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Which presumption? A critique of the House of Lords' reasoning on retrospectivity and the Human Rights Act

Published online by Cambridge University Press:  02 January 2018

Deryck Beyleveld ,
Richard Kirkham  and
David Townend
Deryck Beyleveld
Affiliation:
University of Sheffield
Richard Kirkham
Affiliation:
Department of Law, University of Sheffield
David Townend
Affiliation:
Department of Law, University of Sheffield
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Abstract

In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 2 , June 2002 , pp. 185 - 207
Copyright
Copyright © Society of Legal Scholars 2002

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References

1 [2001] UKHL 37, [2001] 3 WLR 206, decided on 5 July 2001. In Larnbert, the appellant, who had been convicted on 9 April 1999 after being found in possession of f140,000 worth of cocaine on 25 November 1998 (the Appeal Court having upheld his conviction in July 2000). appealed against his conviction on the grounds that the trial judge had directed the jury in contravention of art 6(2) of the European Convention on Human Rights (the Convention).

2 Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde and Lord Hutton in the majority, with Lord Steyn dissenting.

3 [2001] UKHL 64, [2001] 3 WLR 1562, decided on 29 November 2001

4 Lord Lloyd of Berwick, Lord Steyn and Lord Hope of Craighead in the majority. Lord Slynn of Hadley and Lord Hutton in the minority.

5 [I9661 1 WLR 1234.

6 [2002] UKHL 2, [2002] 2 WLR 235.

7 These are the rights and fundamental freedoms set out in arts 2-12 and 14 of the Convention, arts 1-3 ofthe first protocol and arts 1 and 2 ofthe sixth protocol, as read with arts 16-18 of the Convention (s 1 (1)).

8 Lumbert, above n 1, Lord Slynn at [6], Lord Hope at [ 1151, Lord Clyde at [ 1431, and Lord Hutton at [ 1691.

9 Ibid, at [10].

10 Ibid, at [141].

11 Lord Justice Kennedy, in Brooks v Commissioner of Police for the Metropolis [2002] EWCA Civ 407 at [73], citing Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 745.

12 Lanibert, above n 1, at [ 1531

13 A point made by Lord Steyn in his dissenting judgment at [29], ibid.

14 With Lord Hutton dissenting, their Lordships declared that the customary interpretation of s 28(2) and s 28(3) of the Misuse of Drugs Act 1971, employed by the trial judge, according to which a defendant who has been charged under s 5 of the Misuse of Drugs Act 1971 must establish that he or she neither believed nor suspected nor had reason to suspect that the substance was a controlled drug on the balance of probabilities (ie the defendant must discharge a ‘legal’ or ‘persuasive’ burden proof, rather than an ‘evidential burden’ - according to which the prosecution must establish that the defendant believed, suspected, or had reason to suspect this beyond a reasonable doubt) is incompatible with art 6(2) of the Convention. However, they also declared that it is possible to interprets 28(2) and s 28(3) of the Misuse of Drugs Act 1971 compatibly with art 6(2).

15 Because it was stated unanimously in Lambert that the appellant would be found guilty even if the jury had been directed compatibly with art 6(2), it might be held that there was no injustice in Lanibert. However, it is surely not the proper role of the House of Lords to make such a judgment, which is the province of the jury. No doubt their Lordships felt able to make these statements because, having ruled that there was no retrospectivity in the case, these statements were obiter. However, there is the danger that they felt more able to make the judgment about retrospectivity because of their view on the appellant's guilt, which is a case of the cart driving the horse. In our opinion, there is a real injustice here, because the ratio in Lanibert is insensitive to whether or not appellants are guilty on the facts and, if followed, will be applied in cases where juries, if compatibly directed, would find the appellants not guilty.

16 Lanibert, above n 1. Lord Clyde at [ 1471.

17 The New Zealand Bill of Rights I990 and the Canadian Charter of Rights and Freedoms (contained in the Canada Act 1982).

