lord Brown applied the common law test because the adjudications had pre-dated the Human Rights Act and also findings made in ECtHR case law to the effect that disciplinary adjudications might well be criminal in nature and so be covered by Article 6 of the ECHR. He (and other members of the House who gave concurring judgments) was able to move freely between ECtHR and common law jurisprudence in explaining what the test was and how it applied to the facts. The non-applicability of the statutory rights provisions may arise from the limits on the international arena. For example, Ahmed and Others v HM Treasury210 related to the enforcement of asset freezing directives from the UN Security Council: Article 25 of the UN Charter requires that members carry out the decisions of the Security Council, Article 41 allows the Security Council to set out the relevant methodology, and Article 103 requires the Charter to be given priority over other international obligations. There was previous authority from the House of Lords, R (Al-Jedda) v Secretary of State for Defence,211 that obligations arising from the Security Council’s directions took precedence over obligations under the ECHR in light of Article 103. It was accepted for the claimants that the Al-Jedda reasoning would prevent reliance on the ECHR; but it was also noted that there was arguably contrary authority from the European Court of Justice which might cause the Supreme Court to reconsider the Al-Jedda holding though the ECtHR had yet to rule directly on it. Lord Phillips noted that it was not possible to predict what approach the ECtHR would take, and so Al-Jedda should be followed.212 This meant that the Human Rights Act was out of play. However, the common law principle of legality was used as the statute by which UN obligations were given effect (the United Nations Act 1946) did not expressly authorise executive actions that breached fundamental rights. Another example is Al-Rawi v Security Service,213 in which the Supreme Court held that a closed material procedure could not be created by the courts in the absence of statutory authority, given the common law right to a public hearing. Lord Dyson noted that a closed material procedure had been found not to breach Article 6 ECHR in Tariq v Home Office214 and added: 68.

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… But the lawfulness of a closed material procedure under article 6 and under the common law are distinct questions. As Lord Bingham said in R (Ullah) v

Ahmed and Others v HM Treasury [2010] UKSC 2, [2010] UKSC 5, [2010] 2 AC 534. R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. 212 In Al-Jedda v UK, App no 27021/08, 7 July 2011, the Grand Chamber of the ECtHR took a legality-like approach to the relevant UN resolution and concluded that it did not exclude compliance with fundamental rights. See Chapter 3, n 81. 213 Al-Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531. 214 Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452. 211

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Special Adjudicator [2004] 2 AC 323, para 20, ‘It is of course open to member states to provide for rights more generous than those guaranteed by the Convention’. It is, therefore, open to our courts to provide greater protection through the common law than that which is guaranteed by the Convention.215

This case provides a reminder of the power of legality, but also a reminder of the limits of the common law: there was no suggestion that Parliament could not remove such a right if it was clear. The case also contains an indication as to how the common law approach has improved since the Human Rights Act 1998 was introduced. The decision in Al-Rawi is difficult to reconcile with R (Roberts) v Parole Board:216 in this case, the majority of the House of Lords allowed the Parole Board to create a special advocate procedure to consider evidence that would be kept away from the prisoner and his lawyers (who are the ones most obviously affected by the lack of open justice). There was no statutory authority for this, and so one wonders why the principle of legality did not prevent this conclusion (which is what the minority of Lords Bingham and Steyn would have decided).217

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iv. Rediscovery of the Common Law, Including where the Statutes also Apply There have also been instances where a claim that could be decided under the statutory rights (and may even have been argued under that heading) has been decided under the common law (or where the common law has been rediscovered, as in the contrast between Roberts and Al-Rawi noted above). Indeed, UK judges have become slightly belligerent in reminding counsel of what the common law can do. A non-belligerent example of this is R (von Brandenburg) v East London and the City Mental Health NHS Trust & Anor,218 in which the House of Lords had to consider whether a patient who had been detained in a 215 See also R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 at [90] per Baroness Hale: she noted the Ullah approach and added ‘If Parliament wishes to go further, or if the courts find it appropriate to develop the common law further, of course they may. But that is because they choose to do so, not because the Convention requires it of them’. Similarly, in DS v Her Majesty’s Advocate [2007] UKPC D1, [2007] 24 BHRC 412 at [91]–[92] she contrasted the development of rights through interpretation of the ECHR (which was for the ECtHR) and through new legislation or common law: ‘The legislature can get ahead of Strasbourg if it wishes and so can the courts in developing the common law’. She explained that there was an additional ground for caution in that the issue in the case was the validity or otherwise of an act of the Scottish Parliament, which would not be law if it breached Convention rights. 216 R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738. 217 Lord Dyson in Al-Rawi at [55] suggests that the Board had an express statutory power to adopt a closed material procedure: however, these rules were introduced during the course of the proceedings (though would apply when Mr Roberts’ case was held), but they were not in a primary statute (and indeed were not even made by statutory instrument). 218 R (von Brandenburg) v East London and the City Mental Health NHS Trust & Anor [2003] UKHL 58, [2004] 2 AC 280. The challenged decision was from before the Human Rights Act 1998 came into effect, and so it could not apply: however, the point being made is that the common law approach was changed.

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psychiatric hospital and released on the order of the relevant judicial body, then called the Mental Health Review Tribunal, could be detained again if nothing had changed: in other words, if the medical professionals simply disagreed with the Tribunal. The established answer to this was that they could. In the pre-Human Rights Act era, the leading case was R v Managers of South Western Hospital, Ex p M,219 the holding in which was that the professionals had a power to apply for detention when they thought that the conditions for detention were made out and could not be thought to lose that power because a Tribunal had decided that the patient did not meet the criteria for detention. The relevant statutory language, in section 13 of the Mental Health Act 1983, indicated that (1) It shall be the duty of an approved social worker to make an application for admission to hospital … where he is satisfied that such an application ought to be made … (2) Before making an application for the admission of a patient to hospital an approved social worker shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.

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In a hearing just before the Human Rights Act 1998 came into effect, Burton J upheld the validity of this approach in relation to Mr von Brandenburg,220 agreeing with the conclusion of Laws J in ex p M that there is no sense in which those concerned in a s3 application [ie an application to detain for treatment under section 3 of the Mental Health Act 1983] are at any stage bound by an earlier Tribunal decision. The doctors, social worker, and managers must, under the statute, exercise their independent judgment, whether or not there is an extant Tribunal decision relating to the patient.

He determined that the protection for the patient arose from matters such as the ability to challenge the decision by judicial review (where the test of irrationality would apply), the need for reasons to be given, the prospect of a civil action, and the right of the patient to seek a further Tribunal hearing (which might just start the whole process again). In disagreeing with the adequacy of this approach, Lord Bingham took the opportunity to restate the approach that should be adopted as a matter of the common law: he emphasised that there was protection of the liberty of the subject arising otherwise than from the ECHR (which could be traced back to Magna Carta 1215) (paragraph 6) and also that the rule of law required that effect should be given to the decisions of judicial tribunals, which meant that ‘no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such

219 220

R v Managers of South Western Hospital, Ex p M [1993] QB 683. [2000] MHLR 131, judgment of 26 June 2000.

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a tribunal’ as that would stultify the statutory regime and ‘make a mockery of the decision’.221 In some recent examples of the common law providing a solution, there has been judicial testiness at a failure to put the common law argument to the forefront. In Kennedy v Charities Commission,222 the interpretation of the Freedom of Information Act 2000 (FOIA) was in question. The context was an inquiry conducted by the Commission into a charity, which was protected from disclosure under the FOIA whilst it was ongoing: the main question was whether the protection continued. The Supreme Court concluded that it did so on the ordinary meaning of the statute. Counsel for the claimant, a journalist, then sought to argue that it was appropriate for a different conclusion to be reached in light of the interpretive obligation under section 3 of the Human Rights Act 1998 (discussed in Chapter 8) and the need for compliance with Article 10 of the ECHR. Lord Mance was critical of this, noting the value of the common law (including from its various jurisdictions): 46.

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Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. … In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in R (Guardian News and Media Ltd v City of Westminster Magistrates’ Court (Article 19 intervening), [2013] QB 618, para 88: ‘The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition.’

He added that there would be a practical benefit of not having to seek to reconcile judgments of the ECtHR, which he suggested was difficult in light of the absence of a formal system of precedent in Strasbourg. 221 [2003] UKHL 58, [2004] 2 AC 280 at [8]. He had to accept (at [7]) that there had been a failure in domestic law to respect habeas corpus principles in relation to some mental health detainees, which was revealed in X v United Kingdom (1981) 4 EHRR 188 and led to amending legislation in order to comply with the stronger version of habeas corpus found in Article 5(4) of the ECHR. As a result, an application to admit had to be based on the existence of material unknown to the Tribunal, including fresh developments that put a new complexion on the case: [10]. 222 Kennedy v Charities Commission [2014] UKSC 20, [2014] 2 WLR 808.

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Lord Reed in R (Osborn) v Parole Board223 took a similar approach. The question in the case was the propriety of the Board failing to grant oral hearings. There was criticism of counsel for placing arguments based on Article 5(4) of the ECHR at the forefront, apparently denying that the common law had a significant role to play. Rather, he emphasised, the need for detailed rules in domestic law meant that it should be remembered that the Human Rights Act 1998:224 … does not … supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

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He suggested that there was an ‘error’ by counsel, namely ‘to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law’.225 It is suggested that this judicial criticism is unfair, and indeed somewhat unrealistic. Taking Kennedy first, there was a significant judicial disagreement about whether the common law could provide a solution. Having concluded that the claimant lost as a matter of the ordinary interpretation of the FOIA, the majority determined that the FOIA did not set out a complete code for disclosure, in part because it contained a statutory saving power for other powers of disclosure. They then found that there was a statutory power of disclosure arising from the function of the Commission to secure trust in and accountability of charities, which arose under the Charities Act 1993 (and 2011), which had to be construed in light of the common law principle of transparency by public bodies, particularly those conducting quasi-judicial functions such as an inquiry. It was determined that this common law approach secured as much as Article 10 of the ECHR would do. The consequence of this was that there was no need to seek to use the interpretive obligation in relation to the FOIA power, which is what had been argued by the appellant, meaning that the appeal was unsuccessful (but without prejudice to him being able to make an application on the alternative arguments identified). Lord Wilson and Lord Carnwath dissented, suggesting the FOIA provided a detailed scheme to regulate disclosure which could be construed in accordance with the Human Rights Act to ensure compliance with Article 10 ECHR. Indeed, Lord Wilson suggested that the alternative mechanism supported by the majority was completely inadequate to provide regulation that was in accordance with the law because it was ‘so vague and generalised that … the determination thereunder of any request for disclosure’ would be ‘impossible

223 224 225

R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020. ibid at [57]. ibid at [63].

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to predict’.226 Lord Mance countered that the common law was capable of meeting the test, as was illustrated by the situations in which the common law approach to control of discretion had been adequate to meet the needs of the ECHR.227 But the significant dispute between the judges suggests that it was hardly improper for the claimant to have made use of a Conventionbased argument (particularly as that seemed a more direct route than the one favoured by the majority, which had not been the focus of the claim as it proceeded through the judicial system). In the case of Osborn, reliance on the ECHR was particularly understandable because the context of prisoners’ rights in relation to hearings is one that has been driven by developments under Article 5(4) of the ECHR to which the UK Parliament has had to respond by statutory amendments. For example, the gradual extension of the power of the Parole Board to consider the release of life sentence prisoners is the result of a series of cases in Strasbourg which the UK government resisted throughout.228 Similarly, rights to review in the context of detained psychiatric patients whose route to hospital was through the criminal courts had been won only by action in the ECtHR.229 Other significant cases in the domestic courts (on matters such as delays in hearings) had turned on the Human Rights Act rather than the common law;230 and there were other instances where the domestic courts had ruled against prisoners and they had had to head off to the ECtHR to seek a remedy.231 Moreover, the complaint in Osborn followed the apparent failure of the Parole Board to abide by the obvious consequences of the common law decision that was ultimately held to apply, R (West and Smith) v Parole Board.232 Lord Reed’s point on the merits was that the starting point for argument remained domestic law, with use made of the need to reflect the higher level principles in the ECHR in developing the domestic law. He also noted that the need for a law to have sufficient precision to allow a person to regulate his or her conduct or to be foreseeable in its consequences could not be secured without more detailed provisions than those set out in the international treaties. The led him to suggest the subsidiary role of the ECHR.233 However, this is to misunderstand the nature of the partnership between the ECHR (or any domestic constitutional statement of rights) and the necessary detail to give effect to it.

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[2014] UKSC 20, [2014] 2 WLR 808, [199]. ibid at [38], citing Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2009] AC 367 and Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 104. 228 They culminated in Stafford v UK App no 46295/99, (2002) 35 EHRR 32. 229 X v United Kingdom (1981) 4 EHRR 188. 230 See R (Noorkoiv) v Secretary of State [2002] EWCA Civ 770, [2002] 1 WLR 3284; R (KB and Others) v Mental Health Review Tribunal [2002] EWHC 639 (Admin), [2003] MHLR 1. 231 See James, Wells and Lee v UK App nos 25119/09, 57715/09 and 57877/09, (2013) 56 EHRR 12; Clift v UK App no 7205/07. 232 R (West and Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350. 233 [2013] UKSC 61, [2013] 3 WLR 1020, [56]. 227

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It is, of course, the case that the ECHR often includes requirements that there be a domestic law in place, since otherwise there cannot be compliance with the obligation that an interference with a right be ‘in accordance with the law’ or ‘lawful’. So the ECHR exists in the context of an understanding that there has to be domestic law; and there is full acceptance that there might well be very different approaches and different balances within different countries, which is accommodated by the margin of appreciation doctrine developed by the ECtHR. But where the question in contention is whether the domestic law is compliant with the requirements of the statement of rights, it seems natural to rely on those rights and the case law about them. It is also right for Lord Reed to point out as he did that there might well be instances where arguments based on the common law might produce an equivalent right to that reflected in the ECHR. One example given is the protection of legally privileged material in the context of searches in prison: the House of Lords in R (Daly) v Secretary of State for the Home Department234 determined that this was protected by the common law as well as by Article 8 of the ECHR, and that a policy that always required a prisoner to be absent during the search amounted to an unlawful policy because it went further than was necessary for the legitimate purposes of security (and was not based on a statutory permission to breach rights). What is more contentious is that the common law offers the same level of protection to the right. In Daly, Lord Bingham concluded that the policy was illegal ‘on an orthodox application of common law principles … and an orthodox approach to judicial review’235 before then setting out that an approach using the ECHR reached the same result. But there are two obvious points to note before accepting that the common law was of the same strength as the Human Rights Act review. First, in outlining the ECtHR-based approach, and its reliance on the proportionality standard, it was accepted that the UK courts had not gone far enough with their previous approach of anxious scrutiny when rights were in play. Secondly, the common law review carried out in Daly does not look much like a traditional common law review of vires or procedure (there being no suggestion that irrelevant matters had been considered or relevant matters missed), because it involved the judges entering into a clear discussion of the merits of the situation beyond an irrationality standard. Indeed, Lord Bingham made clear that he disagreed with the Court of Appeal’s view that the intrusion with rights was the minimum permissible in light of the needs of security; and the reasons he gave for this included findings by an ombudsman, the fact that there was a different approach in Scotland, and the fact that limited items of security risk had been found in legal correspondence.236 But these are clearly instances of engagement with the merits of the decision: relying on the 234 235 236

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532. ibid at [23]. ibid at [19]–[21].

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findings of an ombudsman (who is able to look at the merits of the situation), the different approach in Scotland (which, it was accepted, might be because of different security concerns), and a question as to the efficacy of the measure because of its limited success all go clearly to the merits of the decision. This seems to be confirmed by the question posed by Lord Bingham, namely whether the policy was a ‘necessary and proper response’ to the relevant security considerations:237 that is a merits review; a traditional formulation of the question would be whether a reasonable decision maker could consider it to be a proper balance of the rights in play and the need for security. There is a clear contrast between this and the situation in R v Ministry of Defence, ex p Smith,238 where the test adopted in relation to a substantive challenge was whether the decision was outside the range open to a reasonable decision maker.239 The facts involved four people discharged from armed services positions despite exemplary records solely on the ground that they were homosexual. The evidence has many analogies with Daly:240 — —

—

It involved a blanket ban, with no exceptions permitted (which was the problem identified in Daly). There was no evidence of any negative impact from the claimants’ sexuality on their working relationships with colleagues (and so, as in Daly, it could be seen that it was a response to a non-problem). There was evidence that the approach in other countries and in other forces such as the police was different (as was the case in Daly).

Despite this, the view of the Ministry of Defence was that the morale and effectiveness of the armed forces would be undermined, that recruitment would be prejudiced, and that there were various situations in which privacy was compromised (such as in barrack-room living).241 The central challenge by the claimants was simply that this justification did not add up to demonstrate the necessity of breaching the rights of the claimants, particularly in light of the facts noted by the claimants, such that prejudice was the central feature. In the High Court, Simon Brown LJ was clear that ‘the balance of the argument appears to me to lie clearly with the applicants’ because prejudices were breaking down; he also made it clear that he suspected the policy would not survive for long.242 But it was not possible to conclude that it was irrational despite the involvement of human rights: the courts could only intervene if the ‘purported justification outrageously defies logic or accepted

237

ibid at [18]. R v Ministry of Defence, ex p Smith [1996] QB 517. 239 ibid at 554E–G, per Sir Thomas Bingham MR. 240 The facts are taken from Simon Brown LJ in the High Court: [1996] QB 517 at 523H–524A, 525E–G, 528C–529D. 241 [1996] QB 517 at 529D–531B. 242 ibid at 533A. 238

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moral standards’,243 which it did not. As Curtis J put it, the decision involved ‘rational reasons, the relative weight of which is not for this court’.244 Similarly in the Court of Appeal, Sir Thomas Bingham MR noted that the arguments on the merits favoured the claimants—they were ‘of very considerable cogency’.245 Thorpe LJ noted that there was ‘no illustration or substantiation’ in the evidence,246 but the policy was not found irrational and the rights as set out in the ECHR were simply part of the background of irrationality. There seem to be two alternatives when this case and Daly are put together: either Daly represents a significant development of the common law; or it may be that there was no common law right in play which the judges could seek to protect (and it is the case that Article 8 of the ECHR was the right repeatedly mentioned in the judgments). If the latter, the gap in protection offered by the common law clearly required significant fixing.247 Another example given by Lord Reed is the case of R (West and Smith) v Parole Board,248 which was similar to Osborn save that the claimants had been released and recalled to prison and the Board was assessing whether the recall was justified. Decisions of the Board to make these assessments without an oral hearing were challenged and dismissed by the High Court and Court of Appeal. The House of Lords took a different view. Lord Bingham noted that common law procedural fairness applied (which was not in issue) and concluded that it required oral hearings more often than had been the case,249 which would meet the requirements of Article 5(4) ECHR as well.250 Lord Hope agreed in relation to the common law and the ECHR, but he noted that it was important to reflect on the different approach of the two systems of law and how they interacted. He noted that the Human Rights Act 1998 was designed to secure minimum protection for ECHR rights, but without restricting any other right in law, and said ‘This is where the common law steps in’ because the procedural fairness rules arise from the common law rather than the ECHR.251 But he then noted that the ECtHR had indicated that Article 5(4) required a court-like process, and so ‘to satisfy Article 5(4), the board’s procedure … must embody the procedural fairness that the common law requires of a court’.252 If this analysis is correct, the suggestion that the common law can do it all appears to overstate its powers. Lord Reed took a more conciliatory tone 243

ibid at 540F. ibid at 546B. It is fair to say that he also expressed the view that the reasons given were not prejudiced: but he also suggested that there should be a review with proper evidence: 546B–547A. 245 ibid at 557G. 246 ibid at 566A. 247 Similarly in Faulkner and Sturnham, noted below, there was no remedy at common law for a breach of the right to a speedy hearing. 248 R (West and Smith) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350. 249 ibid at [35]. See also Lord Slynn at [49]–[50], Lord Hope at [68]. 250 ibid at [37]. See also Lord Slynn at [55]. 251 ibid at [74]. 252 ibid at [75]. 244

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towards the ECHR and the Human Rights Act in A v BBC,253 which related to whether the identity of a convicted sex offender could be revealed. The context was deportation proceedings, and he argued that he would be at risk of death or serious injury in his home country if it was known that he was a sex offender (and breaches of his rights under Articles 2 and 3 ECHR would follow); indeed, he had been deported by the time of the hearing in the Supreme Court, and it was noted that the propriety of deportation was conditioned on the non-publication of A’s identity, in light of those risks. A question arising was the basis for the order that his name not be published, and the value of open justice in the context. There was a single judgment, delivered by Lord Reed, which may have required concessions in language to ensure that other members of the court agreed to it. He noted the ‘constitutional principle’ of open justice, arising from the common law;254 but added that its origin in the common law meant that it was a matter for the judges to determine how it applied (and exceptions to it), though he noted as an aside that it was also subject to any statutory limitation.255 Having gone through the many common law examples to illustrate this, he then noted that the same applied under the ECHR and the principle of a fair and open trial set out in Article 6, and that the rights protected under Articles 2, 3 and 8 could provide a basis for restrictions on open justice.256 Lord Reed then turned to the relationship between the two, because counsel for the BBC had concentrated on rights under the Convention. He noted various recent cases257 that rested on the importance of the continuing development of the common law. But he added: 57.

That approach does not in any way diminish the importance of section 6 of the Human Rights Act 1998, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. …

He then noted that the common law would normally lead to an ECHRcompliant outcome, though it was also possible that the balance found in domestic law might not always be found in the same way as under the ECHR. He then made the point that ‘In that event, effect must be given to the

253

A v BBC [2014] UKSC 25, [2014] 2 WLR 1243. ibid at [23]–[26], citing R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2013] QB 618 for the proposition that it was an element of the rule of law, which required that there be public scrutiny of the judges as they carried out their function of ensuring that others acted lawfully (because that was the way that the courts were themselves scrutinised for their loyalty to the principle). 255 [2014] UKSC 25, [2014] 2 WLR 1243, [27]. 256 ibid at [42]–[46]. 257 Al-Rawi v Security Service (JUSTICE intervening) [2012] 1 AC 531, Bank Mellat v HM Treasury (Liberty intervening) (Nos 1 and 2) [2013] 3 WLR 179 and Kennedy v Information Comr (Secretary of State for Justice) [2014] 2 WLR 808, R (Osborn) v Parole Board [2013] 3 WLR 1020, R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 Intervening) [2013] QB 618. 254

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Convention rights in accordance with the Human Rights Act 1998’.258 This clear ranking of the common law ahead of a statutory duty is noticeable. He also dealt with the fact that the common law might change, and mentioned some of the features that might be relevant to its development. He commented: 40.

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… in this area as in others the common law is capable of development. The application of the principle of open justice may change in response to changes in society and in the administration of justice. It can also develop having regard to the approach adopted in other common law countries, some of which have constitutional texts containing guarantees comparable to the Convention rights, while in others the approach adopted reflects the courts’ view of the requirements of justice. … The development of the common law can also of course be influenced by the ECHR.

On the facts, the application of ECHR rights and principles was central to the decision that the anonymity order was proper.259 There have been two other instances in which the UK Supreme Court has reached surprising conclusions that seem to downplay the ECHR and undermine the partnership role. In Bank Mellat v HM Treasury (No 2),260 the central question was the propriety of the making of an Order in Council that no one could do business with the bank, an Iranian corporation, in light of its suggested involvement in a nuclear weapons programme in Iran. The bank had not been allowed to make any representations before the order was made, and the High Court judge had concluded that this was not problematic because the statutory process in a schedule to the Counter-Terrorism Act 2008 did not allow for representations to be made in advance. The Court of Appeal agreed, but the Supreme Court by a majority overturned this on the basis that the correct question was whether the right to make representations in advance—a common law right—was excluded by the statute; as it was not, in part because the statutory right to appeal after an Order was made (which would have arisen in any event by way of judicial review) did not provide an adequate protection to the need for fairness, the Order was set aside. Also worth noting from this case is that there was reference in the statute to the requirements in an Order having to be ‘proportionate’ in light of the interests of the UK. The question was whether this was the concept of proportionality in the ECHR (and in particular the right to property in Article 1 of the First Protocol, which could include business relationships that were prohibited by the Order). Lord Reed suggested that the concept of proportionality was best understood in the UK context by following the approach set out in the Canadian Supreme Court in the case of R v Oakes;261 this answered the question of whether a restriction on a right was permitted by posing a fourfold 258 259 260 261

[2014] UKSC 25, [2014] 2 WLR 1243 [57]. ibid at [69]–[77]. Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2013] UKSC 39, [2013] 3 WLR 179. R v Oakes [1986] 1 SCR 103.

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test, namely: (i) whether the objective of the measure being questioned was important enough to justify a limitation, (ii) whether there was a rational connection between the measure and the objective, (iii) whether a less intrusive measure could have been used that could have secured the objective and (iv) whether the importance of the measure outweighed the severity of its effects on the rights of people affected. This fourth step was the proportionality balance.262 This chain of reasoning was accepted by Lord Sumption (speaking for the majority in the case).263 What seems to be suggested is that the process of reasoning to be adopted is a common law one rather than an ECHR process, even though it might be thought obvious that in the years after the Human Rights Act had introduced ECHR concepts, it is more likely that Parliament meant to refer to the ECHR than to a concept developed in Canadian constitutional jurisprudence arising from a conscious decision to have a supreme law bill of rights. Similarly, in R (Faulkner and Sturnham) v Secretary of State for Justice,264 there were delays in the holding of reviews, and the central question was whether damages should be awarded. These had to arise under the 1998 Act because it was found that there was no false imprisonment. As a result, noted Lord Reed, it was necessary for the courts to follow the approach of the ECtHR, as that was what the statute required. As such, 29.

263 264

194

… It differs from the ordinary approach to the relationship between domestic law and the Convention, according to which the courts endeavour to apply (and, if need be, develop) the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK’s international obligations; the starting point being our own legal principles rather than the judgments of an international court. …

Even so, Lord Reed noted that domestic approaches to damages would develop and then have to be followed (with the only question being whether the domestic process fell short of what was required by the ECtHR). This seems to be a strange approach to a statute that clearly requires that account be taken of the ECtHR’s approach, and contrary to the approach adopted in relation to ‘taking account’ of decisions on the content of a right, which means following it (as described in Chapter 5). However, its potential merit is discussed further in Chapter 10. The flurry of cases from the UK Supreme Court suggests that the jurisprudence on the relationship between the common law and the ECHR still has a way to go before it becomes stable.

262

193

[2013] UKSC 38, [2013] UKSC 39, [2013] 3 WLR 179 [74]. ibid, [20]. R (Faulkner and Sturnham) v Secretary of State for Justice [2013] UKSC 47, [2013] 2 AC 254.

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8 Interpretive Obligation I. Introduction ...........................................................................................1 II. The Statutory Language .......................................................................14 III. The Case Law.......................................................................................23 A. Early New Zealand Case Law........................................................23 B. UK Case Law .................................................................................30 C. Later New Zealand Case Law........................................................71 D. Australian Comparative Material...................................................77 E. Irish Material .................................................................................87 F. Case Study—Reverse Burdens of Proof ..........................................90 IV. Legality and the Statutory Obligation ................................................106 V. Discussion ..........................................................................................111

I. INTRODUCTION

1

Once a determination has been made of what the rights in play require and who owes them, a question might arise as to whether the legal regime is compliant. In the domestic setting, this will have to be considered by all public bodies,1 given their obligation to act in a rights-compliant fashion unless prevented by a statute—the effect of the retention of the power to breach rights.2 Naturally, if there is a dispute about whether this has been done properly, the courts will have to adjudicate. As the New Zealand Legislation Advisory Committee has noted, there are values that affect this process:3 ‘When interpreting Acts, a

1 See Lord Rodger commenting on the UK statute in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [106] ‘the section [section 3] is not aimed exclusively, or indeed mainly, at the courts’ (unlike section 4, which is limited to courts, and section 6, which applies to public authorities): rather, ‘section 3 is carefully drafted in the passive voice to avoid specifying, and so limiting, the class of persons who are to read and give effect to the legislation in accordance with it. Parliament thereby indicates that the section is of general application. It applies, of course, to the courts, but it applies also to everyone else who may have to interpret and give effect to legislation’. This would include all public bodies. 2 Parliaments in Canada and Victoria may exercise control here by virtue of the legislative override provision that is discussed in Chapter 6; it remains for the judiciary to decide what the statute means. 3 Guidelines on Process and Content of Legislation, 2001 (as amended), p 77; available at www2.justice.govt.nz/lac/.

Introduction

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court owes a duty not just to Parliament to ensure that its intention is carried out, but also to society to ensure that the rights of the citizen are upheld’. This reflects a tension that arises whenever there is a legitimate dispute about what a statute means, which the separation of powers requires the judiciary to resolve: if rights are involved, the argument about what the legislature did mean may be affected by a question about whether they could mean something that would breach a fundamental right. As was outlined in Chapter 3, courts may make use of common law interpretive techniques, such as the presumption of legality, in such a situation; Ireland also has constitutional protection of some fundamental rights. There is also the use that might be made of international jurisprudence, though the UK limits this to ambiguity in a statute and there is reluctance in Ireland in this regard. There is also an approach of giving a wide and expansive meaning to the substance of rights.4 The statutory bills of right all impose interpretive obligations on the courts to seek to secure those rights set out in the statute when considering what a particular statutory provision means. This has given rise to a significant amount of case law (and academic discussion), which turns on how to resolve a perceived tension between giving priority to the protection of rights or the coexisting power retained by the legislature to breach rights. In other words, when there is language in a statute that might well breach rights, absent the unusual situation of the legislature using ‘notwithstanding’ language,5 what are the pointers that should lead the judges to find a construction that favours rights and what are the pointers that should lead them to conclude that rights cannot be upheld? Also relevant is whether the statutory obligation is any different in nature from pre-existing common law approaches; or whether, just as the substantive content of human rights is to be approached broadly, so should be the mechanics by which they are protected in the domestic framework. A preliminary contextual point is the more standard approach to interpretation, given that the ability or willingness of the judiciary to carry out a rightsprotecting function through a strong interpretive obligation may depend on how comfortable the bench is with diverting from the ordinary meaning of statutory language. A more literalist judiciary will point out that amending legislation can be passed if there is an inadvertent breach of rights; a more flexible and purposive approach to interpretation, in contrast, may lead judges to be more willing to adopt a problem-solving approach that seeks to give priority to securing rights in the case in front of the court (also leaving it to the legislature to adopt amending legislation if it wishes to restore a rightsinfringing situation).

4

See the discussion in Chapter 5. Reflecting either the specific ‘notwithstanding’ clause available in Victoria, as modelled on Canada, or an obvious semantic way to make sure that there is no doubt that the legislature wishes its scheme to be followed irrespective of rights considerations. 5

2

3

4

394 5

Interpretive Obligation

In the Australasian jurisdictions, statutes require a purposive interpretation. The Interpretation Act 1999 in New Zealand has various technical rules, but also provides in section 5:6 5.

Ascertaining meaning of legislation

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

6

7

Subsections (2) and (3) note that various indications of meaning may appear on the face of the statute, such as preambles, headings, marginal notes, examples and explanatory material. Material used in the legislative process is regularly consulted: in Combined Beneficiaries Union Inc v Auckland City COGS Committee,7 Glazebrook J (for herself and Hammond J) noted at [33] that it is ‘usual’ to make use of the White Paper relating to the NZBORA in assessing the scope of a right in question in litigation. Similarly in the ACT, section 139 of the Legislation Act 2001 indicates: 139. (1) (2)

8

9

Interpretation best achieving Act’s purpose In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. This section applies whether or not the Act’s purpose is expressly stated in the Act.

Section 140 provides, no doubt unnecessarily, that the context of the Act as a whole must be considered, and section 141 sets out that the non-legislative context may be considered but with various caveats (such as the desirability of relying on the legislative document and not prolonging proceedings unnecessarily), and section 142 lists the documents that may be relevant, including reports from law reform commissions, explanatory statements, proceedings in the legislature, and also international treaties. In a similar vein, the Interpretation of Legislation Act 1984 in Victoria provides for a purposive interpretation and makes clear that materials from the legislative process are relevant: 35.

Principles of and aids to interpretation

In the interpretation of a provision of an act or subordinate instrument— (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and (b) consideration may be given to any matter or document that is relevant including but not limited to—

6 This is not novel: section 5(j) of the Interpretation Act 1924 also required a purposive interpretation. 7 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56.

Introduction

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(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

In Ireland, the rules of interpretation are also set out in statutory terms, in the Interpretation Act 2005, though the main provision is designed to confirm the approach that had been set out by the judiciary.8 This prefers the literal meaning of a statute to be followed unless that produces absurdity or there is ambiguity or obscurity, in which case a more purposive approach can be followed:

10

5.(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)— (a) that is obscure or ambiguous, or (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of— (i) in the case of an Act to which paragraph (a) of the definition of ‘Act’ in section 2(1) relates, the Oireachtas, or (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

The extent of the attraction to the literal interpretation is confirmed by section 18(g), which prohibits reference to matters such as marginal and shoulder headings in construing statutes unless there is obscurity or ambiguity. However, section 6 does allow provisions to be construed in a manner that 8 The Explanatory Memorandum to the Interpretation Bill 2000 notes of what became section 5 (though there were various semantic changes) that it ‘provides that, in interpreting a statute, a more purposive construction (obtained from the Act as a whole) can be taken in certain cases rather than the literal meaning. The cases dealt with are where the provision concerned is ambiguous or obscure or which, on a literal interpretation, would fail to reflect the plain intention of the Oireachtas. This section reflects the principle set out by Keane J in Mulcahy v Minister of the Marine (Unreported, 4 November 1994)’. See also DPP (Ivers) v Murphy [1998] IESC 19, [1999] 1 IR 98, [1999] 1 ILRM 46, in which Denham J, in a judgment in which Barrington and Lynch JJ concurred, noted that it was proper to apply a purposive approach in preference to a literal approach (either of the particular statutory phrase or of the phrase in its statutory context, ie looking at the statute as a whole); but she noted the limits of this: ‘38. … no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature. 39. The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take’. For the ability of this to cause ongoing disputes within the judiciary, see DPP v Independent Newspapers (Ireland) Ltd [2008] IESC 8, [2008] 4 IR 88, [2008] 2 ILRM 161.

11

396

12

13

Interpretive Obligation

reflects changing circumstances: ‘a court may make allowances for any changes in the law, social conditions, technology, the meaning of words used in that Act or statutory instrument and other relevant matters’. But the judiciary in Ireland are reluctant to review material surrounding a statute, such as papers presented to the legislature, that might explain the purpose of the words: that has to emerge from the statute. In the UK, there is a somewhat bland Interpretation Act 1978, which sets out various technical and mundane rules. This, naturally, allows the judges to develop the relevant rules of substance. Most commonly used now is the purposive approach: see Pepper v Hart.9 This did provide permission, but in limited circumstances, to refer to debates in Parliament in order to assist an understanding of the purpose.10 The prerequisites are that the language is obscure or ambiguous or the literal meaning leads to an absurdity; and all that is permitted is reference to statements by the presenter of the relevant Bill (usually a Minister) and then only if the statement is clear.11 There is more willingness to allow reference to material that illuminates the mischief to which a statute is aimed, such as might be found in a Law Commission report or a Green or White Paper if there has been a long route to legislation (and the legislation is passed for the purpose identified); and in the period since Pepper v Hart was decided, it has become parliamentary practice to add explanatory memoranda to Bills and then to statutes, which help to explain the purpose. So the background is (i) there is a purposive technique to statutory interpretation, though there is a greater degree of attraction to either the literal meaning or a somewhat narrow understanding of what can be reviewed to explain the purpose of a statute in Ireland; and (ii) there are also techniques available to judges to support human rights-consistent interpretations, and in particular the presumption of legality and making use of international treaties to support interpretation, which is better established in Australasia than in Europe, and in relation to which Irish jurisprudence has demonstrated more reluctance.

II. THE STATUTORY LANGUAGE

14

The language of the various bills of rights as to the interpretive obligation is as follows:

9

Pepper v Hart [1993] AC 593. See Davis v Johnson [1979] AC 264 for an example of the previous rule being enforced, in which the House of Lords cited various practical problems such as not wishing to require counsel to research the relevant debates; and Hadmor Productions Limited v Hamilton [1983] AC 191, which restated that it was impermissible to refer to Hansard. 11 [1993] AC 593, 639F–G, per Lord Browne-Wilkinson (with whom others concurred). 10

The Statutory Language

397

New Zealand—New Zealand Bill of Rights Act 1990 6. Interpretation consistent with Bill of Rights to be preferred— Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning. UK—Human Rights Act 1998 3. Interpretation of Legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; … Ireland—European Convention on Human Rights Act 2003 2.

Interpretation of laws.

(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. (2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter. ACT—Human Rights Act 200412 30. Interpretation of laws and human rights So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

12 Note that this is as amended; initially, it provided ‘(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred. (2) Subsection (1) is subject to the Legislation Act, section 139. Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test). (3) In this section: working out the meaning of a Territory law means—(a) resolving an ambiguous or obscure provision of the law; or (b) confirming or displacing the apparent meaning of the law; or (c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or (d) finding the meaning of the law in any other case’. In short, the purpose of the statute being construed was given priority; but otherwise there were various instances of interpretation, not limited to where there was an ambiguity, which required preference to the rights-consistent meaning. The new language seems designed to have the same outcome.

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Interpretive Obligation

Victoria—Charter of Human Rights and Responsibilities Act 2006 32. Interpretation (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

15

In terms of the language used, there are three different formats: (i)

16

17

The New Zealand and UK statutes look at what can be done, or what is possible, as a matter of interpretation. At first sight, they require the courts (a) to assess the meaning of the language of the statute being construed on the normal interpretive approach; and (b) if that meaning is not compliant with rights, to adopt a composite meaning that secures fundamental rights if that is possible with the language used (ie taking whatever intention was in play in the language of the statute being interpreted and modify that according to the intention of the parliament passing the interpretive obligation to secure that revised interpretation). (ii) The Irish statute adds a caveat that the strong interpretive obligation is itself subject to the other rules relating to interpretation. (iii) The Australian statutes also add language that emphasises the purpose of the legislation being construed, expressly requiring that any purpose that conflicts with fundamental rights is the one to which effect must be given. The Irish statute confirms in section 2(2), as does the UK statute in section 3(2)(a), that it applies to existing and future legislation. In the ACT, section 29 indicates that the mechanics of the statute apply to all Territory laws (and so current and future ones). However, it is implicit in the New Zealand and Victorian statutes that past and future legislation is covered, given the application of the interpretive requirement to all enactments. The devolution legislation of the UK contains limitations on the powers of the relevant assemblies. Section 29 of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law if outside its legislative competence, which includes incompatibility with any of the Convention rights.13 Similarly, section 6 of the Northern Ireland Act 1998 prevents the Northern Ireland Assembly from passing Acts that breach the Convention rights (or discriminate on the basis of religious belief or political opinion).14 For the Welsh Assembly, section 107 of the Government of Wales Act 199815 prevented it from taking steps in relation to subordinate legislation that breached Convention rights; additional primary legislative powers given by the Government of Wales Act 2006 have limits on competence, set out in section 94 in relation to Assembly Measures and section 108 in relation to Acts of the Assembly (which replaced

13 These are the same as those in the Human Rights Act 1998: see section 126(1) of the Scotland Act 1998. 14 This is potentially wider than the prohibition contained in Article 14 of the ECHR because it is not necessary for there to be discrimination in relation to another fundamental right. 15 See also section 81 of the Government of Wales Act 2006.

The Statutory Language

399

Measures once a referendum approved enhanced legislative powers).16 However, before the extreme step of striking down a statute is taken, the courts must strive to save it by reading it to be within competence: Scotland Act 1998 101. Interpretation of Acts of the Scottish Parliament etc. (1) This section applies to— (a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and (b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive, which could be read in such a way as to be outside competence. (2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly. (3) In this section ‘competence’— (a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and (b) in relation to subordinate legislation, means the powers conferred by virtue of this Act. Northern Ireland Act 1998

Judicial scrutiny 83. Interpretation of Acts of the Assembly etc. (1) This section applies where— (a) any provision of an Act of the Assembly, or of a Bill for such an Act, could be read either— (i) in such a way as to be within the legislative competence of the Assembly; or (ii) in such a way as to be outside that competence; or (b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a Northern Ireland authority could be read either— (i) in such a way as not to be invalid by reason of section 24 or, as the case may be, section 76; or (ii) in such a way as to be invalid by reason of that section. (2) The provision shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly. (3) In this section ‘Northern Ireland authority’ means a Minister, a Northern Ireland department or a public authority (within the meaning of section 76) carrying out functions relating to Northern Ireland.

16

Section 158 notes that Convention rights are those as set out in the Human Rights Act 1998.

400

Interpretive Obligation

Government of Wales Act 2006 154. Interpretation of legislation (1) This section applies to— (a) any provision of an Assembly Measure, or proposed Assembly Measure, which could be read in such a way as to be outside the Assembly’s legislative competence, (b) any provision of an Act of the Assembly, or a Bill for such an Act, which could be read in such a way as to be outside the Assembly’s legislative competence, and (c) any provision of subordinate legislation made, or purporting to be made, under an Assembly Measure or Act of the Assembly which could be read in such a way as to be outside the powers under which it was, or purported to be, made. (2) The provision is to be read as narrowly as is required for it to be within competence or within the powers, if such a reading is possible, and is to have effect accordingly. (3) In subsection (1)(c) ‘made’ includes confirmed or approved.

18

19

The difference between the devolution language and that in the other statutes is the need for a ‘narrow’ reading: but this does not mean a different reading from that applicable under the Human Rights Act 1998; rather, it means that the task is designed to ensure that statutory language that might otherwise go outside the bounds of competence must be read so as to be within those bounds if possible. Those bounds might require that something has to be read expansively or restrictively, depending on the right in play and whether the language needs something added or taken away (as will be seen in the discussion of the case law). There is also the example of Canada, and the starting point for the nonconstitutional arrangements, namely the Canadian Bill of Rights Act 1960: 2. Construction of law Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared …

20

21

It then added that ‘in particular, no law of Canada shall be construed or applied so as to’ breach the various rights set out in the statute. On the face of it this is a mandatory requirement not to allow a breach of rights unless Parliament has somehow stated expressly that there should be a breach. Such an express declaration could come from adequate clarity in language; but the language of construction and application supports an expansive judicial role of interpretation. Another model is the Hong Kong Bill of Rights Ordinance 1991 (which was designed to give effect to the ICCPR), which had a combination of

The Case Law 401 interpretation or implied repeal applicable to past legislation and an interpretive model for future legislation but without any implied repeal: 3. Effect on pre-existing legislation (1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction. (2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed. 4. Interpretation of subsequent legislation All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong.

The interpretive language is similar to the language of the other bills of rights statutes, in that ‘to the extent that it admits’ it is no different from the language of possibility that is used elsewhere.17 There is the implicit point made that there are limits on the power, which will lead to the implied repeal of legislation that pre-dated the Ordinance but the continuation of subsequent legislation. As the pre-legislative material relating to the bills of rights statutes noted in Chapter 4 makes clear, the intention in those statutes was to have a general interpretive obligation applying to all statutes rather than one which rests on the notion of newer statutes impliedly repealing older ones.

22

III. THE CASE LAW

A. Early New Zealand Case Law An important early New Zealand case, which led to a five-judge Court of Appeal was Ministry of Transport v Noort; Police v Curran.18 The central issue was whether drivers detained for a breath test had a right to a lawyer (there being in section 23(1)(b) of NZBORA a right for all detainees to consult a lawyer without delay). Having decided that there was such a right, the question was how to secure it. Cooke P noted the prospect of having to develop the law19 and identified that section 6 of the NZBORA was ‘a rule of interpretation comparable in importance to—perhaps of even greater importance

17 Note, however, that these provisions did not survive the new constitutional regime in Hong Kong: pursuant to Article 160 of the Basic Law, the Standing Committee of the National People’s Congress declared as much. See the Ordinance as currently found at www.legislation.gov.hk/eng/ home.htm (chapter 383). However, as noted below, its effect has been maintained as part of a constitutional power of protecting rights. 18 Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260. See also Chapter 5 in relation to the working out of the meaning of rights. 19 ibid at 270.

23

402

Interpretive Obligation

than’20 the purposive approach21 or the common law approach of legality.22 He then commented that:23 Section 6 may be seen as to some extent a quid pro quo for the rule of statutory primacy in s 4. The rights and freedoms in Part II are not constitutionally entrenched and may be overridden by an ordinary enactment, but in interpreting an enactment a consistent meaning is to be preferred to any other meaning. The preference will come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough.

24

There is, however, no indication as to why an interpretation that ‘can’ be given is only one that ‘can reasonably’ be given, so excluding a ‘strained’ meaning from what is required by the interpretive obligation. Hardie Boys J also had a similar limitation, noting that ‘Section 6 provides in effect that where a statute is fairly open to more than one interpretation, that which is consistent with the rights and freedoms in the Bill of Rights is to be preferred’.24 Gault J, who dissented on the result in the case, noted of section 6 that it might require that previous interpretation of statutory provisions be abandoned. But he added:25 The Transport Act sections must, however, be given proper meaning according to their terms. I understand meanings that ‘can be given’ as not authorising departure from true meaning where that is clear and unambiguous. It is no more and no less than an exercise in statutory interpretation assisted where necessary by the objects of the legislation. Section 6 does not repeal s 5(j) of the Interpretation Act 1924.

25

The latter section is the purposive approach to the statute being construed.26 Richardson J in Noort noted the importance of the purpose of preserving parliamentary sovereignty, which was the aim of section 4 of the NZBORA: effect had to be given to both sections 4 and 6. He summarised this:27 … the Bill of Rights Act is a legislative commitment to the protection and promise of those basic human rights and freedoms set out in the Act. Those rights are not absolute and that commitment does not preclude Parliament from abridging or even excluding their application. Sections 5 and 6 reflect a strong legislative intention to protect the rights and freedoms contained in the Bill of Rights Act. In determining under s 4 whether there is an inconsistency between the provisions of another enactment and a provision of the Bill of Rights, it is proper to have regard to the statutory objectives of protecting and promoting human rights in New Zealand, and New Zealand’s commitment to international human rights standards, and also to the limiting provisions of s 5 and s 6. In the end, and in the absence of an express statutory

20

ibid at 272. Section 5 of both the Interpretation Act 1924 and the Interpretation Act 1999. 22 For which he cited the example of Morris v Beardmore [1981] AC 446 (see chapter 3, fn 79). 23 [1992] 3 NZLR 260, 272. 24 ibid at 286. 25 ibid at 294. 26 This is similar to section 5(1) of the Interpretation Act 1999 (NZ), set out above. 27 [1992] 3 NZLR 260, 278. The role of section 5, which deals with limits on rights, is discussed in Chapter 5. 21

The Case Law 403 exclusion of a Bill of Rights Act provision, it must be a question of determining under s 4 whether there is any room for reading along with the other enactment a Bill of Rights Act provision whether absolute or modified or limited pursuant to ss 5 and 6.

