The status of Convention rights in English law

Introduction

The starting point, and one which cannot be emphasised too strongly, especially because it is repeatedly misrepresented in the media, is that, in the words of Lord Clyde in R v Lambert [2001] UKHL 37, [2002] 2 AC 545, [135], ‘the Act did not incorporate the rights set out in the Convention into the domestic laws of the United Kingdom’.

Section 2 of the Act provides that any court or tribunal which has to determine any question in relation to a Convention right ‘must take into account’ the case-law of the European Court of Human Rights. Strictly speaking, as Laws LJ and Poole J pointed out in Gough and Another v Chief Constable of Derbyshire [2001] EWHC Admin 554, [2002] QB 459, [32], s. 2 means what it says, and therefore the duty of the court is ‘to take account of Strasbourg jurisprudence, not necessarily to apply it’. However, cases in which the courts refuse to apply Strasbourg jurisprudence are likely to be few and far between, bearing in mind the view of Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] AC 295, [26]:

In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it 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.

Interpretation and validity of English legislation

Section 3(1) of the Act provides that

so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

As a result of s. 3(2) of the Act, s. 3(1) applies to all legislation, whatever its date of enactment, including legislation which was passed before the 1998 Act. However, also as a result of s. 3(2), the court’s inability to find a compatible interpretation under s. 3(1) does not affect the validity of any primary legislation, nor of delegated legislation where the terms of the Act under which it is made are such that the incompatibility is inevitable. (In practice, primary legislation almost always means Acts of Parliament, although occasionally it may also mean certain instruments made by the exercise of the royal prerogative.) As we saw at p. 25, subordinate legislation is simply another form of words for delegated legislation. On the assumption that both primary legislation made in exercise of the royal prerogative and Acts protecting delegated legislation made under them will both be very rarely encountered in practice, the effect of these provisions is therefore to introduce a new principle of interpretation of general (but not quite universal) application. This principle of interpretation preserves the legislative supremacy of Parliament, while making practically all delegated legislation quashable on the ground of incompatibility with Convention rights.

The duty imposed on public authorities

Section 6 of the Act makes it unlawful for a public authority to act in a way that is incompatible with Convention rights. For these purposes, the expression public authority is defined as excluding both Houses of Parliament but as including courts and tribunals, as well as ‘any person certain of whose functions are functions of a public nature’. The effect of s. 7 of the Act is that a person who wishes to establish that there has been a breach of the duty under s. 6 may do so either proactively by claiming judicial review, or reactively by way of defence to proceedings brought by, or at the instigation of, a public authority.

Declarations of incompatibility

Although the Act contains nothing to diminish the legislative supremacy of Parliament, s.

Statements of compatibility

All Bills are scrutinised by a Joint Committee of both Houses of Parliament, to check whether they contain any provisions which would, if enacted, breach any Convention rights. Furthermore, Ministers who are in charge of Bills in either House of Parliament must, before the Second Reading of the Bill, do one of two things. The first, and overwhelmingly more common possibility, is a statement of compatibility, to the effect that the Bill contains nothing that is incompatible with Convention rights. The second possibility is that, even though the Minister is unable to make a statement of compatibility, the House is nevertheless being invited to proceed with the Bill. The latter alternative does not arise very often, but the Bill which became the Communications Act 2003 was one particularly interesting exception. The issue was whether political advertising should be banned from the broadcast media. Although such a ban could appear to breach the right to freedom of expression under art. 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Vgt Verein Gegeng Tierfabriken v Switzerland (2002) 34 EHRR 4, the government took the view that the ban was nevertheless justified. The government’s reasoning was that, in the absence of a ban on all political advertising, the wealthiest political interests would dominate the advertising carried by the broadcast media. When viewed in this way, a degree of interference with freedom of expression could be seen as the lesser of two evils.