18 For an analysis of the ability of the New Zealand courts to interpret legislation in accordance with the Bill of Rights Act 1990 and the ‘general’ presumption against retrospective legislation, see Butler, A ‘Declaration of incompatibility or interpretation consistent with human rights in New Zealand’ [2001] PL 28 Google Scholar and Butler, A ‘Implied Repeal, Parliamentary Sovereignty and Human Rights in New Zealand’ [2001] PL 586 Google Scholar.

19 See eg Lumbert, above n 1, Lord Hutton at [ 1731.

20 Ibid at [30].

21 These are based on internal time limits to the domestic appeal process that are acceptable to Strasbourg. According to art 35(1) of the Convention, applications to Strasbourg must be made within six months of the exhaustion of domestic remedies. Thus the key question with regard to the prospect of opening the floodgates is -when do domestic remedies become exhausted? Under the HRA, s 7(5), proceedings ‘must be brought before (a) the end 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’. Given that, for instance, in criminal proceedings an appeal must be lodged within 28 days of conviction (unless, of course, new evidence is brought to light: see the Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995), the likelihood of a flood of human rights cases emerging from the distant past would appear to be severely limited by domestic legal rules on time limits. The only exceptions to this are where the Court of Appeal chooses to exercise its discretion, or where the Criminal Cases Review Commission exercises its right to refer a case to the Court of Appeal. Yet, in both scenarios, if an appeal is allowed after a significant time delay then in all likelihood there will be good grounds for such an appeal, and it is hard to see why an attempt should be made to resmct the application of justice in these types of cases. Any final appeal to the House of Lords must be made by application to the Court of Appeal within 14 days of the Court of Appeal decision, with a further 14 days to apply for leave to appeal directly to the House of Lords itself should the Court of Appeal refuse to grant leave. In Kansal, Lord Steyn noted that these procedures represent ‘a perfectly effective filter’, above n 3, at [26].

22 A point made by Lord Woolf CJ in R v Benjajield [2001] 3 WLR 75 at [51]. Of course, Strasbourg does not act as an appellate court in this respect. However, in practice, the potential for the UK government to refuse to act upon a decision of Strasbourg is minimal.

23 Fuller, L The Morality of Law (Yale: Yale University Press, revd edn, 1969) p 53.Google Scholar

24 Ibid, p 55.

25 Ibid, p 56-57.

26 Ibid, p 53.

27 Ibid, p 59.

28 Lambert, above n 1, Lord Hope at [110] agrees, as does Lord Clyde at [142] and [157].

29 Under the HRA, the House of Lords in its judicial capacity is a public authority, see s 6(4).

30 This has the implication that retrospectivity is to be given in any cases where the courts are prepared to give horizontal effect. This may strike some as startling, but it is not impossible, and it is consistent with the approach taken by the Court of Appeal in Wilson v The Firsf County Trust Limited (No 2) [2001] EWCA Civ 633, [2001] 3 WLR42 at [22]. For further discussion, see ‘Lord Steyn's dissent in Lumbert’, below.

31 The significance of s 3(1) has been widely discussed (see eg Irvine, Lord ‘The Development of Human Rights in Britain under an Incorporated Convention on Human Rights’ [1998] PL 221 Google Scholar; Marshall, G ‘Interpreting Interpretation in the Human Rights Act’ [1998] PL 167 Google Scholar; Bennion, F ‘What Interpretation is “Possible” under Section 3(1) of the Human Rights Act 1998’ [2000] PL 77)Google Scholar.

32 S 22(3); SI. 2000/185 1.

33 Unfortunately, to shed light on this issue it is unrewarding to turn to the parliamentary debates, the White Paper which preceded the Bill, or the notes on the Act. There was little debate on s 22(4) during the HRA's passage through Parliament, although there is some evidence to suggest that the reason for the delay in implementing the HRA was the need to allow public authorities the opportunity and time to adjust to their new domestic responsibilities. Perhaps, it was hoped that this would minimise potential problems of pre-HRA breaches of Convention rights.