In other words, statutory provisions that are inconsistent with a provision of the NZBORA are not subject to implied repeal (the purpose of section 4); but the question of whether there is an inconsistency may turn on the use of section 6 and its purpose of protecting rights. The balance between these competing aims meant that straining language was not permissible. In a subsequent five-judge Court of Appeal, Moonen v Film and Literature Board of Review,28 Tipping J for the Court gave an alternative formulation of the ‘reasonable possibility’ test for interpretation. Having noted the requirement to give a rights-consistent meaning if possible, he said ‘Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted’. Reasons for the limitations on the interpretive obligation were discussed by Thomas J in Quilter v Attorney-General,29 in which the question was whether marriages between same-sex couples should be permitted in light of the prohibition on discrimination in the NZBORA. Although there was no definition of marriage in the Marriage Act 1955 that excluded same-sex marriage, the Court agreed that it only encompassed heterosexual relationships; the majority held that there was no discrimination. Thomas J dissented on the discrimination point, but he also felt that section 6 could not have cured the breach of rights because ‘no other meaning is possible without usurping Parliament’s legislative supremacy’.30 He added that this refusal to ‘strain the meaning’ of the statute was compliant with section 6 because it ‘does not authorise the Court to legislate’. The problem, he noted, was that changing the long-understood limitation of marriage to heterosexual scenarios was ‘a question weighted with policy considerations of the kind Parliament is both constitutionally and practically equipped to decide’. He suggested that there were many and competing policy considerations in relation to whether and how to make any change, including whether there was general public acceptance of the discrimination, its potential repercussions and when it should occur. This illustrates two separate lines of reasoning for limiting the width of the interpretive power: it did not include straining the meaning (an internal limitation on the language of the statutory obligation), and there was the question of the institutional capability of the judiciary to reconstruct language in light of its potential repercussions (an external contextual feature), meaning that a judge was not capable of providing the rights-protecting interpretation.

28 29 30

Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 [16]. Quilter v Attorney-General [1998] 1 NZLR 523. ibid at 542.

26

27

28

29

404

Interpretive Obligation

The latter, but not the former, line of reasoning was to find favour in the UK when its Human Rights Act 1998 came into effect.

B. UK Case Law 30

The White Paper in support of the Human Rights Bill31 made clear that (i) the government was conscious that, under common law interpretive techniques, the judiciary in the UK required ambiguity before making use of ECHR standards and (ii) the government wished this to change: Interpretation of legislation 2.7 The Bill provides for legislation—both Acts of Parliament and secondary legislation—to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so. 2.8 This ‘rule of construction’ is to apply to past as well as to future legislation. To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretations. They will be able to build a new body of case law, taking into account the Convention rights.32

31

32

33

In short, it would be necessary to review all past jurisprudence and to remediate accepted constructions of statutory language that were not compliant with the ECHR unless to do so was ‘impossible’: this is clearly far reaching in its intention, and the UK courts have put this into effect. A good starting point is R v Director of Public Prosecutions, Ex p Kebilene,33 in which Lord Cooke (previously Cooke P of the New Zealand Court of Appeal) noted that section 3(1) amounted to a ‘new canon of interpretation’ and the requirement to read and give effect to statutory language in a way that was compatible with Convention rights was ‘a strong adjuration’.34 Subsequently, the extent of the obligation was made clear in R v A (No 2),35 in which the issue was how far a restriction on questioning the complainant in a rape case about previous sexual conduct went. Section 41(3)(b) of the Youth Justice and Criminal Evidence Act 1999 permitted questions only about conduct

31 Rights Brought Home, cm 3782, available at www.archive.official-documents.co.uk/ document/hoffice/rights/intro.htm. 32 Note also that an approach resting on the implied repeal of past legislation, as used in Hong Kong (noted above and discussed further below) was rejected on the basis that the statutory enterprise was ‘intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it’: paragraph 2.14. 33 R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326. 34 ibid at 373F. 35 R v A (No 2) [2002] 1 AC 45.

The Case Law 405 ‘at or about the same time’ as the alleged rape. The trial judge had allowed the complainant to be questioned about sexual conduct with another male shortly before the incident that led to the charge but not about sexual conduct a week before with the defendant (as part of a relationship that had begun three weeks before the incident that formed the charge); the judge had also found that this was a prima facie breach of the right to a fair trial in Article 6 of the ECHR. The House of Lords ruled that the judge had been correct: however, section 41(3)(c) allowed questioning about conduct ‘so similar’ to what occurred ‘as part of the event’ that formed the subject matter of the charge that ‘the similarity cannot reasonably be explained as a coincidence’. The House held that this might allow a balance between the need to protect the victims of sexual crimes from excessive questioning whilst ensuring that trials were not unfair. Lord Steyn provided the relevant guidance. He identified that section 41 as a whole amounted to ‘legislative overkill’ which could not be remedied by ‘ordinary methods of purposive construction’—ie on those methods, there could be no permission given to ask questions about incidents during the three-week relationship,36 but: 44. On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature … Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. … In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions.37 45.

36

… After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which

ibid at [43]. As part of his reasoning, Lord Steyn quoted statements by the Lord Chancellor during parliamentary debates that the interpretive obligation would cure ‘99%’ of cases (which, he argued, was a legitimate tool of interpretation), leaving the declaration of incompatibility (discussed in Chapter 10) as a rarely-to-be-used remedy. 37

34

406

Interpretive Obligation is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible.

35

36

37

In short, section 3 required courts to go beyond the text being construed, which might result in a strained interpretation of that text, clearly beyond what had been found proper in New Zealand. What that meant when applied to the statutory language being construed was that the ‘niceties’ of its language, and its reliance on conduct being coincidental, should be made ‘subordinate ... to broader considerations of relevance judged by logical and common sense criteria of time and circumstances’ so as to ensure that ‘logically relevant sexual experiences between a complainant and an accused may be admitted’.38 The case was remitted to the trial judge to determine what the result was. The outcome of this revised understanding of section 41(3)(c), said Lord Steyn, was that ‘section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act’.39 Lord Hope expressly agreed with the result but he entered a caveat about the width of the effect of section 3. He noted that there was ‘no need to identify an ambiguity or absurdity’, but added that it remained ‘only a rule of interpretation’ and so ‘does not entitle the judges to act as legislators’.40 This meant that it would not be possible to ignore language that expressly or by necessary implication had a meaning contrary to what was required by the right in question. So he was unhappy to conclude that there was an implied general discretion to trial judges to allow questions necessary for a fair trial because ‘the entire structure of section 41 contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial’.41 Accordingly, it remained necessary for the judge to identify a step that was permitted by the section and construe that so as to allow the questioning that secured a fair trial: by implication, if that was not possible, the judge would have to apply the statute, perhaps leaving it then for the higher courts to grant a declaration of incompatibility (though also perhaps having to determine whether the trial should be stayed). The House of Lords and subsequently the Supreme Court of the UK have maintained this broad approach, though with some judges adding apparent caveats. The best-known example is Ghaidan v Godin-Mendoza.42 In a case decided shortly before the Human Rights Act 1998, Fitzpatrick v Sterling Housing Association Ltd,43 the House of Lords confirmed that provisions in the Rent Act 1977 that gave favourable treatment to the ‘spouse’ of the tenant

38 39 40 41 42 43

[2002] 1 AC 45 [45]. ibid at [45]. ibid at [108]. ibid at [108]–[109]. Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. Fitzpatrick v Sterling Housing Association Ltd [1999] UKHL 42, [1999] 3 WLR 1113.

The Case Law 407 or (pursuant to a 1988 amendment) someone living as the ‘wife or husband’ of the tenant in terms of succession to the tenancy after the death of the tenant could not include a same-sex partner.44 The argument for the surviving partner was that the modern understanding of ‘spouse’ included same-sex partners whose relationship was ‘not merely transient and which has all the indicia of a marriage save that the parties cannot have children’.45 Lord Slynn noted that ‘spouse’ meant someone who was legally a husband or wife, though he accepted there was force in the contrary argument, and the amendment covered those who were not legally husband and wife, and that any intention to cover same-sex relationships would have been spelled out by Parliament.46 So, having been sufficiently arguable to make it to the House of Lords, the argument of the surviving partner was dismissed. The same question was raised in the Ghaidan case, which was argued only four years later. The additional argument was that the conclusion in Fitzpatrick breached Article 14 of the ECHR and that this could be avoided by using the interpretive obligation of section 3 of the 1998 Act. The House of Lords concluded first that there was a breach of Article 14. As to whether that could be remedied, there was agreement that section 3 provided significant powers, and the majority held that it allowed same-sex couples to be covered by the Rent Act 1977: a reverse of the position reached without the interpretive obligation. Lord Steyn developed the points made in R v A (No 2) about the importance of following the legislative purpose of using interpretation to solve a problem of apparent incompatibility rather than declaring the problem and awaiting for amending legislation through the political process;47 and about the task of interpretation no longer turning solely on the statute being construed because of the need to take account of the purpose of the Human Rights Act 1998. He suggested that judges had acted with undue caution and misunderstood the 1998 Act: 40. … First, there is the constant refrain that a judicial reading down, or reading in, under section 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act. 41.

The second factor may be an excessive concentration on linguistic features of the particular statute. Nowhere in our legal system is a literalistic approach

44 The spouse became the statutory tenant. There was also an argument that the surviving partner was part of the ‘family’ of the tenant, who was given a lesser level of protection as an assured tenant (which might involve a different rent and lesser protection from eviction). This succeeded, though Lords Hutton and Hobhouse dissented, suggesting that such a construction required parliamentary action. 45 [1999] UKHL 42, [1999] 3 WLR 1113 [10]. 46 ibid at [13]. 47 He again used comments from the parliamentary debates about the government purpose being that 99% of cases could be resolved via the interpretive obligation: [2004] UKHL 30, [2004] 2 AC 557 [46].

38

39

408

Interpretive Obligation more inappropriate than when considering whether a breach of a Convention right may be removed by interpretation under section 3. Section 3 requires a broad approach concentrating, amongst other things, in a purposive way on the importance of the fundamental right involved.

40

41

42

The incorporation of the ‘countervailing will’ arising from the 1998 Act is the restatement of the point made in R v A (No 2) that the previous approach to interpretation of concentrating on the language being construed (even if in the context of the statute as a whole) had to give way to reading that language together with the obligation to secure rights if possible. In short, rather than Parliament seeking to amend each relevant piece of statutory language to be rights compliant, it has left it to the judges to do that as cases arise: and a failure to give effect to that legislative purpose—the ‘mischief and objective sought to be addressed, viz the need “to bring rights home”’ was how he phrased it48—will defeat the composite intention of Parliament that the vast majority of instances in which legislation on its standard reading is not compliant with human rights standards be solved in the domestic courts.49 Moreover, this required that the strength of section 3 be recognised, which he noted was modelled on the strong approach applicable to EU obligations.50 Lord Steyn noted that parliamentary sovereignty remained in relation to any result of this judicial discernment of the composite intention, because: ‘If Parliament disagrees with an interpretation by the courts under section 3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility’.51 Lord Rodger accepted that the meaning to be given to a statute was an amalgam of what the original Parliament had intended and the need for a rights-consistent understanding: 106. … Once the 1998 Act came into force, whenever, by virtue of section 3(1), a provision could be read in a way that was compatible with Convention rights, that was the meaning that parliament intended that it should bear. For all purposes, that meaning, and no other, is the ‘true’ meaning of the provision in our law.

43

He also accepted that there was a valid analogy with the interpretation of EU requirements, so that by using the language of ‘so far as possible’, ‘Parliament … 48

ibid at [46]. To give another example, if Parliament wished to reduce all minimum age limits at which permission is given to do things to, say, 15, it could produce a lengthy statute which expressly amends every statute with such a minimum age requirement; but it could also use a clause along the lines of ‘Wherever it can be done, every minimum age requirement in an enactment shall now be read as if the age given was reduced to 15’. That would defeat the purpose of every Parliament that had provided a higher minimum age in relation to any other situation: but it would be open to Parliament to do that because all other statutes would have to be read in a composite fashion. 50 [2004] UKHL 30, [2004] 2 AC 557 at [45]. Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135 is the EU case: see the discussion of the effect of the European Communities Act 1972 below. At [44], he suggested that there had been a rejection of the ‘reasonable interpretation’ model from New Zealand: see the discussion of the further New Zealand case law below. 51 [2004] UKHL 30, [2004] 2 AC 557 [43]. 49

The Case Law 409 was referring, at the least, to the broadest powers of interpreting legislation that the courts had exercised before 1998’.52 He also noted that the section was not just about interpreting a statute but about giving effect to it: this was not ‘cautious tautologous drafting’ but indicative of the two distinct obligations contained in the section.53 He gave as an example a local authority correctly reading a statute as requiring the provision of services to comply with a Convention right but of incorrectly making provision in a discriminatory fashion and so not giving effect to the legislation properly. This could, of course, be seen as a failure to interpret the obligation properly, since the duty under Article 14 is written into the other rights to require them to be accorded in a non-discriminatory fashion. Nevertheless, there are two obligations: another reading of the language is that the aim is to capture the exhortation in ECHR jurisprudence that rights be made practical and effective, such as by recognising implicit rights and making appropriate orders to compel action.54 Lord Rodger was keen to point out limitations on section 3 that went beyond Lord Steyn’s reminder that Parliament could always pass corrective legislation if it did not agree with the outcome. He noted that there was a judicial obligation to designate these limitations: they clearly existed, given the possibility of inconsistent legislation, as mentioned in the ‘unavoidable obligation’ to breach the Convention (protected from challenge by the wording of section 6(2)),55 and the express preservation of parliamentary powers to breach the ECHR.56 But as they were not spelled out the judiciary had to identify them.57 However, he accepted that the limitation on the use of section 3(1) was not the ‘linguistic form in which Parliament has chosen to express the obligation’ being challenged but the ‘entire substance of the provision, what it requires the public authority to do’ being contrary to the Convention. In such a situation, the provision had to be changed (a matter for Parliament): section 3(1) ‘does 52

ibid at [118]. ibid at [107]. 54 See the obligations founded on Articles 1 and 13 of the ECHR, discussed in Chapter 2. The Human Rights Act 1998 does not expressly incorporate Article 13, the government having argued that the 1998 Act amounted to compliance with Article 13. Hence ‘giving effect’ to Convention rights should be taken to have an impact. See Chapter 7, para 104. 55 [2004] UKHL 30, [2004] 2 AC 557, [108]–[109]. Note that Lord Rodger gives as an example a statute requiring that an application to a local authority be dismissed if no action is taken within 7 days. However, it might be possible to construe such a requirement as subject to an implied limitation ‘unless to do so would breach the ECHR’ (as was done in R (Hammond) v Secretary of State [2004] EWHC 2753 (Admin), [2005] 2 Prison LR 281, in which the Divisional Court determined that a statutory requirement to set the tariff part of a murder sentence without an oral hearing was subject to an implied discretion to hold an oral hearing if that was necessary to secure compliance with Article 6 ECHR: this part of the decision was not appealed when the matter proceeded to the House of Lords [2005] UKHL 59, [2006] 1 AC 653, [2006] 1 Prison LR 1). 56 He noted that there was a contrast with the constitutional protections of fundamental rights in various jurisdictions which made use of the Privy Council, which meant that there had to be a cautious approach to such jurisprudence: [2004] UKHL 30, [2004] 2 AC 557, [119]–[120]. 57 ibid at [104]. He noted that section 3 was an enactment of ‘the principle of legality as a rule of construction’, expressly agreeing with Lord Hoffmann in Simms: see para 108 below. 53

44

45

410

46

47

Interpretive Obligation

not allow the courts to change the substance of a provision completely’.58 However, it was possible to imply ‘words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights’ since that was performing the task given and was consistent ‘with the grain of the legislation’. Only the reading in of words ‘inconsistent with the scheme of the legislation or with its essential principles’ would be an impermissible amendment of legislation.59 Equally, it might be possible to ‘read down’ the effect to be given to a particular provision.60 Lord Nicholls also noted the ‘unusual and far-reaching character’61 of the interpretive obligation, arising from the fact that it did not require ambiguity before it operated. He endorsed the view that this required a departure from the ordinary approach of ‘seeking the intention reasonably to be attributed to Parliament in using the language in question’:62 the effect of section 3 might be to ‘require the court to depart from … the intention of the Parliament which enacted the legislation’.63 This turned on ‘the intention reasonably to be attributed to Parliament in enacting section 3’.64 His answer to this central question was that the semantics of the language in the statute being construed could not be key, since that would produce a lottery (dependent upon the particular words used):65 rather, the focus should be on the ‘constitutional boundary’ reflected in the ‘extended interpretative function’.66 He identified two features of this boundary: one was the need to respect anything that amounted to a ‘fundamental feature’ or ‘underlying thrust’ of the legislation being construed (or its grain, as Lord Rodger phrased it).67 The second was that there was no intention in section 3 that courts ‘make decisions for which they are not equipped’, by which he meant that if Convention compliance was a matter of choosing between alternatives ‘calling for legislative deliberation’, that was not for the courts.68 However, if the boundary was not passed, section 3 went further than allowing a restrictive or expansive reading of words, since if it was necessary to turn statutory language that was inconsistent with the ECHR into something that was compliant, the courts could, if possible, ‘read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant’ and ‘modify the meaning, and hence the effect, of primary and secondary legislation’.69 58

ibid at [110]. ibid at [121]. He added, at [122], that this did not turn on the number of words that had to be implied, which could be significant; rather it was a matter of whether it contradicted what was written or went beyond the scope of the legislation. 60 ibid at [124]. 61 ibid at [30]. 62 ibid at [30]. 63 ibid at [30]. 64 ibid at [30]. 65 ibid at [31]. 66 ibid at [33]. 67 ibid at [33]. 68 ibid at [33]. This is the point made by Thomas J in Quilter, discussed above. 69 [2004] UKHL 30, [2004] 2 AC 557 [32]. 59

The Case Law 411 Lords Nicholls, Steyn and Roger held that their accounts of the effect of section 3 made it possible to read the language in the Rent Act as applying to any stable, same-sex relationship. Baroness Hale did not engage in any discussion of section 3, simply noting that the revised reading of the Rent Act to cover a same-sex marriage-like relationship was ‘well within the bounds of what is possible’ (as the government had conceded).70 Lord Millett dissented in the result in Ghaidan: but it is worth noting that he accepted that section 3 permitted extensive interpretive action.71 Indeed, his statements of principle may be even broader than those of some of his colleagues, and he accepted that his dispute was not about the principles but their application:72

48

49

(i)

His starting point was that Lord Cooke’s comment in Kebilene that there was a ‘strong adjuration’ overlooked the fact that it was actually a command because it was mandatory and contained no residual discretion to act otherwise: so it went further than Lord Cooke had suggested.73 (ii) He then noted that section 3 would only have significance when the normal presumption that Parliament does not intend to breach international obligations was inadequate and so ‘it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions’.74 (iii) And he accepted that there was no need for ambiguity or absurdity. So if a statute was clear on ordinary principles of interpretation, ‘section 3 may require it to be given a different meaning … a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point’.75 These comments are consistent with the views of the majority, as were the limitations Lord Millett noted, namely: the fact that declarations of inconsistency might be given indicated that there would be instances where consistent interpretations were not possible,76 and it was not a supreme law

70

ibid at [144]. His acceptance of the width of the interpretive obligation is not surprising. In another setting, R v K [2001] UKHL 41, [2002] 1 AC 462, Lord Millett concurred that there was an implied mens rea in relation to an offence of indecent assault involving a girl under 16 (who could not consent, according to the statute) of lack of honest belief that the girl was 16 or over. This was by applying the presumption of mens rea in the absence of clear words. Lord Millett recorded his regret in the result because it meant that ‘we shall be failing to give effect to the intention of Parliament and will reduce section 14 of the Sexual Offences Act 1956 to incoherence’: but he was willing to apply a common law presumption to defeat parliamentary intent. 72 [2004] UKHL 30, [2004] 2 AC 557 [69]. 73 ibid at [59]. 74 ibid at [60]. 75 ibid at [67]. 76 ibid at [62]. 71

50

412

Interpretive Obligation

constitutional provision of the sort common in the Caribbean that allowed quasi-legislative adaptations to be made but was instead limited to interpretation.77 The message, he added, was that the attraction of the ‘abnormal construction’ technique that was permissible under section 3 had to be confined because it was ‘dangerously seductive’, given the temptation to secure a result that supported a good cause by overstepping what was legitimately interpretation.78 This meant that it was not possible to imply language that was ‘inconsistent with a fundamental feature of the legislative scheme; nor to repeal, delete, or contradict the language of the offending statute’.79 What this meant in practice might involve assessing matters of linguistics or statutory history: this reference to the potential impact of linguistics might be thought to represent a point of difference between Lord Millett and the others, but his illustration—black could not mean white—means that he was imagining an extreme scenario that would amount to a fundamental feature.80 51

52

It was on the application of the principles that Lord Millett differed, since he concluded that the essential feature of the Rent Act as amended (in light of the language used and the statutory history) was to favour people in stable mixed-sex relationships and thereby it excluded same-sex relationships.81 This required parliamentary action to amend it (even though, as Baroness Hale noted, the government conceded the contrary). The approach to section 3 set out in Ghaidan has become the orthodoxy. It was summarised and upheld in Sheldrake v DPP,82 in which Lord Bingham noted: 28.

77

The interpretative obligation of the courts under section 3 of the 1998 Act was the subject of illuminating discussion in Ghaidan v Godin-Mendoza [2004] 2 AC 557. The majority opinions of Lord Nicholls, Lord Steyn and Lord Rodger of Earlsferry in that case (with which Baroness Hale of Richmond agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Conventioncompliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the

ibid at [63]–[64]. See Lord Rodger at [120], who also made this point. ibid at [64]. This is similar to the warning given by Heydon J in the Australian setting, discussed below. 79 ibid at [68]. 80 So, he noted, ‘black’ could not mean ‘white’ (being the opposite of black) but might mean ‘black or white’ in the context, just as ‘cats’ might means ‘domestic pets’ and so include dogs: [70]–[72]. 81 This may reflect a view similar to the minority in Fitzpatrick, who could not accept that Parliament could have accepted that same-sex partners were part of a family in light of their view that this was too radical a change for judges to announce; this is similar to the reluctance of Thomas J to make a change in Quilter, discussed above, because the taking of action in relation to the discrimination he found was too controversial for the judicial arena. 82 Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264. 78

The Case Law 413 promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible …. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110–113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: ‘So far as it is possible to do so …’ While the House declined to try to formulate precise rules (para 50), it was thought that cases in which section 3 could not be used would in practice be fairly easy to identify.

A nine-judge Supreme Court has confirmed the extent of the interpretive obligation in R v Waya,83 which was concerned with the question of whether a confiscation order following a criminal conviction was a disproportionate interference with the right to property in Article 1 of Protocol 1 to the ECHR. This turned on the proper way of calculating a confiscation order relating to a loan obtained by deception and used to purchase a house that increased significantly in value: the Supreme Court (by a majority) determined an amount that was proportionate. In so doing, section 3 of the Human Rights Act 1998 was used to read down the Proceeds of Crime Act 2002. The extent of the obligation as summarised in Sheldrake was approved by the Court.84 The minority view was as to the result rather than the principle, just as it had been in Ghaidan (and also Fitzpatrick in pre-Human Rights Act days). The devolution case law is to the same effect, save for the need to find an interpretation within the competence of the legislature.85 For example, DS v Her Majesty’s Advocate,86 is the Scottish equivalent of R v A (No 2)87 but with an additional statutory feature that if the court allowed evidence of the complainant’s character or previous sexual conduct, the defendant’s previous convictions for sexual offences would also come into evidence unless that was not in the interests of justice. The Privy Council, upholding the High Court of Justiciary, held that the relevant legislation could be read and operated in a

83

R v Waya [2012] UKSC 51, [2012] 3 WLR 1188. [2012] UKSC 51, [2012] 3 WLR 1188 [14] (Lord Walker and Sir Anthony Hughes for the majority of seven); at [83], Lords Phillips and Reed endorsed the statements of principle, but they then dissented on how it was to be applied. 85 One aspect of this to note is that, as set out in Chapters 4 and 6, devolved legislation can be subject to pre-enactment approval by the Supreme Court. The view of the Court in such a situation cannot be binding for all purposes because the understanding of the law can move on pursuant to the living instrument approach described in Chapter 5. As such, legislation that was within competence when passed, and perhaps specifically endorsed by the Supreme Court preenactment, may become outside competence, such that a modified interpretive obligation has to be applied to it. 86 DS v Her Majesty’s Advocate [2007] UKPC D1, [2007] 24 BHRC 412. 87 [2002] 1 AC 45. 84

53

54

414

55

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manner that was compatible with the right to a fair trial and so the legislation was within competence. Lord Hope commented that the need for a narrow reading looked ‘awkward’88 but was explicable by the fact that the Scottish Parliament had various restrictions on its powers, including matters that were reserved to the UK Parliament, and so the language was to ensure that the Scottish Parliament did not outstep its bounds.89 This was to be done by adopting the techniques applicable to section 3 of the Human Rights Act.90 In Salvesen and Riddell & Anor v The Lord Advocate (Scotland),91 Lord Hope recorded that the interpretive obligation is a ‘strong one’ limited by the need to ‘go with the grain of the legislation’ and not to go ‘against the underlying thrust’ of what it provides for, thereby avoiding trespassing on the province of the legislature. It is illuminating to note the situations in which the courts have felt unable to make use of the ‘primary remedial measure’ and had to resort to a declaration of incompatibility. In an early example, In re S (Minors) (Care Order: Implementation of Care Plan),92 the question was whether the courts could retain control over the implementation of the plans on the basis of which children were taken into local authority care. That was found to be necessary to secure compliance with Articles 6 and 8 ECHR, but contrary to the fundamental feature of the Children Act 1989, which left the arrangements for after the making of a care order to the local authority rather than the courts. Lord Nicholls noted that section 3 contained ‘forthright, uncompromising language’ but that it was ‘not unlimited’.93 The ‘outer limit’ of which courts had to be ‘ever mindful’ was that ‘Section 3 is concerned with interpretation’,94 and the power to amend primary legislation was retained to Parliament, as part of parliamentary sovereignty. This was the ‘constitutional boundary’,95 he noted, repeating a phrase he used in Ghaidan. But delineating this boundary is not always easy, he suggested: and the judges had created the problem for themselves by becoming more willing to move away from the simpler days of applying a strictly literal interpretation: 40. … The area of real difficulty lies in identifying the limits of interpretation in a particular case. This is not a novel problem. If anything, the problem is more acute today than in past times. Nowadays courts are more ‘liberal’ in the interpretation of all manner of documents. The greater the latitude with which courts construe documents, the less readily defined is the boundary. What one person regards as sensible, if robust, interpretation, another regards as impermissibly

88

[2007] UKPC D1, [2007] 24 BHRC 412 [22]. ibid at [23]. 90 ibid at [24]. 91 Salvesen and Riddell & Anor v The Lord Advocate (Scotland) [2013] UKSC 22 [46], citing DS and Ghaidan. 92 In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291. 93 ibid at [37]–[38]. 94 ibid at [38]–[39] 95 ibid at [39]. 89

The Case Law 415 creative. For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.

This guidance as to the limits, as in Ghaidan, identifies two features, namely that it is not permissible to overturn a fundamental feature of the legislation being construed and courts should accept that they might not be able to evaluate a change that will have significant consequences, though they are run together. The particular problem found was that there was no provision of the Children Act 1989 that could be interpreted in a way that allowed the ongoing supervision of the courts (which meant that the Court of Appeal had fallen into error by approving ongoing court involvement).96 This picks up the limitation noted by Lord Hope in R v A (No 2) as to the need to find a provision to interpret. Similarly, in R (Anderson) v Secretary of State for the Home Department,97 it was decided that a statute that gave control of the release of mandatory life sentence prisoners to the Home Secretary could not be construed so as to require the politician to follow recommendations of the Parole Board, even though that was necessary to secure compliance with the Convention. Lord Bingham noted that:

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To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act.98

This left only the option of a declaration of incompatibility. Another case to note is R (Wilkinson) v Inland Revenue Commissioners,99 in which the House of Lords was unable to find that a bereavement allowance for widows could be made available to widowers as well (to avoid discrimination). The argument that it was possible to read the statutory language to refer to widowers was raised only once the matter made it to the House of Lords, it having been conceded in the courts below that there was no prospect of reading the language so as to avoid discrimination,100 and it relied largely on provisions in the Interpretation Act 1978 that feminine words include the masculine unless the contrary intention appears. In that context, the role of section 3 of the 1998 Act was essentially to provide a counterweight to the contrary intention that appeared from various parts of the taxation legislation. In short, 96

ibid at [43]. R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. 98 ibid at [30]. 99 R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30, [2005] 1 WLR 1718. 100 ibid at [14] and [19]. 97

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there was the starting point of non-discrimination in the Interpretation Act 1978, contrary indications in the language being construed, and the human rights-supporting interpretive obligation was used to seek to rebut the contrary indications. As Lord Hoffmann noted, giving the leading judgment dismissing the argument, this amounted to attempted ‘playing games with words’ by impermissibly seeking to use section 3 to require ‘acontextual meanings’.101 But Lord Hoffmann accepted that section 3 provided a ‘strong presumption’ that there was no intention to breach Convention rights, just as the common law concept of legality required statutes to be interpreted against the presumption that fundamental rights recognised by the common law would not be breached (which did not require any ambiguity).102 The process, nevertheless, was one of interpretation:103 ‘ie, the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute’.104 The context of this reference to what ‘Parliament would reasonably be understood to have meant’ is the need to remain within the scope of interpretation. In other words, the meaning has to remain one that can arise out of the language used in light of the presumption of compliance with rights. This does not restrict the courts to reasonably possible interpretations judged by the language of the statute being interpreted alone: rather, the test is what is within the bounds of interpretation in light of the composite of the language of the statute being construed and the requirement to seek to give effect to Convention rights. Lord Hoffmann noted that the process of ascertaining the ‘intention of Parliament’105 ‘means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights’. This meant that Ghaidan was correct because it was possible to read the relevant statutory language as ‘referring to, or qualified by, some general concept implied rather than expressly mentioned in the language used by Parliament’.106 This was so even though the parliamentarians who enacted the relevant language would have been surprised to find that it covered same-sex relationships, such that it was contrary to the intention of that Parliament. But that was not what courts had to discern: Lord Hoffmann’s view is therefore consistent with the entreaties in the other cases, including by Lord Steyn, that it was necessary to give full weight to the purpose of the Parliament enacting the 1998 Act to produce the meaning for the particular words concerned. A case where the reasoning for not using the interpretive obligation is more difficult to accept is Bellinger v Bellinger.107 The question was whether a 101 102 103 104 105 106 107

ibid at [17]. ibid at [17]. ibid at [17]. ibid at [17]. ibid at [18]. ibid at [18]. Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.

The Case Law 417 person born male who had gone through gender reassignment surgery and was now female could be declared as legally married to her male partner. A declaration was sought as to the validity of such a marriage, which turned on the application of section 11(c) of the Matrimonial Causes Act 1973. This indicates that a marriage is void if the parties are not ‘male and female’. As the marriage in question pre-dated the introduction of the Human Rights Act 1998, which had been held not to be retrospective, section 3 could not be used in relation to that marriage. However, it was considered by the majority of the Lords (on the practical ground that it was a current question as well): the holding was that biological gender at birth was controlling, even though this produced a breach of the Convention rights,108 and that it could not be saved by interpretation (so that a declaration of incompatibility should be granted). Lord Hope came close to accepting that the interpretive tool was available to allow the section to refer to gender at the time of marriage. He noted: 68.

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… If the only obstacle was that the parties’ sex at the time when they were born had been assumed wrongly to be immutable, it could be overcome by disregarding the niceties of language and finding a compatible construction by reading these words in.

However, he concluded that the surgery for Mrs Bellinger had not made her female because ‘what is provided is no more than an imitation of the more obvious parts’ of female anatomy;109 as there had not been a complete change of sex, it was not possible to view her as female.110 He felt that the express reference in the statute to the gender of the parties meant that it was impossible to hold to the contrary. Similarly, Lord Hobhouse decided that it was not possible to use section 3 because that was not ‘an exercise in interpretation however robust’ but ‘a legislative exercise of amendment making a legislative choice as to what precise amendment was appropriate’.111 So even though all the judges referred to Mrs Bellinger, thereby accepting that from a social perspective she was female, they held that she was to be considered male for the purposes of her purported marriage. The obvious concern is why it was not held that the composite intention of Parliament was to avoid the problematic conclusion by allowing the judges to declare that the social concept of gender was the meaning to attach (which would also have avoided Lord Hope’s somewhat bemusing concentration on the functional aspect of Mrs Bellinger’s surgery). As it happens, the House did read words into section 11(c) of the Matrimonial Causes Act 1973, namely that the reference to male and female was ‘at birth’, rather than the words ‘at the time of the marriage’, which would have resolved the problem identified.

108 In light of the ECtHR judgment of Goodwin v UK (2002) 35 EHRR 447, relating to Articles 8 and 12 of the ECHR. 109 [2003] UKHL 21, [2003] 2 AC 467, [57]. 110 ibid at [68]. 111 ibid at [78].

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However, nothing in Bellinger suggests a different test for section 3 of the Human Rights Act 1998 than in the other cases. Indeed, Lord Hope had an additional—but apparently secondary—point, namely that ‘problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament’.112 Similarly, Lord Hobhouse noted, as quoted above, that there was a legislative choice involved. This was, of course, only so by reason of the failure to use the interpretation suggested, because the question of allowing same-sex marriage, which is what both mentioned as being the choice involved, only arose by reason of their decision that Mrs Bellinger was female except in relation to her ability to form a longstanding relationship recognised by the state. Lord Nicholls, gave the main judgment in the case but did not mention section 3 at all: however, he did focus on the various social issues that arose in the context of gender reassignment and parties to marriage, which he described as ‘deep waters … part of a wider problem which should be considered as a whole and not dealt with in a piecemeal fashion …’ and described as involving ‘a fundamental change in traditional concept of marriage’ (this latter point on the basis that it involved same-sex relationships). In short, perhaps the best understanding of Bellinger is that, as Thomas J decided in the New Zealand case of Quilter, and Lord Nicholls decided in Ghaidan, it is not possible under the interpretive obligation to deal with matters of policy that should be left to Parliament, and it was felt by the judges that the issues in the case were of such a nature. To summarise, the judges in the UK have accepted that there is a strong interpretive obligation, and have identified that there is a difference between interpretation and legislative action. Key to understanding how far interpretation can go is (i) the understanding that the overall parliamentary purpose has to be discerned, which arises from a combination of the statute being construed and the direction to comply with human rights standards if possible, which may involve straining the language of the statute being construed; and (ii) the limitation that judges are not interpreting if they are making choices that can only be legislative. It is suggested that a useful distinction is that between the purpose of the underlying statute and its mechanics: the former has to be respected, but the latter can be modified unless that requires a legislative choice.113 So the identified purpose of the legislation in Ghaidan was to secure benefits for long-established relationships: that had previously been done in a way that was discriminatory against same-sex relationships, but that could be modified

112

ibid at [79]. This may often be the case in relation to situations where there is a significant margin of appreciation (as, for example, in relation to voting by prisoners, where the finding that the UK’s position that no prisoners can vote is contrary to the ECHR offers no assistance as to what would be within its margin of appreciation: that remains a legislative choice rather than one that could be secured through interpretation: see, for example, R (Chester) v Secretary of State for Justice and Wakefield Metropolitan District Council [2010] EWCA Civ 1439, [2011] 1 WLR 1436; the point was not re-argued when the case went to the Supreme Court [2013] UKSC 63, [2014] AC 271). 113

The Case Law 419 as it involved a yes-no choice only as to how to support the purpose in a non-discriminatory fashion. In In re S, the statutory purpose was to place the implementation of a care plan in the hands of the local authority, such that retaining court control was not a change in mechanics but contrary to the purpose; in Anderson the purpose of the legislation was to give the Home Secretary the final say, which could not be transferred to the courts; and in Wilkinson, the purpose was to offer support to widows, no doubt because of the likely scenario that widows would have less ability to be self-supporting in the context. The dissent by Lord Millett in Ghaidan fits this approach because he saw the purpose as being to secure benefits for long-term heterosexual relationships only, which meant that the change supported by the majority went against that purpose and so was impermissible: but that was because he identified a different purpose, not because he believed the interpretive power was lesser.

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C. Later New Zealand Case Law In the development of the UK jurisprudence, there were suggestions that section 3 of the 1998 Act was stronger than section 6 of the NZBORA. Lord Cooke in Kebilene noted that the UK language ‘conveys … a rather more powerful message’;114 and Lord Steyn in R v A (No 2) suggested that the draftsman of the UK language had rejected the ‘slightly weaker model’ from New Zealand115 and in Ghaidan expressed the view that the choice of the EU-based ‘so far as is possible’ language was part of a rejection of the ‘reasonable interpretation model from New Zealand.116 In the leading case, R v Hansen,117 the Supreme Court rejected the idea that the language of the New Zealand statute is any weaker, but maintained the view that it allows only a reasonable interpretation to avoid stepping over the line to legislative action. Elias CJ was ‘unable to accept that there is any material difference between the New Zealand and United Kingdom models’;118 the point made by the Court was summarised by Anderson J, who noted that he could not differentiate between the ‘relative potency’ of the two provisions: ‘[278] ... In the New Zealand statute “can” is used as an ancillary verb expressing a possibility; and “shall” and “must” are equally mandatory’.119

114

[2000] 2 AC 326, 374. [2001] 2 AC 45 at [44]. 116 [2004] 2 AC 557 at [44]–[45]: see below for a discussion of the EU model. 117 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. 118 ibid at [13]. 119 See also McGrath J, ibid at [244]: ‘“Possible” and “can” cannot be linguistically distinguished by the context or otherwise in the meaning they convey’; Blanchard J, ibid at [158] fn 192 indicated: ‘Suggestions that there is some material difference, if only of emphasis, between “can” and “possible” strike me as strained and unpersuasive’. 115

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There were also comments accepting the need for a composite interpretation of the language being construed and the need to support the rights set out in NZBORA. Blanchard J said that courts had to:120 give effect to what appears to be the overall Parliamentary intention. This intention must be taken to be a compound one, involving the specific intention to be discerned from the provision in issue read in light of the general overriding directions in ss 4–6 [of the New Zealand Bill of Rights Act].

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Similarly, McGrath J noted that the court might be required to provide a meaning other than the natural one, but rather one that was ‘sympathetic to protected rights’.121 Elias CJ was also happy to endorse the view that linguistically strained interpretations were allowed to protect rights.122 Nevertheless, the Supreme Court view was that reasonableness was part of the interpretive obligation. Blanchard J summarised the position, indicating that section 6 of the New Zealand Bill of Rights Act ‘can only dictate the displacement of what appears to be the natural meaning of a provision in favour of another meaning that is genuinely open in light of both its text and its purpose’.123 McGrath J determined that the outcome had to be ‘a reasonably available meaning’ in light of the purpose of the underlying statute;124 Tipping J agreed that a ‘reasonably possible’ or ‘fairly open and tenable’ meaning was required, in contrast to the UK judiciary accepting that the possibility did not have to be reasonable.125 Anderson J’s view was that section 6 made it ‘the duty of the courts ... to construe, not to reconstruct’, with the result that ‘a meaning dictated by section 6 … is what the courts must find if it is reasonably possible to do so’.126 Elias CJ took a different approach to the rest of the court in terms of how the mechanics operated (in terms of how the general limiting language operated): this is discussed in Chapter 5. In relation to section 6, she accepted that it required a ‘tenable’ meaning of the words being construed.127 The Court was unanimous in its view that it was not permissible to read ‘until the contrary is proved’ in a criminal statute as imposing an evidential burden on the defendant: this is discussed further below.

120

ibid at [61]. ibid at [248]–[251]; at [252] he noted that ‘s 6 makes New Zealand’s commitment to human rights part of the concept of purposive interpretation’ together with the purpose of the statute being construed. 122 ibid at [13]. 123 ibid at [61]. 124 ibid at [252]. 125 ibid at [149]–[150]. 126 ibid at [289]–[290]. 127 ibid at [5]. 121

The Case Law 421 D. Australian Comparative Material What the judges of the New Zealand Supreme Court were keen to point out was the need to remain consistent with the purpose of the underlying statute. This is expressly mentioned in the Australasian statutes. The Explanatory Memorandum to the Bill that became the Victorian Charter of Human Rights and Responsibilities Act noted that the object of clause 32(1) was:128

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... to ensure that courts and tribunals interpret legislation to give effect to human rights. The reference to statutory purpose is to ensure that in doing so courts do not strain the interpretation of legislation so as to displace Parliament’s intended purpose or interpret legislation in a manner which avoids achieving the object of the legislation.

In short, the purpose of the legislation being construed has to remain in place. Interestingly, it does not say that the interpretation cannot be a strained one, rather that it cannot be strained in a way that displaces the purpose of the legislation. The idea of a Charter and its contents was subject to a review by an ad hoc committee, the Human Rights Consultation Committee, as part of the process of deciding whether the Charter should be enacted. In its report, ‘Rights, Responsibilities and Respect’,129 it noted of clause 32(1) that it was consistent with the Ghaidan approach, including the limitation of not going against the grain of the legislation being construed. Similarly, the legislature in the ACT was informed, when the language of section 30 of the Human Rights Act 2004 (ACT) was changed by the Human Rights Amendment Act 2008 (ACT),130 that the new language:131

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... clarifies the interaction between the interpretive rule and the purposive rule such that as far as it is possible a human rights consistent interpretation is to be taken to all provisions in Territory laws. This means that unless the law is intended to operate in a way that is inconsistent with the right in question, the interpretation that is most consistent with human rights must prevail.

The document continued with the indication that this was consistent with the Victorian Charter and that it ‘draws on jurisprudence from the United Kingdom such as the case of Ghaidan v Godin-Mendoza …’ This seems to

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Explanatory Memorandum, page 23. Melbourne, Ministry of Justice, November 2005. 130 In the Explanatory Notes to what became the Human Rights Act 2004, the legislators in the ACT were informed about the original formulation that it was ‘a new rule of statutory construction’ which had as its purpose ‘to recognise, to the maximum extent possible, the human rights set out in Part 3 in all other Territory statutes and statutory instruments’. It was expressly subject to the general purposive interpretation rule, as it is in its revised form, which meant that ‘Where there is a choice between two interpretations and both interpretations best achieve the purpose of the statute or statutory instrument, the interpretation that is consistent with human rights must prevail’ but also that if the rights-consistent interpretation ‘would have the affect of defeating the obvious purpose of the statute or statutory instrument the interpretation that is consistent with human rights will not prevail’. 131 Explanatory Memorandum to the Human Rights Amendment Bill 2007. 129

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confirm the view that there is nothing inconsistent with the UK approach, which has included the limitation that the purpose of the underlying statute must be respected: certainly the drafters of the Australasian language were aware of the UK jurisprudence, and legislators were informed that a similar approach was intended. The High Court of Australia, however, seems to have taken a different view. In Momcilovic v R,132 in which views were expressed on many aspects of the Victorian Charter,133 French CJ did not see the interpretive obligation as particularly wide ranging, because it was essentially the principle of legality but it made use of the rights set out in the statute rather than the rights recognised at common law.134 As there was ‘nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process’135 and there was the need to be consistent with the purpose of the statute being construed, it simply operated on the ‘constructional choices’ arising from the inevitable ‘indeterminacy’ of statutory language, though not requiring ambiguity.136 For Crennan and Kiefel JJ, the effect of section 32(1) was ‘to ensure that Charter rights are kept in mind when a statute is construed’, which in any event would include human rights standards, such that it was not strictly necessary;137 it did not justify a ‘strained’ interpretation.138 Bell J accepted that the ordinary meaning might be displaced, such that if such a meaning was inconsistent with the substance of a right, the provision ‘may yield different, human rights compatible, meanings in consequence of s 32(1)’, but she noted that there was limited scope for change in light of the need to give effect to the purpose of the original legislation and the fact that ‘The task imposed by s 32(1) is one of interpretation and not of legislation’ and so could not be wide ranging.139 The only judge who suggested that the interpretive obligation was a wide one was Heydon J, but this was in the context of his suggestion that the Charter gave the judges too much legislative power and was therefore an unconstitutional breach of the separation of powers doctrine in the Australian Constitution. There were two aspects to his concern. The first was that judges had to decide the justified limitations on rights in light of the general limiting language of the Charter and then seek the interpretation to support this: but

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Momcilovic v R [2011] HCA 34. All were strictly obiter because the central holding was that the statute in question did not have a reverse burden of proof that prima facie conflicted with the presumption of innocence; and the whole process before the Court seems to have involved the raising of questions from the bench to deal with points on which the parties did not take an adversarial position: see Heydon J [2011] HCA 34 [379]. 134 ibid at [51]; this is discussed further below. He also noted that the rights in the Charter were largely reflective of the common law in any event. 135 ibid at [50]. 136 ibid at [50]. 137 ibid at [565]. 138 ibid at [566]. 139 ibid at [684]. 133

The Case Law 423 the judicial function was ‘to resolve controversies about statutory meaning’,140 such that any power of amendment was for the legislature and could not be delegated to judges.141 This in turn meant that the whole Charter was an invalid attempt to confer non-judicial powers on judges.142 His second concern was that, even if the general limiting clause did not exist, section 32(1) impermissibly required judges to ascertain the purpose of the legislation being construed (so as to ensure that purpose was protected), whereas they should be limited to construing the meaning and scope of its language.143 This also gave judges too much freedom to consider their own views rather than the views of the legislature: Judges, having found a mischief, or redefined it to suit their own perceptions, can decide that the words used by the legislature have not caused it to be remedied well, can formulate their own view of what a satisfactory remedy would be, and can decide that the statutory purpose is to supply that remedy.144

Heydon J also suggested that the language was intended to go further than the principle of legality, since otherwise it would have no point; and he pointed to the background material that suggested the Ghaidan approach was what the legislators had in mind, and also to the fact that it could be taken into account under section 32(2), which allows reference to overseas material.145 This reinforced his view that section 32(1) was invalid because, as he said in florid language, it would: 453.

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… ‘ratchet-up’ s 32(1) by reference to the most extreme foreign decisions.146 The odour of human rights sanctity is sweet and addictive. It is a comforting drug stronger than poppy or mandragora or all the drowsy syrups of the world. But the effect can only be maintained over time by increasing the strength of the dose. In human rights circles there are no enemies on the left, so to speak. Because s 32(2) only permits consideration of foreign decisions, but does not compel it, the Victorian courts are empowered to consider those decisions they favour and decide not to consider those they dislike. ‘To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.’147 But that will not stop it being done, relentlessly and irreversibly—a factor which reinforces the invalidity of s 32(1).

ibid at [398]. ibid at [398]–[400]. 142 ibid at [401]–[406]. He accepted that it might be difficult to assess what was problematic and what was not. 143 ibid at [450]. 144 ibid at [450]; he cited repeatedly Fuller’s famous article, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616. 145 [2011] HCA 34, [450]. 146 For this he cited, at fn 682 of the judgment, J Allan and G Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’ (2006) 43 San Diego Law Review 1, 54–57. 147 At fn 683 of the judgment, he cited Roper v Simmons 543 US 551 at 627 (2005) per Scalia J dissenting. 141

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He was in a minority of one on the point that interpretation did not include discerning the purpose of a statute. For example, Crennan and Kiefel JJ held that the need to locate the purpose of the legislation being construed amounted to the normal judicial function of construing a provision consistent with a statute’s language and purpose.148 However, as was made clear by Gummow J (with whom Hayne J agreed on this point), the need to avoid impermissible judicial involvement in the legislative function required a narrow construction of section 32(1): and so the reference to ascertaining the statutory purpose was simply the location of the legislative intention, as revealed by the scope and subject of the statute.149 In short, Heydon J’s minority position was because the other judges took a much more restrictive view of what section 32(1) achieved. In the result, the position adopted in Australia is that the judiciary have imposed limitations on the interpretive obligation, essentially on the basis that securing the purpose of the underlying legislation means that the function of interpretation cannot go particularly far, and that nothing in the language of the statutory obligation suggests an intention to go much beyond the bounds of what was commonly thought to arise from the existing common law approach.

