JUSTICE STUDENT HUMAN RIGHTS NETWORK

CONTENTS

• Welcome
• Introduction
• Briefings
• Case note
• People
• What you can do

Welcome to the third edition of the JUSTICE Student Human Rights Network bulletin.

This third edition again highlights many of JUSTICE's current work areas. There are four human rights briefings on issues we have been and continue to work on:

• the final report of the Equalities Review
• the definition of public authority under the Human Rights Act 1998
• jury trial and serious fraud cases
• the topical and important questions surrounding the issue of a British bill of rights

The case note follows on from the second briefing and looks at two linked appeals at the Court of Appeal regarding the definition of public authority under s6(3)(b) of the Human Rights Act 1998.

The people section contains interviews with four people who use human rights in their work. Francesca Klug is Professor at the Centre for Study of Human Rights at the London School of Economics, Stephen Grosz is a partner at Bindman and Partners, Katie Ghose is director of the British Institute of Human Rights and Simon Chesterman is Adjunct Professor of Law at New York University Law School.

The bulletin again concludes with ways in which you can help us develop the network. We are always grateful to hear your comments and feedback - please take the time to fill in the questionnaire as we look at ways of developing the network. We look forward to hearing from you.

We are hosting one more seminar at the Guardian Newsroom - the seminar will take place on Saturday 19 May from 11am - 3pm. The day will look at social and economic rights and is aimed at final year law students, postgraduates, trainees and pupils, but all are welcome to attend. Places will be allocated on a first come first served basis and a reserve list will be run if necessary. For more information and a booking form click here.

Finally, 2007 is JUSTICE's 50th anniversary - to find out more about our appeal and programme of events and publications please see our website.

Keep up to date with future events and developments of the network at the home page for the JUSTICE Student Human Rights Network: www.justice.org.uk/jshrn/home.htm

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From Suzanne Lambert
Barrister and Member of JUSTICE Council and Executive Board
Chair of JUSTICE Student Human Rights Network project

This edition of the e-bulletin marks the end of the first phase of JUSTICE's Student Human Rights Network experiment. Over the last year or so the dream of creating an interactive network for students and trainees interested in law, and human rights in particular, has crystallised into a reality.

Since September of last year we have managed to produce three e-bulletins packed with information on human rights developments and briefings, case commentaries, and profiles of those with careers in human rights. Since October of last year we have also hosted three Saturday seminars at the Guardian Newsroom, where JUSTICE staff and eminent practitioners (Rabinder Singh QC, Nick Blake QC, and Shaheed Fatima) have given up their time to give talks and run discussions and workshops on various human rights topics ranging from immigration to terrorism to extraterritoriality of the ECHR.

Even more encouragingly, we have had almost three hundred participants show up for these Saturday seminars and participate fully at an impressively high standard. As Rabinder Singh remarked, it is easy to give up a Saturday to interact with those fresh and eager to learn and to express their views. There is one more seminar planned for Saturday 19 May when the topic of social and economic rights will be brought into focus and as always places will be filled quickly so do get in touch if you are interested in participating.

Looking forward beyond this e-bulletin and the May seminar we are hoping to take the network even further and to encourage even greater participation by increasing numbers of students, trainees and pupils. We have already had several student contributions, all of which have been posted on the website. We have also been approached by a few students interested in organising events at their universities and inviting JUSTICE speakers to attend or interested in setting up human rights organisations. Plans for a big human rights conference in April 2008 for members of the network are beginning to gather pace and we hope to be able to harness the energy and ideas of members to orchestrate a memorable event.

However, we need to hear from you. We need to know how we can improve and what needs are not being met or whether we've got it right so far so that we can build on what we have. For example, do you read the entire bulletin? Are some parts more useful than others? Would you like to see more student contributions? Whilst we have had the feedback of those who have attended the seminars, we would love to know the views of those who have not been able to make it to the seminars. We would be grateful if you could complete the questionnaire at the end of this bulletin. And as always, we encourage you to be in touch with any ideas and comments and to spread the word.

Email jshrn@justice.org.uk

JUSTICE: www.justice.org.uk

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BRIEFINGS

The Equalities Review

The definiton of public authority under the Human Rights Act 1998

Jury trial and serious fraud

A British bill of rights - a model for the 21st century

Briefing: The Equalities Review

What is the Equalities Review?

The Equalities Review was set up two years ago by the government in order to provide an understanding of the long-term, underlying causes of disadvantage, make practical recommendations on key policy priorities and inform the modernisation of equality legislation and the development of the Commission for Equality and Human Rights (CEHR). Their final report has just been published but its importance for future policy is yet to be decided.

What does it say about inequality in Britain today?

Its survey of aspects of the equality landscape (where statistical data are available - it is very patchy) presents a very bleak picture, although it does acknowledge that some progress has been made and we are now a more equal society than 'at any time in living memory'. The report tells us, for instance, that:

• The average net weekly earnings of Bangladeshi men is half that of white men,
• In 2005, while 42.5 per cent of all pupils received five or more A*-C grades at GCSE, only nine per cent of Gypsy/Roma pupil attained this result,
• The hourly gender pay gap for women is 17 per cent, but for part time women it is 38 per cent,
• Women's average income in retirement is only 57 per cent of the average for men,
• Disabled people are 30 per cent more likely to be out of work compared to non-disabled people.

These are depressing statistics. The report makes clear that, contrary to popular belief, the situation for many groups is not improving or is improving far too slowly. It estimates, at the current rate of progress, that the time needed to eradicate critical inequalities severely challenges any complacency among policy makers and makes urgent action the only possible response.

For instance, at the current rate of progress the employment penalty will disappear:

• For mothers with children under 11 - in 2025
• For disabled people - possibly never
• For Pakistani and Bangladeshi women - definitely never

Future demographic changes, including increased numbers of people over 65, disabled people and people from ethnic minorities or mixed race, will make the challenges even greater.