34 Lanibert, above n I , at [ 1041.

35 If there is any doubt about this then the interpretative presumption in favour of the application of Convention rights in s 3(1) of the Act surely resolves the issue.

36 Support for this proposition can be found in the judgment of Lord Steyn in R v Director of Public Prosecutions, exp Kebilene [2000] 2 AC 326 at 368.

37 Lanibert, above n 1, Lord Slynn at [9], Lord Hope at [ 115-1 161, Lord Clyde at [140] and Lord Hutton at [172-1731].

38 This position was held by Lord Slynn and Lord Clyde. On this point, Lord Hope changed his mind in Kansal.

39 Lanibert, above n I , Lord Slynn at [8] and Lord Hope at [102] and [106-107]

40 Elijah Jernchi and the Visitor, Brunel University [2001] EWCA Civ 1208 at [S].

41 We are very perplexed by the example that Lord Hope gives of Aston Canflow and Wilmcote with Billesly Parochial Church Council v Wallbank [2001] EWCA Civ 713; [2001] 3 WLR 1323 (Lanibert, above n 1, at [106]) to explain when s 22(4) could be effective (which is also given by Sedley LJ in Elijah Jemchi, ibid). At [ 1041 Lord Hope contends that retrospectivity does not apply in proceedings brought against a public authority, yet Wallbank is a case in which retrospectivity is granted to a private individual in proceedings brought against a public authority (albeit on appeal where the original proceedings were brought by the public authority pre-HRA). In other words, the basic fact pattern is identical to that in Larnbert in that the proceedings were instigated by a public authority pre-HRA, and the decision at first instance was appealed against post-HRA on the grounds of a breach of Convention rights caused by the ruling of the lower court. This case is currently being appealed to the House of Lords. To us, it would appear that on the (erroneous) reasoning of the majority in Lanibert, the decision on retrospectivity in Wallbank must have been made in error. Apart from this, we say that the Lanibert decision leaves this case ‘at most’ as a case where retrospectivity is to be given because (see below) we argue that the inner logic of its ratio leaves no cases where retrospectivity can be given.

42 Lanibert, above n 1, Lord Slynn at [9], Lord Hope at [ 1 15-1 161, Lord Clyde at [ 1401, and Lord Hutton at [172-173]. Sir Andrew Momtt V-C also reasoned in this way in Wilson, above n 30, at [20]

43 Kunsul, above n 3, at [l02]

44 Lambert, above n 1, Lord Slynn at [9] and Lord Hutton at [172-173]

45 This is also precisely how the Parliamentary Under-Secretary of State for the Home Department (Mr Mike O'Brien) defended the original cl7(5) of the Human Rights Bill (that later became s 7(6) of the HRA) before the Standing Committee of the House of Lords, HL Debs vol 314 col 1057 (24 June 1998). Further, in Kunsul, above n 3, Lord Hope at [71-72] argues this point forcibly, rejecting the ‘majority’ view put forward by his colleagues in Lambert that the effect of s 7(6) was to distinguish appeals as being a category of legal proceedings to which s 22(4) could not apply.

46 We suggest that the use of ‘or’ (signifying ‘andor’), rather than the use of ‘and’ by itself, signifies that a person with a complaint against a public authority under s 7(1) may (in the prospective case at least) rely on the Convention rights in proceedings brought or instigated solely by a public authority as well as in proceedings brought by the person himself or herself.

47 This second reason also explains why s 7(6) specifically includes: (a) proceedings brought by or at the instigation of a public authority; and (b) appeals against the decision of a court or tribunal. Category (a) proceedings are specifically referred to because it is falling within this category that s 22(4) makes the qualifying condition for retrospective application. Category (b) proceedings are referred to in order to make it absolutely clear that ‘or’ between s 7(1)(a) and s 7(1)(b) must be read as ‘andor’.