E. Irish Material 87

The Irish statute contains the significant indication that the interpretive obligation is subject to the rules of construction arising in the state: these include the literal interpretation rule set out in the Interpretation Act 2005 (Ire), which has had the effect of cancelling out any prospect that section 2 of the European Convention on Human Rights Act 2003 would have a significant effect. In Donegan v Dublin City Council & anor and Dublin City Council v Gallagher,150 the question was the effect of the 2003 Act on the duty under of section 62(3) of the Housing Act 1966 (Ire) to issue a warrant in relation to a property occupied by someone who was not the tenant (which could include the situation after a notice to quit a tenancy had been given). It was questioned whether this offered adequate protection for family life under Article 8 ECHR. The Irish Supreme Court decided that Article 8 was breached because the courts could not examine any matters of fact, including whether the notice to quit had been proper. But they could not imply such a process. McKechnie J noted that the interpretive obligation in section 2 of the 2003 Act was subject to the statutory and common law rules of interpretation151 and so limited in its effect to requiring a preference for a rights-compliant outcome when the 148

[2011] HCA 34 [447] and [453]. ibid at [169]–[171]. 150 Donegan v Dublin City Council & anor and Dublin City Council v Gallagher [2012] IESC 18. 151 ibid at [103]. 149

The Case Law 425 choice was between ‘reasonably open’ interpretations.152 He concluded that it would not have been possible for the courts to implement the necessary changes that would comply with Article 8 under the rubric of interpretation.153 The appropriate remedy was a declaration of the inconsistency of the legislative regime with fundamental rights. In McD v L and Another,154 the Supreme Court had made some comments about the 2003 Act and its limitations. These were obiter because the holding in the case was that Article 8 ECHR did not support the contentions made and could not in any event be used in the statutory context to support an entity not recognised in Irish law (a ‘de facto’ family). Murray CJ noted that section 2 was a ‘rather fluid and imprecise mode of determining the manner in which the Convention should be used to interpret national law’. By this he meant that the rights set out were ‘open textured’ and so interpreted by the ECtHR by reference to ‘sources outside the text of the Convention both legal and political in order to decide the meaning and effect of the text of the Convention’, and also that the living instrument approach to the ECHR meant that what had been found compliant at one time could become uncompliant over time. He foresaw that this raised significant questions as to how to ascertain the intention of the Oireachtas in supporting Convention compliance in light of the fact that what this meant in a particular context might change over time. The Irish legislature seems to have thought that there would indeed be a new approach to interpretation. The Explanatory Memorandum to the European Convention on Human Rights Bill 2001155 noted that the ECHR was ‘law for Ireland, but not actually law in Ireland’ because it was international in nature and there is a clear dualist approach to international law.156 But it also suggested that this would be changed fundamentally and in the same way as had occurred in the UK. Part of the reason for this was that the Good Friday Agreement relating to the relationship between the Republic of Ireland and Northern Ireland required equivalence of protection for fundamental rights.157 It was stated that in light of this requirement ‘the Government decided to adopt a similar interpretative type approach and legislate so as to give further effect to the Convention in the State’.158 Indeed, it was suggested that the Irish position would be better because it included some additional rights, including the right to an effective remedy in Article 13. However, the use of the literal

152

ibid at [105]. ibid at [106]. 154 McD v L and Another [2009] IESC 81. 155 Available at www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2001/2601/ default.htm. 156 See Article 15 of the Constitution of Ireland. 157 See Chapter 4. 158 Explanatory memorandum, page 3. The specific comment on the interpretive obligation in what would become section 2 mentioned that interpretations were to be adopted—applying both prospectively and retrospectively—that ‘so far as possible’ met obligations under the Convention. There was no indication that this would be restricted by such matters as the literal interpretation rule applicable to interpretation. 153

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interpretation rule in Ireland means that reference to parliamentary materials is rarely permitted: see Crilly v T & J Farrington Ltd.159 In any event, by making section 2 of the 2003 Act subject to the rules of interpretation (restated in the Interpretation Act 2005 to codify the existing judicial preference for a literal interpretation of statutes), the statute has a self-limiting compromise to the judicial ability to secure far-reaching interpretations.

F. Case Study—Reverse Burdens of Proof 90

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The important cases of Hansen from New Zealand and Momcilovic from Australia were reverse burden of proof cases; that has featured in important UK, Canadian and Hong Kong cases as well. As it has featured in many jurisdictions, it usefully illustrates how different the approach in New Zealand and Australia is to the judicial ability to provide a remedy when a breach of human rights is found. In short, the judges in many jurisdictions have been able to determine that there is a breach of the presumption of innocence, but in New Zealand and Australia the judges have declared that they cannot fix the problem, whereas the judges in other jurisdictions have determined that the solution is in their interpretive power. As a matter of common law, the presumption of innocence famously was rediscovered by the House of Lords in Woolmington v Director of Public Prosecutions160 as a ‘golden thread’ of the common law: but the House noted that it could be subject to statutory exceptions, and legislators have been keen to provide exceptions, commonly so in relation to drugs offences. Typically, this would be achieved by providing that a person was deemed to be in possession of drugs in a particular situation, or to have them for the purposes of dealing as opposed to personal use, ‘until the contrary is proved’: this would be construed to impose a legal burden on the defendant as a matter of normal interpretation of language. The presumption of innocence has been recognised in the international human rights treaties (Article 14(2) of the ICCPR and Article 6(2) of the ECHR, for example) and has made it into the various bills of rights, both constitutional and statutory. In this context, the questions arise as to whether it is infringed if the defendant has to prove that he or she is not guilty; in the supreme law context, this raises the question of disapplying the reverse

159 Crilly v T & J Farrington Ltd [2001] 3 IR 251 (SC). The approach is more restrictive than the UK’s approach of requiring ambiguity, under Pepper v Hart, discussed above. 160 Woolmington v Director of Public Prosecutions [1935] AC 462 (HL). That it was necessary to go to the House of Lords to establish this proposition is noteworthy: the trial judge had directed the jury that the defendant had to prove his ‘defence’ of accident, and this was supported by authority to the effect that a death had to be explained, such that the Court of Criminal Appeal had dismissed the appeal. The House of Lords accepted that there was such authority, but it upheld contrary jurisprudence.

The Case Law 427 burden, and in the interpretive statute context it raises the question of whether the breach can be avoided by applying the interpretive obligation. Starting with the Canadian Charter of Rights and Freedoms 1982, R v Oakes161 involved a defendant who admitted having eight vials, each of which contained 1 g of cannabis oil. Under the Narcotic Control Act 1970, a sentence of up to seven years’ imprisonment could be imposed for drug possession and life for drug trafficking; further, a charge of possession proceeded as a charge for trafficking and proof of possession led to a conviction for trafficking ‘if the accused fails to establish that he was not in possession of the narcotic for the purpose of trafficking’. The Supreme Court of Canada determined that this violated the presumption of innocence in section 11(d) of the Canadian Charter and was not an example of ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ for the purposes of section 1. This required a rational connection to the relevant objective, as limited an impairment of the right as possible, and a proportional impact on the right. The Court accepted that it was appropriate to take action against drug trafficking, but there was no rational connection to that objective because of the width of the provisions. The reverse burden was therefore unconstitutional and disapplied (by reason of section 52 of the Constitution Act 1982): the court did, as a precursor, hold that the language could not be interpreted as involving an evidential burden only. This seems fairly clearly to arise from the need to establish a contrary fact, though the court left open the possibility that such might be the conclusion in relation to other forms of words.162 In contrast, the New Zealand Court of Appeal in R v Phillips,163 which concerned a provision in the Misuse of Drugs Act 1975 that possession of more than 28 g of cannabis meant that there was deemed possession for the purpose of dealing ‘until the contrary is proved’. Since Mr Phillips had 2.2 kg of cannabis plant, the prosecution would have been able to demonstrate that was his purpose in any event, that being the only inference possible, but the question raised was the validity of the presumption of law. The suggestion made was that the contrary is proved by providing sufficient evidence to reveal a reasonable doubt. Cooke P rejected this submission: it was a ‘strained and unnatural interpretation’ of ‘proved’ that was not justified under section 6 of the Bill of Rights Act 1990. The court did not deal with the question of whether there was a breach of the presumption. Rather it simply concluded that there was no prospect of any relief in light of the limited power of interpretation. The Privy Council did make a finding that a reverse burden breached the presumption of innocence in the Hong Kong Bill of Rights Ordinance 1991

161

R v Oakes [1986] 1 SCR 103. ibid at [22]–[24]. See also the discussion at [17]–[20] of the different types of presumptions and how they might be rebutted if rebuttable. 163 R v Phillips [1991] 3 NZLR 175. 162

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in Attorney-General of Hong Kong v Lee Kwong-kut.164 The offence involved was handling stolen cash. The prosecution only had to prove a suspicion that the cash was stolen; the defendant then had to ‘give an account, to the satisfaction of the magistrate, how he came by the same’ (which clearly required an innocent explanation). The holding was that this offence was impliedly repealed, which was the effect of section 3 of the Ordinance, namely that a later inconsistent statute repealed an earlier one. However, there was another case argued at the same time, involving a defendant charged with laundering the proceeds of drug trafficking, which involved a defence of not knowing or suspecting that the funds involved were the proceeds of trafficking. Importantly, the offence was made out only if the person involved was known or suspected to be a trafficker: so the defence was essentially that this particular transaction was not known or suspected to be problematic despite involving someone known or suspected to be a trafficker. The requirement that the defendant meet a burden of proof in this situation was held not to breach the presumption of innocence because it was reasonable to require the defendant to establish that he or she had taken steps to be satisfied as to the legitimacy of the particular transaction. The UK courts have followed the Privy Council approach of determining whether a reverse burden of proof is disproportionate; but they have then gone further than the New Zealand courts by being willing to use the interpretive obligation to construe the statute as involving an evidential burden only rather than a legal one. This started with Kebilene,165 noted briefly above, which related to a reverse burden of proof under the UK Prevention of Terrorism (Temporary Provisions) Act 1989: possession of an item in circumstances leading to a reasonable suspicion that it was for terrorist purposes was subject to a defence of proving that it was not in the defendant’s possession for such purposes; and there was a presumption of possession of an item on premises the defendant controlled or habitually visited unless it was proved that knowledge or control was absent. Lord Cooke noted that the burden of proof on the defendant could be interpreted as a burden of providing sufficient evidence to the contrary to meet an evidential burden only;166 this was based on his view that the obligation under section 3 was stronger than that arising under the NZBORA. This view was obiter, given that the Human Rights Act 1998 was not in effect at the time: it was followed by another appeal case, R v Lambert,167 which was decided after the Act was in force but primarily decided that it was not to be applied to a trial that occurred before it came into effect. However, the comments on the interpretive obligation, albeit strictly obiter, set the standard. Mr Lambert had 2 kg of cocaine, which clearly raises an inference of

164 165 166 167

Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951 (PC). [2000] 2 AC 326. ibid at 373F–374A. R v Lambert [2002] 2 AC 545.

The Case Law 429 supply. But section 28(3) of the Misuse of Drugs Act 1971 provided that if the prosecution showed that the substance in question was a controlled drug, the defendant had ‘to prove that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug’: so he had to show an absence of the fault element of knowledge. Lord Slynn accepted that there were strong arguments that this was disproportionate and so in breach of the presumption of innocence.168 Lord Steyn, who dissented on the main conclusion and found that the 1998 Act was engaged in relation to appeals, held that there was a disproportionate breach of the presumption of innocence;169 Lord Hope supported this,170 as did Lord Clyde,171 though Lord Hutton disagreed.172 For the majority, therefore, the next question was whether the need to respect the presumption of innocence allowed them to read the statute not to impose a problematic legal burden on the defendant. Lord Slynn had ‘no doubt’ that ‘even if the most obvious way to read’ the statutory defence was that it imposed a legal burden, it was possible to read it as imposing an evidential burden.173 Lord Steyn indicated that an evidential burden was a respectable reading of the legislative language and so a possible meaning.174 Lord Hope made reference to the significant Privy Council jurisprudence in which reverse burdens had been modified to comply with constitutional presumptions of innocence;175 he had ‘no doubt’ that it was possible to read section 28 of the 1971 Act to impose an evidential burden176 and to do so as a matter of legitimate interpretation rather than impermissible amendment of a statute. Kebilene was his authority for this proposition. Lord Clyde felt that [i]t requires no straining of the language of section 28 to construe the references to proof as intending an evidential burden and not a persuasive one. … The construction seems to me to be something which is well within the scope of what is ‘possible’ for the purposes of section 3.177

Lord Hutton also seemed to accept that an evidential burden could be held to be imposed.178

168

ibid at [17]. ibid at [35]–[41]. 170 ibid at [117]. 171 ibid at [156]. 172 ibid at [198]. 173 ibid at [28]. 174 ibid at [42]. 175 ibid at [85]–[86], citing Vasquez v The Queen [1994] 1 WLR 1304 (which in turn cited Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 and Attorney-General of Hong Kong v Lee Kwong-kut [1993] AC 951) and Yearwood v The Queen [2001] UKPC 31. 176 [2002] 2 AC 545, [84]. 177 ibid at [157]. Lord Clyde in fact felt that it was a tenable proposition that the language imposed an evidential burden even without the Human Rights Act. 178 ibid at [199]; he went on to hold that there was no doubt that the jury would inevitably have convicted Mr Lambert on the facts and so there was no actual breach of Article 6(2). Lord Steyn, who would have allowed Mr Lambert to rely on the 1998 Act, also held that Mr Lambert 169

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Subsequently, the UK courts have displaced an apparent legal burden if it is not proportionate to place a burden of proof on the defendant, but maintained it if it is proportionate: this turns on the nature of the offence.179 If the legal burden has been found to breach the presumption of innocence, the interpretive obligation has been used to interpret it as an evidential burden. Sheldrake makes clear that this is an example of the application of the principles outlined in Ghaidan: these are discussed above. Hong Kong has also continued the approach of having a wide-ranging interpretive obligation under its new legal regime. Section 3 of the Bills of Rights Ordinance, which was central to Lee Kwong-kut, is no longer in force as it is inconsistent with the Basic Law that has governed Hong Kong’s legal system as from 1997, but the Basic Law itself provides in Article 39 that the ICCPR continues to have effect and this implies a power to secure compliance with the presumption of innocence. Its use is illustrated by the decision of the Court of Final Appeal for Hong Kong in HKSAR v Lam Kwong Wai and Lam Ka Man,180 which concerned the offence of possession of an imitation firearm unless the person ‘satisfies the magistrate that ... he was not in possession’ of it for a criminal or dangerous purpose.181 Sir Anthony Mason NPJ, for the Court, noted that the ordinary meaning of this clearly imposed a burden of persuasion on the defendant,182 and that this was a disproportionate breach of the presumption of innocence since the aim to be secured—of reducing the incidence of improper use of imitation firearms—justified only an evidential burden.183 The question then became whether the court could seek an interpretation to validate the law rather than taking the extreme step of striking it down: this involved two questions, namely whether the court had that function and whether reading the statutory language as imposing an evidential obligation only was interpretation. It was determined that the court did have the power to seek a remedial interpretation, as an incident of the judicial power to protect entrenched rights would inevitably have been convicted even if his obligation was only to meet an evidential burden and so the conviction was safe. 179 See R v Johnstone [2003] 1 WLR 1736 (HL), considering section 92(5) of the Trade Marks Act 1994: proportionate to put a legal burden on a defendant to show reasonable grounds to believe that no infringement of a trade mark; Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 (HL): proportionate to put burden of proof of not driving if in charge of car when over alcohol limit for driving; Attorney-General’s Reference (No 4 of 2002) [2003] 1 WLR 1736 (HL): disproportionate to put burden on defendant to prove had not taken part in activities of proscribed organisation; R v Carass [2002] 1 WLR 1714 (EWCA): evidential burden only of proving no intent to defraud in relation to concealing debts of company; R v Keogh [2007] 1 WLR 1500 (CA): disproportionate to impose legal burden in relation to lack of knowledge that revealing official secrets document would be damaging. 180 HKSAR v Lam Kwong Wai and Lam Ka Man FACC No 4 of 2005, [2006] 3 HKLRD 808, (2006) 9 HKCFAR 574. 181 Section 20 of the Firearms and Ammunition Ordinance, Cap 238. 182 FACC No 4 of 2005, [2006] 3 HKLRD 808, (2006) 9 HKCFAR 574, [34]. 183 ibid at [43]–[54]; he noted at [45] the importance of giving proper weight to the legislature’s assessment, and would only disagree if it had given inadequate weight to the presumption of innocence.

The Case Law 431 in a modern democracy.184 It was also decided that, as in the UK authorities relating to proving the contrary, the use of ‘satisfy’ in the Hong Kong statute could be read to impose an evidential burden.185 The courts of New Zealand and Australia have decided that the statutory duty to seek a rights-consistent interpretation does not permit reading equivalent language as imposing an evidential burden. The Supreme Court of New Zealand maintained the position set out in Phillips in the case of R v Hansen,186 expressly not following Lambert (though, as noted above, not because it held that the interpretive obligation was of lesser force). Mr Hansen and another were in possession of almost 2 kg of cannabis plant material (which meant that the idea that none of this would be supplied to another was somewhat unrealistic). But the Misuse of Drugs Act 1975 provided that possession of 28 g or more of cannabis leads to a presumed possession for supply ‘until the contrary is proved’. The Supreme Court, consistently with other courts, found that this was not a justified limitation on the presumption of innocence. It is to be noted that this involved a disagreement with the Attorney-General’s advice to the legislature. As there had been an amendment to the 1975 Act, by the Misuse of Drugs Amendment Act 2005, compliance with the NZBORA was assessed under section 7 of the 1990 Act (on which see Chapter 6), in which the Attorney-General suggested that there was a reverse burden of proof but that it was a proportionate restriction of the presumption of innocence and so did not breach rights. The Supreme Court, however, followed the view expressed by the Canadian Supreme Court in Oakes that there was a lack of a rational connection and/or proportionality between the objective and the method.187 So that led to the question of whether the inadvertent breach of rights by the legislature could be corrected, but the court determined that ‘proved’ could only be construed to impose a legal burden. In short, the statutory language meant ‘until the contrary is proved by the defendant meeting a legal burden of proof’ rather than ‘by the defendant providing evidence of a reasonable doubt’. It does seem that the main contention before the court was that ‘proved’ meant ‘tested’ (which is not an attractive argument) rather than the more obvious point that the contrary of guilt is the existence of a reasonable doubt, which entitles a defendant to a verdict of acquittal unless it is rebutted by the prosecution (as happens with various positive defences such as selfdefence).

184

ibid at [72]–[73]. ibid at [82]–[84]. 186 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. 187 Tipping, McGrath and Anderson JJ, ibid at [125]–[138], [203]–[224], [269]–[281]; for Elias CJ, the right was absolute and judges were not in a position to assess the proportionality of any restriction: [8], [41]. Blanchard J dissented, finding that it was a proportionate limitation, [69]–[82]. 185

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Similarly, in Momcilovic v R,188 noted above, there was a reverse burden of proof in a drugs case. Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides that someone possesses something found on their land or in their premises ‘unless the person satisfies the court to the contrary’. Whilst the High Court of Australia determined that this section was not in fact relevant to the charge laid against Ms Momcilovic, the judges were of the view that this language clearly imposed a legal burden of proof and it could not be read pursuant to the Victorian Charter as imposing an evidential burden. French CJ summarised the position: 62.

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… The interpretation mandated under s 32(1) must be consistent with the purpose of the statutory provision being interpreted. The purpose of s 5 is apparent from its text. It is to require the accused to negative possession of a substance otherwise deemed to be in his or her possession by operation of the section.

The approach followed in the UK was expressly rejected, as was that of the Hong Kong Court of Final Appeal.

IV. LEGALITY AND THE STATUTORY OBLIGATION

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One of the features of the difference of approach in New Zealand and Australia compared to the other jurisdictions is the question of whether the statutory interpretive obligation should be understood as equivalent to the common law presumption of legality. For example, in the case of R v Pora,189 Elias CJ noted of the interpretive obligation in section 6 of the NZBORA that ‘the New Zealand Parliament has adopted a general principle of legality …’.190 She cited this case in Hansen for the proposition that finding a strained interpretation under section 6 (which she was the only judge to support) was not unusual, because it was permissible under the common law use of purposive interpretations to support fundamental rights.191 She was not, however, able to find that an evidential burden was the effect of language requiring proof of the contrary by a defendant. Similarly, French CJ in Momcilovic suggested that the statutory interpretive obligation was essentially the principle of legality ‘with a wider field of application’ and making use of the rights set out in the statute rather than the rights recognised at common law.192 Both were markers of the border between the

188

[2011] HCA 34. R v Pora [2001] 2 NZLR 37 (CA). 190 ibid at [53]; she spoke of Parliament not being taken to breach fundamental rights by a side-wind, which is the concept of which Lord Hoffmann spoke in Simms. 191 ibid at [13]. At [11], she suggested that the purposive interpretation requirement in section 5 of the Interpretation Act 1999 (NZ) was supplemented by the requirement to seek a rightsconsistent approach in the NZBORA. 192 [2011] HCA 34 at [51]. He commented ‘The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law’. 189

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interpretive choices open to the judiciary in light of the language used by the legislature and the unconstrained legislative power to breach rights by using language that left no such choice.193 This has some support in some UK dicta. For example, Lord Hoffmann noted in Simms, the case that restated the value of legality in the UK and outlined its importance in ensuring that Parliament had to be clear about breaching fundamental rights so that the political cost could be paid,194 that the enactment of the Human Rights Act 1998 meant that the principle of legality became an express rule of construction.195 This was endorsed by Lord Rodger in Ghaidan.196 Similarly, in Wilkinson, Lord Hoffmann suggested that ‘Just as the “principle of legality” meant that statutes were construed against the background of human rights subsisting at common law, so now, section 3 requires them to be construed against the background of Convention rights’.197 However, there are also comments that there is a significant difference between the principle of legality and the statutory obligation, at least where the latter has been understood as having a remedial power. In Ahmed and Others v HM Treasury,198 Lord Phillips commented that case law ‘has extended the reach of section 3 of the HRA beyond that of the principle of legality’,199 given that it allowed departure from the intention in the legislation being construed. In contrast: ‘I do not consider that the principle of legality permits a court to disregard an unambiguous expression of Parliament’s intention. To this extent its reach is less than that of section 3 of the HRA’.200 Similarly, relating to the implied power found under the Hong Kong Basic Law, in HKSAR v Lam Kwong Wai and Lam Ka Man,201 Mason NPJ explained the relationship between remedial interpretation and the common law approach. He noted that the latter involved reviewing context and purpose and could include implying words into a statute, but did not allow courts to ‘attribute to a statutory provision a meaning which the language,

193

ibid at [43]. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131D–G. 195 ibid at 132A. He did suggest that the rights in the ECHR were similar to those protected at common law, such that there would not be a fundamental change in terms of the rights protected. 196 [2004] UKHL 30, [2004] 2 AC 557, [104]. 197 [2005] UKHL 30, [2005] 1 WLR 1718, [17]; as noted above, he also accepted that section 3 was a strong obligation and that Ghaidan was correctly decided. 198 Ahmed and Others v HM Treasury [2010] UKSC 5, [2010] 2 AC 534. 199 ibid at [112]. 200 ibid at [117]. Lord Phillips rejected a contention made in a textbook that legality allowed a court to avoid the effect of clear unambiguous language. This turned on the proper understanding of R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604: there was a disagreement in this case between Lord Bingham and the majority about whether statutory language clearly removed a right to benefits on a decision being made and recorded on an internal file or on it being communicated (with reasons so as to allow an appeal to be lodged); the majority held that the statutory language did not clearly remove the constitutional principle that an administrative decision was effective only when communicated. Lord Phillips pointed out, clearly correctly, that just because the dissenting judge thought the language was clear and the majority disagreed about this clarity, that does not mean that the majority extended the principle of legality. 201 FACC No 4 of 2005, [2006] 3 HKLRD 808, (2006) 9 HKCFAR 574. 194

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understood in the light of its context and the statutory purpose, is incapable of bearing’.202 He then noted that section 6 of the NZBORA and section 3 of the Human Rights Act 1998 went further in requiring a strained meaning (which would depart from statutory intention) when that was necessary to secure compliance with rights. He cited Ghaidan for this proposition, but also noted that there were limitations on this ‘interpretive process’, citing Sheldrake.203 This was described as remedial interpretation, and it was noted that it could include ‘severance, reading in, reading down and striking out’.204

V. DISCUSSION

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The interpretive obligation is clearly something that leaves some judges uncomfortable because it requires from them a level of creativity which is felt to come close to (or pass) the limit of what is properly the judicial as opposed to the legislative function. The former function is said to be limited to interpretation, such that anything that amounts to reconstruction of legislation is improper. This accounts for the fairly narrow range of alternative readings that seem to be permissible within the Australasian jurisdictions. An alternative view, which is what the UK judiciary has adopted, is that there is nothing impermissible with judicial reconstruction since it involves seeking to interpret two statutes to read them together. It is suggested that the approach adopted by the judges in the UK is the correct understanding of the purpose of the legislatures in question and hence the democratic mandate. In short, it is clear that the bills of rights statutes were meant to be part of the constitutional framework, in order to ensure that rights-based arguments could be addressed to domestic courts, in accordance with the obligations arising at international law; this purpose, and the need for new approaches, is made clear in the various White Papers and explanatory memoranda noted in Chapter 4. This suggests a wide use of the purposive interpretation of statutory language that is part of the judicial skill set: it involves the judges reading statutes together (as they have to do in order to seek to secure a consistent whole in the body of statute law), and determining how to give effect to rights (and so merely develops the common law technique of legality). It is more sensible than having parliamentary drafters redrafting every piece of legislation: those results would in any event have to pass before the courts, who would apply a purposive rights-consistent ruler to them, in any case of dispute. The UK judges have also recognised appropriate limits on their abilities in light of the retention in the bills of rights statutes of the validity of statutes that breach rights: that border is not going against the purpose or a fundamental feature of the legislation being construed, since to remove it 202

ibid at [63]–[64]. ibid at [65]–[66]. He did not cite any New Zealand authorities, and so may have overlooked that the courts there did not take such an expansive view of the effect of the language. 204 ibid at [71]. 203

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from the statute book would be a matter of implied repeal (a model that was rejected), and deferring when there is a legislative choice that has to be made as to how to comply with the mandate of the rights in question. The corollary of this suggestion is that the more reluctant judges are defeating the legislative purpose by operating a relatively weak approach to interpretation. The context of the interpretive obligation is worth noting: to get to a situation in which it is considered, the judge must have been able to ascertain that the content of a right is not being reflected adequately in legislation as drafted and interpreted in accordance with normal tools. Such a conclusion is an evaluation which might be thought to be of a political or contentious nature. What is the judicial skill set that allows it to disagree with the conclusion of the legislature that the problem caused by the abuse of drugs is such as to justify not abiding by the presumption of innocence? It is certainly more of a political question than the mechanics of how language can be made to have a certain meaning, which is a core legal skill. Judges in Australasia are aware that the judges in the UK have gone further; and some have sought to explain this, both textually and by reference to wider contextual elements. As noted above, one textual analysis comes from UK judges suggesting that the obligation in the Human Rights Act 1998 creates a stronger impression than that in the NZBORA. But this was comprehensively rejected by the New Zealand judiciary in Hansen, as noted above, and rightly so: both statutes mandate the use of the interpretive technique on the basis of possibility. However, one semantic difference has been noted by judges of the High Court of Australia in Momcilovic. For Crennan and Kiefel JJ, the key difference between the UK language and that in the Victorian Charter is that the latter was expressly about the interpretation of language, which was said to be a more limited function than ‘reading and giving effect’ to statutory language, as required by the section 3 of the Human Rights Act 1998.205 Their suggestion was that the effect of the Charter language was ‘to ensure that Charter rights are kept in mind when a statute is construed’, which in any event would include human rights standards, such that it was not strictly necessary.206 This was not an approach that justified anything that would be a ‘strained’ interpretation,207 which presents the contrast with the UK approach. This is not a convincing argument. The judicial function of giving meaning to words, which is the process of interpretation, occurs in the context of judges reviewing whether the outcome reflects the legislative purpose. It is a function that will only occur when there is a dispute about the effect of a statute, because the parties have a dispute about the consequence (since otherwise it would be an academic opinion only). In short, Their Honours are drawing a distinction that is wholly without substance: giving effect to statutory language is what courts do. 205 206 207

[2011] HCA 34, [545]. See also Gummow J at [151]. ibid at [565]. ibid at [566].

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Another textual difference with the Australian language is the express reference in the ACT and Victoria to the need to reflect the purpose of the statute being construed. Bell J in Momcilovic found this to be an important reason why the scope of interpretation was limited (and could not be of the remedial sort adopted in Hong Kong, which in turn drew on the UK approach).208 This, however, is a limitation that the UK judges have recognised to mark the border between what is a permissible welding together of two statutes and the impermissible ignoring of the statute being construed if its purpose or fundamental features are not consistent with rights. The Australian statutes merely codified that case law. Textual arguments are, in any event, unattractive when the context is the question of whether merely semantic differences should be taken by the courts to demonstrate that the purpose of the legislature was to offer a fundamentally differential protection for fundamental rights in the absence of clear language to that effect. Other suggestions have been that there is something in the wider socio-political context. Accordingly, in response to Ms Momcilovic’s argument that the interpretive obligation in section 32(1) of the Victorian Charter should secure the same effect as the UK language—which is what the pre-legislative material noted above suggests was the purpose of the legislature—French CJ suggested that there should be caution about following the UK experience. He commented that whilst judgments from international and overseas courts might help the determination of whether the presumption of innocence meant something different in the Victoria statute or the common law manifestation of it, 19.

… Nevertheless, international and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them. What McHugh J said in Theophanous v The Herald & Weekly Times Ltd209 is applicable in this context: ‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.’

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He then explained that there was a particular need for caution about following the UK jurisprudence because it was designed to give effect to the obligations arising under the ECHR as explained by the ECtHR, which undermined the value of the common legal heritage of the common law.210 This explanation is as unconvincing as the textual suggestions noted above: it amounts to a suggestion that there might be a lesser presumption of innocence resulting from the language used by the legislatures in New Zealand, the ACT or Victoria because they are not aiming to give effect to the ECHR. However, the ECtHR 208 209 210

ibid at [684]. See the discussion of Lam Kwong Wai above. [fn 27] (1994) 182 CLR 104 at 196; [1994] HCA 46. [2011] HCA 34, [19], [49].

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construes a text that gives effect to the universal values outlined in the UDHR in just the same way as does the ICCPR. The Victorian Charter adverts to the latter. As such, the only difference is one of the route to them being considered by the courts in the UK and Australia: the real question ought to be why the concentration is on the features that, at a legalistic level, might cause things to be different when there are so many reasons for the outcome to be the same. Gummow J in Momcilovic also had some socio-legal theories.211 He suggested that there were several streams which were filling the judges of the UK with influences that were absent in Australia. These were (i) the need to respect the sovereignty of Parliament (which in turn meant that judges should not advise other branches of government), though he referred also to the temporary limitation of sovereignty by reason of membership of the EU; (ii) the need to follow directions from the ECtHR; and (iii) the experience of Privy Council decisions to construe the post-colonial Constitutions and their provisions that allow laws to be modified to be consistent with rights (including by the techniques of reading in and reading down that were being used under the Human Rights Act). He suggested that: 159.

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These differences in context and relevant differences in text should not be cloaked by describing the rights in issue as ‘generally accepted’ or ‘fundamental’ human rights. That is, the universality of values reflected in various national or international statements of rights does not diminish the importance of considering the constitutional framework within which the Charter operates and recognising that it is to be construed according to its text.

There is no doubt that context is important: that is precisely why it is suggested that the commonality of several common law jurisdictions seeking to adopt similar techniques for the purpose of giving further effect to international human rights because of legislative dissatisfaction about what was being done in the absence of a statutory prod should lead to an equivalence of outcome. In short, it is suggested that there are no good reasons for a differential outcome, which in turn means that the question is whether the more adventurous UK judges have gone too far or the more cautious Australasian judges have not gone far enough. The features to which Gummow J refers are ones that might affect an outcome: but (i) the wider concept of legislative sovereignty in the UK (in contrast to the constitutional limits in Australia) seems inapposite to give the judges greater powers, (ii) the apparently binding nature of the ECHR only makes a difference if the substantive right is different in the Australian context and (iii) the various Commonwealth Constitutions might give the judges significant powers, including a power of judicial rewriting of statutes to 211 ibid at [152]–[158]. He also noted at [151] that the UK Act and the Charter had a different structure: namely the reference to the ECHR and the absence of a general limiting clause. See the discussion in Chapter 5 of why the general limiting clause makes no difference; the other feature should have no impact if the substance of the right is the same. Gummow J also made a suggestion, at [149]–[150] that the UK was perhaps drawing back from the strength of its approach, contrasting Lambert and Wilkinson: for reasons noted above at paras 59–62, the latter case does not represent any change.

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save them from being struck down; this does not exclude a significant power of interpretation going beyond the norm when there is no strike-down power. Gummow J concluded that there was an unfortunate obsession with UK cases when the case of Hansen from New Zealand was a better guide (even though New Zealand’s constitutional structure is very different from that of Australia). There was some, albeit limited, discussion in Hansen of the more adventurous outcomes in the UK. Both Tipping J and McGrath J suggested that the answer lay in the constitutional setting of the two countries, and in particular the fact that the UK courts are part of the European Union and the obligation that arises as part of that. McGrath J, having noted that the interpretive tools in the UK and New Zealand were similar, commented: ‘The undoubted difference between the meaning given to the provisions by the courts in the two jurisdictions rather arises from the different constitutional contexts in which the similar broad language is interpreted’.212 However, for reasons noted in Chapters 3 and 4, membership of the EU is dependent on the European Communities Act 1972 (though it is a constitutional matter in Ireland) and this creates a strong presumption of consistency which had led to similar outcomes as those under the Human Rights Act 1998. For example, the Factortame litigation, under which the Merchant Shipping Act 1988 was determined to be of no real effect, arose from the fact that Parliament intended to legislate consistently with EU law and so its provisions were read as subject to that as a proviso: the courts gave effect to the intention of consistency with EU law. Similarly, the Marleasing principle as to how directives—which are binding as to result—can be used to interpret the necessary domestic legislation to put them into effect is a strong principle of interpretation: but it is a requirement as to interpretation. The Human Rights Act, whilst not going down the route of making the ECHR directly effective because that is not required by ratification of the treaty, creates an important background context for interpretation in determining whether a statute has the effect of breaching the ECHR. In the same way, the 1972 Act means that there is no real prospect of a statute breaching EU law unless the language is very clear. The fact that there are two examples of important background international legal principles in the UK—the trading bloc and the human rights bloc—as opposed to the one instance for Australia and New Zealand should not make any difference to the strength of the interpretive obligation applied. As suggested above, the UK judges are ensuring that effect is given to the purpose of Parliament to ensure that disputes about rights could be both identified and resolved in the domestic courts. There are, however, the limits

212 [2007] NZSC 7, [2007] 3 NZLR 1, [244]. See also French CJ in Momcilovic [2011] HCA 34, [49]: he suggested that the effect of the Human Rights Act 1998 was to give the UK courts the tools to enforce human rights standards (informed as they were by the rulings from the ECtHR) in the same way as they had already obtained the tools to enforce the standards of EU law as supreme over domestic law.

Discussion

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identified on this: one of those is not breaching the purpose of the legislation being construed, and so it becomes important to identify that purpose. The question then becomes one of preserving the purpose whilst ensuring that the mechanics that put that purpose into effect comply with rights standards. Of course, to be borne in mind in this context is that if the outcome is one that breaches fundamental rights, that implies to the legislature a desire to breach international obligations and standards that have been set out in a domestic assertion of rights: that is an unusual purpose. In the context of reverse burdens of proof, the purpose can be seen as securing an outcome that offers the benefit of deterring whatever criminal conduct is in play and securing a conviction by allowing it to follow unless the defendant is able to point to some reason for an acquittal (namely by raising an evidential burden that has to be rebutted). In other words, the purpose of helping to secure a conviction is not one of securing a conviction through an unfair trial but through a fair trial: and equally, the purpose is not the narrower one of requiring the defendant to prove innocence to a legal standard, but is to require the defendant to prove something (namely an evidential basis for a reasonable doubt, which brings an entitlement to an acquittal unless rebutted). The Australasian outcome is that language about the contrary being demonstrated is read as having the implied text that the proof must be to the legal standard even if it breaches the right to be presumed innocent. This is something that statutory language could make clear, but only with express language.

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9 Litigation and Complaint Procedures I.

The Statutory Provisions ........................................................................9 A. Summary ..........................................................................................9 B. The Statutory Language Analysed ..................................................14

II. Who Can Bring an Action?—Standing .................................................43 A. Implying a Cause of Action............................................................44 i. Constitutional Settings ............................................................45 ii. Statutory Bills of Rights ..........................................................53 B. Who Can Bring an Action? ............................................................70 i. Natural or Legal Persons? .......................................................71 ii. Victims ....................................................................................73 iii. Comparative Material .............................................................78 C. Interventions and Parties ................................................................84 III. Time Limits ........................................................................................100

1

2

It has been noted in Chapters 2–4 that there are obligations arising as a matter of international law to secure rights in general, including the right to an effective remedy; that some other rights might require access to a specific remedy (either expressly, as in habeas corpus rights to test the legality of detention or compensation for breach of the right to liberty, or in miscarriage of justice situations, or impliedly as part of the concept of an ancillary obligation such as the investigative obligation arising under the right to life); and that legislative intention behind the bills of rights statutes was to give effect to these obligations, in particular by ensuring that rights can be vindicated in domestic proceedings without any need to approach the relevant international body, if necessary requiring more to be accorded than had been secured under the common law. There are also references in the relevant legislative materials to the desire to develop a culture of human rights. These various aims can be seen to be wider or narrower. In relation to the need for domestic remedies, a narrower aim would be to remove to the domestic courts the sorts of individual complaints that might otherwise go to the relevant international body. A wider aim would be to secure a full discussion of human rights issues in the domestic courts as part of ensuring that the culture of human rights extends to the courts as well. This might support steps such as lesser rules as to standing, permitting public interest litigation and so on, as well as making sure that judges are given wide powers on interpretation to enable them to become a forum in which practical solutions can be secured

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more readily than previously (by, for example, reducing the level of deference to administrative decisions). As part of promoting the culture of human rights, steps taken in the bills of rights statutes (and sometimes in supplemental actions, such as in parliamentary rules and executive practices) have been designed to ensure that all branches of the state engage in discussion about rights as part of their processes. This can be seen in making public authorities bound by the rights in play, giving judges wide interpretive obligations, and requiring steps within legislative processes. This chapter looks at another part of the process, namely how easy it is for an action to be brought (which is a prerequisite for judges to have the final say on whether a public body has correctly determined what rights require, or whether a legislature has enacted a scheme compatible with rights). There is a distinction to note between the substantive law and procedural law: whilst the existence of illegality could be made sufficient for a court to make an order, procedural law invariably imposes limitations on who can take action and in what time frame. This chapter looks at the procedural prerequisites to raising a complaint. Chapter 10 considers the question of remedy if a claimant is able to demonstrate that rights have been breached (which may have an impact on whether a complaint is brought). It should be noted that the international regime, whilst having mechanisms whereby individuals can raise complaints about specific instances of breaches of rights, also has wider processes. This is particularly the case within the UN system, with the process of country reporting and the possibility of inquiries: these allow the collective raising of complaints that do not depend on the typical requirement within litigation of a specific person seeking to resolve a specific situation.1 At a domestic level, it is possible to replicate these processes by having national human rights mechanisms and giving them powers to investigate and take suitable consequent steps. Indeed, in relation to the prevention of torture, the Optional Protocol to the Convention Against Torture has a specific requirement that national preventive mechanisms be established and given powers to carry out investigations and make recommendations. There may also be wider obligations as to matters such as collecting data (to inform policy steps) and taking steps to promote the interests

1 Litigation models are available that allow the courts to be involved outside this paradigm: for example, allowing public interest litigation. Models of funding for legal aid may be important in this regard: for example, allowing test cases with a different test for funding if a significant human rights point is raised. Also important may be questions of costs: note the development in England and Wales of the regime of protective costs orders that can be used where a case that has a public interest would not otherwise proceed. This was exemplified by the Corner House Research case, in which the Court of Appeal made a protective costs order and gave guidance on the discretion in this regard—R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600—which in turn allowed an initially successful challenge to a failure to investigate potential corruption in a significant foreign trade deal, though one that the House of Lords ultimately held had not involved unlawful inaction: R (Corner House Research and another) v Director of the Serious Fraud Office (JUSTICE intervening) [2008] EWHC 714 (Admin), [2008] UKHL 60, [2009] AC 756.

3

4

442

5

6

7

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of those who have been the subject of discrimination: see, for example, Articles 8 and 33 of the CRPD. These matters are all outlined in Chapter 2. Various substantive rights may also be part of the full assessment of procedural matters, and in particular the question of whether there is compliance with the standards relating to a fair trial will include an assessment of the adequacy of access to the courts to raise a claim (and also to such matters as access to legal advice as a prerequisite to that).2 This may include questions as to the propriety of limitation periods, rules as to standing or rules as to whether public bodies have immunities from action; it may also involve such matters as the rules permitting the striking out of proceedings and whether leave is required in advance of a case being allowed to proceed.3 The procedural law questions that are commonly dealt with under the statutory bills of rights are: (i) Who can bring an action? This often refers across to the concept of a victim in the international complaints processes, which was mentioned briefly in Chapter 2. However, it is to be noted that not all statutes have an express cause of action, and so there may be a preliminary question of whether there is a cause of action arising under the statute at all (or whether, for example, use has to be made of another cause of action). Another aspect of this may be whether only humans can bring an action, or whether legal persons are also entitled to take proceedings. (ii) Another question that is common is whether there are special procedural provisions relating to the parties to proceedings in light of the constitutional nature of the statute. In short, how is it ensured that there is proper representation of the communal interests that might have to be taken into the balance in an assessment of the substantive right? Similarly, if the question is the extent to which the power not to comply with the international obligation has been exercised by the legislature, it may be thought that there should be steps to ensure that the court has someone who can represent a perspective that might not be shared by the parties. (iii) Finally, there are questions as to time limits, including both the time within which an action can be commenced and whether it can relate only to events that post-dated the statute coming into effect, which may turn on the nature of the substantive right.

I. THE STATUTORY PROVISIONS

A. Summary 9

In summary, the NZBORA has no language: but, as noted below an implied cause of action has been identified if there is a breach of the duty to abide 2

See Golder v UK App no 4451/70, (1979–80) 1 EHRR 524. See, for example, Seal v UK App no 50330/07 (2012) 54 EHRR 6, [2011] MHLR 1, relating to the requirement in England and Wales that some claims alleging misuse of powers under the Mental Health Act 1983 require leave of the High Court. 3

The Statutory Provisions

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by rights, for which the standard range of remedies is available; the Human Rights Act 1993 (NZ) has an express remedy provision in relation to allegations of improper discrimination. The UK Human Rights Act 1998 sets out detailed provisions as to the actions that can be brought to enforce the obligation imposed on public bodies by section 6 not to breach the ECHR rights that are implemented through the Act.4 In sections 7–9 there is regulation of the process whereby a challenge can be brought and the remedy that might be obtained: the prerequisites include the need for a victim to bring the claim (with an indication that the rights can be used as a defence), and a limitation period of a year or a lesser time period if the claim is by way of a process with a lesser time limit, such as judicial review, though with a court discretion to extend time. In addition, section 22 has been interpreted to mean that there is no retrospectivity in the application of the statute (which was more important in its early years). The question of damages is dealt with in Chapter 10: the statutory language effectively restricts awards to ones that would be made in Strasbourg. In the devolution legislation in the UK, there is an uneven picture in relation to the proceedings that might follow if members of the executive or legislators breach rights: the fact that such actions are beyond their powers might be thought to have made it important to have clarity on procedures for essentially striking down legislation. But the Scotland Act 1998 initially indicated merely that victim status was required and that any damages had to have the same restrictions as in the Human Rights Act 1998. After case law made clear that there was a separate cause of action under the Scotland Act 1998, a time limit along the lines of that in the Westminster statute was added. There is also provision made as to the flexibility of orders made as to an action found invalid, which is discussed in Chapter 10. The devolution legislation for Northern Ireland and Wales has some similarities with its counterpart in Scotland, with some variations as well, for example the Northern Ireland Human Rights Commission having additional powers to commence action. Turning to Ireland, the European Convention on Human Rights Act 2003 has a different approach in relation to proceedings in that it specifies that there is a right for a person caused loss by an improper breach of rights (ie one not saved by other parts of the statutory scheme) to bring an action, but that this is to be a supplemental remedy if an existing action in damages, presumably in tort or for breach of the Irish Constitution, does not provide the remedy. The limitation period for the new action is a year, extendable in the interests of justice. There is also a process, by way of an administrative application, to seek ex gratia compensation if loss has been caused in a way that is justified

4 See Chapter 7 for the indication as to who owes the duty (which is a question raised under the NZBORA and all the other statutes as well); there may also be a statutory protection for any breach of rights, which will turn on the interpretation of the statute (which also arises under the NZBORA and other statutes), and which is discussed in Chapter 8.

10

11

12

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in domestic law but leads to a declaration of incompatibility (on which see Chapter 10). The Australian statutes have two models. The Human Rights Act 2004 of the ACT has some of the elements of the UK model, namely an express remedy provision (though not permitting damages unless they are permitted under another action), and introducing a limitation period of a year. The Victorian Charter, by contrast, makes clear that the consequences of any illegality arising from a breach of rights has to be raised through another form of proceedings (including judicial review) rather than as a free-standing action.

B. The Statutory Language Analysed 14

15

The Human Rights Act 1993 (NZ) contains in Part 2 a prohibition on discrimination in various areas (such as in employment, accommodation, education) by private actors and also by public bodies. In addition, Part 1A provides that public actions by public bodies that breach the non-discrimination standard in section 19 of NZBORA are also generally in breach of the 1993 Act, which opens up its remedy provisions. The process involves a complaint to the Human Rights Commission (under section 76 of the Act); it investigates and may seek to mediate a solution, but may also decide to bring civil proceedings before the Human Rights Review Tribunal (as may the person who has brought the initial complaint or who is the alleged victim if not the complainant). Similarly, if there is an agreed settlement, an alleged breach of the terms of the settlement may lead to a complaint.5 The Commission also has powers to carry out inquiries into possible breaches of the non-discrimination standards, and may make a referral to the Tribunal.6 The Attorney-General has a right to appear in the proceedings (and will be the defendant if there is an alleged breach of the NZBORA standard by a core government body); the Human Rights Commission may also appear if that will assist one of its functions, which include wider advocacy and education. If a complaint made does not lead to proceedings, the person against whom the complaint is made may commence civil proceedings (section 92B(3)) seeking a declaration that there has been no breach of the Act (section 92I(5)). On the question of why there is express language in relation to proceedings in this statute when the NZBORA is silent, this is explicable by the fact that it involves a specialist tribunal, and statutory tribunals are invariably held to be restricted to such powers as they are given by the statute (or at most by clearly necessary implication). In relation to the NZBORA, the implication of a remedy is discussed below.

5 These two routes to the Human Rights Review Tribunal arise under section 92B of the 1993 Act. If a class of persons is affected, the Human Rights Commission may bring the action: section 92B(2). 6 This arises under section 92E; the inquiry power is provided by section 5.

The Statutory Provisions

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In the Human Rights Act 1998 (UK), the relevant language for the express cause of action is in the following terms. First, section 7:

16

7. Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) ‘appropriate court or tribunal’ means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings 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. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (5) Proceedings under subsection (1)(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) ‘legal proceedings’ includes— (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. (8) Nothing in this Act creates a criminal offence.