The educational statistics are little better, educational attainment gap at Key Stage 2 in English and Maths will be closed:

• For Bangladeshi pupils in 2010
• For Mixed White and Black Caribbean pupils in 2014
• For Pakistani pupils in 2017
• For Black Caribbean pupils in 2045
• For Black African pupils in 2053

What steps should be taken in order to alleviate inequality?

The final chapter of the review proposes 'ten steps to greater equality':

• Defining equality
• Building a consensus on the benefits of equality
• Measuring progress towards equality (linked to the triennial CEHR State of the Nation report)
• Transparency about progress (required for the public sector and mainly voluntary for the private/voluntary sector)
• Targeted public sector action on persistent inequalities
• A simpler legal framework
• More accountability for delivering equality
• Using public procurement and commissioning positively
• Enabling and supporting organisations in all sectors
• A more sophisticated enforcement regime

What is an equal society? (step one)

The report considers what is meant by an 'equal society' and rightly concludes that this should not be measured in entirely economic factors. They therefore define an equal society as:

An equal society protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish.

An equal society recognises people's different needs, situations and goals and removes the barriers that limit what people can do and can be.

The report backs up the need for greater equality by considering the economic case, the social cohesion case and the moral case for equality and challenges the attitude that inequality will eventually reduce by itself. It puts a powerful case for the need to tackle inequality and the wider social benefits to be gained by a more equal society.

Building a consensus (step two)

Only if a broad consensus can be built up on the benefits of equality to both government and civil society will long term changes to correct inequalities be made. The report has set out the extent of inequality in society and so it recommends that both national and local government have a role in providing leadership for the case for equality.

Measuring inequality (step three)

In order to measure the degree of equality, or inequality, the report suggests the use of an 'Equality Scorecard' that can measure ten dimensions of equality:

• Longevity,
• Physical security,
• Health,
• Education,
• Standard of living,
• Productive and valued activities,
• Individual, family and social life,
• Participation, influence and voice,
• Identity, expression and self-respect, and
• Legal security.

The report suggests that such a definition should be used to influence the development of the CEHR's triennial State of the Nation report.

Transparency about progress (step four)

The report recommends not only the better collection of data but also the better use of data that is collected. Data should be made more transparent and widely available.

Targeted action on persistent inequalities (step five)

The government should immediately identify and target persistent inequalities as part of their existing equality duties (in respect of gender, race and disability). Thereafter a systematic approach needs to be adopted by public authorities to regularly review the impact of their policies, programmes and core activities.

A simpler legal framework (step six)

The report calls for simpler, more outcome focussed law - a major part of which should be a new public sector duty to work towards greater equality. A new single Equality Act is recommended as well as a new integrated equality duty to cover all the grounds for discrimination.

More accountability for delivering equality (step seven)

Individual organisations and leaders should be more accountable for delivering equality outcomes; these should be reflected in the government's public service agreements that are set by the government as part of its spending reviews. The report also recommends the setting up of a Parliamentary equalities select committee to regularly review progress. Equality should be part of every organisation's performance management framework.

The media's role in leadership and commentary on equality issues is recognised. The report calls for the Press Complaints Commission to review its widely criticised complaints mechanisms in particular, so that complaints about prejudice and stereotyping of groups can be brought within their jurisdiction. As the Press Complaints Commission is run by the press for the press this is not an area where the government can take action, although they would not be without influence.

Public procurement and commissioning (step eight)

Public procurement and commissioning should be used in order to hold more organisations accountable for achieving greater equality; further use should be made of this tool in order to feed equality goals further down the supply chain into the private sector. They recommend incorporating within the new public sector duty a specific requirement that public bodies use procurement as a tool with which to achieve greater equality.

Employer engagement (step nine)

The report recognises that in order to gain greater employer engagement and commitment to equality a stronger business case for the benefits of equality needs to be made.

The CEHR should have a role in providing targeted support for employers by way of light touch guidance, advice on good practice and factual information on the local population make up. Whilst they see the CEHR playing a 'strategic role' here they see other national organisations as taking on the role of direct tailored support. To further this they recommend that the CEHR convene a 'working group of advice-giving organisations, to develop and establish a coherent network of advice sources' which they suggest could operate under a kite-marking system. This appears to ignore or at least downplay the CEHR's own advice giving function.

Positive action or balancing measures (step nine)

The report recommends some positive action but it is unclear about the nature of what it is calling for. They seek to be more pro-active in creating opportunities for people from under-represented categories but say that 'we are not recommending positive discrimination'. It is clear that they wish to recommend more positive action than is currently permitted, but further consideration of what will be appropriate and permissible under European law is needed.

Enforcement and redress (step ten)

Despite asserting that the CEHR needs to play a 'more dynamic role in enforcement' than has been possible for equality commissions in the past, the report recommends that the CEHR's role should be in overseeing enforcement rather than undertaking enforcement itself, suggesting that 'public sector inspectorates' should take over part of this role.

The role of individual enforcement or casework is completely omitted or ignored.

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Briefing: The definition of public authority under the Human Rights Act 1998

Why does the definition of 'public authority' matter?

S6 Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with a person's rights under the European Convention on Human Rights.

Another way of putting this is to say that s6 imposes a duty on all public authorities to act compatibly with Convention rights.

So, if a body is a public authority for the purpose of s6 HRA, this means that its decisions can be challenged in the courts where they interfere with someone's Convention right. It also means that the court can overturn or quash the decision in the event that the challenge is successful.

What is the definition of 'public authority'?

S6(3) HRA defines a 'public authority' as including:

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature

In other words, the definition of 'public authority' includes anyone performing a 'public function'.