48 The arguments based on s 7(6) and on the relationship between s 7(1)(a) and s 7(1)(b) are the two major arguments presented by the majority. One other argument needs to be considered. According to Lord Slynn at [8] and Lord Hope at [102] and [106-107] (Lambert, above n 1), there might be something to the argument for retrospectivity if the appellant's complaint was against the CPS, because if there is to be retrospectivity, then the public authority against whom the complaint is made must be the same as the public authority that brought or instigated the proceedings. In Lambert though, the complaint was against the trial judge, hence there could be no retrospectivity. However, there is no textual support for this argument. Indeed, the textual evidence positively indicates that the public authorities can be different, simply because the indefinite article ‘a’ is used in the relevant places, s 7(1) stating that a person who claims that ‘a public authority’ has acted unlawfully, may (per s 7(1)(b)) rely retrospectively (per s 22(4)) on the Convention rights in proceedings brought by or at the instigation of ‘a public authority’ (see s 7(6)). If the public authorities, here, must be the same, we would expect s 7(6) to refer to ‘proceedings brought by or at the instigation of the public authority’, or even more clearly, to ‘proceedings brought by or at the instigation of the public authority against which the complaint in s 7(1) is being made.’

49 Lumbert, above n 1, at [28-29].

50 An interpretation that was confirmed in the Court of Appeal by Lady Justice Hale in Peurce v Muyfield School [2001] EWCA Civ 1347 at [19].

51 It should be apparent that s 6(1) is parallel to s 3(1) and s 6(2) is parallel to s 3(2). To a degree s 6 is wider than s 3(1) because it is not confined to the interpretation of legislation.

52 See eg Sir William Wade ‘Horizons of Horizontality’ (2000) 116 LQR 217-224; Sir Richard Buxton ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48-65; Hunt, M ‘The “Horizontal Effect” of the Human Rights Act’ [1998] PL 423-443 Google Scholar; Beyleveld, D and Pattinson, S ‘Horizontal Applicability and Horizontal Effect’ (2002) 118 LQR (forthcoming).Google Scholar

53 See above n 30.

54 It should be apparent that the Court of Appeal ought not to have come to this conclusion under the strict presumption against retrospectivity that was deployed in Lanibert.

55 Kansal, above n 3, at [a].

56 Lord Clyde was replaced by Lord Lloyd of Berwick.

57 Lords Steyn, Lord Lloyd, and Lord Hope.

58 Kansal, above n 3, at [29].

59 See above n 5.

60 Kansal, above n 3, at [8-l0].

61 Ibid, at [IOl-1021.

62 Ibid, at [17].

63 Ibid, at [27].

64 It is interesting to note that panel in Kansal was made up of the same judges who heard Lambert, with the exception of Lord Lloyd who replaced Lord Clyde.

65 Kansal, above n 3, at [17].

66 Ibid, at [19] and [21).

67 Ibid.

68 Ibid, at [26] and [55].

69 Ibid, at [78-82].

70 bid, Lord Slynn at 191, Lord Lloyd at [14], Lord Steyn at [26], and Lord Hutton at [99].

71 Ibid, at [58].

72 Ibid, above n 3, at 1161 and [22].

73 Ibid, above n 3, at [78-90].

74 Ibid, at [84].

75 The Home Ofice v Wuinwright [2001] EWCA Civ 2081 at [4-22].

76 On this issue our appeal judges are in some disarray. See, for instance, Lord Nicholls of Birkenhead in In Re S (FC) [2002] UKHL 10 at [37], who states that s 3(1) does apply retrospectively.

77 Such reasoning is evident in a line of cases beginning with R v Chief Immigrution Oficer, Heathrow Airport, exp Bibi [ 19761 1 WLR 979, eg Lord Denning at 984.