This sets out a significant number of procedural points, particularly when it is combined with other provisions. First, the claim has to allege that illegality in terms of section 6(1). This may have to be read without reference to section 6(2), which disapplies section 6(1) if a statute requires the challenged conduct to occur even though it breaches rights, which might be accepted by a claimant who wishes to obtain a declaration of incompatibility. If the view is taken that proceedings for a remedy under the 1998 Act have to be proceedings under the Act, then section 7 has to be read as requiring the allegation of illegality under the ECHR even if actually saved in domestic law by a statute. However, it may be that there will be no need for such a technical argument, because in proceedings before the House of Lords, the government conceded that there was no need for victim status to seek a declaration of incompatibility.

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This arose in R (Rusbridger) v Attorney-General,7 where journalists wished to argue for the creation of a republic in the UK but noted that there was an offence of advocating the abolition of the monarchy, contrary to the Treason Felony Act 1848 (for which the sentence, originally transportation, was life imprisonment). The legal proceeding was designed to secure a ruling that there was no offence unless violence was promoted, or alternatively that the statutory language was incompatible with the right to freedom of expression in Article 10 of the ECHR. Lord Steyn noted that there was no need for victim status for a declaration of incompatibility to be sought.8 Secondly, proceedings have to be brought in the proper forum (section 7(1) and (2)). As part of this, it should be noted that the only proceedings where rights can be used to found a claim are civil proceedings, since no crimes are created (section 7(8));9 this can include judicial review proceedings, which are specifically mentioned in section 7(3). This should be read together with section 9, which provides: 9. Judicial acts. (1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only— (a) by exercising a right of appeal; (b) on an application (in Scotland a petition) for judicial review; or (c) in such other forum as may be prescribed by rules. (2) That does not affect any rule of law which prevents a court from being the subject of judicial review.

19

20

This reinforces that judicial review proceedings may be proper, but also does not remove rules relating to the questioning of courts by judicial review. The main provision raised by this language in England and Wales is the language of section 29 of the Senior Courts Act 1981 whereby proceedings relating to trial on indictment cannot be challenged by judicial review. Section 9 also indicates that any award is against the Crown and that a Minister or relevant government department has to be joined to the proceedings: subsections (4) and (5). The position in relation to criminal matters requires account to be taken of various points. First, section 7(8) means that no new crimes can be created, but a breach of rights might occur in various cases that can be prosecuted as a crime. Indeed, in relation to positive obligations that arise in relation to protecting life and preventing torture or inhuman or degrading treatment, the primary method whereby the state will meet its positive obligation will be by having a criminal sanction in place.10 7

R (Rusbridger) v Attorney-General [2003] UKHL 38, [2004] 1 AC 357. ibid at [21]. 9 This is also express in Ireland. Where it is not mentioned, as for example under the NZBORA, it is not significant because there is likely to be a general principle that crimes cannot be created in the absence of clear and express language: see section 9 of the Crimes Act 1961 (NZ). 10 See the brief discussion in Chapter 7. 8

The Statutory Provisions

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However, if the claimed breach of rights occurs as a result of the decision to prosecute (for example, if it is alleged that a prosecution for a public order offence breaches the right to freedom of assembly or expression) or arises from alleged breaches of rights during the process of investigation or prosecution, the defendant in the criminal proceedings can raise the breaches as part of his or her defence in those proceedings (under section 7(1)(b)); naturally, that would impact on the remedy that might be available (exclusion of evidence, a stay of proceedings or direction on law), since the criminal court would not have the power to award damages. It might, of course, be possible for a defendant in the criminal case to seek to bring a positive claim as well, relying on section 7(1) (a): it might be suggested that any such action should not be allowed to proceed until the criminal proceedings had ended, on the basis that the latter should first be completed. The short time limit for bringing a positive claim might be problematic, though there should be a strong claim to extend any time limit as long as action was taken expeditiously after the criminal process had come to an end. What if the victim alleges that there was an inadequate failure to protect by not prosecuting? This will require judicial review proceedings, as happened in R (FB) v DPP and Equality and Human Rights Commission11 (in which damages were awarded for a decision to drop a prosecution for a serious offence that caused additional harm to the victim that breached Article 3 of the ECHR): whilst it would be possible for rules relating to the criminal courts to allow victims to intervene, they cannot argue for such accommodation by reference to the Human Rights Act. Anticipatory judicial review proceedings could be brought since section 7(1) allows the victim of a proposed act to bring proceedings.12 Another example is where the alleged victim of a criminal assault that was being prosecuted also faced an apparent breach of her rights under Article 8 of the ECHR in that access to her medical records was granted after a procedure in the Crown Court that was not fair because she had not been a party. This was challenged by way of judicial review in R (TB) v The Combined Court at Stafford.13 The Divisional Court determined that the duty to act justly, the overriding objective of the Criminal Procedure Rules 2005,14 included ensuring that any interference with the rights of a witness required the court to 11 R (FB) v DPP and Equality and Human Rights Commission [2009] EWHC 106 (Admin), [2009] MHLR 61. 12 Since no defendant in criminal proceedings would apply for an adjournment if the prosecution sought to drop a case in similar circumstances, it would require a judge acting on his or her own motion, exercising case management powers to secure the overriding objective of justice, including respect for the rights of the victims, to grant an adjournment to allow action by the victim. 13 R (TB) v The Combined Court at Stafford [2006] EWHC 1645, [2007] MHLR 115. Note that the Court dealt with a preliminary point that judicial review could not be granted because the decision related to a trial on indictment (and so was covered by section 29 of the Senior Courts Act 1981 (then called the Supreme Court Act 1981), which prevents judicial review. It determined that there was no bar to review because that provision was designed to restrict applications by those who could appeal: [14]. 14 SI 2005 No 384. See now the Criminal Procedure Rules 2014 SI 2014 No 1610.

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construct a process whereby the witness became a party for the purposes of argument about their right. If follows from this that the reference to proceedings in section 7(1)(a) of the Human Rights Act 1998 can include the making of an application in otherwise extant proceedings. As such, it would also cover such matters as applications by journalists to challenge non-disclosure orders (as incompatible with freedom of expression) within otherwise ongoing proceedings. The reference in section 7(1)(b) to proceedings brought by a public authority is not limited to criminal proceedings; as made clear by section 7(6), it covers all action, including civil action, commenced by a public body (or an appeal), and so covers all regulatory or other proceedings taken as a public authority. This has to be read together with the definition of public body discussed in Chapter 7: the essential distinction is between core authorities (whose actions are always the actions of a public body) and hybrid authorities (who may be exercising a public function or a private function, depending on the nature of what they are doing). This may not make a significant difference if rights are not implicated in matters that are private in nature. In every situation, however, there is the limitation that an alleged breach of rights can only be raised by the victim, defined in a manner that is co-extensive with a claim before the ECtHR: sections 7(1), (2), (3) and (7). This is discussed below. But there is an important difference between a person raising a claim of a breach and relying on a breach in proceedings brought by a public authority: the former is subject to a limitation period of a year or any shorter period arising in the process (eg judicial review proceedings in England and Wales) in which the breach is raised. There is, however, a discretion to extend that in the interests of justice (section 7(5)). In addition, there is an indication in section 22, which relates to the commencement of the statute, that section 7(1)(b) applies whenever the act occurred but section 7(1) is otherwise not retrospective. The relevant language is: 22. Short title, commencement, application and extent. … (4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.

28

29

The question of retrospectivity is discussed below. Also to note for the UK context is the Equality Act 2010, roughly the UK equivalent of New Zealand’s Human Rights Act 1993. Section 114 provides for civil actions in a county court (in England and Wales) and before the sheriff in Scotland; and section 119 provides for remedies that could be awarded in a normal civil action or in judicial review proceedings. However, this is not linked to the UK’s Human Rights Act 1998 in the way that the New Zealand statutes are linked. In the devolution legislation, the Scotland Act 1998 indicates that:

The Statutory Provisions

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100. Human rights (1) This Act does not enable a person— (a) to bring any proceedings in a court or tribunal on the ground that an 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 (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights. (2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General, the Advocate General for Northern Ireland or the Attorney General for Northern Ireland. (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

The context of this legislation is that it is illegal for legislators or members of the executive to breach rights. Although there is no language that specifically indicates that proceedings can be commenced, there is the restriction set out that only victims can raise rights arguments (except in relation to actions brought by law officers); and there is the indication that damages must follow the approach set out in the Westminster legislation (as discussed in Chapter 10). There is also discretion as to remedy in the case of a finding that legislation is beyond the competence of the Scottish Parliament, which is discussed in Chapter 10. There has been a significant amendment to section 100 of the Scotland Act 1998, namely the addition of the following language, essentially to add a time limit of 12 months for proceedings other than by law officers: (3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights. (3B) Proceedings to which this subsection applies must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (3C) Subsection (3B) does not apply to proceedings brought by the Lord Advocate, the Advocate General, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Northern Ireland. (3D) In subsections (3A) and (3B) ‘act’ does not include the making of any legislation but it does include any other act or failure to act (including a failure to make legislation). (3E) The reference in subsection (3A) to proceedings brought on or after 2 November 2009 includes proceedings relating to an act done before that date.

30

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(4) Subject to subsection (3D), in this section ‘act’ means— (a) making any legislation, (b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive.

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34

35

The language as to the time limits was added by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, in response to decisions discussed below as to whether there was a cause of action arising under the statute as drafted. The legislation in Wales and Northern Ireland uses some of the language of the Scotland Act, but with variations. First, the need for a victim requirement is included. The language of section 100(1) of the Scotland Act 1998 is replicated in section 71(1) of the Northern Ireland Act 1998 and section 81(2) of the Government of Wales Act 2006. However, in the latter case, this victim requirement is in place in relation to the improper actions of the Welsh executive (in making delegated legislation or doing any act); in the case of Northern Ireland, section 71(1) expressly refers to the need for a victim requirement in relation to anything which is illegal because it is outside either the competence of the legislature or of the executive. There is an interesting question of whether the legislative bodies are in any event public authorities for the purposes of section 6 of the Human Rights Act 1998 and so only permitted to breach rights if a Westminster statute authorises it (so as to bring the action within section 6(2) of that Act): this seems to be confirmed by the legislative language in the Northern Ireland Act. Similarly to the Scotland Act provisions, this victim requirement is disapplied in relation to actions brought by law officers: section 71(2) of the 1998 Act and section 81(3) of the 2006 Act. An additional part to the Northern Ireland Act 1998 is that the Northern Ireland Human Rights Commission is expressly allowed to bring proceedings (or intervene in other proceedings). The Commission is given functions under Part VII of the 1998 Act15 which include general matters (reviewing the adequacy of the law in protecting human rights) and more specific ones, including under section 70 of the Act giving assistance to people who wish to bring proceedings to raise human rights points.16 The assistance may include advice or representation; but there have to be special circumstances, including that there is a point of principle involved or the complexity of the issue or nature of the person is such that it would be unreasonable for them to have to take the action alone. Section 69(5) indicates that in addition to providing this assistance, the Commission may also take proceedings. This power has been clarified:17 whilst it does not have to meet the victim requirement, section 71(2B)(c) indicates that it may only take proceedings if ‘there is or would

15 It replaced the Standing Advisory Commission on Human Rights, which was dissolved by section 72 of the Act. 16 It may also carry out investigations, in relation to which it has powers to require evidence: see sections 69A ff of the Act, as added by the Justice and Security (Northern Ireland) Act 2007. 17 By provisions added by section 14 of the Justice and Security (Northern Ireland) Act 2007.

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be one or more victims of the unlawful act’. Such proceedings can be under section 69(5) of the Northern Ireland Act 1998 or section 7(1)(b) of the Human Rights Act 1998. This power to take proceedings allows it to take action where there are victims who are unwilling to come forward or where there are pragmatic reasons for the Commission to act instead of a named individual or individuals.18 Sections 71(4) of the Northern Ireland Act 1998 and 81(4) of the Government of Wales Act 2006 indicate—albeit in an inelegant form—that the limitations on damages that apply under section 6 of the Human Rights Act 1998 also apply. This will include those that arise by reason of section 8 of the latter statute. This is similar to the restriction in section 100(3) of the Scotland Act 1998. In relation to claims in Northern Ireland brought by the Human Rights Commission, section 71(2B)(d) indicates that damages may not be awarded (which will mean that any individual victim who wishes to include a claim will have to be a separate party or bring separate proceedings). Turning to Ireland, the European Convention on Human Rights Act 2003 has provisions to secure the general obligation on organs of the state not to breach rights in the absence of a requirement in a rule of law to do so (as discussed in Chapter 7). The relevant language is: 3. Performance of certain functions in a manner compatible with Convention provisions. … (2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate. (3) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the limit of that Court’s jurisdiction in tort. (4) Nothing in this section shall be construed as creating a criminal offence. (5) (a) Proceedings under this section shall not be brought in respect of any contravention of subsection (1) which arose more than 1 year before the commencement of the proceedings. (b) The period referred to in paragraph (a) may be extended by order made by the Court if it considers it appropriate to do so in the interests of justice.

18 Note by contrast the Scottish Human Rights Commission expressly has no power to assist proceedings: section 6 of the Scottish Human Rights Commission Act 2006. It may, however, intervene in civil proceedings with the leave of the court if such an intervention may assist the court, by reason of section 14; the court may invite the intervention or the Commission may seek leave. Like the Northern Ireland Human Rights Commission, the Scottish body may conduct inquiries: sections 8 ff. There is also in this context the Equality and Human Rights Commission, which functions in England and Wales and also Scotland but not Northern Ireland): it has various powers under the Equality Act 2006 in relation to matters of inequality and also human rights more generally (section 9 of the Act) except in Scotland (section 7). Note also that under the Equality Act 2010 and its predecessors, public bodies have a duty to consider human rights as they formulate plans of action.

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The procedural elements of this are, first, that the right of action belongs to someone who is caused loss. However, this is not limited to someone who is considered to be a victim in the ECHR sense of the word: this is discussed below. Secondly, it is to be noted that there is a significant difference from the UK model in that the right to bring an action phrased as one under the statute is a last resort remedy if an existing action in damages, presumably in tort or for breach of the Irish Constitution, does not serve the function; the reference to the damages being limited to those in tort may be an indication of the classification of the remedy, though perhaps a weak one given that it is used to indicate jurisdiction as to quantum. It is clarified that there is no criminal action that can be brought. The limitation period for the new action is a year, extendable in the interests of justice. Note also that, as is described in Chapter 10, where the Irish courts grant a declaration of incompatibility, the person affected by the improper statute may make an administrative application for an ex gratia payment. Under the Human Rights Act 2004 of the ACT, there is a duty on public bodies not to breach rights and to take them into account, discussed in Chapter 7. Declarations of inconsistency can be sought if a breach of rights is required by a statute: but if the public body breached rights without authority, or is about to do so, an action can be commenced (though damages cannot arise under the statute, but have to arise under another cause of action, as is set out in Chapter 10). Section 40C of the Act provides for proceedings to be commenced by a person who claims victim status; as discussed below, and in contrast to the NZBORA and the European statutes, this must be a natural person. Any action has a limitation period of a year, unless the court allows a different period (the discretion not being limited expressly to extending the time limit). In addition, there may be reliance on rights in other proceedings. The relevant language is: Part 5A Obligations of public authorities … 40C. Legal proceedings in relation to public authority actions (1) This section applies if a person— (a) claims that a public authority has acted in contravention of section 40B; and (b) alleges that the person is or would be a victim of the contravention. (2) The person may— (a) start a proceeding in the Supreme Court against the public authority; or (b) rely on the person’s rights under this Act in other legal proceedings. (3) A proceeding under subsection (2)(a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

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Under the Victorian Charter of 2006, there is a similar duty on public authorities not to breach rights and to take them into account; declarations of inconsistency can be sought. However, proceedings (and any remedy) must be based on some other cause of action (including judicial review): in essence, it

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is indicated that a requirement of unlawfulness in the other action can arise from the breach of the Charter. The relevant provisions are: 39. Legal proceedings (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter. (2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right— (a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and (b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

Given the absence of a cause of action, there is no limitation period set out in the Act, but there are commencement provisions, which are discussed below.

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II. WHO CAN BRING AN ACTION?—STANDING

The outline above of the many procedural issues includes several more significant ones. The first of those is the question of standing to bring an action that alleges a breach of human rights. In the case of the NZBORA and the UK devolution legislation, there is an initial question of whether there is any action that can be brought at all (which in the devolution setting is whether the action arises under the devolution statute or the Human Rights Act).

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A. Implying a Cause of Action The background to whether a cause of action should be implied is not only that the international rights documents require remedies, but also that there is a lengthy history of judicial implication of remedies in situations where that is necessary to afford some vindication.

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i. Constitutional Settings The provisions relevant in the US are also worth mentioning. Its Constitution has been found to include the judicial function of ensuring that actions by executive officials and legislators conform to the Constitution, including by striking down non-compliant actions. Where such actions have an adverse impact on an individual’s rights, there may be a remedial step, for example excluding evidence in criminal cases following improper police action. A significant body of jurisprudence has arisen relating to damages for constitutional torts, which arise by implication. There is also a specific cause of action

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for breaches of constitutional rights added in 1871 (under what is commonly called the Ku Klux Klan Act), that is codified as USC 42, section 1983 and noted in Chapter 10. For present purposes, it is important to note that it is limited to those who seek to make use of state law to breach a constitutional right. Violations by Federal officials may lead to an implied cause of action based on breach of the Constitution. In Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics,19 a warrantless home search and arrest without reasonable grounds was carried out. The government accepted that there should be a remedy, which was to be found in the tort law of the State in which the breach of rights had occurred, such that there was no Federal remedy unless Congress provided one. The role for the Constitution, and in particular the Fourth Amendment right to be free from unreasonable search and seizure, was to limit the defences that might be claimed by the Federal agents. The Supreme Court, by a majority, disagreed and determined that there was a right of action for breach of the Fourth Amendment, for which damages would be the remedy. As Brennan J noted for the majority:20 That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. … Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But it is ... well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. (Bell v Hood 327 US 678 at 684).

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The concurring judgment of Harlan J noted that judges were able to determine remedies to implement the policies of the common law or of a statute (which might not be clear on the remedy) and so it would be anomalous if they did not have the same competence in relation to legal interests protected via the Constitution. The only difference he could discern was that the Constitution was primarily aimed at restraining the government.21 He also commented that case law to the effect that Federal courts had inherent equitable powers to protect constitutional interests without express Congressional authority supported the view that there must be a power to award damages.22 The Irish Constitution is a fundamental law one, and Irish courts have ruled that damages and other remedies might be available for breaches of it, despite the absence of an express remedy clause. There is, however, an obligation to enforce, found in Article 40.3.1, which indicates that ‘The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and 19 Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics 403 US 388; 29 L Ed 2d 619 (1971). 20 ibid at 395–96. 21 ibid at 403–04. 22 ibid at 404–06.

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vindicate the personal rights of the citizen’. Accordingly, in Byrne v Ireland,23 the Supreme Court ruled that there was no state immunity from suit in light of the Constitution. This arose in the context of a personal injury action based on negligence by state employees, and vicarious liability for the tortious damage was claimed. Walsh J noted that:24 Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals.

Budd J noted that the ‘personal rights given to the citizen’ under the Constitution would be ‘quite meaningless, in so far as suing the State is concerned, unless they were in some way enforceable against the State’.25 The central part of the solution, he indicated, was that the Constitution provided for courts as well, and so the mechanism for securing those rights. He also noted that any idea of state immunity was absent from the Constitution, given the positive duty in Article 40(3) to vindicate personal rights.26 This was extended to a breach of rights by a private actor in Meskell v Coras Iompair Eireann.27 Walsh J noted:28

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It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v Ireland, that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right.

This need for a remedy was held to raise the prospect of evidence being excluded in the criminal setting in DPP v Kenny.29 This concerned the admissibility of evidence obtained pursuant to a warrant that had been issued without the judicial officer making any proper inquiry as to the basis for issuing it. The Supreme Court determined that a conscious breach of the Constitution should lead to the rejection of evidence unless there were exceptional reasons. A developed version of this jurisprudence as it relates to constitutional damages is Grant v Roche Products,30 which was concerned with a wrongful

23 Byrne v Ireland [1972] IR 241. See the discussion by Walsh J and by Budd J of the origin of the concept, its export with the common law and the idea of the Crown, and its undesirability in a modern state. 24 ibid at 281. 25 ibid at 292. 26 ibid at 298. 27 Meskell v Coras Iompair Eireann [1973] IR 121. 28 ibid at 132–33. 29 DPP v Kenny [1990] 2 IR 110. 30 Grant v Roche Products [2008] 4 IR 679, [2008] IESC 35.

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death claim arising out of a suicide alleged to have been linked to the use of a particular drug. Part of the claim on behalf of the plaintiff was that damages were needed to mark a breach of the constitutional right to life (found in Article 40.3). The argument for the defendants in the case was that this vindication was a matter for the criminal or regulatory law, such that tort law was only about allocating damages. Hardiman J in the Supreme Court dismissed this argument and summarised the law as follows: … it has been recognised at least since Meskell v Córas Iompair Éireann [1973] IR 121 at p 132 that constitutional rights are capable of enforcement by action, ‘even though such action may not fit into any of the ordinary forms of action in either common law or equity’ thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible. Still more explicitly than the dictum of Walsh J quoted above is that of Henchy J in Hanrahan v Merck Sharpe and Dohme (Ireland) Ltd [1988] ILRM 629 when he said at pp 635 and 636:‘I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions [Article 40.3.1 and Article 40.3.2 of the Constitution] as to the personal rights and the property rights of the plaintiffs as citizens.’ This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the personal rights Articles of the Constitution.

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His Honour then quoted academic writing to the effect that a tort could be redefined to cover a constitutional breach or the courts could allow a direct action for breach of constitutional rights. ii. Statutory Bills of Rights

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The absence of a remedy provision in NZBORA was in contrast to what was to be provided in the Human Rights Act 1993 (NZ), but more importantly was in contrast to what had been proposed initially, namely language similar to that in the Canadian Charter. The Draft Bill from 198531 contained the following as clause 25: Enforcement of guaranteed rights and freedoms: Anyone whose rights or freedoms as guaranteed by this Bill of Rights have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

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Commentary in the accompanying White Paper suggested that ‘In the great bulk of the situations covered by this Bill, the law and the courts will be able to provide a remedy from their present armoury’.32 Specific examples given

31 The Draft Bill and accompanying White Paper are one document, available from www. justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rightsprotection/about-the-new-zealand-bill-of-rights-act. 32 Paragraph 10.184.

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included the exclusion of evidence wrongfully obtained and the right to seek habeas corpus and damages for wrongful imprisonment. One of the changes made when the statute emerged some years later was that there was no express remedy provision. An early comment was made in Ministry of Transport v Noort; Police v Curran.33 This involved the question of the consequences of an alleged breach of the right of access to lawyers in detention (the facts involving blood testing in relation to drink driving). Cooke P noted contrasts between the NZBORA and the Canadian Charter (such as the latter’s supreme law status and the former’s interpretive obligation), including the absence of a remedy provision; but he immediately downplayed the potential significance of this:

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[T]he New Zealand Act contains no express provision about remedies or the exclusion of evidence. We have no counterpart of s 24(1) and (2) of the Canadian Charter, which deal expressly with those matters. This difference is probably not of much consequence. Subject to ss 4 and 5, the rights and freedoms in Part II have been affirmed as part of the fabric of New Zealand law. The ordinary range of remedies will be available for their enforcement and protection.34

The remedy on the facts was the exclusion of evidence, Cooke P noting that he had

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no doubt that it is consistent with the Bill of Rights Act to say at least that evidence obtained immediately after a violation should not be admitted unless the prosecution proves that it would have been forthcoming or discovered whether or not there had been a violation.35

There was also an argument as to damages, which was dismissed on two bases, first that the Court of Appeal could not award damages on an appeal from a summary conviction on a point of law; and secondly that no remedy was required beyond the exclusion of evidence and quashing of the convictions. Interestingly, he noted that this was consistent with the approach of the ECtHR under its ‘just satisfaction’ express power. Confirmation that an action seeking damages was permissible came in Simpson v Attorney-General (Baigent’s Case),36 in which police continued to 33 Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260. The focus of the argument in the case seems to have been whether there was a breach of the substantive right in play; there seems to have been no serious argument that there could be no remedy if a breach was found. 34 ibid at 266. 35 ibid at 275. Richardson J noted at 285 that there should ‘prima facie’ be an exclusion of evidence obtained in breach of NZBORA. The case law on whether this was the correct approach developed subsequently: the detail of that is beyond the scope of this book, but the point arising remains that the absence of a remedy clause did not prevent the granting of a remedy of excluding evidence. In subsequent case law, this prima facie exclusion approach developed, but was then modified into a balancing act; the New Zealand legislature then enacted the Evidence Act 2006, which codified the balancing act—ie, the court must weigh the importance of admitting the evidence as against the circumstances of any breach of rights involved. Other examples of remedies are discussed below. 36 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667. A similar outcome was reached in Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994]

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execute a search warrant on an address even when it became clear that the warrant had been sought for the wrong address. The plaintiff sought damages for various torts and also for breach of the NZBORA right not to be subject to unreasonable search and seizure (section 21 of the Act). A five-judge Court of Appeal allowed the latter cause of action to proceed. Hardie Boys J dismissed the central government submission, which was based on the removal of the remedy clause. He speculated that it had been dropped when the supreme law status was modified.37 He then noted that there was no intention expressed during parliamentary proceedings to remove the prospect of a remedy: Following its first reading, the Bill was again referred to the Justice and Law Reform Select Committee. The report the Department of Justice prepared for the Committee referred to submissions that the remedies for infringement of rights should clearly be spelt out. Its advice was that that was unnecessary: the Courts were able to determine themselves whether a remedy should be given.38

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Hardie Boys J also both commented on the jurisprudence from international human rights tribunals that damages might be necessary to secure an adequate remedy in domestic law,39 and engaged in a survey of constitutional jurisprudence as to the existence of a remedy, including damages,40 leading to the summary as to the NZBORA that:41 The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights that the Bill affirms. It is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed. I see no reason to think that this should depend on the terms of a written constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection the obligation of every civilised state. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases 3 NZLR 720, another five-judge Court of Appeal decision (delivered on the same day as Baigent’s Case). This also related to police actions that were challenged via traditional torts. Note that an argument that there should be an implied remedy for a breach of the Bill of Rights 1688 (which, as noted in Chapter 3, is one of the constitutional statutes in force in New Zealand) was rejected in Marsh v Attorney-General [2010] 2 NZLR 683. 37 Cooke P agreed with this; he also noted that it was not proper to interpret a statute primarily on the basis of draft proposals, and suggested that it was more valuable to refer to the Explanatory Note to the Bill and its indication that the courts would enforce the rights ‘in different ways in different contexts’: [1994] 3 NZLR 667, 676–77. 38 ibid at 699. 39 ibid at 699–700. Inter alia, he noted that ‘The Human Rights Committee has given a strong lead in this respect’ and commented that ‘Citizens of New Zealand ought not to have to resort to international tribunals to obtain adequate remedy for infringement of Covenant rights this country has affirmed by statute. I consider that the Courts are obligated to provide those remedies by domestic law’. 40 ibid at 700–02. 41 ibid at 702.

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to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning.

In short, if a state declared that rights are being protected, that brings with it a judicial remedy for breaches as a matter of course. For Casey J, this conclusion was supported by a purposive approach to the NZBORA and the international obligation underlying it (which, as noted in Chapter 2, in relation to the ICCPR is the provision in Article 2(3) that there should be remedies, and that judicial remedies should be developed). Accordingly, the absence of an express remedy provision did not impede the ability of the New Zealand judiciary to perform this international obligation in light of several features:42 first, the value of the rights set out in the Act to civilised society was such as to ‘justify a liberal purposive interpretation’ even though it was an ordinary statute; that purpose was to affirm the value of the ICCPR, including its remedy provisions, which meant that ‘it would be wrong to conclude that Parliament did not intend there to be any remedy for those whose rights have been infringed’. Secondly, he noted that statute created a legal climate that was rights protective, and had both the interpretive obligation (discussed in Chapter 8) and the Attorney-General’s reporting duty (discussed in Chapter 5). However, as such provisions ‘do little to vindicate the individual rights so strongly affirmed’, their protection required an appropriate remedy for a violation, since otherwise there would be ‘what most would regard as no more than legislative window-dressing, of no practical consequence’, which could not have been parliamentary intention. Finally, Casey J noted that New Zealanders were able to make complaints to the UN Human Rights Committee (discussed in Chapter 2), which Parliament must have known when it adopted the NZBORA, meaning it would be strange for a remedy to be provided in the international sphere if there was not one in domestic law. This latter point is perhaps not particularly strong, given that the UN Human Rights Committee does not have any power to grant a remedy itself: but the fact that the international obligation is to develop a domestic remedy is clearly relevant when the judicial branch of the state is exercising its powers. Gault J dissented, because his view was that the other causes of action pleaded provided an adequate prospect of a remedy; this alternative model has found partial favour in Ireland and full favour in Victoria. He commented:43 … it is by reference to the existing law initially that remedies are to be provided for violations of the rights and freedoms affirmed in the Bill of Rights Act. Where there is no available effective remedy the legislature must be presumed to have contemplated that there would be although subject to any statutory exclusions or immunities. In those circumstances it will be for the Courts to ensure the availability of effective remedies adopting a flexible approach as they have in the past. Where that necessitates relief in the nature of a tortious remedy breach of statutory duty may be alleged. In appropriate cases that may be against the Crown for alleged vicarious liability.

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ibid at 691. ibid at 713.

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Central to his reasoning was the fact that the various rights set out in NZBORA were ones already protected by various different means, and that the statute represented an increment to the existing law rather than something separate from it, so that ‘It seems unlikely that the rights enumerated in the Bill were singled out for some sweeping new form of protection’.44 He favoured the view that the various duties imposed on public bodies should be seen as amounting to statutory duties and so giving rise to a cause of action for breach of statutory duty if necessary. In short, Gault J did not contend that there was not a remedy: he simply queried its nature (and in particular whether there was a need to construct a remedy of the special sort suggested by the majority, which is discussed below). Casey J in contrast concluded that the unlawful search was not met by adequate remedies from the private law actions, and so a remedy under the NZBORA should be available. Mackay J similarly was impressed by the basic proposition that a right requires a remedy and affirmation of rights without a remedy cannot have been the intent behind the statute;45 and he supported the view that the remedy provisions of the ICCPR were relevant to a purposive interpretation of the statute so as to include a remedy.46 The existence of a remedy in New Zealand despite legislative silence has not been challenged in subsequent case law. Indeed, there has been acceptance that damages are proper.47 So in Attorney-General v Udompun,48 the Court of Appeal upheld a finding that there had been a breach of the duty in section 23(5) of the NZBORA, reflecting Article 10 of the ICCPR, that detainees be treated with humanity and dignity. This arose from the inadvertent failure to ensure that Mrs Udompun had sanitary products needed as she was menstruating, compounded by not allowing her to change clothes or have a shower; inadequate provision of food was also noted. The government accepted that damages were proper in that context, which the Court endorsed as ‘well made’.49 When the issue of damages was raised in front of the relatively new Supreme Court of New Zealand, the focus was the circumstances in which that remedy should consist of damages and quantum: Taunoa v Attorney-General.50

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ibid at 711. ibid at 717–18. 46 ibid at 718. He commented ‘The omission of art 25 of the White Paper draft does not show an intention that there should be no remedy, but rather that Parliament was content to leave it to the Courts to provide the remedy. The inclusion of a statement to that effect in the Act was unnecessary’. 47 Indeed, in Martin v Tauranga District Court, which related to a stay of criminal proceedings for undue delay—the agreed remedy on the facts—Richardson J mused that there might be a presumption in favour of damages: [1995] 2 NZLR 419, 427. This would allow other interests in favour of a trial, including the public interest in a conviction, to be taken into account. 48 Attorney-General v Udompun [2005] 3 NZLR 204. 49 ibid at [173]. 50 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. 45

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Blanchard J supported as realistic the Attorney-General’s acceptance that Baigent’s Case was correct to clarify that there was a remedy.51 The UK situation also involves the devolution legislation, which contains limits on remedies but actually does not specify that remedies can be granted under the devolution statutes. This is an important question because if there is a breach of the ECHR, an action taken pursuant to the relevant devolution statute is unlawful and beyond competence (and so of no effect) rather than giving rise to any form of discretion as to the remedy. Accordingly, in HM Advocate v R,52 the Privy Council had to consider whether there was a remedy arising under the Scotland Act 1998 in relation to an act that was made illegal by section 57 of the Act, namely that members of the executive cannot ‘make any subordinate legislation or do any other act’ that breaches the ECHR. The argument for the Scottish Ministers was that the ‘act’ in this context was a quasi-legislative act (such as issuing circular instructions or other forms of soft law that would usually be followed), meaning that the remedy for any other form of act—such as the decision on the facts, namely to proceed to trial despite significant delay—arose under the Human Rights Act 1998, and so was discretionary. Lord Hope, one of the majority, dismissed the argument, finding that ‘act’ was in its context to be given a wider meaning,53 and also that the language of section 100 together with section 57 made it clear that there was to be a remedy within the Scotland Act 1998 and not just the Human Rights Act 1998.54 Lord Rodger, also one of the majority, explained how the constitutional nature of the Scotland Act meant that it has to be accompanied by a remedial regime, citing New Zealand jurisprudence:

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121. … The Scotland Act 1998 is a major constitutional measure which altered the government of the United Kingdom. ... It would ... seem surprising if ... the Scotland Act 1998 itself did not enable proceedings to be raised where either the Parliament or a member of the Scottish Executive had overstepped the mark and had done something that was incompatible with Convention rights—even something as grave as ill-treating a prisoner so badly as to violate article 3. If that were indeed the position, then the absence of any effective public law remedies under the Scotland Act 1998 would mark it out from other constitutional documents. For the sake of brevity, I refer to Simpson v Attorney General (Baigent’s Case) [1994] 3 NZLR 667 and to the authorities cited by the New Zealand Court of Appeal, in particular by Hardie Boys J, at pp700–702.

A majority of the House of Lords in Somerville v Scottish Ministers55 agreed that this approach was correct. The majority decided that an action could be brought under the Scotland Act 1998, the contrary argument being that the 51 ibid at [231]. At [4] and [107], Elias CJ noted the acceptance of the government that damages might be necessary for some breaches. The focus then is when there might be a remedy, including when damages might be proper, rather than whether there is a remedy. 52 HM Advocate v R [2002] UKPC D3, [2004] 1 AC 462. 53 ibid at [45]–[48]. 54 ibid at [50]–[51]. 55 Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734.

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action had to be brought under the Human Rights Act 1998. The result of the majority decision was that the time limit of the latter statute did not apply, and so express language to introduce a time limit was added (as has been noted above).

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It was noted above that there could be wider or narrower aims behind introducing a cause of action: there is merely replicating a process that would otherwise occur in an international tribunal, a narrower aim; or, more widely, courts can be made a forum for analysis of human rights standards, which might support allowing public interest litigation without rules as to standing. In the context of who can bring an action, it seems that the narrower aim prevails in general. i. Natural or Legal Persons?

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In the international documents, a difference between the ICCPR and the ECHR is that the former only guarantees rights to natural persons; under Article 34 of the latter, legal persons can make an application, the limitation being that they are not governmental bodies (see Chapters 2 and 7). The domestic bills of rights largely adopt this split, save that the rights set out in the NZBORA apply also to corporations ‘so far as practicable’: section 29. The Australian statutes make it clear that only humans have the rights set out: ACT—Human Rights Act 2004 Part 2 Human rights 6. Who has human rights? Only individuals have human rights. Victoria—Charter of Human Rights and Responsibilities Act 2006 3. Definitions (1) In this Charter— … person means a human being …

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The UK and Irish statutes are silent, and so follow the international format for various reasons. First, it is consistent with a purposive interpretation; whilst this might not find favour in Ireland (where the normal meaning of words is usually followed), the statute there schedules the entire ECHR, including Article 34, and so effect is being given to that. In any event, the general provisions in their respective interpretation statutes indicate that the use of the word ‘person’ includes a legal person unless the context precludes that

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presumption: see section 18(c) of the Interpretation Act 2005 (Ireland) and Schedule 1 to the Interpretation Act 1978 (UK). ii. Victims Most of the case law in the UK has concerned the definition of a governmental body, using Article 34 as the key for defining who is bound by the statute. In terms of who can make use of the Act, in A v BBC,56 Lord Reed noted that he was prepared to proceed on the basis that a public broadcaster such as the BBC might be able to claim victim status and so be able to invoke ECHR rights. There is also the case of R (Rusbridger) v Attorney-General,57 mentioned above at paragraph 17, in which journalists were allowed to bring a claim for a declaration of incompatibility even though there was no prospect of their rights to freedom of expression (to call for the abolition of the monarchy) being curtailed by the theoretical use of the Treason Felony Act 1848. Lord Steyn commented on the “broad approach which the European Court of Human Rights adopts to the concept of victim” which meant that the journalists had sufficient interest to bring the action in light of their “interest and standing”.58 In Ireland, the non-use of the victim language—referring instead to a person affected in a way that might support a tort action—raises the prospect of a governmental body making a claim if the language is not interpreted as being co-extensive with Article 34. This may be limited to a body that is invariably private but exercising a public function, ie a hybrid public authority, since those who are clearly organs of the state are intended to grant or be bound by rights rather than benefit from them. In the Australian statutes, the limitation of rights to individuals may make this unlikely (though it is possible that there will be individuals whose actions are those of a public nature). The situation under the NZBORA may be more open to argument, given that the cause of action is implied, and so the absence of restrictions to victim status will mean that common law rules of standing apply. Once the nature of the body had been determined to be one that can make use of rights, the main question is whether there had been an infringement of interests that allows a claim to be made. This has been considered by the UK Supreme Court. In AXA General Insurance Ltd and others v HM Advocate

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A v BBC [2014] UKSC 25, [2014] 2 WLR 1243, [69]. R (Rusbridger) v Attorney-General [2003] UKHL 38, [2004] 1 AC 357. 58 ibid at [21]. He cited Norris v Ireland (1988) 13 EHRR 186 and described it in the following terms: ‘a homosexual man complained that the criminalisation of homosexual conduct in Ireland violated his article 8 right to respect for his private life, although he accepted that the risk of being prosecuted was remote. The court accepted that he was a victim. Even an administrative policy of not prosecuting for the offence in question would not have made a difference’. See the discussion below of the question of the remoteness of an impact on a right in play to allow standing. Both Norris and Rusbridger were trying to change the law: in Rusbridger, the House determined that the challenged statute could not conceivably be enforced in light of the Human Rights Act, but this went to the discretion as to remedy: see Chapter 10. 57

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and others,59 the issue was the validity of the Damages (Asbestos-related Conditions) (Scotland) Act 2009: this had been introduced to overturn case law that particular conditions related to asbestos exposure did not amount to injury because they did not increase the risk of other conditions or reduce life expectancy. The statute provided that these conditions—pleural plaques—did constitute harm, and it applied this conclusion retrospectively. The challenge to the statute was based on the right to property in the ECHR, and was brought by various insurance companies who would have to meet the costs of the claims that were now to be considered valid. Although the claim was dismissed on the merits, one point raised was whether the companies were victims and they won on this point. In essence, the ruling as to the procedural point was that an argument by the government that there had to be a direct effect on a person or entity was too narrow. The contention for the government was that the property of the insurance companies was too remote because any effect on them relied on their contracts with the employers who might be sued and would depend on the rulings in any cases that were taken against employers in light of the statutory amendment rather than being affected directly by the statute. The Supreme Court determined that whilst it was proper to suggest that something that could be classed as a direct effect was required to be within Article 34 of the ECHR, that classification could arise from the risk that there would be an impact on the right in question. Lord Hope suggested, based on case law from Strasbourg, that the distinction was between ‘a risk of being directly affected and a risk which is purely hypothetical’ (which he accepted was not necessarily easy);60 Lord Reed noted that account had to be taken of the fact that a broad rather than formalistic interpretation was needed to ensure the effectiveness of the ECHR, such that a person who is ‘a member of a class of people who risk being directly affected by it’ has victim status.61 He noted that case law from the ECtHR had granted the right to bring action to those who were affected by the implementation of a decision, but also those who might be affected by a legal situation: he noted that there had been restricted situations such as not allowing a general challenge to deportation law except by those who had been made subject to a decision in the course of deportation proceedings. Lord Mance agreed but formulated a more precise test: ‘it is sufficient for victim status under article 34 that there is a real risk that a person’s Convention rights will be directly affected in the not too distant future’.62 A supplemental question that arises from the structure of the statutes is the impact of the availability of other remedies. In Ireland, there is no cause of action under the statute unless other causes of action are inadequate (and in Victoria there is no fresh cause of action). In the ACT and the UK, it might be open to 59 AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, [2012] 1 AC 868. 60 ibid at [27]. 61 ibid at [111]. 62 ibid at [87].

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argument that the existence of an alternative cause of action means that there is a loss of victim status for the purpose of the breach of rights argument. This may turn on the nature of the remedy, however, and what arises from the discussion in Chapter 10 is that it is a public law rather than private law remedy, meaning that it may be inappropriate to consider victim status lost since that would mean that the remedy—which might be declaratory—could not be granted. iii. Comparative Material The Canadian Charter’s provisions as to enforcement of rights indicates in section 24(1) that ‘Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied’ may seek a remedy from a court. This is consistent with the relatively narrow approach outlined above. A contrasting provision is that found in the South African Constitution 1996, which expressly provides both for group claims and also for public interest claims. Article 38 provides:

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38. Enforcement of rights Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are— (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.

In the interim Constitution of 1993, similar language had been found in section 7(4), including the right to ‘appropriate relief’ and the right of various people to bring an action, including on public interest grounds. It is clear that ‘anyone’ includes a corporate entity. This is made express in section 8 of the Constitution of 1996, which indicates both that ‘a natural or juristic person’ is bound by the Bill of Rights (to the extent necessary in light of the nature of any duty concomitant on the particular right) and also that ‘A juristic person is entitled to rights ‘to the extent required by the nature of the rights and the nature of that juristic person’. Nevertheless, it is also necessary that there be an interest affected, whether the person is natural or juristic. In Giant Concerts CC v Rinaldo Investments (PTY) Ltd and Others,63 the Constitutional Court had to consider whether a concert-organising company could object to the sale of property by a local authority to Rinaldo for the purpose for establishing a film studio. Giant did not claim to act in the public interest, but in its own commercial interest, and

63 Giant Concerts CC v Rinaldo Investments (PTY) Ltd and Others [2012] ZACC 28, 2013 (3) BCLR 251 (CC).

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so the question was its standing. It had objected to the sale, and sought to challenge the decision on the basis that there was a breach of the right to just administrative action (in section 33 of the Constitution). Cameron J for the court noted that the question of standing was distinct from the merits of the complaint, such that standing was not provided by reason of the action being unconstitutional: rather, the question was the impact that the decision had on the interests of the person or entity,64 with the result that an unlawful decision might be beyond challenge by the claimant65 because ‘there is no broad or unqualified capacity to litigate against illegalities’.66 The additional feature required was summarised as being that ‘his or her rights or interests are directly affected by the challenged law or conduct’, which principle was to be ‘generously and broadly interpreted’ in order to support the Constitution, and so was wider than the common law approach, but had to turn on all the circumstances and so could not be subject to a general rule that covered every situation.67 On the facts, it was not made out because Giant had not been able to demonstrate that it had a proposal to purchase the land in question and so had no ‘serious commercial interest’68 as opposed to an inadequate hypothetical or academic interest. It was therefore different from earlier cases in which standing had been granted (and which Cameron J indicated gave rise to his summary of the law): (i)

(ii)

(iii)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others:69 challenge to statute requiring self-incriminating statements could be brought by people not threatened with prosecution. Minister of Home Affairs v Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs and Others:70 challenge to regulations in the immigration area (on the basis of the method of issue) could be brought by a law firm practising in the area. Kruger v President of Republic of South Africa and Others:71 a challenge to Presidential proclamations in the field of compensation for road traffic injuries was permitted in the case of a personal injury lawyer. Skweyiya J said A personal injury attorney must be able to understand and engage with the legislative scheme on which he or she and his or her clients rely in order to seek compensation. The uncertainty created by the issue of the two

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ibid at [33]. ibid at [34]. 66 ibid at [35]. 67 ibid at [41]. 68 ibid at [51]. 69 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13, 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC). 70 Minister of Home Affairs v Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs and Others [2003] ZACC 10, 2003 (5) SA 281 (CC), 2003 (8) BCLR 838 (CC). 71 Kruger v President of Republic of South Africa and Others [2008] ZACC 17, 2009 (1) SA 417 (CC), 2009 (3) BCLR 268 (CC). 65

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Proclamations and their effect on Mr Kruger’s ability to manage his clients’ affairs are reason enough to grant standing to the applicant.72

It was clarified that this arose not just from financial self-interest, but because there was an interest arising from the perspective of the interests of the administration of justice.73 This seems to be wider than the victim test, and so even before the right of public interest litigants to come forward under section 38(d) there is wide access to the courts to protect rights.74 The use of public interest litigation has featured in significant cases: for example, the successful challenge to the then government policy of limited provision for treatment for HIV/AIDS in Minister of Health v Treatment Action Centre (No 2)75 was taken by ‘a number of associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections’.76

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C. Interventions and Parties Also involved in the Treatment Action Centre case were additional groups who were allowed to take amicus curiae positions.77 The ECHR has specific provisions allowing for third-party interventions: Article 36. This has been used by various public interest groups.78 For example, in Kiss v Hungary,79 a successful challenge to the automatic disenfranchisement of all people placed under

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ibid at [25]. ibid at [26]. 74 Note also that section 167(6)(a) of the Constitution requires that there be a process to allow a challenge to be taken directly to the Constitutional Court. 75 Minister of Health v Treatment Action Centre (No 2) [2002] ZACC 15, 2002 (5) SA 721, 2002 (10) BCLR 1033. 76 ibid at [3]. 77 Note also that the interpretive obligation in section 39 of the Constitution—that all other legislation be construed to promote the spirit and purposes of the Bill of Rights—was used in The Children’s Institute v The Presiding Officer of the Children’s Court and Others [2012] ZACC 25, 2013 (1) BCLR 1 (CC), 2013 (2) SA 620 (CC) to construe the provision in the Uniform Rules of Court that permits an amicus curiae to be involved in the case to allow that body to adduce evidence as well. Khampepe J for the court noted that, as permitting an amicus to participate was designed to assist courts to promote the Constitution, it was necessary to construe the rules in the way that best secured this: and ‘27. … In public interest matters, like the present case, allowing an amicus to adduce evidence best promotes the spirit, purport and objects of the Bill of Rights’. 78 In addition to the case noted in the text, see also ZH v Hungary App no 28973/11, [2014] MHLR 1, and Ke˛dzior v Poland App no 45026/07, [2013] MHLR 115. This organisation also represents people before the Court: for example, Nataliya Mikhaylenko v Ukraine App no 49069/11, [2014] MHLR 169. Other organisations also take cases: for example Frodl v Austria App no 20201/04, 8 April 2010, was a successful challenge to the restrictions on voting by prisoners in Austrian law. Mr Frodl was represented by the AIRE Centre, a London-based NGO that focuses on rights arising in European law, including the ECHR and also the European Union. In other words, specialist bodies may intervene or represent people before the ECtHR. Although as noted below there are no interventions before the Human Rights Committee, there may be specialist representation. 79 Kiss v Hungary App no 38832/06, [2010] MHLR 245. 73

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guardianship was brought by the Mental Disability Advocacy Center, a transnational Non-Governmental Organisation, and the Harvard Law School Project on Disability was permitted to intervene. The ECtHR assists the process by publishing indications of questions that it will consider in a particular case. In contrast, the proceedings of the Human Rights Committee are all private and so there is no prospect for interventions: however, this is no doubt because the main mechanism used in the UN system is the reporting process outlined in Chapter 2, in which NGOs are specifically encouraged to intervene. In domestic settings, the different jurisdictions will have their own approaches to allowing interventions. What is noted is that the statutory regimes have some specific provisions making it mandatory to ensure that the government is able to intervene in various instances and become a party to proceedings. This is particularly so in relation to the prospect of a declaration of incompatibility, but some statutes have similar requirements in relation to any significant matter arising under the bill of rights statute. The statutory provisions are invariably supplemented by procedural rules. The position in New Zealand starts with its Human Rights Act 1993, which relates to its non-discrimination provision. It allows both the Attorney-General and the Human Rights Commission to be involved in proceedings before the Human Rights Review Tribunal and on appeal from the Tribunal. First, the language relating to the Attorney-General is as follows: 92G. Right of Attorney-General to appear in civil proceedings (1) The Attorney-General may appear and be heard, in person or by a barrister or solicitor,— (a) in proceedings before the Human Rights Review Tribunal alleging a breach of Part 1A, or alleging a breach of Part 2 by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990: (b) in proceedings in any of the following courts in relation to proceedings of a kind referred to in paragraph (a) that are or have been before the Human Rights Review Tribunal: (i) a District Court: (ii) the High Court: (iii) the Court of Appeal: (iv) the Supreme Court. (2) The right to appear and be heard given by subsection (1) may be exercised whether or not the Attorney-General is or was a party to the proceedings before the Human Rights Review Tribunal. (3) If, under subsection (1), the Attorney-General appears in any proceedings of a kind described in that subsection, he or she has, unless those proceedings are by way of appeal, the right to adduce evidence and the right to cross-examine witnesses.