Okay, what is the definition of a 'public function' then?

There isn't one.

Why not?

Parliament considered that it was better to leave 'functions of a public nature' undefined in order to encourage a broad approach by the courts. As the Home Secretary said during parliamentary debates:

As we are dealing with public functions and with an evolving situation, we believe that the test must relate to the substance and nature of the act, not to the form and legal personality.[1]

However, s6(5) HRA does provide that:

In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

Why does s6(5) say that?

Essentially, the legislative scheme of HRA distinguishes between 'pure' public authorities (eg government departments, local government, police, etc) and 'hybrid' public authorities.

What's a 'hybrid' public authority?

A 'hybrid' body (also known as a 'functional' public authority) is one that is only a public authority by virtue of the fact that it is performing a public function (as opposed to a 'pure' public authority, such as a government department, that is a public body no matter what it does). As the Lord Chancellor explained during parliamentary debates:

A private security company would be exercising public functions in relation to the management of a contracted-out prison but would be acting privately when, for example, guarding commercial premises. Doctors in general practice would be public authorities in relation to their National Health Service functions, but not in relation to their private patients.[2]

Why is this important?

Because many 'pure' public bodies increasingly rely private contractors (or 'outsourcing') to fulfil public functions. For example, local authorities will often contract with private accommodation firms to supply emergency housing.

So the private body would becomes a 'hybrid' or 'functional' public authority for the purposes of the HRA?

In principle, yes. But in the 2002 case of Callin, Heather and Ward v Leonard Cheshire[3] (the Leonard Cheshire case), the Court of Appeal held that state-funded patients in a privately-operated care home could not sue the private care home under the HRA, because the provision of care was not a 'public function' under s6(3)(b) HRA.

Why not?

The Court of Appeal concluded that a private body carrying out a public function on behalf of a public body would only be a 'public authority' under the HRA if it could be shown that the function itself has a 'public flavour'. Because accommodation in a care home was something that could be done by a private provider, it could not be said that the provision of care was necessarily a 'public function' under s6(3)(b) HRA, even though the local authority in Leonard Cheshire was under a statutory duty to provide care to its patients.

So what's wrong with this approach?

Since the decision in Leonard Cheshire, the courts have continued to adopt a narrow approach to the definition of 'public authority', meaning that many state functions are being outsourced by private providers with no potential redress in the event that a person's Convention rights are violated. As the Joint Committee on Human Rights has noted, this has led to a significant 'protection gap' under the HRA.

In JUSTICE's view, the decision in Leonard Cheshire is mistaken for at least three reasons:

First, it is inconsistent with the intention of Parliament in enacting the HRA, which was to enable individuals whose rights are affected by the functions of public bodies to have redress, even where those functions are carried out by private bodies. See for example the speech of Lord Bingham in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No.2) [4] who described the purpose of s6 HRA 'to enable those subject to the jurisdiction of the United Kingdom and able to establish violations by United Kingdom public authorities to present their claims in the domestic courts of this country and not only in Strasbourg' (para 22).

Secondly, it is inconsistent with the decision of the House of Lords in the 2003 case of Aston Cantlow, in which Lord Hope made clear that 'it is the function that the person is performing that is determinative of the question whether it is, for the purposes of that case, a "hybrid" public authority', whereas the focus in assessing whether a body comes within the 'core' category of public authorities is upon 'the nature of the person itself, not the functions which it may perform' (para 41).

Lastly, it is inconsistent with the approach of the European Court of Human Rights, which has made clear that 'the State cannot absolve itself from responsibility … by delegating its obligations to private bodies or individuals'.[5]

What are the latest developments?

In January 2007, the Court of Appeal gave judgment in the case of YL v Birmingham City Council, in which it considered itself bound to follow its previous decision in Leonard Cheshire.

However, the matter is now on appeal to the House of Lords and will be heard on 30 April. JUSTICE is intervening in the case, together with Liberty and the British Institute of Human Rights, to argue for a broad interpretation of 'public function' and 'public authority'.

Where can I get more information?

Callin, Heather and Ward v Leonard Cheshire [2002] EWCA Civ 366

JUSTICE's 2003 submission to the Joint Committee on Human Rights inquiry into the definition of public authority under the HRA

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37

Joint Committee on Human Rights 2004 report on the definition of public authority under the HRA

Wos v Poland, Application Number 22860/02, 1 March 2005

JUSTICE's 2006 submission to the JCHR inquiry into the definition of public authority under the HRA

YL v Birmingham City Council [2007] EWCA Civ 27 (see casenote below)

Joint Committee on Human Rights 2007 report on the definition of public authority under the HRA

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Briefing: Jury trial and serious fraud

Why is jury trial a human rights issue?

Neither the International Covenant on Civil and Political Rights (ICCPR) nor the European Convention on Human Rights (ECHR) expressly guarantee the right to jury trial. This is unsurprising, given the different legal systems in place across the world and in the Council of Europe. Further, it is possible for a fair trial to take place without a jury. However, in adversarial legal systems like that of England and Wales, which are based on scepticism of state power, jury trial is one of the primary safeguards for trial fairness as well as other fundamental rights. It has traditionally been important in protecting defendants from oppressive or politically motivated prosecutions. It gives members of the public the opportunity to ensure that the criminal laws are being properly applied.

For these reasons, the constitutions/bills of rights of the United States, Canada, New Zealand and the Commonwealth of Australia, all common law jurisdictions, all recognise the importance of the right to jury trial.[1] It is also notable that states making the transition from non-democratic to democratic regimes - such as Spain and Russia in the 1990s - have introduced juries. JUSTICE believes that in England and Wales jury trial for all but minor offences has acquired the status of a constitutional right.

