1998.001 ‘Which sort
of Human Rights Act?’ 148 NLJ 488
Francis Bennion asks
a last-minute question
Soon we shall have our very own Human Rights Act,
when the Bill now going through Parliament comes
into force. Which sort of Act will it be? There
are still two possibilities open. Either it will
mirror the European Convention on Human Rights (the
Convention), producing much the same result as going
to Strasbourg (the mirror-image Act), or it will
be a free-standing affair waiting to be developed
by our judges as they think fit (the free-standing
Does it matter?
The mirror-image Act is what everyone has been
led to expect. It requires the following four characteristics.
(1) The rights protected by the Act should be exactly
the same as the rights protected at Strasbourg.
(2) The same exclusionary rules as at Strasbourg
should govern the question of who can make an application
under the new Act. (3) In British cases, the defendant
at Strasbourg is always "the United Kingdom" (with
an enlarged meaning), so it should be same under
the new Act. (4) The British Government has without
a single exception always implemented the findings
of the Strasbourg court, even when hostile, so the
same should apply under the new Act.1
If the free-standing Act were adopted, none of
that would follow. Even though the Act set out the
relevant articles of the Convention (as the Human
Rights Bill does in Schedule 1), they would not
necessarily have the same meaning as at Strasbourg.
Instead they would have whatever meaning our judges
chose to put upon them, in the name of developing
a distinctive "British" human rights regime.
The persons entitled to apply under the Act would
not be the same as those entitled to apply to Strasbourg.
The defendant would not be "the United Kingdom" but
whoever the judges elect to find suitable when construing
the largely undefined term "public authority" used
in clause 6 of the Bill. It is uncertain whether
the British Government would without a single exception
always implement the findings of our courts under
The story so far
The story begins with a consultation paper published
in December 1996 entitled Bringing rights home;
Labour's plans to incorporate the European Convention
on Human Rights into UK law. The authors were
two Labour MPs, Jack Straw and Paul Boateng. The
paper explained that "Labour is committed to
incorporating [the Convention] into UK law through
a new Act of Parliament". That was how Labour
would bring rights home, so that there would no
longer be any need for people to go to Strasbourg. "The
new Act will allow British people to assert and
enforce their rights under [the Convention] through
the ordinary UK courts and tribunals." That
sounds very much like the mirror-image Act.
Next came the new Labour Government's white paper
of October 1997 entitled Rights Brought Home:
The Human Rights Bill (CM 3782). It opened
with Tony Blair's pledge "based on bringing
the European Convention on Human Rights into United
Kingdom law". The paper went on to say that
the Bill would give people in the United Kingdom
opportunities to enforce their rights against the
state under the Convention in British courts rather
than having to incur the cost and delay of taking
a case to Strasbourg. Again, what that promises
is the mirror-image Act.
The Human Rights Bill has passed through the House
of Lords, with some minor amendments, and awaits
committee stage in the Commons. Does it deliver
a mirror-image Act? I cannot in an article cover
the whole field, so in answering this I shall stick
to the four points already mentioned.
the Convention articles
The Convention is a treaty. Domestic law requires
our courts to construe a treaty in the same way
as courts in other countries construe it. In Re
H and others (minors) (abduction: acquiescence)
 2 All ER 225 at 234 Lord Browne-Wilkinson
said: 'An international convention, expressed in
different languages and intended to apply to a wide
range of differing legal systems, cannot be construed
differently in different jurisdictions. The convention
must have the same meaning and effect under the
laws of all contracting states'.
The Bill is confused on this point. It refers throughout
to "the Convention rights" and defines
these as the rights and fundamental freedoms set
out in articles 2 to 12 and 14 of the Convention "as
read with articles 16 to 18". (I ignore the
protocols, which do not affect the argument.) The
last words are odd, because the rule of interpretation
is that a document must be read as a whole. If "the
Convention rights" are to mean the same as
the meaning found by the Strasbourg court, then
the cited articles must be read along with the entirety of
the Convention, not just articles 16 to 18.