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In relation to the Commission, there is slightly different provision. The Commission is continued in existence by the 1993 Act. There is a body, the Office of Human Rights Proceedings, which is formally part of the Commission and exists under the 1993 Act; it may choose to represent people before

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the Tribunal. The Commission’s right to appear is dependent on its power (in section 5(2)(a)) to be an advocate for human rights. (There are references to section 92B, which relates to proceedings before the Human Rights Review Tribunal, and section 92E, which relates to civil proceedings that may follow from an inquiry carried out by the Commission.) 92H. Right of Commission to appear in civil proceedings (1) The Commission may appear and be heard, in person or by a barrister or solicitor,— (a) in proceedings before the Human Rights Review Tribunal; and (b) in proceedings in any of the following courts in relation to proceedings that are or have been before the Human Rights Review Tribunal: (i) a District Court: (ii) the High Court: (iii) the Court of Appeal: (iv) the Supreme Court. (2) The right to appear and be heard given by subsection (1) may be exercised— (a) whether or not the Commission is or was a party to the proceedings before the Human Rights Review Tribunal; but (b) only if the Commission considers that the exercise of the right will facilitate the performance of its functions stated in section 5(2)(a). (3) If, under subsection (1), the Commission appears in any proceedings of a kind described in that subsection, it has, unless those proceedings are by way of appeal, the right to adduce evidence and the right to cross-examine witnesses. (4) This section is not limited by section 92B or section 92E or section 97.

In relation to proceedings under the NZBORA, there is nothing in the statute, which makes no provision for proceedings, but the High Court rules make provision to ensure that proper notice is given as to human rights arguments on appeals,80 which will allow the involvement of parties to make arguments.

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New Zealand—Judicature Act 1908—Schedules 2ff—High Court Rules Schedule 6 (as given effect by rule 7.14) Standard directions for appeals 7.

If the appeal involves a significant issue under the New Zealand Bill of Rights Act 1990, or an issue affecting New Zealand’s international obligations or the Crown’s obligations under the Treaty of Waitangi, or an issue arising in the appeal is otherwise of significant public interest, the Judge may direct that the Solicitor-General be served with the notice of appeal and with documents subsequently filed in the appeal. In other cases, the parties must advise the Judge whether they consider that an amicus curiae should be appointed.

In the UK, the Crown is given a right to intervene in relation to declarations of incompatibility, and various Ministers, including from devolved assemblies,

80 Previously, Rule 7.4 and Schedule 5 made provision for standard directions to allow the Solicitor General to be notified in relation to trials that might raise similar issues.

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may seek to intervene. This is set out in section 5 of the Human Rights Act 1998, which states: 5. Right of Crown to intervene. (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court. (2) In any case to which subsection (1) applies— (a) a Minister of the Crown (or a person nominated by him), (b) a member of the Scottish Executive, (c) a Northern Ireland Minister, (d) a Northern Ireland department, is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings. (3) Notice under subsection (2) may be given at any time during the proceedings. (4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the Supreme Court against any declaration of incompatibility made in the proceedings. (5) In subsection (4)— ‘criminal proceedings’ includes all proceedings before the Court Martial Appeal Court; and ‘leave’ means leave granted by the court making the declaration of incompatibility or by the Supreme Court.

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Note that the Equality and Human Rights Commission may intervene in proceedings, institute them, or provide assistance to a party: sections 28 and 30 of the Equality Act 2006. More generally, Practice Direction 16, supplementing Part 16 of the Civil Procedure Rules relating to Statements of Case by claimants requires specificity as to reliance on the Human Rights Act: this will no doubt assist in terms of directions issued as to who should be given notice. There are also relevant provisions under the devolution arrangements. First, the Scotland Act 1998 contains provisions relating to the potential remedy should legislation be found to be outside the competence of the Parliament (or the executive in the case of delegated legislation). As described in Chapter 10, the standard order would be a declaration that the action taken was outside powers (which would mean that it had to be unravelled). However, the statute allows orders to be made non-retrospective and to be deferred to allow corrective action. The notice provisions here are in the following terms: 102. Powers of courts or tribunals to vary retrospective decisions. (3) In deciding whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected. (4) Where a court or tribunal is considering whether to make an order under this section, it shall order intimation of that fact to be given to— (a) the Lord Advocate, and (b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6), unless the person to whom the intimation would be given is a party to the proceedings.

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(5) A person to whom intimation is given under subsection (4) may take part as a party in the proceedings so far as they relate to the making of the order. (6) Paragraphs 36 and 37 of Schedule 6 apply with necessary modifications for the purposes of subsections (4) and (5) as they apply for the purposes of that Schedule. (7) In this section— – ‘intimation’ includes notice, – ‘the appropriate law officer’ means— (a) in relation to proceedings in Scotland, the Advocate General, (b) in relation to proceedings in England and Wales, the Attorney General, (c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.

Section 81 of the Northern Ireland Act 1998 is in similar terms to section 102 of the Scotland Act 1998, including a requirement that notice be given to the government, in the form of the Attorney-General for Northern Ireland and the ‘appropriate authority’ depending on whether the proceedings are brought in Northern Ireland or elsewhere in the UK. In relation to Wales, the granting of primary legislative powers is contained in the Government of Wales Act 2006: section 153 of the 2006 Act is in similar terms to section 102 of the Scotland Act 1998 or section 81 of the Northern Ireland Act 1998. Notice has to be given to the Attorney-General and the Counsel General of the Welsh Assembly (or their equivalents if the action is in Scotland or Northern Ireland). The requirement set out in section 102(3) of the Scotland Act to consider the impact on non-parties makes the point that there may be an impact on others. They may seek to be parties. In the AXA General Insurance case, described above, another procedural matter was whether a number of individuals who had been diagnosed with pleural plaques caused by negligent exposure to asbestos, and who were involved in litigation or planned to be, could be parties to the proceedings. This turned on rule 58.8(2) of the Rules of the Court of Session 1994, which allowed a person ‘directly affected by any issue raised’ to apply to be joined in the litigation. Their contention was that they would be financially disadvantaged if the insurers’ challenge to the legislation succeeded. At first instance, their intervention was permitted, but this was overturned by the Inner House of the Court of Session. The Supreme Court reinstated the decision at first instance, finding that the test of being ‘directly affected’ should be treated like the test applicable to determining whether someone had sufficient interest in bringing a public law claim as opposed to a stricter test that might be relevant in private law proceedings. The Irish statute also requires that notice be given to the Attorney-General when a declaration of incompatibility is to be sought, and also the Human Rights Commission. Ireland—European Convention on Human Rights Act 2003 6. Notice of proceedings under Act. (1) Before a court decides whether to make a declaration of incompatibility the Attorney General and the Human Rights Commission shall be given notice of the proceedings in accordance with rules of court.

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(2) The Attorney General shall thereupon be entitled to appear in the proceedings and to become a party thereto as regards the issue of the declaration of incompatibility.

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Note that the Human Rights Commission is able to institute proceedings relating to human rights matters: section 11 of the Human Rights Commission Act 2000. It also has the specific power to seek leave to appear as amicus curiae in High Court or Supreme Court proceedings: section 8. A practice direction (No 20 of 2003) supplements the statutory provisions by requiring notice of contentions, which will include those under the 2003 Act; more generally, the same practice direction requires any claim for damages to be headed as arising under the 2003 Act. The Australian statutes develop from the two European statutes in that the notice provisions do not apply just in relation to declarations of incompatibility. Section 34 of the Human Rights Act 2004 in the ACT mandates notice to the Attorney-General and the Human Rights Commission (which exists pursuant to the Human Rights Commission Act 2005) in relation to any question arising under the Act if the territory is not already a party to the proceedings; and sections 35 and 36 respectively give the Attorney-General a right to intervene and the Commission a right to seek leave to intervene if the action ‘involves the application of’ the Act. In Victoria, intervention rights are given to the Attorney-General and the Equality and Human Rights Commission in relation to all questions arising under the Charter: see sections 34, 35 and 40. This goes beyond the ACT approach in that the Commission has a power to intervene, not just to seek leave. The Commission is regulated by the Equal Opportunity Act 2010; its powers include those necessary for its functions (section 155), which will cover taking litigation. The relevant language is: ACT—Human Rights Act 2004 34. Notice to Attorney-General and commission (1) This section applies— (a) if— (i) a question arises in a proceeding in the Supreme Court that involves the application of this Act; or (ii) the Supreme Court is considering making a declaration of incompatibility in a proceeding; and (b) the Territory is not a party to the proceeding. (2) The Supreme Court must not allow the proceeding to continue or make the declaration unless the court is satisfied that— (a) notice of the proceeding has been given to the Attorney-General and the commission; and (b) a reasonable time has passed since the giving of the notice for the Attorney-General and the commission to decide whether to intervene in the proceeding.

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(3) For subsection (2), the Supreme Court may— (a) direct a party to give notice of the proceeding to the Attorney-General and the commission; and (b) continue to hear evidence and argument concerning matters severable from any matter involving the application of this Act. (4) Subsection (2) does not prevent the Supreme Court from hearing and deciding a proceeding, to the extent that the proceeding relates to the grant of urgent relief of an interlocutory nature, if the court considers it necessary in the interests of justice. 35. Attorney-General’s right to intervene on human rights The Attorney-General may intervene in a proceeding before a court that involves the application of this Act. 36. Human rights commissioner may intervene (1) The human rights commissioner may intervene in a proceeding before a court that involves the application of this Act with the leave of the court. (2) The court may give leave subject to conditions. Victoria—Charter of Human Rights and Responsibilities Act 2006 33. Referral to Supreme Court (1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if— (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court. (2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not— (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question. (3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court or by the County Court, the referral is to be made to the Court of Appeal. (4) Despite anything contained in any other Act, if a question arises of a kind referred to in subsection (1), that question may only be referred to the Supreme Court in accordance with this section. 34. Attorney-General’s right to intervene (1) The Attorney-General may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter. (2) If the Attorney-General intervenes in a proceeding under this section, then, for the purpose of the institution and prosecution of an appeal from an order made in that proceeding, the Attorney-General may be taken to be a party to the proceeding.

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35. Notice to Attorney-General and Commission (1) A party to a proceeding must give notice in the prescribed form to the AttorneyGeneral and the Commission if— (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33. (2) For the purpose of subsection (1), a notice is not required to be given to— (a) the Attorney-General if the State is a party to the relevant proceeding; or (b) the Commission if the Commission is a party to the relevant proceeding.

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What can be seen from these provisions is that the legislators are keen to ensure that there is full participation from the government and that there are provisions allowing, and in some cases encouraging, the participation of national human rights institutions. The point can also be made that the legislators have also tended to insist that only the higher courts are involved in the making of declarations of incompatibility. The contrast is New Zealand, which limits the formal declaration to a situation involving discrimination, in relation to which there is a specialist tribunal: but, as is shown in the next chapter, the higher courts in New Zealand have decided that they have the power to grant appropriate declarations.

III.

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A common feature of the statutes that expressly create an action is that there is a short limitation period, namely a year. This may be extended if that would be equitable, though the UK statute also indicates that shorter time limits may be applicable to the proceedings through which the challenge is brought. In the international settings, Article 35 of the ECHR has a time limit for proceedings to be brought (set at six months as at the time of writing): this runs from the date when domestic remedies are exhausted, which will mean it runs from the date of the action challenged if there is no remedy. In New Zealand and Victoria, the more general rules as to limitation periods apply (since the action is implied in the former and has to involve existing causes of action in the latter). One question that has arisen is when time starts to run if there is a situation that involves an ongoing breach. This was a point raised in the Somerville case, noted above. This involved a complaint that the segregation of prisoners had been unlawful. The Scottish Ministers contended that this involved a challenge to the decision to order segregation, whereas the prisoners argued that the breach of rights continued until the end of the period ordered. Lord Hope, having noted that the action ran under the Scotland Act 1998, which at the time did not have a limitation period, decided that it was best to indicate

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when time ran under the Human Rights Act 1998 (which will also govern the situation under the amended devolution legislation): 51. … the phrase ‘the date on which the act complained of took place’ in section 7(5)(a) means, in the case of what may properly be regarded as a continuing act of alleged incompatibility, that time runs from the date when the continuing act ceased, not when it began. Otherwise it would not be open to a person who was subjected to a continuing act or failure to act which was made unlawful by section 6(1) HRA to take proceedings to bring it to an end without relying on section 7(5)(b) while it was still continuing after the expiry of one year after its commencement.81

Lord Hope noted that there was a distinction between a continuing act and an act with continuing consequences, and it would be a matter of fact as to what was the proper analysis of any given situation. A similar issue relating to time limits is that of retrospectivity. In international law, the ratione temporis rule means that an obligation that is undertaken will not generally be applied to a situation that occurred before the treaty was ratified. However, this has to interact with the fact that a past event may produce ongoing obligations. In the Human Rights Act 1998, there is the indication in section 22(4) that there is no retrospectivity in relation to claims (but there is in relation to relying on rights in response to proceedings started by public bodies); this was also found not to apply in relation to appeals that occurred after the Act had come into effect (even though courts are public bodies that cannot breach rights).82 The Victorian Charter, which operates through making the breach of the rights set out in the Charter an element of existing causes of action, also has transitional provisions in section 49(2). These indicate that the Charter ‘does not affect proceedings commenced or concluded’ before the rights in play were brought into effect; and, by subsection (3), the provisions of sections 38 and 39 (the duty on public authorities to comply with rights and the process of taking proceedings in relation to any failure) do not apply if the act or decision was made before the provisions came into effect. This makes clear that only freshly commenced proceedings are to be affected. The UK provisions were interpreted so as not to be retrospective, which particularly affected appeals that were ongoing at the time the Act came into effect. Commenting on this in Re McCaughey and Quinn’s application,83 Lord Hope noted that there had been a policy choice not to apply the act retrospectively save that section 22(4) allowed that in relation to a response to an action by a public body. In short, the remedy provisions in the 1998 Act were forward looking only. He was not surprised by this, echoing comments made previously,

81 He added that any remedy could cover the period from the commencement of the situation about which there was complaint. 82 See R v Lambert [2002] 2 AC 545; R v Kansal (No 2) [2002] 2 AC 69; R v Lyons [2003] 1 AC 976. 83 Re McCaughey and Quinn’s application [2011] UKSC 20, [2012] 1 AC 175 [67].

102

103

104

476

105

106

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since ‘one would not expect a statute promoting human rights values to render unlawful acts which were lawful when done’. Relevant to this was that the definition of an act included a failure to act and so ‘one would not expect it to apply to failures to act which were not unlawful when the alleged failure occurred’. This approach has been adopted in Ireland as well. In Dublin City Council v Fennell,84 a challenge was made to the understanding of the law relating to removing tenants from state housing on the basis of an alleged breach of Article 8 of the ECHR. However, the relevant notice had been served before the European Convention on Human Rights Act 2003 came into effect. The Supreme Court determined that the law should be applied without reference to the 2003 Act on the basis that it had no sufficient indication on its face that it was designed to go against the general principle of non-retrospectivity, namely that if a statute changed a legal situation, it did so only in relation to events after it came into effect. There is, however, a contrary perspective. The central element of this is that another identified purpose of the statutes is to provide a domestic remedial structure that avoids a person having to take action through the Strasbourg mechanisms. This is noted in Chapter 4. In McCaughey, Lord Phillips noted that the non-retroactivity principle had to be considered against what he termed the mirror principle.85 If a case is still ongoing in the sense that there is a dispute that involves rights-based arguments, then it seems legalistic for a court to indicate that it cannot fulfil that function (and must leave the claimant to follow the path that the legislature has found unsatisfactory, namely having rights vindicated in the ECtHR) because it has to apply the previous law. After all, any different outcome from taking that step is one that means that there has been a breach of international obligations. Far from it not being surprising that a court would render unlawful acts (or omissions) that were lawful when done, the rationale for the non-retrospective approach, it is surprising that the legislature would provide that acts (or omissions) that breach international law remain lawful in domestic law despite this. In the UK, this is supplemented by the fact that the courts are public bodies and so making fresh decisions that are required to abide by rights, so a decision to apply a retrospective law that breaches rights amounts to a further breach of rights. That leaves the non-retrospectivity provisions as still having a role: they are relevant to secure that situations that had already crystallised before the statute came into effect would not be reopened. The value of this approach has been recognised in the context of the Scotland Act 1998, which allows the courts to declare that actions of the Scottish Executive are outside competence. This may require the unravelling of various decisions taken pursuant to an erroneous belief that actions were lawful, as was noted in the significant 84

Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604. [2011] UKSC 20, [2012] 1 AC 175 [58]–[59]. He noted another example of this in effect, namely the ruling in relation to territorial jurisdiction, which has changed over time. 85

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decision of Cadder v HM Advocate.86 In this case, the Supreme Court determined that the practice of interviewing suspects without a solicitor, which had been found by the Scottish courts not to breach Article 6 of the ECHR, was in fact in breach of fair trial rights and so the courts in Scotland should not allow evidence obtained in such circumstances to be admitted and the prosecution should not seek to rely on it. Lord Hope noted that in contrast to the flexibility allowed by section 102 of the Scotland Act 1998 in relation to legislation, which is discussed in Chapter 10, it could not avoid the retrospective effect of a declaration that the prosecuting authorities had acted outside their competence.87 But he was also willing to declare that any settled cases should not be reopened, such that only pending trials and appeals would be affected by the decision, resting on the basis that legal finality was an important principle.88 The problem associated with the legalistic approach favoured by the courts in relation to when claimants can rely on ECHR rights has been shown in the McCaughey case, described briefly in Chapter 5. In essence, it raised the question of whether an investigative obligation arising under Article 2 of the ECHR applied in relation to a death that occurred before the Human Rights Act 1998 came into effect. It had previously been determined that the investigative obligation applied only to deaths that occurred after the Act came into effect. But ECtHR case law then developed, with a holding that the investigative obligation was a distinct and ongoing obligation. The result was that despite the ratione temporis rule, a state was obliged to investigate potential state fault in a death that occurred before ratification. The Supreme Court decided that this approach had to be followed in domestic law, and so any ongoing inquest proceedings had to be conducted in a way that complied with Article 2. (Such inquests were wider in their scope than those that did not have to comply with Article 2, as a result of the application of the interpretive obligation to the relevant statutory language.) The mirror approach—ie giving effect to the law as it now should be understood on the lead from Strasbourg—was applied, but to be consistent with the earlier interpretation of the non-retrospectivity language, it should have been ruled that ECtHR jurisprudence from the date of the death should have been applied. McCaughey may represent a change from an austere approach to the application of human rights standards when matters of procedure are considered.

86

Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601. ibid at [57]. 88 ibid at [60]–[62]. Lord Rodger agreed at [100]–[102]. Both cited Irish constitutional jurisprudence to the effect that a finding that a practice was unconstitutional did not allow decided cases to be reopened in the absence of exceptional circumstances because of the chaos that would ensue: A v Governor of Arbour Hill Prison [2006] 4 IR 88. 87

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10 Remedies I. The Remedy When Conduct is Illegal.....................................................5 A. The Relevant Provisions ...................................................................7 B. The Range of Remedies .................................................................28 C. Damages; the Nature and Purpose of the Remedy Provisions ........44 i. The Purpose and Nature of the Remedy .................................45 a. Constitutional Case Law...................................................45 b. The New Zealand Case Law ............................................58 c. The UK Case Law.............................................................83 ii. Quantum of Damages ...........................................................102 iii. Exemplary Damages ..............................................................112 II. The Remedy When Conduct is Required by an Incompatible Statute—Declarations of Incompatibility or Inconsistency .................118 A. The Limits on the Interpretive Obligation ....................................118 B. The Regimes Outlined..................................................................121 C. The Express Power to Make a Declaration ..................................122 D. The Implied Power to Make a Declaration ..................................129 i. The UK Devolution Legislation .............................................130 ii. The NZBORA .......................................................................139 E. The Propriety of the Power; the Discretion as to its Exercise .......150 F. Consequences—the Retention of the Statute; Political Steps ........169 G. Consequences—A Remedy for the Victim ....................................186

1

2

Any legal system will want for its internal validity to abide by the legal aphorism that there cannot be a right without a remedy; a test of this, and so whether a standard is exhortatory or can properly be classified as a right, is the existence of an adequate remedy when a breach is found. Indeed, there is the specific right to have an effective remedy. This may include1 the need for compensation, depending on the facts and the right involved. There may also be other specific remedy requirements: see, for example, Article 9(4) in the ICCPR and Article 5(4) of the ECHR, which set out a right to have an order for release made by a court if detention is not lawful, ie a habeas corpus remedy. The focus of this chapter is how this right to an effective remedy is reflected in the bills of rights statutes. There is the context that, as was noted in Chapter 2, 1 As has been noted in Chapter 2, some rights have express or implied requirements as to compensation being typically required: this includes when there has been an improper deprivation of liberty or a miscarriage of justice, and also in relation to breaches of the rights to life and not to be subject to torture or inhuman or degrading treatment.

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the international human rights regime includes provisions for monitoring and also for receiving individual complaints. The latter is dependent on steps being taken to exhaust domestic remedies first, but they have to be effective and available. In one of those processes, before the ECtHR, a power to award compensation is included if that is necessary to provide just satisfaction on the finding of a breach of rights.2 Naturally, key to what happens pursuant to the domestic statutes is in their language: but, as noted in Chapters 3 and 4, international law may be relevant to the construction of statutory language, and the intention of the Irish and UK statutes is to allow people to seek remedies without having to go to the transnational court. The remedy will depend on the facts, but again there are common situations that have arisen in various jurisdictions and so a comparative analysis may be of value. This includes analogies from countries which have a supreme law constitutional protection of human rights. The following structure is adopted. First, there is the distinction between the remedy for when there is a breach of rights that is not saved by a countervailing provision, and the situation where the courts are able to identify the situation of inconsistency with rights (whether formally or informally). In the latter situation, the political process that is followed in the event of such a finding is noted, and also the provision in Irish law for an administrative remedy. In the situation of illegal conduct for which there is a cause of action—express or implied, as set out in Chapter 9—the remedy that may be sought is outlined. What is the proper remedy will depend on the facts and the range of possible remedies, but there has also been case law as to the nature of the remedy, which has helped to answer some of the points of dispute. There are also some statutory limitations on damages, which are part of the discussion.

3

4

I. THE REMEDY WHEN CONDUCT IS ILLEGAL

The non-constitutional statutes contain the following provisions as to the remedy when conduct is found to be in breach of rights and is not saved by the retention of the legislative power to breach rights: (i) in New Zealand, the NZBORA has no express remedy provision, whereas the Human Rights Act 1993, which relates to discrimination claims, makes comprehensive provision for remedies. (ii) in the UK, there is an express provision for commencing an action and seeking a remedy, including damages, and it is made clear that any such

2 This is to be exercised if domestic law does not provide a remedy, which reflects the fact that domestic law may be structured to indicate that a finding by an international human rights tribunal that there has been a failing by the state may give rise to an obligation in domestic law to make reparation.

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Remedies

damages should be similar to those that could be obtained from the ECtHR. (iii) in Ireland, the situation is similar to that in the UK with an indication that damages should be available if not covered by an existing cause of action and a supplemental provision for an ex gratia award in the event of a declaration of inconsistency. (iv) in the Australian statutes, there are remedy provisions but no damages may be sought under the bill of rights statute. 6

It is worth noting that there is a variety of remedy provisions in constitutional bills of rights as well, beyond the power to strike down offending legislation. For example, the Canadian Charter allows the courts to award whatever remedy is ‘appropriate and just’; the South African Constitution allows ‘appropriate relief, including a declaration of rights’. The US Constitution’s Bill of Rights is silent, but a statutory civil action is available and various remedies have been created by the US courts for a breach of the Constitution; and the Irish courts have found a power to grant remedies for breaches of the Irish Constitution.

A. The Relevant Provisions 7

8

The NZBORA was enacted without any remedy provision, but the courts decided that there was an implied right to enforce rights through the existing range of remedies available to the courts: see Chapter 9. In contrast, the Human Rights Act 1993 (NZ), the statute dealing with discrimination, including that by a public body that is contrary to the NZBORA, has detailed remedy provisions: this is because it involves a specialist tribunal that has no inherent powers and so has to be given them by statute. If a breach is found,3 the remedy will depend on whether the problem identified is a statute that requires discrimination or is otherwise unlawful conduct. In the former situation, which will arise when the interpretive obligation has failed to secure a rights-consistent outcome, the only outcome can be a declaration of inconsistency in relation to the statute, which is discussed in the final part of this chapter.4 Otherwise, a range of remedies is available if efforts to reach an agreed resolution through the Human Rights Commission are not successful or the Commission has conducted an inquiry and decides that the matter should be referred to the Tribunal. These are described in section 92I, and include declarations, injunctions to prevent conduct or compel redress, orders that there 3 If a complaint made does not lead to proceedings, the person against whom the complaint is made may commence civil proceedings (section 92B(3)) seeking a declaration that there has been no breach of the Act (section 92I(5)). 4 See Chapter 9 for an outline of the process, involving the Human Rights Commission and then a complaint to the Human Rights Review Tribunal.

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be training or policies put in place, damages, or any other relief; and there is supplemental flexibility provided for by section 92O: 92I. Remedies (3) If … the Tribunal is satisfied on the balance of probabilities that the defendant has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint, the Tribunal may grant 1 or more of the following remedies: (a) a declaration that the defendant has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint: (b) an order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order: (c) damages in accordance with sections 92M to 92O: (d) an order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the complainant or, as the case may be, the aggrieved person as a result of the breach: (e) a declaration that any contract entered into or performed in contravention of any provision of Part 1A or Part 2 is an illegal contract: (f) an order that the defendant undertake any specified training or any other programme, or implement any specified policy or programme, in order to assist or enable the defendant to comply with the provisions of this Act: (g) relief in accordance with the Illegal Contracts Act 1970 in respect of any such contract to which the defendant and the complainant or, as the case may be, the aggrieved person are parties: (h) any other relief the Tribunal thinks fit.

Section 92I(4) specifically provides that the absence of intention or negligence in the conduct, whilst not a defence, is a factor that must be taken into account in the choice of remedies. In relation to damages, further guidance is given in section 92M(1), which specifically allows damages for pecuniary and nonpecuniary losses:5

9

(a) pecuniary loss suffered as a result of, and expenses reasonably incurred by the complainant or, as the case may be, the aggrieved person for the purpose of, the transaction or activity out of which the breach arose: (b) loss of any benefit, whether or not of a monetary kind, that the complainant or, as the case may be, the aggrieved person might reasonably have been expected to obtain but for the breach: (c) humiliation, loss of dignity, and injury to the feelings of the complainant or, as the case may be, the aggrieved person.

As to the significant flexibility given to the Tribunal by section 92O, this allows it to set time limits for any remedial action to be carried out (and reconvene

5 Section 92M(2) provides that damages payable to those in prison may be diverted to the victims of their crime, pursuant to the Prisoners’ and Victims’ Claims Act 2005; this is noted below.

10

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Remedies

to reconsider the matter) and to control the extent to which any remedy is retrospective in its effect:6 92O. Tribunal may defer or modify remedies for breach of Part 1A or Part 2 or terms of settlement … (2) The actions are,— (a) instead of, or as well as, awarding damages or granting any other remedy,— (i) to specify a period during which the defendant must remedy the breach; and (ii) to adjourn the proceedings to a specified date to enable further consideration of the remedies or further remedies (if any) to be granted: (b) to refuse to grant any remedy that has retrospective effect: (c) to refuse to grant any remedy in respect of an act or omission that occurred before the bringing of proceedings or the date of the determination of the Tribunal or any other date specified by the Tribunal: (d) to provide that any remedy granted has effect only prospectively or only from a date specified by the Tribunal: (e) to provide that the retrospective effect of any remedy is limited in a way specified by the Tribunal.

11

In the UK, if proceedings of the sort described in Chapter 9 relating to a claimed breach by a public authority of the rights in the Human Rights Act 1998 reveal a breach of rights that is not required by a statute, a range of civil remedies opens up.7 Section 8 sets out a general power to provide ‘just and appropriate’ relief; this includes damages, but they are limited in that that statute uses the language of the remedies provision before the ECtHR (it being ‘necessary to afford just satisfaction’)—phrased as though it is a limitation—and requires the principles of the ECtHR to be taken into account. The need to ‘take into account’ is the language that also applies in relation to the jurisprudence of the institutions of the ECHR in relation to substantive rights, which has been interpreted effectively to require that it be followed unless there is a good reason not to: see Chapter 5. It applies in relation both deciding whether to make an award and the quantum. The statutory language is: 8. Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

6 Section 92O(1) allows any party to seek this flexibility. See the flexibility granted as to remedy under the UK devolution legislation in relation to legislative acts found outside competence, described below. 7 Section 7(8) indicates that there is no criminal offence created.

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(b)

the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. … (6) In this section— — — —

‘court’ includes a tribunal; ‘damages’ means damages for an unlawful act of a public authority; and ‘unlawful’ means unlawful under section 6(1).

There is also further provision made in relation to judicial acts in that section 9 indicates that any award of damages (which is made against the Crown, by reason of section 9(4)) can be only to the extent that there is a breach of Article 5 of the ECHR, the right to liberty. Otherwise, the usual immunity for judicial acts in good faith is maintained:

12

9. Judicial acts. … (3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

The definitions in section 9(5) give a wide definition of judge, so as to include clerks and other officials who exercise the jurisdiction of the court, and a ‘judicial act’ includes acts directed by a judge or done on behalf of a judge (as widely defined). Section 9(4) indicates that the award is to be made against the Crown and the relevant Minister responsible for the court or tribunal in question has to be joined as a party (section 9(5)). As is noted in Chapter 9, the Scotland Act 1998, part of the devolution legislation, was held to create a right of action. Since a breach of its provisions as to the competence of the Scottish Parliament or the Scottish Ministers, namely that the ECHR cannot be breached, means that the action is unlawful, the central remedy will be declaratory of the situation. As is noted below, there is discretion as to the making of a declaration in relation to legislation. However, there is also the prospect of the victim making a damages claim in relation to the consequences of the unlawful action: section 100 indicates that the limitations arising under the Human Rights Act 1998 are carried across: 100. Human rights … (3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

13

14

484 15

16

17

Remedies

The language of section 71(4) of the Northern Ireland Act 1998 and section 81(4) of the Government of Wales Act 2006 respectively indicate—albeit in an inelegant form—that the limitations on damages that apply if something is illegal under section 6 of the Human Rights Act 1998 also apply under those statutes. This will include those that arise by reason of section 8 of the latter statute. The Irish statute, the European Convention on Human Rights Act 2003, requires public bodies not to breach the rights set out in the statute. As to the remedy provision, there are a number of provisions that represent significant potential developments or clarifications from the arrangements in the UK-wide statute. In the first place, the right to an effective remedy, as set out in Article 13 ECHR, is one of the rights that is domesticated. In addition, there is express language providing a remedy if a public body breaches its obligations to comply with rights; moreover, there is a remedy provision available for when the law compels the breaching of rights in a way that leads to a declaration of incompatibility. The final point is set out below, as part of the discussion of declarations of incompatibility. The relevant language as to the remedy on finding of a breach of a right protected by the statute is as follows:8 3. Performance of certain functions in a manner compatible with Convention provisions. … (2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.

18

19

This language makes it clear that existing remedies in damages—tortious and constitutional—should be used first, with the statute providing a new but residual right for compensation. However, any other remedy—such as the exclusion of evidence in criminal proceedings—is a matter of implication. This statute has been amended in relation to judicial conduct that leads to a loss of liberty in breach of Article 5 of the ECHR. The Irish Human Rights and Equality Commission Act 2014 includes an amendment to make clear that effect has to be given to Article 5(5) of the ECHR, including in relation to judicial acts. Section 54 added section 3A to the 2003 statute to allow this by way of an action against the state and a specified government Minister; and it also expressly requires that the approach of the ECtHR be followed. 3A. (1)

8

A person (in this section referred to as an ‘affected person’) in respect of whom a finding has been made by the Court that he or she has been unlawfully deprived of his or her liberty as a result of a judicial act may

It is also provided in subsection (4) that no criminal offence is created.

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institute proceedings in the Circuit Court to recover compensation for any loss, injury or damage suffered by him or her as a result of that judicial act and the Circuit Court may award to the person such damages (if any) as it considers appropriate. (2) An action shall lie under this section only against— (a) Ireland, and (b) the Minister for Public Expenditure and Reform, and no court or member of the judiciary may be enjoined in such an action. (3) In proceedings under this section, the Circuit Court— (a) shall not compensate an affected person, other than to the extent required by Article 5(5) of the Convention and then only to the extent that he or she suffered actual injury, loss or damage, and (b) shall, in determining what compensation (if any) to award to the affected person, have regard to the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.

The definitions for the section, set out in section 3A(8) indicate that omissions are included, and that the aim is to cover good faith judicial acts or omissions that are in excess of jurisdiction, or what is done on judicial instruction. The finding of the breach, referred to in subsection (1) must be made by the High Court or Supreme Court (which is the definition of Court given in section 3A(8)). It is therefore just the remedy that may be sought in the lower court. There is an indication in the proposed subsection (4) that the amount will be limited to the maximum of the Circuit Court’s jurisdiction in tort (which raises the theoretical possibility that it will not meet the ECtHR’s levels, though that would be a very unusual situation). The limitation period, set in subsection (5) is a year, extendable in the interests of justice, matching the general limitation period under the section (see Chapter 9). It is noted in subsection (6) that:

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(6) Nothing in this section shall operate to affect— (a) the independence of a judge in the performance of his or her judicial functions, or (b) any enactment or rule of law relating to immunity from suit of judges.

Turning to Australia, the relevant provisions are noticeable in that the remedy provision excludes the possibility of damages arising under the bill of rights statute. In the ACT, Part 5A of the Human Rights Act 2004 sets out the obligations of public authorities to abide by the rights standards, and includes the prospect of legal action. Section 40C gives a general power as to granting of a remedy but excludes damages except those arising under an existing cause of action: 40C Legal proceedings in relation to public authority actions (4) The Supreme Court may … grant the relief it considers appropriate except damages. (5) This section does not affect— (a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

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Remedies

(b) a right a person has to damages (apart from this section). Note See also s 18(7) and s 23.

22

23

Section 18(7) is the right to compensation for an unlawful deprivation of liberty; section 23 provides a right to compensation for wrongful conviction. Naturally, the language of section 40C(4) causes an interesting argument if the situation arises that an existing remedy does not provide for compensation: the obvious question is whether the specific right overrides the general prohibition. In Victoria, it is also provided that the search for a remedy has to look outside the Charter of Rights and Responsibilities Act 2006: 39. Legal proceedings (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter. (2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right— (a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and (b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence. (3) A person is not entitled to be awarded any damages because of a breach of this Charter. (4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

24

25

26

In relation to the right to liberty, protected by section 21 of the Charter, there is no mention of the right to compensation for a breach of the right (though there is a right to seek a habeas corpus order); and the right to compensation for being a victim of a miscarriage of justice is not listed. The statutes offer a variety of models. The NZBORA is entirely silent; the Victorian Charter makes clear that remedies have to be sought outside the statute; the ACT’s Human Rights Act provides a general right to a remedy except for damages; the Irish statute provides a residual right to damages if there is no other remedy but is otherwise silent; the UK’s Human Rights Act provides a general right to a remedy, including damages, but imposes apparent restrictions on it; the UK’s devolution legislation is silent about remedies save that it provides limitations on damages; and New Zealand’s Human Rights Act provides a list of specific remedies. The context of all this is the international obligation, which the statutes are designed to ensure, to provide an effective domestic remedy. Another part of the context is that in other constitutional settings, involving supreme law protections, there are also express remedy provisions but limited specificity as to what they entail. For example, the South African Constitution of 1996 provides in section 38 that the relevant court finding a breach of the

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rights in the Constitution ‘may grant appropriate relief, including a declaration of rights’; however, section 172 of the Constitution of 1996 requires the Constitutional Court to declare the invalidity of any law or action that breaches the Constitution. Section 7(4) of the Interim Constitution of 1993 also allowed ‘appropriate relief’. Section 24(1) of the Canadian Charter allows someone whose rights have been breached to ‘obtain such remedy as the court considers appropriate and just in the circumstances’ but adds in section 24(2) a more specific requirement that evidence obtained in breach of the Charter shall be excluded if its admission ‘would bring the administration of justice into disrepute’. Similarly, in various Caribbean Constitutions, there is provision for ‘redress’ for a breach of constitutionally protected rights. The provisions relevant in the US are also worth mentioning. Its Constitution has been found to include the judicial function of ensuring that actions by executive officials and legislators conform to the Constitution, including by striking down non-compliant actions. Where such actions have an adverse impact on an individual’s rights, there may be a remedial step, for example excluding evidence in criminal cases following improper police action. A significant body of jurisprudence has arisen relating to damages for constitutional torts. These may arise as a matter of implication from the Constitution; the existence of such a cause of action is noted in Chapter 9. In addition, there is a specific cause of action for breaches of constitutional rights added in 1871 that is codified as USC 42, section 1983. As amended it now reads:

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§1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. …

B. The Range of Remedies In the international jurisprudence, it is accepted that a range of remedies might amount to an effective remedy. In its General comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant,9 the Human Rights Committee of the UN commented on the requirement to provide an effective remedy: 16.

9

Article 2, paragraph 3, requires that States parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose

CCPR/C/21/Rev.1/Add. 13, 26 May 2004.

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Remedies Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.

29

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The consistent approach of judges in different jurisdictions has been to find a power to grant a range of remedies for a breach of rights irrespective of the clarity or otherwise of the constitutional or statutory language as to remedy. It is common that remedies that otherwise exist might well be used, invariably with a residual supplemental power to protect the rights in question by a suitable method (unless, as in the Australasian bills of rights statutes, the right to award damages is expressly to be found in existing remedies). Accordingly, the existence of remedies other than damages is not controversial, though there is scope for significant disagreement among judges as to what is the proper remedy on the facts. This may reflect a difference of view similar to that found in relation to damages, namely how important it is for there to be something which causes the state to feel an impact (with the corollary that a particular individual receives something of a windfall benefit, as part of the process of seeking to ensure better compliance with standards in the future). In the course of the development of this jurisprudence, there has been a tendency for the courts to cite each other’s conclusions as to the remedy and the circumstances in which each one is proper: there remain, as with damages, some significant differences of view. As to the variety of actions taken, in Chapman v AG,10 Elias CJ noted that: [2] What is effective remedy for Bill of Rights breach differs according to the particular breach and its circumstances. To date, the remedies ordered in New Zealand have included exclusion of evidence, stay of proceedings, directions to administrative and judicial bodies, development of the common law to achieve consistency with the Bill of Rights Act, and damages.

32

Although the main disputes that have arisen are as to damages, outlined below, there are also some common questions as to other remedies, on which there have been differences of view between jurisdictions. For example, what should happen if there is a breach of the right to be tried in a reasonable time? In the Canadian Supreme Court, it had been determined that only a stay could be proper in Rahey v R.11 Lamer J (speaking also for Dickson CJ) noted that the stay was ‘the minimal remedy’ because the right not to be tried once the reasonable time limit had passed meant that the court had no power to violate that right.12 (It was noted that the power of courts to manage cases meant that 10 11 12

Chapman v AG [2011] NZSC 110, [2012] 1 NZLR 462. Rahey v R [1987] 1 SCR 588. ibid at 614.

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action could be taken in advance to ensure that there was no breach of the right.) Wilson J (speaking also for Estey J) agreed that a finding of a breach of the right to a trial in a reasonable time ‘goes to the jurisdiction of any court to put the accused on trial or to continue with the charges against him’.13 Le Dain J (speaking also for Beetz J) agreed that a stay was the appropriate remedy when the right to a trial within a reasonable time was breached (and that any other remedy that involved the trial proceeding could not be right), though he preferred not to characterise it as a matter of jurisdiction. Wilson J made the point that the guarantee in the Charter was of ‘rights … not remedies’, which meant that the ‘remedy … must be tailored to the right and not vice versa’.14 This comment was directed at La Forest J, who took the view that the discretion as to remedy meant that a stay was a matter of discretion. Wilson J’s point was that the language of section 24(1), and the reference to such a remedy as was ‘just and appropriate’, arose because it was a general provision and recognised the fact that different remedies might be possible depending on which right was breached; but sometimes the right breached would mean that only one remedy was possible, as if it had been found that a trial was affected by unreasonable delay.15 What La Forest J (speaking also for McIntyre J) suggested was that it was improper to require only one remedy for two reasons: one was that it would inevitably lead to an assessment of what was an unreasonable delay that was twisted by the judicial desire not to release someone who might well be guilty of a serious crime;16 and the other was that the absolutism was not necessary because the language of the remedy provision made clear that there was a discretion as to what the remedy should be.17 However, it was agreed that a stay was proper on the facts. A similar situation arose in New Zealand in Martin v Tauranga District Court,18 which involved a trial of sexual violation charges that was expected to last only two days and so did not involve any listing complications. The date fixed was vacated as a result of a problematic prosecutorial decision and then became delayed by other matters, such that the date eventually set was some 17 months after the charge. During most of this time, Mr Martin was on strict bail (though he spent some time in custody, including under a charge of assault, the fact that it allegedly occurred whilst he was already on bail being the key feature in the remand into custody: he was acquitted of this further charge). In judicial review proceedings of the trial court’s decision to allow the sexual violation trial to proceed, the Court of Appeal found that the period was excessive in light of the role of the prosecution. The New Zealand Court of Appeal

13

ibid at 619–20. ibid at 621. 15 ibid at 619–21. 16 ibid at 637–39. This clearly means that there is a lack of trust in judges to stick to principle: but the experience of the courts in the US allowing what seemed to be unconscionably long delays was given as an example of this. 17 ibid at 639–41. 18 Martin v Tauranga District Court [1995] 2 NZLR 419. 14

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obtained significant guidance from the Canadian Supreme Court decision of R v Morin19 as to what amounted to an unreasonable delay in a trial. There was an agreement that the proper remedy on the facts was a stay of proceedings, but a level of disagreement as to whether that would normally be the remedy. Cooke P suggested that a stay was the logical remedy and hence a ‘standard’ or ‘more normal’ remedy because any trial would necessarily be in breach of the right in question, it was ‘generally … better to prevent breaches of rights than to allow them to occur and then give redress’ and it would be incongruous to allow the prosecution to proceed, possibly to conviction and imprisonment, but to accompany that with damages.20 He did suggest, however, that it might be going too far to suggest that the court was without jurisdiction to consider the case further: this was characterised as the view of Lamer and Wilson JJ in Rahey, without any indication that they had been speaking for two other judges and that another two had agreed that only a stay could be proper. And he was prepared to countenance situations in which some other remedy might be appropriate, such as the granting of bail or the award of damages.21 Casey J questioned whether a stay was the only remedy22 and McKay J was of the view that issues such as prejudice to an accused or the lack of any prospect of a fair trial would be relevant to determine whether there should be a stay.23 Hardie Boys J was most clear in his position, suggesting that a stay was not to be regarded as the standard remedy, and challenging the logic of the views of the Canadian Supreme Court. He commented that:24 The right is to trial without undue delay; it is not a right not to be tried after undue delay. Further, to set at large a person who may be, perhaps patently is, guilty of a serious crime, is no light matter. It should only be done where the vindication of the personal right can be achieved in no other satisfactory way.

36

37

His suggestion was that damages could be awarded (which might have to be reduced if the person was guilty); and he also felt that a precondition of any remedy should be that the defendant had taken the opportunity to raise the question of delay before the point was reached that the delay was unreasonable, to seek a remedy such as an order for an expedited trial. Consideration of the question in the UK has been the subject of case law that has developed over a fairly short time, with judges departing from initial decisions and with a complication arising from the situation of the devolution legislation. But the majority position has been that of the minority of the Canadian Supreme Court, namely that there is a power to proceed to trial and

19

R v Morin [1992] 1 SCR 771. [1995] 2 NZLR 419 at 424–25. 21 Indeed, Richardson J mused that there might be a presumption in favour of damages: ibid at 427. This would allow other interests in favour of a trial, including the public interest in a conviction, to be taken into account. 22 ibid at 430. 23 ibid at 433–34. 24 ibid at 432. 20

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grant some other remedy; this follows the logic of the view of Hardie Boys J in Martin that there is not a right not to be tried if there has been an undue delay. In Attorney-General’s Reference (No 2 of 2001),25 the House of Lords was concerned with a situation in which a disturbance in a prison had been investigated shortly after it occurred in the middle of 1998, but the prosecution was not commenced until 2000 and did not come for trial until early 2001, at which point it was stayed because it had not been held within a reasonable time. The House of Lords determined that the trial judge had fallen into error because there was a public interest in determining a criminal charge which meant that a stay was only proper if, providing that a fair trial could occur, there was no other way of marking the breach of the right to a speedy trial. Lord Bingham explained that the basic right was to be tried fairly and if that could be secured, the trial should proceed, with a remedy offered for the breach of what was characterised as a discrete right to be tried within a reasonable time.26 That remedy would depend on all the circumstances, including the nature of the breach: if the trial had not yet occurred, there might be a public acknowledgment, expedition and perhaps release on bail; if the breach was established after the trial, there might be a reduction in sentence or compensation to an acquitted defendant. A different approach had been adopted by the majority of the Privy Council in HM Advocate v R,27 who determined that once a reasonable time had passed, any steps taken by prosecutors to move to trial would breach the ECHR and so be outside their powers under the Scotland Act 1998, meaning that a trial could not occur. Lord Hope commented that the view of Hardie Boys J in Martin, namely that the right in question was not a right not to be tried after a reasonable time had passed, seemed compelling in the context of a statute that provided a discretion as to remedy, but was not governing when the statute in question provided that there was no jurisdiction to act in breach of the ECHR:28 this is similar to the jurisdictional point adopted by the majority in the Canadian Supreme Court. The minority suggested that a fair trial was still possible and so a stay was improper. In Spiers v Ruddy,29 the Privy Council determined that recent cases from the ECtHR confirmed that separate consideration had to be given to whether a trial was fair and whether it had been delayed, with distinct remedies possible for each. This meant that a remedy could be offered for the delay without prohibiting a trial if it remained possible for it to be fair: in short, there was no prohibition on the prosecutor continuing to trial in that situation: so the situation was the same under the Scotland Act as under the Human Rights Act. As for the breach of the reasonable time requirement, Lord Bingham

25 26 27 28 29

Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, [2004] 2 AC 72. ibid at [20]–[23]. HM Advocate v R [2002] UKPC D3, [2004] 1 AC 462. ibid at [65]. Spiers v Ruddy [2007] UKPC D2, [2008] 1 AC 873.