While it is true that magistrates' courts hear the vast majority of criminal cases in England and Wales, defendants can elect or are obliged to undergo jury trial for most non-minor offences. There is an automatic right of appeal against conviction and the appeal consists of a full re-hearing of the case. Further, many magistrates' court cases are tried by lay magistrates, who like juries are members of the public who provide an element of democratic participation in the criminal justice system.

Why has jury trial recently become controversial?

In recent years there have been several legislative attempts to widen the categories of case in which jury trial is unavailable or can be rejected. In 1999 and 2000, the Criminal Justice (Mode of Trial) Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill attempted to prevent defendants from electing jury trial in either-way cases. These Bills did not make it onto the statute book; however, the Criminal Justice Act 2003 contains several limitations on jury trial: some are not yet in force. The Act's provision to increase the magistrates' maximum sentencing powers for a single offence to 12 months could have reduced the number of jury trials (this is not yet in force); in addition, provisions were passed allowing trials without a jury to take place in the Crown Court in certain categories of case. S44 CJA 2003, which is now in force, allows such trials to take place where jury tampering has occurred or is likely. S43, which is not in force, allows non-jury trials in serious and complex fraud cases where 'the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome' to the jury that 'the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury'.

Will s43 be brought into force?

S43 is subject to the affirmative resolution procedure which means that both Houses of Parliament must vote, with a majority of each being in favour of the commencement of the section. Attempts to bring the section into force have so far been unsuccessful in the House of Lords. The latest attempt, the Fraud (Trials without a Jury) Bill, has been delayed by six months by a recent Lords vote but could be forced through in the next Parliamentary session.

Are some kinds of cases just too complex for juries?

We do not accept that the evidence in fraud trials is by its nature incomprehensible to jurors. Following the collapse of the 'Jubilee Line' fraud case, one juror gave an interview in which she asserted that the jury understood the evidence and that it was very easy to understand.[2] Also, as jurors are members of the public, if the evidence is presented in a manner that jurors would not comprehend it is likely to be similarly unintelligible to the public at large. This would increase the risk that the defendant would not be able effectively to participate in his trial, which would be contrary to his rights under Article 6 ECHR. It would also undermine the principle of transparency - it is in the interests of public confidence in the administration of justice and the maintenance of a fair trial process that the public can understand the evidence for and against an accused person and the reasons why he is convicted or acquitted.

Further, at the heart of many fraud cases is the question of whether a person has been dishonest - an issue that a jury is best placed to decide, since where it is necessary to define dishonesty part of the test is 'whether according to the ordinary standards of reasonable and honest people what was done was dishonest'.[3] The new offences of fraud in the Fraud Act 2006 rely upon the concept of dishonesty rather than deception: in some cases, dishonesty may be all that separates legitimate conduct from a serious criminal offence.

What can be done to make cases manageable without getting rid of juries?

The removal of the jury will not necessarily result in shorter trials. The example of the BCCI litigation has shown us that civil cases can be even more protracted than criminal ones. Evidence will still have to be put before the court and legal arguments will still have to take place.

What will be effective to shorten trials will be the concerted use of case management powers by judges - the Criminal Procedure Rules 2005 and the Lord Chief Justice's protocol on the control and management of heavy fraud and other complex cases make clear that judges have extensive powers to prevent unnecessarily protracted litigation. Further, the Fraud Act 2006 - which simplifies the law of fraud - has only just received Royal Assent. The new fraud offences should be allowed to take effect before further reforms are considered.

In any event, where multiple counts are charged, the Domestic Violence, Crime and Victims Act 2004 already provides for the trial by jury of sample counts only, if certain conditions are fulfilled, with the remaining counts to be tried by judge.[4] The relevant provisions of the Act were only brought into force in January 2007.

We agree that trials should last no longer than six months unless the circumstances are exceptional. However, it should be possible to reduce trials to a manageable length using the above measures. Alternative measures could also be considered, such as the provision of alternative jurors who can step in, in the event of jurors becoming ill, etc, to prevent the collapse of the trial. We would also welcome a review of the facilities provided to jurors, allowances available, and the restrictions upon unfair treatment by employers as a result of long jury service, in order to ensure that the experience of jury service is not more disruptive to a person's life than necessary.

Where can I find out more?

www.justice.org.uk

The Criminal Justice Bill: Juries and Mode of Trial, House of Commons research paper 02/73

Criminal Bar Association

Law Society of England and Wales

Attorney General's Office

S Lloyd-Bostock, 'The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trial in Long and Complex Fraud Cases?' [2007] Crim LR 255

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Briefing: A British bill of rights - a model for the 21st century?

Why has the bill of rights debate been in the news?

In February 2007 the Conservative Party announced its Bill of Rights Commission, which will look into the possibility of a home-grown domestic bill of rights. The announcement followed David Cameron's call last year for a British 'Bill of Rights and Responsibilities'.[1] The Liberal Democrats have long supported a British bill of rights, though unlike the Conservatives they have not been openly critical of the current Human Rights Act 1998 (HRA). The Lord Chancellor recently mounted a campaign to bolster the reputation of New Labour's HRA. Support for a new project seems optimistic at best, though Gordon Brown has talked of a 'new constitutional settlement'.

Drafting a British Bill of Rights - where do we start?

It is a political reality that any move to alter our model of rights protection must start with the European Convention on Human Rights (ECHR). The UK's relationship with the Council of Europe and its ECHR, which the UK signed up to in 1950, is now woven into our legal and political fabric. This applies also to our continuing membership of the European Union, which in practice is conditional on compliance with the ECHR. Any proposed model for a British bill of rights must therefore be 'ECHR-plus'. A British bill of rights must not detract from any of the rights in the ECHR. The argument is sometimes made that a domestic British bill of rights would encourage the European Court of Human Rights (ECtHR) to allow the UK greater flexibility under its 'margin of appreciation'. However, the crucial factor remains the substance of legal protection, not the form in which it is presented.[2]

What are the options for ECHR-plus?

