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The Times
September 26 2000
In the first of an occasional series, John Wadham, director of Liberty, looks at the legal changes under the Act
Update
Court powers
What powers will courts have to declare statutes incompatible with the Human Rights Act? Some say that the lower courts will not be able to state that a particular statute cannot be read in a way that it complies with Convention rights. This is not so: in many cases the lower court will be under a duty to make a finding on compatibility, although that itself will not trigger the right of the Government to use the fast-track procedure to change the law. That applies only if the "declaration" is made by a higher court.
The duty on lower courts and tribunals will be to try to interpret primary legislation in a way that complies with the Convention. In most cases, it is expected that they will be able to do this - even if it means stretching the meaning of the words to do so.
Sometimes they will have to decide that they cannot. In such circumstances, courts will be "declaring" that the statute is "incompatible with the Convention". This is not difficult or controversial: such a declaration does not change the law and all parties will be able to exercise the usual appeal rights.
In civil cases covered by the civil procedure rules there are
special procedures to transfer cases to a higher court where a declaration is
likely. But that is not so in criminal cases or in tribunals.
Attitude of judges
English and Scottish courts have started looking at the provisions of the Act and cases decided so far give a glimpse of what the future might hold. As Mr Justice Wall put it in re F (Minors), the Convention should not be routinely paraded before the court as a makeweight ground of appeal.
Safety of conviction
In R v Davis, Rowe and Johnson the Court of Appeal decided that the safety of the conviction and the fairness of the trial were separate questions and needed to be considered separately, even though in Condron v UK the European Court specifically criticised the Court of Appeal for taking this approach.
Burden of Proof
The Court of Appeal (Lord Woolf, Lord Chief Justice) has also recently decided that laws which placed the onus of proof on the defendant did not necessarily violate the presumption of innocence contained in Article 6(2). The court said that it was important to have in mind that legislation was passed by a democratically elected Parliament and therefore the courts under the Convention were entitled and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what was in the interest of the public generally while upholding the rights of the individual under the Convention.
House of Lords' rulings
In the Court of Appeal civil division, Lord Justice Judge said: "Without implying any disrespect for the decisions of the European Court, sitting in the divisional court in England, where such a decision or group of decisions has been examined by the House of Lords or Court of Appeal, this court is bound by the reasoning of the superior courts in our jurisdiction. We are not permitted to re-examine decisions of the European Court to ascertain whether the conclusion of the House of Lords or Court of Appeal may be inconsistent with those decisions, or susceptible to a continuing gloss."
In Daniels v Walker, Lord Woolf (as Master of the Rolls) stated: "It was essential that counsel and those who instructed counsel took a responsible attitude as to when it was right to raise arguments based on the Human Rights Act 1998 and judges should be robust in resisting inappropriate attempts to introduce such arguments".
The Times, June 22, 2000,
The Times, July 25, 2000,
The Times, May 9, 2000,
R v Lambert, The Times, September 5, 2000,
R v Central Criminal Court ex parte The Guardian, The Observer and Martin
Bright, July 21, 2000, 2000 UKHRR 648;
The Times, May 17, 2000.
John Wadham is the author with Helen Mountfield ofBlackstone's Guide to the Human Rights Act,£19.95. Liberty website: www.liberty-human-rights.org.uk
- Copies of The Human Rights Act 1998, ISBN 0105442984, which cost £5, can be obtained from The Stationery Office, PO Box 29, Norwich NR3 1GN. Cheques or postal orders should be made out to The Stationery Office. Payment by credit card and all further inquiries: 0870-600 5522.