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commented: ‘[16]. … It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed’. This remedy of a reduction in sentence, noted by Hardie Boys J in Martin has found favour in New Zealand. In R v Williams,30 the delay between arrest and an effective trial was some five years, and some of this was found by the trial judge to involve undue delay, though much of it was found to be caused by systemic problems (such as difficulties in finding jurors, delays in a Court of Appeal decision on an appeal in relation to admissibility to evidence) rather than the fault of the prosecution or the defence. The Supreme Court agreed that there was a breach of the right to a trial without undue delay, and so a right to a remedy. The judge had declined to stay the proceedings against the main defendants charged with drug manufacturing, though he did grant a stay in relation to some charged with a lesser involvement: the differential treatment was based on the seriousness of the offending. The Supreme Court expressly adopted the UK approach, Wilson J for the court commenting: [18] The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If, however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.

42

The dispute between the judges seems to rest on different views as to what the right in play is. The consensus outside Canada has become that there are two rights, to a fair trial and to a trial in a reasonable time. The alternative view is that the right is a composite one to a fair trial that occurs within a reasonable time, or that the elements of a fair trial include that it occurs within a reasonable time on the basis that a person should not be subject to coercive action by the state if that is not brought to an end within a reasonable time. This shows the importance of being clear about the substance of the right, since the latter analysis compels a different conclusion as to the remedy. It is worth noting that many of the cases cited in the UK jurisprudence from the ECtHR relate to civil matters, which raise very different considerations because it is still necessary for the state to resolve the dispute between the civil parties.

30

R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.

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One final general point about the range of remedies is the impact of the failure of any of the statutes apart from the Irish one to list specifically the right to an effective remedy. This has not been taken by the courts there as an indication that they have significant supplemental powers of creativity in terms of remedies. In McD v L and Another,31 Murray CJ noted that the Irish Constitution cemented the dualist position, such that international obligations could only be relied on in domestic actions if a statute specifically so provided. As judges are required to uphold the Constitution, the suggestion arising is that Article 13 cannot be used to create anything beyond what is expressly provided for as a remedy in the statute. As a result, the key question in all the statutes would appear to be the express indication as to the remedies that can be provided (including by way of language that allows flexibility in this regard).32

43

C. Damages; the Nature and Purpose of the Remedy Provisions The sorts of dispute noted above do not illustrate with any particularity important questions as to the nature and purpose of the remedy provisions. In relation to damages—at least outside the Australian statutes, where only existing tort remedies can be used in case of illegality under the bill of rights statute—a number of questions have arisen which help to illustrate the nature and purpose of the remedy provisions in the bills of rights statutes. The questions include: (i) the nature of the breach—ie whether it is a matter of private law or public law; (ii) when damages might be appropriate and (iii) the approach as to quantum.

44

i. The Purpose and Nature of the Remedy a. Constitutional Case Law In the case of a supreme law constitutional remedy provision, it seems obvious that the remedy is of a public law nature. However, there have been government arguments to the contrary. As noted above, the Canadian Charter provides a significant level of discretion as to remedy, under the rubric of what is ‘appropriate and just’. This has led to clarificatory case law, including on the question of whether there is a role for damages. The Canadian Supreme Court determined in Vancouver (City) v Alan Cameron Ward33 that damages could be awarded, since that might be an appropriate and just remedy in light of the

31

McD v L and Another [2009] IESC 81. By the same token, in the UK there is no incorporation of the basic obligation to guarantee rights within the jurisdiction, set out in Article 1 of the ECHR, but this has not stopped the UK courts following the lead of the ECtHR in providing access to remedies to those outside the UK but subject to its jurisdiction by virtue of the level of control. See Chapter 2, dealing with territorial coverage. 33 Vancouver (City) v Alan Cameron Ward 2010 SCC 27, [2010] 2 SCR 28. 32

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purpose of the remedy. Mr Ward had been suspected of being about to throw a pie at the Prime Minister without a proper basis for the suspicion, which led to a strip search and a search of his car, which he argued breached his Charter right to be free from unreasonable search and seizure (section 8); there had also been a successful claim for breach of the liberty right in section 9 of the Charter and for false imprisonment, which was not the subject of the appeal to the Supreme Court. The Court rejected the government argument that damages required bad faith, abuse of power or tortious conduct, since that was contrary to the Charter language. It was suggested that the breach of the Charter should be treated ‘as an independent wrong, worthy of compensation in its own right’.34 In the South African context, the question of whether ‘appropriate relief’ under section 7(4) of the Interim Constitution of 1993 included damages arose in Fose v The Minister of Safety and Security.35 The plaintiff claimed ‘constitutional damages’ for instances of torture; the defendant argued that there was no such remedy.36 Ackermann J, for the majority of the Court, noted that ‘appropriate relief’ was ‘relief that is required to protect and enforce the Constitution’,37 which could involve new remedies being fashioned. It could include damages, and the private law approach of allowing damages for breach of a statutory duty should not be applied more restrictively when a supreme law Constitution was in play.38 But it might also be that the relevant vindication of rights could come through common law damages, such as for assault, which would be substantial if the assault amounted to torture.39 There was also a discussion of the constitutional remedies in various jurisdictions, including both where there was an express remedy clause and also where it had been fashioned from implication by the courts (as in Ireland or India). It was noted that it was not proper simply to apply this jurisprudence because, inter alia, the Constitution required the development of the common law to be consistent with the Constitution’s principles (section 35(3) of the 1993 Interim Constitution and section 39(2) of the 1996 Constitution).40 The Privy Council has also had the opportunity to consider remedies for breaches of constitutional rights, since many Commonwealth nations had bills of rights included in their grants of independence. In Maharaj v Attorney-General of Trinidad and Tobago (No 2),41 which involved detention for contempt

34

ibid at [55]. Fose v The Minister of Safety and Security 1997 (3) SA 786. Note that it was contended that the conduct alleged reflected widespread practice, and was not unique to the plaintiff: [22]. 36 ibid at [13]–[14], [17]. 37 It was noted that the Constitutional Court was expressly given the task of protecting and enforcing the Constitution: section 98(2) of the interim Constitution; see section 167(7) of the Constitution of 1996, which defines a constitutional matter—and hence the jurisdiction of the Constitutional Court—to include the enforcement and protection of the Constitution. 38 ibid at [60]. 39 ibid at [67]. 40 ibid at [55]–[59]. 41 Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385. 35

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of court, which was in breach of natural justice, the question was what amounted to ‘redress’ in section 6 of the Constitution then in force (from 1962). The Privy Council determined that this permitted a new remedy (irrespective of whether there was an existing one that could be raised), which would often be in the form of compensation as that would often be the only form of practicable remedy for a past breach. So there is clear jurisprudence that recently developed constitutional remedies are of some new form. But note in potential contrast the remedy provisions arising under the US Constitution, namely the implied cause of action arising directly under the Constitution (the Bivens remedy, noted in Chapter 9) and the statutory tort under USC 42, section 1983, noted above): the latter refers to the need for an action at law or in equity, and so it seems to be a normal action, typically tortious, involving a breach of constitutional rights, and the phrase constitutional torts is used as the general descriptor. Another question that has been raised is the purpose of any remedy, which might assist in determining the appropriate remedy to grant. The Canadian Supreme Court discussed this in Vancouver (City) v Alan Cameron Ward.42 McLachlin CJ for the Court noted that the question of whether to award damages was the subject of limited jurisprudence, but that appropriateness and justness of the remedy sought, damages, turned on the purpose of various potential remedies and so involved assessing their value in terms of providing compensation for the breach, vindication of the right and deterrence of future breaches. She commented that damages were ‘a means well-recognized within our legal framework’ and ‘appropriate to the function and powers of a court’; and capable of being fair to the victim and the state.43 But it was then necessary to consider whether there were countervailing factors, which might include the existence of an alternative remedy, including a private law remedy. On the facts of the case, damages were just and appropriate for the improper strip search but not for the improper search of the plaintiff’s car, which required only a declaration. In terms of the comments as to principle, McLachlin CJ noted that:

49

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[20] … an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made …44

Since damages could meet these requirements, they were an available remedy. It was also suggested that damages might serve three functions and had to do so on the facts to be a proper remedy: [25] … The function of compensation, usually the most prominent function, recognizes that breach of an individual’s Charter rights may cause personal loss 42

Vancouver (City) v Alan Cameron Ward 2010 SCC 27, [2010] 2 SCR 28. ibid at [21]. She cited Doucet-Boudreau v Nova Scotia (Minister of Education) 2003 SCC 62, [2003] 3 SCR 3 [55]–[58], per Iacobucci and Arbour JJ. 43 44

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which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors.

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The interrelationship between the different purposes was outlined: [30] … Harm to the claimant will evoke the need for compensation. Vindication and deterrence will support the compensatory function and bolster the appropriateness of an award of damages. However, the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.

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So, whilst it was suggested that the three purposes would usually all be present, and it was noted that ‘Generally, compensation will be the most important object, and vindication and deterrence will play supporting roles’,45 it could be just and appropriate to award damages if it achieved one or more of the objectives of compensation for loss, emphasising the importance of the right so as to vindicate it, or deterring further breaches. If the claimant was able to show this, the state then had the opportunity to demonstrate any countervailing factors to counter an award,46 such as an alternative remedy in private law that covered the same ground or the needs of good governance (such as having a chilling effect on governmental conduct, though that would have to take into account that not breaching the Constitution was an example of good governance).47 The unconstitutional strip search merited compensatory damages to reflect the non-pecuniary injury from being humiliated; the vindication and deterrence purposes pointed in the same direction; there was no alternative remedy (there being no relevant tort, and claims in assault and negligence having failed); and there were no good governance arguments to the contrary. However, the breach in relation to the search of the car did not produce an injury that required compensation, nor was it serious enough to require damages for vindication or deterrence, as a declaration of a breach was an adequate alternative. The South African Constitutional Court in Fose v The Minister of Safety and Security48 suggested that the purpose of the constitutional remedy was to provide a public law remedy aimed at protecting the rights in play, so amounting to ‘relief that is required to protect and enforce the Constitution’,49 which was in contrast to the ordinary remedies of private law, together with its vagaries. Similarly, the Privy Council’s view of the typical Commonwealth 45

2010 SCC 27, [2010] 2 SCR 28 [47]. ibid at [32]–[45]. The Court expressly left open the possibility of other examples being developed. 48 1997 (3) SA 786. 49 ibid at [19]. It was noted that the Constitutional Court was expressly given the task of protecting and enforcing the Constitution: section 98(2) of the interim Constitution; see section 167(7) of the Constitution of 1996, which defines a constitutional matter—and hence the jurisdiction of the Constitutional Court—to include the enforcement and protection of the Constitution. 46 47

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constitutional provision of redress was that it was designed to ‘uphold, or vindicate, the constitutional right’ in question, which suggested more than a declaration would usually be required, since ‘A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words’: Attorney-General of Trinidad and Tobago v Ramanoop.50 In Merson v Cartwright,51 the Privy Council endorsed Ramanoop and summarised the position as follows: 18.

… If the case is one for an award of damages by way of constitutional redress—and their Lordships would repeat that ‘constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course’ (para 25 in Ramanoop)—the nature of the damages awarded may be compensatory but should always be vindicatory …

It was noted, however, that there might be situations in which a declaration was sufficient to provide that vindication.

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b. The New Zealand Case Law At first sight, the public law nature of the remedy in the supreme law constitutional setting should be the same under the statutory bills of rights. The only real difference is the lack of control over legislative over-reaching of rights; otherwise, their aim is public bodies, and the range of remedies goes beyond the damages provision of a private law setting (covering such matters as excluding evidence in a criminal case or granting a stay or a reduction in sentence, none of which are private in nature). However, there has been discussion about this in the case law, in part because of the interplay with other features. Starting with the New Zealand jurisprudence, the majority in Simpson v Attorney-General (Baigent’s Case),52 in holding that the claim for the alleged breach of NZBORA should proceed separately, noted that there was indeed a separate remedy in damages but that it was not a private tort remedy. Rather, it was a public law remedy. This was an issue that had to be determined because the warrant which the police executed in the face of their knowledge that it related to the wrong house had been issued by a court and section 6(5) of the Crown Proceedings Act 1950 (together with other statutes) contained exemptions from liability in tort for judicial actions and authorisations. Therefore, in order to rule whether these exemptions applied in the context of the NZBORA, the nature of the cause of action was important in order to determine whether there was protection from suit.

50

Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] AC 328

[18]. 51 52

Merson v Cartwright [2005] UKPC 38. Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667.

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Cooke P noted that the protection from arbitrary searches in section 21 of NZBORA could not sensibly be excluded from being actionable by the 1950 statute. The features relevant to this conclusion were: (i) the statutes setting out the exemptions were not aimed at the NZBORA; (ii) those statutes were subject to the interpretive obligation in section 6 of NZBORA to secure a rights-compliant outcome; (iii) whilst rights could be subject to justified limitations, as provided for by section 5 of the Act, which might impact on the relevant judicial remedy, it was not appropriate to approach a question of rights in a typically legalistic fashion; and (iv) human rights breaches led to public law damages against the state.53 Casey J also supported the view that the aim was to create a public law remedy—‘something new in our legal pantheon’54—of the sort that would not be subject to section 6(5) of the 1950 Act. Similarly, Mackay J spoke of an ‘independent cause of action against the Crown’ which was public in nature, by analogy to constitutional cases.55 As noted above, Hardie Boys J suggested that the NZBORA was part of the Constitution of New Zealand without having superior law status. This was the matter on which Gault J dissented: he viewed the NZBORA as not a constitutional document but an ordinary statute which might give rise to a remedy in the form of a breach of statutory duty claim if there was no other suitable cause of action.56 This indication by the majority of the Court of Appeal that there was a public law remedy was relevant for another purpose as well. It also meant that jury trial was not possible: this was because the ‘civil proceedings’ in the statutory provision allowing jury trials57 were restricted to those involving common law damages, so as to exclude a claim for public law remedies.58

53

ibid at 677. ibid at 691. 55 ibid at 718. There is a range of constitutional jurisprudence referred to by their Honours, from the US, Canada, Ireland and the Caribbean. 56 ibid at 713; see the discussion above. 57 Section 19A of the Judicature Act 1908 (NZ). This ancillary question, raising the issue of whether a statutory provision allowing jury trials in ‘civil proceedings’, added to the statute by the Judicature Amendment Act 1977, applied only to non-public law damages, seems to rest on legalistic distinctions of the sort against which Cooke P warned. 58 One of the concerns about the decision of the Supreme Court in Chapman v AG [2011] NZSC 110, [2012] 1 NZLR 462, in which a bare majority determined that the judicial immunity to suit applied in relation to NZBORA damages as well, even though they were claimed against the Crown, is that it fails to reflect the special nature of the damages. It is not so much that they are public law damages, which makes the NZBORA seem to be similar to any other public law statute, which may include decisions that affect rights, it is more that it has a constitutional aim of making sure that rights-based principles are central to the legal regime. This requires some reparation when rights are breached by whoever: so a common law doctrine of judicial immunity should not be held to be of superior effect, just as—as outlined in Chapter 7, n 194—common law policy positions as to immunities in negligence actions for the police do not prevent liability for a failure to breach the right to life under a bill of rights statute. 54

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Another relevant feature of the New Zealand context is the existence of the accident compensation scheme (known as ACC), which provides for nofault compensation for personal injury but as a corollary precludes claims for compensatory damages for personal injuries. Since personal injury litigation is tortious in nature, resting on negligence or trespass to the person, it seems clear that such compensatory damages are excluded: but what of the ‘public law’ damages for a breach of the NZBORA? This was considered in Wilding v Attorney-General59 by another five-judge Court of Appeal. The issue was whether a claim for damages for the consequences of a bite by a police dog (both the immediate injury and post-traumatic stress disorder) was to be permitted to proceed: the allegation was that the bite occurred when the plaintiff was already detained and so was gratuitous and amounted to inhuman and degrading treatment or a breach of his dignity (and so contrary to sections 9 or 23(5) of NZBORA). The Court of Appeal determined that the claim for Baigent damages was barred.60 This did not, said the court, prevent there being an effective remedy for a breach of the NZBORA since that could take several forms, including ACC coverage (and the supplementary claims that could be made). This is worth reviewing. The statutory bar is on ‘proceedings … for damages arising directly or indirectly out of … personal injury’.61 The contention for Mr Wilding was that construing the accident compensation legislation consistently with rights led to the conclusion that the claim was not barred. This argument was not spelled out in detail and so has to be constructed. First, the purpose of the accident compensation scheme is to replace tort-based claims for personal injury, including those based in negligence and those arising out of intentional trespass to the person; but it does not prevent a claim for exemplary damages, which in New Zealand are available for outrageous conduct that merits punishment.62 So not all damages are excluded. Second, whilst compensation for injury suffered may be provided through the accident compensation scheme, the aim of the NZBORA remedy is also to vindicate rights (and also offer deterrence). On the other hand, private law torts relating to trespass to the person also offer a level of vindication for the right and cannot be sued for. However, the public law nature of the NZBORA remedy and its focus on ensuring compliance with rights rather than compensating for past damage is arguably of a different nature in terms of vindication than the common law approach to trespass to the person. In addition, part of the claim was that there was a breach of the prohibition on torture or inhuman or degrading treatment; for the purposes of testing the point of law, it has to be assumed that this standard was met. The Convention 59

Wilding v Attorney-General [2003] 3 NZLR 787. ibid at [16]–[17]. It raised the possibility of a claim phrased as an affront to his rights (not personal injury) and adding a claim for exemplary damages. 61 Section 394(1) of the Accident Insurance Act 1998 at the time of the incident, now section 317(1) of the Injury Prevention, Rehabilitation and Compensation Act 2001. 62 See Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149. 60

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Against Torture suggests in Article 14(1) that there is a right to redress, including ‘fair and adequate compensation’: importantly, this is said in Article 14(2) to be without prejudice to any right to compensation under national law, which suggests that a supplementary right is required under Article 14(1) to ensure vindication. Article 14 is placed after the obligations in Articles 12 and 13 to investigate torture, and one can see in Article 14 that it provides a safety valve involving an investigation in the civil courts if the state investigation required by Articles 12 and 13 does not occur. This argument seems to have been rejected by the Court of Appeal, since it concluded that there should not be higher compensatory damages because there was a ‘higher normative duty’ not to breach the NZBORA.63 However, exemplary damages—which would surely be awarded if the conduct breached Article 7 of the ICCPR or its equivalents—are not excluded by the accident compensation scheme. The starting point for the court in Wilding was to ask whether there was a ‘sound reason why the bar … should not apply’,64 which does not seem apt: the purposes of the NZBORA remedy, when read together with its international background, suggests the importance of having a judicial investigative process and vindicatory remedy that goes beyond private law compensation. If that is so, can the interpretive obligation in section 6 of NZBORA achieve it? Just as in Baigent the court held that civil proceedings were impliedly limited to those for common law damages, surely it could be held that ‘proceedings for damages arising out of personal injury’ could be limited to those for compensatory damages for pain, suffering and loss of amenity, the traditional purposes of personal injury damages, rather than the vindicatory and deterrent damages that are central to a breach of an important right such as not to be tortured. This would seem to be a meaning that can be understood on a simple purposive approach to legislative language, but is the more so when the interpretive obligation is added. Accordingly, the approach to ACC damages is difficult to understand. Nevertheless, the general approach is that the damages are public in nature. Turning to their purpose, having determined that public law damages were available, the court in Baigent’s Case also gave some indication of their purpose. In particular, Cooke P noted that compensation could be awarded for both physical damage and also intangible harm such as distress and injury to feelings; and he added that ‘the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches are also proper considerations’ and that any award made on the basis of a relevant private law action had to be taken into account to avoid double recovery.65 In Attorney-General v Udompun,66 which involved a breach of the right to be treated with dignity in detention, the government had accepted that

63 64 65 66

[2003] 3 NZLR 787 [15]. ibid at [14]. [1994] 3 NZLR 667 at 678. Attorney-General v Udompun [2005] 3 NZLR 204.

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damages were necessary because the right was unlikely to be vindicated in the absence of damages, since the victim could not be put back in the position as if there had been no breach (and a mere declaration would be ‘somewhat hollow’).67 The purpose of vindication expressly endorsed by the majority was expanded upon by Hammond J: though he differed with them as to the quantum that was proper, as noted below, nothing in his discussion of the purpose of the remedy is inconsistent with the view of the majority. Hammond J’s process of reasoning68 started with the need to give practical effect to the universal value of human dignity.69 The need for this vindication in turn gave the process a significant public dimension: as there was a need to ensure that the system properly protected rights, it was forward looking rather than merely looking at what had gone wrong in the past (which was the approach in private law damages).70 In Dunlea v Attorney-General,71 Thomas J also took a different view from the majority as to the quantum in light of his view of the importance of vindication of rights. His central point was that the NZBORA was to affirm rights in such a way that they had ‘constitutional significance’;72 this required that the rights be vindicated, which could only be done by a ‘real and effective remedy’, as was reflected in the express provisions in the ICCPR and other documents requiring an effective remedy.73 This, he suggested, provided an extra dimension,74 meaning that it was not proper to equate NZBORA awards with common law torts that covered the same ground (eg false imprisonment and the right to liberty) because: ‘[64] … The focus of the Court is wider and must embrace the impact of the state’s violation of the citizen’s fundamental rights’. He suggested that private law damages did not include this vindication of a public right,75 ‘a right which has been vested with an intrinsic value’ for which compensation supplemental to that provided by the common law torts was required.76 So the complaint of Thomas J relating to the approach of the

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ibid at [173]. He cited earlier observations of his when a High Court judge assessing the situation of a prisoner held for 8 months beyond his release date because of difficulties in understanding the calculation of that date: Manga v Attorney-General [2000] 2 NZLR 65. His Honour gave damages for false imprisonment and a declaration that the detention was in breach of the NZBORA prohibition on unlawful detention, finding that no additional compensatory damages were required because the system had eventually worked and led to compensation in false imprisonment. 69 [2005] 3 NZLR 204 [200]–[203]. 70 ibid at [206]–[207]. 71 Dunlea v Attorney-General [2000] 3 NZLR 136. 72 ibid at [58]. 73 ibid at [61]–[62]. 74 Thomas J expressly agreed with Hammond J’s analysis in Manga, see n 68 above, albeit that Hammond J seems to have been content with the award of more modest damages. Thomas J also agreed with Irish academic writing that commented that tort law damages dealing with wrongs should not be applied to constitutional law damages designed to deal with rights. In Taunoa, noted below, Elias CJ in her largely dissenting opinion, endorsed the view of Thomas J that there were different purposes served: [2007] NZSC 70, [2008] 1 NZLR 429 [108]. 75 [2000] 3 NZLR 136, [66]. 76 ibid at [67]. 68

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majority and their significantly lower quantum, which reflected private law damages norms, was that: [68] … as the Bill of Rights has necessitated a rights-centred approach based on an understanding of the importance of vindicating the right now vested in the plaintiff as a citizen, it may be appropriate in many cases to focus on the violation of the right, and even to begin with that violation, in order to ensure that the public law element is not submerged in the task of compensating the plaintiff for his or her physical damage and mental distress. No such approach has been adopted in this case.

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He added that the purpose remained a compensatory one, but including the value of the right.77

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In New Zealand the position has remained complex because of differences of emphasis at the highest level and disagreements as to the quantum required to reflect the public law purpose of the damages. The different potential purposes are important in understanding this dispute. The New Zealand Supreme Court considered the question in Taunoa v Attorney-General,78 which related to the use of a harsh prison regime. The central question of substance was whether the regime rose to the level of being inhuman or degrading (and so in breach of section 9 of the NZBORA) or breached human dignity (and so was contrary to section 23(5)).79 The majority held that the latter standard was breached. Unanimity on the need for damages to mark the breaches gave way to disagreement on the quantum (with Elias CJ dissenting) and on the approach to calculation. Of the majority, Blanchard J accepted the need for an effective remedy or remedies, the purposes being ‘to deter any repetition by agents of the state and to vindicate the breach of the right in question’, which had the essentially public content of ensuring that people were adequately reassured that constitutional rights were protected by the courts.80 This vindication, though not aimed to punish the state, would require monetary damages in some circumstances, as that would be the best way to ‘ensure that it is brought home to officials that the conduct in question has been condemned by the Court on behalf of society’.81 But he also noted that the central aim of the public law purpose was to ensure compliance with the law—‘the award of public law damages is normally more to mark society’s disapproval of official conduct than it is to compensate for hurt to personal feelings’.82

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77 ibid at [70]. This vindicatory approach was supported by the Privy Council in AttorneyGeneral of Trinidad and Tobago v Ramanoop, noted above, in relation to constitutional breaches that amounted to a misuse of state power. The views of Thomas J in Dunlea were expressly endorsed as useful: [2006] 1 AC 328 [16]. 78 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. 79 This reflects Article 10 of the ICCPR, an additional protection for detainees that is not part of the ECHR; it was the standard involved in Udompun, noted above. 80 [2007] NZSC 70, [2008] 1 NZLR 429 [253]. 81 ibid at [255]. 82 ibid at [259].

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His Honour’s conclusion was that courts should first assess what non-monetary relief was proper and then determine whether damages were necessary to ensure appropriate redress (including taking into account any private law award83 and any other acknowledgment of wrongdoing and practical steps taken to prevent repetition).84 He also emphasised the need to consider the facts of the individual case rather than reflect any systemic failings (since all individuals affected could bring their own claim).85 The features supporting this approach were that:

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(i) a declaration, perhaps combined with other remedies, could be adequate: it was not toothless, as it would be ‘salutary’ and provide a warning as to the consequences of any further breaches;86 (ii) sometimes the breach did not require damages because it was minor or there was another better remedy, such as excluding evidence in a criminal trial;87 or it might be that the right in question did not require damages—so whilst damages might be inevitable if there was torture, a breach of natural justice would invariably produce a need for a rehearing rather than damages;88 (iii) a private law remedy in damages, particularly if aggravated damages were included, might provide all the necessary redress, leaving no room for additional public law compensation.89 McGrath J was generally in agreement with Blanchard J. Certainly, he emphasised the importance of vindication as the ‘principal objective’, which meant ‘upholding it in the face of the state’s infringement’ and emphasising the importance of a return to the rule of law now that the error had been identified; thus he emphasised the importance of declarations and their value in securing future compliance (which clearly reflects a proposition that breaches of rights by public officials are often the result of good faith but erroneous understandings of what rights require).90 Other remedial actions might be 83

ibid at [258]. ibid at [262]. 85 ibid at [263]; naturally, there will often be a wider public effect if the breach has been systemic, but the compensation for the past breach will reflect only the individual harm. Blanchard J added at [266] that the public law nature meant that the damage would not be affected by the character of the victim but only by the severity and duration of the breach. Of course, this does not undermine the fact that the character of the victim may be relevant to whether there is a breach, for example the vulnerability of a person may affect the question of whether conduct breaches the right not to be subject to inhuman or degrading treatment. 86 ibid at [255]. 87 ibid at [256]. 88 ibid at [261]. In Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56, a breach of natural justice was found in judicial review proceedings relating to a grant-making process; this also breached the right to natural justice in section 27 of NZBORA; but the Court of Appeal determined that damages would not usually be awarded for a breach of section 27. 89 [2007] NZSC 70, [2008] 1 NZLR 429 [256]. This, it should be noted, is a judicial rule that seems to have the precision to be expected of a statutory provision: it is similar in its effect to section 3 of the Irish statute, which provides for a remedy for breach if there is no other remedy available under existing mechanisms. 90 ibid at [366]–[368]. 84

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proper—such as excluding evidence in a criminal context; but he also accepted that redress in the form of compensation might be necessary for ‘serious’ breaches that could not be redressed in another way.91 However, Tipping J emphasised compensation, despite opening his analysis with an indication of agreement ‘in general terms’ with the approach set out by Blanchard J as to remedies.92 In his own account, at the highest level of generality, he noted that:93 (i) an effective remedy was necessary; (ii) such a remedy also had to be ‘appropriate and proportionate’ to the situation; (iii) vindication of rights was the governing purpose, though he also noted compensation was to be considered; (iv) the process arising under the NZBORA was unique to the statute.

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The public law process meant that any remedy was discretionary rather than of right94 and, rather than the private law focus on what the plaintiff should receive as compensation, looked at what the public defendant should pay for the purposes of vindication, denunciation and deterrence.95 Nevertheless, he was clear that both vindication and compensation were components of an effective remedy, given that there were two victims, the individual or individuals directly affected and also the public as a whole because any breach would undermine ‘the rule of law and societal norms’.96 Compensation for the victim for any harm suffered should usually follow, since otherwise there would be the strange situation of common law damages of right for relatively minor harm but nothing for a breach of something serious enough to be considered a human right.97 The components of such compensation included economic losses and any intangible loss, and need not be limited to what was commonly the approach of common law damages and the common law understanding of restitutio in integrum; indeed, he suggested that the statutory provisions relating to the Human Rights Review Tribunal, in section 92M of the Human Rights Act 1993, provided a good guide.98 The vindicatory aspect was always to be considered and might be of a higher amount.99

91 ibid at [370]; at [372], he expressly noted that compensation is not necessary for all breaches of rights. 92 ibid at [299]. Henry J expressed his agreement with both Blanchard and Tipping JJ: ibid at [385], despite their apparent differences on the role of compensation. 93 ibid at [300]–[301]. 94 ibid at [303], endorsing what was said by the Court of Appeal in Link Technology 2000 Ltd v Attorney-General [2006] 1 NZLR 1. 95 [2007] NZSC 70, [2008] 1 NZLR 429 [318]. 96 ibid at [317]. 97 ibid at [318]. 98 ibid at [322]–[323]. The argument against this is that the absence of an express remedy provision in the 1990 Act, leaving it to judges to use their existing powers, might be argued to include the limits of the common law. However, the counterpoint to this argument is that the judicial power is to be understood to be that to award damages, and if it exists in the new setting of compensation for a public law breach it might well have different parameters than the same power in a private law context. 99 ibid at [324].

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But Tipping J doubted the relevance of deterrence and punishment as factors. The latter was not excluded but he noted that it did not feature in US or ECHR case law. As for deterrence, he noted that it would rarely deter those involved in actual breaches, though he accepted it might encourage more effective oversight; there was also the concern that funds paid out would not be available for expenditure for other public purposes.100 Elias CJ, in dissent, found that the conditions to which the prisoners had been subject breached the higher standard prohibited by section 9 of the NZBORA.101 She indicated—perhaps influenced by the lack of unanimity on substance—that the case did not present a suitable occasion to expand on the admittedly underdeveloped principles relating to damages; but did adopt the outcome in Baigent’s Case that there was to be a remedy, which was to be developed by the judges and could include damages, and that the purpose was to vindicate the rights affirmed by providing an adequate remedy.102 It is clear that she also supported the view expressed by Tipping J that compensation was central, commenting that ‘Without adequate compensation, the breach of right is not vindicated’ and there would not be an effective remedy; and that there could be an additional amount for the breach of the NZBORA even if there was also compensation under some tort, provided that there was no ‘windfall’ benefit.103 It is worth noting that the New Zealand legislature responded to the award of damages to the prisoners in Taunoa by passing legislation that required that damages be limited to situations where necessary to provide effective redress and be paid first to the victims of their crimes, and also that there could be no award if there had not been reasonable use of internal complaints mechanisms: the Prisoners’ and Victims’ Claims Act 2005. The effect of this has been considered in Vogel v Attorney-General,104 in which the Court of Appeal considered an unlawful period of cellular confinement following a disciplinary conviction (the maximum sentence of 15 days having been exceeded by six days). It determined that, as this maximum period was designed to deal with the potential consequences to the mental health and well-being of a prisoner, a breach of it infringed section 23(5) of the NZBORA (and by extension of Article 10(3) of the ICCPR), the need to respect the dignity of detainees; this was particularly so as Mr Vogel was known to have some health problems and so special care should have been taken before solitary confinement was used.105 The breach had occurred some years before the action was taken, and the Attorney-General argued that this and the failure to use the internal prison complaint system

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ibid at [319]–[320]. Blanchard J agreed with her in this regard in relation to one of the prisoners, who had spent the most time under the conditions. 102 [2007] NZSC 70, [2008] 1 NZLR 429 [106]–[108]. She left open the question of whether the damages were of a public law nature. 103 ibid at [109]. 104 Vogel v Attorney-General [2013] NZCA 545. 105 ibid at [70]–[75]. 101

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meant that there should not even be a declaration of the breach. The Court of Appeal disagreed, finding that the purpose of vindicating the right and marking public disapproval of the breach was thereby secured.106 But it determined that no compensatory remedy was proper in light of the new statute, given the failure to use the complaints process, as required by the 2005 Act.107 There has also been case law on whether particular rights might be such that vindication would not require damages. In Combined Beneficiaries Union Inc v Auckland City COGS Committee,108 the Court of Appeal dismissed a claim for damages for breach of the natural justice right found in section 27 of the NZBORA (which equates to the common law right, and so is wider than the fair trial right in the ICCPR, which applies to criminal and civil trials and may not cover many public law situations). The central reason was that damages were not required in light of a relatively trivial breach of rights and the lack of any need to deter further breaches in the circumstances. However, Glazebrook and Hammond JJ went further and suggested that, in light of the primary aim of providing vindication and deterrence of future breaches rather than compensatory redress, there was every reason to indicate that declaratory relief would be all that was required. They suggested that it was ‘difficult to conceive’ of a situation in which this would not be so, given that the usual approach of declaring the breach and remitting would remedy any breach.109 In TVNZ v Rogers,110 the question was the remedy for the release of a videotape of a police interview of an apparent confession to murder. It involved breaches of fair trial rights and an order was made that it could not be used at any trial. The majority of the Supreme Court determined that this exclusion was adequate to vindicate the breach of rights and would not sound in damages: for that to happen, based on reputational or privacy interests, it would have to fall within a breach of privacy tort (which it did not). Elias CJ, however, was reluctant to suggest that it would always be the case that exclusion of evidence was the only remedy that should be offered: she left open the possibility of a claim in damages for breach of fair trial rights.111 c. The UK Case Law

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As has been noted in Chapter 7, the central purpose of the sections of the Human Rights Act 1998 that impose the obligations on public authorities

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ibid at [83]–[84]. An effort to challenge this further in the Supreme Court was not granted leave: see [2014] NZSC 5. 108 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56. 109 ibid at [67]. 110 TVNZ v Rogers [2007] NZSC 91, [2008] 2 NZLR 277. 111 In Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263, Priestley J noted that it remained arguable that a prosecutor’s failure to disclose material during a trial (which led to a conviction being quashed) led to a breach of fair trial rights that might lead to compensation: he did say, however, that the quashing of the conviction was most likely the proper remedy. 107

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and allow proceedings to be taken to enforce those obligations is to provide a remedial structure that mirrors in domestic law what had previously to be obtained from the ECtHR if the common law and other statutory remedies did not comply with the requirements of the Convention. This is particularly obvious in relation to any remedy, given the express requirement to take into account the principles applied by the Strasbourg authorities in relation to any damages: section 8. This was explained in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs.112 Lord Bingham noted the preconditions for the recovery of damages: 23.

To recover damages under section 7 of the 1998 Act, Quark must show that its rights under the European Convention have been violated by a public authority liable under the Act. So the essential stepping stones to success are a demonstrated breach of a Convention right and an answerable public authority.

It was noted that on the facts there could not be a claim in Strasbourg,113 which had the consequence of excluding a potential remedy in domestic proceedings: 25.

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A party unable to mount a successful claim in Strasbourg can never mount a successful claim under sections 6 and 7 of the 1998 act. For the purpose of the 1998 Act was not to enlarge the field of application of the Convention but to enable those subject to the jurisdiction of the UK and able to establish violations by UK public authorities to present their claims in the domestic courts of this country and not only in Strasbourg.

This approach reflects the concept set out in Chapter 5 that the UK courts should adopt a ‘no less but no more’ approach in terms of their relationship with the ECtHR. Again, it seems evident that damages that follow those granted by a supervisory transnational court are public in nature. The leading case in terms of principle, which sets out both the nature of the remedy and its purpose, is R (Greenfield) v Home Secretary,114 which concerned a breach of Article 6 ECHR in the context of prison disciplinary proceedings (for failing a drugs test), which at the time were conducted by the prison governor.115 As a result of a decision of the ECtHR to the effect that such proceedings were criminal in nature, at least when there was a risk of additional detention,116 it was accepted that there had been a breach of Article 6 in the process that led to 112 R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2006] 1 AC 529. 113 The facts related to fishing licences in South Georgia and the South Sandwich Islands; the Convention applied in that colony but the First Protocol had not been extended there, and so no ECtHR application could be made. 114 R (Greenfield) v Home Secretary [2005] UKHL 14, [2005] 1 WLR 673, [2005] 2 Prison LR 129. 115 The case involved a private prison, so the official involved was the deputy controller. 116 See Ezeh and Connors v UK, App nos 39665/98 and 40086/98 [2004] Prison LR 95, (2004) 39 EHRR 1. In R (Carroll and Al-Hasan) v Home Secretary [2005] UKHL 13, [2005] 1 WLR 688, [2005] 2 Prison LR 120, which was argued at the same time as Greenfield, it was concluded that the bias test at common law might well lead to the same conclusion.

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the imposition of 21 additional days’ imprisonment on Mr Greenfield, which it seems that he served. This acceptance—namely that the adjudicator was not independent and the failure to allow legal representation was unlawful—came only at the level of the House of Lords, the High Court and Court of Appeal having dismissed his judicial review challenge to the adjudication.117 The House determined that damages for a breach of Article 6 were not necessary; rather, the acknowledgment of a breach of Article 6 in front of the House—albeit that it had to await a decision in the ECtHR that the executive took all the way to the Grand Chamber—provided the relevant just satisfaction. Lord Bingham’s starting point was the need to take into account the principles of the ECtHR; although a domestic court ‘is not strictly bound by’ the approach of the Strasbourg court,118 it was necessary to ascertain what it was. The claimant suggested that the proper approach was not to follow the ECtHR approach but to make use of domestic scales, particularly those developed in anti-discrimination legislation, no doubt on the basis that this was an example of the harm suffered from incorrect treatment. But Lord Bingham cautioned against this, for several reasons, namely that (i) the aim of the statute was not to create tortious damages but to vindicate a right and ensure compliance by public bodies, which might not need damages; (ii) the aim in relation to damages was to match what was offered by the ECtHR; (iii) the need to take into account ECtHR principles required the search to be there rather than domestic precedents. He said: 19.

… First, the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg.119 … Thirdly, s8(4) requires a domestic court to take into account the principles applied by the European court under Art 41 not only in determining whether to award damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. The appellant contended that

117 [2001] EWHC Admin 129, [2001] 1 WLR 1731, [2001] Prison LR 52, [2001] EWCA Civ 1224, [2002] 1 WLR 545, [2001] Prison LR 59. 118 [2005] UKHL 14, [2005] 1 WLR 673, [2005] 2 Prison LR 129 [6]. 119 He cited from the White Paper, Rights Brought Home (Cm 3782), which suggested at para 2.6 that the need to ‘take into account’ ECtHR principles would mean that ‘people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg’.

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the levels of Strasbourg awards are not ‘principles’ applied by the court, but this is a legalistic distinction which is contradicted by the White Paper and the language of s8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all.

Although New Zealand jurisprudence is not cited, the starting point is the same, namely that there is not a tort of breach of the Human Rights Act; the unstated corollary is that the damages are a form of public law remedy. There is a clear argument to the contrary: the statute creates a duty (which is not to breach the ECHR, which does not give rise to an action in national law in the absence of a statute) and creates an express remedy mechanism for any such breach: this follows the structure of a statute that would be interpreted to create a breach of statutory duty tort. Lord Bingham clearly felt that the breadth of the aim of the Act militated against the creation of a tort; he presumably meant that the aim of the Human Rights Act is to affect the approach of the entire public service. But numerous torts—misfeasance in a public office, malicious procurement of a search warrant and numerous instances of other statutory duties—are designed to ensure that public officials perform their tasks in a way that respects the rights of citizens. Often the question arising in a breach of a statute is whether there is a civil remedy or some other mechanism, such as judicial review or some other public law or criminal process;120 whereas Parliament here has provided that an action can be commenced for a remedy that might include damages (albeit that it is not the only way of raising the illegality of the action of the public official). As for the fact that there is a specific approach to damages, it is not inconsistent with a breach of statutory duty analogy that the legislature has specified an approach that displaces the common law approach that would follow if the legislation was silent. The other parts of Lord Bingham’s reasoning as to the nature of the remedy are that (i) the vindication arising from a finding of a breach will be important, (ii) member states are bound to comply with international standards in any event and so do not ordinarily need damages to encourage that compliance. The first contention is clearly correct: but it is difficult to see how far this goes if the breach has caused damage of the sort for which compensation is traditionally awarded. There are other situations in which there may be difficult questions of whether a right has been breached, but a court ruling as to where a fine line should be drawn solves that dispute, and the fact that the claimant’s view of the law has been accepted does not remove his or her claim for damages. For example, in R v Governor of Brockhill Prison ex

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See, for example, R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58.

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p Evans (No 2),121 the House of Lords had to consider the case of a prisoner who had been held in prison too long because the courts (in her initial case)122 essentially changed the law about the calculation of early release dates. So her loss of liberty was caused by the prison authorities following the law as it was understood at the time, which was changed as a result of her initial challenge. The holding in this follow-on case was that there had been a loss of liberty that was—it transpired—illegal; and that the good faith of the prison governor did not provide a defence. In short, the balance between protecting the unfortunate public official from the consequence of a mistake caused by following earlier court decisions and compensating the detainee who had prompted a change in the law for the loss suffered as a result of the misapplication of the law by the public official came down in favour of providing compensation. Similarly, if a ruling by a court resolves a dispute about the content of a right protected not by the common law torts but by the Human Rights Act in favour of the claimant in such a way that reveals that the good faith view of the public authorities was in fact wrong, with the consequence that the disadvantage suffered by the claimant will not be visited on others in the future, why is that any different from the position of Ms Evans if the disadvantage suffered is of a sort that can be compensated in damages? Lord Bingham’s analogy to the need for states to operate in good faith to follow their international obligations is also difficult to follow. Aside from the obvious difference between the duties of the state in international law and the duties of public officers—invariably part of the executive—in the domestic framework, the question is not whether the public body did its best to comply with the law and will do better in the future. The question, rather, is whether there was an error made in the past, which had to be corrected by a court, and which led to damage. Lord Bingham’s further reasoning was that the purpose of the 1998 Act was to allow the same remedies in the domestic setting without parties having to go to the ECtHR, and that the statute expressly refers to the quantum that would be obtained there. These points are well made: the only caveat is that the need to ‘take account’ of ECtHR decisions provides a level of flexibility to accept that the transnational review court, particularly as it sits over legal systems which may have very different domestic approaches to damages and different living standards such that it is impossible to delineate a fair quantum scale that is applicable in every country, may not be a suitable final word for any domestic system. One could argue, therefore, that the approach of the ECtHR should be a factor but not an overriding factor because of its limitations in providing such a guide. Supplementing this is an alternative view of the purpose of the Human Rights Act, namely that it was designed to allow the domestic courts to participate fully in the development of the standards encapsulated in the ECHR, which are often said to reflect the traditional standards of the common 121 122

R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19. Ex p Evans [1997] QB 443.

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law, as part of a dialogue with the ECtHR. If this is right, the domestic courts should not follow the ECtHR, including in relation to damages, but develop an approach that is suitable for the UK. It is worth noting that there was no claimed breach of Article 5 ECHR in Greenfield, which might have been raised on the basis that the domestic process did not adequately protect against arbitrariness. The role of damages in relation to a breach of Article 5—which includes the entitlement to compensation under Article 5(5)—may well be different to that arising under Article 6. However, the conclusion of the House was that compliance with Article 6 might not have led to a different outcome, which makes it difficult to establish whether there has been any substantive loss of the sort that makes compensation appropriate. This difference between Article 6 and Article 5 in turn may raise the question of whether Greenfield is an appropriate starting point if there is a loss of liberty. However, it has been determined that Greenfield is indeed the starting point, though the fact that the ECtHR invariably makes an award of damages as part of just satisfaction for a breach of Article 5 means that damages will invariably follow. This arises from R (Faulkner and Sturnham) v Secretary of State for Justice,123 where the Supreme Court considered breaches of the Article 5(4) right to a speedy review of the lawfulness of risk-based detention by the Parole Board. There are several rights in Article 5, including the right not to be detained when that is unlawful, protected by Article 5(1), and a right to a review of the lawfulness of detention when that lawfulness may change of over time, as it may when dependent on matters such as mental disorder or risk. The latter, protected by Article 5(4), is combined with a power in the reviewing court to order release if detention is no longer lawful: but the right to a review is not dependent on any finding that release should be ordered. In Mr Sturnham’s case, there had been no real prospect of his being released, but there was a factual finding in Mr Faulkner’s case that he would have been released earlier had the Parole Board met earlier. Both were awarded damages, the former for anxiety and distress occasioned by the delay (in the sum of £300 for a six-month delay beyond when the hearing should have occurred); the latter was awarded £6,500 for a 10-month delay. The Supreme Court noted that a finding that there was a delay in release normally led to an award of damages; but also that the frustration of a delay that did not lead to release would also normally produce a need for damages to supplement a finding of the breach in terms of providing just satisfaction. This reflected the approach in the ECtHR. In the case of a delayed release, however, it was noted that there was no false imprisonment or breach of Article 5(1) because the detention was still based on the original prison sentence and not arbitrary; so the breach identified was of Article 5(4) only.

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Lord Reed, speaking for the majority, determined that Greenfield and any clear and consistent practice from the ECtHR should be followed, which meant that both of the claimants should receive damages. This was all clearly based on factors relevant to Article 5(4), but his process of reasoning included some more general comments. He started with a summary of the Greenfield approach, which had not been challenged before the Court, and made the following comment as to what section 8 of the 1998 Act does, namely it has been construed as introducing into our domestic law an entirely novel remedy, the grant of which is discretionary, and which is described as damages but is not tortious in nature, inspired by Art 41 of the Convention. Reflecting the international origins of the remedy and its lack of any native roots, the primary source of the principles which are to guide the courts in its application is said to be the practice of the international court that is its native habitat.124

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Clearly, thought his Lordship, it is a strange beast. He was keen to note that the remedy would eventually give rise to sufficient domestic case law that it could be ‘naturalised’, allowing courts to look less to the ECtHR, so long as the domestic case law did not fall below the standards required from Strasbourg. The remedy provision was said to be different from the approach to be taken to the substantive law, where the common law is developed and statutes interpreted in a way that is Convention compliant: in other words, existing domestic principles are modified, rather than a novel tool being introduced. The reliance on the ‘principles’ from the ECtHR, to which reference is made in section 8(4) of the 1998 Act, was explained further by Lord Reed. Lord Bingham had noted in Greenfield that it was too legalistic to describe the ECtHR’s approach to quantum as not involving principles. Lord Reed indicated that this meant that a ‘broad’ meaning was to be given to the word, such that the search should not be limited to what the ECtHR described as a statement of principle but should focus on ‘how the court applies Article 41: the factors which lead it to make an award of damages or to withhold such an award, and its practice in relation to the level of awards in different circumstances’.125 One difference identified was that domestic trial courts might be in a better position to make assessments of factual matters such as the prospects of release and therefore be in a position to make an award of damages when the ECtHR would find such a conclusion particularly speculative in light of the range of legal systems over which it has a supervisory role and the lack of any established international law approach to damages, and its limited fact-finding role. This meant that a Strasbourg decision would often refer to damages as based on an ‘equitable’ approach. This may be particularly so in relation to pecuniary losses, in relation to which the ECtHR is rarely able to find causation. 124 125

ibid at [29]. ibid at [31].