The ECHR, drafted in 1950, could be updated and expanded in several ways.

Modernising and strengthening the ECHR

First, existing limitations and exceptions to ECHR rights could be reduced. Several existing limitations now appear dated and show potential for amendment.[3] A single, general limitations clause as found in the South African, Canadian and New Zealand bills of rights, also merits consideration.

A second option lies with unratified protocols to the ECHR. Protocol 12, for example, guarantees a free-standing right to equality. It is designed to advance the ECHR's protection of equality beyond the limited guarantee of non-discrimination (in application of ECHR rights) under Article 14 ECHR. Free-standing equality rights would provide protection in domestic law equivalent to that in other binding international treaties.[4]

EHCR rights could also be 'updated' in line with changing social attitudes. For example, Article 12 ECHR includes a right to marry and found a family, but only for men and women. Given the recent legislation in the UK allowing for civil partnerships for gay couples, the time may have come to debate inclusion of equal rights in a more concrete sense. However, while moral perspectives on such matters have shifted, it may be that certain issues remain part of the democratic political process.

Traditional and common law domestic rights

Rights under this category include fundamental rights which have developed in the courts, such as the common law 'constitutional' rights of access to the courts.[5] This is the right through which all others may be protected. There is also the archetypal 'British' right of trial by jury, which has come under threat from the current government. The right applies in only five per cent of criminal cases, yet there are deep-rooted cultural and democratic arguments in favour of its retention.[6] It is also guaranteed in the constitutions or bills of rights of other common law jurisdictions including the United States, Canada, New Zealand and Australia. Inclusion of other rights such as due process rights (strong in the Canadian and New Zealand bills of rights) would also underline Britain's commitment to the rule of law.[7]

Economic, social and cultural (ESC) rights

Many jurisdictions have either included these rights explicitly as justiciable rights (eg South Africa) or developed ways of making them justiciable (eg India, Canada). The UK government recognises their equal importance with the civil and political rights contained in the ECHR but believes they are better enforced through political rather than legal means. UK courts have sometimes strayed into the territory of ESC rights[8] but caution remains over the powers that should be accorded to non-elected judges with their limited expertise and competence in matters concerning resource distribution.

Rights contained in international treaties and other bills of rights

International human rights treaties and comparative bills of rights present a wealth of examples of rights that might be adopted. For example, those in the Convention on the Rights of the Child (CRN) have been the subject of extensive debate in Northern Ireland's bill of rights process. Another increasingly prominent right is the right to a clean environment - not only universally relevant, but also increasingly central to the UK's domestic concerns. As well as being guaranteed under international instruments, many domestic bills of rights entrench it or enforce it by other means, including under the right to life (eg in India).

What are the risks of enacting ECHR-plus?

Comparative experience can sound a warning as to over-inclusiveness of bills of rights. In particular, the Northern Ireland bill of rights consultation process has attempted to secure support for women's and children's rights as well as cultural (language) rights, but repeatedly failed to gain consensus. The advice of the Chair of the recent consultation process in Victoria, Australia is that it is crucial to maintain an appropriate and achievable objective for the particular society in question.[9] The European Charter of Fundamental Rights and Freedoms also illustrates that consensus on terms may come at the expense of a weak and unenforceable document. The Charter includes a plethora of valuable rights, yet the very condition of agreement by state parties in 2000 was that its provisions, with their social and economic (and thus extensive financial) implications, would not be justiciable.

Marrying substance and symbolism - a 'people's preamble'?

A preamble was ruled out in debates preceding the HRA, but presents the opportunity to state the purposes and values underpinning a bill of rights and to articulate the constitutional principles it seeks to enforce. A bill of rights will be analysed and interpreted in the courts, but should also aim to be influential outside the courts.

A preamble might also meet the concerns of those who wish to emphasise social responsibility in addition to protection of rights in Britain. Historically, the aim of a bill of rights was to counter the duties already extensively laid down in statutory legislation. The point was to ensure that certain human rights, that need not be 'earned', were guaranteed and protected against the state's legislative omnipotence. The approach to this issue has differed. The Victoria Charter of Human Rights and Responsibilities 2006 stipulates that 'human rights come with responsibilities and must be exercised in a way that respects the human rights of others'. However, rights are not conditional upon the exercise of responsibilities.[10]

Importantly, a preamble may successfully convey the essence of a bill of rights and achieve the aim of being widely understood, by the legal and political community as well as the general population, including children of school age.

What are the next steps?

The legal status of a bill of rights must be addressed. According it special status (preventing repeal after another 'seven-year itch') may require some form of entrenchment. Constitutional inventiveness is needed to modify the doctrine of parliamentary sovereignty and bind successive parliaments. Special majorities or the consent of both Houses of Parliament as an exception to the Parliament Acts are options for amendment procedures.

A further point of tension will be whether to give judges new powers. While some supreme courts, such as in the US and Germany, can strike down legislation, many see the advantage of the HRA model as being that our elected representatives have the final say. Parliament has so far re-legislated following every judicial declaration of incompatibility, but might still choose not to.

Finally, process is all-important. Cross-party and popular consensus will key to a successful domestic bill of rights. Britain does not have a tradition of consultation before constitutional change. However, experience in Canada, South Africa and the Australian state of Victoria last year shows how extensive public consultation can inform and influence a bill of rights, ensuring public support which will secure its place in legal, political and public affairs.

Where can I find out more information?