Our courts will have to make sense of the specified
articles. Government spokesmen on the Bill have
constantly diverted questions as to its legal meaning
by saying they must be left to the courts to decide.
But the courts cannot successfully operate in a
vacuum. What are they to conclude when told that
they must not consider the entire Convention?
Another rule of interpretation is relevant. It
is sometimes expressed in Latin phrases such as expressum
facit cessare tacitum (no inference is proper
if it goes against the express words) or expressio
unius est exclusio alterius. (to express one
thing is to exclude another thing not expressed).
What these mean is that if you say, as here, that
the specified articles are to be read with articles
16 to 18, that by implication means they are not
be read with any other parts of the Convention.
Yet they need to be read with the Preamble, which
invokes the Universal Declaration of Human Rights
and explains the Convention's purpose. They need
to be read with article 1, which demands that 'The
High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms
defined in Section 1', making clear that it is the
European states themselves, and no one else, who
have the duty of obeying the obligations imposed
by the Convention.
They also need to be read with article 34 (formerly
article 25), which states: "[t]he 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 . . ." The effect of this has been
described in D J Harris, M O'Boyle and C Warbrick, Law
of the European Convention on Human Rights (1995),
page 630, as follows: "While 'non-governmental
organisations' and 'groups of individuals' are broad
categories they do not cover, for example, bodies
such as municipalities, other local government organisations
or semi-state bodies." Even the word "person" in
article 34 does not include one of these bodies,
which cannot therefore object that "the United
Kingdom" has infringed its rights.
Because the presumption from the wording of clause
1 of the Bill is that the specified articles are
not to be read with the rest of the Convention it
seems that our judges are meant to have a free hand
in construing them. This is confirmed by clause
2, which requires a court applying a Convention
article to take into account rulings on
its meaning given by the Strasbourg court without
being bound by them. This is in line with the civil
law, which has no doctrine of binding precedent.
It permits allowance to be made for the "margin
of appreciation" which is permitted under the
Convention jurisprudence. On this the Lord Chancellor
said in a debate on the Bill that "[o]ur courts
must be free to develop human rights jurisprudence
by taking into account European judgments and decisions,
but they must also be free to distinguish them and
to move out in new directions in relation to the
whole area of human rights law" (HL Deb. 24
November 1997, col. 835). Definitely a flavour of
the free-standing Act there.
The first question asked above was whether the
rights protected by our new Act will be exactly
the same as the rights protected at Strasbourg.
The answer has to be no.
(2) Who can apply?
The second of the four questions to be used for
establishing whether the Act will be a mirror-image
Act is who will be able to apply to our courts to
have their rights protected? Not everyone is entitled
to go to Strasbourg, so will the same exclusory
rules govern an application under the new Act? Here
the answer lies in clause 7 of the Human Rights
Bill. If we were intended to have a mirror-image
Act, one would expect to find here something equivalent
to article 34 of the Convention (set out above).
We do not.
Instead we find clause 7(1) stating, with one caveat
that I shall come to, that any person with a claim
will be entitled to pursue it. Here of course "person" is
used with its wide English-law meaning, including
all natural and artificial persons, and not with
the narrower meaning which, as I have said, is applicable
to article 34. The caveat I mentioned is that the
applicant "is (or would be) a victim of the
unlawful act". What does that curious expression
mean? We are told in clause 7(6). A person is a
victim only if he or she would be a victim for the
purposes of article 34 of the Convention!
So we are brought back to article 34 after all,
but the position is not as clear as it might be.
The Notes on Clauses say of clause 7(6): "[t]his
attracts the Convention jurisprudence on 'victim'.
In particular, the person must be directly affected
by the act" (my italics). The suspicion is
that this talk of a "victim" is merely
intended to exclude persons indirectly affected,
such as interest groups, and does not have in mind
the exclusion of directly-affected persons of
the wrong type, such as local authorities.