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The difference highlighted by Lord Reed points to a clear difficulty with interpreting the Human Rights Act as being designed to replicate what residents of the UK (and Ireland) can obtain from the ECtHR, given that the ECtHR is designed to do things differently because it is supranational.126 It is no doubt the case that the remedy should not be a lesser remedy than that obtainable in Strasbourg: but the point to note is that the main aim of that court is to offer supranational supervisory guidance. So the need to take into account its principles in relation to the award of damages should be applied in light of its role: this requires an analysis of whether the more important part of the ECHR is the obligation under Article 13 to provide an effective domestic remedy, which will more naturally look to domestic approaches to matters such as scales of damages. In this context, it should be noted that the Irish statute suggests that the first question should be to assess whether an existing cause of action provides the remedy: that does not immediately suggest that any newly created residual remedy is of a different nature. Equally, in the UK context, since victim status would be lost if a private law cause of action provided adequate reparation to vindicate the breach of right, that also raises a question as to why the remedy created by the statute to remove the need to go to the Strasbourg court should be of a different nature. This is particularly so if it might lead to a different quantum of damages, since it would mean that rights were treated differently: ie, those that sounded in an existing domestic cause of action were treated as private causes of action with that scale of damages applicable, and others treated as giving rise to a public law cause of action with a potentially different scale of damages.

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ii. Quantum of Damages If the purposes of the remedy support an award of damages, a further question will be that of quantum: this may be affected by which purpose is to the fore. What emerges from the case law is support for modesty in awards of damages, though with some dissenting voices and various inconsistencies between jurisdictions. This is so whether supreme law or statutory protection is offered. In Vancouver (City) v Alan Cameron Ward,127 McLachlin CJ for the Court set out the importance of vindicating rights (which led to the choice of remedy) and found that damages could provide compensation, vindication and deterrence, with compensation being at the fore. She noted this had to be set against any countervailing factors to determine what the remedy should be. If the end result was that damages were proper, the quantum was also governed by the Charter requirement that the redress be ‘appropriate and just’. 126 This feature was used by Ackermann J in Fose, in the outline of overseas jurisprudence, noted above, to suggest that the approach of the ECtHR was of little assistance in determining what should happen in South Africa under the Constitutional requirement to provide appropriate relief. 127 Vancouver (City) v Alan Cameron Ward 2010 SCC 27, [2010] 2 SCR 28.

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This would be met by restitutio in integrum in relation to any compensation for pecuniary loss, and non-pecuniary loss (such as for pain and suffering) could also be supported. Although the court supported the value of tort law as an analogy in relation to compensation,128 that was not so in relation to vindication and deterrence, where the tests would be ‘rationality and proportionality’129 and would have to be developed in jurisprudence. Initial guidance was that the principal question was the seriousness of the breach, judged by the impact on the claimant and the seriousness of the misconduct, but subject to the requirement to be fair to both the claimant and the state. It was noted that this meant that large awards might be problematic because this might be unfair to collective interests: 53.

… Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust from the public perspective. In considering what is fair to the claimant and the state, the court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests. 54. … Nevertheless, to be ‘appropriate and just’, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of compensation, upholding Charter values, and deterring future breaches.

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The conclusion of the Supreme Court was that the unconstitutional strip search of Mr Ward merited compensatory damages for his humiliation and the need for vindication and deterrence of $5,000 (that being the trial judge’s assessment), but nothing beyond a declaration for the illegal search of his car. In New Zealand, brief (and tentative) guidance on quantum was given by Cooke P in Simpson v Attorney-General (Baigent’s Case).130 Damages could cover ‘physical damage’ and ‘intangible harm such as distress and injured feelings’; quantum would be affected by the harm suffered, the gravity of the breach, the importance of the right and the needs of deterrence; and the need to take into account compensation awarded under any other causes of action (by reducing the public law damages or by making nominal supplementary awards for the private causes of action). Overall, ‘extravagant awards are to be avoided’. This need to avoid large awards was endorsed in Udompun,131 where conduct that breached the need to treat detainees with dignity was felt to merit a payment of NZ$4,000, account being taken of the importance of the right and the seriousness of the breach (and also of the responsibility of the victim for her predicament).132 In his judgment setting out the important vindicatory and forward-looking purposes of damages, Hammond J supported the need 128 129 130 131 132

ibid at [48]–[50]. ibid at [51]. [1994] 3 NZLR 667, 678. [2005] 3 NZLR 204. ibid at [173]–[178].

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for moderation in quantum: he would, however, have supported an award of NZ$10,000.133 One aspect of the initial guidance in Baigent’s Case which was modified was the idea of having a global award under the NZBORA and a supplementary award for any private law actions: see Wilding v Attorney-General, where the approach was to consider whether there was any need for anything more under the NZBORA than had been awarded under the private law claim and, if not, to allow simply declaratory relief under NZBORA.134 To similar effect, another five-judge Court of Appeal suggested tentatively in Dunlea v Attorney-General135 that where the factual basis for the NZBORA claim was the same as that for a private tort claim, the quantum should be the same. The facts involved detention by armed officers, and so various instances of trespass to the person and also arbitrary detention under NZBORA. It was noted that (i) there was invariably a tort action arising on the same set of facts, (ii) there was at that time no history of a different approach being taken in other jurisdictions and (iii) the common law included awards for breaches of rights.136 As noted above, Thomas J took a different approach to the purpose of damages and so supported a significantly higher award under the NZBORA. Whilst the approach to calculation remains complex because of the different views as to the purposes of damages, the majority position has remained that restraint in the quantum is proper. Accordingly, differences in emphasis between the judges in the majority of the Supreme Court in Taunoa v Attorney-General,137 largely as to the value of deterrence and punishment, did not prevent agreement that the amounts awarded should be restrained. Blanchard J noted that the tendency of international tribunals was to award or to recommend payment of damages as a secondary matter, and of overseas courts to be modest in the quantum of damages made in the relatively few cases where that was done.138 He expressly endorsed this as proper for New Zealand, noting that a court ‘should not proceed on the basis of any equivalence with the quantum of awards in tort’;139 rather, there should be a ‘restrained award’.140 The amount should be enough to provide the necessary incentive to state officials not to repeat the conduct and also to prevent the victim being left with a view that, objectively speaking, trivialised the breach.141 133

ibid at [192]. ibid at [14]. This was supported by Blanchard J in Taunoa: [2007] NZSC 70, [2008] 1 NZLR 429 [233]. 135 Dunlea v Attorney-General [2000] 3 NZLR 136. Note that the Court removed an award of exemplary damages but left the quantum unchanged because it determined that the overall amount was proper for compensation. 136 ibid at [37]–[42]. 137 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. 138 ibid at [243]–[248]; he expressly endorsed this as proper for New Zealand at [265], and indicated that the approach adopted in the UK and South Africa was to be followed in New Zealand, at [258]. 139 ibid at [258]. 140 ibid at [257]. 141 ibid at [258]. 134

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He also pointed to a pragmatic feature to take into account that might support higher damages, namely that the absence of public interest litigation meant that it would be improper to set damages awards so low that the costs of litigation (and the stress of it) would mean that no victim would bother to take action.142 Tipping J, who supported the need for compensation as a function of NZBORA damages, commented on the value of taking into account matters such as average incomes and awards in other areas involving rights.143 The net effect was that the Supreme Court cut significantly the damages awarded in the lower courts; the prisoner who had been subject to the illegal regime for the longest, some 32 months, had his award cut from NZ$65,000 to NZ$35,000. It was noted that some previous decisions of the Court of Appeal had been set too high in light of this need for restraint and lower amounts than for tort claims.144 Elias CJ, in her dissent, suggested that whilst extravagant awards were to be avoided, moderation was not the correct approach to ensure relevant vindication.145 The UK courts have followed the same approach as to moderation, following the ECtHR approach rather than anything arising in the domestic setting. However, Lord Bingham in Greenfield noted that the ECtHR was willing to apply the restitutio in integrum approach:146 but the outcome of the case law is that the ECtHR’s approach to this rather than its domestic equivalent is followed. There is some contrast in the Caribbean constitutional case law from the Privy Council. In Attorney-General of Trinidad and Tobago v Ramanoop,147 one of the comments made was that the need to vindicate a constitutional right might require compensation in addition to a declaration, in which case: 18.

… The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

iii. Exemplary Damages 112

The approach of moderation might be thought to be inconsistent with any prospect of exemplary damages as part of the public law awards.148 Certainly, it has been indicated in UK case law that as the ECtHR has no concept of exemplary damages, it is not right to consider them under the Human Rights Act 1998 For

142

ibid at [264]. ibid at [328]–[329]. 144 ibid at [274], per Blanchard J. 145 ibid at [109], [111]. 146 [2005] UKHL 14, [2005] 1 WLR 673, [2005] 2 Prison LR 129 [10]. 147 Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] AC 328. 148 Note, as a contrast, that the Charter of Human Rights and Freedoms in Quebec specifically provides for punitive damages in the case of an intentional breach of a right. 143

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an early example, see R (KB and Others) v Mental Health Review Tribunal,149 though part of the reasoning of Stanley Burnton J was that the case involved section 9, which indicates that damages against a judicial body are limited to situations in which it is necessary to provide compensation for a breach of Article 5 of the ECHR and exemplary damages are not compensatory. However, in Mackin v New Brunswick (Minister of Finance),150 Gonthier J for the majority commented that ‘in theory’ a claim for punitive damages could be available as an appropriate and just remedy under section 24 of the Canadian Charter. This was noted by McLachlin CJ in Vancouver (City) v Alan Cameron Ward,151 it being commented that there was a punitive element in public law damages aimed at vindication or deterrence, but also that there was limited support in international jurisprudence for such damages. Added to the comments noted above to the effect that large awards were problematic because of the diversion of public funds, the suggestion must be that exemplary damages will require a truly exceptional situation. This latter rationale, namely the diversion of public funds, was one of the reasons why Ackermann J expressed vehement opposition to any form of punitive damages in the context of the South African Constitution, given the importance of applying resources elsewhere: see Fose v The Minister of Safety and Security.152 As the case involved allegations of torture, it seems that if there is no prospect of exemplary damages there, it is very unlikely that they could be awarded in any context. The Privy Council in considering the remedies provisions of Caribbean Constitutions has been more willing to consider significant awards of damages, but has suggested that they are not exemplary or punitive, but rather reflect the fact that there is a constitutional right in play. This was addressed in AttorneyGeneral of Trinidad and Tobago v Ramanoop,153 where significant mistreatment of a prisoner by police officers breached his constitutional rights to liberty and security of the person. The 1976 Constitution of Trinidad and Tobago allowed ‘redress’ to be obtained, and the government argued that this meant only compensatory damages. The Privy Council rejected this on the basis that it might not provide adequate vindication, but suggested that supplemental damages were not to be categorised as punitive, because that was not their purpose: 19.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and

149 R (KB and Others) v Mental Health Review Tribunal [2003] EWHC Admin 193, [2003] MHLR 28. 150 Mackin v New Brunswick (Minister of Finance) 2002 SCC 13, [2002] 1 SCR 405 [79]. 151 2010 SCC 27, [2010] 2 SCR 28 [56]. 152 1997 (3) SA 786 [65], [70]–[72]. 153 [2005] UKPC 15, [2006] AC 328.

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Remedies the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. ‘Redress’ in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions ‘punitive damages’ or ‘exemplary damages’ are better avoided as descriptions of this type of additional award.

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In Merson v Cartwright154 police misconduct in the Bahamas was sued as various torts (assault and battery, false imprisonment and malicious prosecution) and as a breach of the constitutional rights not to be subject to torture or inhuman or degrading treatment and not to be deprived of liberty improperly. The common law award was some $190,000 and the constitutional damages was $100,000 (presumably Bahamian Dollars, which are pegged to the US Dollar). The Court of Appeal of the Bahamas had set aside the latter award, apparently on the basis that it duplicated the common law award. In the Privy Council, the ruling of the trial judge was restored. Lord Scott endorsed the view in Ramanoop that additional damages for the breach of the Constitution could well be proper if the common law tort did not fully overlap with the constitutional protection, but also noted that: 18.

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… The purpose of a vindicatory award is not a punitive purpose. It is not to teach the executive not to misbehave. The purpose is to vindicate the right of the complainant, whether a citizen or a visitor, to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression …

On the facts, the significant award of both common law and constitutional damages was proper in light of the lack of overlap and also because vindicatory damages were necessary to reflect the contempt shown for the ‘rule of law’.155 See also the comments of Thomas J in Dunlea, noted above, to the effect that a supplemental award of damages—which he expressly suggested was not to be called punitive or exemplary—was needed to mark out the fact that there was a loss by the individual but also a damage to society occasioned by the breach of rights. His central point was that the constitutional nature of the rights framework needed to be protected. II. THE REMEDY WHEN CONDUCT IS REQUIRED BY AN INCOMPATIBLE STATUTE—DECLARATIONS OF INCOMPATIBILITY OR INCONSISTENCY

A. The Limits on the Interpretive Obligation 118

As has been described in Chapter 8, the interpretive obligation is a powerful tool, but it has limitations (and more so in certain jurisdictions, depending 154 155

Merson v Cartwright [2005] UKPC 38. ibid at [20].

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on either the language of the obligation or the interpretation accorded to it). These limits reflect the fact that parliaments have chosen to retain the power to breach human rights as a matter of domestic law, even if that is contrary to international law. At one extreme, this may reflect a conscious decision not to abide by a particular international obligation; at the other extreme, it may be that domestic law has been found wanting because of developments in international law (given that it is a developing body of law) and it has not yet been brought into compliance; in the middle, there may be instances where there is an acceptance that domestic law does not comply with international obligations but there is still discussion as to how to comply (which may require a balancing decision that has yet to be worked through). Accordingly, there will be situations where a right has been affirmed in one statute but other legislation breaches that right. Indeed, as noted in Chapter 6, this inconsistency might have been identified in advance by the legislature using a ‘notwithstanding’ clause (section 33 of the Canadian Charter 1982, or section 31 of the Charter of Human Rights and Responsibilities Act 2006 in Victoria); all the legislatures that make use only of the interpretive obligation can achieve a breach by making use of sufficiently clear inconsistent statutory language which could start with language ‘notwithstanding any obligation arising’ under the relevant statute or international document. In the event of such a finding of inconsistency, the person affected might be able to apply to an international tribunal (on which see Chapter 2). At the domestic level, a quasi remedy has been created in the various statutes: (i) there is the declaration of incompatibility or inconsistency, which provides confirmation to Parliament that there is a problem and may have certain consequences in terms of allowing ameliorative action to be taken speedily (albeit that this will only assist the individual complainant in relation to the past situation if, unusually, the amending legislation is retrospective) and (ii) in Ireland, there is also a provision for ex gratia payments to be made to the person whose rights have been breached in that situation.

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B. The Regimes Outlined The statutory language as to (i) the consequence of a failure to be able to find a rights-compliant interpretation, (ii) the power to mark this formally by way of a declaration, and (iii) the consequences of the declaration is set out below. In short, it has been developed in the various statutes and provides as follows: —

—

New Zealand: it is expressly provided that any conflicting statute remains in effect under the NZBORA, and any remedy is implied; but if there is a breach of the non-discrimination right, the Human Rights Act 1993 permits a declaration of inconsistency (and indeed that is the only remedy that may be granted). The matter then becomes one for the political process. UK: the Human Rights Act 1998 expressly sets out that incompatibility with the rights under the ECHR that are scheduled does not invalidate a

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—

—

—

Remedies Westminster statute, and a declaration of incompatibility can be granted. A minister may then take steps to amend an incompatible statute if there are compelling reasons so to act (and the same may follow from a finding by the European Court of Human Rights), but this is subject to parliamentary agreement and otherwise the matter is entirely a matter for the political process. In relation to the devolved legislatures, there is no power to take actions, including passing statutes, that are inconsistent with the ECHR rights that are part of the Human Rights Act 1998. However, flexibility as to the remedy to be granted in such a situation, primarily the declaration as to the action being outside competence, allows remedial action to be taken, which is similar to a declaration of incompatibility, albeit that the court retains control. Ireland: again, a formal declaration can be made that a law is incompatible, but the problematic law remains in effect, and the legislature must be notified about the issue that has been uncovered. It is also possible for the person adversely affected to seek an ex gratia payment as compensation rather than having to commence an action in the ECtHR. ACT: this also provides for a formal declaration as to incompatibility, which then passes to the Attorney-General so that political action can be taken; the inconsistent language remains in effect. Victoria: this follows the approach in the ACT save that there is no power to grant a formal declaration if the legislature has made clear that it is aware of the inconsistency by operating the legislative override.

C. The Express Power to Make a Declaration 122

In most of the statutes, there is a formal power to make a declaration as to the inconsistency with rights found. This is in the following terms in New Zealand, where it is a power of the Human Rights Review Tribunal (which may then be appealed through the higher courts of the country): New Zealand—Human Rights Act 1993 92J. Remedy for enactments in breach of Part 1A156 (1) If, in proceedings before the Human Rights Review Tribunal, the Tribunal finds that an enactment is in breach of Part 1A, the only remedy that the Tribunal may grant is the declaration referred to in subsection (2).

156 Part 1A of the Human Rights Act 1993 provides that a body of the sort listed in section 3 of the New Zealand Bill of Rights Act 1990 (ie carrying out a public function, including legislative) cannot act (or omit to act) so as to breach the right not to be discriminated against in section 19 of the 1990 statute (subject to some specific limitations).

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(2) The declaration that may be granted by the Tribunal, if subsection (1) applies, is a declaration that the enactment that is the subject of the finding is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990. (3) The Tribunal may not grant a declaration under subsection (2) unless that decision has the support of all or a majority of the members of the Tribunal. (4) Nothing in this section affects the New Zealand Bill of Rights Act 1990.

In the other statutory regimes, the special nature of the power is marked by limiting it to the higher courts and, as has been noted in Chapter 9, requiring that notice be given to ensure that representatives of central government (and sometimes of national human rights mechanisms) can be made parties. In the UK and Ireland, this applies by statute in relation to the declaration of incompatibility only; in the other jurisdictions it covers all significant points arising under the statutes. This serves to ensure that central government is able fully to participate (which may allow it, for example, to suggest that the statute can be saved through a rights-compatible interpretation). In the UK, the express power to make a declaration is in relation to any right and any statute. However, it can only be granted by the High Court or above (or, in relation to the Court of Protection, which deals with the affairs of people without capacity, when its jurisdiction is being exercised by a High Court judge): section 4(5) defines ‘court’ so as to be limited to these higher judges. In Scotland, this equates to the Court of Session or the High Court of Justiciary in its appellate role. The power is expressed as a discretion. The relevant language is:

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UK—Human Rights Act 1998 4. Declaration of incompatibility. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied— (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

In Ireland, there is similarly a limitation to the High Court or above. There is a development in that the declaration can be made in relation to any rule of law, which is defined in section 1 of the Act to include the common law. There is the complication that the interpretive obligation, described in Chapter 8, applies to any rule of law; but is also subject to rules of law, including the

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common law, as to how statutes are interpreted. The relevant language, setting out the discretion in relation to the remedy, is: Ireland—European Convention on Human Rights Act 2003 5. Declaration of incompatibility (1) In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘a declaration of incompatibility’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

126

In the ACT, the discretion as to the grant of a remedy requires the action to be proceeding in the superior courts: ACT—Human Rights Act 2004 32. Declaration of incompatibility (1) This section applies if— (a) a proceeding is being heard by the Supreme Court; and (b) an issue arises in the proceeding about whether a Territory law is consistent with a human right. (2) If the Supreme Court is satisfied that the Territory law is not consistent with the human right, the court may declare that the law is not consistent with the human right (the declaration of incompatibility).

127

Similarly in Victoria, the first point is that any question of law relating to the application of the Charter has to be referred to the higher court, the Supreme Court: section 33 of the Charter (outlined in Chapter 9). There then arises a discretion as to the granting of a declaration, called a declaration of inconsistent interpretation: Victoria—Charter of Human Rights and Responsibilities Act 2006 36. Declaration of inconsistent interpretation (1) This section applies if— (a) in a Supreme Court proceeding a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) the Supreme Court has had a question referred to it under section 33; or (c) an appeal before the Court of Appeal relates to a question of a kind referred to in paragraph (a). (2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

128

Aside from differences in name, each statute—apart from the NZBORA— makes provision for the granting of a formal declaration that the situation

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resulting from the unsuccessful application of the interpretive obligation is one that breaches the rights declared or scheduled. There is the slight exception in Victoria that no declaration is permissible if the legislature has indicated that it is aware of the inconsistency. In New Zealand, there is such a power in relation to non-discrimination standards, pursuant to the Human Rights Act 1993; in relation to the 1990 statute, however, an implied power has been found. Similarly, in the UK devolution legislation, there is flexibility in the remedial regime which allows the equivalent of a declaration of incompatibility to be made. These implied powers are now considered.

D. The Implied Power to Make a Declaration The UK devolution legislation goes further than the Human Rights Act 1998 in that it allows courts to strike down legislation; however, it is suggested that the flexibility present in the statute means that the equivalent of a declaration can be granted, leaving it to the legislature to take the necessary amending steps. Secondly, there is the situation in New Zealand in relation to the NZBORA: just as case law established the right to a remedy, it has led to the judicial creation of a declaratory remedy that the statute, whilst it is to be enforced, is not compatible with the rights supported by the NZBORA.

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i. The UK Devolution Legislation As noted in Chapters 4 and 6, the UK devolution legislation allows incompatible legislation by the devolved legislatures to be struck down if outside competence, which includes when there would be a breach of those parts of the ECHR as are included in the Human Rights Act 1998. Such a conclusion can only be reached if the interpretive obligation described in Chapter 8 cannot rescue the provision from invalidity by seeking to construe it narrowly, ie so as to be within competence; and there is a further limitation, described in Chapter 9, namely that only victims can bring actions (and then with various procedural requirements in play). Even if a court reaches the stage of finding that legislation is problematic, however, an element of flexibility in the remedy allows what amounts to a declaration of incompatibility to pass the matter to the political process. This arises from the remedy provision on a finding of incompetence, set out in section 102 of the Scotland Act: Section 102—Powers of courts or tribunals to vary retrospective decisions. (1) This section applies where any court or tribunal decides that— (a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or (b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve. (2) The court or tribunal may make an order— (a) removing or limiting any retrospective effect of the decision, or

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(b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected. (3) In deciding whether to make an order under this section, the court or tribunal shall (among other things) have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected.

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Subsection (4) requires the giving of notice to senior legal officials within the government, and subsection (5) makes them parties to proceedings for the purpose of argument as to the remedy. This section allows the court to declare that the situation is incompatible with the ECHR (and so invalid) but to give time for corrective action to be taken: this can be seen as equivalent to a declaration of incompatibility, albeit that what happens is then a matter in which the courts retain control. Its importance is reflected by the notification requirements to ensure that the government can participate in any litigation. An example of this in action can be seen in Salvesen v Riddell,157 in which part of the Agricultural Holdings (Scotland) Act 2003 was found to breach the right to property of a landlord whose rights to end a tenancy was compromised by the statute. The Supreme Court found that a retrospective element to the statute was problematic. As the interpretive obligation could not be used to save the language, in part because of various policy issues that arose in terms of how to design the solution that would be compliant with rights, it was found to be outside competence. There was then the question of the remedy. Lord Hope, for the court, noted that the legislation had been in effect for some time and a failure to make the court order retrospective might breach the rights of other landlords in a similar position (and so amount to the court breaching its obligation under section 6 of the Human Rights Act 1998 to act in accordance with rights); on the other hand, tenants might have invested in their properties in the erroneous belief that they were protected, and there was the general principle of legal certainty that closed cases should be allowed to stand. The balance was such that the only proper solution was not to limit the retrospective effect of the decision, but to suspend its operation for 12 months, essentially to give the Scottish Parliament time to sort out the mess it had created by enacting improper legislation (which, after all, could have been referred for pre-enactment scrutiny by the courts). The time permitted was to allow for the necessary research and consultation to allow a sensible solution for those affected. It is to be noted that this flexibility as to remedy is applicable only in relation to legislative material. In relation to acts of the executive other than the making of delegated legislation, the only power is to declare the lack of competence, which may require the unravelling of various decisions taken pursuant to the erroneous belief that the actions were lawful. This was noted in the significant decision of Cadder v HM Advocate,158 in which the Supreme Court determined that the practice of interviewing suspects without a solicitor, 157 158

Salvesen v Riddell [2013] UKSC 22. Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601.

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which had been found by the Scottish courts not to breach Article 6 of the ECHR, was in fact in breach of fair trial rights and so the courts in Scotland should not allow evidence obtained in such circumstances to be admitted and the prosecution should not seek to rely on it. Lord Hope noted that in contrast to the flexibility allowed by section 102 of the Scotland Act in relation to legislation, it could not avoid the retrospective effect of a declaration that the prosecuting authorities had acted outside their competence.159 But he was also willing to declare that any settled cases should not be reopened, such that only pending trials and appeals would be affected by the decision, resting on the basis that legal finality was an important principle.160 Similarly, under the Northern Ireland Act 1998, there is no competence to pass legislation that breaches the ECHR, though the courts must strive to come up with a compatible construction (sections 6 and 83). Under section 80 of the Act, the Secretary of State is given the power to make ‘necessary or expedient’ orders in relation to Acts of the Assembly or an action by the Northern Ireland executive ‘which is not, or may not be’ lawful. If the matter proceeds to a court for a decision as to whether or not the statute or executive decision is outside powers, section 81 of the Act is in similar terms to section 102 of the Scotland Act 1998, and so it has what amounts to a power to grant a declaration that a provision is incompatible and allow a political rectification of the problem. Similarly, the importance of this process requires that notice be given to the government, in the form of the Attorney-General for Northern Ireland and the ‘appropriate authority’ depending on whether the proceedings are brought in Northern Ireland or elsewhere in the UK. In relation to Wales, the granting of primary legislative powers is contained in the Government of Wales Act 2006, first being Assembly Measures and then Acts of the Assembly following a referendum that provided for additional powers. These have similar competence provisions (in sections 94 and 108 of the 2006 Act respectively); and section 151 allows action to be taken that is similar in scope to that provided for by section 80 of the Northern Ireland Act 1998, though it is done through an Order in Council recommended and laid before Parliament by any appropriate Minister. In relation to matters that proceed to the courts, section 153 of the 2006 Act is in similar terms to section 102 of the Scotland Act 1998 or section 81 of the Northern Ireland Act 1998. Notice has to be given to the Attorney-General and the Counsel General of the Welsh Assembly (or their equivalents if the action is in Scotland or Northern Ireland). Hence, there is an effective declaration of incompatibility arrangement in Wales also. In this connection, it should be noted that the South African Constitution also gives a level of flexibility to the Constitutional Court: section 172(1) of 159

ibid at [57]. [2010] UKSC 43, [2010] 1 WLR 2601 [60]–[62]. Lord Rodger agreed at [100]–[102]. Both cited Irish constitutional jurisprudence to the effect that a finding that a practice was unconstitutional did not allow decided cases to be reopened in the absence of exceptional circumstances because of the chaos that would ensue: A v Governor of Arbour Hill Prison [2006] 4 IR 88. 160

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the 1996 Constitution requires the Court to declare the inconsistency of any law or conduct, but also provides that any ‘just and equitable’ order may be made, and the examples of what this includes are: i. an order limiting the retrospective effect of the declaration of invalidity; and ii. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. 138

So the Court is permitted to allow remedial action to be taken. Section 98(5) of the Interim Constitution of 1993 had a similar provision. ii. The NZBORA

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Whilst it is noticeable that the NZBORA has no express language, in contrast to that in the Human Rights Act 1993 in that jurisdiction and the express language of the other bills of rights statutes, it is difficult to use subsequent statutes—particularly those outside New Zealand—to decide the effect of the silence of the first statute off the block as to the power to issue declarations. The subsequent statutes could be seen as a legislative acceptance of what had been found to be implicit in the New Zealand statute so as to remove any doubt; and the provision of the Human Rights Act 1993 in relation to the power of the Human Rights Review Tribunal is hardly of value in this regard because (i) it acts as a limit to the powers of the Tribunal and (ii) it relates to a statutory tribunal (which may often be thought to have only such powers as are expressly conferred, and so might not have the declaratory powers of the normal court system). As to the case law in New Zealand, it is fair to say that there remain some significant doubts about the extent of the power and some lack of clarity as to its existence. As is developed in Chapter 9 and above in this chapter, there has been the creation of remedies for breaches of the NZBORA, including the exclusion of evidence in criminal cases and the award of damages (as has been done in relation to various constitutional arrangements which are otherwise silent about what remedy follows from action which is judged to be unconstitutional). This is based on the proposition that there should be an effective remedy for a breach of a right. Whether that remedy can properly include a declaration is a separate question: in particular, there is the question of whether it is an impermissible advisory opinion. In Moonen v Film and Literature Board of Review,161 which concerned the question of whether the classification of a film represented an unjustified limitation on freedom of speech, the failure of the decision maker to take into account the New Zealand Bill of Rights meant that its decision was quashed.

161

Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.

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But in an obiter comment, Tipping J for the Court, speaking about the general limitation clause in section 5, noted: [20] It might be said that the potentially difficult and detailed process involved under s 5 is somewhat academic when the provision in question is bound to be applied according to its tenor by dint of s 4. Section 5 would have had more than persuasive effect if the Court had been given the power, as in Canada, to declare legislation invalid. That was deliberately not done in New Zealand and the late introduction of s 4 into the Bill of Rights was not accompanied by any express recognition of the remaining point of s 5. That section was, however, retained and should be regarded as serving some useful purpose, both in the present statutory context and in its other potential applications. That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum. In the light of the presence of s 5 in the Bill of Rights, New Zealand society as a whole can rightly expect that on appropriate occasions the Courts will indicate whether a particular legislative provision is or is not justified thereunder.

In R v Poumako,162 Thomas J was prepared to make a declaration that a retrospective increase in a minimum sentence provision breached the New Zealand Bill of Rights Act:163 he was dissenting on this point, but it is to be noted that the majority declined to make a declaration because the matter had not been fully argued.164 Thomas J noted the significant problems of the relevant statute,165 and early academic support in favour of the making of declarations,166 and indicated: ‘[70] … This Court would be compromising its judicial function if it did not alert Parliament in the strongest possible manner to the constitutional privation of this provision’. He then developed an account as to the constitutional role given to the courts under the NZBORA, a supervisory one which required the development of remedies: [95] … while the Bill of Rights has been enacted as an ordinary statute, it possesses undoubted constitutional significance and casts the Courts in a supervisory role. Parliament has accepted that, subject to s 4, this supervision should occur. Section 5 imposes on the Courts the function of determining in appropriate cases whether a legislative restriction represents a reasonable limitation, such as can be justified

162

R v Poumako [2000] 2 NZLR 695. This was in contrast to his approach in Quilter v Attorney-General [1998] 1 NZLR 523. 164 In Zaoui v Attorney-General [2004] 2 NZLR 339 [166] Williams J noted that the jurisdiction to grant a declaration was established in light of what was said in Moonen and the fact that the majority in Poumako came close to making a declaration. 165 [2000] 2 NZLR 695 [75]–[78], noting that it breached various human rights standards and almost amounted to a bill of attainder. 166 ibid at [87], citing FM Brookfield, ‘Constitutional Law’ [1992] NZ Recent Law Review 231. 163

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in a free and democratic society. Section 6 directs the Courts to give human rights priority whenever possible, thus recognising that the Courts are necessarily the guardians of the norms underlying those rights. And Parliament has left the question of remedies to the Courts to develop. This the Court has done. [Various examples are given.] Where there is no other remedy, a declaration may provide the only effective remedy by which the Court can discharge this supervisory function.167 [104] … Where the Court is obliged to accept that s 4 applies, however, and the statutory provision in issue is patently inconsistent with the Bill of Rights, the only effective remedy available to preserve the integrity and constitutional status of the Bill of Rights is a declaration of inconsistency.

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He suggested that the declaratory power served a useful role in complementing other parts of the statute, though he added that there was a discretion in play as to whether or not it was necessary to grant a formal declaration: [96] … a declaration can be seen to complement both ss 5 and 7 of the Bill of Rights. It enables the Court to dedicate something more than a cursory consideration to the vital reservation contained in s 5. It can also support s 7. …168 [97] … The Bill of Rights was enacted to affirm fundamental rights and s 5 must be given a genuine role in relation to the interpretation of statutes. That role can be given effect to by the judiciary, and a declaration is the logical vehicle for doing so when such a course is required. … [99] … it is surely wrong to assume that Parliament would not want a firm indication from the Courts in the form of a formal declaration in appropriate cases. Inevitably, the occasions when the Court chooses to make a declaration as distinct from merely expressing an opinion will be rare. But, most importantly, Parliament and the Courts share the same commitment to the fundamental tenets of democracy. Both owe allegiance to the constitutional imperatives of representative government, the rule of law and fundamental human rights. Parliament, no less than the Courts, should endorse any procedure which will avoid a serious constitutional lapse on the part of either institution.

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Thomas J commented also that there was no challenge to parliamentary sovereignty. In essence, there was no prospect of legislation being declared invalid in light of the provisions of section 4; rather, it was an example of the independent judicial role (the legislative response to which was entirely for Parliament). Nor was there an impermissible challenge to the quality of legislation: it was simply a comment on consistency with fundamental rights. In Belcher v Chief Executive of the Department of Corrections,169 the Court of Appeal reached the view that statutory provisions relating to post-sentence supervision of sex offenders were inconsistent with the New Zealand Bill of Rights Act (and in particular the prohibition on retrospective punishment): it deferred the question of whether there should be a formal declaration

167 He noted also that it would not breach the prohibition on impliedly repealing a statute, set out in section 4 of the 1990 Act. 168 This was on the basis that section 7 did not apply to amendments of Bills and so meant that there was a gap in the provision of information to the legislature. See Chapter 6 for an account of the Attorney-General’s duty to report on inconsistent legislative proposals. 169 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507.

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(including the jurisdiction to make one). But it was then determined that there could not be a declaration. One reason was that it had not been sought at first instance.170 This holding was criticised by the Supreme Court in refusing leave to appeal further.171 But it was also determined that a declaration was a civil remedy and so outside the jurisdiction of a criminal court. In R v Hansen,172 the Supreme Court found that there was a breach of the presumption of innocence in the New Zealand Bill of Rights Act (which could not be interpreted away), but it did not grant any declaration. Summarising the position in McDonnell v Department of Corrections,173 the Court of Appeal determined that: [123] In summary, the position after the Belcher litigation is: (a) No decision has yet been made by the Supreme Court on whether declarations of inconsistency are available in criminal proceedings. However, this Court has indicated (in an obiter comment) that they are not; a separate civil proceeding is required: … The Supreme Court did not give leave to appeal from that decision and did not contradict that comment (though it did contradict another aspect of the decision). (b) The preferred approach to identifying inconsistencies is to do so in the reasons for judgment, without issuing a formal declaration. (c) A declaration will be unnecessary where s 5 of the Bill of Rights does not need to be considered in order to determine the questions at issue between the parties. (d) There is no jurisdictional bar to the Court of Appeal granting a declaration of inconsistency where such a declaration was not first sought in the High Court but was technically available.

However, in Boscawen, McVicar and Hide v Attorney-General,174 the Court of Appeal, again obiter, suggested that there was no jurisdiction to grant a declaration in the abstract, namely when there was no dispute between the parties as to the facts. The case turned on whether limitations on the funding of political parties breached the NZBORA; it was brought by prominent members of a small political party but did not feature a specific example of funding that had been disallowed. The Court doubted that there was a jurisdiction to grant an advisory opinion, as was done in places such as Germany and South Africa: [53] … It is not clear to us why the fact that those Courts have specific constitutional or statutory jurisdiction should lead to the conclusion that New Zealand Courts should assert such jurisdiction in the absence of any statutory authority, presumably as a component of the inherent jurisdiction of the High Court. [54] It is notable that the Attorney-General’s Advisory Group on the establishment of a Supreme Court in New Zealand recommended that the Supreme Court

170 171 172 173 174

[2007] NZCA 174. ibid at [7]. R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. McDonnell v Department of Corrections [2009] NZCA 352. Boscawen, McVicar and Hide v Attorney-General [2009] NZCA 12.

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not be given the power to give advisory opinions: Replacing the Privy Council: A New Supreme Court (April 2002) at 48–49. That recommendation was later accepted in the Supreme Court Act 2003. In light of that, it would seem unusual if the High Court or this Court were therefore able simply to assert this jurisdiction. Furthermore … the Courts are not well-placed to give opinions without a specific factual background to assess the inconsistencies.

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As to the making of declarations when there was a factual dispute in front of the court, the Court noted ‘[56] … The question as to whether a declaration of inconsistency is an available remedy under the NZBORA is still to be resolved …’.175

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In short, there is a body of jurisprudence in support of the use of declarations of inconsistency, at least in civil matters; but recent obiter statements have left open the prospect of a finding that there is no such power. Whether there is or should be such a power may be illuminated by a challenge to the propriety of the declaratory regime in Australia. If it does exist, and this is whether it is an implied power or an express one, there is also the question of when the discretion involved should be exercised.

E. The Propriety of the Power; the Discretion as to its Exercise 150

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The power to make a declaration raises a question of when it might be proper to exercise the power. In Australia, a wider question has been raised, which is the validity of the power. Among the issues considered by the High Court of Australia in R v Momcilovic176 was the validity of section 36 of the Victorian Charter. This was a matter that turned on the Australian Constitution: but some of the arguments may influence the propriety of the implication of the power in New Zealand or its use in other jurisdictions. The High Court was split, but the majorities were of the view that it was appropriate in relation to matters of purely state law, but not if there was a Commonwealth matter in play; and there was a strong dissent that found the whole idea of declarations of inconsistency to be improper. Starting with the Chief Justice, who was part of both majorities, he noted that the questions arising were whether the formal declaration was either a judicial power or incidental to a judicial power; and if granting the power to the judiciary was a valid exercise of the legislative function of the Victorian Parliament.177 As to the first, French CJ accepted that the formulation of the conclusion that a declaration was appropriate had as a prerequisite the judicial

175 The Court cited ‘Geiringer, ‘An Update on Implied Declarations of Inconsistency under the New Zealand Bill of Rights Act’ (Paper presented at ‘Celebrating 60 years of the Universal Declaration of Human Rights’, Wellington, 9 and 10 December 2008)’. A version of this was published as ‘On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act’ (2009) 40 Victoria University of Wellington Law Review 613. 176 R v Momcilovic [2011] HCA 34. 177 ibid at [79].

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decision that a consistent interpretation could not be reached; but he then noted that the declaration itself was neither part of that legitimate function nor incidental to it: 89.

… At the point at which such a declaration is made the Court will have decided all matters relevant to the disposition of the proceedings. The power conferred by s 36 plays no part in that process. The declaration sets down no guidance for the disposition of future cases involving similar principles of law. It has no legal effect upon the validity of the statutory provision which is its subject. It has statutory consequences of a procedural character. Those statutory consequences are relevant to the Attorney-General as a member of the Executive and as a member of the Victorian Parliament and to the Parliament itself. The declaration of inconsistent interpretation cannot be regarded as analogous to the judicial function nor to any functions historically exercised by courts and which, for that reason, have been regarded as judicial.

Nor, he concluded, was it in any way incidental since it ‘does not enable nor support nor facilitate the exercise by the Court of its judicial function. Nor does it have any part to play in giving effect to the disposition of the proceedings by the Court’.178 This was a fatal flaw in relation to any federal jurisdiction because of the strict separation of powers requirement in the Constitution of Australia (in relation to which state courts have a role also because there is a national judicial system). However, the test as to state courts is whether functions—even if not judicial or incidental to judicial functions—‘substantially impair their institutional integrity’ and as such are incompatible with their role under the Commonwealth Constitution. He determined that section 36 did not meet this test and so was valid in relation to state law: 96.

… The making of the declaration, however, does no more than manifest, in a practical way, the constitutional limitations upon the Court’s role and the fact that it is Parliament’s responsibility ultimately to determine whether the laws it enacts will be consistent or inconsistent with human rights. The Court must decide the cases which come before it according to law. If the Parliament has enacted a valid law which cannot be interpreted consistently with a human right, the Court must nevertheless decide the case according to that law and not according to its view of what the law should be, whether by reference to the protection of human rights or otherwise.

This is hardly a ringing endorsement of the legitimacy of the power. The contrary point was put by Gummow J, who concluded that [t]he declaration of inconsistent interpretation by the Supreme Court pursuant to s 36(2) provides, in substance, formal advice to the Attorney-General which the Supreme Court tenders by causing a copy of the declaration to be given to the Attorney-General, pursuant to s 36(6).179

178 179

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ibid at [91]. ibid at [181]. The consequences of a declaration are noted below.

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This was a problem because [i]n the division between judicial and legislative functions it is appropriately the responsibility of the legislature to decide whether the existing statute law should be altered or replaced. It is no part of the judicial power, in exercise of a function sought to be conferred on the courts by statute, formally to set in train a process whereby the executive branch of government may or may not decide to engage legislative processes to change existing legislation.180

It is to be noted that there was nothing much between the dissenting judges and the majority in relation to this point: French CJ expressly commented that it was not proper in the Australian context to use the metaphor of a dialogue between the judiciary and the other branches of government, since ‘At best, it distracts from recognition of the subsisting constitutional relationship between the three branches of government. At worst, it points misleadingly in the direction of invalidity’.181 154

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This challenge to the propriety of declarations points to a somewhat formalistic view that the only proper process is for legislatures to act in isolation in passing laws and for courts to act in isolation by then interpreting them or in a supreme law setting such as Australia striking them down. A less formalistic view is that the respective powers overlap rather than existing in silos, but in the context of constitutional roles. As regards legislation that impacts on rights, the legislature will no doubt do its best to understand rights, but has the final say on what the law should be; however, courts have the final say on whether the law properly understands rights because rights are legal constructs. All the declaration permits is for this to happen whilst leaving the law in place and suggesting that the legislature might want to act. It should be noted that this challenge to the propriety of declarations is in the context of a High Court judgment in which the holding was that the statute in question did not involve a reverse burden of proof and so all the comments about the Charter are obiter and hence amount to an advisory opinion. Outside the Australian setting, the separation of powers and its role in securing appropriate governance is generally accepted. Hence, the arguments in Momcilovic may be of value in determining the extent to which the power should be used. Thomas J, in determining that it was appropriate to grant a declaration in Poumako, as described above, was conscious that there were arguments to the contrary and that it would only be proper to issue a formal declaration in rare circumstances.182 It has also been accepted in the UK setting that declarations would rarely be granted, but that was because it was expected that the interpretive obligation would usually solve any dispute, meaning that a declaration was not needed.

180 181 182

ibid at [184]. ibid at [95]. [2000] 2 NZLR 695 [102].

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The White Paper in support of the Bill183 accepted that a declaration would be an important matter (and so would be a matter for the higher courts only): A declaration of incompatibility with the Convention rights 2.9 If the courts decide in any case that it is impossible to interpret an Act of Parliament in a way which is compatible with the Convention, the Bill enables a formal declaration to be made that its provisions are incompatible with the Convention. A declaration of incompatibility will be an important statement to make, and the power to make it will be reserved to the higher courts. They will be able to make a declaration in any proceedings before them, whether the case originated with them (as, in the High Court, on judicial review of an executive act) or in considering an appeal from a lower court or tribunal. The Government will have the right to intervene in any proceedings where such a declaration is a possible outcome. A decision by the High Court or Court of Appeal, determining whether or not such a declaration should be made, will itself be appealable.

Subsequently, the extent of the interpretive obligation—and consequent limited role for the declaration of incompatibility—was made clear in case law discussed in Chapter 8. For example, in R v A (No 2),184 legislation that was designed to curtail the questioning of complainants in rape cases about all but very limited examples of previous sexual conduct was held to be subject to an implied condition that such questioning as was necessary to ensure a fair trial should be permitted. Lord Steyn noted that this would avoid the need to use a declaration of incompatibility, commenting: 44.

157

… A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132A-B per Lord Hoffmann.

Nevertheless, there will be some instances in which the interpretive obligation cannot secure compliance with rights, even in the case of the stronger form of obligation accepted by the courts in the UK. But it does not follow that a formal declaration should be granted because the remedy is a matter of the exercise of a power not a duty. In relation to the exercise of the discretion, the House of Lords gave guidance in the case of Bellinger v Bellinger,185 which concerned the question of whether a marriage should be declared valid. Mrs Bellinger had been registered as male at birth, had gone through the appropriate gender reassignment process (and was referred to throughout as Mrs Bellinger), but the House concluded that it was beyond the ability of the interpretive obligation to

183 Rights Brought Home, cm 3782, available at www.archive.official-documents.co.uk/ document/hoffice/rights/intro.htm. 184 R v A (No 2) [2002] 1 AC 45. 185 Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.

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declare that the marriage was valid.186 This was despite the fact that Articles 8 and 12 ECHR were breached by this: see Goodwin v UK.187 The government, however, argued that there should not be a declaration of incompatibility (despite the existence of the incompatibility, at least as a matter of substance). The reasons put forward188 included a technical point that there was no incompatibility until time had passed for the UK to draft legislative changes to secure compliance with the Goodwin decision. This was rejected, though Lord Nicholls noted that: 53.

160

But the fact that the government accepted the incompatibility was the stronger basis for the suggestion that there be no declaration, because the existence of the ruling from the ECtHR meant that the ministerial powers under section 10 of the 1998 Act had already been triggered and so the domestic declaration could secure nothing. Lord Nicholls disagreed: 55.

161

It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. … But the question now under consideration is different. It is more general. The question is whether non-recognition of gender reassignment for the purposes of marriage is compatible with articles 8 and 12. The answer to this question is clear: it is not compatible. The European Court of Human Rights so found in July 2002 in Goodwin, and the Government has so accepted. What was held to be incompatible in July 2002 has not now, for the purposes of section 4, become compatible. The government’s announcement of forthcoming legislation has not had that effect, nor could it.

I am not persuaded by these submissions. If a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In exercising this discretion the court will have regard to all the circumstances. In the present case the government has not sought to question the decision of the European Court of Human Rights in Goodwin 35 EHRR 447. Indeed, it is committed to giving effect to that decision. Nevertheless, when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention. I would therefore make a declaration of incompatibility as sought.

The test of ‘desirability’ does not give any real guidance as to when a court should or should not make a declaration. There is, however, a good reason for the domestic courts to indicate their agreement with what an international tribunal has indicated: namely that the obligation on them is to take into account that jurisprudence rather than to follow it (see Chapter 2); and so the 186 187 188

See Chapter 8, paras 63–67. Goodwin v UK (2002) 35 EHRR 447. Described at [2003] UKHL 21, [2003] 2 AC 467, [50]–[55].