JUSTICE interim discussion paper

Conservative Liberty Forum

DCA review of the implementation of the HRA, with government view on bill of rights

Recent / on-going bill of rights processes:

Northern Ireland

Australia: Victoria, ACT and Tasmania

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Article 5(1)(e) (on the right to liberty) allows the detention of 'alcoholics or drug addicts or vagrants'. It is doubtful that a modern bill of rights should include a right to imprison vagrants and alcoholics merely for what they are rather than for what they have done. Also, Article 16, concerning restrictions on the political activities of aliens, appears to go against the principle that fundamental rights (voting rights excepted) belong equally to both citizens and non-citizens (ie those with no voice in the domestic political process

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Johnson & Ors v Havering London Borough Council & Secretary of State for Constitutional Affairs (Interested Party)

[2007] EWCA Civ 26

Facts

In two linked appeals, the Court of Appeal had occasion to consider the meaning and application of the phrase, 'any person certain of whose functions are functions of a public nature' for the purposes of s6(3)(b) Human Rights Act 1998 (HRA). The Court of Appeal had previously ruled on this issue in Poplar Housing and Regeneration Community Association v Donoghue [2002] Q.B. 48 and R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366. Subsequently, the House of Lords had analysed s6 in Aston Cantlow PCC v Wallbank [2003] UKHL 37 but was not asked to consider the position of hybrid public bodies under s6(3)(b). The claimants in Johnson argued that Aston Cantlow had implicitly overruled Leonard Cheshire and invited the Court of Appeal to depart from that decision on that basis. The Department of Constitutional Affairs (amongst others) intervened in the appeal given its responsibility for the implementation of the 1998 Act.

Mrs Johnson was a resident in a care home maintained by a local authority. That authority proposed, under s26 National Assistance Act 1948, to transfer the care home to private sector operators. Mrs Johnson objected on the basis that the rights that she enjoyed against the local authority under the European Convention on Human Rights 1950, particularly her rights to a home (under Article 8) would be lost or substantially diminished if the home was transferred to a private body. She contended that the transfer to a private care home would be unlawful under s6 HRA as incompatible with her Convention rights.

YL had been placed by her local authority in a private sector care home. That home sought to terminate the contract for her care and to remove her from the home. She contended that her removal from the home would violate her Article 8 rights and sought to assert those rights against the care home.

Held

The transfer of immediate control of Mrs Johnson's residence from the public to private sector did not result in a significant loss of protection under the Convention. The fact that Mrs Johnson could not take direct action against her actual carer to vindicate her Article 8 (or Article 3) rights did not amount to a breach of those rights because the state had never been obliged to provide and maintain a particular level of Article 8 protection. Article 8 did not place a positive obligation on states to make welfare provision of the type occurring in this case. Buxton LJ noted that if transferring duties to private bodies violates Convention rights, this would place 'very far reaching and surprising inhibitions on national policy'; this is an important factor in construing s6(3)(b).

Mrs Johnson's care would remain the responsibility of the local authority under the statutory scheme and it would continue to have Article 8 obligations towards her - that duty will compel it to intervene and offer resources and protection to her. Further, people in Mrs Johnson's position are afforded a high standard of rights protection under the Care Standards Act 2002.

The Court of Appeal considered itself bound to follow its own previous decisions, holding that a private care home when accommodating residents was not performing the functions of a public authority under s6(3)(b) HRA. Cheshire had been cited to the House of Lords in Aston Cantlow but not mentioned in the speeches. It was difficult to see how Aston Cantlow could have impliedly overruled Cheshire, because in Cheshire the question was whether a private act performed by a private body, the private care home's enforcement of its own contract with one of its residents, became a function of a public nature because the private body was assisting a public body in the discharge of the latter's public functions, whereas in Aston Cantlow no such issue arose. The domestic rules of precedent prevailed in cases concerned with Convention or EU rights (Kay v Lambeth LBC (2006) UKHL 10). Aston Cantlow did not require the domestic court to follow Convention authority when determining questions under s6(3) of the 1998 Act, and the Convention jurisprudence did not in any event require any finding or assumption that a care home was itself a public authority.

Comment

Unlike the Master of the Rolls and Dyson LJ, Buxton LJ explained (obiter) how he would have decided the case if not bound by authority. He suggested that the question that should be asked in such cases is 'whether it is necessary for the protection of the claimant's Convention rights that the body concerned should be held to be a public authority against which those rights can be directly asserted'. The answer to that question depends on the article it that it is sought to assert. Further, he suggested that the approach to s6(3)(b) should respect the instrumental nature of s6 and its purpose in promoting access to Convention jurisprudence.

In anticipation of the hearing of this case, Parliament considered whether to pass a bill clarifying the meaning of 'public authority' (Hansard, 9 January 2007, Column 150). It was noted that in 2004, the Joint Committee on Human Rights concluded that the test that was being applied by the courts (in Leonard Cheshire) was 'highly problematic'. The Joint Committee had previously proposed that 'any person or body providing goods, services or facilities to the public, pursuant to a contract with a public authority, is a public authority for the specific purposes of the Human Rights Act'. The matter is due to be revisited in Parliament in June 2007.

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Francesca Klug

Stephen Grosz

Katie Ghose

Simon Chesterman

Francesca Klug
Professor at the Centre for the Study of Human Rights

Where did you first politically encounter human rights as a concept?

Only after I became director of the Civil Liberties Trust (CLT) in 1989. It was the charitable sister organisation to Liberty with its own trustees and director. It produced research for Liberty and this led to the publication of A People's Charter, Liberty's draft Bill of Rights, published in 1991.

What attracted you to the idea of human rights?

