Convention law: a safety net

Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.

Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.

Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:

  • It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
  • It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
  • It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy

Understanding legal concepts

Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak [2001] 1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.

Proportionality: ‘ultimate balancing’

Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.

Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 at [17]): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:

[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166

and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338. In Lifely v Lifely [2008] EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:

[35] The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.

[36] In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…

[37] In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.

Confidentiality and privacy

Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell [1990] Ch 359, [1990] 2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:

No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.

This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).

That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513). This will not go if Human Rights Act 1998 is repealed.

Conclusion: the lessons of European Convention 1950

Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention  is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.


Claims against a public authority: Human Rights Act 1998

Occasionally a lawyer is so outraged at the court’s treatment of a case that s/he is tempted to advise suing for a client’s losses caused by the court’s treatment of a case. Administrative errors by HMCTS may attract a claim. Judicial acts almost certainly will not (for reasons explained by Lord Denning MR below).

Human Rights Act 1998 seems to make a claim possible. Section 6(1) says that it is unlawful for a public authority to act in a way which is incompatible with a European Convention 1950 right (such as to a fair trial: Art 6(1)); if a person claims to be the ‘victim’ of an act which is unlawful under s 6(1) s/he can claim against the public authority (s 7(1)); and ‘public authority’ includes a court (s 6(3)(a)). HRA 1998 s 9(1) makes specific provision for claims for ‘judicial acts’ as claims under s 7(1)(a); but then s 9(3) (as explained below) sets the gate through which the claimant must pass almost impossibly narrow.

Judicial immunity from suit

In a clear and economically expressed judgment in Begraj & anor v Secretary of State for Justice [2015] EWHC 250 (QB), His Honour Judge KcKenna sitting in Birmingham as a High Court judge explains clearly why a s 9 claim is so difficult. The modern law on personal immunity to suit of judges to suit can be traced (uninterrupted by HRA 1998) to Lord Denning MR in Sirros v Moore [1975] 1 QB 118. This case, says the judge:

[21]… is the leading authority on the personal immunity of judges. In that case, it was held that judges have complete immunity for any act that is within their jurisdiction or which they honestly believe to be within their jurisdiction. It is plain that a very wide interpretation of what are protected acts was given.

As the judge explains, Sirros says (at 132D):

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and or uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse the ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

Lord Denning MR went on (at 135C) to set out what he described as ‘the test’ for judicial immunity:

… A judge of the superior court is not liable for anything done by him while ‘he is acting as a judge’ or ‘doing a judicial act’ or ‘acting judicially’ or ‘in the execution of his office’ or ‘quatenus a judge’. What do all these mean? They are much wider than the expression ‘when he is acting within his jurisdiction’. I think that each of the expressions means that a judge of the superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, or he may be mistaken in that belief and may not in truth have any jurisdiction. No matter that his mistake is not one of fact but of law (as in Bushell’s Case, 1671 Vaughan 125) nevertheless he is protected if he in good faith believes that his jurisdiction to do what he does.

Meaning of ‘judicial act’

Begraj & anor v Secretary of State for Justice (above) was a long-running (around 30 hearing days) in the Employment Tribunal where staff of solicitors were making various discrimination claims. Police asked to see the judge, which she agreed to; and then she told the parties representatives. The respondent to the employment case applied for recusal of the judge, opposed by the Begrajs. The tribunal recused itself. Following an unsuccessful appeal from that decision, the Begrajs applied for damages for the costs thrown away as a result of another tribunal now having to hear the case all over again. They argued that speaking with the police was outside the definition of a judicial act as defined by HRA 1998 s 9(5) as:

“judicial act” means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge;…

A district judge dismissed the Bergraj’s case as disclosing no reasonable grounds for bringing a claim and an abuse of the court’s process (CPR 1998 r 3.4(2)(a) and (b)). On appeal from the district judge, Judge McKenna was taken to HRA 1998 s 9(3) which exempts from compensation claims all judicial acts done ‘in good faith’.

Judicial act: not appealable

The Bergaj’s sought to persuade the judge that where a judicial act was not appealable, then it was outside the cover provided by s 9(3). On this issue and the question of what is a judicial act, Judge McKenna rejected the Bergraj’s case:

[20] … As it seems to me, the scope of the immunity under section 9 (3) HRA 1998 and the concept of judicial act in particular must, in the light of the authorities, be given a broad definition. As counsel for the Secretary of State submitted, under section 2 (1) CPA 1947 the State’s liability in tort to the actions of its servants only arises where it would be possible to hold the officer personally liable for that tort and as the purpose of section 9 (3) HRA 1998 is to preserve the section 2(5) CPA 1947 position in the context of human rights damages claims, it must be the case that where a judge would benefit from judicial immunity in respect of a particular act the State cannot be liable under s.9(3) of HRA 1998.

Had Parliament intended judicial acts only to be those which are appealable, said the judge, it could have said so ‘expressly. It did not’ (para 23). It will be rare case that a case gets past HRA 1998 s 9(3), as Bergaj and His Honour Judge McKenna shows.