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declaration amounts to an indication that the domestic court agrees with the international tribunal. Note that it has also been ruled that the removal of the incompatibility has been said not to be a reason for setting a declaration aside. In R (T and Another) v Secretary of State for the Home Department,189 the Supreme Court declined to set aside a declaration of incompatibility which the government argued related to a situation that had already been corrected by legislation. Lord Wilson noted that the order was properly made at the time and so there was no reason to set it aside.190 There are, nevertheless, some identified limits. In the UK, it has been determined that, whilst there is no need for any victim status in relation to seeking a declaration, the lack of such status goes to the discretion as to remedy. In R (Rusbridger) v Attorney-General,191 journalists who wished to argue for the creation of a republic in the UK sought to argue that the offence of advocating the abolition of the monarchy, contrary to the Treason Felony Act 1848 (for which the sentence, originally transportation, was life imprisonment), was incompatible with their freedom of expression rights. Although there had been no prosecution since 1873, the Attorney-General had declined to give an undertaking not to prosecute. It was noted that there was no need for victim status in order to seek a declaration of incompatibility;192 however, the absence of any prospect of victim status also militated against granting any declaration. In short, the House of Lords determined that the answer was so obviously that there could be no prosecution for contributions to informed debate that no declaration was proper. Lord Steyn also noted that the common law context was that declarations in civil proceedings that conduct was not criminal were only proper in exceptional cases (an example being whether it would be criminal to remove life support from a patient in a vegetative state and thought to have no prospect of recovery).193 And this was not an exceptional case: rather, it was pointless litigation because it was beyond doubt that there would be no prosecution in light of the Human Rights Act. A linked point mentioned by Lords Hutton, Walker and Rodger was that the courts did not have the function of updating the statute book. Of course, one of the functions of the interpretive obligation in the 1998 Act is just that: but the point being made was that it was not a function in the abstract, but instead one that relied on a real dispute. There has also been a reluctance to intervene in matters of political sensitivity. By way of example, in 2006 the ECtHR ruled that the UK’s blanket ban on voting by prisoners, ie that no prisoner can vote, however short his or her sentence, was improper: see Hirst v UK.194 However, there had been no 189 190 191 192 193 194

R (T and Another) v Secretary of State for the Home Department [2014] UKSC 35. ibid at [53]. R (Rusbridger) v Attorney-General [2003] UKHL 38, [2004] 1 AC 357. ibid at [21]. ibid at [16]–[17]. Hirst v UK [2006] 1 Prison LR 220, (2006) 42 EHRR 41.

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amendment of the relevant legislation by the time of subsequent elections. This led to an application for a declaration of incompatibility. But in R (Chester) v Secretary of State for Justice and Wakefield Metropolitan District Council,195 the Court of Appeal declined to grant a declaration of incompatibility in the context of an argument by a post-tariff life sentence prisoner that he should be entitled to be franchised: Laws LJ noted that the content of the compliant law would be a matter of some controversy and that it would not be proper for the courts to give an advisory opinion on that in the context of a declaration of incompatibility, which was sought to clarify the law.196 His reasoning was that advisory opinions as to the legality of future legislation were not proper at common law: and that whilst such an opinion could be proper under the statute, it was not so on the facts in light of the controversy involved.197 165

This matter proceeded to the Supreme Court, where the reasoning was more similar to that in Rusbridger. Lord Mance noted that a declaration had been granted in an early case after Hirst, in proceedings in relation to elections in Scotland,198 that the political process to comply with the requirements of the decision were actively under way, and that there was no doubt that Mr Chester was unlikely to be enfranchised by any legislation.199 Lady Hale, for herself and Lords Kerr, Clarke, Sumption, Hughes and Hope, discussed the prospect of a declaration in light of her view that Mr Chester’s rights had not been breached, given his sentence. She noted: 102.

That leaves the possibility of a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. This applies ‘in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right’: section 4(1). This does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims. It is principally for that reason that I would decline to make a declaration of incompatibility … Indeed, in my view the courts should not entertain such claims. It is otherwise, of course, in borderline cases.

195 R (Chester) v Secretary of State for Justice and Wakefield Metropolitan District Council [2010] EWCA Civ 1439, [2010] 2 Prison LR 40. The application for a declaration of incompatibility was in the alternative to applications for declarations as to a compliant reading and also a declaration that any new statute should enfranchise post-tariff life sentence prisoners. 196 ibid at [25]. 197 ibid at [31]–[35]. In partial contrast, see R (M) v Secretary of State for Health [2003] EWHC 1094 Admin, [2003] MHLR 348, where Maurice Kay J granted a declaration of incompatibility that reflected an earlier judgment of the ECtHR from 5 years previously that had not yet been remedied despite the government accepting that action was needed. The subject matter was the right of someone diagnosed as having a psychiatric disorder to choose the relative assigned to participate in the process. However, there was no real controversy about what change was necessary in this situation, which was eventually resolved by the Mental Health Act 2007. 198 Smith v Scott 2007 SC 345, [2008] Prison LR 177. 199 [2013] UKSC 63, [2014] AC 271 [39]–[40].

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It may be that the controversial nature of prisoner voting has affected the judges, given that there is an obvious public interest in allowing the correction of a law that breaches the rights of a group with so little political power that the legislature is able to drag its feet in performing its role of amending the law; and that various filters can deal with unmeritorious claims—from the difficulties of getting funding for the claim to provisions for leave to bring proceedings or powers of summary dismissal. After all, a central reason for having rights entrenched in law is so that unpopular minorities are protected. Moreover, it is to be noted that Mr Chester had served his punishment period and so was in prison on the basis of an assessment of risk, and will no doubt have an argument for saying that the absence of detention for punishment should provide him with a basis for claiming the right to vote (which could be exercised by a prisoner released at the end of the punitive period because he or she met the risk-based test). In another controversial area, that of assisted suicide (particularly for those who cannot commit suicide due to a disability), a nine-judge Supreme Court had to consider whether the blanket ban on the process breached the right to respect for private life in Article 8 of the ECHR: R (Nicklinson and Another) v Ministry of Justice.200 Assisted suicide is a serious criminal offence (albeit that the Director of Public Prosecutions has issued guidance as to when there might be a prosecution for it). All nine justices agreed that there was a question of law and so the matter was justiciable. However, four concluded that the issue required an assessment of matters of such a nature that the legislature’s view had to be respected; five determined that it was open to the courts to rule on whether the blanket ban breached what was a proper understanding of Article 8 within the UK. Three of this majority held that the evidence in the case did not allow a decision, but also relied on the fact that there was an active debate ongoing in the legislature, which should be allowed to reach a conclusion. Two, Lady Hale and Lord Kerr, would have granted a declaration. In short, three held the prospect of a declaration over the legislature, and two would have granted one to indicate that Parliament could make a decision but not one that maintained a blanket ban. Finally, in Ireland, the declaration is also a discretionary remedy; however, it is to be noted that the power to award ex gratia compensation, discussed below, is dependent on the making of a declaration. This is a good reason for suggesting that the declaration should be granted unless there are exceptional reasons not to do so.

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F. Consequences—the Retention of the Statute; Political Steps In each statute, there is clear statutory language that the consequence of the interpretive obligation not securing a rights-compliant result is that the

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R (Nicklinson and Another) v Ministry of Justice [2014] UKSC 38.

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relevant provision remains in place, even though that results in a breach of rights and of international obligations: New Zealand—New Zealand Bill of Rights Act 1990 4. Other enactments not affected No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),— (a)

hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of the enactment— by reason only that the provision is inconsistent with any provision of this Bill of Rights. New Zealand—Human Rights Act 1993 92K. Effect of declaration (1) A declaration under section 92J does not— (a) affect the validity, application, or enforcement of the enactment in respect of which it is given; or (b) prevent the continuation of the act, omission, policy, or activity that was the subject of the complaint. UK—Human Rights Act 1998 3. Interpretation of legislation. [(1) and (2)(a)—See Chapter 8] (2) This section— … (b) (c)

does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

4. Declaration of incompatibility. … (6) A declaration under this section (‘a declaration of incompatibility’)— (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made. Ireland—European Convention on Human Rights Act 2003 5. Declaration of incompatibility … (2) A declaration of incompatibility— (a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and

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shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights.

ACT—Human Rights Act 2004 32. Declaration of incompatibility … (3) The declaration of incompatibility does not affect— (a) the validity, operation or enforcement of the law; or (b) the rights or obligations of anyone. Victoria—Charter of Human Rights and Responsibilities Act 2006 36. Declaration of inconsistent interpretation … (5) A declaration of inconsistent interpretation does not— (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

In short, and perhaps to make clear that it is the consequence of parliamentary supremacy, which includes the right to breach fundamental rights as a matter of domestic law (and to do so even if that is unlawful as a matter of international law), the statutes each make clear that there is no suggestion that an outcome that is inconsistent with those rights and cannot be saved from that position by use of the interpretive obligation is nevertheless one that must be upheld and enforced by the courts. Another function that is secured by this language is a reminder that the statutes are interpretive statutes only, rather than ones that might secure effect by the doctrine of implied repeal, namely that a subsequent statute takes priority over an earlier one that is inconsistent with it by repealing that earlier statute. In this regard, these statutes are to be contrasted with the mechanism of the Hong Kong Bill of Rights Ordinance, which as enacted provided by section 3:

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3. Effect on pre-existing legislation. (1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction. (2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.

Section 4 of the Ordinance than indicated that subsequent legislation was to be given a consistent interpretation if possible. In short, the model from Hong Kong proceeded on the basis that the Ordinance was a traditional statute that secured rights by the doctrine of implied repeal if it was not possible for an earlier statute to be given a rights-compliant interpretation. The same doctrine applied in relation to the Ordinance in that any subsequent statute would take precedence over an inconsistent provision in the Ordinance. In contrast, the various statutes described above contain language that makes clear that they

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do not set out any form of substantive right to an outcome that is rights compliant: that substantive right is to a rights-compliant obligation only if that can be secured by the interpretive obligation. What happens, however, is that the legislature becomes involved again. (This may suggest the importance of granting a declaration, particularly if the scenario is that the legislature believed it was acting in a compliant fashion but this view was erroneous.) There are some variations, but each statute makes provision for the declaration to be brought to the notice of the legislature. The UK statute also permits the amendment of primary legislation by a Minister (albeit subject to parliamentary control) if there is a declaration and good reason not to wait for the normal parliamentary process of fresh primary legislation. This is also permitted if the ECtHR makes a finding that there is an inconsistency. The Scottish Ministers also have a power to make remedial orders, but in broader circumstances. The relevant language for New Zealand indicates that any formal declaration granted by the Human Rights Review Tribunal must be placed before Parliament together with the government’s response to the declaration: New Zealand—Human Rights Act 1993 92K. Effect of declaration … (2) If a declaration is made under section 92J and that declaration is not overturned on appeal or the time for lodging an appeal expires, the Minister for the time being responsible for the administration of the enactment must present to the House of Representatives— (a) a report bringing the declaration to the attention of the House of Representatives; and (b) a report containing advice on the Government’s response to the declaration. (3) The Minister referred to in subsection (2) must carry out the duties imposed on the Minister by that subsection within 120 days of the date of disposal of all appeals against the granting of the declaration or, if no appeal is lodged, the date when the time for lodging an appeal expires.

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There has been one such event so far: it related to a part of the accident compensation scheme, which was amended.201 There is no such process in relation to the implied declaratory power accepted by the courts in relation to the NZBORA. However, the nature of New Zealand’s small population and political processes are such that relevant action could well be taken as a matter of course. In the UK, the process has three points of difference. First, there is no obligation to lay the declaration before the legislature (although, as in New Zealand, it is to be expected that it would happen, particularly through the operation of the Parliamentary Joint Committee on Human Rights, which is discussed in 201 The materials can be found at: www.justice.govt.nz/policy/constitutional-law-and-humanrights/human-rights/domestic-human-rights-protection/human-rights-act-1993/reports-government-responses-to-declarations-of-inconsistency-made-by-the-human-rights-review-tribunal.

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Chapter 6). Secondly, both the Westminster executive and the Scottish executive have been given powers to amend primary legislation to replace the problematic statute. Thirdly, the UK statute expressly permits the use of the power after a ruling from the ECtHR, which demonstrates how it has become part of the judicial machinery, particularly so as (i) the ECtHR may have made its ruling on incompatibility after the domestic courts reached a different conclusion and (ii) the domestic courts are allowed, under section 2 of the 1998 Act, to decline to follow the ECtHR, so long as they take it into account. It is always possible for Parliament to go further than the courts: this provision means that the executive can also take legislative steps that go further. This power to take remedial action is in the following terms in the Human Rights Act 1998, widely drafted so as to cover various situations:202 Remedial action 10. Power to take remedial action. (1) This section applies if— (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies— (i) all persons who may appeal have stated in writing that they do not intend to do so; (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or (iii) an appeal brought within that time has been determined or abandoned; or (b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention. (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility. (3) If, in the case of subordinate legislation, a Minister of the Crown considers— (a) that it is necessary to amend the primary legislation under which the subordinate legislation in question was made, in order to enable the incompatibility to be removed, and (b) that there are compelling reasons for proceeding under this section, he may by order make such amendments to the primary legislation as he considers necessary. (4) This section also applies where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with a Convention right and the Minister proposes to proceed under paragraph 2(b) of Schedule 2. (5) If the legislation is an Order in Council, the power conferred by subsection (2) or (3) is exercisable by Her Majesty in Council.

202 Note that section 10(6) defines legislation for this purpose so as to exclude Measures of the Church of England, which are otherwise within the definition of legislation.

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Detailed provision is made in Schedule 2 to the Act, including the need for draft orders to be laid before Parliament unless the situation is urgent (in which case it is laid before Parliament after being made): in both cases, legislators can make suggestions, and there is a process for further action to be taken as a result if the Minister so decides. The Scottish Ministers have been given a similar power under section 12 of the Convention Rights (Compliance) (Scotland) Act 2001: this is in even wider terms, because it can be exercised without any declaration of incompatibility or court judgment. Compelling reasons are required but may arise from any source, such as legal advice that something is susceptible to challenge. The statute is in the following terms: 12. Remedial orders (1) In the circumstances set out in subsection (2) below, the Scottish Ministers may, by order (in this Part of this Act, a ‘remedial order’), make such provision as they consider necessary or expedient in consequence of— (a) an Act of Parliament or an Act of the Scottish Parliament; (b) any subordinate legislation made under any such Act; (c) any provision of any such Act or subordinate legislation; or (d) any exercise or purported exercise of functions by a member of the Scottish Executive, which is or may be incompatible with any of the Convention rights. (2) Those circumstances are that the Scottish Ministers are of the opinion that there are compelling reasons for making a remedial order as distinct from taking any other action.

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The remainder of the section sets out how broad the powers are, with the only real limit being a restriction on the creation of criminal offences carrying large fines or longer than two years’ imprisonment. Sections 13 and 14 set out procedures that are broadly similar to those in the Human Rights Act 1998. A number of remedial orders have been made, largely by the Westminster Parliament. The first remedial order was made following a ruling by the Court of Appeal that a reverse burden of proof imposed on detained psychiatric patients to demonstrate they did not meet the criteria for ongoing detention (rather than the hospital, representing the state, having to show the need for detention) breached the right to liberty in Article 5 of the ECHR. The Mental Health Act 1983 (Remedial) Order 2001203 amended this. Subsequent orders have been made following domestic decisions in relation to: (i) amending section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 which discriminated in favour of those seeking to enter the UK in order to marry under the auspices of the Church of

203 SI 2001 No 3712; the case was R (H) v Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening) [2001] EWCA Civ 415, [2002] QB 1.

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England—The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011;204 (ii) Amending indefinite notification requirements for those convicted of sexual offences—The Sexual Offences Act 2003 (Remedial) Order 2012.205 There have also been those made following decisions of the ECtHR (which involved failures in the domestic proceedings):

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(i) amending provisions relating to armed services disciplinary proceedings, which had been found to breach Article 6 of the ECHR—The Naval Discipline Act 1957 (Remedial) Order 2004;206 (ii) amending provisions in the Marriage Act 1949 that prevented a fatherin-law marrying a daughter-in-law—The Marriage Act 1949 (Remedial) Order 2007;207 (iii) amending stop and search powers—The Terrorism Act 2000 (Remedial) Order 2011.208 The Scottish Ministers have exercised their power as well. The Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010209 and its similarly titled replacement of 2011210 was the earlier equivalent in Scotland of the 2012 order in England and Wales. The problem identified in the Salvesen litigation, noted above, was resolved by The Agricultural Holdings (Scotland) Act 2003 Remedial Order 2014.211 The position in Ireland in relation to the process for amending any legislation is that a declaration has to be placed before the legislature, and by the Prime Minister, but any remedial steps have to go through the political process: Ireland—European Convention on Human Rights Act 2003 5. Declaration of incompatibility … (3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order.

204 SI 2011 No 1158; the case was R (Baiai and others) v Secretary of State for the Home Department [2008] UKHL 53, [2009] 1 AC 287. It is to be noted that it took some three years for this order to be made, which makes it difficult to see that the criteria for making the order were made out. 205 SI 2012 No 1883; this corrected the breach of Article 8 ECHR found in R (F and another) v Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 AC 331. 206 SI 2004 No 66; the case was the Grand Chamber judgment Mark Grieves v UK App no 57067/00, (2004) 39 EHRR 2. 207 SI 2007 No 438; the case was B and L v UK App no 36536/02, (2006) 42 EHRR 11. The breach was of Article 12 of the ECHR, the right to marry. 208 SI 2011 No 631; this followed Gillan and Quinton v UK App no 4158/05, (2010) 50 EHRR 45, which found a breach of Article 8. 209 SSI 2010 No 370. 210 SSI 2011 No 45. 211 SSI 2014 No 98. It is interesting that this was done by executive action rather than by the Scottish Parliament, which is what was in the mind of the Supreme Court.

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In the Australian jurisdictions, the situation is as in New Zealand, namely the legislature has to be notified, and there has to be a response by the government, though they do not have to occur at the same time: ACT—Human Rights Act 2004 32. Declaration of incompatibility … (4) The registrar of the Supreme Court must promptly give a copy of the declaration of incompatibility to the Attorney-General. 33. Attorney-General’s action on receiving declaration of incompatibility (1) This section applies if the Attorney-General receives a copy of a declaration of incompatibility. (2) The Attorney-General must present a copy of the declaration of incompatibility to the Legislative Assembly within 6 sitting days after the day the AttorneyGeneral receives the copy. (3) The Attorney-General must prepare a written response to the declaration of incompatibility and present it to the Legislative Assembly not later than 6 months after the day the copy of the declaration is presented to the Legislative Assembly. Victoria—Charter of Human Rights and Responsibilities Act 2006 36. Declaration of inconsistent interpretation … (6) The Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General— (a) if the period provided for the lodging of an appeal in respect of the proceeding in which the declaration was made has ended without such an appeal having been lodged, within 7 days after the end of that period; or (b) if on appeal the declaration is upheld, within 7 days after any appeal has been finalised. Example If the Trial Division of the Supreme Court makes a declaration of inconsistent interpretation (based on a referral of a question from VCAT) and on appeal the Court of Appeal upholds the declaration, a copy of the declaration must be sent to the Attorney-General within 7 days after the Court of Appeal’s decision. (7) The Attorney-General must, as soon as reasonably practicable, give a copy of a declaration of inconsistent interpretation received under subsection (6) to the Minister administering the statutory provision in respect of which the declaration was made, unless the relevant Minister is the Attorney-General. 37.

Action on declaration of inconsistent interpretation

Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must— (a) prepare a written response to the declaration; and

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(b) cause a copy of the declaration and of his or her response to it to be— (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

G. Consequences—A Remedy for the Victim There is an additional express provision for Ireland, which is that the person whose rights are breached by action that does not comply with the ECHR but is not illegal in domestic law may apply through an administrative process for a remedy. In the case of the UK, a person can make an application to the ECtHR to seek just satisfaction, and can seek an ex gratia payment. (Indeed, the ECHR has ‘friendly settlement’ processes, whereby the ECtHR will seek to facilitate an agreed settlement, which can include the payment of compensation.) In the Australasian jurisdictions, there is the different dynamic that the international tribunal does not award damages, though it can recommend that they be paid if a breach is found: but that does not prevent an application for an ex gratia payment. The Irish statute has the benefit of making the process more transparent and obvious and thereby likely to be used. Nonetheless, creative lawyers in the other jurisdictions might want to explore whether the absence of an express provision means that they cannot ask: an obvious argument would be that the cost and expense of seeking a remedy (if the international tribunal can award one) or a recommendation to that effect can be removed if a suitable ex gratia payment is made, which might remove victim status from the claimant and hence their potential access to the international body. The language in Ireland is as follows: Ireland—European Convention on Human Rights Act 2003 5. Declaration of incompatibility (4) Where— (a) a declaration of incompatibility is made, (b) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned, and (c) the Government, in their discretion, consider that it may be appropriate to make an ex gratia payment of compensation to that party (‘a payment’), the Government may request an adviser appointed by them to advise them as to the amount of such compensation (if any) and may, in their discretion, make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances. (5) In advising the Government on the amount of compensation for the purposes of subsection (4), an adviser shall take appropriate account of the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.

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The explanatory memorandum to the European Convention on Human Right Bill 2001 noted the reason for this provision, and in particular why it was through an administrative process: The reason any such payment would be made by the Government and not the Courts, is that the Courts could not award damages where there is compliance with a statutory provision or rule of law which, while incompatible with the Convention, remains Constitutionally valid. In the absence of such a compensation scheme, the injured party seeking damages would have to take a case to Strasbourg, and this would be inconsistent with the principle underlying the Bill to give further effect to the Convention in national law by enabling cases to be taken and remedies obtained before national courts in respect of violations of the Convention.

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This reasoning is just as valid for the UK.

11 Summaries and Conclusions The formation of the United Nations in 1945 included the mandate to develop human rights standards and transnational mechanisms; other regional organisations had a similar aim. Membership of these organisations is a matter of treaty, and hence an exercise of state sovereignty. The context was the significant breaches of human rights in the years preceding the formation of the UN, and the desire to improve respect for human dignity by creating enforceable rights within each legal system (sovereignty over domestic affairs being retained) but also through international cooperation in developing and monitoring progress. This has led to the creation of numerous treaties with monitoring bodies, membership of each of which depends on ratification or similar acts of sovereign power, and also the development of processes through bodies set up under the UN Charter. Naturally, these monitoring bodies are operated by the nations and so act as a form of peer review. An account of these international obligations and the transnational processes is set out in Chapter 2 to emphasise the important context to human rights standards that states have agreed that there will be a transnational element to the process of protecting the rights which belong to all. The focus remains on domestic processes, however, because the treaties involved do not require that direct effect be given to them or that dualist countries become monist; rather, the concentration, perhaps particularly within a dualist country, is on the steps taken to secure rights. Even in a monist country, this will be so because the statements of rights are at a high level and so will invariably require more detailed rules to put them into effect, including drawing the balance between competing interests and providing compliance with a reasonable level of legal certainty. Whether this requires changes depends on the state of domestic law and the ability of its existing rules to provide rightsrespecting solutions. Hence in Chapter 3, there was an exploration of the extent to which the common law tradition secured the rights typically set out in the relevant treaties, at least those dealing with civil and political rights. It was noted that there were different approaches within different common law jurisdictions in some respects (in particular in terms of taking into account international standards, where the Australasian jurisprudence is more active), though an equivalence in terms of the key statutory interpretation technique of legality and judicial review: but gaps in all these approaches were identified. It seems apparent that legislatures were alert to concerns that the domestic structures were not adequately compliant with international obligations, which

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explained the desire to move further, as appears from the face of the statutes and/or the pre-legislative material, and is described in Chapter 4. However, it was also decided that the process that would be adopted would not involve supreme law protection of rights. The rest of the book has sought to examine the extent to which there has been success in achieving the international obligation and the purpose of the statutes of going further than had been gone already (unless, naturally, a legislature decided not to do so). The first part of this was to review a central dynamic that exists as between the international and domestic legal regimes, namely how the substance of rights is worked out. This arises from the need for domestic rules to designate the balance between competing rights and interests, which is reflected in the international documents (either expressly, by general limiting clauses or specific limits on particular rights or both, or implicitly), though in the context of the distinct rules of interpretation that have been developed for human rights standards. This was done in Chapter 5, which examined how this has been given voice in the domestic situation, where there are two dynamics involving the judiciary. One is the relationship between the judiciary and the legislature, which has been expressed in a similar way to that in the international documents, namely either through general limiting clauses or through needs for balance in relation to certain rights (expressly or implicitly); this has led to areas of deference when the designation of the content of a right should be a matter for the legislature. The second dynamic explored is that between the international and domestic judiciary: here it is clear from the statutory language that there was no requirement to follow the international standards as opposed to taking them into account. The rationale for this, expressed most clearly in the pre-legislative language in the UK, was that the development of human rights standards involves a partnership between the domestic and transnational bodies (in light of concepts such as the margin of appreciation, which may be affected by the level of consensus) and it is important for the domestic judiciary to play an active role in this. However, it is suggested in Chapter 5 that there has been a tendency for the domestic courts—at least those in the UK, where the issue has been considered—to adopt an approach of wait and follow rather than actively developing the understanding of the standards. But this is something that appears to be changing, with a willingness to develop rights law in the UK in advance of that recognised by the transnational court. The mechanics adopted in the bills of rights statutes that have been adopted cover the three parts of the state. First, the legislature is covered in that processes are in place to seek to ensure that those who introduce bills take human rights points into account and that there is a process of scrutiny within the legislature. There are some significant variations in play here, as noted in Chapter 6, which reflect choices that have been made. It is suggested that there is room to consider whether some of the features representing best practice should be adopted where they are not already in play.

Summaries and Conclusions 549 The second branch of the state is the executive, which is required to abide by standards. The main dynamic here, discussed in Chapter 7, is the extent of who is covered, and in particular the extent to which bodies that are not core parts of government but are carrying out functions that might lead to state liability are covered by the legislation. Again, there are different methods in the statutes, whereby the legislatures have given more or less guidance on the extent of coverage. It is noted that in the UK, where case law has involved narrow interpretations that have been overturned in part by legislation, a matter that could be considered is whether concentration on the need for an effective remedy against those who act with official backing might lead to a wider understanding of the ambit of the statute. Another part of this dynamic is the extent to which the judiciary are also covered by the statutory obligation not to breach rights: there is again no unanimity in the statutory language, though with an explanation that the Irish and Australian scenarios have constitutional obligations that take precedence. There is also the question of the development of the common law. Aside from a specific problem in Australia, arising from the need for a single common law within the commonwealth, there have been developments of the common law (though not always); and it is also noted that there have been instances where the common law has developed in a way that might have been thought bold in advance of the bills of rights statutes. Indeed, there are some suggestions made in recent UK jurisprudence that support a greater emphasis on the common law as a way of solving disputes, which indicate that the case law in this area has scope to develop further. The further aspects of the mechanics of the judicial engagement with the protections of rights start with the main technique offered in the absence of a power to strike down legislation, namely to seek an interpretation that is consistent with rights. This is the matter in relation to which there has been the most comparative law conflict, discussed in Chapter 8, with the judges in the UK going much further in their willingness to secure a rights-consistent outcome than in the other jurisdictions. It is suggested that the UK judges have been most consistent with the aim of the legislation (and the international obligation on all parts of the state to respect rights). Chapters 9 and 10 deal with the actions that can be taken to protect rights, which are implicit in the NZBORA and express in other statutes, and the remedies that can be obtained, including in the situation where there is a statutory provision requiring a breach of rights. Again, there are some variations between the statutes, reflecting choices that have been made by the different legislatures. These various statutes remain juvenile; the oldest, from New Zealand, is only just an adult. The case law is still developing; and there have been instances of legislative tweaks that have occurred. The limited aim of this book has been to suggest a rationale for ensuring that as further case law develops and further legislative reviews are considered, the international

6

7

8

9

10

550

11

Summaries and Conclusions

obligation behind the statutes is given suitable priority in light of the value of the international human rights regime. Just as this has led to the redefining of the role of transnational bodies, with the consent of the states parties and their agreement to participate in this new regime, so the purpose behind the statutes was to establish a new process of rights protection within the domestic regime. The common law had an uneven approach to international human rights obligations in advance of the statutes. Similarly, there has been an uneven approach to the statutory obligations. Where this has not been made obligatory by the statutory language—such as a clear indication that damages cannot be awarded—it is suggested that (i) the common law approach to human rights standards, ie broad and purposive rather than narrow and legalistic, and (ii) the interpretive obligation in the statutes, should lead to the approaches in the different jurisdictions being equated. And equated in favour of the broadest approach that has been adopted in relation to each separate mechanic.

Index African Commission on Human and People’s Rights, 63 African Court on Human on Human and People’s Rights, 63, 80 Belfast Agreement 1998, 169–71 Canadian Bill of Rights Act 1960: Interpretive obligation, 400 Legislative override, 318–19 New Zealand Bill of Rights Act 1990, comparison or relationship with, 1, 5–6 Outline of, 2–3 Statements to legislature, 294 Canadian Charter of Rights and Freedoms 1982: Applicability to governmental bodies, 344–46 General limitation clause, 218, 228–32 Legislative override, 318–19, 519 Litigation to enforce, 465 New Zealand Bill of Rights Act 1990, comparison or relationship with, 1, 5–6 Outline of, 3–4 Remedies: Damages, availability, purpose and nature, 493–97 Damages, quantum, 513–14 Exemplary damages, 517 Stay of proceedings, 488–89 Charter of Fundamental Rights of the European Union: ECHR, relationship with, 36 Charter of Rights and Responsibilities Act 2006 (Vic): Applicability, 338–40 Declaration of inconsistent interpretation, 520, 522, 530–32, 539, 544–45 Explanatory Memorandum, 174–75, 227, 256 General limitation clause, 246–49 Human Rights Act 2004 (ACT), comparison or relationship with, 15, 17 Human Rights Consultation Committee, 421 International and comparative law, use of, 157, 254–55, 256 ICCPR, relationship with, 22 Interpretive obligation, 421–24 Lack of separate remedy provision, 444, 452–53 Legislative override, 318–21 Litigation involving, 472–74

Other rights, retention of, 377 Outline, 15–17 Parliamentary scrutiny, 317 Purpose, 157 Statements of compatibility, 295–96 See also Human Rights Standards (Domestic), International Human Rights Treaties, Standards and Mechanisms Commission for Equality and Human Rights (Britain), 10, 470 Committee Against Torture, 62, 66, 74 See also Convention Against Torture, Subcommittee on the Prevention of Torture Committee of Ministers (Council of Europe), 66, 81–82, 154, 155, 173, 253, 264 Recommendations by, 329 Committee on Economic, Social and Cultural Rights, 62, 65, 76, 89 Committee on the Elimination of Discrimination Against Women, 62, 66, 73–74 See also Convention on the Elimination of All Forms of Discrimination Against Women Committee on the Elimination of Racial Discrimination, 62, 66, 72–73 See also International Convention on the Elimination of All Forms of Racial Discrimination Committee on the Rights of Persons with Disabilities, 62, 75–76 See also Convention on the Rights of Persons with Disabilities Committee on the Rights of the Child, 62, 74–75 See also Convention on the Rights of the Child Common law: Balliol Statement on relationship between international law and common law, 141 Convention Against Torture, relationship with, 97–98 Customary International Law, relationship with, 110–14 Development under or at same time as bills of rights statutes, 372–91 Australian unified common law, 372–73 Rediscovery of, 381–91 ECHR, relationship with, 84, 386, 388–91 Executive discretion, control of, 107–09, 134–36 Legality, 93–107

552

Index

Legitimate expectation, 134–36 Limits to protection of rights, 146–50 Methodology of, arguments as to preference over statutory bills of rights, 189–90, 373–74 Rights, interpretation of, 216 Rights protected by, 89–93, 95, 96, 97 Unincorporated treaties, relationship with, 115–46, 217 See also Rule of Law Constitutional matters: Choice between supreme law or nonsupreme law, 161–63, 168, 172, 176–84, 185–89 Constitutional nature of statutory bills of rights, 185–89, 527 Constitutional settings and theories, 18–19 See also Canadian Charter of Rights and Freedoms 1982, Irish Constitution, South African Constitution, United States of America Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) and Optional Protocol 2002 (OPCAT): Common law, relationship with, 97–98 Complaints, 74 Enforcement of, obligation as to, 47–52 National preventive mechanisms, 60 Torture, definition of, 47 See also Committee Against Torture, Subcommittee on the Prevention of Torture Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW): Complaints, 73–74 Enforcement of, obligation as to, 41–42 See also Committee on the Elimination of Discrimination Against Women Convention on the Rights of the Child 1989 (UNCRC): Complaints, 74–75 Enforcement of, obligation as to, 38 See also Committee on the Rights of the Child Convention on the Rights of Persons with Disabilities 2006 (CRPD): Complaints, 75–76 Enforcement of, obligation as to, 42–47 EU as party to, 216 See also Committee on the Rights of Persons with Disabilities Economic and Social Council of the UN, 26, 61 Equality Authority (Ire), 13 Equality Commission for Northern Ireland, 10 European Committee for the Prevention of Torture, 65–66 European Committee of Social Rights, 66

European Convention on Human Rights 1950 (ECHR): Charter of Fundamental Rights of the European Union, relationship with, 36 Direct effect, lack of, 29 Enforcement of, obligation as to, 29 EU as party to, 36 ICCPR, relationship with, 31–34, 71 Ratification, 31 Territorial jurisdiction, 29 UDHR, comparison or relationship with, 28, 32 See also European Convention on Human Rights Act 2003 (Ire), European Court of Human Rights and Human Rights Act 1998 (UK) European Convention on Human Rights Act 2003 (Ire): Belfast Agreement, 169–71 Bodies covered, 335–36, 371–72 Damages, Declaration of incompatibility, 520, 521–22, 537, 538–39, 543, 545–46 ECHR, relationship with, 22, 154–55, 253–54, 256, 282–84 Effective remedy, incorporation of, 283–84, 493 Ex gratia payment following declaration of incompatibility, 545–46 Explanatory memorandum, 171–73, 256, 425–26, 546 Human Rights Act 1998, Comparison or relationship with, 11–13 Interpretive obligation, 424–26 Litigation to enforce, 471–72 New Zealand Bill of Rights Act 1990, comparison or relationship with, 11–13 Outline, 10–13 Purpose, 154 Remedy, 484–85 See also European Convention on Human Rights, European Court of Human Rights, Human Rights Standards (Domestic), International Human Rights Treaties, Standards and Mechanisms European Court of Human Rights: Admissibility, 67, 77 Enforcement of judgments, 31, 81–82 Fact-finding process, 209 Functions, 31 Human Rights Committee, comparison with, 68 Individual applications, 67 Interventions, 467–68 Time limits, 474 Inter-state cases, 67 Jurisdiction, 31, 67–68 Just satisfaction, 78–80 Pilot Judgment Procedure, 81 Relationship with domestic courts, 153–54, 253, 255, 263–83, 285–87, 542–43 Rules of Court, 68, 209

Index European Social Charter (1961 and 1996) and Protocol (1995), 66, 77 European Union and EU Law: CRPD, EU as party to, 216 ECHR, EU as party to, 36 Implementation of in domestic law, 128–33 Comparison with human rights standards, 438 Explanatory Memoranda and Statements: ACT – Explanatory Statement to Human Rights Bill 2003, 173–74, 225–26, 256 ACT – Explanatory Statement to Human Rights Amendment Bill 2007, 226, 372 Ireland – Explanatory Memorandum to the European Convention on Human Rights Bill 2001, 171–73, 256, 372, 425–26, 546 Victoria – Explanatory Memorandum to Charter of Human Rights and Responsibilities Bill, 174–75, 227, 256, 421 See also White Papers General Assembly of the UN, 25, 27, 61 General Comments of UN Treaty Bodies: Committee Against Torture General Comment No 2, 327–28 General Comment No 3, 57 Committee on Economic, Social and Cultural Rights General Comment No 3, 144 General Comment No 9, 89 Human Rights Committee General Comment No 33, 33, 487–88 General Comment No 34, 213 Government of Wales Acts 1998 and 2006: Declaration of incompatibility, implicit power, 525 Legislative competence of Welsh Assembly and Welsh Ministers, 177–78, 335, 398–400, 525 Pre-enactment scrutiny, 297–98, 305, 307–08 Litigation involving, notice of, 471 Remedy for breach, limitations, 451, 484 Statements of compatibility, 297 Hong Kong: Basic Law, 158, 238–39 Hong Kong Bill of Rights Ordinance, 237–38, 401, 539 Human Rights Act 1993 (NZ): Complaints and litigation under, 444, 468–69, 480–82 Declaration of inconsistency, 519, 520–21, 538, 540 Limitation on right not to be discriminated against, 246 NZBORA, relationship with, 246 Outline, 6–7

553

Human Rights Act 1998 (UK): Bodies covered, 333–34 Executive, 334 Judiciary, 371, 373, 374, 375 Prosecuting authorities, 447–48 Public bodies, 344–70 ECHR and ECtHR, relationship with, 22, 30, 153–54, 253, 255, 263–83, 28–87, 542–43 European Convention on Human Rights Act 2003, comparison or relationship with, 11–13 Litigation to enforce: Court rules, 470 Criminal context, 446–48 Interventions, 469–70 No crimes created, 446 Retrospectivity, 448 Victim requirement, 448, 450, 463–65 New Zealand Bill of Rights Act 1990, comparison or relationship with, 8–9 Other rights, retention of, 377 Outline, 7–9 Parliamentary scrutiny, 293, 313–15 Purpose, 153 Remedies: Damages: availability, nature and purpose, 506–13 exemplary damages, 516–17 quantum, 516 Declaration of incompatibility: consequence of, 538, 540, 541 discretion as to grant, 534–37 outline, 519–21 remedial orders made, 542–543 remedy of last resort, 532–33 Outline, 482–83 Reduction in sentence, 491–92 Stay of proceedings, 490–92 Rules of precedent, 287–91 Statements of compatibility, 293, 295, 299–310 White Paper, 30, 84, 163–69, 176, 255, 265, 404, 533 See also European Convention on Human Rights, European Court of Human Rights, Human Rights Standards (Domestic), International Human Rights Treaties, Standards and Mechanisms Human Rights Act 2004 (ACT): Bodies covered, 336–37, 370, 371 Charter of Rights and Responsibilities Act 2006 (Vic), comparison or relationship with, 15, 17 Declaration of incompatibility, 520, 522, 539, 544 Explanatory Statement to Human Rights Bill 2003, 173–74, 225–26, 256 Explanatory Statement to Human Rights Amendment Bill 2007, 226, 372 ICCPR, relationship with, 22

554

Index

International and comparative law, 156–57, 254, 256 Interpretive obligation, 421–22 Litigation to enforce, 444, 464–65, 472–73 Other rights, retention of, 377 Outline, 13–15 Parliamentary scrutiny, 316–17 Purpose, 155–56 Statements of compatibility, 295 See also Human Rights Standards (Domestic), International Human Rights Treaties, Standards and Mechanisms Human Rights Commission (ACT), 14, 15, 472 Human Rights Commission (NZ) and Office for Human Rights Proceedings, 6, 60, 444, 468–69, 480 Human Rights Committee: Communications, 34, 68–72 Creation of, 62 ECtHR, comparison with, 68 General Comments, 33–34 Reporting mechanism, 63–64 Rules of Procedure, 75, 82 Rulings of, effect in domestic law, 284–85 See also ICCPR Human Rights Council, 61–62, 65, 66 Human Rights (Parliamentary Scrutiny) Act 2011 (Aus): Outline, 18 Parliamentary scrutiny, 315–16 Purpose, 157 Statements of Compatibility, 298, 303, 308 Human Rights Review Tribunal (NZ), 468–69, 504, 520–21 Human Rights Standards (Domestic): Bodies covered, 332–91 More or less prescriptive language, 364–67 Official capacity test, 361–64 Private acts, 341–43, 367–70 Public functions, 344–70 Statutory language compared, 340–43 Breach of, law remaining valid, 2 International and domestic standards, relationship between, 252–91 Common law and statutory power to rely on international authorities, 258–61 Different terminology, effect of, 257–58 Discretion as to citing international and comparative authorities, 261–63 Interpretive Obligation, 2, 19, 392–439 Comparative impact, 426–32, 434–39 Legislative scrutiny for rights-compliance, interplay with, 293–94 Limits of, 414–19, 434–39 Purposive approach, 393–96 Statutory language compared, 398, 419–20 Statutory obligation and common law compared, 401–02, 404, 432–34

Litigation to enforce, 440–77 Implied cause of action, 453–62 Interventions, 468–74 Standing, 462–67 Statutory provisions outlined, 442–53 Time limits, 474–77 Meaning of, 2, 19 Judicial role to determine, 224–25, 248–52, 255 Limits on rights, 193–252 Other rights, retention of, 377–81 Protection of, 19 Remedies: Damages: exemplary damages, 516–18 purpose and nature, 493–513 quantum, 513–18 Declarations of incompatibility or inconsistency, 518–46 comparative regimes outlined, 519–23 Range of, 488–93 Statutory provisions compared, 479–87 Stay of proceedings, 488–92 See also Canadian Bill of Rights Act 1960, Canadian Charter of Rights and Freedoms 1982, Charter of Rights and Responsibilities Act 2006 (Vic), Government of Wales Acts 1998 and 2006, Hong Kong, Human Rights Act 1993 (NZ), Human Rights Act 1998 (UK), Human Rights Act 2004 (ACT), International Human Rights Treaties, Standards and Mechanisms; Legislatures and Legislation, New Zealand Bill of Rights Act 1990, Northern Ireland Act 1998, Scotland Act 1998, South African Constitution Inter-American Commission on Human Rights, 63 Inter-American Court of Human Rights, 63, 80, 81 International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD): Complaints, 72–73 Enforcement of, obligation as to, 38–41 See also Committee on the Elimination of Racial Discrimination International Covenant on Civil and Political Rights 1966 (ICCPR), Optional Protocol 1966: Declarations under Article 41 (inter-state communications), 70 ECHR, relationship with, 31–34, 71 Enforcement of, obligation as to, 32 Ratifications of ICCPR, 34 Ratification of Optional Protocol, 71 Failure of UK, 71 Reservation by Ireland, 71 UDHR, relationship with, 32 See also Human Rights Committee

Index International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) and Optional Protocol 2008: Complaints, 76 Enforcement of, obligation as to, 37 See also Committee on Economic, Social and Cultural Rights International Human Rights Treaties, Standards and Mechanisms: Breach of, state responsibility, 327–32 Civil and political rights/economic, social and cultural rights, split between, 38 Common law, relationship with, 115–46, 189–90, 216–17, 386, 388–91 Compensation, 78–80 Complaints, 66–77 Interventions, 467–68 Victim requirement, 77 Derogations, 200, 205 Domestic law, relationship with, 30, 53–54, 110–46, 252–91 Economic, social and cultural rights, justiciability of, 38 Enforcement of standards, obligation as to, 33, 37–54, 83–84, 324 Effective remedy, right to, 23, 54–60 compensation as, 55 EU law, comparison with, 438 Private actors, doctrine of horizontal effect and, 368–69 Enforcement mechanisms: Agreement to use, 24 Outlined, 61–63, 81–82 Inquiries, 66 Interim remedies, 80–81 Interpretation of, 210–16 Limitations on rights, 193–209 Living instrument, 167–69, 210–11, 252, 255 Margin of appreciation, 208–10 Other rights, retention of, 377–78 Relationship between different treaties, 31, 217 Relevance of, 2, 19–20 Reporting mechanism, 63–66 Sovereignty in domestic matters, relationship with, 25, 52–53, 192 Special Procedures, 66 Territorial jurisdiction, 29 Treaty ratification, role of legislature, 115, 119, 133, 138, 144 Universal Periodic Review, 65 See also various specific treaties and treaty bodies International Law: Balliol Statement on relationship between international law and common law, 141 Customary international law, relationship with common law, 110–14 Dualism, 19, 53–54, 114 Sources of, 110

555

Unincorporated treaties, use as tool of interpretation, 115–46 International Law Commission, 328–29 Interpretive Obligation, see Human Rights Standards (Domestic) Irish Constitution: Constitutional torts, 454–56 International law, regulation of, 113–14, 115–18 Supreme law nature, 86 Irish Human Rights Commission, 11, 12, 13, 471–72 Legislatures and Legislation: Alerting legislators to compatibility with human rights standards, 2 Cabinet Manual: New Zealand, 299 United Kingdom, 299–300 Cabinet Office (UK) Guide, 300–01, 314–15 Declaration of incompatibility or inconsistency: Action following, 540–45 Application of inconsistent law, 538–39 Delegated legislation, 321–23 Devolved legislatures, judicial review of, 180–82 Interpretation, purposive, 393–96 Legality, impact of, 93–107 Legislation Advisory Committee (New Zealand), 92–93, 298–99, 392–93 Legislation Handbook (Australia), 302 Legislative override, 318–21 Scrutiny for rights-compliance: Outline, 292–93 Interpretive obligation, interplay with, 293–94 Parliamentary scrutiny, 311–18 parliamentary rules, 312–14 statutory provisions, 315–17 variations, 311–12, 317–18 Statements of compatibility, 294–311 policy documents, 298–302 statutory provisions, 294–98 variations, 302–11 Treaty ratification, role of legislature in, 115, 119, 133, 138, 144 See also Human Rights Standards (Domestic), Limiting Clauses and Definitions Limiting Clauses and Definitions: Domestic provisions, 218–52 International provisions, 193–218 New Zealand Bill of Rights Act 1990: Bodies covered, 333, 340, 343–44, 346 Private acts, 370 Canadian Bill of Rights Act 1960, comparison or relationship with, 1, 5–6

556

Index

Canadian Charter of Rights and Freedoms 1982, comparison or relationship with, 1, 5–6, 240 Derogation clause, absence of, 225 European Convention on Human Rights Act 2003, comparison or relationship with, 11–13 General limitation clause, 222–25 Human Rights Act 1993, relationship with, 246 Human Rights Act 1998 (UK), comparison or relationship with, 8–9 ICCPR, relationship with, 22 Litigation to enforce: High Court Rules, 469 Implied cause of action, 456–61 Other rights, retention of, 376 Outline, 4–6 Preamble, 5, 153 Purpose, 1, 153 Remedies: Damages: availability, purpose and nature, 497–506 exemplary damages, 518 quantum, 514–16 Declaration of inconsistency, 519, 526–30, 538 Range of, 488 Stay of proceedings, 489–90 Supreme law status, dropping of, 1 White Paper, 158–63, 222–25, 342, 346, 394, 404, 456–57 Northern Ireland Act 1988: Belfast Agreement 1998, 169–71 Declaration of incompatibility, implicit power, 525 Legislative competence of Northern Ireland Assembly and Ministers, 177, 335, 399–400, 525 Pre-enactment scrutiny, 296–97, 305, 307 Litigation involving, notice of, 471 Remedy for breach, limitations, 451, 484 Statements of compatibility, 298 Northern Ireland Human Rights Commission, 10, 318, 450 Parliamentary sovereignty, 27, 103, 181 See also Legislatures and Legislation Presumption of innocence and reverse burdens of proof, 228–32, 237–39, 426–32 Prisoners, voting by, 26–27

Rule of Law, 84–89, 212–13 See also Common Law Scotland Act 1998: Declaration of incompatibility, implicit power, 523–25 Legislative competence of Scottish Parliament and Scottish Ministers, 176, 334–35, 398–400, 523–25 Pre-enactment scrutiny, 296, 305, 307–08 Litigation involving, notice of, 470–71 Remedy for breach, limitations, 448–51, 484 Statements of compatibility, 296 Scottish Commission for Human Rights/ Scottish Human Rights Commission, 10, 318, 451 South African Constitution: Damages, availability and purpose of, 494, 496 Declaration of inconsistency, 526 Exemplary damages, 517 Flexibility as to remedy, 525–26 General limitation clause, 232, 237 International law, value of, 158, 255 Litigation to enforce, 465–67 Supreme law nature, 86 Sovereignty (State), 25, 26, 30, 52–53, 67 Subcommittee on the Prevention of Torture, 62, 66 United Nations: Purposes of, 23–24 United States of America: Constitutional torts, 453–54 International treaties, status as law, 114–15 Supreme law status of Constitution, 84–86 Universal Declaration of Human Rights 1948: ECHR, comparison or relationship with, 28 Victorian Equal Opportunity and Human Rights Commission, 16, 17, 472 White Papers: New Zealand – ‘A Bill of Rights for New Zealand’, 158–63, 222–25, 342, 346, 394 United Kingdom – ‘Rights Brought Home’, 30, 84, 163–69, 176, 255, 265, 404, 533 See also Explanatory Memoranda and Statements