Human rights resonated with me through my previous experience both working at the Runneymede Trust on race equality and as a policy adviser at the London Borough of Hackney. At Hackney, there had been enormous dispute over the attempt to introduce a fairer distribution of resources and a fairer employment policy in a borough that had not, hitherto, recognised the diversity that had grown up within it. I came to see that we lacked a sufficient ethical framework to address the inevitable conflicts and tensions, including between disadvantaged and dispossessed groups, that this process unintentionally stoked. Those with the loudest voices often got heard the most. I also realised how useful human rights could be in areas like social services where I was working and where decisions are taken every day that could benefit from human rights standards, particularly in a context of unequal power relations between individuals and their social workers or carers. My starting point on human rights was more about this than the role of human rights in preventing the state riding roughshod over individuals' liberties, though of course that is absolutely crucial as well. At Liberty, there was a debate about whether to embrace the international tradition of human rights or the domestic British tradition of civil liberties. I came down on the side of human rights and during my time at the CLT, Liberty began more and more to embrace human rights as a principle.

What was the context at the time, in the early 1990s?

The Institute for Public Policy Research published its own version of a written constitution by Lord Lester and others shortly before Liberty produced its People's Charter. Charter 88 was becoming well-established and taking forward debate on the future of democracy in the UK. This included a debate about a Bill of Rights.. In response to arguments within the Labour Party and elsewhere that a bill of rights would transfer many crucial 'political' decisions to unelected and unrepresentative judges, I worked with John Wadham, then Liberty's legal officer, to develop a model that allowed Parliament the final say, which we called 'democratic entrenchment.' We wanted to make sure that politics were not deadened through a bill of rights whilst seeking greater judicial protection of rights, particularly at the extreme. As the result of all this activity, the 1992 Labour manifesto expressed support for the 'democratic enforcement' of a Bill of Rights.

What happened after the disappointment of Labour's loss of the 1992 election?

I continued to work with Liberty but moved to a post as research fellow at the Human Rights Centre at Essex University, under Professor Kevin Boyle. We continued to advise the Labour front bench - including Tony Blair, who was then leader of John Smith's Home Affairs team, and subsequently Jack Straw, when he took over as Shadow Home Secretary and whose personal commitment, alongside Lord Irvine's, was significant. We were trying to develop a model that would fulfil John Smith's commitment to introduce the UK's first Bill of Rights based on the ECHR. As it got nearer the election, there was more and more concern about the precise mechanism of entrenchment. In 1996, I moved to King's College (London) Law School to work with Professor Robert Blackburn on his Human Rights Incorporation Project. I also continued to work within the Labour party. With others, like Andrew Puddephat of Liberty and Stuart Weir at Essex, I was also involved in the Labour Rights Campaign - an attempt to involve grassroots Labour members in a commitment to rights. I was on the council of Charter 88 which continued to be active across all political parties.

How do you explain the difficulty that the government appears to have felt over support for the Human Rights Act?

There was no real consultation over the Human Rights Act beyond a relatively small elite of political activists and lawyers. A major justification given for incorporating the European Convention was that it would prevent the need for individuals to go to the Strasbourg European Court of Human Rights to determine issues. However, the real reason for using the Convention rather than a newly drafted Bill of Rights was that we would never have got agreement to any other list, that governments were not already bound by. The lack of consultation might have been less of a problem if there had been a concerted attempt to provide political leadership once the Act was passed. However, after 9/11, there was vocal disassociation from the Act and even blame heaped on it from a high level. Without proper leadership, it was totally predictable that there would be hostility among the tabloids and a widespread lack of understanding among the public.

Has the government changed?

Yes. I think the government considered whether they should amend or even repeal the Act and they decided to pull back from the brink, lead from the front and explain to officials how to interpret the broad rights in the HRA. There is now speculation that Gordon Brown will advance a Bill of Rights that will seek to build on the Human Rights Act.

You are a member of the Commission for Equality and Human Rights. Will this make a difference?

It should do. The Chair and the commissioners expect it to do so. We cannot afford to allow human rights to become a dirty word in this country and it will be helpful for those who are concerned about this to encourage the CEHR to fulfil its human rights mandate with vigour. It will undoubtedly be hard to reconcile the competing expectations on the Commission.

Are you now optimistic about the government's position?

Hugely more so than a year ago.

What about the Tories?

David Cameron appears to have decided that it would be popular to repeal the Human Rights Act. He wants the power to deport people to any country, regardless of whether they will be tortured. He wants, he says, control anti-terrorism policy, without judicial interference. The spirit in which you engage in debate seems to me to be terribly important. My fear is that he will repeal the Human Rights Act and then get bogged down in consultation on a British Bill of Rights which may never see the light of day. I think also there is code in some of the terms he is using: His vision for a 'British Bill of Rights' appears to signal rights for 'the British' rather than rights which have a 'British pedigree'. This proposal fills me with anxiety.

Was the struggle for the Human Rights Act worth all the energy and time that it took?

Of course. The irony is that the one thing that has made the Act so unpopular was 9/11 but it also provided the best test of its worth. Nothing else was going to put a check on the assumption of powers by the government in response. For all the tabloid attacks, you can begin to see people understanding its importance.

Centre for the Study of Human Rights
Commission for Equality and Human Rights

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Stephen Grosz
Bindman and Partners

You are a partner at Bindman's. You have co-written one of the major books on the Human Rights Act. How did your legal career begin?

I went to university to read law; changed to modern languages after a fortnight and then back to law very quickly. I was very undecided. Finally, I made the decision that I would read law but not qualify. Later, I thought I would qualify but not practise. I was at university in the mid 1970s just after we joined the Common Market. I was most interested in international law. I went off to do a postgraduate degree in European Law at Brussels. I also did an internship with the European Commission of Human Rights in Strasbourg.

How did you end up at Bindmans - where you did your articles and are now a partner?

It was a series of connections. I wrote to a number of charitable trusts in the human rights field to see if they would sponsor me to work at the Commission. The Runnymede Trust said that they would pay for a research paper on the case involving the right of entry to the UK of the East Africans. My old director of studies at Cambridge, Bob Hepple, put me in touch with Anthony Lester and Geoffrey Bindman who had acted in the case. I met Geoffrey and subsequently got articles at his firm.