78 R v Secretury of Stute for the Home Department, ex p Brind [ 19911 1 AC 696.

79 See R v A (No 2) [2001] UKHL 25, [2001] 2 AC 45.

80 Lord Clyde in Lambert did suggest that he would have been inclined to interpret the disputed legislation in line with Convention rights ‘even without the added compulsion of the Human Rights Act’ (above n 1 , at [157]), but despite this he too found against Lambert

81 The lack of clarity in this area is not just confined to the principles surrounding the use of the Practice Statement. There is also some confusion as to when the House of Lords have overruled and when they have merely departed from or distinguished a decision. See eg Harris, J ‘Towards Principles of Overruling-When Should a Final Court of Appeal Second Guess?’ (1990) 10 OJLS 135 CrossRefGoogle Scholar.

82 See Paterson, A A ‘Lord Reid's Unnoticed Legacy - A Jurisprudence of Overruling’ (1981) 1 OJLS 375 CrossRefGoogle Scholar.

83 Jones v Secretary of State for Social Services [1972] AC 944 at 966.

84 Steadman v Steadman [1976] AC 536 at 542.

85 Eg DPP v Myers [1965] AC 1001 at 1022.

86 Knuller v DPP [1973] AC 435 at 455.

87 Jones, above n 83, at 966.

88 Lord Lloyd and Lord Steyn referred to the reasoning in Shuw v DPP [1962] AC 220, Fitzleet Estutes v Cherry [1977] 1 WLR 1345, and Lewis v A-G of Jumaica [2001] 2 AC 50.

89 See the decisions of Keith J in Alan Robert Mutthews v Ministry of Defence [2002] EWHC 13, QB, and of Laws LJ, as supported by the remainder of the court, in Shefield City Council v Emma Smart [2002] EWCA Civ 04. In the latter case, the court was willing to consider the HRA retrospectively in an appeal without even attempting to distinguish the facts or apply the legal reasoning in the judgments in Larnbert or the Court of Appeal cases Pearce (above n 50) and Wainwright (above n 75). We find difficulty in understanding Keith LJ's decision in Alan Robert Mutthews. In that case, MI Matthews brought proceedings against the Ministry for negligence and breach of statutory duty, on the basis of asbestos poisoning that he received whilst in its employment between 1955 and 1968. Yet, if the HRA is to apply in this case, then as the proceedings are being brought against a public authority then s 7 needs to be followed. But if s 7 applies and the act being claimed against is pre-HRA, then s 22(4) should be considered as well. And, if s 22(4) applies, then for a s 7 action to be potentially successful it must be in proceedings brought or instigated by a public authority (as well as, per Lambert, not proceedings brought against a public authority). This logic was not followed in Alan Robert Mutthews. Instead, the judge chose to apply the Wilson ruling (above n 30) that the date on which the acts complained of occurred has no bearing on the law to be applied. However, as we noted earlier, Wilson was a case that concerned a dispute between two private parties, not, as in this case, proceedings against a public authority. (And in relation to proceedings against a private body, as we have again already noted (see above n 54) Lumbert-type reasoning should preclude retrospectivity because the HRA does not explicitly grant it.)

90 See Paterson, above n 82, fn 9, by reference to why Shaw, above n 88, was not overruled in Knuller, above n 86.

91 For, as Lord Nicholls of Birkenhead in Re S (FC) [2002] UKHL 10 at [34-441 has recently forcibly reiterated, the role of the courts is to interpret legislation not to legislate.

92 There are precedents for the Practice Statement being applied in criminal law: see R v Shivpuri [1987] AC 1 and R v Howe [I9871 AC 417.

93 A point reiterated by Lord Scarman in R v Secretary of State for the Home Department, ex p Khawuja [I9841 AC 74 at 106-1 14.

94 Mcllkenny v Chief Constable of West Midlands Police Force [ 19801 2 All ER 221 at 240.

95 See above n 15.

96 Harris argues that ‘where what is at stake are fundamental principles of the constitution’, then this can be sufficient ground in itself to justify overruling above, n 8 1 at p 198. Support for this proposition can be found in the judgments of Banvick CJ and Aicken J in Queensland v The Commonwealfh (1978) 139 CLR 585.

97 We await with interest the House of Lords decision on Wallbank (see [2002] 1 WLR 713).