Convention rights in child relocation proceedings

It is fashionable nowadays in certain circles to knock the Human Rights Act 1998. In Re Y (Children) [2014] EWCA Civ 1287 Ryder LJ (with whom Longmore and Patten LJJ agreed) rejected an appeal by a father (F) who sought to relocate to the Missouri with his second wife (S), whose family were there. The judge had refused him permission. He had ‘residence’ (as we must now not call it) of the parties two children (aged 11 and 7) by consent. He and S had another child (C). The question arose as to whether the European Convention 1950 Art 8 rights (only, it seems) of that child arose in the proceedings.

Acting in person before the judge the father had argued that C’s Art 8 rights were engaged. Ryder J disagreed (though I do not say he specifically ‘knocked’ the 1998 Act):
[40] Ms Sparrow [appearing pro bono for the father] was right to be circumspect in relation to the Article 8 claim.  It is self-evident that in any application under the Children Act 1989 the Article 8 rights of the subject children and the parents are engaged and the court is a public body whose decisions may interfere with those rights.  On the facts of a particular case the application may engage the Article 8 rights of others, for example the father’s wife [S] and a non-subject child [C].
[41] Let me assume for the purposes of this discussion that on the facts of this case the youngest child [C]’s Article 8 rights were engaged.  Any interference with those rights has to be justified in accordance with Article 8(2).  The interference has to be, (1), in accordance with the law; (2) be necessary in a democratic society; and, (3), be proportionate to the object to be achieved.  Where a child’s Article 8 rights have to be balanced against an adult’s, the interests of the child will prevail.

Convention rights of all involved in the proceedings
In these two paragraphs Ryder LJ has reduced Convention rights engaged by the father’s application to C and to Art 8 only. It will be argued here that others, and their rights, are engaged by this case.

In cases such as this the starting point is often taken to be Re S (Identification: Restrictions on Publication) [2004] UKHL 47 – and this applies in any relevant family litigation – where Lord Steyn said:

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

It is relevant to consider this passage for reasons which will emerge; for Ryder LJ proceeds as follows:

[43] … Parliament has provided a legislative mechanism for [a Children Act 1989 s 8 decision] that is human rights compliant.  It is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person’s Article 8 rights so as to evaluate whether its decision is proportionate.  Ms Sparrow could point to no jurisprudence to suggest otherwise.  That position is quite distinct from public law applications where such an evaluation is required by reason of the fact that a local authority applicant is a public authority seeking itself to interfere in the rights that are engaged.
Here I must respectfully part company from Ryder LJ; and I do so on Supreme Court and Court of Appeal authority, both of which he is bound by.

As between M and F in respect of F’s application relating to A and B, the children of the family: yes, Children Act 1989 has provided each of them with remedies and the opportunity for a trial of the issues between them. However, neither S nor C are parties to these proceedings. Yet in respect of M’s opposition to the plans of F and S with the three children in their household, neither S nor C have a trial at all, let alone a fair trial. This may be as it should be, and as Parliament intended; but does it in reality make Children Act 1989 Part 2 Human Rights Act 1998 compliant? Even if it does, it does not mean that a public body decision-maker – like a judge – can simply ignore their rights (as I understand Convention rights).

Human rights: Children Act 1989 Part 2

The leading recent case on the need for family courts to have European Convention 1950 issues in mind in Part 2 proceedings is A (A Child) [2013] EWCA Civ 1104 where the recalcitrance of a mother had prevented a father having contact with his daughter over a very long period of time. McFarlane LJ’s concludes the part of the judgment which deals with human rights as follows:

[63] On the question of quite when or how it is that the proceedings as a whole have been conducted in a manner that is in breach of the family life rights of M and her father it is neither right nor possible to do more than point to these matters as being of relevance. Again, in the context of the proceedings [below], there is no one occasion about which it is possible to say that a clear breach of any Art 6 or Art 8 procedural rights occurred. That said, and despite the goodwill and best intentions of the judge, the various officers of CAFCASS and NYAS and those agencies themselves, which I take as read, the resulting process cannot be regarded as a sound or timely procedure for determining the issues that the father had brought before the court in 2011.

Of a case involving a witness (‘X’) – that is a non-party like S in Re Y – in Re A (A Child) [2012] UKSC 60, Lady Hale defined the rights of those involved. This was contact proceedings where X had made serious allegations about the father of a little girl. Lady Hale said:

[25] It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 concerned whether or not a mother should be deported. Her three children were not directly in issue. Though the children were not a party to, nor the subject of, the proceedings – exactly like C – the court was concerned that their rights be recognised. Lord Kerr explained how this should be dealt with in practice: by identifying rights and then identifying whether the court was entitled to interfere with such rights:
[144] … As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8…. where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

[145] Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”….

European Convention 1950 and child arrangements

With all due respect to Ryder LJ, I cannot see that in Children Act 1989 Part 2 proceedings (sometimes called ‘private law’) there is any difference than the states of affairs described above; and two of the cases involved were Part 2 proceedings.

All those affected by any decision-maker’s decision – whatever the public authority – have rights. Despite what Ryder LJ says at para [43] above, all decision-makers – social workers and judges included – must comply with their duties under Human Rights Act 1998. Where articles which are engaged by a decision conflict, they must be balanced with all children (whose interests may conflict) being taken into account. A proportionality test – is interference justified? – should be applied where Convention rights are to be interfered with. This applies to Children Act 1989 Part 2 as to any other decision-making.

The judges concerned in Re Y may have felt that the rights of S and C were vestigial; though I wonder if they really were? On these facts I would suggest they should have been in the balance and the court’s interference expressly justified.