How did you get involved in human rights law?

I realised that I wanted to specialise in human rights law while I was at Strasbourg. I got articles at what was probably the best place to develop a human rights practice, Bindmans. At that time, there were very few human rights firms, essentially because there was not much money in it unless you were acting for clients like the Duke of Westminster. There was no domestic legal aid, and most clients could not pay. We took the early cases on something like a speculative fee agreement - we offered our clients that we would consider waiving the charge if we lost. The first case that I did was Silver and others about prisoners' correspondence. This was the late 1970s, early 1980s when I was still in training. I worked with a number of national organisations who were active in the field. I once worked with three future cabinet ministers - Patricia Hewitt, Harriet Harman and Fiona Mactaggart, then employed in NCCL and the Joint Council for the Welfare of Immigrants - in the case of Abdulaziz and others about the right of husbands and fiancés to join their partners who were settled in the UK.

I think of you as a public law and a judicial review specialist.

That came later. My public law involvement began with a case against the Police Complaints Authority concerning the 'double jeopardy' rule, by which the PCA declined to investigate complaints against police officers where the decision had been taken not to prosecute them. Later, I did a lot of work for the National Union of Students on student grants and then student fees. That is when I started to undertake a considerable number of judicial reviews.

So you were, first, a European lawyer?

Yes. My 'desert island' case, the best one I have taken, was Helen Marshall, a sex discrimination case that I took twice to the European Court of Justice - once, on discrimination in retirement ages and once in relation to the amount of her damages. She changed the face of discrimination law, not once but twice. It made it punitive to discriminate.

How did you develop the judicial review work?

A number of organisations gravitated towards us because of the sort of firm that we are and the connections that we have. I acted for organisations like Friends of the Earth, CND, Greenpeace and Campaign against the Arms Trade. My most successful case was the World Development Movement's challenge for funding for the Pergau dam.

What was your favourite judicial review case?

Witham. It was a text book case. No one thought we could win it. We were arguing that it was wrong to withdraw the exemption from court fees for those on income support. Mr Witham wanted to bring a libel case for which legal aid was not available. He had to pay the court fee out of his own pocket. He pitched up at the court with his writ but was told to go away because something in it was wrong. When he came back, court fees had gone up and the income support exemption had gone, and he faced a issuing £500 fee. It was a nice clean issue. He was on income support; he could not afford the fee; and the court would not waive it. We argued that such a breach of the fundamental right of access to a court could not be made under secondary legislation without, at the very least, clear authority in the primary statute. When I heard that one of the judges was to be Sir John Laws I thought we were on to a winner because he had previously given a lecture on the role of the High Court as the guardian of fundamental rights through use of the common law.

So when the Human Rights Act was passed it was central to your interests?

It was rather strange. Suddenly, there were human rights experts all over the place. It was interesting to see how other people reacted to human rights principles and case law. By the time the Act came into effect, I had been working with human rights for 25 years. By that time, you took certain things for granted and you could predict much better how the European Court of Human Rights would react. But suddenly I was among a whole group of people coming to this for the first time and for whom nothing was obvious.

As true for judges as lawyers.

Yes. I had them in mind. There is an interesting piece of research to be done in looking at the cases that went to Strasbourg before and after the Human Rights Act. Some of the post HRA cases were bound to fail, like those on assisted suicide. I could see no way in which domestic courts or the European Court of Human Rights would accept that.

But there may be reasons to take a case other than to win it in the courts.

Of course. There were two reasons for brining cases like that of Diane Pretty on suicide or Barbara Clarke on medication. You may win the case in court. You may win the argument started by the case being in court.

How do you see contemporary threats to the HRA?

There is a great deal of misinformation about the Act peddled by the tabloids and not effectively contradicted by those who know better. There has been a failure of understanding and a failure of government to stand up and celebrate or even defend the HRA. It is true that belatedly Lord Falconer has defended the Act but few ministers outside his department have done so. The other threat is the Tories and their idea of a British Bill of Rights.

And opportunities for future development?

There will be a continuing need to assert the primacy of human rights over the ever-greater demands of security. The more developed technology becomes, the greater will be the need for human rights to protect respect for private life. There are issues about DNA retention after the dreadful decision in Marper (now declared admissible before the European Court of Human Rights). There is the creation of the DNA database itself. In fact, I think that Article 8 is one of the most dynamic provisions of the Convention. It covers such a wide area.

So plenty of new areas to explore?

Certainly.

Bindman and Partners

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How did you first come across human rights?

Working with immigration and asylum issues. People faced not only human rights abuses in the countries from which they were fleeing but also breaches of their human rights in their treatment here. My first job, after a law degree and a masters in politics at the University of California Riverside, was working for Greville Janner MP in the early 1990s. I did both research and casework. I used to drive with him up to his constituency in Leicester for his Saturday surgeries. He had many asylum and immigration cases.

What was your next job?

I went on to work as a Parliamentary Lobbyist for what is now called Citizens Advice. Much of my work related to what I would now think of as human rights though, at the time, we did not use that language. After a period of this, I decided that I wanted to be a barrister specialising in asylum and immigration cases.

So you took the Bar Vocational Course?

Yes. At the Inns of Court Law School. I knew exactly what I wanted to do and I had relevant experience. That was of enormous assistance in getting me pupillages in two good sets of chambers.

Did you stay on at the Bar after pupillage?

Yes. I stayed on after my pupillage as a squatter for a short time. I had started taking cases in my second six months. I was completely horrified at some of the solicitors. Some of their work was really shoddy. I would find that I was the first person to whom the client had had the opportunity to tell their story - and I would meet them only right before the hearing. After a couple of months or so,