This reading is borne out by statements in debate
by Government spokespersons (see eg the Lord Chancellor
in HL Deb. 24 November 1997, col. 831: "The
wording of clause 7 therefore reflects the terms
of the Convention, which stipulates that petitions
. . . will be ruled inadmissible unless the applicant
is the victim of the alleged violation").
We may have to await a certain answer until some
body such as a local authority tries to bring a
claim under the new Act, as assuredly they will.
(3) Will the defendant
always be "the United Kingdom"?
The third of our four questions to be used for
establishing whether the future Human Rights Act
will be a mirror-image Act is: Will the defendant
always be, as at Strasbourg, "the United Kingdom"?
Here the answer has to be no, though as we shall
see it still may be possible occasionally to make
the United Kingdom, or the Crown, the defendant.
The follow-up question is: Who then will the defendant
be? Here in many cases the answer is not obvious.
At Strasbourg, an application for breach of human
rights can only be made against one of the High
Contracting Parties. The Human Rights Bill is concerned
only with cases where the High Contracting Party
is the United Kingdom. An official notice of the
European Commission of Human Rights dated 5 January
1998, issued for the guidance of applicants under
the Convention, says: "You can only complain
. . . about matters which are the responsibility
of a public
authority (legislature, administration,
courts of law, etc) of [the state]. The Commission
cannot deal with complaints against private individuals
or private organisations." In the second sentence
of this, "private" is contrasted with
a meaning of "public" which equates it
with belonging to the state. So an organisation
which is in ordinary usage "public" (such
as a public limited company or p.l.c.) cannot be
the subject of an application under the Convention
because it is not a manifestation or emanation of
the British state.
Clause 6 of the Bill says that, subject to exceptions,
that it is unlawful for a "public authority" to
act in a way which is incompatible with a Convention
right. It does not say that here "public authority" has
the same meaning as in the Convention. Indeed it
does not say what meaning it has, though it says
what meaning it does not have. Its meaning does
not, for example, include either House of Parliament,
nor presumably (though it does not say so) the Queen
in Parliament, the source of our primary legislation.
This cuts out the very first type of body (legislature)
which as we have seen is named by the Commission
as an example of a public authority to which the
Convention applies. Strike one against the mirror-image
Strike two is the exclusion from the future Act
of cases (not of course excluded by Strasbourg)
where under prevailing United Kingdom law the public
authority complained against "could not have
Strike three is the apparent Government view that
bodies like the Press Complaints Commission (PCC)
will be public authorities under our new Act. The
PCC is certainly not a public authority under the
Convention, because it is considered to be privately
constituted. (I was assured of this by lawyers of
the Commission when I raised the point with them.)
The Government has shuffled its feet on this one,
as indicated by Sir Nicholas Lyell: "Is the
Press Complaints Commission a public authority?
At one moment the Government said it was not, but
they took advice from David Pannick QC and then
said it was." (Commons Hansard 16 February
1998, col. 855.) Lyell received no distinct reply
from the Government spokesperson, but the conclusion
from Government answers generally is that though
it will be for the courts to decide the answer is
probably in the affirmative.
It is obvious that on the test of the third point
the new Act will not be a mirror-image Act but a
free-standing Act which even from the start gives
markedly different answers to those laid down by
(4) Will the Government
always implement rulings?
The last of the four questions to be used for establishing
whether or not Britain is to get a mirror-image
Act concerns the fact that our Government has without
a single exception always implemented the findings
of the Strasbourg court, even when hostile. [See
above though.] Will the same apply under the new
In the debates on the Human Rights Bill the Home
Secretary, Mr Jack Straw, was asked the following
question by Simon Hughes of the Liberal Democrats
(Commons Hansard 16 February 1998, col. 774): "If
a Government introduced legislation [banning such
as GCHQ workers] from belonging to a trade union
would they be able to go to a British court immediately
for a remedy . . ." The answer, though Mr Straw
did not give it straight out, is no. Instead Mr
Straw explained that the policy of the Bill is to
accept that Parliament is supreme (even though since
the passing of the European Communities Act 1972
it is not in practice supreme). However he added: "According
to 50 years of practice on both sides, we always
put the action right, and bring it into line with
the Convention". [Cf note above.] The burden
of his remarks was that this policy of implementation might be
continued, though he could not bind his successors.
The truth emerges that, as the Bill stands, the
Human Rights Act we are about to be given will be
more a free-standing Act than a mirror-image Act.
This is unsatisfactory, because it means that in
some cases at least a different result will be obtainable
at Strasbourg than can be got at home. It also gives
a blank cheque to our judges to develop the Convention's
open-textured articles as seems good to them. The
state is likely to suffer, as well as legal certainty.
Here the following quotation is apposite.
years . . . it has been difficult for the State
to obtain justice from the judges of the High Court
. . . the weight of prejudice against the State
in the minds of many members of the Court of Appeal
and Judges of the High Court has been such as seriously
to affect the Administration of Justice."
This might be thought a recent utterance, but the
capitals give it away. It was addressed to the Lord
Chancellor of 1929 by his permanent secretary (cited
by Robert Stevens in The Human Face of Law (1997),
pp 245-6). Some may think it has grown truer over
the years, and that if we get this free-standing
Act it will grow truer still.
Perhaps the biggest objection to the Bill as it
stands now is that under it an applicant will probably
not be able, as can be done at Strasbourg, to proceed
against the United Kingdom on the ground that there
is a lacuna on some aspect of British law. Many
articles of the Convention require a state's law
to include certain provisions. Our courts should
be able to make a declaration (akin to a declaration
of incompatibility under clause 4) where a necessary
law is absent.
I use the word "probably" in the preceding
paragraph for this reason. As the term "public
authority" in clause 6 is essentially undefined
it would be possible to argue that it includes the
United Kingdom, or at least the Crown, and proceed
in that way where our law is deficient. One cannot
sue either House of Parliament, but the court might
possibly hold that one can sue the Crown and at
least obtain a declaration. Then, in line with existing
practice regarding Strasbourg rulings, the government
would be expected to promote the necessary legislative
I conclude by listing the main amendments needed
to the Human Rights Bill to ensure that the Act
we get is a mirror-image Act and not a free-standing
1. Amend clause 1(1) (meaning of "the Convention
rights") to require the relevant articles of
the Convention to be interpreted by our courts as
they would be by the Strasbourg court, allowing
for the national "margin of appreciation".
2. Widen clause 4 (court declaration that a provision
of legislation is incompatible with the Convention)
to include the case where neither the common law
nor our legislation includes a provision required
by the Convention.
3. Amend clause 6(3) (meaning of "public authority")
so as (1) to exclude any person who under the Convention
would not fall to be treated by the Strasbourg court
as an emanation of the United Kingdom, and (2) so
as to include the Crown in cases where the law of
the United Kingdom is challenged.
4. Amend clause 7(1) (description of persons who
may complain of a breach of their convention rights)
so that it excludes a person who does not fall within
the phrase "any person, non-governmental organization
or group of individuals" contained in the new
article 34 of the Convention.
In addition a Government statement should be made
that it is intended to continue, in relation to
court findings under the new Act, the present invariable
practice of giving effect to the rulings of the
1998(1) ‘Which sort of Human Rights Act?’ 148
statement is challenged by Luke Clements in ‘The
Human Rights Act – A New Equity or a New
Opiate: Reinventing Justice or Repackaging State
Control?’, 26 JLS (1999) 72, 82. However
it is supported by a Government statement in Rights
Brought Home: The Human Rights Bill (CM 3782),
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